United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 19-1259
Issued: January 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 13, 2019 appellant filed a timely appeal from a December 12, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 12, 2017, as he no longer had
residuals or disability causally related to his accepted employment injuries; and (2) whether
appellant has met his burden of proof to establish continuing employment-related disability or
residuals, on or after November 12, 2017, due to the accepted employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 1989 appellant, then a 33-year-old distributor, was involved in a motor
vehicle accident when his postal vehicle was struck on the driver’s side while in the performance
of duty.2 OWCP accepted conditions of: sprain of left knee, medial collateral ligament; sprain of
neck, other synovitis and tenosynovitis, right; other tear of left medial meniscus of knee;
unspecified internal derangement of left knee; other affections of right shoulder region; right sprain
of shoulder and upper arm; and superior glenoid labrum lesion. Appellant lost time from work
due to intermittent medical treatment and surgical procedures approved by OWCP in April 1990,
December 1991, and October 1997 for the left knee and in September 2009 for the right shoulder.3
He stopped work on March 25, 2012 and has not returned. OWCP placed appellant on the periodic
rolls on March 10, 2013.
In a December 22, 2016 report, Dr. Susan Liu, a Board-certified physiatrist, indicated that
appellant’s diagnoses were persistent cervical strain, lumbar strain/radiculopathy with a
degenerative disc condition, status post right shoulder arthroscopy, and bilateral internal
derangement of the knees with a medial meniscal tear of the posterior horn of the left knee. She
noted that due to his work-related injuries he was retired on disability and that there was a
possibility of future left knee surgery.
On February 22, 2017 OWCP referred appellant, a statement of accepted facts (SOAF), a
list of questions, and the medical record to Dr. Matthew Drake, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine whether he continued to suffer residuals of
his accepted employment conditions. Dr. Drake completed a report on March 17, 2017 and opined
that appellant had no residuals of his employment injuries and that he could return to work with
no restrictions due to the occupational-related conditions. He indicated that appellant’s current
symptoms were related to preexisting cervical spine degenerative arthritis, preexisting bilateral
knee arthritis, and preexisting right shoulder rotator cuff tendinosis, which were related to his age,
but unrelated to the accepted employment injury of 1989. Dr. Drake further indicated that
restrictions would be related to appellant’s general age and health, not related to his employment
injury of 1989.
In a letter dated June 28, 2017, OWCP informed appellant that there was a conflict of
medical opinion evidence between Dr. Liu and Dr. Drake regarding whether appellant had
residuals of his accepted employment-related medical conditions or continued disability from work
as a result of the employment injury. Appellant was referred to Dr. Gary Pushkin, a Boardcertified orthopedic surgeon, serving as the impartial medical examiner (IME). OWCP provided
Dr. Pushkin with an updated SOAF, the medical record, and a series of questions.

2
Appellant’s traumatic injury claim (Form CA-1) is not of record, but is noted to have been filed on
September 11, 1989.
3

On April 13, 2010 appellant filed an occupational disease claim (Form CA-2) alleging a back condition which he
attributed to factors of his federal employment on May 27, 2008. OWCP assigned OWCP File No. xxxxxx697 to the
claim, which it developed as a consequential injury. It administratively combined OWCP File Nos. xxxxxx697 and
xxxxxx444 into OWCP File No. xxxxxx319, with OWCP File No. xxxxxx319 serving as the master file.

2

In an August 16, 2017 report, Dr. Pushkin reviewed the SOAF and the medical record.4
He set forth findings on examination and opined that appellant had no residuals of the employment
injury. Dr. Pushkin reported that appellant complained of a constant ache in his neck and right
shoulder, stiffness in his neck, neck pain and a crackling sensation at night, and constant achiness
in his knees. He opined that appellant’s current complaints were completely unrelated to the 1989
employment accident by either direct cause, aggravation, precipitation, or acceleration.
Dr. Pushkin noted that there were no objective finding on examination, the various MRI scans over
the years showed findings that, were consistent with normal aging and were unrelated to any
industrial injury, there were no preexisting nonindustrial conditions in the records, and that all of
appellant’s current complaints were related to nonindustrial conditions. He explained that
appellant sustained a “minor injury” in 1989 and that his current complaints were all related to
normal aging and the degenerative processes that occur with aging. Dr. Pushkin opined that
appellant could return to work at an unrestricted level, noting that there were no objective findings
to support the need for restrictions to his neck, shoulder, knees, or lower back.
In a report dated August 23, 2017, Dr. Liu continued to opine that appellant’s cervical and
lumbar strains with degenerative disc disease, status post right shoulder arthroscopy, and bilateral
internal derangement of the knees were causally related to the employment injuries from
August 25, 1989 and May 27, 2008.
On September 13, 2017 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on the IME’s report. It found that the special weight of the medical
opinion evidence rested with his opinion and afforded appellant 30 days to submit additional
evidence or argument if he disagreed with the proposed termination.
Appellant subsequently provided two reports from Dr. Liu dated September 27, 2017. In
a September 27, 2017 progress report, Dr. Liu continued to opine that his diagnosed conditions
were causally related to the employment injuries from August 25, 1989 and May 27, 2008. In a
September 27, 2017 letter, she noted her disagreement with the findings of Dr. Drake and
Dr. Pushkin, based upon her longstanding involvement in appellant’s medical treatment. Dr. Liu
noted the history of appellant’s employment injuries and that he had been off work on retirement
disability since March 24, 2012 because of his ongoing pain in his neck, right shoulder, both knees,
and low back. She explained that he retired on disability around March 22, 2013, after the
employing establishment could not accommodate his restrictions, and opined that he remained
disabled as a result of the employment-related injuries. Dr. Liu noted that a recent MRI scan of
appellant’s left knee in 2015 revealed a complex tear of the posterior horn of the medial meniscus
and that surgery was cancelled secondary to his medical issues. She also opined that he required
continued pain management, which was reasonable and necessary.
4

In reviewing the medical records and diagnostic testing with regards to appellant’s knees, Dr. Pushkin noted that
on April 19, 1990 appellant underwent a partial lateral meniscectomy of the left knee. The arthroscopy did not reveal
medial compartment tearing, but revealed some degenerative tearing along the inner border of the lateral meniscus.
He underwent a second arthroscopy on the left knee on December 5, 1991. There was no evidence of meniscal tear,
medially or laterally. On October 21, 1997 appellant underwent a partial medial meniscectomy and chondroplasty
arthroscopy of his right knee. Dr. Pushkin also noted that an October 16, 2015 magnetic resonance imagining (MRI)
scan of both the left and right knee revealed degenerative changes and that the left knee had a degenerative tear in the
posterior horn.

3

By decision dated October 18, 2017, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective November 12, 2017, finding that the IME’s
August 16, 2017 report was entitled to the special weight of the medical opinion evidence.
On October 30, 2017 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on May 10, 2018. He testified that while OWCP had authorized
arthroscopic surgery of his left knee on March 21, 2016 he did not have the surgery because of his
sleep apnea condition. Appellant indicated that he was going to have surgery in 2017, but his
benefits had been terminated. He also noted that he developed arthritis. Appellant also testified
that he had knee surgeries due to his injuries and that he did not believe that he would be having
these problems, but for the employment injuries.
Dr. Liu, in progress reports dated October 24, 2017 through June 21, 2018, reiterated that
appellant’s medical conditions were the result of his employment-related injuries.
In an October 30, 2017 report, Dr. Michael Franchetti, a Board-certified orthopedic
surgeon, indicated that he reviewed the reports of Drs. Drake and Pushkin and disagreed with their
conclusions. Dr. Franchetti provided an impression of chronic cervical strain, chronic lumbosacral
strain with lumbar radiculitis and disc herniations at L3-4, status post right shoulder surgery, and
post-traumatic degenerative joint disease, both knees, with very symptomatic complex tear of
degenerative medial meniscus, left knee. He opined that appellant continued to suffer from
residuals of his employment-related knee injuries.
In a November 6, 2017 report, Dr. Jon D. Koman, a Board-certified orthopedic surgeon,
noted the history of the 1989 motor vehicle collision and presented examination findings. He
diagnosed a tear of the medial meniscus, left knee and opined that appellant would benefit from a
left knee arthroscopy with meniscus debridement.
By decision dated July 24, 2018, OWCP’s hearing representative affirmed the October 18,
2017 termination decision finding that Dr. Pushkin’s opinion was entitled to the special weight of
the medical evidence.
On September 19, 2018 appellant requested reconsideration. He noted that he was in his
early 30s when his initial injury occurred and he still suffered from the same conditions 29 years
later. Appellant indicated that he could not understand how his employment-related injuries could
be attributed to aging as the conditions were never considered resolved.
In a September 5, 2018 report, Dr. Koman noted that appellant sustained a left knee torn
medical meniscus from the August 25, 1989 employment injury. He indicated that the mechanism
of injury was that of a valgus force to the left knee which caused the medial meniscus tear.
Dr. Koman noted that appellant was approved for a left knee arthroscopic surgery on March 21,
2016, but the surgery was never performed due to his sleep apnea condition. He opined that
appellant’s continued symptoms on the medial side of his knee due to his medial meniscus tear
and the need for a left knee arthroscopic procedure was due to the August 25, 1989 employment
injury and not from normal aging. Dr. Koman indicated that normal aging in the knee would show
x-ray and MRI scan evidence of more significant joint space narrowing given appellant’s measured
weight of 265 pounds and body mass index (BMI) of 38. He further indicated that, although

4

appellant underwent a prior left knee arthroscopy in 1990, after reviewing appellant’s left knee
MRI scan, he was unsure if appellant’s meniscus tear was repaired or debrided. Nonetheless,
Dr. Koman noted that appellant’s medial meniscus tear continued to be a source of pain and opined
that, had appellant not been involved in the accident, his medial meniscus would not be a current
source of pain.
By decision dated December 12, 2018, OWCP denied modification of the July 24, 2018
decision finding that appellant had not submitted medical evidence of sufficient probative value to
refute Dr. Pushkin’s opinion.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.5 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.8 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.10 The implementing regulations provides that, if
a conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP district medical adviser, OWCP shall appoint a
third physician to make an examination. This is called an independent medical examination and

5

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6
See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
7

See M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); Furman G.
Peake, id.
10
5 U.S.C. § 8123(a); see A.M., Docket No. 18-1243 (issued October 7, 2019); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

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OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.11
In situations where there exist opposing reports of virtually equal weight and rationale and
the case is referred for an IME for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well-rationalized and based upon a proper factual background, must be
given special weight.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 12, 2017, as he no longer had residuals
or disability causally related to his accepted employment injuries.
OWCP properly determined that a conflict in medical opinion arose between Dr. Liu,
appellant’s attending physician, and Dr. Drake, an OWCP referral physician, regarding appellant’s
current condition and the extent of his disability due to his accepted employment injuries. It
properly referred appellant to Dr. Pushkin for an IME.
In his August 16, 2017 report, Dr. Pushkin noted appellant’s history, reviewed the medical
record, and noted examination findings in great detail. He indicated that appellant’s findings and
symptoms were normal for his age, there were no objective findings on examination, and the
various MRI scans over the years showed findings that were consistent with normal aging and
were unrelated to an industrial injury. Dr. Pushkin opined that there were no employment-related
residuals either by either direct cause, aggravation, precipitation, or acceleration and that appellant
could return to work at an unrestricted level with regards to his neck, shoulder, knees, and lower
back. He concluded that appellant’s current complaints were all related to normal aging and
degenerative processes that occur with aging.
The Board finds that the IME’s opinion is entitled to the special weight. Dr. Pushkin’s
report was sufficiently well rationalized and based upon a proper factual background.13 OWCP
properly relied upon his report in finding that appellant’s employment-related conditions had
resolved. Dr. Pushkin examined appellant, reviewed his medical records, and reported an accurate
history. He indicated that appellant’s accepted conditions had resolved and that his current
findings and limitations were those one would expect to occur with normal aging and the
degenerative process that also occurs with aging. Because Dr. Pushkin’s report established that
appellant no longer had residuals or disability related to his accepted employment-related
conditions, the Board finds that OWCP has met its burden of proof to terminate appellant’s wageloss compensation and medical benefits.14

11

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

12

See R.P., supra note 5; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

13

See L.C., Docket No. 18-1759 (issued June 26, 2019); D.M., Docket No. 17-1052 (issued January 24, 2019).

14

See D.M., id.; C.F., Docket No. 08-1102 (issued October 10, 2008).

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After receiving OWCP’s notice of proposed termination, appellant submitted additional
reports from Dr. Liu. However, Dr. Liu was on one side of the conflict which Dr. Pushkin had
resolved. The Board has held that reports from a physician who was on one side of a medical
conflict are insufficient to overcome the special weight accorded to the IME, or to create a new
conflict.15
Dr. Franchetti opined in his October 30, 2017 report that appellant continued to suffer from
residuals of his employment-related knee injuries. Although he supported causal relationship, he
did not provide medical rationale explaining the basis of his conclusory opinion regarding the
causal relationship between appellant’s diagnosed conditions and the accepted factors of his
employment. The Board has held that a medical report is of limited probative value on the issue
of causal relationship if it contains a conclusion regarding causal relationship which is unsupported
by medical rationale.16 Appellant also submitted a medical report by Dr. Koman which indicated
that appellant needed surgery for a torn left medial meniscus, but did not address the causality of
this condition. The Board has held that medical evidence that does not offer an opinion regarding
the cause of an employee’s condition is of no probative value on the issue of causal relationship.17
Thus, the reports from Dr. Franchetti and Dr. Koman are insufficient to overcome the special
weight accorded to the IME’s opinion or to create a new conflict.
The Board, therefore, finds that OWCP properly terminated appellant’s wage-loss
compensation and medical benefits, effective November 12, 2017.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP properly terminates a claimant’s compensation benefits, the burden shifts to
appellant to establish continuing disability or residuals after that date, causally related to the
accepted injury.18 To establish causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such causal
relationship.19
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals, on or after November 12, 2017 due to the accepted
employment injuries.

15

See C.L., Docket No., 18-1379 (issued February 5, 2019); I.J., 59 ECAB 408 (2008).

16
V.T., Docket No. 18-0881 (issued November 19, 2018); T.M., Docket No. 08-0975 (February 6, 2009); S.E.,
Docket No. 08-2214 (issued May 6, 2009).
17

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

18

See S.M., Docket No. 18-0673 (issued January 25, 2019); J.R., Docket No. 17-1352 (issued August 13, 2018).

19

Id.

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Following the termination of his wage-loss compensation and medical benefits, appellant
submitted a report dated September 5, 2018 from Dr. Koman in which he opined that appellant’s
continued symptoms on the medial side of his left knee were due to his medial meniscus tear and
that the need for a left knee arthroscopic procedure was due to the August 25, 1989 employment
injury and not from normal aging. Dr. Koman indicated that normal aging in the knee would show
x-ray and MRI scan evidence of more significant joint space narrowing given appellant’s measured
weight of 265 pounds and his BMI. He further indicated that he was unsure if appellant’s meniscus
tear was repaired or debrided in the 1990 left knee arthroscopy, but concluded that his left medial
meniscus tear continued to be a source of pain. Dr. Koman opined that, had appellant not been
involved in the accident, his medial meniscus would not be a current source of pain. While his
report is generally supportive of specific continuing employment-related residuals, it does not
provide adequate medical rationale explaining how appellant’s left medial meniscus tear, which
was seen in a 2015 MRI scan, was caused or aggravated by the employment injury, for which he
underwent previous arthroscopic left knee procedures.20 Such rationale is particularly necessary
as the record supports that appellant had preexisting degenerative left knee conditions and
Dr. Koman failed to differentiate between the symptoms of the preexisting condition and the
effects of the current condition.21 Therefore, this report is also insufficient to meet appellant’s
burden of proof.
Appellant has not submitted sufficiently rationalized medical evidence establishing
employment-related disabilities or residuals on or after November 12, 2017 due to the accepted
employment injuries. As such, the Board finds that he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective November 12, 2017, as he no longer had residuals
or disability causally related to his accepted employment injuries. The Board further finds that
appellant has not met his burden of proof to establish continuing employment-related disability or
residuals, on or after November 12, 2017, due to the accepted employment injuries.

20

G.T., Docket No. 17-1959 (issued June 22, 2018).

21
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
K.P., Docket No. 18-0041 (issued May 24, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the December 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clarksville, TN, Employer
__________________________________________

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Appearances:
Sheri S. Phillips, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1695
Issued: February 12, 2009

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 May 27, 2008 appellant filed a timely appeal from a February 26, 2008 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration.
Because more than one year has elapsed from the last merit decision dated October 2, 2003 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.

FACTUAL HISTORY
On September 16, 1999 appellant, then a 44-year-old mail handler, sustained a right wrist
injury. By decision dated October 2, 2003, the Office denied his claim for a recurrence of
disability.1
On October 1, 2004 appellant requested reconsideration but did not submit any additional
evidence or argument.
By decision dated February 26, 2008, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was not sufficient to warrant further merit
review of his claim.2
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 It, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).5
To require the Office to reopen a case for merit review under section 8128(a) of the Act,6
the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.7 To be entitled to a
merit review of an Office decision denying or terminating a benefit, a claimant also must file his
or her application for review within one year of the date of that decision.8 When a claimant fails

1

The original case record was apparently lost at some point.

2

Subsequent to the February 26, 2008 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8128(a).

5

Annette Louise, 54 ECAB 783, 789-90 (2003).

6

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” See supra note 4.
7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.607(a).

2

to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for review on the merits.9
ANALYSIS
On October 1, 2004 appellant requested reconsideration of the October 2, 2003 merit
decision denying his claim for a recurrence of disability. He did not submit any additional
evidence or argument with his reconsideration request. Because appellant did not submit
evidence or argument that showed that the Office erroneously applied or interpreted a specific
point of law, advanced a relevant legal argument not previously considered or constituted
relevant and pertinent new evidence not previously considered by the Office, the Office properly
denied his request for reconsideration.
On appeal, appellant asserts that the Office failed to review a report from a
Dr. Joseph Kutz. However, the record reflects that the Office addressed a report from Dr. Kutz
in its October 2, 2003 decision.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

9

Id. at § 10.608(b).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2008 is affirmed.
Issued: February 12, 2009
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-302
Issued: March 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 21, 2014 appellant, through counsel, filed a timely appeal from an
August 26, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
July 3, 2007.
FACTUAL HISTORY
The case was before the Board on a prior appeal.2 As the Board noted appellant, a 55year-old mail handler, had filed a traumatic injury claim (Form CA-1) alleging that he sustained
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-2084 (issued April 25, 2014).

an injury while lifting and pulling letter trays on July 3, 2007. OWCP initially denied the claim
by decision dated September 7, 2007, finding that the factual and medical evidence was
insufficient to establish the claim.
On September 17, 2007 appellant submitted a September 4, 2007 report from Dr. Marc
Fillipone, a Board-certified physiatrist, who provided a history and results on examination.
Dr. Fillipone diagnosed lumbosacral radiculitis, cervical radiculitis and internal derangement of
the right shoulder. He opined that appellant’s conditions were the result of “repetitive stress
while working for the [employing establishment].”
On December 3, 2007 appellant submitted an October 26, 2007 report from Dr. Fillipone,
who again provided a history of July 3, 2007 incident and reviewed the medical history.
Dr. Fillipone stated that appellant continued to have complaints of low back pain and provided
results on examination.
He diagnosed cervical radiculopathy and lumbar radiculitis.
Dr. Fillipone opined that the above conditions were “directly and solely the result of the injuries
sustained by the patient on [July 3, 2007] while working for the [employing establishment].”
In a decision dated June 17, 2013, OWCP denied the claim for compensation. It found
the medical evidence was insufficient to establish the claim.
By decision dated April 25, 2014, the Board remanded the case to OWCP. The Board
noted that OWCP had not reviewed the October 26, 2007 report from Dr. Fillipone. The case
was remanded to OWCP for proper review of the evidence of record and an appropriate decision.
In a decision dated August 26, 2014, OWCP denied the claim for compensation. It found
that the medical evidence, including the October 26, 2007 report from Dr. Fillipone, was not
sufficient to establish appellant’s claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”3 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”4 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.5 In order to determine whether
an employee actually sustained an 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. The second component is whether the employment incident

3

5 U.S.C. § 8102(a).

4

Valerie C. Boward, 50 ECAB 126 (1998).

5

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

caused a personal injury, and generally this can be established only by rationalized medical
evidence.6
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant. 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.7
ANALYSIS
In the present case, OWCP accepted that appellant was lifting and pulling letter trays on
July 3, 2007. The issue was whether the medical evidence was sufficient to establish causal
relationship between a diagnosed condition and the employment factors. In the prior decision,
the Board noted that in the September 4, 2007 report, Dr. Fillipone referred generally to
repetitive stress activities and did not explain how the particular activities appellant stated that he
performed on July 3, 2007 would have caused the diagnosed conditions.
In the October 26, 2007 report, Dr. Fillipone diagnosed cervical radiculopathy and
lumbar radiculitis. He opined that the diagnoses were “directly and solely the result of injuries
sustained” by appellant on July 3, 2007 while working at the employing establishment.
However, Dr. Fillipone provides no medical rationale to support the opinion. A rationalized
medical opinion, as noted above, provides a clear explanation as to how the employment factors
caused the specific diagnosed conditions. Dr. Fillipone provides a medical history, but does not
provide sound medical reasoning to explain why he believes the diagnosed conditions were
directly and solely caused by the employment factors on July 3, 2007. The reports from
Dr. Fillipone do not provide a rationalized medical opinion, based on a complete background,
establishing causal relationship between a diagnosed condition and the July 3, 2007 employment
activity.
The Board accordingly finds that appellant did not meet his burden of proof in this case.
On appeal, appellant’s representative argues that the medical evidence from Dr. Fillipone is
sufficient to establish the claim. For the reasons noted, the Board finds the medical evidence is
of diminished probative value on the issue presented.
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.

6

See John J. Carlone, 41 ECAB 354, 357 (1989).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

CONCLUSION
The Board finds that appellant has not established an injury in the performance of duty on
July 3, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 26, 2014 is affirmed.
Issued: March 25, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 18-0279
Issued: January 6, 2020

Case Submitted on the Record

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

JURISDICTION
On November 21, 2017 appellant, through counsel, filed a timely appeal from a
September 5, 2017 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 lumbar and/or pelvic
conditions causally related to the accepted December 21, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 21, 2014 appellant, then a 41-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left hand, hip, and
back when her chair broke, causing her to fall.
By decision dated May 8, 2015, OWCP denied appellant’s claim, finding that she had not
established an injury causally related to the accepted December 21, 2014 employment incident.
On June 8, 2015 appellant requested reconsideration of OWCP’s May 8, 2015 decision.
With her request, she submitted an April 16, 2015 report from Dr. John Yarjanian, Board-certified
in physical medicine and rehabilitation. Dr. Yarjanian noted that appellant related pain in her left
gluteal region, left lower back, and left hip to the incident of December 21, 2014. He related that,
while physical examination suggested pelvic obliquity and a restricted left sacroiliac joint, in
addition to, extensive myofascial restriction in the left lumbar spine, imaging had failed to reveal
signs of a fracture or disc herniation in relation to her symptoms. Dr. Yarjanian concluded that,
based on his clinical impression and physical examination findings, appellant’s subjective
complaints of pain were legitimate, and substantiated by the mechanism of her fall.
By letter dated May 22, 2015, Dr. Yarjanian described that on December 21, 2014
appellant’s stool gave way while she was working and she fell to the ground striking her left gluteal
region, left sacral region, and left low back onto a hard cement surface. He noted that she
instantaneously developed severe pain in this respective area. Dr. Yarjanian opined that
appellant’s symptoms were causally related to this fall. As a result of the trauma sustained to her
sacrum and lumbar spine, appellant’s left sacroiliac and left lower lumbar facet joints sustained
trauma, and mechanical dysfunction. The mechanism of her fall was in accordance with her
symptoms and physical examination findings.
By decision dated August 24, 2015, OWCP reviewed the merits of appellant’s claim, but
denied modification of its May 8, 2015 decision.
On December 14, 2015 appellant, through counsel, requested reconsideration of OWCP’s
August 24, 2015 decision. Also submitted was a letter dated December 2, 2015 from
Dr. Yarjanian explaining that, when she fell, she struck her left buttock and pelvis against a hard
concrete floor, causing upward force on the pelvis, and this lead to a dysfunction of the left
sacroiliac joint. He noted that the sacroiliac joint had been hypomobile and restricted since this
3

Docket No. 17-0172 (issued May 16, 2017).

2

fall. Dr. Yarjanian explained that, as a result of the fall, a pelvic obliquity occurred, subsequently
causing compensatory curvature of her lumbar spine. He stated that this had led to regional muscle
strain and localized pain at the left lower lumbar facet joints. Dr. Yarjanian noted that physical
examination findings had substantiated appellant’s pain complaints, and that she had evidence of
restricted motion at the left sacroiliac joint, with displacement of her left innominate (iliac crest)
in a superior position. He stated that her lower lumbar pain worsened on extension, consistent
with pain emanating from the lower lumbar facet joints as a result of the fall.
By decision dated March 9, 2016, OWCP reviewed the merits of appellant’s claim, but
denied modification of its prior decision of August 24, 2015.
On August 15, 2016 appellant, through counsel, requested reconsideration of OWCP’s
March 9, 2016 decision. With the request, appellant submitted a June 21, 2016 letter from
Dr. Yarjanian in which he provided ICD-9 and ICD-10 codes for the diagnoses of sacroiliac
dysfunction, pelvic obliquity, lumbar facet arthropathy, and myofascial pain.
By decision dated September 7, 2016, OWCP denied appellant’s request for
reconsideration.
On November 3, 2016 appellant, through counsel, timely appealed to the Board.
By decision dated May 16, 2017, the Board vacated the September 7, 2016 nonmerit
decision and remanded the case to OWCP for further proceedings, to be followed by an appropriate
merit decision. The Board found that OWCP had improperly denied appellant’s request for
reconsideration, as Dr. Yarjanian’s June 21, 2016 letter qualified as pertinent new and relevant
evidence sufficient to warrant a merit review.
On remand, by decision dated September 5, 2017, OWCP reviewed the merits of
appellant’s claim, but denied modification of its March 9, 2016 decision. It found that
Dr. Yarjanian’s opinion concerning her diagnosed conditions was equivocal, as he indicated in his
April 16, 2015 report that examinations were “suggestive” of pelvic obliquity and dysfunction of
the sacroiliac joint. OWCP found that, while he had provided diagnoses of lumbar facet
arthropathy, lumbar facet spondylosis at L4-5 and L5-S1, and L2-3 disc degeneration, he had failed
to provide a firm and rationalized opinion, based on a complete and accurate factual and medical
background, as to whether and how the December 21, 2014 incident caused or contributed to these
conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

4

Supra note 2.

3

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 if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale that explains the nature of the relationship between the diagnosed condition and
appellant’s employment incident.9
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her claim, appellant provided reports from Dr. Yarjanian dated April 16,
May 22, and December 2, 2015. In an April 16, 2015 report from Dr. Yarjanian, he noted that she
related pain in her left gluteal region, left lower back, and left hip to the incident of
December 21, 2014. He concluded that appellant’s subjective complaints of pain were legitimate
and substantiated by the mechanism of her fall. By letter dated May 22, 2015, Dr. Yarjanian
described that on December 21, 2014 her stool gave way while she was working and she fell to
the ground striking her left gluteal region, left sacral region, and left low back to a hard cement
surface. He opined that appellant’s symptoms were causally related to this fall. As a result of the
trauma sustained to her sacrum and lumbar spine, appellant’s left sacroiliac and left lower lumbar
facet joints sustained trauma, and mechanical dysfunction. The mechanism of her fall was in
accordance with her symptoms and physical examination findings. By letter dated December 2,
2015, Dr. Yarjanian explained that, when appellant fell, she struck her left buttock and pelvis
against a hard concrete floor, causing upward force on the pelvis, and this lead to a dysfunction of
the left sacroiliac joint. He noted that the sacroiliac joint had been hypomobile and restricted since
this fall. Dr. Yarjanian explained that, as a result of the fall, a pelvic obliquity occurred,
subsequently causing compensatory curvature of appellant’s lumbar spine. He stated that this had
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
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

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

S.S., Docket No. 18-1488 (issued March 11, 2019).

4

led to regional muscle strain and localized pain at the left lower lumbar facet joints. Dr. Yarjanian
noted that physical examination findings had substantiated appellant’s pain complaints and that
she had evidence of restricted motion at the left sacroiliac joint, with displacement of her left
innominate (iliac crest) in a superior position. He stated that her lower lumbar pain worsened on
extension, consistent with pain emanating from the lower lumbar facet joints as a result of the fall.
The Board finds that, although Dr. Yarjanian’s reports are insufficient to fully discharge
appellant’s burden of proof that her diagnosed conditions were caused or aggravated by the
December 21, 2014 work injury, his reports constitute substantial, uncontradicted evidence in
support of her claim, and provide sufficient rationale to require further development of the case
record by OWCP.10 Dr. Yarjanian provided a detailed history of injury, referenced physical
examination results demonstrating injury, expressed his opinion on causal relationship within a
reasonable degree of medical certainty, and provided a detailed pathophysiologic explanation as
to the mechanism by which her fall on December 21, 2014 resulted in sacroiliac dysfunction,
pelvic obliquity, and lumbar facet arthropathy.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.11
On remand OWCP should refer appellant, the case record, and a statement of accepted
facts to an appropriate specialist for an evaluation and a rationalized medical opinion on whether
the accepted employment incident of December 21, 2014 caused, contributed to, precipitated, or
aggravated any of her diagnosed conditions. After such further development of the case record as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10
K.P., Docket No. 18-0041 (issued May 24, 2019); M.K., Docket No. 17-1140 (issued October 18, 2017); G.C.,
Docket No. 16-0666 (issued March 17, 2017); John J. Carlone, supra note 8; Horace Langhorne, 29 ECAB
280 (1978).
11
K.P., id. D.G., Docket No. 15-0702 (issued August 27, 2015); Donald R. Gervasi, 57 ECAB 281, 286 (2005);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).

5

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this opinion of the Board.
Issued: January 6, 2020
Washington, DC

Patricia H. Fitzgerald, Deputy 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
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rosemead, CA, Employer
__________________________________________

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

Docket No. 07-782
Issued: August 6, 2007

Case Submitted on the Record

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

JURISDICTION
On January 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated August 4 and November 30, 2006 which denied
her occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.1
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty

1

The record includes medical evidence received after the Office issued the November 30, 2006 decision. The
Board cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On April 27, 2006 appellant, then a 51-year-old window clerk, filed an occupational
disease claim alleging that she sustained tendinitis in the arm and elbow as a result of using a
computer keyboard and moving packages while in the performance of duty.
Appellant submitted three form reports from Kaiser Permanente Medical Center dated
January 1, April 24 and May 24, 2006 which were unsigned and did not provide a diagnosis.
She also submitted physicians’ progress reports dated April 6 and May 4, 2006 from Dr. Robert
Pandya, Board-certified in internal and occupational medicine. In both reports, Dr. Pandya
diagnosed appellant with right lateral epicondylitis. In a May 8, 2006 report, Dr. Pandya noted
the date of injury as September 1, 2005 and stated that appellant had intermittent pain in her right
elbow “when using a pencil against the keyboard at work.”
In a June 1, 2006 letter, the Office requested additional factual and medical information
from appellant. Appellant responded, in a June 25, 2006 letter, describing her duties as a sales
associate/window clerk. She noted that she began to experience pain in her arm while typing the
keys of her computer.
By decision dated August 4, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish that the claimed medical condition was
related to the established work-related events.
Appellant submitted numerous physicians’ progress reports dated February 2 and 7,
June 7, July 3 and August 21, 2006 from Dr. Pandya who diagnosed appellant with right forearm
strain in his February 7, 2006 report. Regarding the cause of appellant’s condition, Dr. Pandya
stated: “Based on the history and mechanism of injury, as described by my patient, my findings
and diagnoses are consistent with this history and it appears that as a result of performance of her
job duties the patient developed the above-mentioned condition.”
Dr. Nicole Pham, Board-certified in physical medicine and rehabilitation, reviewed the
results of appellant’s electromyogram (EMG) in her consultation report dated July 21, 2006. A
visit report from Dr. Pham on July 31, 2006 was also received. The Office also received
progress reports from Dr. Paul J. Papanek, Board-certified in occupational and family medicine,
dated March 2 and October 17, 2006.
Appellant requested reconsideration on September 27, 2006. In an October 27, 2006
letter to Dr. Pandya, the Office asked for clarification of the causation of appellant’s condition.
Dr. Pandya did not respond.
By merit decision dated November 30, 2006, the Office denied modification of the claim
on the grounds that the medical opinions failed to support the necessary causal relationship
between appellant’s condition and the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
2

probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.3
While the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should
be expressed in terms of a reasonable degree of medical certainty.4
ANALYSIS
Appellant alleged that her right arm condition was causally related to factors of her
federal employment which began on August 1, 2005. The Board finds that appellant has
submitted insufficient medical evidence to establish that her right arm condition was caused or
aggravated by her federal employment.
The medical evidence establishes the presence of a condition. In an April 6, 2006 report,
Dr. Pandya diagnosed appellant with right lateral epicondylitis. The Office accepted that
appellant performed the duties she described. Appellant described her position working at the
counter which involved typing on a computer as well as reaching and moving packages. The
case focuses on the third requirement that the medical evidence establishes that the employment
factors were the proximate cause of appellant’s condition.
The medical evidence of record consists primarily of physician progress notes from
February 2 through September 22, 2006. The three other documents from Kaiser Permanente
Medical Center dated January 1, April 24 and May 24, 2000 are partially illegible and do not
contain any notes related to appellant’s condition.
Dr. Pandya diagnosed appellant with right lateral epicondylitis in his February 2, 2006
report and released her to modified duty. In a February 7, 2006 report, Dr. Pandya extended his
diagnosis to include right forearm strain. In this report, Dr. Pandya opined that his findings and
2

Anthony P. Silva, 55 ECAB 179 (2003).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

4

Morris Scanlon, 11 ECAB 384, 385 (1960).

3

diagnoses were consistent with appellant’s described work history of repetitive hand, wrist and
arm motion and lifting boxes. He also opined that appellant developed her condition as a result
of the performance of her job duties. However, Dr. Pandya did not provide medical rationale to
explain the causal relationship between appellant’s work duties and her current condition,
specifically describing how appellant’s work duties caused her right lateral epicondylitis and
right forearm strain. In April 6 and May 4, 2006 reports, he released appellant to modified duty.
In the June 7, 2006 report, Dr. Pandya released appellant to regular duty. In a July 3, 2006
report, he described appellant’s pain and the reaching she has to do at her workstation. In the
August 21, 2006 report, Dr. Pandya did not identify the cause of appellant’s condition.
None of Dr. Pandya’s progress reports contain a medical explanation as to how the
described work duties caused the diagnosed conditions of right lateral epicondylitis and right
forearm strain.
The Office received other doctors’ reports as well. In a July 21, 2006 report, Dr. Pham
reviewed appellant’s EMG and concluded that appellant had an abnormal EMG. He did not
discuss appellant’s work duties or the cause of appellant’s condition.
Dr. Papanek saw appellant on March 2 and September 22, 2006. In an October 17, 2006
report, he stated that appellant’s magnetic resonance imaging scan of September 3, 2006 was
normal and released appellant to modified duty. In a March 2, 2006 report, Dr. Papanek
diagnosed appellant with an old bilateral rotator cuff tendinitis with the left side greater than the
right and right lateral epicondylitis and released her to modified duty. None of his reports
contained a rationalized medical opinion that describes the causal relation between appellant’s
employment duties and her right lateral epicondylitis.
The medical opinion needed to establish an occupational disease 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 the specific employment factors identified
by the claimant.5 No such opinion has been submitted. Appellant has failed to submit medical
evidence to establish causal relationship and, therefore, has failed to discharge her burden of
proof to establish that she sustained a condition due to factors of her federal employment.
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained an occupational
disease in the performance of duty.

5

Donald W. Wenzel, 56 ECAB ___ (Docket No. 05-146, issued March 17, 2005).

4

ORDER
IT IS HEREBY ORDERED THAT the November 30 and August 4, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 08-824
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On January 24, 2008 appellant filed a timely appeal from a March 27, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration, and a January 2, 2008 nonmerit decision of the Office denying her request for
reconsideration on the grounds that it was not timely filed and did not present clear evidence of
error. She also appealed a January 14, 2008 decision of the Office regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
schedule award claim and over the nonmerit denials of reconsideration.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s February 27, 2007
request for reconsideration; (2) whether the Office properly denied appellant’s November 10,
2007 request for reconsideration on the grounds that it was not timely filed and did not establish
clear evidence of error; and (3) whether appellant has established that she sustained more than a
nine percent impairment of the right upper extremity, for which she received a schedule award.

FACTUAL HISTORY
The Office accepted that, on March 23, 2003, appellant, then a 48-year-old mail handler,
sustained a right shoulder contusion and aggravation of a right rotator cuff tear when struck by
falling mail baskets.1 It also accepted that on April 16, 2003 appellant sustained a lumbar strain
while trying to move a wire cage.2 Appellant performed full-time limited duty from May
through August 2003. She worked part-time limited duty in 2004.
Dr. Antony M. George, an attending physician Board-certified in public health and
general preventive medicine, treated appellant from April 2003 through March 2005 for ongoing
lumbar and right shoulder pain and restricted motion.3 He noted work restrictions.
The Office obtained a second opinion examination from Dr. Sheldon Kaffen, a Boardcertified orthopedic surgeon, who submitted August 31, 2004 and January 4, 2005 reports noting
limited right shoulder motion and congenital lumbar anomalies. Dr. Kaffen opined that appellant
had residuals of the right shoulder injury but that the lumbar strain had resolved. He stated that
appellant could work full-time limited duty.
The Office found a conflict of medical opinion between Dr. George, for appellant, and
Dr. Kaffen, for the government, regarding the duration of the accepted conditions and related
work restrictions. To resolve the conflict, it selected Dr. Robert H. Anscheutz, a Board-certified
orthopedic surgeon, as impartial medical examiner. A copy of the medical record and a
statement of accepted facts were provided for the physician’s review.4
In a March 10, 2005 report, Dr. Anscheutz reviewed the medical record and statement of
accepted facts. On examination, he noted objective signs of impingement syndrome and
tendinitis in the right shoulder. Appellant had a nonoccupational right-sided sciatica related to
congenital stenosis. Dr. Anschuetz opined that the accepted lumbar strain had resolved. In an
April 4, 2005 supplemental report, he stated that appellant could work six hours a day with
restrictions and gradually resume full-time work.

1

By decisions dated May 30 and August 22, 2003, the Office denied continuation of pay as appellant did not file
her claim for the March 23, 2003 injury within 30 days.
2

The claim currently on appeal before the Board is File No. xxxxxx310, accepted for March 23 and April 16,
2003 lumbar strains. On June 25, 2004 the Office designated File No. xxxxxx310 as the master file number for
appellant’s claims under File Nos. xxxxxx311, xxxxxx440, xxxxxx700, xxxxxx044 and xxxxxx081. File No.
xxxxxx700 pertains to denied claims for April 6, 1992, March 25, 1997 and August 3, 1999 lumbar strains. File No.
xxxxxx044 was combined with File No. xxxxxx440 and concerns a July 25, 1995 lumbar strain accepted for medical
expenses only. File No. xxxxxx311 was accepted for a March 23, 2003 right shoulder strain and aggravation of
right rotator cuff tear syndrome. File No. xxxxxx081 was accepted for a right arm contusion sustained on
March 23, 2003.
3

A July 3, 2003 lumbar magnetic resonance imaging (MRI) scan showed mild degeneration at L3-4. An MRI
scan of the right shoulder performed the same day showed abnormalities of the supraspinatus tendon.
4

On December 7, 2004 appellant claimed a schedule award for lumbar impairment. There is no decision of
record directly adjudicating this claim.

2

By notice dated June 17, 2005, the Office proposed to terminate appellant’s
compensation and medical benefits for the accepted lumbar strain. It found that Dr. Anscheutz’s
opinion as impartial medical examiner was sufficient to establish that the lumbar strain ceased
without residuals.
On July 11, 2005 appellant claimed a schedule award.5
In a July 18, 2005 report, Dr. Tim Nice, an attending Board-certified orthopedic surgeon,
opined that appellant could work six hours a day light duty. He submitted March and April 2006
chart notes describing right arm and low back symptoms. In an April 17, 2006 report, Dr. Nice
assessed whole person impairment due to lumbar spine conditions with no involvement of the
lower extremities.
By decision dated May 19, 2006, the Office terminated compensation and medical
benefits for the accepted lumbar strain, effective that day. Appellant remained entitled to
monetary compensation and medical benefits for the accepted right shoulder conditions.
In a June 5, 2006 letter, appellant requested reconsideration. By decision dated August 7,
2006, the Office denied reconsideration on the grounds that appellant’s June 5, 2006 letter did
not raise substantive legal questions or include new, relevant evidence.
In an August 21, 2006 report, Dr. Nice performed a schedule award assessment for the
right upper extremity. He found normal ranges of internal and external rotation of the right
shoulder. Abduction and forward flexion were both limited to 90 degrees. Referring to the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter, A.M.A., Guides), Dr. Nice noted that according to Table 16-436 appellant had a 9
percent impairment of the right upper extremity, 4 percent for limited abduction and adduction
and 5 percent for limited flexion.
In a September 9, 2006 letter, appellant requested reconsideration, asserting that the
accepted lumbar strain had not resolved. She submitted July 2006 physical therapy notes. By
decision dated October 11, 2006, the Office denied reconsideration on the grounds that
appellant’s letter and physical therapy notes did not raise substantive legal questions or constitute
new, relevant evidence.
Appellant again requested reconsideration on February 27, 2007, asserting the lumbar
strain had not resolved. She submitted a duplicate of Dr. Nice’s April 17, 2006 report. The
Office denied reconsideration by decision dated March 27, 2007, finding that appellant’s letter
and the duplicate report did not raise substantive legal questions or constitute new, relevant
evidence.
In a letter dated and postmarked November 10, 2007, appellant requested reconsideration
of the May 19, 2006 decision. She asserted entitlement to a schedule award for lumbar
5

Appellant filed duplicate schedule award claims on August 17, 2006 and September 27, 2007.

6

Figure 16-43, page 477 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Abduction and Adduction of Shoulder.”

3

impairment. Appellant submitted June 27, 2006, September 18 and October 16, 2007 reports
from Dr. Nice reiterating previous schedule award findings. She also submitted duplicates of
Dr. Nice’s reports.
The Office referred Dr. Nice’s schedule award rating to an Office medical adviser for
review. In a November 14, 2007 report, an Office medical adviser found that appellant reached
maximum medical improvement on August 21, 2006. The medical adviser opined that shoulder
flexion limited to 90 degrees equaled five percent upper extremity impairment according to
Table 16-40, page 4767 of the A.M.A., Guides. Shoulder abduction limited to 90 degrees
equaled four percent upper extremity impairment according to Table 16-43. The medical adviser
combined the five and four percent impairments to equal a nine percent impairment of the right
upper extremity.
By decision dated January 2, 2008, the Office denied appellant’s November 10, 2007
request for reconsideration on the grounds that it was not timely filed and failed to present clear
evidence of error.
By decision dated January 14, 2008, the Office granted appellant a schedule award for a
nine percent impairment of the right upper extremity. The period of the award ran from
August 21, 2006 to March 5, 2007.
LEGAL PRECEDENT -- ISSUE 1
To require the Office to reopen a case for merit review under section 8128(a) of the Act,8
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.9 Section 10.608(b)
provides that, when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.10
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge her burden of proof.11 She need only submit
relevant, pertinent evidence not previously considered by the Office.12 When reviewing an
Office decision denying a merit review, the function of the Board is to determine whether the
7

Figure 16-40, page 476 of the fifth edition of the A.M.A., Guides is entitled “Pie Chart of Upper Extremity
Motion Impairments Due to Lack of Flexion and Extension of Shoulder.”
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b). See also T.E.., 59 ECAB ___ (Docket No. 07-2227, issued March 19, 2008).

11

Helen E. Tschantz, 39 ECAB 1382 (1988).

12

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

4

Office properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.13
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a lumbar strain. On May 19, 2006 it
terminated appellant’s compensation and medical benefits regarding an accepted lumbar
condition. Appellant requested reconsideration by a February 27, 2007 letter. She asserted that
the accepted lumbar strain remained symptomatic. Appellant submitted a copy of Dr. Nice’s
April 17, 2006 report previously of record.
Appellant’s February 27, 2007 letter is repetitive of her prior arguments which were
previously rejected. Dr. Nice’s April 17, 2006 report was considered by the Office prior to
issuance of the May 19, 2006 decision. Evidence or argument which is duplicative or
cumulative in nature is insufficient to warrant reopening a claim for merit review.14 Thus,
appellant’s letter and the duplicate medical report do not require reopening the record for further
merit review.
Appellant has not established that the Office improperly refused to reopen her claim for a
review of the merits under section 8128(a) of the Act. She did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act15 does not entitle a
claimant to a review of an Office decision as a matter of right.16 This section vests the Office
with discretionary authority to determine whether it will review an award for or against
compensation.17 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.18 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).19
13

Annette Louise, 54 ECAB 783 (2003).

14

Denis M. Dupor, 51 ECAB 482 (2000).

15

5 U.S.C. § 8128(a).

16

Thankamma Mathews, 44 ECAB 765, 768 (1993).

17

Thankamma Mathews, id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

18

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
19

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 16; Jesus D. Sanchez, supra note 17.

5

In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulation.20
Office regulation states that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in the Office’s regulation, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of the Office.21
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.22 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.23 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.24 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.25 This entails a limited review by the Office 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 the Office.26
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create 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 the Office’s decision.27 The
Board must make an independent determination of whether a claimant has submitted clear
evidence of error on the part of the Office such that the Office abused its discretion in denying
merit review in the face of such evidence.28
ANALYSIS -- ISSUE 2
In its January 2, 2008 decision, the Office properly determined that appellant failed to file
a timely application for review. It rendered its most recent merit decision on May 19, 2006.
Appellant’s request for reconsideration was postmarked November 10, 2007, more than one year
after May 19, 2006. Accordingly, her request for reconsideration was not timely filed.

20

Thankamma Mathews, supra note 16.

21

20 C.F.R. § 10.607(b).

22

Thankamma Mathews, supra note 16.

23

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

24

Jesus D. Sanchez, supra note 17.

25

Leona N. Travis, supra note 23.

26

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

27

James R. Mirra, 56 ECAB 738 (2005).

28

Gregory Griffin, supra note 18

6

The Board finds that appellant’s November 10, 2007 letter does not raise a substantial
question as to whether the Office’s May 19, 2006 decision was in error or prima facie shift the
weight of the evidence in her favor. Therefore, it is insufficient to establish clear evidence of
error. The medical evidence submitted in support of appellant’s request for reconsideration is
also insufficient to establish evidence of error by the Office. Dr. Nice’s April 17, 2006 report
asserts that appellant was entitled to “whole person” impairment for lumbar conditions in the
absence of lower extremity involvement. The Act does not provide for schedule awards for the
spine in the absence of extremity involvement.29 Also, there is no provision under the Act for
whole person impairments.30 Dr. Nice’s report is not the type of positive, precise, explicit
evidence that would shift the weight of the evidence in appellant’s favor. Therefore, the
evidence accompanying the November 10, 2007 letter is insufficient to raise a substantial
question as to the correctness of the Office’s May 19, 2006 decision.
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of the Office’s decision. Consequently, the Office properly denied appellant’s
reconsideration request as her request does not establish clear evidence of error.
LEGAL PRECEDENT -- ISSUE 3
The schedule award provisions of the Act31 provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.32 As of February 1, 2001, schedule
awards are calculated according to the fifth edition of the A.M.A., Guides, published in 2000.33
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.34 Chapter 16
29

The Act itself specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19). The 1966
amendments to the Act provided for a schedule award for permanent impairment to a member of the body covered
by the schedule regardless of whether the cause of the impairment originated in a scheduled or nonscheduled
member. Thus, a claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine. Tommy R. Martin, 56 ECAB 273 (2005).
30

Marilyn S. Freeland, 57 ECAB 607 (2006).

31

5 U.S.C. §§ 8101-8193.

32

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

33

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

34

Tammy L. Meehan, 53 ECAB 229 (2001).

7

of the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedures for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation, or
loss of strength.35 Multiple impairments of one extremity are present, such as those of the hand,
wrist, elbow and shoulder, are first expressed individually as upper extremity impairments and then
combined to determine the total upper extremity impairment.36 It is well established that in
determining entitlement to a schedule award, preexisting impairment to the scheduled member is
included.37
ANALYSIS -- ISSUE 3
The Office accepted that appellant sustained a right arm contusion and aggravation of a
right rotator cuff tear. Appellant claimed a schedule award on July 1, 2005. She submitted an
August 21, 2006 schedule award evaluation from Dr. Nice, an attending Board-certified
orthopedic surgeon, who opined on August 21, 2006 that, according to Table 16-43 of the
A.M.A., Guides, appellant had a nine percent impairment of the right upper extremity due to
restricted shoulder motion, four percent for limited abduction and an additional five percent for
limited flexion. In a November 14, 2007 report, an Office medical adviser concurred with
Dr. Nice’s rating.
On January 14, 2008 the Office granted a schedule award for a nine percent impairment
of the right upper extremity, based on Dr. Nice’s findings as interpreted by the Office medical
adviser. The Board finds that the schedule award was based on an accurate application of the
appropriate tables and grading schemes of the A.M.A., Guides to Dr. Nice’s clinical findings.
Appellant did not submit medical evidence demonstrating a greater percentage of impairment or
otherwise establish that the rating was in error. Therefore, she has not established that she
sustained more than the nine percent impairment of the right upper extremity for which she
received the schedule award.
CONCLUSION
The Board finds that the Office properly denied appellant’s February 27, 2007 request for
reconsideration. The Board further finds that appellant’s November 10, 2007 request for
reconsideration was untimely filed and failed to show clear evidence of error. The Board further
finds that appellant has not established that she sustained more than a nine percent impairment of
the right upper extremity, for which she received a schedule award.

35

A.M.A. Guides 433-521, “The Upper Extremities,” Chapter 16 (5th ed. 2001).

36

Id. at 438, para. 16.1c at 481, 16.5b. See also Cristeen Falls, 55 ECAB 420 (2004).

37

Peter C. Belkind, 56 ECAB 580 (2005).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 14 and 2, 2008 and March 27, 2007 are affirmed.
Issued: January 5, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 08-1289
Issued: October 16, 2008

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 March 24, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated February 27, 2008. Under 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 established that she sustained an injury to her left
shoulder in the performance of duty on June 7, 2006.
FACTUAL HISTORY
This is the second appeal before the Board. On July 30, 2004 appellant, a 49-year-old
mail clerk, filed a claim alleging that she experienced pain in her left shoulder while reaching to
push some magazines down a conveyor belt. Her treating physician, Dr. J. Britten Shroyer,
Board-certified in internal medicine, diagnosed impingement syndrome of the left shoulder. He
submitted several reports indicating that appellant injured her left shoulder in June 2006 while
engaged in overhead lifting. His reports noted that appellant’s regular duties as a postal clerk

entailed repetitive work in her duties as a postal clerk and indicated that she was no longer able
to perform these duties due to her work-related left shoulder injury. By decision dated June 25,
2007, the Office denied appellant’s claim. By decision dated June 25, 2007, an Office hearing
representative affirmed the October 11, 2006 decision. In a January 10, 2008 decision,1 the
Board affirmed the Office’s decision. The facts of this case are set forth in the Board’s
January 10, 2008 decision and are incorporated herein by reference.
By letter dated February 13, 2008, appellant’s attorney requested reconsideration. In a
July 3, 2007 report, Dr. Shroyer noted that there was apparently some confusion as to when and
how appellant sustained her left shoulder impingement syndrome. He stated:
“[Appellant] recalled a specific time and activity that she [was] performing when
she injured her shoulder in June of 2006. I do not see where I had noted in my
notes that this is a repetitive injury type of mechanism. Perhaps the confusion
comes with the diagnosis of impingement syndrome, which is synonymous with
partial thickness rotator cuff tearing.
“To repeat, it is my recollection and it is reflected in my notes that [appellant] had
a one-time injury to her shoulder in June 2006, and it is my feeling that her
shoulder condition of partial thickness rotator cuff tear/impingement syndrome is
directly related to that incident as described by [appellant].”
By decision dated February 27, 2008, the Office denied modification of its prior
decisions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of 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.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually

1

Docket No. 07-1912 (issued January 10, 2008).

2

5 U.S.C. § 8101-8193.

3

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

4

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

2

experienced the employment incident at the time, place and in the manner alleged.5 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.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
In this case, it is uncontested that appellant experienced the employment incident at the
time, place and in the manner alleged. However, the question of whether an employment
incident caused a personal injury can only be established by medical evidence.10 Appellant has
not submitted rationalized, probative medical evidence to establish that the employment incident
on June 7, 2006 caused a personal injury and resultant disability.
The July 3, 2007 report from Dr. Shroyer essentially reiterated the findings and
conclusions he presented in previous reports of record. The weight of medical opinion is
determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.11 Dr. Shroyer’s July 3, 2007 report, did not provide a probative, rationalized
medical opinion relating appellant’s diagnoses to the June 7, 2006 incident at work. He merely
stated in summary fashion that her condition of partial thickness rotator cuff tear/left shoulder
5

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

6

Id. For a definition of the term “injury, see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

John J. Carlone, supra note 5.

11

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

3

impingement syndrome was directly related to the June 7, 2006 work incident, as described by
appellant.
Dr. Shroyer did not adequately address how medically appellant’s diagnosed conditions
were causally related to the June 7, 2006 work incident. There is insufficient rationalized
evidence to support that appellant’s left shoulder injury was work related. Appellant failed to
provide a medical report from a physician that provides a medical opinion as to how
physiologically the work incident of June 7, 2006 caused or contributed to the claimed left
shoulder injury.
The Office advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Appellant did not provide a medical opinion which
describes or explains the medical process through which the June 7, 2006 work accident would
have caused the claimed injury. Accordingly, she did not establish that she sustained a left
shoulder injury in the performance of duty. The Office properly denied appellant’s claim for
compensation.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a left shoulder
injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 16, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
(Widow of P.K.S.)
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL BASE, Coronado, CA,
Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1400
Issued: March 14, 2022

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 September 23, 2021 appellant, through counsel, filed an appeal from a purported
decision of the Office of Workers’ Compensation Programs (OWCP) dated August 24, 2019. The
Clerk of the Appellate Boards assigned the appeal Docket No. 21-1400.
The Board has duly considered the matter and concludes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 3 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
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.; 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.”
3

appeal.4 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. 21-1400 must be
dismissed.5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as Docket No. 21-1400 is
dismissed.
Issued: March 14, 2022
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

4

Id. The most recent decision of record was issued by this Board on August 24, 2021, under Docket No. 20-0215.
See Docket No. 20-0215 (issued August 24, 2021). Appellant, through counsel, filed a timely petition for
reconsideration from that Board decision. An order on appellant’s petition for reconsideration will be issued under a
separate order.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
5

2