United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Wilmington, DE,
Employer
__________________________________________

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Appearances:
Russell T. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0008
Issued: November 15, 2021

Case Submitted on the Record

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

JURISDICTION
On October 2, 2020 appellant, through counsel, filed a timely appeal from a May 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden to establish cervical conditions causally
related to the accepted factors of her federal employment
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On November 15, 2014 appellant, then a 44-year-old machine operator/delivery bar code
sorter clerk, filed an occupational disease claim (Form CA-2) alleging that on that day, she first
realized that her neck pain was due to factors of her federal employment. In a supplemental
statement dated November 15, 2014, she related feeling neck pain on October 15, 2014
immediately after throwing heavy trays, as well as twisting her neck to clear jams in a machine.
Appellant stopped work on November 15, 2014.
By decision dated January 22, 2015, OWCP denied appellant’s claim. It found that the
evidence submitted was insufficient to establish that the claimed medical condition was causally
related to her employment duties, which included handling flat-sized mail and heavy trays.
In a February 9, 2015 report, Dr. Scott M. Fried, a treating Board-certified osteopath
specializing in orthopedic surgery, noted appellant’s employment duties, medical history, and her
recitation that on November 15, 2014 she cleared jams in a machine, which required turning her
neck and head and stretching her arm to yank the mail free of the jam. While performing this work
appellant felt acute pain and tightness in her right neck, plexus, and upper trapezius and her left
side was also symptomatic. Dr. Fried noted appellant’s physical examination findings and
diagnosed bilateral median neuropathy, left radial neuropathy, right ulnar neuropathy, left brachial
plexopathy/cervical radiculopathy with long thoracic neuritis and grade 2 scapular winging; and
carpal tunnel median neuropathy, which he attributed to her work activities. He also diagnosed
disc bulge with C4-5, C5-6, and C6-7 disc bulge, pain syndrome, and left side posterior occipital
neuralgia with cervical plexus symptoms. Dr. Fried recommended that appellant undergo
electromyography (EMG)/nerve conduction velocity (NCV) studies.
On April 13, 2015 appellant, through counsel, requested reconsideration.
In reports dated February 26 and March 2, 2015, Dr. Fried again related appellant’s
diagnoses, which he opined were all due to her work activities. He noted that she had been out of
work since her November 15, 2014 injury, that she remained symptomatic and was unable to
perform her usual job duties.
By decision dated June 1, 2015, OWCP denied modification of its January 22, 2015
decision.

3

Docket No. 18-0947 (issued March 4, 2019); Docket No. 16-0349 (issued November 25, 2016).

2

On July 7, 2015 appellant, through counsel, requested reconsideration.
In an August 27, 2015 report, Dr. Fried again related appellant’s extensive diagnoses. He
noted her physical examination findings and explained that her positive Roos and Hunters tests
were indicative of brachial plexus inflammation and scarring at the thoracic outlet level.
On September 21, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Robert A. Smith, a Board-certified orthopedic surgeon, to determine whether appellant
sustained a diagnosed medical condition causally related to the identified employment factors.
In an October 2, 2015 report, Dr. Smith noted that appellant’s medical history included
bilateral carpal tunnel syndrome, right carpal tunnel surgery in 2009, a neck injury in 2009, and
upper extremity and neck injury in January 2015. Appellant’s physical examination was
essentially negative. Dr. Smith noted an April 2014 magnetic resonance imaging (MRI) scan
showed a small C6-7 disc herniation, but the scan was not in the record OWCP provided for his
review. He also noted that Dr. Fried conducted a number of diagnostic tests including ultrasounds
and electrodiagnostic tests, but that these test results were not available for review. Dr. Smith
opined that there was no clinical or objective evidence of a diagnosis due to appellant’s identified
employment factors by aggravation, direct cause or precipitation. He reported that appellant had
a significant preexisting history of carpal tunnel and cervical injuries.
By decision dated October 5, 2015, OWCP modified the prior decision, finding that
appellant had established the factual portion of her claim. However, it denied the claim, finding
that the medical evidence of record was insufficient to establish causal relationship between the
diagnosed medical conditions and the accepted factors of her federal employment.
On December 18, 2015 appellant, through counsel, filed an appeal with the Board. By
decision dated November 25, 2016, 4 the Board set aside the October 5, 2015 decision and
remanded the case to OWCP for it to provide the reports of the MRI scans and EMG tests
performed by Dr. Fried to Dr. Smith, and to obtain a supplemental report from Dr. Smith.
On February 8, 2017 OWCP referred appellant for an updated second opinion evaluation
with Dr. Smith.
In a March 17, 2017 report, Dr. Smith related appellant’s prior medical treatment,
diagnostic test findings, and Dr. Fried’s multiple diagnoses. He observed that she had a history of
back and neck injuries from 2009. Dr. Smith described the incident occurring on November 15,
2014 when appellant was trying to pull thick parcels of mail out of a machine. He noted that the
contemporaneous medical evidence at the time she filed her claim did not mention acute neurologic
symptoms or findings. Dr. Smith also explained that when appellant sought treatment with
Dr. Fried he offered numerous diagnoses of her condition, however, his diagnostic test findings
did not comport with his multiple diagnoses. He noted her current physical examination was
essentially within normal limits. Dr. Smith noted that appellant had neck pain (cervicalgia) and
back pain (lumbago) attributable to the November15, 2014 employment incident, which had

4

Docket No. 16-0349 (issued November 25, 2016).

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ceased as of December 12, 2014. On April 3, 2017 OWCP forwarded an April 4, 2014 MRI scan
for review by Dr. Smith.
In an April 10, 2017 supplemental report, Dr. Smith reported that appellant attributed her
neck, extremity, and back pain to her work activities. Based on his March 17, 2017 physical
examination, he found no objective findings to support any neurological or musculoskeletal
injuries or conditions due to her employment duties o r her employment duties on
November 15, 2014. Dr. Smith attributed the findings from the April 2014 cervical MRI scan to
age-related degenerative disease.
In a letter dated April 17, 2017, OWCP requested clarification of Dr. Smith’s March 17,
2017 report and his April 10, 2017 addendum report. It noted that under FECA pain was
considered a symptom and not a diagnosis.
Dr. Smith, in an April 25, 2017 addendum, explained that he found no confirmation
clinically for any of Dr. Fried’s diagnoses, including neuropathy, cervical radiculopathy, long
thoracic neuritis, or brachial plexopathy, and, thus found no causal relationship between these
conditions and the November 15, 2014 work incident.
By decision dated May 16, 2017, OWCP denied appellant’s claim, finding the medical
evidence of record was insufficient to establish causal relationship between the diagnosed medical
conditions and the accepted factors of her employment. It found the weight of the medical opinion
evidence rested with Dr. Smith’s opinion.
On May 23, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held on August 17, 2017.
By decision dated October 25, 2017, an OWCP hearing representative affirmed the
May 16, 2017 decision. The hearing representative found that Dr. Smith’s opinion constituted the
weight of the medical evidence.
On April 6, 2018 appellant, through counsel, filed an appeal with the Board. By decision
dated March 4, 2019,5 the Board affirmed the October 25, 2017 decision of OWCP’s hearing
representative finding that appellant had not met her burden to establish cervical conditions
causally related to the accepted factors of her federal employment.
On February 12, 2020 counsel requested reconsideration.
In a February 5, 2020 report, Dr. Fried noted appellant’s traumatic injuries sustained in
2009, January 2014, and November 15, 2014. He indicated that her work duties included pulling
uprights, bending, pulling, lifting and doing trays, handling hampers, pushing large containers and
cages, place trays on the belt, which rotates every two hours, sweeps on a regular basis.
Appellant’s job duties required lifting up 70 pounds to pull jams and clear machines, repetitive
reaching, pulling, grasping, pushing, overhead reaching, twisting, bending, and fine motor function
in her arms, hands, and wrists. Dr. Fried noted his disagreement with Dr. Smith and related that
5

Docket No. 18-0947 (issued March 4, 2019).

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his understanding of the nature of appellant’s work injury was limited. He explained that
appellant’s description of neck pain radiating into her left upper extremity was a classic description
of acute radiculopathy and acute neurologic symptoms. Physical examination findings were
unchanged from Dr. Smith’s prior reports. Dr. Smith reviewed and summarized medical reports
including explaining how the diagnostic tests supported his diagnoses. Diagnoses included left
median neuropathy, right median neuropathy, left radial neuropathy, right ulnar neuropathy,
brachial plexopathy/cervical radiculopathy left with long thoracic neuritis and scapular winging
grade 2, carpal tunnel medial neuropathy, bilateral upper extremities sympathetically mediated
pain syndrome, C4-5, C5-6, and C6-7 disc bulge with radiculopathy, and posterior occipital
neuralgia left side with cervical plexus symptoms. Dr. Fried opined that appellant sustained an
acute and significant injury on November 15, 2014 resulting in substantial radiculopathies, greater
on the left, and was the cause of her current disability. Additionally, appellant’s November 15,
2014 employment injury aggravated her acute cervical radiculopathy and traumatic neuropathies.
Dr. Fried concluded that appellant was totally disabled from her job as the repetitive work
activities required of her date-of-injury position made her a danger to herself and coworkers.
By decision dated May 12, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”9 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
a claimant must submit the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.

6

Supra note 2.

7

See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005); Bonnie A. Contreras,
57 ECAB 364 (2006).
8

See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004); Joe D. Cameron, 41
ECAB 153 (1989).
9

20 C.F.R. § 10.5(ee).

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Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factors(s) must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).12
ANALYSIS
The Board finds that appellant has not met her burden to establish cervical conditions
causally related to the accepted factors of her federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to OWCP’s October 27, 2017 decision because the Board considered
that evidence in its November 25, 2016 and March 4, 2019 decisions and found that it was
insufficient to establish her claim. Findings made in prior Board decisions are res judicata absent
any further review by OWCP under section 8128 of FECA. 13
In support of her request for reconsideration, following the Board’s March 4, 2019
decision, appellant submitted a February 5, 2020 report from Dr. Fried in which he again
diagnosed: bilateral upper extremity sympathetically mediated pain syndrome; C4 -5, C5-6, and
C6-7 disc bulges with radiculopathy; posterior occipital neuralgia with cervical plexus symptoms;
bilateral median neuropathy; left radial neuropathy; right ulnar neuropathy; left brachial
plexopathy/cervical radiculopathy with long thoracic neuritis and grade 2 scapular winging; and
bilateral carpal tunnel median neuropathy. He attributed the diagnosed conditions to her work
activities and opined that she was disabled and unable to perform her usual job duties. While
Dr. Fried provided an affirmative opinion on causal relationship, he did not offer medical rationale
sufficient to explain how appellant’s employment duties could have resulted in or contributed to
her diagnosed condition. Without explaining how repetitive work duties caused or contributed to
her injury, Dr. Fried’s medical evidence is of limited probative value. 14 As such, his opinion on
causal relationship is of limited probative value and insufficient to establish appellant’s claim.15

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

13

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

14

See A.V., Docket No. 20-1138 (issued December 15, 2020); A.P., Docket No. 19-0224 (issued July 11, 2019).

15

R.D., Docket No. 19-1076 (issued July 2, 2020).

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As appellant has not submitted rationalized medical evidence in this case, the Board finds
that she has not met her burden of proof to establish her occupational disease claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden to establish cervical conditions
causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 15, 2021
Washington, DC

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

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

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

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

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Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1056
Issued: August 22, 2014

Case Submitted on the Record

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

JURISDICTION
On April 4, 2014 appellant, through her attorney, filed a timely appeal of a
January 13, 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 to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant established that her lumbar herniated discs are
causally related to her 2007 employment injury; and (2) whether she established that she had
periods of disability commencing March 23, 2013 due to her accepted employment injury.
FACTUAL HISTORY
On June 22, 2007 appellant then a 41-year-old mail clerk, filed a traumatic injury alleging
that she sustained a low back injury lifting and moving mail in the performance of duty on
1

5 U.S.C. § 8101 et seq.

June 18, 2007. Dr. Marcus V. Duda, a Board-certified orthopedic surgeon, first examined her on
June 22, 2007 and discussed her back pain at work on June 13 and 18, 2007. He reported that
appellant had previously sought treatment for her back pain and diagnosed lumbar spondylosis.
Dr. Duda recommended a magnetic resonance imaging (MRI) scan. An MRI scan dated
July 17, 2007 demonstrated disc herniations at L4-5 and L5-S1. In reports dated July 20 and
August 16, 2007, Dr. Duda diagnosed herniated disc and stated that appellant’s preinjury MRI
scan was negative, but that her postinjury MRI scan showed soft disc herniation at L4-5. OWCP
accepted her claim for aggravation of lumbar spondylosis on August 21, 2007.
On August 21, 2007 Dr. Duda diagnosed a lumbar spine injury secondary to appellant’s
work-related injury with a focal soft disc herniation to the right at L4-5 with compression of the
right L4 nerve root. On October 12, 2007 he examined her and observed lumbar spine pathology
with lumbar spine spasms with symptoms with no focal organic etiology. Appellant underwent
an epidural steroid injection on November 8, 2007 and her lumbar spine spasm resolved by
December 27, 2007. In a note dated March 4, 2008, Dr. Duda reported that appellant had seated
work restrictions due to her angioedema from an allergy at work. On examination, he found
negative straight leg raising bilaterally, good motor strength, no spasm and normal gait.
Dr. Duda stated, “[Appellant] is released from her spine standpoint without restrictions.”
Dr. Duda completed a note dated July 28, 2008 and stated that appellant had experienced
a recurrence of her lower back pain and spasm secondary to her June 2007 work injury.
Appellant stopped work from August 8 through 27, 2008 due to lower back spasms. She filed a
claim for compensation. Appellant stated that she was working light duty before her back injury
due to a prior claim and that she had environmental allergies. OWCP authorized wage-loss
compensation from August 2 through October 2008. Appellant’s physician released her to return
to light-duty work on October 13, 2008 with no lifting over 10 pounds. She underwent a second
epidural injection on November 8, 2008. Dr. Duda released appellant to return to work on
October 20, 2008 for four hours a day for one week and then to full duty with no restrictions.
Appellant returned to fully duty on December 28, 2008.
Appellant underwent an MRI scan on February 28, 2009 which demonstrated a disc
protrusion at L5-S1 impinging on the right S1 nerve root. Her MRI scan also showed a
protrusion at L4-5 and facet arthropathy compressing the L4 nerve root. Appellant underwent an
epidural steroid injection on March 9, 2009. Dr. Duda diagnosed a new herniated disc at L5-S1
on March 4, 2009.
Dr. Duda examined appellant on September 20, 2010 and diagnosed lumbar spine spasm
with anxiety. Appellant had a lumbar spasm in his office on October 18, 2010. She underwent
an MRI scan on October 23, 2010 which demonstrated right foraminal stenosis at L4-5 and L5S1 due to degenerative disc disease. In a note dated October 27, 2010, Dr. Marc C. Yates, a
Board-certified orthopedic surgeon, reported appellant’s history of Coumadin usage as well as
angioedema and allergies to dust mites and molds. He discussed options for her back surgery.
On November 9, 2010 OWCP’s medical adviser opined that the need for low back disc surgery
was causally related to appellant’s condition.
OWCP authorized the surgery on
November 16, 2010. Appellant declined to undergo surgery at that time.

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On January 6, 2011 Dr. Yates stated that as appellant was utilizing Coumadin no lumbar
surgery could be considered until she was completely off the medication with no evidence of
residual deep vein thrombosis.
Appellant had a normal electromyogram (EMG) on
May 20, 2011. Dr. Yates examined her on May 27, 2011 and stated that she could return to work
on June 1, 2011. Appellant returned to work on machines by June 7, 2011. On September 8,
2011 Dr. Yates stated that she could perform her regular work. He reported that appellant
returned to work and had an allergic reaction to something at the job site resulting in a change in
her job position. In a note dated October 25, 2011, Dr. Yates reported that her allergies had
improved and that she was working as a human resource assistant.
Appellant underwent a lumbar MRI scan on October 30, 2011 which demonstrated a
slight increase in the large right paracentral disc protrusion at L5-S1. Dr. Yates recommended
that she undergo right L5-S1 microdiscectomy for the removal of the large herniation on
November 15, 2011. On November 21, 2011 OWCP’s medical adviser recommended additional
development of the medical evidence and denied approval of the surgery.
On March 1, 2012 Dr. Yates reviewed appellant’s history of injury and medical history.
He reviewed the October 2011 MRI scan and again recommended microdiscectomy. Dr. Yates
noted that appellant was no longer on Coumadin. He reported that she had significant flare-up of
back pain on November 27, 2012 and was experiencing pain in her left leg. On March 28, 2013
Dr. Yates diagnosed back pain due to a large herniated disc at L5-S1.
Appellant filed a claim for compensation on April 2, 2013 requesting compensation for
leave without pay from March 11 through 29, 2013. In a letter dated April 10, 2013, OWCP
requested medical evidence supporting her disability for work. Appellant notified it on
April 11, 2013 that the employing establishment was only able to provide five hours of work a
day. In a note dated April 26, 2013, Dr. Michael J. Hilts, a Board-certified orthopedic surgeon,
found that she had pain with straight-leg raising on the right and diagnosed “flare-up low back
pain with L5-S1 disc herniation.”
Appellant filed additional claims for compensation on May 6 and 20, 2013 requesting
compensation for leave without pay from April 29 through May 17, 2013. OWCP requested
additional medical evidence within 30 days on May 7, 2013. On April 29, 2013 Dr. Hilts stated
that appellant was out of work until she could be seen by her surgeon on May 28, 2013.
In a note dated October 25, 2011, Dr. Yates stated that appellant had changed positions
and was working in human resources. He reviewed her MRI scan findings of the herniated disc
and noted that electrodiagnostic testing did not reveal significant nerve damage.
Dr. Hilts submitted a note dated April 26, 2013 stating that appellant had a recent flare-up
of back pain. On May 9, 2013 Dr. Yates stated that she continued to work until she experienced
severe back pain, spasms, leg weakness and numbness and sought treatment from Dr. Hilts. He
found positive straight leg raising on physical examination. Appellant had difficulty walking on
her heels due to radicular leg pain. He recommended an additional MRI scan and stated that she
was totally disabled until the end of the month. An MRI scan dated May 11, 2013 demonstrated
a stable right lateral disc herniation at L4-5 and a decreased right paracentral disc protrusion at
L5-S1. On May 22, 2013 Dr. Yates stated that appellant was experiencing increased symptoms

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from a large ruptured disc due to her October 20, 2008 employment injury. He stated that she
could not work from April 29 to May 28, 2013 due to increased nerve root symptoms from the
ruptured disc pressure on her spinal nerve. On May 23, 2013 Dr. Yates completed a duty status
report and stated that appellant was out of work pending surgery. In a treatment note dated
May 23, 2013, he stated that she was out of work due to increasing symptoms of back pain, right
leg pain and some left leg symptoms. Dr. Yates noted that appellant had positive popliteal
compression test on the right positive straight leg raising at 70 degrees on the right and back and
leg pain when attempting to walk on her heels due to radicular symptoms on the right. He
examined her on June 7, 2011 and stated that she was working on machines again on her feet for
a normal eight-hour shift. Dr. Yates found that appellant’s physical examination was normal.
In a decision dated June 3, 2013, OWCP denied appellant’s claim for compensation from
March 23 to 29, 2013.
Appellant telephoned OWCP on June 10, 2013 and stated that she also had an asthma
claim. She requested a hearing on June 25, 2013 before an OWCP hearing representative.
Appellant filed an additional claim for compensation for the period April 29 through
May 31, 2013. In a letter dated June 10, 2013, OWCP stated that it would consider her claims
from April 29 to May 31, 2013 together.
Appellant submitted additional claims for
compensation.
Dr. Yates examined appellant on March 28, 2013 due to low back pain and noted that she
had changed jobs at work. He stated that she had ongoing allergy issues. Appellant reported that
she was no longer able to sit intermittently at work and was constantly standing. Dr. Yates
diagnosed back pain with large herniated disc at L5-S1. He noted that appellant had no
neurologic deficit. In a report dated June 24, 2013, Dr. Yates noted her history of injury in 2007
and her findings on an MRI scan. He noted appellant’s recommended surgery had previously
been delayed due to medication. Dr. Yates again recommended back surgery.
OWCP issued a decision on July 2, 2013 finding appellant had not submitted sufficient
medical opinion evidence to establish a recurrence of disability due to her June 18, 2007
employment injury commencing May 6, 2013. Appellant requested an oral hearing on
July 11, 2013.
An MRI scan dated September 4, 2013 demonstrated chronic L4-5 and L5-S1 disc
degeneration and disc herniations and stable mild L4-5 spinal stenosis. Dr. Yates reported that
appellant was experiencing right leg numbness on September 25, 2013.
Appellant testified at the oral hearing on November 21, 2013. She stated that her work
duties changed from 2008 to 2013. Following acceptance of her claim, appellant was in a seated
position with the ability to change positions making end sale placards lifting no more than 10
pounds. Her last offered position in March 2013 was as a window clerk, which required standing
constantly, lifting trays of mail and casing mail. Appellant worked in this position from
March 18 through 26, 2013. She testified that her limited-duty position was based on her back
injury and a separate claim for allergies. Appellant stated that she lifted over 10 pounds while
working as a window clerk approximately twice a day. She stood for approximately eight hours

4

a day excepting her lunch. Appellant testified that she was also required to stoop and bend as a
window clerk. She asserted that while performing this position her back became stiffer resulting
in spasms due to the constant standing. Counsel argued that OWCP failed to adequately address
the issue of medical treatment, specifically surgery for appellant’s herniated disc and to expand
her accepted conditions to include the herniated disc. He also asked that appellant’s claims be
combined.
By decision dated January 13, 2014, OWCP’s hearing representative noted that appellant
stopped work on March 27, 2013. He found that she had not established a change in her
light-duty job requirements or a worsening of her injury-related condition resulting in disability
for work beginning March 23, 2013. The hearing representative further found that appellant had
not established that her diagnosed disc herniations were due to her accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.6 Second, the employee must submit sufficient
evidence, generally only in the form a medical evidence, to establish that the employment
incident caused a personal injury.7

2

Id. at §§ 8101-8193.

3

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

4

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

5

20 C.F.R. § 10.5(ee).

6

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

7

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

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A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.9
ANALYSIS -- ISSUE 1
Appellant filed a claim for a traumatic back injury on June 18, 2007 due to lifting and
moving mail in the performance of duty. OWCP accepted her claim for an aggravation of
lumbar spondylosis on August 21, 2007.
Appellant returned to fully duty on
December 28, 2008.
Appellant’s attending physician, Dr. Duda diagnosed a disc herniation on July 20, 2007
based on an MRI scan. On August 16, 2007 he stated that appellant’s preinjury MRI scan was
negative, but that her postinjury MRI scan showed soft disc herniation at L4-5. In his July and
August 2007 reports, Dr. Duda generally related that she had a lumbar spine injury secondary to
a work-related injury with a disc herniation at L4-5. He provided a diagnosis and an opinion that
appellant’s herniated disc was due to her employment. Dr. Duda’s reports are not sufficient to
meet her burden of proof to establish that her herniated disc was due to her accepted injury. He
did not adequately explain how or why the accepted employment incident resulted in the
herniated disc. The record does not contain the preemployment injury MRI scan and Dr. Duda
did not specify the date of such report. The Board has held that the mere manifestation of a
condition during a period of employment does not raise an inference that there is a causal
relationship between the condition and the employment. Neither the fact that the condition
became apparent during a period of employment nor the belief that the employment caused or
aggravated a condition is sufficient to establish causal relationship.10 Dr. Duda did not provide a
detailed, well-reasoned medical opinion explaining the relationship between appellant’s accepted
employment injury of June 18, 2007 and her herniated disc. His reports are not sufficient to
meet her burden of proof.
On May 22, 2013 Dr. Yates stated that appellant was experiencing increased symptoms
from a large ruptured disc due to an October 20, 2008 employment injury. He did not provide an
accurate history of injury or adequately discuss how the herniated disc resulted from the accepted
employment injury in 2007 or the accepted condition of aggravation of lumbar spondylosis.
Without further medical reasoning explaining causal relationship Dr. Yates’ report is not
sufficient to meet appellant’s burden of proof.

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

10

Kathryn Haggerty, supra note 3.

6

The remainder of the medical evidence did not discuss a possible causal relationship
between appellant’s accepted employment incident or injury and her diagnosed condition of
herniated disc and therefore cannot meet appellant’s burden of proof. The Board finds that she
has not submitted sufficient medical opinion evidence to establish that an additional condition
resulted from her accepted employment incident or injury. Without a detailed medical report
based on a proper history of injury and providing findings explaining how and why appellant’s
lifting at work resulted in her diagnosed herniated disc, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA11 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.12 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, i.e., a physical impairment resulting in loss of wage-earning
capacity.13
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.14 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she hurts too much to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of
disability or a basis for payment of compensation.15 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
employees to self-certify their disability and entitlement to compensation.16

11

5 U.S.C. §§ 8101-8193.

12

G.T., Docket No. 07-1345 (issued April 11, 2008); Kathryn Haggerty, supra note 3; Elaine Pendleton, supra
note 3.
13

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
14

See Fereidoon Kharabi, 52 ECAB 291 (2001).

15

Id.

16

Id.

7

Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.17 Rationalized medical evidence is medical
evidence which includes a physician’s detailed 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.18 Neither the fact that a disease
or condition manifests itself during a period of employment nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.19
ANALYSIS -- ISSUE 2
Following her accepted employment injury, appellant returned to full duty on
December 28, 2008. She filed a series of claims for compensation alleging periods of total
disability due to her accepted employment injury of aggravation of lumbar spondylosis.
Appellant has the burden of establishing by the weight of the substantial, reliable and probative
evidence a causal relationship between her claimed disability and the accepted condition.20 The
Board finds that she did not submit sufficient medical evidence to establish employment-related
disability for the periods claimed due to her accepted injuries.
In support of periods of total disability, appellant submitted reports from Drs. Yates and
Hilts. On April 26, 2013 Dr. Hilts noted her complaint of increased back pain. He did not
provide an opinion on the causal relationship between appellant’s current condition and her
accepted employment injury. Without a clear relationship between appellant’s accepted
employment injury and her current disability, this report is not sufficient to meet her burden of
proof.
Dr. Yates noted that appellant stopped work due to her increased back pain, but failed to
provide an opinion or whether her total disability was due to her accepted employment injury
rather than her subsequently diagnosed herniated discs. In a note dated May 22, 2013, he stated
that she was experiencing increased symptoms from a large ruptured disc due to her
October 20, 2008 employment injury. The Board notes that appellant’s traumatic employment
injury was on June 18, 2007. The record on appeal does not support a second employment
injury. Therefore this report is not based on an accurate factual background. In the remainder of
his treatment notes, Dr. Yates did not address the casual relationship between appellant’s current
periods of disability and her accepted employment injury. Without an opinion that appellant’s
accepted condition of aggravation of lumbar spondylosis result in her alleged periods of
disability she has failed to meet her burden of proof. Dr. Yates’ notes are not sufficiently
17

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

18

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

19

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

20

C.G., Docket No. 13-1172 (issued May 20, 2014).

8

detailed and well reasoned to support her claim for total disability due to her accepted
employment injury.
Dr. Yates examined appellant on March 28, 2013 due to low back pain and noted that she
had changed jobs at work and that she had ongoing allergy issues. At the oral hearing, appellant
alleged a change in her light-duty job requirements in March 2013 in that she was no longer able
to sit intermittently at work and was constantly standing. She also alleged that she was required
to lift more than 10 pounds. Appellant testified that her last position in March 2013 was as a
window clerk which required standing constantly, lifting trays of mail and casing mail and lifting
more than 10 pounds. She worked in this position from March 18 through 26, 2013. Appellant
testified that her previous limited-duty position was awarded due to both her back injury and a
separate claim for allergies. If she was working limited-duty due to her accepted employment
injury, a change in those duties could result in a recurrence of disability.21 The Board finds that
the record does not establish that appellant was performing light-duty work due to restrictions as
a result of her accepted back injury. Appellant returned to full-duty work in December 2008 and
has not received work restrictions due to her accepted employment injury of aggravation of
lumbar spondylosis since her return to work. There is no evidence that the employing
establishment has provided her with light-duty work due to her accepted back injury since this
date. As appellant’s light-duty work was not related to her accepted employment injury a change
in her light-duty work requirements does not entitle her to compensation for total disability.
The Board finds that appellant has not submitted sufficient factual and medical evidence
to establish that she sustained a period of total disability due to her accepted aggravation of
lumbar spondylosis. Therefore appellant has not established that she is entitled to compensation
benefits.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a herniated disc due
to her accepted employment injury. The Board further finds that she has not established a period
of disability on or after March 2013 due to her accepted aggravation of lumbar spondylosis.

21

When an employee, who is disabled from the job she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence of record establish that she can perform the
light-duty position, the employee has the burden to establish by the weight of the reliable, probative and substantial
evidence a recurrence of total disability and show that she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements. Terry R. Hedman, 38 ECAB 222 (1986).

9

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, TRIPLER ARMY
MEDICAL CENTER, Honolulu, HI, Employer
__________________________________________

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

Docket No. 21-1122
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On July 6, 2021 appellant filed a timely appeal from a March 23, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the March 23, 2021 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.
2

5 U.S.C. § 8101 et seq.

1

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty on January 3, 2021, as alleged.
FACTUAL HISTORY
On January 4, 2021 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 3, 2021 she fell due to lightheadedness and hit the floor head
first, the left side of her body, and both knees while in the performance of duty. She stopped work
on the date of the claimed injury. On the reverse side of the claim form, appellant’s supervisor
acknowledged that appellant was injured in the performance of duty.
In support of her claim, appellant submitted discharge instructions dated January 3, 2021
from Dr. Douglas Waffen, a Board-certified emergency medicine specialist. Dr. Waffen
recounted that appellant had experienced a near fainting episode, without loss of consciousness,
which happened when her blood pressure suddenly dropped and not enough blood flowed to the
brain. He listed the causes of sudden blood pressure drop and related that the exact cause of
appellant’s near fainting was unknown. Dr. Waffen diagnosed multiple contusions to the left
periorbital area as well as to the knees.
OWCP received a memorandum dated January 7, 2021 from appellant’s supervisor, A.T.,
which stated that the incident happened in the hallway and that the surface was level and clear
from any obstacles or hazards.
Appellant submitted a medical report dated January 7, 2021 from Dr. Clayton Everline, a
Board-certified sports medicine specialist who noted that appellant had a trip and fall at work and
had fallen head first, impacting her eye. Dr. Everline diagnosed contusion of the left eye,
instability of the left knee joint, post-traumatic osteoarthritis of the left knee, and somatic
dysfunction of the knee region. He also provided appellant with work restrictions.
Appellant submitted an x-ray dated January 7, 2021 from Dr. Thomas Williams, a Boardcertified diagnostic radiologist who diagnosed bilateral knee osteoarthritis.
In reports dated January 15 and February 2, 2021, Dr. Everline related that appellant had
undergone a full cardiac work up and noted assessments, which included aortic valve insufficiency,
unspecified etiology of cardiac valve disease, as well as left eye contusion, left knee joint
instability and post-traumatic osteoarthritis of the left knee.
In a development letter dated February 11, 2021, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It explained the type of factual
and medical evidence needed and provided her with a questionnaire. The questionnaire noted that
the cause of appellant’s fall was unclear; therefore, appellant was asked to address the
circumstances that caused her to fall, whether she had a history of fainting spells, a heart condition,
or epileptic seizures, whether there was a special hazard or condition, i.e., slippery floor, which
contributed to her fall, and whether she struck anything on the way down. OWCP afforded her 30
days to submit the necessary evidence.

2

In a medical report dated March 3, 2021, Dr. Everline noted that appellant was seen for a
follow-up appointment. He repeated his prior assessments. In a letter dated March 4, 2021,
Dr. Everline related that appellant fell at work on January 3, 2021 and that he had diagnosed
derangement of left knee, post-traumatic osteoarthritis of left knee, and patellar tendinitis of left
knee. He stated that degenerative joint disease is aggravated by prolonged weight-bearing
activities because of the compressive and shear forces applied over the knee during these activities.
In addition, Dr. Everline attested that the force on the knee joint is increased with lifting as well
as walking on an incline or climbing stairs. He opined that given the patient’s history and the
impact with the hospital floor, the incident either caused or aggravated appellant’s diagnosed
medical condition.
By decision dated March 23, 2021, OWCP denied appellant’s claim finding that the
evidence did not support that the injury occurred. It noted that she had alleged on the CA-1 form
that her fall occurred due to light-headedness; however, she had not responded to the questionnaire,
which had asked appellant for further information regarding her medical history of fainting spells,
heart condition, or seizures, as well as details regarding any special conditions, which may have
contributed to her fall. OWCP concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is

3

Id.

4

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

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
It is a well-settled principle of workers’ compensation law that an injury resulting from an
idiopathic fall where a personal, nonoccupational pathology causes an employee to collapse and
to suffer injury upon striking the immediate supporting surface, and there is no intervention or
contribution by any hazard or special condition of employment, is not within coverage of FECA. 8
Such an injury does not arise out of a risk connected with the employment and is, therefore, not
compensable. 9 However, the fact that the cause of a particular fall cannot be ascertained or that
the reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.10
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.11 OWCP has the burden of proof to submit medical evidence showing the existence of a
personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.12 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proven that a physical condition preexisted and caused the fall.13
ANALYSIS
The Board finds appellant has not met her burden of proof to establish a traumatic injury
in the performance of duty on January 3, 2021, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident oc curred
in the performance of duty, as alleged.14 On her Form CA-1 she explained that she experienced

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

M.A., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); Carol A.
Lyles, 57 ECAB 265 (2005).
9

Id.; see also D.T., Docket No. 19-1486 (issued January 17, 2020).

10

H.B., supra note 8; M.M., Docket No. 08-1510 (issued November 25, 2008).

11

P.N., Docket No. 17-1283 (issued April 5, 2018); Dora Ward, 43 ECAB 767 (1992).

12

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see
also Jennifer Atkerson, 55 ECAB 317 (2004).
13

P.N., supra note 11; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

14

See J.W., Docket No. 19-0335 (issued July 2, 2019).

4

light-headedness and fell. OWCP could not determine, based upon appellant’s vague statement,
whether appellant’s fall was idiopathic or otherwise remained unexplained. 15
Appellant was subsequently provided an opportunity to submit evidence to establish how
her alleged injury occurred on January 3, 2021. By development letter dated February 11, 2021,
OWCP requested that she describe the factual circumstances of her injury and provided her with a
factual development questionnaire for completion. Appellant was specifically asked whether she
had any medical conditions, which caused the fall or whether any employing establishment
conditions, such as a wet floor contributed to her fall. She did not respond to the questionnaire
and failed to provide a narrative statement detailing the traumatic incident. The only explanation
appellant provided pertaining to the alleged January 3, 2021 employment incident is a general and
vague statement noted on her Form CA-1. The evidence of record indicates that Dr. Waffen, in
his January 3, 2021 report, assessed that appellant sustained a near fainting episode due to a drop
in blood pressure, and Dr. Everline on January 15, 2021 ordered a cardiac work up, which revealed
aortic valve insufficiency. By failing to describe the employment incident and any employmentrelated circumstances surrounding her alleged injury, appellant has not established that the
traumatic injury occurred in the performance of duty, as alleged. 16 Thus, the Board finds that
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on January 3, 2021, as alleged.

15

Id.; see also John R. Black, supra note 13; Judy Bryant, supra note 13; Martha G. List, 26 ECAB 200 (1974).

16

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
PROCESSING & DISTRIBUTION CENTER,
Duluth, GA, Employer
__________________________________________

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

Docket No. 13-1926
Issued: January 30, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 10, 2013 appellant filed a timely appeal from a February 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 Because more than 180 days has elapsed from the most recent merit decision
dated January 19, 2012 to the filing of this appeal, the Board lacks jurisdiction to review the
merits of the case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.3

1

Appellant’s AB-1 form submitted with his appeal to the Board indicates that he is appealing a December 22,
2011 OWCP decision. The Board notes, however, that an appeal of this decision is not timely filed as more than
180 days has elapsed from the date of issuance to the filing of this appeal on August 10, 2013. See 20 C.F.R.
§ 501.3(e).
2
3

5 U.S.C. § 8101 et seq.

By order dated December 20, 2013, the Board denied appellant’s request for oral argument. Order Denying
Request for Oral Argument, Docket No. 13-1926 (issued December 20, 2013).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, appellant disagrees with OWCP’s decision granting him a schedule award for
10 percent impairment to his left arm. He contends that he has greater impairment due to
physical limitations and chronic pain and discomfort in his left shoulder and low back.
Appellant further contends that his treating physician minimized his loss of strength and
permanent damage in his left arm which negatively affected his job performance and failed to
include his disfigurement from a scar.
FACTUAL HISTORY
OWCP accepted that on February 2, 2010 appellant, then a 51-year-old clerk, sustained a
left shoulder sprain as a result of repetitive work duties. It authorized left shoulder arthroscopy
which was performed on November 24, 2010.
In a December 22, 2011 decision, OWCP granted appellant a schedule award for 10
percent impairment to the left arm. The award ran for the period July 15, 2010 to
February 18, 2011.4 On January 19, 2012 OWCP issued a corrected decision, noting that the
period of the schedule award ran from July 15, 2011 to February 18, 2012. Appeal rights
attached to the decision notified appellant that a request for reconsideration had to be dated and
received within one calendar year of the date of its decision.
In an appeal request form dated December 17, 2012, received by OWCP on January 14,
2013, appellant requested reconsideration of the December 22, 2011 decision.
In a
December 19, 2012 narrative statement, he contended that Dr. Pennington made critical errors or
inaccurate determinations in the evaluation of his claim. Dr. Pennington failed to acknowledge
appellant’s limited or diminished ability to reach behind his back which was a result of his
employment-related injury. He inaccurately stated that appellant had no diminished strength.
Dr. Pennington failed to reference the visible scar on appellant’s shoulder. Appellant noted his
continuing left side complaints and physical limitations. He contended that his treating
physician’s statement that he could return to light-duty work supported his limitations. In an
August 22, 2011 letter, appellant described his left shoulder symptoms and limitations.
In a July 24, 2011 report, Dr. Pennington advised that a bone scan of the left arm revealed
a single lytic lesion in the anterior cortex of the left humerus, a large differential of benign and
malignant etiologies for a solitary lytic lesion of the bone and degenerative changes.

4

In a December 8, 2011 medical report, Dr. Scott P. Pennington, an attending orthopedic surgeon, opined that
appellant had three percent impairment to the left upper extremity. On December 19, 2011 OWCP’s medical
adviser determined that appellant had 10 percent impairment to the left upper extremity based on the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (2008).

2

In a February 12, 2013 decision, OWCP denied appellant’s request for reconsideration,
without a merit review, finding that it was not timely filed and failed to establish clear evidence
of error in its December 22, 2011 decision.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP regulations and procedures provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
5

20 C.F.R. § 10.607(a).

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14
OWCP procedures were changed effective August 29, 2011. Section 10.607 of the new
regulations provide that the date of the reconsideration request for timeliness purposes was
changed from the date the request was mailed to the date the request was received by OWCP.15
ANALYSIS
In its February 12, 2013 decision, OWCP denied appellant’s December 17, 2012 request
for reconsideration finding that it was not timely filed and failed to present clear evidence of
error. The Board finds that it improperly determined that appellant’s request for reconsideration
was not timely filed within the one-year time limitation period set forth in 20 C.F.R. § 10.607.
The Board notes that appellant sought review of the December 22, 2011 OWCP decision
which granted him a schedule award for 10 percent impairment to the left arm. The last merit
decision issued by OWCP on the underlying issue in this case is a January 19, 2012 decision
which corrected the compensation period set forth in its prior schedule award decision. As the
decision was issued on January 19, 2012, appellant’s appeal rights attached at that time and the
regulations in place on the date of the January 19, 2012 decision should be determinative as to
whether his appeal request was timely filed. At the time that OWCP’s January 19, 2012 decision
was issued, OWCP’s regulations provided that a request must be received within one year of the
date of its decision for which review was sought.16 The December 17, 2012 request for
reconsideration was received by OWCP on January 14, 2013, less than one year from the last
merit decision of January 19, 2012. The Board finds, therefore, that appellant’s request for
reconsideration is timely.
As appellant’s December 17, 2012 request for reconsideration was timely, the Board
finds that OWCP improperly denied his request by applying the legal standard reserved for cases
where reconsideration is requested after one year.
Since OWCP erroneously reviewed the evidence submitted in support of appellant’s
reconsideration request under the clear evidence of error standard, the Board will remand the
case for review of the evidence under the proper standard of review for a timely reconsideration
request.17

14

Leon D. Faidley, Jr., supra note 6.

15

20 C.F.R. § 10.607.

16

Id.

17

In light of the disposition of this case, the Board will not address appellant’s arguments on appeal.

4

CONCLUSION
The Board finds that OWCP improperly found that appellant’s request for
reconsideration was untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: January 30, 2014
Washington, DC

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

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

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

5


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

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Appearances:
Paul H. Kullen, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-2059
Issued: March 9, 2007

Case Submitted on the Record

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

JURISDICTION
On July 3, 2003 appellant, through his attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated May 20, 2003 denying his claim for
compensation.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merit issue of the case.
ISSUE
The issue is whether appellant established an injury in the performance of duty causally
related to factors of his federal employment.

1

In a letter dated August 24, 2006, appellant’s attorney filed an affidavit with the Board indicating that he timely
filed an appeal on July 3, 2003, that the document was not returned to him by the employing establishment, that
when he received no response or decision he requested assistance from the Secretary of the Department of Labor
and that he subsequently received notice that this Board could not locate the appeal. Appellant’s attorney enclosed a
copy of the July 3, 2003 request for review with his affidavit. By letter dated September 11, 2006, the Board
processed appellant’s appeal and assigned it Docket No. 06-2059.

FACTUAL HISTORY
On October 3, 2000 appellant, then a 44-year-old clerk, filed an occupational disease
claim alleging that he sustained torn tendons as a result of his federal employment. He alleged
that, while casing letters near the end of the day, his shoulder and hips would begin to hurt. The
employing establishment controverted the claim.
In a note dated October 20, 2000, Dr. Alan J. Drucker, a Board-certified internist, stated
that appellant had a rotator cuff tear and should be off work from October 20 to
November 30, 2000. In a return to work form dated November 30, 2000, Dr. Drucker indicated
that appellant could return to work on December 4, 2000 with restrictions of no lifting in excess
of 20 pounds and no above the shoulder reaching.
By letter dated January 8, 2001, the Office requested that appellant submit further
information. Appellant did not submit a timely reply.
By decision dated February 9, 2001, the Office denied appellant’s claim finding that the
medical evidence was not sufficient to establish his shoulder or hip conditions were caused by an
employment factor.
By letter received by the Office on February 15, 2001, appellant noted that his work
involved repetitive movement of his shoulders, arms and hands. He indicated that, while
working on the flat sorter, he began to experience pain. In a September 26, 2000 report,
Dr. Drucker indicated that appellant had bilateral tears of the supraspinatus and infraspinatus
tendons which he believed were job related.
By letter dated November 16, 2001, appellant, through his attorney, requested
reconsideration. He submitted a report indicating that on August 10, 2001 appellant underwent a
right shoulder arthroscopy, acromioplasty and partial coracoacromial ligament release by
Dr. Patricia Kolowich, a Board-certified orthopedic surgeon.
Appellant submitted numerous reports by physicians at Henry Ford Hospital for
treatment of bilateral rotator cuff injuries and fibromyalgia syndrome. In a June 26, 2001 report,
Dr. Kolowich noted appellant’s history of an injury occurring in March 2000 when he was
pulling baskets of mail that weighed about 50 pounds off the line and dropping them onto the
floor. Since that time, appellant experienced neck pain and occasional pain in the left shoulder.
In an August 29, 2001 report, Dr. Drucker noted that appellant has been under his care
with a history of fibromyalgia as well as history of neck injury stemming from an automobile
accident in 1991. He reviewed appellant’s history stating that in March 2000, while working as a
sorter at the employing establishment, appellant sustained an injury which resulted in severe pain
to both shoulders. Since that time, appellant experienced intermittent symptoms of pain which
prevented him from working. Ultrasounds of both shoulders obtained in September 2000
revealed bilateral partial thickness tears of the rotator cuffs. Dr. Drucker deferred to
Dr. Kolowich for an opinion concerning the relationship between appellant’s employment and
his rotator cuff tears, as she was an orthopedic surgeon. However, he noted, “It appears to me
that the partial thickness tears of the rotator cuffs were the result of his job activities.

2

By decision dated February 12, 2002, the Office found that the evidence submitted on
reconsideration was insufficient to warrant modification of the February 9, 2001 decision.
On April 10, 2002 appellant filed a request for reconsideration. He submitted a
March 19, 2002 report from Dr. Kolowich, who stated, “[Appellant] has been followed for his
right shoulder. He had surgery [August 10, 2001]. This was a work-related injury as described
in his claim note from June 26, 2001.”
By decision dated April 24, 2002, the Office denied modification of the February 12,
2002 decision.
On August 9, 2002 appellant requested reconsideration. He submitted a statement
indicating that he had experienced pain since March and saw a physician at that time. Appellant
noted that his job involved casing mail and that on several occasions while he keyed flats, the
tubs would get full and had to be removed. The tubs weighed more than 30 pounds and he slid
the tubs down a short rail and then onto the floor. When the tubs derailed it would cause his arm
to yank. He also had sharp pain when he would reach for high cases. The supervisor of the flat
sorting machines operation at the employing establishment confirmed appellant’s description of
his duties.
In a decision dated November 7, 2002, the Office denied modification of the April 24,
2002 decision, finding that the medical evidence was insufficient to establish that appellant’s
condition was causally related to the stated factors of his federal employment. This decision was
reissued by the Office on May 20, 2003 in order to protect appellant’s rights on appeal.2
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.5

2

Pursuant to an affidavit by appellant’s attorney, on December 5, 2002 he filed an appeal with this Board which
was docketed as No. 03-468. However, the Office noted on May 20, 2003 that it had sent the Board the record
concerning appellant’s traumatic injury case and not the record concerning his occupational disease case.
Accordingly, the Board remanded the case for reconstruction of the record and the issuance of an appropriate
decision in order to protect appellant’s appeal rights. On May 20, 2003 the Office resissued its November 7, 2002
decision.
3

5 U.S.C. § 8101 et seq.

4

Joe D. Cameron, 41 ECAB 150 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

3

To establish that the injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
Appellant established the work factors to which he attributed his condition. However, he
failed to establish that these factors caused or contributed to his shoulder condition by submitting
rationalized medical evidence relating his shoulder rotator cuff tears to factors of his federal
employment. In a September 26, 2000 report, Dr. Drucker stated that appellant’s tears of the
supraspinatus and infraspinatus tendons were job related. In a report dated August 29, 2001,
Dr. Drucker indicated that the partial thickness tears of the rotator cuffs “appears” to be related
to appellant’s job activities. He also noted in this report that appellant alleged that he
experienced pain in March 2000 while working as a sorter at the employing establishment.
Dr. Drucker referred appellant to Dr. Kolowich, who was in a better position to render an
opinion regarding his injury. Although Dr. Drucker indicated that he believed that the tears to
the rotator cuffs were the result of appellant’s job activities, he did not provide sufficient
explanation by addressing how appellant’s duties would cause or contribute to the rotator cuff
tears. To establish his claim, appellant must submit evidence establishing that a diagnosed
condition is causally related to the specific work factors. Dr. Drucker’s opinion is speculative.
He qualified his opinion with the terms “believe” and “appears to me” which indicate the
speculative nature of his opinion. Dr. Kolowich briefly stated that appellant’s injury to his right
shoulder was related to his work duties, stating that appellant’s work duties included pulling
baskets of mail on the line and dropping them on the floor. However, Dr. Kolowich did not
provide a rationalized medical opinion explaining how appellant’s work duties would cause or
contribute to the injury to both shoulders. Furthermore, appellant claimed that his injury
occurred around May 2, 2000 as a result of casing letters causing his shoulders to hurt.
Dr. Kolowich listed appellant’s history of injury as occurring in March 2000 when he was
pulling baskets of mail that weighed 50 pounds. This discrepancy casts doubt on Dr. Kolowich’s
opinion, as the medical history of injury is not consistent.

6

Solomen Polen, 51 ECAB 441 (2000); see also Michael E. Smith, 50 ECAB 313 (1999).

7

Id.

4

An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is causal relationship between his claimed condition and his
employment.8 To establish causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration as well as findings upon examination, state
whether the employment injury caused or aggravated the diagnosed conditions and present
medical rationale in support of his or her opinion.9 Appellant failed to submit such evidence in
this case and, therefore, has failed to discharge his burden of proof to establish that he sustained
an injury due to the noted factors of his federal employment.
CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2003 is affirmed.
Issued: March 9, 2007
Washington, DC

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

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

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

8

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

9

Calvin E. King, 51 ECAB 394 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES CLEVELAND VETERANS
AFFAIRS MEDICAL CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 19-1452
Issued: June 29, 2020

Case Submitted on the Record

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

JURISDICTION
On June 25, 2019 appellant, through counsel, filed a timely appeal from a June 3, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back injury
causally related to the accepted July 21, 2018 employment incident.
FACTUAL HISTORY
On September 18, 2018 appellant, then a 55-year-old licensed practical nurse, filed a
traumatic injury claim (Form CA-1) alleging that on July 21, 2018 she injured her low back when
she fell out of her chair while in the performance of duty. She did not stop work.
In a development letter dated September 28, 2018, OWCP informed appellant that the
evidence was currently insufficient to support her claim, noting that she had not submitted any
medical evidence. It advised her of the type of factual and medical evidence needed to establish
her claim and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
submit the necessary evidence.
OWCP subsequently received a report dated August 13, 2018 from an unidentified health
care provider, who treated appellant for leg/thigh symptoms, insomnia, and acute pain. The health
care provider prescribed pain medicine and referred her for physical therapy.
In an August 15, 2018 visit summary report, Dr. Andre Cassell, a Board-certified
physiatrist, noted that he had treated appellant for a lumbar strain and radicular pain of the left
lower extremity. He continued pain medication and recommended physical therapy and that
appellant obtain a magnetic resonance imaging (MRI) scan of the lumbar spine. In an after visit
summary dated September 5, 2018, Dr. Cassell evaluated appellant for left flank pain,
degenerative arthritis of the lumbar spine, acute bilateral low back pain with left-sided sciatica,
chronic pain of the left knee, lumbar nerve root disorder, and headache due to trauma. He
prescribed medications for pain and headaches and recommended a lumbar injection.
On September 18, 2018 Dr. Jeffrey C. Kirschman, Board-certified in family practice,
evaluated appellant at the employing establishment’s clinic. He indicated that she had fallen
backward from a chair on July 21, 2018, hitting a desk with her neck and low back and tangling
her left leg in the chair. Appellant’s pain had increased on August 9, 2018. Dr. Kirschman noted
that she had a history of problems with her low back, but was performing full duty at the time of
the incident. He advised that an MRI scan demonstrated an L3-4 left foraminal disc extrusion
impinging on the left L3 nerve root. Dr. Kirschman diagnosed a lower back and pelvis contusion,
a contusion of an unspecified part of the neck, lumbar intervertebral disc disorders with
radiculopathy, and a strain of the left hip. He asserted that the condition was “work-related per
history.”
In a September 26, 2018 note, Dr. Cassell advised that appellant would be off work from
September 26 to October 26, 2018.
In an October 11, 2018 statement, appellant related that on July 21, 2018 she had stepped
onto a chair to get a flashlight before making her rounds when she fell backward onto a desk. She
showed the night nurse manager her bruises, but did not report the incident because she did not

2

believe that it was serious. Appellant sought treatment from her primary care physician on
July 31, 2018 and at the emergency room on August 10, 2018. She continued home treatments,
but the pain progressed and she developed left leg numbness. Appellant advised that she was in a
motor vehicle accident in 2016, but that her injuries had resolved.
In a narrative report dated October 24, 2018, Dr. Cassell indicated that he had initially
evaluated appellant on August 15, 2018 for back pain that had begun on July 21, 2018 after a fall
at work. He advised that she had a history of back pain from a prior June 26, 2018 accident.
Dr. Cassell reviewed the result so diagnostic testing, including the MRI scan showing a left
foraminal disc extrusion at L3-4 impinging upon the left L3 nerve. He related, “It is likely that the
high energy trauma from [appellant’s] fall backwards and subsequent contusion ‘may have’ caused
[or] precipitated an event that caused or aggravated a preexisting extruded disc in the lumbar spine.
The extruded disc with compression of part of the dorsal root ganglion could be causing
[appellant’s] symptoms, including weakness, loss of sensation, and difficult with ambulation.”
By decision dated October 31, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish that the medical condition
was causally related to the accepted employment incident.
Subsequently, OWCP received an October 24, 2018 report from Dr. Jonathan E. Belding,
a Board-certified orthopedic surgeon. Dr. Belding evaluated appellant for pain radiating into the
left lower extremity. He recommended a knee injection to determine whether the pain was from
knee arthritis or stemming from her back. Dr. Belding diagnosed acute bilateral low back pain
with left sciatica and lumbar facet joint pain.
On November 8, 2018 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
In a progress report dated November 22, 2018, Dr. Cassell discussed appellant’s
complaints of low back pain radiating into the left leg. He noted that her pain improved with
injections, but had returned after physical therapy. Dr. Cassell diagnosed lumbar radiculopathy
due to disc disease.
In a request for medical documentation form dated December 24, 2018, Dr. Cassell noted
that appellant was unable to bend, lift, twist, carry objects, or walk for prolonged distances. He
indicated that the MRI scan demonstrated an extruded disc at L3-4 on which was causing pain and
weakness in the left leg. Dr. Cassell opined that appellant was moderately-to-severely impaired
and that it was unclear how long she would be off work due to her injury. He recommended
physical therapy and interventional spinal procedures.
At the telephonic hearing, held on March 18, 2019, appellant described her employment
history and the treatment received. Counsel advised that he was seeking a supplemental report
from Dr. Cassell. No further evidence was received.
Thereafter, OWCP received an MRI scan of the lumbar spine dated May 15, 2017 which
revealed mild multilevel degenerative facet arthrosis. An August 30, 2018 MRI scan of the lumbar
spine revealed a left foraminal disc extrusion at L3-4 with impingement upon the left L3 nerve
root.
3

By decision dated June 3, 2019, an OWCP hearing representative affirmed the October 31,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA and that the claim was filed within the applicable time
limitation period of FECA,4 that an injury was sustained while in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components, which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.7 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence.8
Rationalized medical opinion evidence is required to establish causal relationship. 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 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that a disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10

3

Id.

4
See R.B., Docket No. 18-1327 (issued December 31, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41
ECAB 153 (1989).
5

Y.K., Docket No. 18-0806 (issued December 19, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

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

R.E., Docket No. 17-0547 (issued November 13, 2018; Elaine Pendleton, 40 ECAB 1143 (1989).

8

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

H.B., Docket No. 18-0781 (issued September 5, 2018).

10

D.H., Docket No. 18-1410 (issued March 21, 2019).

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Pursuant to OWCP’s procedures, no development of a claim is necessary where the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,
burn, laceration, insect sting or animal bite).11 No medical report is required to establish a minor
condition such as a laceration.12
ANALYSIS
The Board finds that appellant has met her burden of proof to establish back contusions
causally related to the accepted July 21, 2018 employment incident. The Board further finds,
however, that appellant has not established that her additional claimed conditions were causally
related to the accepted July 21, 2018 employment incident.
As a result of the accepted July 21, 2018 employment incident, appellant was treated by
Drs. Cassell and Kirschman. Both physicians described appellant’s fall backwards from her chair
and striking her back on that date while in the performance of duty, noted back pain, and diagnosed
back contusions on physical examination. Both Drs. Cassell and Kirschman concluded that these
contusions resulted from the July 21, 2018 employment incident.
The Board finds that the history of the accepted July 21, 2018 employment incident
reported by Drs. Cassell and Kirschman was consistent with appellant’s account, and their
respective diagnosis of back contusions was visible and consistent with the mechanism of injury.
As such, the Board finds that this evidence is sufficient to establish that appellant sustained back
contusions causally related to the accepted February 21, 2019 employment incident.13 Upon return
of the case record OWCP shall make payment and/or reimbursement of medical expenses and
wage-loss compensation for disability, if any, with regard to the accepted back contusions.
The Board further finds, however, that the evidence of record is insufficient to establish
that appellant’s additionally claimed back conditions were causally related to the accepted July 21,
2018 employment incident.
On October 24, 2018 Dr. Cassell discussed appellant’s history of back pain beginning on
July 21, 2018 after a fall at work. He noted that she had a prior injury to her back. Dr. Cassell
opined that appellant’s fall and contusion “may have” caused or aggravated a preexisting extruded
disc due to impact from her backward fall. He indicated that the compressing of the dorsal root
from the extruded disc could result in her symptoms of reduced sensation, difficulty walking, and
weakness. Dr. Cassell’s finding that it was “likely” that appellant’s backward fall caused or
aggravated the extruded lumbar disc is couched in speculative terms. The Board has held that,

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011).
12

Id., see I.H., Docket No. 19-1678 (issued April 21, 2020) (the Board accepted abrasions as causally related to the
accepted employment incident).
13

Supra notes 10 and 11.

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medical opinions that are speculative or equivocal are of diminished probative value and, thus, this
report is insufficient to meet her burden of proof to establish her claim.14
In a report dated September 18, 2018, Dr. Kirschman discussed appellant’s history of
falling backward off a chair on July 21, 2017 striking her neck and low back on a desk. He
diagnosed a lower back and pelvis contusion, a contusion of an unspecified part of the neck, lumbar
intervertebral disc disorders with radiculopathy, and a strain of the left hip. Dr. Kirschman
indicated that appellant’s condition was related to her employment by history. While he found
that her condition was related to the incident by history, he failed to make an independent finding
regarding causation.15 Without providing an independent opinion explaining how physiologically
the movements involved in the accepted employment incident caused or contributed to the
diagnosed condition, his opinion is of little probative value.16
The remaining medical evidence fails to address causal relationship. In an August 15, 2018
visit summary report, Dr. Cassell noted treating appellant for a lumbar strain and radicular pain of
the left lower extremity. In the September 5, 2018 after visit summary, he evaluated appellant for
left flank pain, degenerative arthritis of the lumbar spine, acute bilateral low back pain with leftsided sciatica, chronic pain of the left knee, lumbar nerve root disorder, and headache due to
trauma. On September 26, 2018 Dr. Cassell advised that appellant should not work from
September 26 to October 26, 2018. On October 24, 2018 Dr. Belding diagnosed acute bilateral
low back pain with left sciatica and lumbar facet joint pain. In a November 22, 2018 progress
report, Dr. Cassell diagnosed lumbar radiculopathy due to disc disease. In a December 24, 2018
form report, he found that appellant had an extruded L3-4 disc by MRI scan causing left leg pain
and weakness. Dr. Cassell determined that she had a moderate-to-severe impairment. Although
these physicians diagnosed various back conditions, neither physician, however, addressed the
cause of the diagnosed conditions or disability. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.17 As Drs. Cassell and Belding did not address
the issue of causal relationship between the diagnosed back conditions and the accepted July 21,
2018 employment incident, their reports are of no probative value and are, therefore, insufficient
to establish appellant’s claim.
Appellant submitted MRI scans of the lumbar spine dated May 15, 2017 and
August 30, 2018. The Board has explained that diagnostic studies, standing alone, lack probative
value as they do not address whether the employment incident caused any of the diagnosed
conditions.18

14

V.W., Docket No. 19-1537 (issued May 13, 2020); K.M., Docket No. 19-1483 (issued February 6, 2020).

15

T.S., Docket No. 18-1501 (issued March 4, 2019).

16

Id.; see also A.B., Docket No. 18-0577 (issued October 10, 2018).

17

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

18

N.B., Docket No. 19-0221 (issued July 15, 2019).

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As appellant has not submitted rationalized medical evidence establishing a causal
relationship between her additional claimed back conditions and the accepted July 21, 2018
employment incident, the Board finds that she has not met her burden of proof to establish her
claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has met her burden of proof to establish back contusions
causally related to the accepted July 21, 2018 employment incident. The Board further finds,
however, that appellant has not established additional claimed back conditions causally related to
the accepted February 21, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 3, 2019 decision of the Office of Workers’
Compensation Programs is reversed in part and affirmed in part.
Issued: June 29, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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