United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Ware Shoals, SC, Employer
__________________________________________

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Appearances:
Greg Dixon, for the appellant
Office of Solicitor, for the Director

Docket No. 10-428
Issued: October 22, 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 December 4, 2009 appellant filed a timely appeal from August 12 and October 22,
2009 decisions of the Office of Workers’ Compensation Programs denying periods of wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether appellant established total disability for work for the period
January 3 to 30, 2009; and (2) whether appellant was entitled to wage-loss compensation in
addition to a schedule award for the period June 9 to September 28, 2007.
FACTUAL HISTORY
The Office accepted that on September 18, 2001 appellant, then a 44-year-old city carrier,
sustained a torn left medial meniscus with internal derangement and chondromalacia when she
slipped and fell on a porch step. It later accepted lumbar subluxation, a displaced lumbar disc
without myelopathy and chronic pain syndrome.

Dr. William B. Evins, an attending orthopedic surgeon, treated appellant for left knee and
lumbar conditions beginning in 2002. He performed left knee arthroscopy on December 10,
2003 with removal of loose bodies and joint debridement. Dr. Evins submitted periodic reports
through 2006.
Beginning in May 2005, appellant was followed by Dr. Christie B. Mina, an attending
Board-certified neurosurgeon, who diagnosed degenerative lumbar disc disease from L4 to S1
with a small disc bulge at L4-5.
Dr. John C. Haasis, an attending Board-certified anesthesiologist, administered lumbar
facet block injections at L3, L4 and L5 on June 7, 2007. He held appellant off work from June 7
to 12, 2007. Dr. Haasis performed another series of facet injections on September 7, 2007.
Appellant claimed a schedule award. By decision dated March 4, 2008, the Office
granted her a schedule award for a 15 percent impairment of the left lower extremity.1 The
period of the award ran from March 18, 2007 to January 14, 2008.2
In a June 23, 2008 report, Dr. Mina noted the recent onset of right lower extremity
symptoms related to a herniated L4-5 disc. She held appellant off work for intermittent periods
in October and November 2008 due to lumbar pain with right-sided radiculopathy.3 Dr. Mina
also held appellant off work in January 2009. In a January 19, 2009 report, she held appellant
off work from January 3 to 10 and January 16 to 20, 2009 due to the accepted lumbar conditions.
In a January 26, 2009 report, Dr. Mina held appellant off work from January 23 to 27, 2009 “due
to injury on the job.”
On February 11, 2009 appellant filed claims for wage loss for periods of disability from
June 9 to September 28, 2007. On February 16, 2009 she claimed wage loss for total disability
from January 3 to 30, 2009. The Office advised appellant of the medical evidence needed to
establish her claims.
In a March 16, 2009 report, Dr. Mina noted that, beginning in the fall of 2008, she
prohibited appellant from working overtime or lifting more than 20 pounds. On April 1, 2009
she explained that it was “nearly impossible” for appellant to work from January through
March 2009 due to side effects of Skelaxin, Lyrica and Cymbalta prescribed for radicular pain.
Dr. Mina advised appellant not to work, or “work as you are able to work.”4

1

The record indicates that appellant received a prior schedule award under a separate claim for a 13 percent left
lower extremity impairment. Added to the prior award, she had a 28 percent impairment of the left lower extremity.
2

By decision dated July 21, 2008, the Office denied compensation for the period May 12 to June 8, 2007. It
vacated this decision on March 17, 2009 and awarded wage-loss compensation for the period May 12 to
June 8, 2007.
3

Appellant underwent caudal steroid injections on July 24, September 11, 2008 and February 17, 2009.

4

On May 21, 2009 Dr. Mina performed an L4-5 hemilaminectomy, discectomy and foraminotomy, authorized by
the Office.

2

By decision dated May 14, 2009, the Office denied wage-loss compensation for the
period June 9 to September 28, 2007 as appellant received compensation under a schedule award
for the same injury from March 18, 2007 through November 14, 2008.
By decision dated August 12, 2009, the Office denied compensation from January 3
to 30, 2009 on the grounds that the medical evidence was insufficient to support the claimed
period of disability.
In September 9 and 16, 2009 letters, appellant requested reconsideration of the May 14
and August 12, 2009 decisions. She asserted that lumbar facet injections totally disabled her for
work from June 9 to September 28, 2007. Appellant contended that she receive wage-loss
compensation concurrent with the schedule award as the two benefits pertained to different
injuries. The schedule award was for knee impairment but she was disabled for work due to the
accepted lumbar condition.
By decision dated October 22, 2009, the Office modified its May 14 and August 12, 2009
decisions, granting four hours of compensation for medical appointments on January 26,
August 3 and September 27, 2009. It denied compensation for the remainder of the period
January 3 to 30, 2009, finding Dr. Mina’s opinion insufficiently rationalized. The Office also
denied wage-loss compensation from June 9 to September 28, 2007 as appellant received a
schedule award for that period.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act5
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence.6
To establish a causal relationship between a claimed period of disability and the accepted
employment injury, an employee must submit rationalized medical evidence based on a complete
medical and factual background, supporting such a causal relationship.7 Causal relationship is a
medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.8 Rationalized medical evidence is evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
5

5 U.S.C. §§ 8101-8193.

6

Amelia S. Jefferson, 57 ECAB 183 (2005).

7

Manuel Gill, 52 ECAB 282 (2001).

8

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

9

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

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ANALYSIS -- ISSUE 1
Appellant claimed she was totally disabled for work from January 3 to 30, 2009 and
thereby entitled to wage-loss compensation. The Office denied the claim by August 12 and
October 22, 2009 decisions based on a lack of rationalized medical evidence. It allowed four
hours of compensation for medical appointments on January 26, August 3 and
September 27, 2009.
In support of her claim, appellant submitted reports from Dr. Mina, an attending Boardcertified neurosurgeon. In January 19 and 26, 2009 reports, Dr. Mina held appellant off work
from January 3 to 10, 16 to 20 and 23 to 27, 2009 due to the accepted lumbar conditions.
However, she did not provide medical rationale explaining how and why the accepted conditions
disabled appellant for work for those periods. Without such rationale, Dr. Mina’s reports are
insufficient to meet appellant’s burden of proof to establish disability for the other dates
claimed.10
Dr. Mina explained in an April 1, 2009 report that, during January 2009, she advised
appellant not to work, or “work as … able to work,” because it was “nearly impossible” for her
to work due to medication side effects and radicular pain. She opined that it was possible, nearly
impossible or appellant’s choice as to whether she was able to work. This opinion is too
equivocal to establish that appellant was totally disabled for work from January 3 to 30, 2009.11
As appellant did not provide sufficient rationalized medical evidence establishing total disability
for the claimed periods, the Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provisions of the Federal Employees’ Compensation Act12 provide for
compensation to employees sustaining impairment from loss or loss of use of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sound discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The American Medical Association, Guides to the Evaluation of
Permanent Impairment has been adopted by the Office as a standard for evaluation of schedule
losses and the Board has concurred in such adoption.13

10

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

11

L.R. (E.R.), 58 ECAB 369 (2007).

12

5 U.S.C. §§ 8101-8193.

13

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

4

A schedule award is payable consecutively but not concurrently with an award for wage
loss for the same injury.14 A schedule award for one injury may be paid concurrently with
compensation for wage loss paid for another injury, as long as the two injuries do not involve the
same part of the body.15
ANALYSIS -- ISSUE 2
The Office granted appellant a schedule award for left knee impairment, paid from
March 18, 2007 to January 14, 2008. Appellant later filed a claim for wage-loss compensation,
from June 9 to September 28, 2007, a period encompassed by the schedule award. The Office
denied the claim on the grounds that simultaneous receipt of wage-loss compensation and a
schedule award was a prohibited dual benefit. It properly allowed four hours of compensation on
August 3 and September 27, 2009 for medical appointments.
Appellant asserted that she was disabled for work from June 9 to September 28, 2007 due
to a series of lumbar injections administered on June 7 and September 7, 2007 to treat accepted
lumbar disc displacement and chronic pain. The claimed period of wage-loss compensation is
thus unrelated to the left knee injury for which appellant received the schedule award. The
Office’s procedures provide that wage-loss compensation and schedule award benefits may be
paid concurrently if they do not involve the same part of the body.16 As the lumbar spine and left
knee are different regions of the body, the Board finds the case should be remanded to the Office
for further development to determine if appellant was disabled for work from June 9 to 28, 2007
due to the accepted lumbar conditions. The Office will then issue an appropriate decision in the
case.
CONCLUSION
The Board finds that appellant did not establish total disability for work for the period
January 3 to 30, 2009. The Board further finds that the case is not in posture for a decision
regarding appellant’s entitlement to wage-loss compensation for the period June 9 to
September 28, 2007.

14

Thomas J. Engelhart, 50 ECAB 322 (1999); Joseph R. Waples, 44 ECAB 936 (1993). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 808.5(a)(3)
(January 2010). See also A. Larson, The Law of Workers’ Compensation §§ 58.15, 58.20 (1992).
15

J.B., Docket No. 08-1178 (issued December 22, 2008); see Michael J. Biggs, 54 ECAB 595 (2003). Federal
(FECA) Procedure Manual, id. at Chapter 2.808.5.(a)(4) (January 2010).
16

J.B., supra note 15; Federal (FECA) Procedure Manual, supra note 14 at Chapter 2.808.5.(a)(4)
(January 2010).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 22 and August 12, 2009 are affirmed in part regarding
the denial of compensation for the period January 3 to 30, 2009, and set aside in part regarding
the denial of wage-loss compensation from June 9 to September 28, 2007. The case is remanded
to the Office for further development consistent with this opinion.
Issued: October 22, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, MONTICELLO POST
OFFICE, Williamsburg, VA, Employer
__________________________________________

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

Docket No. 20-0881
Issued: January 13, 2021

Case Submitted on the Record

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

JURISDICTION
On March 16, 2020 appellant, through counsel, filed a timely appeal from a January 30,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the January 30, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish entitlement to
intermittent wage-loss compensation for the period December 1, 2018 through November 22,
2019, causally related to her accepted September 22, 2018 employment injury.
FACTUAL HISTORY
On October 2, 2018 appellant, then a 42-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on September 22, 2018 she sustained sacroiliac (SI) joint
pain, inguinal pain, and hip/thigh and lower back pain when she pulled and lifted a package from
her vehicle, felt a pop and sharp pain up her thigh and back while in the performance of duty. She
was initially treated in urgent care and released to sedentary-duty work beginning
September 27, 2018.
In a November 26, 2018 progress report, Dr. Zachary Tan, a Board-certified orthopedic
surgeon, noted appellant’s complaints of low back pain that developed two months before that
date. He reviewed appellant’s history and indicated that approximately four years’ prior appellant
underwent lumbar laminectomy surgery with annular repair. Upon examination of appellant’s
lumbar spine, Dr. Tan observed marked tenderness and moderate reduced range of motion (ROM).
He diagnosed lumbar strain. Dr. Tan reported that appellant could work with restrictions of
carrying up to 15 pounds and completed a duty status report (Form CA-17).
In a December 24, 2018 progress report, Dr. Tan recounted that appellant’s condition had
improved, but “gets aggravated by lifting at work.” Examination of appellant’s lumbar spine
revealed marked tenderness upon palpation and moderate reduced ROM. Dr. Tan diagnosed
lumbar strain. He increased her work restrictions to no lifting.
On January 15, 2019 appellant began physical therapy treatments and submitted physical
therapy treatment records dated January 15, 21, 23, 28, and 30, 2019 and February 4, 6,
and 11, 2019.
In a January 21, 2019 progress report, Dr. Tan reviewed appellant’s history and noted her
complaints of continued back pain with left-sided radicular symptoms. He conducted a physical
examination and diagnosed lumbar strain and lumbar radiculopathy. Dr. Tan reported “work
restrictions at 10 pounds to remain.”
Dr. Tan also completed a January 21, 2019 attending physician’s report (Form CA-20). He
diagnosed degenerative disc disease with lumbar radiculopathy. Dr. Tan indicated that appellant
was partially disabled beginning October 22, 2018 and advised that appellant could work with
restrictions of lifting up to10 pounds and no prolonged standing or bending.
A January 25, 2019 lumbar spine magnetic resonance imaging (MRI) scan report revealed
mild posterior annular bulge and small central disc protrusion with a posterior annular fissure at
L4-5 and mild-to-moderate left foraminal narrowing with mild nerve root compression at L5-S1.
In a February 18, 2019 progress report and Form CA-17 report, Dr. Tan noted his review
of appellant’s recent MRI scan and provided examination findings. He diagnosed lumbar strain
and lumbar radiculopathy. Dr. Tan noted that appellant could return to work with restrictions of
lifting and carrying up to 10 pounds.
2

By decision dated February 26, 2019, OWCP accepted appellant’s claim for lower back
strain.
In reports and Form CA-17 reports dated March 18 and April 15, 2019, Dr. Tan noted
appellant’s complaints of continued back pain aggravated by bending, carrying heavy objects,
climbing stairs, lifting, prolonged standing, and walking long distances. He reviewed appellant’s
history and provided examination findings. Dr. Tan diagnosed lumbar strain and lumbar
radiculopathy. He recommended that appellant work with restrictions of lifting up to 10 pounds.
OWCP received additional Form-CA-17 reports dated December 29, 2018 through
March 18, 2019 and a Form CA-20 report dated November 6, 2018, which indicated that appellant
could work with restrictions.
Appellant also submitted a December 24, 2018 medical note by Dr. Tan who noted that
appellant also “missed work due to extreme pain” on December 15, 20, 21, 22, and 24, 2018.
On May 16, 2019 appellant filed a claim for intermittent wage-loss compensation (Form
CA-7) for the period December 1, 2018 through May 10, 2019.4 On the reverse side of the claim
form, D.W., an employing establishment human resource specialist, confirmed that appellant was
claiming 287.27 hours. She also reported “medical restrictions -- no work available.”
In attached time analysis forms (Form CA-7a), appellant claimed 75.74 hours of leave
without pay (LWOP) for December 1, 3, 4, 8, 10, 11, 14, 15, 20, 21, 26, 27, 28, 29, and 30, 2018;
43.62 hours of LWOP for January 4, 19, 21, 25, 26, 28, 29, and 30, 2019; 22.34 hours of LWOP
for February 1, 4, 12, and 25, 2019; 71.67 hours of LWOP for March 1, 11, 12, 18, 19, 20, 22, 25,
26, and 30, 2019; 41.87 hours of LWOP for April 1, 3, 8, 15, 16, 19, and 23, 2019; and 31.94 hours
of LWOP for May 1, 6, 7, and 10, 2019. She indicated that her reason for using leave was “limited
duty, disabled, Dr. appts, physical therapy.”
In a May 13, 2019 progress report and Form CA-17 report, Dr. Tan noted that appellant
was evaluated for intermittent back pain that had become more frequent. He reviewed appellant’s
history and noted lumbar examination findings of trigger point tenderness and moderate, reduced
ROM. Dr. Tan diagnosed lumbar strain and lumbar radiculopathy. He recommended that
appellant be restricted to the pushing or pulling up to five pounds.
Appellant submitted a series of urgent care work status notes dated September 23, 2018
through April 30, 2019. The notes indicated that appellant was treated for complaints of constant
lower back pain and released to work with restrictions.
OWCP also received an emergency department work excuse note by Dr. Shannon M.
McDonnell, a Board-certified emergency medicine specialist, who indicated that appellant was

4

Appellant also indicated that she was receiving earnings from employment with Lyft doing ride share work daily
as needed.

3

seen in the emergency department on March 16, 2019 and requested that she be excused from work
on that date.5
In a May 21, 2019 letter, OWCP requested that the employing establishment verify which
dates listed on the CA-7a forms were for limited duty and which dates were for medical
appointments.
On June 5, 2019 the employing establishment responded to OWCP’s development letter
and provided a list of dates of appellant’s “unscheduled call outs.” D.W., a human resource
specialist for the employing establishment, also indicated on the CA-7a forms dated June 4, 2019
that there was “no work” for the dates of December 1, 3, 4, 8, 10, 11, 14, 15, 20, 21, 26, 27, 28,
29, and 30, 2018; January 4, 19, 26, and 29, 2019; February 1, 4, 13, and 25, 2019; March 1, 11,
12, 18, 19, 20, 22, 25, 26, and 30, 2019; April 1, 3, 15, 16, 19, and 23, 2019; and May 1, 6, 7, 10,
14, 15, 20, 21, 22, 24, 2019. D.W. reported that appellant had doctor’s appointments or physical
therapy on January 21, 25, 28, and 30, 2019; and May 13, 2019.
On June 13, July 18, and August 15, 2019 appellant additionally filed Form CA-7 reports
requesting intermittent wage-loss compensation for the period May 25 through August 2, 2019.6
On the reverse side of the claim form, the employing establishment confirmed that appellant had
claimed 60.5 hours of LWOP. In an attached Form CA-7a, appellant claimed 30.24 hours of
LWOP for May 25, 27, 28, and 29, 2019; 45.34 hours of LWOP for June 3, 4, 5, 7, 8, 11, 24, and
25, 2019; 33.16 hours of LWOP for July 12, 15, 17, 19, 22, 24, 26, and 30, 2019; and 4.13 hours
of LWOP for August 2, 2019. She indicated that her reason for using leave was “no work.”
Appellant claimed 2.4 hours of LWOP on June 10, 2019 due to a doctor’s appointment and 20.6
hours of LWOP on June 22, 27, 28, and 29, 2019 due to “called out.” In the Form CA-7a dated
August 15, 2019, appellant claimed 4.16 hours of LWOP on July 8, 2019 for a doctor’s
appointment and 8.29 hours of LWOP on July 13 and 23, 2019 due to “called out.” C.W., a human
resource specialist for the employing establishment, reported that there was no medical evidence
provided for call-outs.
Appellant continued to receive medical treatment from Dr. Tan for her back pain and
submitted progress reports and Form CA-17 reports dated June 10 and July 8, 2019. Dr. Tan
provided examination findings and diagnosed lumbar strain and lumbar radiculopathy. He
indicated that appellant could work with restrictions of lifting or pulling up to 10 pounds.
In a July 18, 2019 development letter, OWCP informed appellant that it received her claim
for wage-loss compensation for the period beginning December 1, 2018. It advised her that the
evidence submitted was insufficient to establish her claim and requested that she submit additional
evidence to establish that she was unable to work modified duty during the period claimed due to
her September 22, 2018 employment injury. OWCP afforded appellant 30 days to submit the
necessary evidence.
Appellant submitted a July 30, 2019 physical therapy treatment record.
Appellant provided a printout of appellant’s physical therapy appointments, which indicated that appellant had
physical therapy appointments on January 15, 21, 23, 28, and 30, 2019, February 4, 6, 11, 18, and 27, 2019, and
March 11 and 13, 2019.
5

6

Appellant also indicated that was receiving earnings from employment working in food delivery daily as needed.

4

By decision dated August 20, 2019, OWCP denied appellant’s claim for intermittent wageloss compensation for the period beginning December 1, 2018.
Appellant continued to receive physical therapy treatment and submitted records dated
August 12 and 16, 2019.
Appellant additionally filed CA-7 forms requesting intermittent wage-loss compensation
for the period August 3 through September 27, 2019.7
OWCP received additional progress reports and Form CA-17 reports dated September 18,
October 16, and 21, 2019 by Dr. Tan who recounted that appellant was evaluated for low back
pain. He provided examination findings and diagnosed lumbar strain and lumbar radiculopathy.
Dr. Tan indicated that appellant could work with restrictions of lifting and carrying up to 10
pounds. He also referred appellant for continued physical therapy treatment.
In an October 10, 2019 Form CA-20 report, Dr. Tan noted the September 22, 2018
employment injury and reported diagnoses of lumbar strain and lumbar radiculopathy. He
indicated that appellant was totally disabled from June 27 to 29, 2019; July 1, 13, and 23, 2019;
and September 9, 17, and 18, 2019. Dr. Tan also reported a period of partial disability from
September 18 through October 16, 2019.
On November 1, 2019 appellant requested reconsideration.
She described the
September 22, 2018 employment injury and the difficulties she had in filing claim forms for
continuing wage-loss compensation payments. Appellant asserted that she had been in tremendous
pain since the date of injury and had to resort to taking a second job in order to make her minimum
payments on her bills. She alleged that she had done everything asked of her by OWCP and
submitted all the required documents.
In an October 25, 2019 Form CA-20 report, Dr. Tan noted the date of injury of
September 22, 2018 and diagnoses of lumbar strain and radiculopathy. He reported that appellant
was out of work on November 17, 19, and 23, 2018; December 15, 20, 21, 22, and 24, 2018;
June 27 through 29, 2019; July 1, 13, and 23, 2019; and September 9, 17, and 18, 2019.
In an October 30, 2019 urgent care work status note and Form CA-17 report, Larry
Washburn, a physician assistant, noted diagnoses of low back pain and lumbar radiculopathy. He
reported that appellant could work “desk work only.”
Appellant submitted an April 30, 2019 Form CA-17 report by a nurse practitioner, which
noted that appellant could work with restrictions and a Referral to Reasonable Accommodation
Committee form.
On November 5, 2019 appellant accepted a full-time, modified job offer as a rural carrier
associate.

7
On the CA-7a forms, appellant claimed 27.66 hours of LWOP on August 3, 21, 23, 26, 27, and 30, 2019 and 5.54
hours of LWOP on September 17, 2019. She indicated that her reason for using leave was “called out.” Appellant
claimed 25.02 hours of LWOP on August 5, 6, 9, 13, 16, and 20, 2019 and 22.16 hours of LWOP on September 16,
25, 26, and 27, 2019. She indicated that her reason for using leave was “scheduled off.” Appellant claimed 5.54 hours
of LWOP on September 23, 2019 for a doctor’s appointment.

5

On November 17 and December 5, 2019 appellant additionally filed CA-7 forms requesting
intermittent wage-loss compensation for the period October 26 through November 22, 2019.8
Appellant submitted additional progress reports and Form CA-17 reports dated
November 18 and December 16, 2019, by Dr. Tan who reviewed appellant’s history and noted
lumbar examination findings of markedly reduced and marked pain on ROM. He diagnosed
lumbar strain and lumbar radiculopathy. Dr. Tan reported that appellant could work with
restrictions of no lifting or carrying and “desk work only.”
A November 20, 2019 lumbar spine MRI scan report revealed postoperative findings with
suspected moderate recurrent left disc extrusion at L5-S1 and mild annular bulging with small
annular fissure at L4-5.
In a December 11, 2019 Form CA-20 report, Dr. Tan noted the date of injury of
September 22, 2018 and diagnoses of lumbar strain and lumbar radiculopathy. He indicated that
appellant was partially disabled beginning November 27, 2019. Dr. Tan reported that appellant
could work with restrictions of lifting and pulling up to 10 pounds.
By decision dated January 30, 2020, OWCP denied modification of the August 20, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA9 has the burden of proof to establish the
essential elements of his or her claim.10 The term disability is defined as the incapacity, because
of an employment injury, to earn the wages the employee was receiving at the time of the injury.11
For each period of disability claimed, the employee has the burden of proof to establish that he or
she was disabled from work as a result of the accepted employment injury.12 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of the reliable, probative, and substantial
medical evidence.13
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
8

On the CA-7a forms, appellant claimed 24.12 hours of LWOP on October 26, 28, and 30, 2019; 16.14 hours of
LWOP on November 6, 11, and 18, 2019. She indicated that her reason for using leave was “no work.” Appellant
claimed 16.82 hours of LWOP on November 1, 2, and 4, 2019. She indicated that her reason for using leave was
“doctor removed me.” Appellant claimed 11.75 hours of LWOP on November 11 and 18, 2019. She noted that her
reason for using leave was “scheduled off.”
9

Supra note 2.

10

M.C., Docket No. 18-0919 (issued October 18, 2018); B.K., Docket No. 18-0386 (issued September 14, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).
11
20 C.F.R. § 10.5(f); S.T., Docket No. 18-412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
12

K.C., Docket No. 17-1612 (issued October 16, 2018); William A. Archer, 55 ECAB 674 (2004).

13

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.14
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position, or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish by the weight of reliable, probative, and substantial evidence a recurrence of
total disability and to show that he or she cannot perform such limited-duty work. As part of this
burden of proof, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.15 This burden
of proof includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history that, for each period of
disability claimed, the disabling condition is causally related to the employment injury, and
supports that conclusion with medical reasoning.16 Where no such rationale is present, the medical
evidence is of diminished probative value.17
OWCP’s procedures provide that wages lost for compensable medical examinations or
treatment may be reimbursed.18 A claimant who has returned to work following an accepted injury
or illness may need to undergo examination or treatment and such employee may be paid
compensation for wage loss while obtaining medical services and for a reasonable time spent
traveling to and from the medical provider’s location.19 Wage loss is payable only if the
examination, testing, or treatment is provided on a day which is a scheduled workday and during
a scheduled tour of duty. Wage-loss compensation for medical treatment received during off-duty
hours is not reimbursable.20 The evidence should establish that a claimant attended an examination
or treatment for the accepted work injury on the dates claimed in order for compensation to be
payable.21 For a routine medical appointment, a maximum of four hours of compensation may be
allowed. However, longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care. The
claims for wage-loss should be considered on a case-by-case basis.22

14

J.B., Docket No. 19-0715 (issued September 12, 2019).

15

S.F., Docket No. 19-1735 (issued March 12, 2020); J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019);
C.G., Docket No. 16-1503 (issued May 17, 2017); Terry R. Hedman, 38 ECAB 222 (1986).
16

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

17

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Wages Lost for Medical Examination or Treatment, Chapter
2.901.19 (February 2013).
19

Id. at Chapter 2.901.19.a.

20

Id. at Chapter 2.901.19.a(2).

21

Id. at Chapter 2.901.19.a(3).

22

Id. at Chapter 2.901.19.c.

7

ANALYSIS
The Board finds that the case is not in posture for a decision.
OWCP accepted appellant’s claim for a lumbar strain due to a September 22, 2018
employment injury. The record reflects that appellant was released to sedentary-work only
beginning September 27, 2018. On May 16, 2019 appellant began to file CA-7 forms claiming
wage-loss compensation for intermittent periods of disability beginning December 1, 2018. In the
attached CA-7a forms, appellant indicated that her reason for using leave was because there was
“no work” on specific dates from December 1, 2018 through May 24, 2019 and from October 26
through November 18, 2019. A human resource specialist for the employing establishment
certified that the time analysis forms were correct. She also reported “medical restrictions -- no
work available.”
The Board finds that the factual evidence of record is insufficient to determine whether
appellant is claiming wage-loss compensation due to a withdrawal of her light-duty position or
because of a change in her accepted September 22, 2018 employment injury.23 As noted above,
OWCP’s regulations allow for a claimant to establish a recurrence of disability under either
scenario.24 Accordingly, the evidence of record must be fully developed so that it contains accurate
information regarding appellant’s claim in order to determine whether she was unable to work on
any of the claimed dates, because of a change or withdrawal of her limited-duty assignment due to
an employment injury or because of a change and worsening of her accepted September 22, 2018
employment injury.25
Furthermore, in June 4 and July 19, 2019 CA-7a forms, appellant indicated that she had
doctor appointments or physical therapy on January 21, 25, 28, and 30, 2019, May 13, June 10,
and July 8, 2019. In a December 4, 2019 CA-7a form, she also claimed five hours of LWOP on
November 18, 2019 and noted that her reason for using leave was “scheduled off.” The record
also contains evidence documenting that she had a medical appointment or physical therapy
treatment on the specific dates claimed. As noted above, OWCP’s procedures provide that wages
lost for compensable medical examinations or treatment may be reimbursed.26 OWCP, however,
further denied appellant’s claims for compensation for intermittent periods of disability without
addressing whether she was entitled to wage-loss compensation for the medical examination or
treatment.
Is it well established that, proceedings under FECA are not adversarial in nature and, while
the employee has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.27

23

See L.F., Docket No. 19-0519 (issued October 24, 2019); see also M.S., Docket No. 18-0130 (issued
September 17, 2018).
24

Supra notes 14 and 15.

25
See D.M., Docket No. 18-0527 (issued July 29, 2019); J.G., Docket No. 17-0910 (issued August 28, 2017); M.A.,
Docket No. 16-1602 (issued May 22, 2017).
26

Supra note 17.

27

M.T., Docket No. 19-0373 (issued August 22, 2019); B.A., Docket No. 17-1360 (issued January 10, 2018).

8

Accurate information regarding whether appellant’s limited-duty assignment was available
on specific dates during the claimed period is essential to determine whether she sustained a
recurrence of total disability.28 This evidence is of the character normally obtained from the
employing establishment and is more readily accessible to OWCP than to her.29 On remand,
OWCP shall request that the employing establishment furnish documentation clarifying when
appellant began to work modified duty and whether her modified-duty assignment was available
or had been withdrawn for the specific dates during the claimed period. It shall further obtain the
necessary information to determine whether reimbursement shall be allowed for attendance at
medical appointments. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: January 13, 2021
Washington, DC

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

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

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

28

See K.T., Docket No. 17-0009 (issued October 8, 2019); Y.R., Docket No. 10-1589 (issued May 19, 2011).

29

J.T., Docket No. 15-1133 (issued December 21, 2015); J.S., Docket No. 15-1006 (issued October 9, 2015).

9


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

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

Docket No. 17-0607
Issued: November 6, 2017

Case Submitted on the Record

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

JURISDICTION
On January 25, 2017 appellant, through counsel, filed a timely appeal from a
September 14, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying authorization for a lumbar
procedure.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2013 appellant, then a 53-year-old city carrier, injured his back when
stepping out of his mail truck. OWCP accepted his claim for lumbar strain and left sacroiliac
strain. Appellant stopped work on February 19, 2013 and received wage-loss compensation
benefits for intermittent periods of disability.
Appellant submitted a July 30, 2008 magnetic resonance imaging (MRI) scan which
revealed a right paracentral disc protrusion at L4-5 with deviation of the right L4 nerve root,
mild left-sided L4-5 facet arthropathy, and no evidence of spondylosis. A June 26, 2013 MRI
scan indicated mild multilevel degenerative disc disease, facet joint osteoarthritis most
pronounced at L4-5, and mild bilateral neural foraminal stenosis.
Appellant was treated by Dr. Jennifer L. Kurz, a Board-certified physiatrist. On June 25,
2014 Dr. Kurz diagnosed low back and leg pain. She administered a left L5-S1 interlaminar
epidural steroid injection and sacroiliac joint injection with fluoroscopic needle guidance. In
December 11, 2014 reports, Dr. Kurz noted that on February 19, 2013 appellant was stepping off
his vehicle and sustained a back injury. She diagnosed lumbar spondylosis and sciatica and
indicated that his condition was caused or aggravated by his employment. Dr. Kurz indicated
that appellant could return to work with restrictions.
On February 5, 2015 Dr. Kurz noted appellant’s complaints of severe chronic axial lower
back pain with new radicular left leg pain. She indicated that he had known chronic lumbar
spondylosis and lumbar facet pain which was responsive short term to facet injections.
Appellant reported an increase in radicular neuropathic pain in the left L4-5 dermatomal
distribution and pins and needles in his right foot. Dr. Kurz noted findings of limited lumbar
extension, increasing axial facet pain, tenderness overlying the lumbar facet regions, pain along
the left L4-5 dermatomes, decreased left hip flexor strength and left knee flexion strength, and
reduced sensation along the right L5-S1. She diagnosed chronic axial lower lumbar spine pain
from facet pain syndrome and spondylosis. Dr. Kurz recommended physical therapy and lumbar
radiofrequency lesioning for the lower lumbar facets. In a March 2, 2015 duty status report
(Form CA-17), she returned appellant to work with restrictions.
On March 2, 2015 OWCP authorized the sacroiliac joint injections performed on
June 25, 2014.
Dr. Kurz subsequently requested authorization for a lumbar spine procedure designated
as a destruction of lumbar sacroiliac facet joint (also referred to as lumbar facet radiofrequency
intervention) on March 4, 2015.
By letter dated March 6, 2015, OWCP notified Dr. Kurz that her request for authorization
of the lumbar procedure could not be approved at that time. It indicated that further medical
development was required before the request could be approved or denied.3

3

OWCP continued to authorize Dr. Kurz’ requests for foraminal epidural injections.

2

On April 20, 2015 OWCP requested that a district medical adviser (DMA) address
whether the requested lumbar procedure was warranted and necessitated by the accepted lumbar
strain and left sacroiliac strain of February 19, 2013. In a June 14, 2015 report, the DMA noted
reviewing the medical record and a statement of accepted facts. He indicated that the proposed
lumbar procedure, destruction of lumbosacral facet joint, should not be approved as warranted
and necessitated by the work injury of February 19, 2013. The DMA noted that any invasive
procedure would never be indicated for a diagnosed strain, which was a temporary, self-limiting
soft tissue injury which would resolve expeditiously and uneventfully. He further indicated that
records dating back to 2008 indicate a long-standing history of low back pain. The medical
adviser referenced the July 30, 2008 lumbar MRI scan which revealed right paracentral disc
protrusion at L4-5 with deviation of the right L4 nerve root, and mild left-sided L4-5 facet
arthropathy. He opined that appellant underwent multiple facet joint and epidural injections
without long-term efficacy. The DMA also indicated that the medical literature lacked longterm, controlled, double-blind studies validating a cure, or substantial benefit from destruction of
lumbosacral facet joints. He opined that, based on the totality of the available medical
documentation, the requested lumbar procedure was not medically necessitated, and certainly not
causally related to the February 19, 2013 work injury.
By decision dated June 16, 2015, OWCP denied authorization for the requested lumbar
procedure the evidence of record did not support that this procedure was medically necessary to
address the effects of the accepted work-related conditions.
On June 22, 2015 appellant requested a telephone hearing before an OWCP hearing
representative. On July 17, 2015 he withdrew his request for an oral hearing and requested
reconsideration.
Evidence submitted in support of his request for reconsideration included additional
reports from Dr. Kurz. In a December 11, 2014 report, Dr. Kurz noted that appellant presented
with left axial lumbar facet pain from a work injury. She indicated that he responded well to
lumbar facet injections and would be a candidate for lumbar facet radiofrequency lesioning.
Dr. Kurz advised that this procedure would help target appellant’s region of residual lumbar
axial facet pain long-term. She noted examination findings of tenderness along the left L3-4 and
L4-5 facet line and intact leg strength with the exception of left hip flexion weakness. Dr. Kurz
diagnosed chronic axial spine pain. In a July 9, 2015 treatment note, she noted appellant’s
chronic axial low back pain from a work injury. Dr. Kurz noted his ongoing progressive chronic
left-sided axial low back pain in the L4 and L5 lumbar facet regions was refractory to
conservative therapies, including medications, physical therapy, and trigger point injections.
Lidocaine and Marcaine injections provided temporary relief in symptoms. Dr. Kurz indicated
that appellant was interested in pursuing lumbar radiofrequency denervation to help more
permanently modify his severe, chronic, left lumbar facet pain. An accompanying July 9, 2015
letter requested approval for left L3-5 lumbar facet radiofrequency lesioning therapy. Dr. Kurz
indicated that appellant underwent lumbar facet blocks with short-term relief and she opined that
radiofrequency lesioning therapy would provide prolonged relief.
On September 17, 2015 Dr. Kurz noted treating appellant for progressive low back pain
and leg weakness. Appellant underwent two sets of comparative dual diagnostic lumbar blocks
with positive short-term pain relief. Dr. Kurz noted findings and diagnosed chronic low back

3

pain, deconditioning, and increased radicular pain sensation possibly from muscle tightness or
myalgia rather than radiculopathy. She recommended aggressive reconditioning physical
therapy and an electromyogram (EMG). On September 18, 2015 Dr. Kurz requested medical
authorization for destruction of the lumbar sacral facet joint procedure.
By decision dated October 14, 2015, OWCP denied modification of its prior decision.
On December 16, 2015 appellant again requested reconsideration.
In support of his request, appellant submitted reports from Dr. Kurz dated April 16 and
November 30, 2015 noting his treatment for chronic axial low back pain with increased radicular
left leg pain. Dr. Kurz noted that he developed a right foot neuroma and underwent surgery.4
She opined that appellant’s back pain was likely at medical maximum improvement. Dr. Kurz
noted his treatment and advised that lumbar epidural steroid injections and lumbar diagnostic
facet blocks provided only temporary relief. She noted findings on physical examination and
diagnosed ongoing radicular left L5 leg pain, chronic axial back pain, lumbar spondylosis and
lumbar facet degenerative changes in the setting of work-related injury. Dr. Kurz recommended
lumbar facet radiofrequency intervention to target appellant’s facet pain permanently. She
opined that his low back pain was all related to his work injury. A November 12, 2015 EMG of
the lower extremities revealed no abnormalities.
In a medical necessity note dated November 30, 2015, Dr. Kurz diagnosed severe,
chronic, progressive lumbar facet arthropathy attributable to a work injury sustained on
June 19, 2013.5 She indicated that, before the work injury, appellant did not suffer from terrible
low back pain. Dr. Kurz opined that surgery would not help his pain, previous lumbar facet
blocks were diagnostic/therapeutic for transient relief, and he was not a candidate for long-term
opioid therapy. She advised that lumbar facet radiofrequency lesion intervention would give
appellant more sustained relief and a better quality of life. Dr. Kurz also submitted form reports
noting his status and his work restrictions. A lumbar spine x-ray dated November 30, 2015
revealed spondylolysis without spondylolisthesis at L5, mild rotatory scoliosis, and multilevel
degenerative changes at L5-S1.
By decision dated January 29, 2016, OWCP denied modification of its October 14, 2015
decision.
On April 25, 2016 appellant again requested reconsideration. He submitted an April 14,
2016 report from Dr. Kurz who continued to treat him for chronic axial work-related low back
pain. Dr. Kurz diagnosed chronic lumbar discogenic pain and recommended daily core
conditioning and continued work modifications. In another April 14, 2016 report, she opined
that appellant suffered from intractable lumbar discogenic pain radiating into the left hip and
thigh in the L4-5 nerve root distribution. Dr. Kurz noted that MRI scan imaging revealed L4-5,
4

The record contains a June 23, 2015 report from Dr. Michael O’Gorman, a Board-certified general surgeon, who
treated appellant for wound dehiscence status postsurgical repair of right foot Morton’s neuroma. He diagnosed
chronic ulcer of right foot.
5

This appears to be a typographical error and should be February 19, 2013.

4

L5-S1 disc bulges and facet arthritis which can contribute to foraminal narrowing and
compression of L4 and L5 nerve roots.
In an attending physician’s report (Form CA-20) dated April 14, 2016, Dr. Kurz
diagnosed lumbar facet arthropathy causing severe chronic low back pain. She noted by
checking a box marked “yes” that appellant’s condition was caused or aggravated by an
employment activity. In a return to work slip dated April 14, 2016, Dr. Kurz continued
appellant’s work restrictions. On May 4, 2016 she performed a L4-5 interlaminar epidural
steroid injection and diagnosed low back pain and leg pain.
In reports dated June 9 and 30, and August 22, 2016, Dr. Kurz noted appellant’s
treatment and diagnosed chronic, axial low back pain related to degenerative disc bulging,
lumbar facet arthritis, and active trigger points in the lumbar paraspinals. She performed a
trigger point injection at bilateral lumbar paraspinals. In a June 30, 2016 duty status report,
Dr. Kurz continued appellant’s work restrictions and on August 29, 2016, she diagnosed lumbar
radiculopathy and advised that he was totally disabled. In a June 30, 2016 attending physician’s
report, she diagnosed lumbar facet arthropathy and lumbar degenerative disc disease causing
severe low back pain. Dr. Kurz checked a box marked “yes” that appellant’s condition was
caused or aggravated by an employment activity. She continued his work restrictions. A
June 30, 2016 return to work slip advised that appellant could return to work light duty with
restrictions on lifting over 40 pounds. On August 29, 2016 Dr. Kurz indicated that he could
return to work two days following an injection for pain management with additional restrictions.
By decision dated September 14, 2016, OWCP denied modification of its
January 29, 2016 decision.
LEGAL PRECEDENT
Section 8103(a) of FECA provides for the furnishing of services, appliances, and supplies
prescribed or recommended by a qualified physician which OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability, or
aid in lessening the amount of monthly compensation.6 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.7 OWCP has administrative discretion in choosing the means to
achieve this goal and the only limitation on OWCP’s authority is that of reasonableness.8
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

6

5 U.S.C. § 8103(a).

7

Dale E. Jones, 48 ECAB 648-49 (1997).

8

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic, and probable deductions from established facts).

5

deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.9
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.10 Proof of causal relationship in a case
such as this must include supporting rationalized medical evidence.11 Therefore, in order to
prove that the procedure is warranted, appellant must establish that the procedure was for a
condition causally related to the employment injury and that the procedure was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.12
ANALYSIS
In the present case, OWCP accepted that appellant sustained a lumbar strain and left
sacroiliac strain on February 19, 2013. Appellant seeks authorization for a proposed destruction
of the lumbosacral facet joint procedure. The Board finds that the medical evidence of record is
insufficient to establish that the proposed procedure is causally related to the February 19, 2013
employment injury.
Appellant provided multiple reports from Dr. Kurz requesting approval for left L3-5
lumbar facet radiofrequency lesioning therapy. On December 11, 2014 and February 5, 2015
Dr. Kurz initially recommended lumbar radiofrequency lesioning for the lower lumbar facets.
On July 9, 2015 she noted that facet blocks which only provided short-term relief from pain.
Dr. Kurz advised that, because of the short-term nature of lumbar injections, appellant wanted to
pursue radiofrequency lesioning therapy for prolonged relief. On November 30, 2015 she
recommended lumbar radiofrequency lesioning and diagnosed severe, chronic, progressive
lumbar facet arthropathy attributable to the work injury. Dr. Kurz also referenced appellant’s
preexisting lumbar condition and that, prior to the work event, he did not suffer from terrible low
back pain. These reports are of diminished probative value. The Board initially notes that
OWCP has only accepted a lumbar strain and left sacroiliac strain as a result of appellant’s
February 19, 2013 work injury, and there is no medical rationalized evidence to establish that
other diagnosed conditions such as lumbar facet arthropathy, are causally related to the accepted
injury.13 Furthermore, an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury is insufficient, without supporting
rationale, to support causal relationship.14 The Board notes that these reports failed to provide a
9

W.M., Docket No. 17-0337 (issued August 8, 2017).

10

See Debra S. King, 44 ECAB 203, 209 (1992).

11

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

12

See Cathy B. Millin, 51 ECAB 331, 333 (2000).

13

For conditions not accepted by OWCP as being employment related, it is the employee’s burden of proof to
provide rationalized medical evidence sufficient to establish causal relation, not OWCP’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).
14

Kimper Lee, 45 ECAB 565 (1994).

6

rationalized opinion explaining how the proposed procedure was causally related to the accepted
work injuries and why it was medically warranted. The need for rationale is particularly
important where the record contains a July 30, 2008 MRI scan documenting preexisting low
back condition, specifically a disc protrusion at L4-5 with deviation of the right L4 nerve root
and left-sided L4-5 facet arthropathy.15
Similarly, reports from Dr. Kurz dated April 16, July 9, September 17 and November 30,
2015, and April 14, 2016 noted appellant’s continued treatment for chronic axial low back pain
from a work injury. She advised his condition was refractory to conservative therapies and
indicated that he was interested in pursuing lumbar radiofrequency. Dr. Kurz diagnosed facet
arthritis, degenerative disc disease, ongoing radicular left L5 leg pain, chronic axial back pain,
and chronic lumbar discogenic pain due to the work injury. However, her reports failed to
provide a rationalized opinion regarding causal relationship between the proposed lumbar
procedure and the employment injury, and also addressing why the requested procedure was
medically warranted.16 Also, OWCP has not accepted that appellant sustained facet arthritis,
degenerative disc disease or chronic lumbar discogenic pain as a result of his February 19, 2013
work injury, and there is no medical rationalized evidence to support such a conclusion.17
Other reports provided by Dr. Kurz are of limited probative value as they do not
specifically address whether the requested procedure is causally related to the accepted lumbar
strain and left sacroiliac strain and whether the procedure is medically warranted.18
Additionally, the Board notes that OWCP sought the advice of its medical adviser in this
matter. In a June 14, 2015 report, OWCP’s medical adviser has opined that the proposed lumbar
facet radiofrequency lesioning procedure was not indicated in the treatment of appellant’s
employment-related injury of February 19, 2013. He noted that OWCP had only accepted strains
and that an invasive procedure was not indicated for such conditions. The medical adviser also
noted that the record indicated that appellant had a prior history of a low back condition and that
medical literature did not support that the proposed procedure would offer substantial benefits.
The only limitation on OWCP’s authority is approving or disapproving service under
FECA is one of reasonableness.19 Because appellant did not submit a reasoned medical opinion
explaining how the February 19, 2013 work injury caused or contributed to his need for the
requested procedure, OWCP properly acted within its discretionary authority to deny

15

See S.C., Docket No. 17-0490 (issued June 27, 2017); R.R., Docket No. 16-1118 (issued November 7, 2016)
(the need for rationale is particularly important where the evidence indicated that appellant had a preexisting
condition).
16

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
17

See Alice J. Tysinger, supra note 13.

18

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
19

Supra note 8.

7

authorization for the requested procedure. Therefore, the Board finds that OWCP did not abuse
its discretion under section 8103 in denying approval of lumbar procedure.
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 did not abuse its discretion by denying authorization for a
lumbar procedure.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2016 is affirmed.
Issued: November 6, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Woodlawn, MD,
Employer
__________________________________________

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

Docket No. 15-548
Issued: May 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 15, 2015 appellant filed a timely appeal from an August 22, 2014 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 established a recurrence of total disability beginning
July 27, 2010 causally related to her March 30, 2005 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim indicating that many years of typing, writing, using the adding machine, and
computer caused several medical conditions. OWCP accepted the claim for bilateral carpal
tunnel syndrome and bilateral cubital tunnel syndrome and paid benefits including surgical
procedures of January 11 and June 7, 2007. Appellant stopped work on January 11, 2007 for
surgery. She returned to part-time limited-duty work at home on June 19, 2007 and full-duty
work with use of voice activated software on February 14, 2008.
By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued
a schedule award for 26 percent impairment of the right upper extremity and 26 percent
impairment of the left upper extremity, for which appellant received a requested lump-sum
award on January 13, 2009. Appellant requested increased schedule awards based on July 25
and December 9, 2009 reports from Dr. Robert W. Macht, a surgeon. In decisions dated
October 30, 2009 and February 17, 2010, OWCP denied entitlement to additional schedule
awards.
On June 22, 2010 appellant filed a claim for a recurrence of disability claiming wage loss
from work due to a change or worsening of her accepted work-related conditions. In a July 2,
2010 statement, she stated that her physicians told her she was totally disabled from performing
her job and should retire. Appellant indicated that, since her return to work in December 2007,
her job continuously aggravated her approved conditions. She also requested approval to change
physicians to Dr. Terrance M. O’Donovan, a Board-certified orthopedic hand surgeon.
In a June 30, 2010 certificate, Dr. O’Donovan advised that appellant should retire
because of recurrence of carpal tunnel syndrome and cubital tunnel syndrome. In a July 1, 2010
note, Dr. Pradeep P. Garg, a Board-certified internist, stated that appellant was totally disabled
from performing her job functions and should retire due to the recurrence of her preexisting
approved bilateral carpal and cubital tunnel syndromes. He stated that, since her return to work
in December 2007, appellant’s job continuously aggravated her preexisting conditions.
In a July 12, 2010 letter, OWCP stated that, since appellant did not claim any lost time
from work, she had not experienced a true recurrence. It noted her claim remained open for
medical treatment of her accepted conditions. In a July 26, 2010 letter, OWCP denied
appellant’s request to change physicians. It also noted that any desire to retire should be directed
to the Office of Personnel Management as she received a lump-sum schedule award payable thru
November 4, 2011 and would not be able to be on OWCP’s disability rolls.
On July 23, 2010 appellant filed a claim for wage-loss compensation with accompanying
time analysis for the period July 27 to 30, 2010. In a July 22, 2010 note, Dr. Garg recommended
she take a leave of absence from work for a period of three months due to her complaints of
severe pain.
On July 31, 2010 appellant voluntarily retired. On August 10, 2010 she indicated that she
suffered a true recurrence because of her retirement. In an August 19, 2010 letter, OWCP
requested the employing establishment provide information regarding appellant’s

2

accommodations for her work restrictions, whether limited-duty work was available, and
whether the voice recognition software which she was provided continued to accommodate her
restrictions. On August 19, 2010 it authorized appellant’s request to change her treating
physician to Dr. O’Donovan.
In a September 2, 2010 letter, the employing establishment advised that following
appellant’s 2007 surgery, they accommodated her restrictions by allowing her to work from
home a few hours per week sitting in on conference calls. Upon returning to work, appellant
worked light duty part time two days a week and gradually increased to full tour of duty. A
complete ergonomic work space evaluation was done and her telephone was programmed so she
only needed to press one or two digits for frequently dialed numbers. Appellant’s computer at
work was upgraded to accommodate voice software, for which extensive training was provided,
and she was provided an ergonomic mouse. She was only required to push a button to turn on
her computer and to enter her four digit code. An assistant performed any necessary lifting of
manuals or books. Appellant was permitted to interrupt the work cycle at regular intervals
throughout the day to exercise her fingers, wrists, and hands as needed. In the afternoons, she
was permitted to go to the health unit to apply heat to her wrists and elbows for 20 minutes at a
time as needed. Appellant was also allowed to work from home one day a week despite the fact
she was not supposed to work from home because of her four-day schedule and the Master Labor
Agreement. The employing establishment stated that these accommodations were in place from
December 2007 until she voluntarily retired on July 31, 2010. These accommodations were
made to limit appellant’s use of her mouse and the keyboard; however, the employing
establishment noted on several occasions appellant was observed using the keyboard against
medical advice. The employing establishment advised that she was given the opportunity to
reduce her 10-hour days to 8 hours, but she declined the offer.
In his June 30, 2010 treatment note and in a September 29, 2010 letter, Dr. O’Donovan
stated that he made it clear to appellant when he first saw her on June 30, 2010 that she needed to
see her original surgeon if she was going to claim a recurrence of her conditions.
In an October 25, 2007 electromyogram/nerve conduction velocity report, an assessment
of de Quervain’s tenosynovitis, bilateral, tendinitis at wrist and elbow, residuals right cubital
tunnel syndrome and residual, but improved bilateral carpal tunnel syndrome, and left cubital
tunnel syndrome was provided.
In a November 8, 2010 note, Dr. O’Donovan noted that appellant continued with mild
discomfort in the palm after heavy activities. He also noted that she was having some depression
because of early retirement secondary to recurrent symptoms.
On December 2, 2010 appellant resubmitted her June 22, 2010 recurrence claim. She
indicated that her depression should be accepted as it came about as a result of her early
retirement due to a recurrence of her symptoms.
OWCP referred appellant for a second opinion evaluation with Dr. Stuart J. Gordon, a
Board-certified orthopedic surgeon, to ascertain the extent of her disability. In a February 22,
2011 report, Dr. Gordon reviewed the statement of accepted facts and appellant’s medical record,
noted her complaints and presented findings on examination. He stated that her examination was

3

completely unreliable as she complained on all palpation and it did not follow any anatomic
distribution. Dr. Gordon found no evidence of any type of significant swelling through the
hands, temperature abnormality, perspiration abnormality, modeling, ortrophic change through
the nails. He obtained radiographs of both elbows, which revealed mild coronoid spurring and
olecranon osteophytic change. Radiographs of both wrists revealed mild carpometacarpal and
radiocarpal arthrosis bilaterally. No evidence of any type of significant diffuse osteopenia,
which would be found in reflex sympathetic dystrophy, or chronic pain syndrome or causalgia
was found. The following impressions were provided: concern for psychiatric disorder with
orthopedic overlay; residuals of accepted bilateral carpal tunnel syndrome and cubital tunnel
syndrome; and unrelated degenerative disease of the elbows and wrists. Based on his review of
the medical record and his examination of the upper extremities, Dr. Gordon opined that
appellant could work in a sedentary capacity, such as answering the telephone and using a toggle
type device, but she could not perform any function that required repetitive motion of the elbows
or wrists, pushing, pulling, or lifting. He stated that the restrictions were permanent and that she
had reached maximum medical improvement. Dr. Gordon further opined that appellant’s
subjective complaints did not comport with her objective findings and felt her pain was out of
proportion. He recommended that she seek psychological or psychiatric assessment, along with
pain management. Dr. Gordon indicated that appellant’s prognosis was poor because of her
mental status.
By decision dated January 12, 2012, OWCP denied the alleged recurrence of
June 22, 2010. Weight of the medical evidence was given to Dr. Gordon. The claim remained
open for medical treatment of the accepted conditions. On January 30, 2012 appellant requested
a hearing. By decision dated May 23, 2012, an OWCP hearing representative vacated the
January 12, 2012 decision and remanded the case for further actions, which included the issuance
of an updated statement of accepted facts and referral to a Board-certified psychiatrist for an
examination and evaluation.
On December 13, 2012 OWCP referred appellant to Dr. Dennis M. Young, a Boardcertified psychiatrist, for a psychiatric second opinion evaluation. In a December 22, 2012
report, Dr. Young noted his review of the statement of accepted facts and the medical records.
He examined appellant on December 19, 2012, noting the history of injury and his findings on
examination. Dr. Young stated that she was in pain, which was predominantly subjective
without demonstrable physical stimuli or physical sequelae. He stated that the pain was
originally caused by the work-related nerve entrapment syndromes but was now sustained by her
perception of her general devaluation of her worth and identity as a valued worker and a
contributing family member. Dr. Young diagnosed pain disorder, associated with both
psychological factors and a general medical condition. He also diagnosed dysthymic disorder
(chronic depression).
Dr. Young stated the original pain and depression of low intensity immediately following
the nerve disorders in 2005 were caused by the entrapment syndromes. However, the pain
subsequent to the surgeries was assessed by credible physicians to be out of proportion to
objective findings. The pain of the past couple years was not sufficiently and proximately
caused by the original entrapment but by appellant’s emotional response to her perception of
diminished status and value to herself and to significant others at work and at home. Appellant
returned to her work some months after her second surgery in June 2007 and she did not stop

4

working until July 2010. She worked through her complaints of pain, an exacerbation of which
was never supported by follow up medical evaluation. Appellant expressed distress, that her
supervisors were unhappy, not with her work, but with her response to their attempts to
accommodate. Dr. Young stated that he considered her to have depression of clinical
significance and believed that she suffered pain disorder associated with both psychological
factors and with a general medical condition (bilateral carpal and cubital tunnel syndromes). The
worsening and chronicity was not because of the original disorder but because of a psychological
overlay attendant to perception of not fitting in at work and appellant’s perception of loss of
support at work. Dr. Young concluded that unless electrophysiological testing and neurologic
examination attested otherwise, her condition was not due to continued nerve damage.
In a February 7, 2013 addendum report, Dr. Young opined that appellant’s depression
was not caused by her initial carpal tunnel syndrome or by the corrective surgery. Appellant was
able to return to work for several years before she retired in 2010. Dr. Young believed her
depression was her response to feeling extruded from the work environment in which she had
functioned before and where she felt valued in her usual performance. He believed appellant felt
the pain of which she complained and the pain was why she could not work. The extent of that
pain had psychological origins, which had to do with appellant’s perception of herself as an
undervalued and marginalized employee.
Dr. Young opined that the carpal tunnel
syndrome/surgery was not the proximate cause of her second diagnosis of dysthymic disorder
nor was this much pain/impairment caused by a clinical depression and that depression was not
of such severity to have kept her from working from 2007 to 2010. However, over time
appellant’s depression probably exacerbated her pain experience. Dr. Young recommended
psychiatric/psychological treatment to improve her mood and outlook. However, even with such
therapy, he opined that it was highly unlikely that appellant could return to her previous
employment.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she
had not established that she was disabled/further disabled due to a material change/worsening of
her accepted work-related conditions. It found there was no material change in her orthopedic
condition to support the claimed recurrence and work stoppage. OWCP also found appellant’s
diagnosed depression was not causally related to the original occupational conditions but rather
was self-generated as a result of her perception as an undervalued and marginalized employee.
On March 14, 2014 OWCP received a March 12, 2014 letter from counsel requesting
reconsideration based on new evidence.
In a February 21, 2014 letter, Dr. Allan H. Macht, a Board-certified surgeon, noted that
since appellant’s last visit of July 25, 2009, she had splinting and nerve studies and was seen for
psychiatric evaluation. He noted that she indicated a gradual worsening of her upper extremity
conditions from December 2007 to January 2010 with a precipitous worsening of both arms in
February to June 2010, which culminated in her recurrence on June 23, 2010 and stopping work
on July 27, 2010. Physical examination findings were presented and a diagnosis of status post
release of both carpal tunnels and both ulnar nerves at the elbows was provided. Dr. Macht
advised that since appellant’s last visit in July 2009, she had been able to work with significant
difficulty. Over the course of time, there was some worsening of condition of both arms, but
starting January 2010 and extending into June 2010, there was a marked change in her condition,

5

based on her history. Therefore, there was a spontaneous change in appellant’s medical
condition, which resulted from her previous injury dated March 30, 2005 that occurred early
in 2010. There was no evidence of any intervening injury or new exposure to factors causing the
original illness. Dr. Macht opined that the work stoppage was causally related to this recurrence
(spontaneous change in appellant’s medical condition) and noted that she has a significant
problem with both arms at this time. Appellant’s current medical condition was causally related
to her occupation and was the reason that she was unable to work.
In a February 3, 2014 report, Dr. John R. Lion, a Board-certified psychiatrist, performed
a psychiatric evaluation of appellant on January 21, 2014. He noted the history of injury and that
she elected disability retirement and stopped work in July 2010. In June 2010, appellant filed a
notice of recurrence due to depression resulting from this injury, which OWCP denied. Dr. Lion
noted that she underwent surgical repair of both arms in 2007 but continued to experience pain
and discomfort. Various accommodations were made at work, including the installation of
dictation equipment which would decrease appellant’s typing and an allowance by which she
could work some days from home. However, pain continued. As time progressed, appellant felt
an increasing sense of frustration on the part of her employing establishment and a perception
that coworkers felt negatively about her. Dr. Lion noted that several orthopedic surgeons
involved in her care from 2009 to present felt her pain to be unsubstantiated by objective
findings.
Appellant eventually saw a psychologist, Jack M. Long, Ph.D., in August 2007, who
diagnosed her with adjustment disorder with depression and anxiety, but suspended
psychotherapy. Dr. Lion noted Dr. Young’s evaluation and that appellant was presently in
psychotherapy. He diagnosed dysthymic disorder. Dr. Lion explained that where an injury may
occur at a moment’s notice, accompanying depression occurs as the injured party realizes the full
limitations of the injury. He noted that Dr. Paul Apostolo, appellant’s surgeon, noted her
depression preoperatively in August 2006, some 18 months following her initial injury.
Dr. Apostolo performed surgery in January and June 2007 and clearly recognized and
documented depression as a negative force in healing during July 2007. One month later,
psychologist Dr. Long also diagnosed appellant as suffering from depression. Dr. Lion stated
that he viewed appellant’s pain, typical or not, under the category of somatic disorders and that it
was a common manifestation of depression associated with physical limitations and dysfunction.
In appellant’s case, the depression clearly worsened. Whereas she was once able to work despite
the depression, she no longer could work at all. Dr. Lion opined that appellant manifested a
depressive illness formally diagnosed as a dysthymic disorder which resulted from her initial
injury and which has intensified over the years. He opined that she had been disabled from
June 23, 2010 through the present as a result of this work-related psychological condition which
resulted from the March 20, 2005 work-related injury.
OWCP declared a conflict in medical opinion as to whether employment factors
contributed to or caused a psychiatric condition and referred appellant to Dr. Bruce M. Smoller, a
Board-certified psychiatrist, for an impartial medical evaluation. In a July 27, 2014 report,
Dr. Smoller reviewed the statement of accepted facts, appellant’s medical record, and noted the
history of injury. He noted interview findings and provided an impression of mild dysthymia on
a fair to good level of functioning. Dr. Smoller stated that the fact that appellant has mild
dysthymia secondary to prolonged pain is a normal state for patients with an unremitting chronic

6

disease. He opined that there was a relationship to the injury, especially the altercation of her
lifestyle, and thus there was a causal relationship by precipitation. Dr. Smoller stated the
dysthymia was of a mild nature and not disabling in any way. He indicated that the dysthymia
did not need further treatment, that appellant reached maximum medical improvement and
further therapy would not alter this to any degree. Dr. Smoller reiterated that she was not
disabled from work due to the psychiatric condition.
By decision dated August 22, 2014, OWCP accepted the additional condition of
nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was
not authorized based on Dr. Smoller’s July 27, 2014 impartial report.
Also by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions. It also vacated the March 28, 2013 decision
in part to reflect the acceptance of a nondisabling mild dysthymic disorder.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.2 When an employee, who is disabled from the job he or she held when
injured on account of employment-related residuals, returns to a light-duty position or the
medical evidence establishes that light duty can be performed, the employee has the burden to
establish by the weight of reliable, probative, and substantial evidence a recurrence of total
disability. As part of this burden of proof, the employee must show either a change in the nature
and extent of the injury-related condition, or a change in the nature and extent of the light-duty
requirements.3
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.4 For each period
of disability claimed, the employee has the burden of establishing that she was disabled for work
as a result of the accepted employment injury.5 Whether a particular injury caused an employee
disability for employment is a medical issue which must be resolved by competent medical
evidence.6 The fact that a condition manifests itself during a period of employment does not
raise an inference that there is a causal relationship between the two.7
2

20 C.F.R. § 10.5(x).

3

Terry R. Hedman, 38 ECAB 222 (1986).

4

Paul E. Thams, 56 ECAB 503 (2005).

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

D.I., 59 ECAB 158 (2007).

7

The Board will not require OWCP 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 an employee to self-certify their disability and
entitlement to compensation.8
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.9 Appellant’s burden of proving she was disabled on particular
dates requires that she furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with medical reasoning.10
Where no such rationale is present, the medical evidence is of diminished probative value.11
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his or her present condition
and the accepted injury must support the physician’s conclusion of a causal relationship.12
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.13
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
lesion of ulnar nerve and paid appropriate benefits, including surgical procedures in 2007. It
subsequently accepted a nondisabling mild dysthymic disorder. Appellant eventually returned to
work with accommodations to limit her use of the mouse and the keyboard from December 2007
through the date of her voluntary retirement, July 31, 2010. She filed a notice of recurrence from
July 27, 2010 and continuing due to her accepted conditions, which OWCP denied.
The Board has reviewed the medical record and has found no reasoned medical opinion
to support the claim that appellant sustained a spontaneous change in her medical condition on or
about July 27, 2010 causally related to her accepted work-related conditions. While both
Dr. O’Donovan and Dr. Garg felt appellant should seek disability retirement, their opinions were
based on appellant’s complaints of pain. When a physician’s statements consist only of a
repetition of the employee’s complaints that excessive pain caused an inability to work, without
making an objective finding of disability, the physician has not presented a medical opinion on

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

S.F., 59 ECAB 525 (2008).

10

Ronald A. Eldridge, 53 ECAB 218 (2001).

11

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

12

Id.

13

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

8

the issue of disability or a basis for payment of compensation.14 While Dr. Garg stated in his
July 1, 2010 note that, since her return to work in December 2007, appellant’s job continuously
aggravated her preexisting conditions, his opinion on causal relationship is of limited probative
value in that he did not provide adequate medical rationale in support of his conclusions.15
Dr. Garg did not provide any findings on examination or explain why her current condition and
alleged disability were causally related to the accepted injury. While he noted appellant’s
complaints of pain she experienced as a result of bilateral carpal tunnel and bilateral cubital
tunnel syndrome, these statements are broad and vague as they do not explain whether her
accepted conditions contributed to her claimed condition and/or disability as of July 27, 2010.16
In his February 21, 2014 report, Dr. Macht noted that he last saw appellant on
July 25, 2009. He provided findings on examination and, based on her history, stated that she
was able to work with significant difficulty but there was some worsening of condition of both
arms starting January 2010 and extending into June 2010. While he opined that there was a
spontaneous change in her accepted medical condition and that her work stoppage was causally
related to this recurrence (spontaneous change in her medical condition), Dr. Macht failed to
explain why appellant’s current condition and alleged disability are causally related to the
accepted work injury. He did not explain how or why her accepted conditions contributed to her
claimed condition or disability as of July 27, 2010. Dr. Macht also provided no medical
evidence of bridging symptoms between appellant’s present condition and the accepted injury to
support his conclusion of a causal relationship.17 Thus, his report is insufficient to establish her
claim.
Dr. Gordon, OWCP’s second opinion physician, found that, while appellant had
(improved) residuals of her carpal tunnel and cubital tunnel conditions, she was capable of
working in a sedentary capacity with permanent restrictions. He also stated that her subjective
complaints did not comport with objective findings and that her pain was out of proportion. The
medical evidence of record therefore does not substantiate that appellant sustained a recurrence
of total disability on July 27, 2010 due to her accepted physical conditions.
The Board also finds that there is no evidence of record that the accommodations the
employing establishment provided were outside of appellant’s medical restrictions or that they
had changed.
As noted, OWCP subsequently accepted the condition of nondisabling mild dysthymic
disorder. It found a conflict in medical opinion evidence arose between Dr. Young, the second
opinion physician, and appellant’s psychiatrist Dr. Lion, as to whether employment factors
contributed to or caused a psychiatric condition and, in accord with 5 U.S.C. § 8123(a), referred
14

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

15

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

16

See supra note 11. (Appellant has the burden of furnishing medical evidence from a physician who, on the
basis of a complete and accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound rationale).
17

See supra note 11.

9

appellant to Dr. Smoller, a Board-certified psychiatrist, for an impartial medical evaluation. In a
report dated July 27, 2014, Dr. Smoller provided a history, results on examination, and reviewed
medical evidence. Based on an accurate factual and medical background, he found appellant has
mild dysthymia secondary to prolonged pain and that there was a causal relationship to her work
factors by precipitation. Dr. Smoller stated the dysthymia was of a mild nature and not disabling
in any way. He further stated the dysthymia did not need further treatment and appellant’s
condition was relatively unchanging and maximum medical improvement had been reached.
Dr. Smoller reiterated that she was not disabled from work due to the psychiatric condition. This
represents a medically sound explanation of the opinion offered.
The Board therefore finds that Dr. Smoller provided a rationale medical opinion in this
case. As a referee physician, Dr. Smoller’s report is entitled to special weight. This evidence
established a psychological component to appellant’s work-related condition, but found that it
did not disable appellant from working on July 27, 2010.
Appellant has submitted insufficient probative medical opinion evidence to establish her
recurrence of disability claim. The medical evidence of record is unsupported by rationalized
medical evidence to demonstrate that the accepted condition prevented her from working.18
Accordingly, the Board finds that appellant has not met her burden of proof.
Appellant contends that she has provided prima facie evidence to establish an overall
worsening of her accepted conditions leading to her recurrence of injury and medical retirement.
As explained above, there is no probative medical opinion evidence to establish that she had a
material change in her medical condition such that she was totally disabled as a result of her
accepted work conditions beginning July 27, 2010.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability on or after
July 27, 2010 causally related to her March 30, 2005 employment injuries.

18

A.M., Docket No. 09-1895 (issued April 23, 2010) (when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA).

10

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 22, 2014 is affirmed.
Issued: May 13, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11