United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plant City, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0595
Issued: October 20, 2021

Case Submitted on the Record

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

On January 23, 2020 appellant filed an appeal from a purported December 13, 2019
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-0595.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 1
This jurisdiction encompasses any final decision issued by OWCP within 180 days of the date
appellant filed the appeal.2 The Board concludes that the case record as transmitted to the Board
does not contain a final adverse decision of OWCP issued within 180 days from the date of
docketing of the current appeal. 3
Although the case record does contain a letter from OWCP dated December 13, 2019, it is
informational in nature. By the December 13, 2019 letter, OWCP responded to appellant’s
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

3

Id.

November 13, 2019 request to have her case for a schedule award reopened. It notified her that in
order to have her case reopened, she had 15 days to accept the position offered to her by the
employing establishment and report for duty, as it constituted suitable work, and if she refused the
offer of suitable work, it would terminate her wage-loss compensation and entitlement to a
schedule award, pursuant to 5 U.S.C. § 8106(c)(2). The case is therefore in an interlocutory
posture as OWCP is in the process of developing the suitable work issue. 4
In view of the foregoing, the Board finds that the December 13, 2019 letter does not
constitute a final adverse OWCP decision. As there is no final adverse decision issued by OWCP
over which the Board may properly exercise jurisdiction, the Board concludes that the appeal
docketed as No. 20-0595 must be dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-0595 is dismissed.
Issued: October 20, 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

Section 501.2(c)(2) of the Board’s Rules of Procedure, provides: “There will be no appeal with respect to any
interlocutory matter decided (or not decided) by OWCP during the pendency of a case.” 20 C.F.R. § 501.2(c)(2).
4

2


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

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

Docket No. 07-185
Issued: May 23, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 26, 2006 appellant filed a timely appeal from an August 23, 2006 merit
decision of the Office of Workers’ Compensation Programs that terminated his wage-loss
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merit decision.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation, effective August 23, 2006, on the grounds that he
refused an offer of suitable work.
FACTUAL HISTORY
On January 22, 2004 appellant, then a 43-year-old letter carrier, filed a traumatic injury
claim alleging that he developed lower back and leg pain while lifting at work during the week
of December 18, 2003. He stopped work on December 22, 2003. The Office accepted
appellant’s claim for lumbar, lumbosacral and sacroiliac subluxations.

On March 31, 2004 Dr. David W. Parliament, appellant’s treating chiropractor, stated
that it was unknown when appellant could return to work. On May 6, 2004 Dr. Edward M.
Voke, a Board-certified orthopedic surgeon, diagnosed a herniated nucleus pulposis at L5-S1 on
the left. He stated that appellant should be off work for one month. In June 11 and 16, 2004
reports, Dr. Voke indicated that appellant’s disc herniation had subsided. He recommended that
appellant pursue conservative treatment.
In a June 25, 2004 report, Dr. Shawn P. Johnston, a Board-certified physiatrist to whom
appellant was referred by Dr. Voke, diagnosed large L5-S1 disc extrusion and left S1
radiculopathy. Dr. Johnston indicated that appellant would receive an epidural injection and
physical therapy. In a July 16, 2004 report, Dr. Johnston noted that appellant’s symptoms had
returned and that surgery might be needed. On August 6, 2004 he advised that appellant could
work light duty, but on August 13, 2004 he opined that appellant was totally disabled. On
August 18, 2004 Dr. Voke stated that appellant’s disc herniation had completely subsided but he
continued to experience chronic radiculopathy or inflammation at S1.
In a September 28, 2004 report, Dr. James M. Eule, a Board-certified orthopedic surgeon,
diagnosed lumbar degenerative disc disease at L4-5 and L5-S1. He indicated that surgery would
not likely provide complete relief of appellant’s symptoms. On October 4, 2004 Dr. Eule
indicated that appellant could return to work on October 1, 2004. The employing establishment
advised that appellant returned to work for four hours daily on October 19, 2004.1
The employing establishment forwarded a December 14, 2004 investigative
memorandum suggesting that appellant’s physical capabilities had improved. The memorandum
advised that appellant was observed engaging in various activities and videotaped performing
such activities. On January 18, 2005 the Office requested information from Dr. Johnston
concerning appellant’s physical capabilities as shown in an investigative videotape.
In a January 13, 2005 diagnostic report, Dr. John McCormick, a Board-certified
radiologist, stated that a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
revealed a mild protrusion at L5-S1, which had subsided over the previous year. It also
identified mild diffuse annular bulging at L4-5 and multilevel desiccation of disc material.
In a January 25, 2005 report, Dr. Johnston noted reviewing the videotape regarding
appellant. He opined that, while appellant could perform “some bending, lifting and twisting
kinds of activities,” appellant was still unable to return to regular duty as he would likely have
intermittent flare-ups of his condition that would preclude full duty. Dr. Johnston opined that
appellant could return to full-time work with restrictions “of essentially a light-duty job with
occasional lifting, bending and twisting but not to exceed lifting, pushing or pulling of 20
pounds.”
On February 11, 2005 the employing establishment offered appellant a limited-duty job
assignment. The job duties included driving for four to six hours as well as pushing, pulling and
1

Appellant subsequently submitted claims for intermittent disability which were denied in an April 11, 2005
Office decision. In Docket No. 05-1216 the Board remanded this to the Office. As of the filing of the present
appeal, the Office had not reissued the April 11, 2005 decision.

2

lifting 20 pounds or less for one to two hours. The assignment would require appellant to case
letters and flat first class mail for one to two hours, deliver parcels of 20 pounds or less for four
to six hours, perform quality checks for one to two hours, and carry and deliver mail for one to
two hours.
By letter dated February 15, 2005, the Office advised appellant that the job offer
constituted suitable work. Appellant was provided 30 days to accept the position or give reasons
for refusing it; otherwise, he risked termination of his compensation benefits.
In a February 15, 2005 report, Dr. Johnston diagnosed lumbar disc herniation at L5-S1
and lower back pain with radicular features. He found that appellant could return to full-time
light-duty work. Dr. Johnston based his opinion on both the employing establishment’s
investigative videotape, which “showed that [appellant] was capable of being able to do some
bending, lifting and twisting kind of activities,” and on his assessment of appellant’s ongoing
symptoms. He reiterated that appellant was “capable of returning to work full time with the
restrictions of only occasional lifting, bending and twisting, but no lifting, pushing or pulling to
exceed 20 pounds.” Dr. Johnston noted that appellant disagreed with his opinion “even
presuming that he does have a disc herniation.” In a February 24, 2005 work capacity report, he
listed that appellant could work eight hours per day within specified medical restrictions.
Dr. Johnston opined that appellant could lift up to 25 pounds on an occasional basis and was able
to perform all of the duties required in the position description, including driving.
By letter dated March 15, 2005, appellant declined the limited-duty job offer. He
contended that he had received inadequate medical treatment and that, “for this reason, I am
declining the job offer.” Appellant further asserted:
“I will not return to work until I have received the medical services needed to
improve my injury. I suffer from a herniated disc. This type of injury does not
just resolve itself on its own, though it may improve while the patient is off work,
it will always be there unless treated properly. I will not risk more damage to my
physical well being by returning to work before I am physically able to perform
the duties assigned to me as I am sure that you would not want a medical liability
working in your station.”
By letter dated April 7, 2005, the Office informed appellant that it had considered his
stated reasons for refusing the limited-duty job offer and found that they were not valid. The
Office provided appellant 15 additional days to accept the position, after which his entitlement to
compensation would be terminated. He did not respond.
In an April 28, 2005 decision, the Office terminated appellant’s entitlement to wage-loss
compensation, effective the same day, on the grounds that he refused an offer of suitable work.
Appellant appealed the Office’s decisions to the Board. By order dated November 1,
2005, the Board remanded the case to the Office for reconstruction of the record.2 The Board
directed the Office to issue a decision to fully protect appellant’s appeal rights.
2

Mike T. McDonald, Docket No. 05-1216 (issued November 1, 2005).

3

On August 21, 2006 the Office contacted the employing establishment and confirmed
that the offered position, within appellant’s restrictions, remained available.
By decision dated August 23, 2006, the Office reissued its April 28, 2005 decision,
effective August 23, 2006, terminating appellant’s entitlement to wage-loss benefits.
LEGAL PRECEDENT
Section 8106(c) of the Federal Employees’ Compensation Act3 provides that a partially
disabled employee who refuses or neglects to work after suitable work is offered to, procured by,
or secured for the employee is not entitled to compensation. The Office has authority under this
section to terminate compensation for any partially disabled employee who refuses or neglects
suitable work when it is offered. Before compensation can be terminated, however, the Office
has the burden of demonstrating that the employee can work, setting forth the specific
restrictions, if any, on the employee’s ability to work and has the burden of establishing that a
position has been offered within the employee’s work restrictions, setting forth the specific job
requirements of the position.4 In other words, to justify termination of compensation under
5 U.S.C. § 8106(c)(2), which is a penalty provision, the Office has the burden of showing that
the work offered to and refused or neglected by the claimant was suitable.5
Section 10.516 of the applicable regulation states:
“[The Office] shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any reasons
to counter [the Office’s] finding of suitability. If the employee presents such
reasons, and [the Office] determines that the reasons are unacceptable, it will
notify the employee of that determination and that he or she has 15 days in which
to accept the offered work without penalty. At that point in time, [the Office’s]
notification need not state the reasons for finding that the employee’s reasons are
not acceptable.”6
To justify termination, the Office must show that the work offered was suitable and that
appellant was informed of the consequences of his refusal to accept such employment.7
The implementing regulation8 also provides that an employee who refuses or neglects to
work, after suitable work has been offered or secured for the employee, then has the burden of
showing that such refusal or failure to work was reasonable or justified and shall be provided
3

5 U.S.C. § 8106(c)(2).

4

Frank J. Sell, Jr., 34 ECAB 547 (1983).

5

Glen L. Sinclair, 36 ECAB 664 (1985).

6

20 C.F.R. § 10.516.

7

Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on recon., 43 ECAB 818 (1992).

8

20 C.F.R. § 10.517(a).

4

with the opportunity to make such a showing before entitlement to compensation is terminated.9
Office procedures state that acceptable reasons for refusing an offered position include
withdrawal of the offer, medical evidence of inability to do the work or travel to the job, or that
the claimant found other work which fairly and reasonably represents his wage-earning capacity
(in which case compensation would be adjusted or terminated based on actual earnings). The
issue of whether an employee has the physical ability to perform a modified position offered by
the employing establishment is primarily a medical question that must be resolved by medical
evidence.10
ANALYSIS
The Board finds that the Office properly terminated appellant’s wage-loss compensation
on the grounds that he refused an offer of suitable work. Appellant’s claim was accepted by the
Office for lumbosacral subluxation. He was treated by Dr. Johnson who diagnosed an L5-S1
disc with radiculopathy.
In a January 25, 2005 report, Dr. Johnston advised that, while appellant might have
intermittent symptoms upon returning to work, he was capable of working full time within
restrictions. Specifically, Dr. Johnston stated that appellant could work a light-duty job and
could perform occasional lifting, bending and twisting, but could not lift, push or pull loads in
excess of 20 pounds. After receipt of Dr. Johnston’s January 25, 2005 report, the Office
informed appellant on February 15, 2005, that it had found the limited-duty position to be
suitable work.
Dr. Johnston also provided a February 15, 2005 report, confirming that appellant was
capable of performing a full-time light-duty position. He again specified that appellant could
perform occasional lifting, bending and twisting, but was not to lift, push or pull loads greater
than 20 pounds. Dr. Johnston also noted that his opinion was based on his review of the
investigative videotape, as well as his physical examinations of appellant and current impression
of appellant’s symptoms. In a February 24, 2005 report, he certified that appellant was capable
of working eight hours per day in a limited capacity. Dr. Johnston indicated that appellant could
lift up to 25 pounds on an occasional basis, and was able to sit, stand, walk and lift for up to four
hours intermittently, and could bend, squat, climb, kneel and twist for one hour intermittently.
He noted that appellant could reach above his shoulder and operate a motor vehicle.
The employing establishment’s limited-duty job offer required, on average, between four
and six hours of driving and between one and two hours of lifting 20 pounds or less, pushing and
pulling. The Board finds that the medical evidence establishes that the job offered to appellant
by the employing establishment and found suitable by the Office on February 15, 2005 was
within the restrictions set forth by Dr. Johnston on January 25, 2005 and that appellant was
capable of performing the modified position. There is no medical evidence of record indicating
that appellant could not perform the duties of the offered position.

9

See John E. Lemker, 45 ECAB 258 (1993).

10

See Marilyn D. Polk, 44 ECAB 673 (1993).

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To properly terminate compensation under section 8106(c)(2), the Office must provide
appellant notice of its finding that an offered position is suitable and give him an opportunity to
accept or provide reasons for declining the position.11 The Office properly followed its
procedural requirements in this case. By letter dated February 15, 2005, the Office advised
appellant that a partially disabled employee who refused suitable work was not entitled to
compensation, that the offered position had been found suitable, and allotted him 30 days to
either accept or provide reasons for refusing the position.12 He refused the position on March 15,
2005, asserting that he had received inadequate medical care. Appellant stated that he would not
return to work until he had “received the medical services needed to improve my injury.” He
further asserted that he risked further injury if he returned to work. However, the Board notes
that fear of future injury is not compensable under the Act.13 Further, as noted, the issue of
whether an employee has the physical ability to perform a modified position offered by the
employing establishment is primarily a medical question that must be resolved by medical
evidence.
On April 7, 2005 the Office informed appellant that his reason for declining the limitedduty assignment was unacceptable. The Office concluded that appellant refused to return to
suitable employment despite his treating physician’s opinion that he was capable of working full
time in a light-duty assignment. The Office provided appellant 15 days to accept the position
without penalty or provide an acceptable reason for refusing to do so before all entitlement to
wage-loss compensation was terminated. Appellant did not accept the offered position nor did
he submit any medical evidence to show that the offered position was not medically suitable.14
Furthermore, upon remand following the Board’s November 1, 2005 order, the Office confirmed
with the employing establishment that the offered job remained available.
The Board finds that the Office met its burden of proof to terminate appellant’s
entitlement to wage-loss compensation effective August 23, 2006. Thereafter, the burden shifted
to appellant to show that his refusal of the offered position was justified.15 However, as noted,
appellant submitted no medical evidence supporting that he was incapable of performing the
duties of the offered position.

11

See Maggie L. Moore, supra note 7.

12

See Bruce Sanborn, 49 ECAB 176 (1997).

13

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that
appellant’s fear of a recurrence of disability upon return to work is not a basis for compensation).
14

See Les Rich, 54 ECAB 290 (2003).

15

See Ronald M. Jones, 52 ECAB 190 (2000).

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CONCLUSION
The Board finds that the Office properly terminated appellant’s entitlement to
compensation on the grounds that appellant refused an offer of suitable work.16
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

16

The Office did not reissue its April 11, 2005 decision or otherwise readjudicate the claimed periods of wageloss compensation that were denied in the April 11, 2005 decision, all of which predated the August 23, 2006
effective date of the termination of wage-loss benefits affirmed herein. Consequently, these periods of claimed
wage loss are not before the Board in the present appeal. 20 C.F.R. § 501.2(c). However, the Board notes that its
November 1, 2005 order remanding case specifically directed the Office to issue an appropriate decision to fully
protect appellant’s appeal rights. The Board notes that its determinations are binding upon the Office and must, of
necessity, be so accepted and acted upon by the Director of the Office. Otherwise, there could be no finality of
decisions and the whole appeals procedure would be nullified and questions would remain moot. See Paul Raymond
Kuyoth, 27 ECAB 498, 503-04 (1976); Anthony Greco, 3 ECAB 84, 85 (1949). In view of this, the Office is required
to complete the actions directed by the Board in its prior order and issue an appropriate merit decision on the issue
of appellant’s entitlement to wage-loss compensation for the periods specifically claimed and originally adjudicated
in the Office’s April 11, 2005 decision.

7


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

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

Docket No. 10-1862
Issued: May 11, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant, through counsel, filed a timely appeal from a June 1, 2010
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective December 16, 2009 on the grounds that she had no
residuals of the accepted lumbar sprain; and (2) whether appellant established that her claim
should be expanded to include lumbar radiculopathy due to the accepted employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 30, 2008 appellant, then a 53-year-old mail processor, filed an occupational
disease claim alleging that she sustained a lower back injury as a result of employment activities.
In a September 18, 2008 report, Dr. Michael S. Than, a Board-certified family practitioner, noted
that her work activities included lots of “pulling, pushing, manual labor.” He diagnosed lower
back strain, which he attributed to appellant’s job duties. In an October 22, 2008 report,
Dr. Victoria M. Wakeley, a Board-certified family practitioner, related appellant’s complaints of
a tingling sensation in the bilateral anterior thighs and lower back pain, which worsened with
lifting at work. On October 24, 2008 she diagnosed lower back pain and recommended
restrictions to appellant’s physical activity.
On November 13, 2008 the Office accepted that appellant sustained an employmentrelated lumbar sprain.2 On December 24, 2008 Dr. Wakeley diagnosed lumbar radiculopathy
and recommended modified activity until January 21, 2009.
Appellant was treated by Dr. John Barchilon, a physician specializing in occupational
medicine. On January 26, 2009 Dr. Barchilon reported her complaints of low back pain, tingling
and numbness of both legs. Appellant had a prior work-related low back injury in October 2007.
On September 4, 2008 she felt sudden low back pain while lifting a tray full of mail at work.
Dr. Barchilon diagnosed lumbar strain, lumbar radiculopathy and lumbar degenerative joint
disease (DJD), not work related. He opined that “the injury is work related and should be
covered under the workers’ compensation guidelines for compensability.” Dr. Barchilon
released appellant to return to modified duty with restrictions.
On June 16, 2009 Dr. Barchilon related appellant’s complaints of intermittent tingling in
her right leg. He diagnosed lumbar radiculopathy and lumbar DJD, not work related.
Dr. Barchilon reviewed the results of an April 25, 2009 magnetic resonance imaging (MRI) scan
of the lumbar spine, which he described as “normal.” A recent electromyogram (EMG) showed
no electromyographic evidence of right or left lumbar motor radiculopathy. Dr. Barchilon stated
that appellant was definitely having paresthesia [symptoms] of a fairly persistent nature,” noting
that “EMR is not 100 percent sensitive or specific.”
On August 24, 2009 Dr. Barchilon reported that appellant was experiencing tingling
down both legs and constant pressure in the low back. He diagnosed lumbar radiculopathy,
lumbar DJD and lumbar strain, resolved and recommended permanent work restrictions,
including no repetitive lifting over 10 pounds, no repetitive bending, climbing, or twisting and no
repetitive climbing of ladders.
The Office referred appellant to Dr. G.B. Ha’ Eri, a Board-certified orthopedic surgeon,
for examination and an opinion as to whether she had any residuals from the accepted injury and,
if so, whether she was disabled as a result of remaining residuals. In an October 23, 2009 report,
Dr. Ha’ Eri reviewed the history of injury and noted a prior history of a back injury in 2007. He
also reviewed the statement of accepted facts and medical record. Dr. Ha’ Eri noted appellant’s
2

Appellant’s October 10, 1999 traumatic injury claim was accepted for sprain of the knee and leg. (File No.
xxxxxx453). Her October 16, 2007 traumatic injury claim was accepted for lumbar strain. (File No. xxxxxx074).

2

complaint of intermittent slight lower back pain brought on by physical activity. Examination of
the lumbar spine demonstrated no paravertebral muscle spasm or tenderness. Visual inspection
revealed normal lumbar lordosis. On range of motion testing, extension was to 20 degrees,
lateral bending was to 30 degrees bilaterally, lateral rotation was to 40 degrees bilaterally.
Straight leg raising was to 90 degrees bilaterally. Dr. Ha’ Eri reviewed diagnostic test results,
noting a normal MRI scan on April 25, 2009, no significant abnormality revealed in a March 30,
2009 EMG of the lower extremity and mild degenerative changes on an October 23, 2008 x-ray
of the lumbar spine. By history, he diagnosed lumbar sprain, which he found had resolved,
noting that there were no objective clinical findings to support the persistence of a diagnosis of
lumbar sprain. Dr. Ha’ Eri found that appellant was not disabled, but could work full time in her
date-of-injury position without restrictions.
On November 17, 2009 the Office proposed to terminate appellant’s compensation and
medical benefits, finding that the weight of medical opinion was represented by the report of
Dr. Ha’ Eri. Appellant no longer had residuals or disability due to the accepted employment
injury and could return to her regular job. She was given 30 days to respond to the proposed
termination.
In a December 19, 2009 decision, the Office terminated appellant’s compensation
benefits effective December 16, 2009.
On January 6, 2010 appellant, through her attorney, requested a telephonic conference.
She submitted a December 7, 2009 report from Dr. Barchilon responding to the Office’s
preliminary finding that her accepted condition had resolved. Dr. Barchilon stated that only the
soft tissue component of the injury had resolved, and that the “much more serious bone-joint
nerve radicle component, i.e., her radiculopathy, persisted at the time of the most recent
examination.” On February 1, 2010 he reiterated his opinion that appellant continued to
experience residuals in the form of radiculopathy. Dr. Barchilon stated that she had “permanent
work restrictions caused by her workplace injury of September 4, 2008.”
During a March 10, 2010 telephonic hearing, appellant’s representative argued that her
case should be upgraded to accept the condition of lumbar radiculopathy, which he contended
was a continuing residual of the accepted injury. Counsel further argued that the second opinion
physician should have addressed the radiculopathy diagnosis.
In a June 1, 2010 decision, an Office hearing representative affirmed the December 19,
2009 decision, finding that the work-related lumbar strain had resolved by August 24, 2009 and
objective clinical evidence of record did not support a more serious diagnosis.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3

3

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

3

The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.6
ANALYSIS -- ISSUE 1
The weight of the medical evidence establishes that appellant’s accepted lumbar sprain
had resolved by December 16, 2009. The Board finds, therefore, that the Office met its burden
of proof to terminate appellant’s compensation and medical benefits as of December 16, 2009 for
the accepted lumbar sprain condition.
On August 24, 2009 Dr. Barchilon reported that appellant was experiencing tingling
down both legs and constant pressure in the low back. He diagnosed lumbar radiculopathy and
lumbar DJD, noting that appellant’s lumbar strain had resolved.
In an October 23, 2009 second opinion report, Dr. Ha’ Eri reviewed the history of injury
and noted a prior back injury in 2007. He also reviewed the statement of accepted facts and
medical record. Dr. Ha’ Eri noted appellant’s complaint of intermittent slight lower back pain
brought on by physical activity. Examination of the lumbar spine demonstrated no paravertebral
muscle spasm or tenderness. Visual inspection revealed normal lumbar lordosis. Range of
motion testing was within normal limits. Dr. Ha’ Eri reviewed diagnostic test results, noting a
normal MRI scan on April 25, 2009, no significant abnormality in a March 30, 2009 EMG of the
lower extremity and mild degenerative changes on an October 23, 2008 x-ray of the lumbar
spine. Based on the fact that there were no objective findings to support the persistence of a
diagnosis of lumbar sprain, he opined that the accepted lumbar sprain condition had resolved.
Dr. Ha’ Eri found that appellant was not disabled, but could work full time in her date-of-injury
position without restrictions.
Responding to the Office’s preliminary finding that appellant’s accepted condition had
resolved, Dr. Barchilon stated that only the soft tissue component of the injury had resolved, and
that the “much more serious bone-joint nerve radicle component, i.e., her radiculopathy,
persisted at the time of his most recent examination on August 24, 2009. He stated that she had
permanent work restrictions caused by her workplace injury of September 4, 2008. The Board
notes, however, that the condition of radiculopathy was never accepted by the Office.
Dr. Barchilon did not provide any explanation, based on a thorough examination, to support his
opinion of continuing disability due to the accepted lumbar sprain. In fact, he agreed that the
accepted condition had resolved.
4

Id.

5

T.P., 58 ECAB 524 (2007).

6

I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

4

Rationalized medical opinion evidence is medical evidence which includes a physician’s
opinion addressing the causal relationship between a claimant’s diagnosed condition and the
accepted employment injury. To be probative, the opinion of a physician must be based on a
complete factual and medical background of the employee, 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 employment factor accepted in the case.7 There is no
rationalized medical evidence from Dr. Barchilon, or any other physician, explaining how the
accepted lumbar sprain caused or contributed to any continuing disability. His reports are
insufficient to form a conflict with the well-reasoned opinion of Dr. Ha’ Eri.
The weight of the medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.8 The Board finds that the weight of the medical evidence
rests with the October 23, 2009 report of Dr. Ha’ Eri. He provided a comprehensive evaluation
based on his review of the statement of accepted facts and medical record, the history of injury,
appellant’s complaints of continued pain in multiple areas, and findings on physical examination.
Dr. Ha’ Eri advised that appellant had no residuals of her accepted lumbar sprain. Appellant was
found capable of returning to her usual job of mail processor without restriction. The Board
finds that the Office properly terminated her compensation and medical benefits effective
December 16, 2009 relating to the accepted lumbar sprain.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.9 To establish a causal relationship between the
condition claimed, as well as any attendant disability, and the employment event or incident, an
employee must submit rationalized medical evidence based on a complete medical and factual
background supporting such a causal relationship.10 Causal relationship is a medical issue, and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.11 Rationalized medical evidence is evidence which includes a physician’s rationalized
medical opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by rationalized medical evidence explaining
the nature of the relationship between the diagnosed condition and the specific employment
factors identified by the claimant.12 Neither the fact that a disease or condition manifests itself
7

Sedi L. Graham, 57 ECAB 494 (2006).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); C.B., Docket No. 08-1583 (issued December 9, 2008).

9

Jaja K. Asaramo, supra note 3.

10

Jennifer Atkerson, 55 ECAB 317 (2004).

11

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

12

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

5

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.13
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for a decision as to whether appellant’s
claim should be accepted for lumbar radiculopathy due to the employment injury.
The Office accepted appellant’s claim for lumbar sprain. Dr. Barchilon, however, also
diagnosed lumbar radiculopathy, which he opined was work related. He reported appellant’s
complaints of intermittent tingling down both legs and constant pressure in the low back.
Although results of diagnostic testing were normal, Dr. Barchilon stated that appellant was
“definitely having paresthesia [symptoms] of a fairly persistent nature.” On December 7, 2009
he opined that, although the soft tissue component of the accepted injury had resolved, the much
more serious bone-joint nerve radicle component, i.e., her radiculopathy, persisted.” On
February 1, 2010 Dr. Barchilon provided permanent work restrictions, which he opined were
necessitated by her accepted injury.
The Board finds that the medical evidence of record generally supports a causal
relationship between appellant’s diagnosed lumbar radiculopathy and the accepted injury.
Although Dr. Barchilon did not provide a fully-rationalized report sufficient to establish
appellant’s claim, his opinion stands uncontroverted in the record and is, therefore, sufficient to
require further development of the case by the Office.14
The Office sought an opinion from Dr. Ha’ Eri as to whether appellant had any residuals
from the accepted injury. Dr. Ha’ Eri opined that the lumbar sprain had resolved. He did not,
however, address appellant’s diagnosed lumbar radiculopathy or Dr. Barchilon’s opinion that the
radicular condition was causally related to the accepted injury. Therefore, Dr. Ha’ Eri’s report
requires clarification and elaboration. Once the Office undertook to develop the medical
evidence further by obtaining a second opinion, it had the responsibility to do so in a proper
manner.15 Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility to see that justice is done.16 Accordingly, the Board will remand
the case to the Office for further development regarding Dr. Ha’ Eri’s opinion. The Office
should prepare a statement of accepted facts and request that Dr. Ha’ Eri submit a supplemental
report. If Dr. Ha’ Eri is unable or unwilling to provide such a report, the case should be referred
to an appropriate specialist to obtain a rationalized opinion as to whether appellant developed a
lumbar radiculopathy condition causally related to her accepted injury. Following this and any
other development deemed necessary, the Office shall issue an appropriate decision in the case.
13

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

14

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

15

Melvin James, 55 ECAB 406 (2004).

16

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

6

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation and benefits effective December 16, 2009 related to the accepted lumbar sprain
condition. The case is not in posture for a decision as to whether appellant has established that
her claim should be expanded to include lumbar radiculopathy due to the accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs is affirmed regarding the termination of medical and compensation
benefits relating to the accepted condition of lumbar sprain. The case is remanded to the Office
for further development on the issue of whether the claim should be expanded to include the
condition of lumbar radiculopathy.
Issued: May 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
J.B., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Boston, MA, Employer
)
___________________________________________ )
Appearances:
Stephen Murray, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1789
Issued: January 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 31, 2006 appellant filed a timely appeal of a June 22, 2006 decision by an Office
of Workers’ Compensation Programs’ hearing representative who affirmed a June 28, 2005
decision denying his claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability beginning May 16, 2005 causally related to his May 25, 2004 employment injury.
FACTUAL HISTORY
On May 27, 2004 appellant, then a 40-year-old building maintenance custodian, filed a
traumatic injury claim alleging that, on May 25, 2004, he sustained an injury to his back while
stacking empty trays in the performance of duty. He stopped work on May 27, 2004 and
returned on June 1, 2004. The Office accepted the claim for lumbosacral strain.1 Appellant
received appropriate compensation benefits.
1

The record reflects that appellant has several claims which include an accepted claim for a thoracic lumbar strain
on September 15, 1989 and an accepted claim for a lumbar strain on November 30, 1992.

In a June 8, 2004 report, appellant’s treating physician, Dr. George Whitelaw, a Boardcertified orthopedic surgeon, noted appellant’s history of injury and treatment. He advised that a
previous magnetic resonance imaging (MRI) scan from October 11, 2002 revealed a disc
extrusion into the left lateral recess with impingement on the left L5 nerve root, mild central
stenosis and degenerative changes. Dr. Whitelaw opined that appellant had lumbar disc disease
which was exacerbated by the May 25, 2004 employment injury.
In a June 28, 2004 report, Dr. Whitelaw noted that appellant was “making good progress”
and was scheduled for physical therapy. He indicated that he would determine if appellant was
ready to return to light-duty work after a follow-up evaluation in two weeks. Dr. Whitelaw
continued to submit reports. On August 18, 2004 he further advised that appellant needed to
reduce his weight. In an October 25, 2004 report, Dr. Whitelaw advised that appellant needed
physical therapy. He submitted additional treatment notes and recommend therapy; however, he
did not recommend that appellant return to work.
On November 23, 2004 the Office referred appellant for a second opinion, together with a
statement of accepted facts, a set of questions and the medical record, to Dr. David J. Cohen,
Board-certified in internal medicine.
In a December 23, 2004 report, Dr. Cohen noted appellant’s history of injury and
treatment. He noted that appellant was morbidly obese and that this was a source of his
problems. Dr. Cohen conducted a physical examination and advised that his weight limited his
agility. He noted that the neurological examination failed to reveal any objective signs of
lumbosacral radiculopathy. Dr. Cohen advised that appellant’s “preexisting condition was
limited [by] his ability to respond to conservative therapy in view of his massive obesity.” He
noted that appellant claimed that his back pain was easily activated, but that he did not appear to
be suffering during his examination. Dr. Cohen opined that appellant could return to work as a
custodian if he did not do a lot of bending and was allowed to move about freely after sitting or
standing for any prolonged periods. He opined that appellant’s morbid obesity was the source of
his symptoms.
On January 13, 2005 the Office referred appellant together with a statement of accepted
facts and the medical record to Dr. Gerald F. Winkler, a Board-certified neurologist, for an
impartial medical evaluation to resolve the conflict in opinion between appellant’s physician,
Dr. Whitelaw, who opined that appellant could not return to work and Dr. Cohen, the second
opinion physician, who opined that appellant could return to work with some restrictions.
In a February 22, 2005 report, Dr. Winkler noted appellant’s history of injury and
treatment, which included an “exacerbation of back and leg pain while bending over.” He noted
that as far back as 1993, diagnostic reports revealed a disc protrusion at L5-S1 and a disc
extrusion at L4-5 pressing on the left L5 nerve root. Dr. Winkler noted that appellant’s current
activities included selling raffle tickets, using the computer and watching television. Appellant
related that he stayed up all day, could tolerate driving for up to an hour, could sit long enough to
watch a movie, and could walk up to half a mile. Dr. Winkler conducted an examination and
advised that there were no abnormalities on neurologic examination. He opined that it was “not
possible to determine whether [appellant] has returned to pain level that he was experiencing

2

before May 25, 2004” because no medical records prior to that date were submitted. Dr. Winkler
concluded that appellant was capable of “carrying out gainful activity whose exertional
requirements are similar to those of his reported current level of activity.” He opined that
appellant could do sedentary to light-level work with no lifting over 10 to 15 pounds, no bending
or twisting and the opportunity to sit or stand as necessary. Dr. Winkler completed a work
capacity evaluation and advised that appellant could return to work provided it was restricted to
light sitting/standing work for eight hours a day with restrictions.
In a report dated February 24, 2005, Dr. John P. Latchaw, a Board-certified neurological
surgeon and treating physician, noted appellant’s history of injury and treatment. He conducted
a physical examination and advised that appellant might benefit from lumbar epidural steroid
injections. However, it was unlikely that the injections would be sufficient to return appellant to
work.
By letters dated March 8 and 10, 2005, the employing establishment provided appellant
with a limited-duty job offer in accordance with the medical restrictions provided by Dr. Winkler
on March 10, 2005. The position, was entitled “modified building maintenance custodian” and
included duties which consisted of dusting and cleaning carrier cases, moving and organizing the
custodial area, answering telephones and other duties (within restrictions) assigned by
manager/supervisor. The physical requirements included light-level work within restrictions, no
pushing, pulling, or lifting over 10 to 15 pounds, no twisting, no bending/stopping, no squatting,
no kneeling, no climbing and changing positions at will, with sitting and standing as necessary.
By letter dated March 17, 2005, the Office advised appellant that the modified building
maintenance custodian position had been found to be suitable to his capabilities and was
currently available. It indicated that the impartial medical examiner, Dr. Winkler had examined
appellant on February 22, 2005 and provided work restrictions that were consistent with the
offered position. Appellant was advised that he should accept the position or provide an
explanation for refusing the position within 30 days. The Office informed appellant that, if he
failed to accept the offered position and failed to demonstrate that the failure was justified, his
compensation would be terminated. Appellant subsequently accepted the modified position and
returned to full-time light-duty work on March 22, 2005.
The Office authorized a lumbar myelogram with computerized tomography (CT) scan
and electromyography (EMG) scan on April 14, 2005. This was performed by Dr. Latchaw on
May 12, 2005.
In an April 25, 2005 report, Dr. Whitelaw noted that appellant had gastric bypass surgery
in March and lost 40 pounds. He advised that appellant was already back to light duty and noted
that it was “a bit of a struggle for him. Appellant is having to take a fair amount of pain
medication to get through the day, but he seems to be making it.” Dr. Whitelaw advised that he
would have appellant continue with his work-up with Dr. Latchaw and proceed from there.
In a May 18, 2005 report, Dr. Latchaw determined that appellant had postoperative
fibrosis, a well-known surgical complication from foraminotomies and lumbar disc excision. He
opined that appellant was totally disabled for heavy lifting and the significant physical activity of

3

his job. In a May 19, 2005 report, Dr. Latchaw diagnosed L4-5 disc herniation and checked the
box “yes” that he believed the condition was caused or aggravated by an employment activity.
He advised that appellant could not return to work and opined that appellant needed to lose 100
pounds prior to lumbar surgery.
On May 20, 2005 appellant alleged a recurrence of disability commencing
May 13, 2005.2 He alleged that “[s]ince I returned to work, I have been in constant pain.”
Appellant stated that the “old injury never went away.” He noted that, after a recent follow-up
medical examination, he was advised not to work.
On May 24, 2005 the employing establishment informed the Office that appellant had
been back to work for two months and was working within his “suitable limited-duty
assignment.”
By letter dated May 27, 2005, the Office advised appellant that it had received his claim
for a recurrence of disability. It requested that appellant provide additional information to
support his claim and allotted him 30 days to submit the requested information.
By decision dated June 28, 2005, the Office denied appellant’s claim for compensation.
It found that the medical evidence was insufficient to establish that he was unable to perform the
restricted-duty work to which he was assigned because of a material worsening of the accepted
condition.
On July 10, 2005 appellant requested a hearing, which was held on March 29, 2006.
In a July 11, 2005 report, Dr. Whitelaw advised that appellant was not capable of
working because he had to lie down for two hours to alleviate pain. He opined that appellant
remained disabled from his work as a custodian or answering telephones because he had to lay
down for two hours every hour or two.
In an October 4, 2005 report, Dr. Latchaw determined that the diagnostic myelography
performed in May 2005 revealed a neurosurgically operable lesion. He noted that appellant
wished to consider surgery and would continue losing weight. Dr. Latchaw advised that
appellant was temporarily disabled for heavy lifting and significant physical activity from his job
and opined that his current condition was directly related to the work-related injury of
May 25, 2004. He continued to treat appellant and opine that he was disabled.
The Office received a March 29, 2006 statement from appellant which described the
circumstances surrounding his injury. In a May 9, 2006 statement, the employing establishment
questioned whether appellant was disabled due to his work-related injury or due to his weight
condition.
In a June 22, 2006 decision, the Office hearing representative affirmed the June 28, 2005
decision.
2

Appellant filled in the date of May 16, 2005 as the date his pay stopped after the recurrence.

4

LEGAL PRECEDENT
Section 10.5(x) of the Office’s regulations provides that a recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee 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 to show that he or 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 job requirements.4
Causal relationship is a medical issue,5 and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence. This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.6 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
ANALYSIS
The Office accepted that appellant sustained a lumbosacral strain in the performance of
duty on May 25, 2004.
Appellant subsequently alleged recurrence of total disability
commencing on May 16, 2005. On May 27, 2005 the Office advised appellant of the type of
medical and factual evidence needed to establish his claim for a recurrence of disability.
However, appellant did not submit medical reports which contained a rationalized opinion from a
physician who, on the basis of a complete and accurate factual and medical history, concluded
that appellant’s disability commencing on or after May 16, 2005 was causally related to the
employment injury and supported that conclusion with sound medical reasoning.8 The Board
also notes that there is no evidence showing a change in the nature and extent of the light-duty
job requirements.
3

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

4

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

6

Duane B. Harris, 49 ECAB 170, 173 (1997).

7

Gary L. Fowler, 45 ECAB 365, 371 (1994).

8

See Helen K. Holt, 50 ECAB 279 (1999).

5

Appellant submitted several reports from Dr. Latchaw. In a May 18, 2005 report,
Dr. Latchaw determined that appellant had postoperative fibrosis, which he explained was a
well-known surgical complication from foraminotomies and lumbar disc excision. He further
opined that appellant was totally disabled from heavy lifting and significant physical activity
from his job. However, appellant’s claim was accepted for a lumbosacral strain. Furthermore,
appellant had a preexisting problems including morbid obesity. Dr. Latchaw did not provide
adequate medical rationale to explain why any such disability would be necessitated by the
accepted injury.9 In a May 19, 2005 report, he diagnosed an L4-5 disc herniation and checked
the box “yes” that he believed the condition was caused or aggravated by an employment
activity. Dr. Latchaw advised that appellant could not return to work and opined that appellant
needed to lose 100 pounds prior to lumbar surgery. However, this report is of diminished
probative value. The Board has held that the checking of a box “yes” on a form report, without
additional explanation or rationale, is insufficient to establish causal relationship.10 Additionally,
Dr. Latchaw did not explain how appellant’s condition had worsened such that he was no longer
able to perform his limited-duty work during this time frame.11 Without additional explanation
or rationale, this report is insufficient to establish causal relationship or show that appellant’s
condition has worsened such that he was no longer able to perform his limited-duty position.
Dr. Whitelaw advised that appellant remained disabled from his work as a custodian or
answering telephones because he had to lay down for two hours every hour or two to alleviate
his pain. However, he failed to support his opinion with objective findings.12 The Board notes
that the modified position specified duties within his restrictions, which were prescribed by the
impartial medical examiner, and which included that appellant could move about freely after
sitting or standing for any prolonged periods. Dr. Whitelaw did not provide any objective
findings to explain why appellant now had to lie down every two hours other than to say it was
due to pain. His opinion is of limited probative value and is insufficient to establish causal
relationship or show that appellant’s condition has worsened such that he was no longer able to
perform his limited-duty position.
In an October 4, 2005 report, Dr. Latchaw determined that appellant had a
neurosurgically operable lesion and opined that appellant was temporarily disabled for heavy
lifting and significant physical activity from his job. He opined that appellant’s current condition
was directly related to the work-related injury of May 25, 2004. The Board notes that the
accepted condition was a lumbosacral strain and Dr. Latchaw did not provide a reasoned opinion
9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
10

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

11

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

See Laurie S. Swanson, 53 ECAB 517 (2002) (where a physician’s report does not indicate an objective
worsening of a claimant’s condition, and the physician’s statements regarding a claimant’s ability to work consist
primarily of a repetition of the claimant’s complaints that she hurt too much to work, this is not a basis for payment
of compensation).

6

on causal relationship. In the absence of a medical report providing a diagnosed condition and a
reasoned opinion on causal relationship with the employment incident, appellant did not meet his
burden of proof.13 While Dr. Latchaw indicated that appellant could not do heavy lifting or
significant physical activity, he did not address the duties of the modified position. The Board
notes that the modified position did not include any heavy lifting, but rather was comprised of
modified activities not to exceed lifting over 10 to 15 pounds. Dr. Latchaw’s opinion is of
diminished probative value.
Consequently, appellant did not meet his burden of proof to establish a recurrence of
disability beginning May 16, 2005 causally related to the May 25, 2004 employment injury.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability beginning May 16, 2005 causally related to the May 25, 2004 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 22, 2006 decision of the Office of
Workers’ Compensation Programs is hereby affirmed.
Issued: January 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

13

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-466
Issued: September 21, 2010

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 December 8, 2009 appellant filed a timely appeal from an October 21, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that his left rotator cuff condition was caused
by his federal employment.
FACTUAL HISTORY
On July 3, 2008 appellant, a 60-year-old city letter carrier, filed an occupational disease
claim (Form CA-2) for a left shoulder ruptured rotator cuff that he attributed to sorting mail and
delivering parcels. He first recognized his condition and realized it was caused by his federal
employment on March 26, 2007. On July 28, 2008 appellant described the employment duties
that he deemed responsible for his condition. He noted that his delivery route required him to

carry mail on his left arm at a 45-degree angle for six hours a day. Appellant submitted a
number of progress notes.
On July 11, 2006 Dr. Gregory Ardoin, a Board-certified internist, stated that appellant
was a right-hand dominant postal worker who had complaints of right shoulder pain. He noted
that a May 23, 2006 magnetic resonance imaging (MRI) scan showed partial tear of the supra
spinatous. Dr. Ardoin diagnosed “rotator cuff syndrome.”
Appellant submitted a note dated March 26, 2007 in which Dr. Jennifer McCallum, a
Board-certified internist, excused him from work for 48 hours. Dr. McCallum requested that
appellant collate mail so as to minimize use of his left shoulder. She noted that studies of
appellant’s left shoulder were normal and diagnosed rotator cuff tendinitis and bursitis.
On August 15, 2007 Dr. Rachel L. Wayne, a Board-certified rheumatologist, reported
that appellant was treated for left shoulder pain, with a diagnosis of rotator cuff
bursitis/tendinitis. She noted that appellant was a letter carrier and that shoulder pain bothered
him at work.
On October 24, 2007 Dr. Adam Woodruff, a Board-certified internist, listed findings on
examination and diagnosed “recurrent [left] subacromial bursitis likely related to occupation.”
He noted that appellant did work that required external rotation of the left shoulder to get mail
from his truck to the mailbox.
On May 1, 2008 Dr. Hugo Jasin, a Board-certified internist, presented findings on
examination and diagnosed a supraspinatus tear.
On June 4, 2008 Dr. Joe W. Crow, a Board-certified orthopedic surgeon, reported that
appellant was seen for left shoulder pain. He noted that appellant had experienced pain for
“about a year, not following any known injury.” Dr. Crow diagnosed a rotator cuff tear with
impingement, subdeltoid bursitis and acromioclavicular arthritis.
On March 31, 2008 Dr. Eleanor Lipsmeyer, a Board-certified internist, set forth findings
on examination and diagnosed a left shoulder supraspinatus tear.
Appellant submitted notes from the Veterans Administration (VA) hospital that
diagnosed, rotator cuff bursitis and tendinitis and reports from physical therapists.
By decision dated August 14, 2008, the Office denied the claim finding that the medical
evidence did not establish that employment factors caused the claimed shoulder condition.
On August 22, 2008 appellant requested an oral hearing.
On February 26, 2009 Dr. Chris Hardesty, a general surgeon, reported that x-rays
revealed no evidence of a lose body or any arthritic changes. He wrote:
“His daily work, including lifting bags that are 10 [to] 25 pounds, doing overhead
activities, including moving packages, and reaching behind him in his mail truck

2

are consistent with development of a significant degenerative rotator cuff tear that
may be difficult to manage as he recovers and continues his activities.”
A hearing was held on August 4, 2009. Appellant testified concerning his employment
history, duties and explained how his work caused his medical condition.
By decision dated October 21, 2009, an Office hearing representative affirmed the
August 14, 2009 decision, finding that the medical evidence did not establish that appellant’s
shoulder condition was causally related to the accepted work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.
ANALYSIS
Appellant identified carrying mail on his left arm at a 45-degree angle for six hours a day
as well as sorting and delivering mail as the employment factors he believed responsible for his
condition. His burden is to establish that these employment factors caused his claimed shoulder
condition. Causal relationship is a medical issue that can only be determined by probative
medical opinion evidence. The Board finds appellant did not submit sufficient medical evidence
to support that he sustained an injury causally related to his federal employment.
The medical opinion evidence of record consists of reports from Drs. Ardoin, Crow,
Jasin, Lipsmeyer, McCallum, Woodruff, all doctors at the VA hospital. While these physicians
offered diagnoses of appellant’s left shoulder condition, primarily subacromial bursitis/tendinitis,
have little probative value on the issue of causal relationship because they lack an opinion that
explains how the identified employment factors caused the conditions they diagnosed.7 While
these reports repeated appellant’s allegations of pain while performing his left carrier duties, they
offered no rationalized medical opinion actually explaining how appellant’s job duties would
have caused the diagnosed condition. Neither the fact that appellant’s claimed condition became
apparent during a period of employment nor his belief that his condition was aggravated by his
employment is sufficient to establish causal relationship.8
Dr. Hardesty did attempt to provide a very general medical opinion regarding causal
relationship. He opined that appellant’s employment duties were “consistent with development
of a significant degenerative rotator cuff tear.” Dr. Woodruff diagnosed “recurrent [left]
subacromial bursitis likely related to occupation.” He did not explain, however, with supporting
medical rationale, how appellant’s specific work duty would have physiologically caused the
diagnosed condition. Because none of the physicians of record supported their conclusion with
any semblance of medical rationale, their opinions are not sufficiently rationalized.
Consequently, this evidence does not establish the required causal relationship.
Appellant submitted reports from physical and occupational therapists. Section
8101(2) of the Act provides that the term “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. As physical and occupational therapists are not
physicians as defined under the Act, their opinions regarding diagnosis and causal relationship
are of no probative medical value.9

7

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
8

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

9

See Roy L. Humphrey, 57 ECAB 238 (2005).

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An award of compensation may not be based on surmise, conjecture or speculation.10
The fact that a condition manifests itself or worsens during a period of employment11 or that
work activities produce symptoms revelatory of an underlying condition12 does not raise an
inference of causal relationship between a claimed condition and identified employment factors.
Appellant has not submitted medical opinion evidence that adequately explains how the
identified employment factors caused or aggravated his shoulder condition. The Board finds
appellant has not established causal relationship.
CONCLUSION
The Board finds appellant has not established that he sustained a left rotator cuff injury
causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2010
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

Edgar G. Maiscott, 4 ECAB 558 (1952).

11

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

12

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 16-0178
Issued: April 1, 2016

Case Submitted on the Record

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

JURISDICTION
On November 10, 2015 appellant filed a timely appeal from an October 15, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish left foot
conditions causally related to a January 10, 2015 employment incident.
On appeal, appellant contends that he submitted sufficient evidence to establish that his
coworker ran over his heel with a hamper at work and caused a heel contusion for which he is
seeking compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 2015 appellant, a 56-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained an injury on that day as a result of being hit by a hamper.
He stated that he was pushing his hamper at work when a coworker, who was behind him,
accidentally pushed another hamper into his left heel. In an undated narrative statement,
appellant further explained that his coworker rolled his hamper into him where his left heel got
caught under the hamper causing a lot of pain. He stopped work on the date of injury.
In a January 12, 2015 witness statement, appellant’s coworker stated that on January 10,
2015 appellant was in front of him and they stopped. When they started moving again,
appellant’s heel clipped the front of his hamper.
In a January 10, 2015 report, Dr. Carlos Garcia, an emergency and family medicine
physician, diagnosed contusion of bone and a heel contusion. He indicated that appellant’s left
foot got caught under a heavy cart that morning. Dr. Garcia opined that appellant’s injury
resulted in a contusion which was a painful lesion caused by blunt force trauma that usually led
to a bruise of the bony structure. He indicated that appellant should not work for a few days and
that he should see a podiatrist. In a January 14, 2015 duty status report (Form CA-17),
Dr. Garcia advised that appellant was totally disabled.
In a January 26, 2015 letter, OWCP notified appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant provided a January 14, 2015 report from Dr. Sean O’Meara, a podiatric
surgeon, who noted that appellant presented with right heel pain and reported pain since an
injury which was located on the right heel. He reported tenderness and pain on the Achilles
insertion along the posterior heel and plantar heel, which was affecting his gait and inability to
perform his job duties. Dr. O’Meara diagnosed plantar fascial fibromatosis, Achilles tendinitis,
closed fracture of calcaneus, arthralgia of the ankle and/or foot, and pain in limb. He prescribed
a pneumatic walking boot placed on the left lower extremity and advised that appellant was
totally disabled for work due to his acute injury. On January 28, 2015 Dr. O’Meara indicated
that appellant wore the boot that helped, but he was still with discomfort and advised that he
would continue conservative therapy.
In a January 28, 2015 duty status report (Form CA-17), Dr. O’Meara referenced the
history of injury and advised that appellant was totally disabled until February 9, 2015 at which
time he would be capable of full-time, full-duty work without restrictions.
By decision dated March 17, 2015, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish a causal relationship between his diagnosed conditions and
the January 10, 2015 employment incident.
On July 22, 2015 appellant requested reconsideration and submitted a January 10, 2015
duty status report (Form CA-17) from Dr. Garcia who listed a diagnosis of contusion of bone.

2

Dr. Garcia advised that appellant was totally disabled for work on January 12, 2015 and
indicated that a specialist would determine further restrictions as of January 13, 2015.2
By decision dated October 15, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether “fact of injury” has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he actually experienced the employment incident at the time, place, and
in the manner alleged. Second, the employee must submit sufficient evidence, generally only in
the form of medical evidence, to establish that the employment incident caused a personal injury.
An employee may establish that the employment incident occurred as alleged but fail to show
that his condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7

2

Appellant further submitted medical evidence dated July 13, 2015 regarding a lumbar injury, which is not
pertinent to the issue on appeal.
3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define 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. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

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ANALYSIS
OWCP has accepted that the employment incident of January 10, 2015 occurred at the
time, place, and in the manner alleged. The issue is whether appellant’s left foot conditions
resulted from the January 10, 2015 employment incident. The Board finds that appellant did not
meet his burden of proof to establish a causal relationship between the conditions for which
compensation is claimed and the employment incident.
In his reports, Dr. Garcia indicated that appellant’s left foot got caught under a heavy cart
at work on January 10, 2015 causing left heel pain and a diagnosis of contusion of bone. He
opined that appellant’s injury resulted in a contusion which was a painful lesion caused by blunt
force trauma that usually led to a bruise of the bony structure. The Board finds that Dr. Garcia
failed to provide sufficient medical rationale explaining the mechanism of how being struck by a
mail hamper on January 10, 2015 caused appellant’s diagnosed condition. Dr. Garcia indicated
that appellant’s condition occurred at work, but such generalized statements do not establish
causal relationship because they merely repeat appellant’s allegations and are unsupported by
adequate medical rationale explaining how his physical activity at work actually caused or
aggravated the diagnosed conditions.8 Dr. Garcia’s opinion was based, in part, on temporal
correlation. The Board has held that neither the mere fact that a disease or condition manifests
itself during a period of employment nor the belief that the disease or condition was caused or
aggravated by employment factors or incidents is sufficient to establish a causal relationship.9
Dr. Garcia did not otherwise sufficiently explain the reasons why diagnostic testing and
examination findings led him to conclude that the January 10, 2015 incident at work caused or
contributed to the diagnosed condition. Thus, the Board finds that the reports from Dr. Garcia
are insufficient to establish that appellant sustained an employment-related injury.
Dr. O’Meara diagnosed plantar fascial fibromatosis, Achilles tendinitis, closed fracture of
calcaneus, arthralgia of the ankle and/or foot, and pain in limb. On January 14, 2015 he noted
that appellant presented with right heel pain following a right heel injury. The Board finds that
Dr. O’Meara did not provide an accurate factual background as he indicated that appellant
sustained a work-related injury to his right heel rather than his left heel as claimed by appellant
and failed to clarify the inconsistencies in his reports. It is well established that medical reports
must be based on a complete and accurate factual and medical background and medical opinions
based on an incomplete or inaccurate history are of little probative value.10 No other reports
from Dr. O’Meara provided an accurate history and explained how the January 10, 2015 work
incident caused or contributed to a left foot condition. Thus, the Board finds that the reports
from Dr. O’Meara lack probative value and are insufficient to establish appellant’s claim.
On appeal, appellant contends that he submitted sufficient evidence to establish that his
coworker ran over his heel with a hamper at work and caused a heel contusion for which he is
seeking compensation. Based on the findings and reasons stated above, the Board finds
8

See K.W., Docket No. 10-98 (issued September 10, 2010).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

10

See L.M., Docket No. 15-1588 (issued December 16, 2015); Douglas M. McQuaid, 52 ECAB 382 (2001).

4

appellant’s argument is not substantiated. As appellant has not submitted any rationalized
medical evidence to support his allegation that he sustained a left heel injury causally related to
the January 10, 2015 employment incident, he has failed to meet his burden of proof to establish
a claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish left foot
conditions causally related to a January 10, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2016
Washington, DC

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

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

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

5