United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

2

pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

3

In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

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Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
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. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

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qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
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. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Turner, ME, Employer
__________________________________________

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

Docket No. 14-2009
Issued: February 19, 2015

Case Submitted on the Record

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

JURISDICTION
On September 18, 2014 appellant, through counsel, filed a timely appeal from a July 9,
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.2
ISSUE
The issue is whether appellant established a cervical spine condition in the performance
of duty.
FACTUAL HISTORY
On June 20, 2013 appellant, then a 50-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that on or before December 28, 2010, she sustained cervical
1

2

5 U.S.C. § 8101 et seq.

Appellant has filed other claims with OWCP (xxxxxx441 and xxxxxx136) but the Board only has jurisdiction
over the claim in xxxxxx852.

radiculopathy, a herniated C5-6 disc, severe headaches, and muscle spasms of the neck,
shoulders, and upper back due to “repetitive motion overuse” at work. She had been off work
since March 21, 2013 due to bilateral carpal tunnel syndrome, for which she filed a previous
occupational disease claim assigned File No. xxxxxx136. Appellant asserted that medical
evidence submitted under File No. xxxxxx136 was sufficient to establish causal relationship in
the present claim. In an attached statement, she described a December 28, 2010 incident in
which the hatchback of her delivery vehicle blew downward in a strong wind, striking the top of
her head and causing a bump. Appellant was stunned for several minutes, realized that there was
no one on duty at the employing establishment to assist her, so she finished delivering her route.
While delivering the mail, she experienced increasing headaches, and neck pain radiating into
both arms. Appellant telephoned her physician’s office for advice, returned to her duty station to
turn in empty equipment, then went home to await her doctor’s call.
In a May 8, 2013 letter, Dr. Jerry Lin, an attending osteopathic physician Board-certified
in physiatry, related appellant’s symptoms of “aching, cramping, tiring, deep, and constant pain
in her cervical spine, upper back, forearms, and hands,” and “tingling and numbness of her
fingers.” On examination, he found severely restricted cervical spine motion in all planes,
tenderness to palpation over the spinous processes, splenius capitus and trapezius muscles,
numbness in the neck with abduction of the right thumb, and decreased sensation in the C7
dermatome. Dr. Lin noted that an April 29, 2013 magnetic resonance imaging (MRI) scan
showed a broad-based central C5-6 herniation with overlying spurs. February 7, 2013 x-rays
showed a three-millimeter retrolisthesis at C5-6. Dr. Lin diagnosed carpal tunnel syndrome,
tendinitis of the forearms, and a possible underlying cervical radiculopathy. He opined that
appellant’s “carpal tunnel syndrome and tendinitis of the forearm could be exacerbated from her
postal activity. Also, given the pathology in her cervical spine, appellant may have had an
underlying cervical radiculopathy that further compounded her symptoms with the repetitive
work and postal driving she was doing.” Dr. Lin administered a C6-7 epidural injection. He
held appellant off work as of May 1, 2013.
Dr. Lin also provided a July 11, 2013 report, relating additional history from appellant
describing November 1996 and January 1997 occupational whiplash injuries, with paraspinal and
bilateral shoulder spasms, and the December 28, 2010 head injury. He noted that appellant’s
current symptoms included bilateral arm weakness due to pain, and pain into the right chest wall.
On examination, Dr. Lin found decreased pinprick sensation in the right C5 and bilateral C6, C7,
and C8 dermatomes, and severely restricted cervical motion. He diagnosed a bulging cervical
disc and cervical radiculopathy. Dr. Lin opined that appellant’s C5-6 and C6-7 disc herniations
caused neuritis into both hands. He stated that the diagnosed conditions were “likely due to
[appellant’s] two motor vehicle accidents and trauma she received when the hatchback rear door
hit her head.”
In June 13, 2013 reports, Dr. Joseph T. Alexander, an attending Board-certified
neurosurgeon, related appellant’s account of headaches, neck pain, and bilateral cervical
radiculopathy since the December 28, 2010 incident. Facet block injections, acupuncture, and
chiropractic manipulation all failed to alleviate her symptoms. Dr. Alexander noted that a recent
MRI scan showed a herniated C5-6 disc with spurring, “loss of disc height, bone spurring, and
foraminal stenosis.” On examination, he observed “some give-way weakness in finger extension
bilaterally, right greater than left.” Dr. Alexander recommended a C5-6 discectomy and fusion.

2

In an August 28, 2013 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim, including a report from her attending physician explaining how the
identified work factors would cause the diagnosed cervical spine conditions. It afforded her 30
days to submit such evidence.
In response, appellant submitted a February 8, 2013 x-ray report showing straightening of
the cervical lordosis, a three-millimeter retrolisthesis of C5 on C6, and mild-to-moderate disc
narrowing at C5-6. An April 29, 2013 cervical MRI scan showed a broad-based central disc
herniation at C5-6, with overlying spurs and almost complete obliteration of the thecal sac.
Appellant also provided a note from Dr. Dayton F. Haigney, an attending Board-certified
physiatrist, holding her off work as of February 12, 2013 because of a nonwork-related cervical
spine problem until further notice. In a March 27, 2013 note, Dr. Haigney stated that he advised
her to stop work permanently due to her bilateral upper extremities work-related injury as well as
her nonwork-related cervical condition. Dr. Lin submitted a September 11, 2013 report noting
increased pain in appellant’s left hand, and continued cervical radiculopathy. He recommended
a trial of pain management.
Appellant also submitted her undated statement, attributing her cervical spine condition
to repetitive bending, reaching, pulling, pushing, lifting, twisting, and prolonged driving at work.
She asserted that the December 28, 2010 incident caused a traumatic cervical spine injury,
worsening preexisting cervical spine conditions that had developed due to repetitive motion.
Appellant described nonoccupational activities of housework, cooking, laundry, and walking.
She contended that her worsening neck condition prevented her from pursuing former
recreational interests including motorcycle riding.
By decision dated October 4, 2013, OWCP denied appellant’s claim as causal
relationship had not been established. It accepted that she engaged in repetitive employment
duties, but the medical evidence failed to find the claimed cervical spine conditions were
causally related to the repetitive motion at work.
In an October 9, 2013 letter, appellant requested an oral hearing, held telephonically on
April 16, 2014. At the hearing, she recounted that she worked full duty until she underwent
carpal tunnel release in March 2012. Following the surgery, appellant returned to full duty on
May 9 or 10, 2012, but stopped work after a few hours due to hand pain. She claimed a
recurrence of disability. In June 2012, appellant worked light duty for approximately two weeks.
She returned to light duty from August 2012 through March 2013, when she stopped work and
did not return. Appellant described continuing headaches and bilateral cervical radiculopathy.
Appellant submitted additional medical evidence.3 In a September 11, 2013 report,
Dr. Lin diagnosed cervical radiculopathy, cervical spondylolisthesis, and a bulging cervical disc.
He opined that “the two motor vehicle accidents she incurred while at the job, and the rear

3

Appellant also submitted copies of her statements, imaging studies and Dr. Lin’s July 11, 2013 report previously
of record.

3

hatchback door hitting her head are causative factors that caused her to acquire the cervical
abnormalities.” Dr. Lin recommended cervical decompression and pain management.4
Dr. James Smith, an attending osteopath Board-certified in family practice, submitted
reports dated from September 23, 2013 to January 22, 2014 finding appellant totally disabled for
work due to a herniated cervical disc. He related appellant’s assertions that she “hurt herself at
work” in the December 2010 incident and by performing repetitive motion. Dr. Smith noted that
appellant underwent rhizotomy of unspecified spinal nerves, which did not alleviate her pain
symptoms. He diagnosed right-sided neck and shoulder pain, cervical radiculopathy, bilateral
carpal tunnel syndrome, and tendinitis of the elbow or forearm. Dr. Smith prescribed
medication.
By decision dated and finalized on July 9, 2014, an OWCP hearing representative
affirmed OWCP’s October 4, 2013 decision denying appellant’s occupational disease claim. She
found that the medical evidence did not contain sufficient rationale supporting a causal
relationship between repetitive motion at work and the claimed cervical spine conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.7 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) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant.8

4

On October 8, 2013 appellant was seen for medication management by a nurse practitioner working under the
supervision of Dr. Karyn Woelflein, an associate of Dr. Lin.
5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

20 C.F.R. § 10.5(q).

8

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

4

The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
Appellant claimed that she sustained cervical radiculopathy, a herniated C5-6 disc, severe
headaches, and muscle spasms of the neck, shoulders, and upper back due to repetitive motion
and overuse at work, 1996 and 1997 occupational motor vehicle accidents, and being struck on
the head by a vehicle hatch on December 28, 2010. OWCP accepted repetitive motion as a work
factor, but found that appellant had not established the accidents or the December 28, 2010
incident as factual. It denied the claim within October 4, 2013 and July 9, 2014 decisions,
finding the medical evidence insufficient to support a causal relationship between the claimed
neck conditions and repetitive motion.
In support of her claim, appellant submitted reports from several attending physicians.
Dr. Haigney, a Board-certified physiatrist, stated on February 12 and March 27, 2013 that
appellant had a nonwork-related cervical spine problem or nonwork-related cervical condition.
His opinion directly contradicts appellant’s assertion that work factors caused or contributed to
her neck problems.
Dr. Lin, an attending Board-certified physiatrist, attributed the claimed cervical spine
conditions to the 1996, 1997 and 2010 incidents, or a preexisting “underlying cervical
radiculopathy.” The equivocal nature of this opinion diminishes its probative quality.10 Also,
Dr. Lin did not address the accepted factor of repetitive motion.
Dr. Smith, an attending Board-certified family practitioner, repeated appellant’s
assertions that she “hurt herself at work” on December 28, 2010 and by performing repetitive
motion. However, he did not provide a reasoned explanation as to how the repetitive motion of
appellant’s position would cause a cervical spine condition. Therefore, Dr. Smith’s opinion is
insufficient to meet appellant’s burden of proof.11
OWCP advised appellant in an August 28, 2013 letter of the necessity of submitting a
statement from her attending physician explaining the medical reasoning for supporting a causal
relationship between the accepted work factors and the claimed cervical spine conditions.
However, appellant did not submit such evidence. Therefore, OWCP’s July 9, 2014 decision
was proper under the law and circumstances of this case.
9

Solomon Polen, 51 ECAB 341 (2000).

10

Ricky S. Storms, 52 ECAB 349 (2001).

11

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

5

On appeal, counsel contends that OWCP’s July 9, 2014 decision is “contrary to law and
fact.” As stated above, the medical evidence of record is insufficient to establish that the
accepted work factors caused the claimed cervical spine conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a cervical spine
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2014 is affirmed.
Issued: February 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
FEDERAL BUREAU OF INVESTIGATION,
FIELD OFFICE, El Paso TX, Employer
__________________________________________

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

Docket No. 10-1089
Issued: November 16, 2010

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 March 15, 2010 appellant filed a timely appeal from a January 27, 2010 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On November 23, 2009 appellant, then a 39-year-old language analyst, filed an
occupational disease claim alleging that she sustained numbness in her fingers up to her elbows
and pain in her neck and shoulders as a result of typing approximately seven hours each
workday. She first became aware of her condition in January 2009, but took no action because
she used wrist braces and an ergonomic keyboard, which “seemed to help.” Appellant did not
stop working.

In a December 17, 2009 letter, the Office informed appellant that the evidence submitted
was insufficient to establish her claim and advised her of the evidence needed to establish her
claim. It requested a medical report from her physician containing a diagnosis and the
physician’s opinion as to the cause of the diagnosed condition. The Office also requested
additional information from the employing establishment.
Appellant submitted a January 12, 2010 letter, in which she stated that her primary job
duty as a language analyst was to translate recorded materials and documents. She recounted
that approximately five years ago she began to feel numbness and pain in both hands during and
after work hours. Appellant sought medical treatment and obtained wrist braces and an
ergonomic keyboard, which helped relieve the pain. She asserted that the numbness continued
and worsened as she performed certain tasks. In October 2009, appellant began to experience
constant pain in her left shoulder and sporadic numbness of the left arm. In November 2009, she
noted seeing a physician who performed a nerve test and diagnosed moderate carpal tunnel
syndrome of the left hand and severe carpal tunnel syndrome of the right hand. Appellant also
stated that she was undergoing physical therapy.
In a July 29, 2009 letter,1 the employing establishment concurred with appellant’s
statements regarding her work. It noted that her job tasks involved repetitive typing and wrist
movement and she was at her desk almost eight hours a day. The employing establishment also
noted that appellant used wrist braces and an ergonomic keyboard, but neither appeared to
alleviate her pain.
By decision dated January 27, 2010, the Office denied appellant’s claim on the grounds
that the evidence submitted was insufficient to establish the occurrence of a work-related event
and that no medical evidence was submitted providing a diagnosis that could be connected to
such an event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disabilities and/or specific conditions 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

1

The date of the letter appears to be erroneous as the employing establishment stated that it was in response to a
December 17, 2009 request for information.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

2

Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The Board finds that the evidence supports that appellant typed approximately seven
hours each workday as part of her translation tasks. Appellant provided a factual statement, with
which the employing establishment concurred, identifying repetitive typing as the cause of her
claimed upper extremity symptoms. The Board has held that an employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value.8
Although the Office found that the evidence was insufficient to establish that the claimed work
event occurred as alleged, the employer agreed with appellant’s description of her duties
involving typing and repetitive wrist movement. The Board will modify the Office’s January 27,
2010 decision to find that she has established the claimed workplace activity, typing, to which
she attributes her claimed carpal tunnel condition.
While the evidence supports that appellant performed the duties that she alleged, she has
not met her burden of proof to establish her claim as she has not submitted medical evidence that
diagnoses a medical condition for which compensation is claimed and she also has not submitted
any medical evidence establishing that her work duties caused or aggravated a diagnosed
medical condition.
On December 17, 2009 the Office advised appellant of the medical evidence needed to
establish her claim. Specifically, it asked her to submit a medical report from her physician
containing a diagnosis and the physician’s opinion as to the cause of the diagnosed condition.
5

See S.P., 59 ECAB 184, 188 (2007).

6

See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).
7

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.

8

R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008).

3

No medical evidence was submitted. Appellant submitted a January 12, 2010 letter noting that
she was diagnosed with bilateral carpal tunnel syndrome by her physician in November 2009.
However, she did not furnish any medical reports from her physician before the Office denied
her claim on January 27, 2010. Because there was no medical evidence submitted in support of
her duties, she failed to provide the medical evidence required to establish a prima facie claim.9
Appellant argues on appeal that she addressed the deficiencies in her claim as pointed out
in the Office’s December 17, 2009 letter and submitted evidence in a timely manner. She also
contends that she asked her physician on January 11, 2010 to send her medical records to the
Office. However, the Office did not receive any medical evidence prior to the issuance of its
January 27, 2010 decision.10 Appellant did not meet her burden of proof to establish her claim.
CONCLUSION
The Board finds that appellant did not establish that she sustained an occupational disease
in the performance of duty.

9

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008); Richard H. Weiss, 47 ECAB
182 (1995). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Development of Claims, Chapter 2.800.3(a)
(April 1993).
10

The Board notes that appellant submitted new medical evidence on appeal. As the Office did not considered
this evidence in reaching the January 27, 2010 decision, the Board may not consider it for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: November 16, 2010
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

5


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0327
Issued: May 6, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On November 26, 2019 appellant, through counsel, filed a timely appeal from a June 4,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions causally related to
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.

the accepted June 3, 2016 employment injury; and (2) whether appellant has met her burden of
proof to establish total disability from work for the period February 4 to May 26, 2017, and
commencing May 27, 2017, causally related to her accepted June 3, 2016 employment injury.
FACTUAL HISTORY
On June 10, 2016 appellant, then a 50-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 3, 2016 she fell down stairs injuring her low back while
in the performance of duty. OWCP accepted the claim for contusion of the lower back and pelvis.
Appellant stopped work on June 3, 2016.
In reports dated January 3 and 10, 2017, Dr. Kulbir S. Walia, a Board-certified
anesthesiologist, treated appellant for lower back pain, left buttock pain, and right groin pain that
was the result of a work-related fall on June 3, 2016. Appellant reported working full time until
January 4, 2017, when she stopped secondary to pain. Dr. Walia performed a trigger point
injection into the left gluteus and diagnosed right hip pain, lumbar radiculopathy, and myofascial
pain. He took appellant off work for two weeks.
A February 15, 2017 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
degenerative disc changes with ventral disc bulging at L3-4, disc protrusion at L2-3, L4-5, and
L5-S1, and canal stenosis. X-rays of the right hip of even date revealed mild degenerative disease.
On February 21, 2017 Dr. Walia diagnosed lumbar disc herniation and lumbar
radiculopathy and opined that appellant’s current symptoms were related to a work accident on
June 3, 2016. He reviewed the MRI scan results, noting lumbar disc pathology at L4-5 and L5-S1.
Dr. Walia held appellant off work.
Appellant was treated by Dr. David B. Dickerson, a Board-certified orthopedist, on
April 12, 2017, for significant left gluteal pain evidenced by a large hematoma and trauma to her
left hip from a fall down stairs at work. Dr. Dickerson requested that appellant’s case be expanded
to include a left hip injury and requested authorization for an MRI scan.
Appellant subsequently submitted claims for compensation (Form CA-7) alleging total
disability for the periods February 4 through April 28, 2017, April 29 through May 12, 2017,
May 13 through 26, 2017, and May 27 through June 9, 2017. In development letters dated June 6
and 20, 2017, it advised her of the necessary medical evidence to support disability during the
periods claimed. It afforded appellant 30 days to respond.
On March 20 and April 19, 2017 Dr. Dickerson evaluated appellant for left gluteal and
lower back pain and diagnosed contusion of the left hip and pain in the left hip. He recommended
an MRI scan to evaluate whether she sustained a gluteal tear or persistent hematoma. On May 31
and July 26, 2017 Dr. Dickerson treated appellant in follow-up for a left gluteal hematoma and
lower back injury, which she attributed to a fall on June 3, 2016. His examination revealed
significant tenderness over the left gluteal region and he diagnosed left hip pain. In an undated
report, Dr. Dickerson requested that appellant’s claim be expanded to include her left gluteal
region.

2

By decision dated August 28, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period February 4 to May 26, 2017, and commencing May 27, 2017, finding
that the medical evidence of record was insufficient to establish disability during the claimed
period.
OWCP subsequently received reports from Dr. Michael G. Absatz, a Board-certified
orthopedist, dated February 11 and June 23, 2004, and Dr. Steve Paragioudakis, a Board-certified
orthopedist, dated April 28, 2004, who treated appellant for left leg sciatic pain. They indicated
that she experienced good resolution of symptoms with physical therapy. On March 15 and
June 28, 2011 appellant was treated by Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon,
after a motor vehicle accident that occurred on January 19, 2011. Dr. Rosenblum diagnosed posttraumatic cervical and lumbar radiculopathy.3
In notes dated January 24 to March 10, 2017, Dr. Walia advised that appellant would be
off work until an MRI scan of the left hip was complete and she was seen in follow-up on
March 28, 2017. On March 24, 2017 he reported that due to the nature of her injuries, which
included herniated disc “at L2-3, L4-5, and L5-S1, the performance of her work duties which
included walking, stair-climbing, heavy lifting, pushing/pulling heavy equipment such as a mail
cart, mounting/dismounting a vehicle,” were not possible. Dr. Walia advised that appellant
orthopedist had placed her out of work until April 20, 2017.
In correspondence dated August 28, 2017, appellant, through counsel requested that her
claim be expanded to include lumbar disc herniation and radiculopathy.
On September 14, 2017 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. The hearing was held on February 27, 2018.
On March 6 and 20, 2018 Dr. Rosenblum opined that since the June 3, 2016 work-related
fall, appellant experienced neck pain radiating down her left extremity. He diagnosed cervical and
lumbar radiculopathy and recommended physical therapy.
On March 26, 2018 appellant was evaluated by Dr. Munir Ahmed, a Board-certified
orthopedist, who diagnosed left hip pain. Dr. Ahmed related that appellant was involved in a workrelated accident on June 3, 2016, when she fell down steps. He recommended physical therapy
and an MRI scan of the left hip. An attending physician’s report (Form CA-20) dated March 27,
2018 diagnosed tear of the gluteus muscle and pain in the left hip. Dr. Ahmed indicated by
checking a box marked “Yes” that the condition was caused or aggravated by an employment
activity.
Appellant was treated in follow-up by Dr. Walia on April 15, 2018, who provided a
detailed summary of medical treatment for injuries sustained in a motor vehicle accident on
January 19, 2011, and a fall at work on June 3, 2016. Dr. Walia diagnosed lumbar radiculitis,
3

OWCP also received diagnostic studies including an MRI scan of the lumbar spine dated April 12, 2004, which
revealed multilevel disc desiccation. Similarly, an MRI scan of the lumbar spine dated June 20, 2011, revealed mild
multilevel degenerative disc and facet disease, small central disc extrusion at L4-5 and L5-S1. An MRI scan of the
cervical spine of even date, revealed multilevel cervical spondylosis, disc extrusion, and disc osteophyte complex at
C5-6 distortion of the ventral cord.

3

lumbar disc herniation, and myofascial pain and indicated that within a reasonable degree of
medical probability these diagnoses were directly related to the fall on June 3, 2016. He opined
that the ongoing back pain radiating into the left buttocks, left hamstrings, and left gluteal was
related to the June 3, 2016 work incident, because appellant was asymptomatic prior to the injury.
Dr. Walia further noted that the forces suffered by the soft tissue in the lumbar region and lumbar
spine when she fell down steps caused lumbar radiculitis, hematoma, and myofascial pain.
By decision dated May 14, 2018, an OWCP hearing representative affirmed the August 28,
2017 decision.
OWCP continued to receive evidence. Reports from Dr. Ahmed dated April 17, 2018 and
February 19, 2019, opined that appellant was involved in a slip and fall accident at work on June 3,
2016, resulting in left hip pain, posterior thigh pain, left hamstring tendinopathy, and labral tear of
the left hip. Dr. Ahmed explained that, in the fall, the impact trauma to the left hip led to the labral
tear and associated tendinopathy. He opined that to a reasonable degree of medical certainty the
left hip injury was causally related to the fall on June 3, 2016, and was permanent in nature.
On March 14, 2019 appellant requested reconsideration.
By decision dated June 4, 2019, OWCP denied modification of the May 14, 2018 decision.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.5 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.6

4

See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018);
Jaja K. Asaramo, 55 ECAB 200 (2004).
5

See T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

6
See M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).

4

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions causally related to
the accepted June 3, 2016 employment injury.
OWCP accepted appellant’s claim for contusion of the lower back and pelvis. However,
it denied expansion of the acceptance of her claim to include additional diagnosed conditions as
her physicians had not provided sound medical rationale explaining how the June 3, 2016
employment injury caused or contributed to the additional diagnosed conditions.
Appellant submitted a series of reports from Dr. Walia dated January 3 to March 10, 2017,
who diagnosed right hip pain, lumbar radiculopathy, myofascial pain, lumbar disc herniation, and
lumbar radiculopathy, opining that her current symptoms were causally related to the work
accident on June 3, 2016. Similarly, on March 24, 2017, Dr. Walia opined that due to appellant’s
injuries including herniated disc at L2-3, L4-5, and L5-S1, the performance of her work duties
would worsen her ongoing lumbar radicular symptoms. While he provided affirmative opinions,
which supported causal relationship, he did not offer a rationalized medical explanation in any of
his reports to support his opinion. Medical evidence that provides a conclusion, but does not offer
a rationalized medical explanation regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.7
On April 15, 2018 Dr. Walia diagnosed lumbar radiculitis, lumbar disc herniation, and
myofascial pain and opined within a reasonable degree of medical probability these diagnoses
were directly related to the fall on June 3, 2016 because appellant was asymptomatic prior to the
injury. However, the Board has held that an opinion that a condition is causally related to an
employment injury because the employee was asymptomatic before the injury is insufficient,
without adequate rationale, to establish causal relationship.8 For these reasons, the Board finds
that Dr. Walia’s reports are insufficient to meet appellant’s burden of proof.
Reports from Dr. Dickerson dated March 20 to July 26, 2017, diagnosed contusion of the
left hip and left hip pain caused by a fall down stairs at work on June 3, 2016. Likewise, reports
from Dr. Rosenblum dated March 6 and 20, 2018, diagnosed cervical and lumbar radiculopathy
and opined that since the June 3, 2016 work-related fall, appellant experienced neck pain down
her left extremity. However, both physicians failed to offer medical rationale explaining how
appellant’s diagnosed conditions were caused or aggravated by the June 3, 2016 accepted
employment injury. As noted, the failure to provide medical rationale in support of a causation
finding, results in the determination that Drs. Dickerson and Rosenblum’s reports are insufficient
to establish appellant’s burden of proof.9

7

C.V., Docket No. 18-1106 (issued March 20, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
8

See F.H., Docket No. 18-1238 (issued January 18, 2019); J.R., Docket No. 18-0206 (issued October 15, 2018).

9

M.C., Docket No. 18-0361 (issued August 15, 2018).

5

Reports from Dr. Ahmed dated March 26 and April 17, 2018, diagnosed left hip pain and
possible tear of the gluteus muscle, and bursitis of the left hip related to a work-related fall on
June 3, 2016. Similarly, on February 19, 2019, Dr. Ahmed diagnosed left hip pain, left hamstring
tendinopathy, and labral tear of the left hip and opined to a reasonable degree of medical certainty
the left hip injury was causally related to the fall on June 3, 2016. However, no supporting medical
rationale was given explaining Dr. Ahmed’s conclusory opinion regarding the relationship
between the diagnosed conditions and the accepted June 3, 2016 employment injury.10 Dr. Ahmed
did not explain how specific employment factors physiologically caused any of the diagnosed
conditions. Without explaining how, physiologically, the movements involved in appellant’s
June 3, 2016 employment injury, caused or contributed to her additional diagnosed conditions, his
opinion on causal relationship is insufficiently rationalized and is of limited probative value.11 In
an attending physician’s report (Form CA-20) dated March 27, 2018, Dr. Ahmed diagnosed tear
of the gluteus muscle and pain in the left hip and indicated by checking a box marked “Yes” that
the condition was caused or aggravated by an employment activity. The Board has held that a
report that addresses causal relationship with a checkmark, without medical rationale explaining
how the employment incident caused the alleged injury, is of diminished probative value and
insufficient to establish causal relationship.12
Other medical records from Dr. Absatz and Dr. Paragioudakis from 2004 are of no value
in establishing the claimed conditions since they predate the time of the claimed incident on
June 3, 2016.
Appellant submitted multiple diagnostic testing reports. The Board has held that diagnostic
studies standing alone are of limited probative value as they do not address whether the
employment incident caused any of the diagnosed conditions.13
Appellant also submitted reports signed solely by a physical therapist. These reports do
not constitute competent medical evidence because a physical therapist is not considered a
“physician” as defined under FECA.14 Consequently, the medical findings and/or opinions of a

10

See V.P., Docket No. 17-1925 (issued March 1, 2018); T.M., Docket No. 08-0975 (issued February 6, 2009);
Beverly A. Spencer, 55 ECAB 501 (2004).
11

See V.P., id.; M.C., Docket No. 17-1579 (issued November 28, 2017).

12
See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006); Deborah L.
Beatty, 54 ECAB 340 (2003).
13

J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

14

Section 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also J.R., Docket No. 20-0496 (issued August 13, 2020) (physical therapists are not considered
physicians under FECA); J.D., Docket No. 16-1752 (issued March 1, 2017).

6

physical therapist will not suffice for purposes of establishing entitlement to compensation
benefits.15
As the medical evidence of record is insufficient to establish that the acceptance of the
claim should be expanded to include additional conditions, the Board finds that appellant has not
met her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.16 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.17
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.18 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.19
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.20 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.21
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish total disability
for the period February 4 to May 26, 2017 and commencing May 27, 2017, causally related to her
accepted June 3, 2016 employment injury.

15

Id.

16

See M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
17

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

18

Id. at § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

19

See G.T., Docket No. 18-1369 (issued March 13, 2019); Merle J. Marceau, 53 ECAB 197 (2001).

20

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

21
C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).

7

Dr. Walia, in reports dated January 3, 2017 to April 15, 2018, opined that appellant was
totally disabled due to nonaccepted conditions, which included right hip pain, lumbar
radiculopathy, myofascial pain, and disc herniations at L2-3, L4-5, and L5-S1. He failed to explain
why she was disabled during this time period due to objective medical findings related to her
accepted conditions. To establish a period of disability the medical evidence must provide a
discussion of how objective medical findings attributable to the accepted conditions support a
finding that appellant could not perform her employment duties.22 These reports are, therefore,
insufficient to establish appellant’s disability claims. Reports from Dr. Walia dated January 24 to
March 10, 2017, advised that appellant would be off work until she underwent an MRI scan and
was seen in follow-up on March 28, 2017. While Dr. Walia opined that appellant was totally
disabled from work, he did not provide medical rationale explaining why her disability was due to
the accepted employment injury.23 Thus, these reports are insufficient to establish appellant’s
disability claims.
In reports dated March 20 to April 19, 2017, Dr. Dickerson diagnosed contusion of the left
hip and left hip pain caused by a fall at work on June 3, 2016. Similarly, in reports dated March 6
and 20, 2018, Dr. Rosenblum diagnosed cervical and lumbar radiculopathy and attributed the
radiating neck pain to the June 3, 2016 work-related fall. However, the Board notes that
appellant’s condition was not accepted for cervical and lumbar radiculopathy. Drs. Dickerson and
Rosenblum did not otherwise provide an opinion on whether appellant was disabled from work
during the claimed period due to her accepted employment injury. Accordingly, their reports are
of no probative value and are insufficient to establish appellant’s claim for compensation.24
Reports from Dr. Ahmed dated March 26, 2018 to February 19, 2019, diagnosed left
hamstring tendinopathy, labral tear of the left hip, bursitis of the left hip, and pain in the left hip
and opined that to a reasonable degree of medical certainty the left hip injury was causally related
to the fall on June 3, 2016. However, he did not address whether she was disabled causally related
to the accepted employment conditions of contusion of the lower back and pelvis due to the
accepted June 3, 2016 employment injury.25 Thus these reports are of no probative value and are
insufficient to establish appellant’s claim for compensation.26
An attending physician’s report (Form CA-20) dated March 27, 2018, diagnosed tear of
the gluteus muscle and pain in the left hip. Dr. Ahmed indicated by checking a box marked “Yes”
that the condition was caused or aggravated by an employment activity. This report does not
provide an opinion on whether the claimed disability is causally related to the accepted
employment injury.27 Therefore it is of no probative value and insufficient to establish the claim.
22

See W.E., Docket No. 17-0451 (issued November 20, 2017).

23

See E.B., Docket No. 17-0875 (issued December 13, 2018); C.L., Docket No. 16-0004 (issued June 14, 2016).

24

See M.M., Docket No. 18-0817 (issued May 17, 2019); M.C., Docket No. 16-1238 (issued January 26, 2017).

25

J.M., Docket No. 18-0847 (issued December 5, 2019).

26

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

27

See L.B., id.

8

Other reports from Dr. Absatz dated February 11 and June 23, 2004, Dr. Paragioudakis
dated April 28, 2004, and Dr. Rosenblum dated March 15 and June 28, 2011, predate the claimed
period of disability and thus are not relevant to the specific period of disability claimed. The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.28 Thus, these reports are also insufficient to establish appellant’s disability claims.
The Board, therefore, finds that the medical evidence of record is insufficient to establish
appellant’s claim of total disability for the period February 4 to May 26, 2017, and commencing
May 27, 2017 causally related to her accepted June 3, 2016 employment injury.29
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional conditions causally related to
the accepted June 3, 2016 employment injury. The Board further finds that she has not met her
burden of proof to establish total disability from work for the period February 4 to May 26, 2017,
and commencing May 27, 2017 causally related to her accepted June 3, 2016 employment injury.

28

See E.B., Docket No. 17-0875 (issued December 13, 2018); C.L., Docket No. 16-0004 (issued June 14, 2016).

29

The Board notes that on March 12, 2018 appellant filed a recurrence of disability claim (Form CA-2a) asserting
that on December 19, 2016, she had a recurrence of stabbing pain in the left buttock region while walking her mail
route. She stopped work on January 4, 2017. The record reflects that OWCP has not adjudicated that claim.

9

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket Nos. 11-1379 & 12-1308
Issued: September 26, 2012

Case Submitted on the Record

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

JURISDICTION
On May 19, 2011 appellant, through her attorney, filed a timely appeal of decisions of the
Office of Workers’ Compensation Programs (OWCP) dated December 28, 2010,1 January 11 and
February 28, 2011 and two decisions dated April 26, 2011. The Board assigned this appeal
Docket No. 11-1379. Subsequently, on June 14, 2011 appellant also appealed from an OWCP
decision dated May 25, 2011, to which the Board assigned Docket No. 12-1308. 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

Appellant did not appeal the December 28, 2010 decision denying intermittent periods of disability for the
period October 23 to November 19, 2010. As such, this decision is not addressed on this appeal. 20 C.F.R. § 501.3.
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met her burden of proof to establish intermittent
periods of disability from May 8 to October 8, 2010; and (2) whether she met her burden of
proof to modify OWCP’s April 8, 2009 loss of wage-earning capacity decision.
On appeal appellant, through counsel, argued that she established a recurrence of
disability because the employing establishment withdrew her light-duty position. She also
contended that the loss of wage-earning capacity determination was erroneous because the
position she held was makeshift.
FACTUAL HISTORY
On November 21, 2007 appellant, then a 58-year-old letter carrier, filed a traumatic
injury claim alleging that on November 5, 2007 she was hit by a car and sustained an injury to
her left leg. On January 2, 2008 OWCP accepted her claim for a closed fracture of the upper end
of the left tibia. It later accepted appellant’s claim for traumatic arthropathy of the left lower leg.
On July 28, 2008 appellant accepted a modified limited-duty position as a carrier. Her position
had restrictions of sitting five hours a day and walking and standing were limited to one hour a
day. Appellant was also restricted to pushing/pulling/lifting up to 15 pounds for one hour a day.
She returned to work in this light-duty full-time position on August 1, 2008.
In a February 2, 2009 report, Dr. Gene Shaffer, a treating Board-certified orthopedic
surgeon, stated that appellant was status post tibial plateau fracture, with post-traumatic arthritis.
He noted that she had resumed work on a modified-duty schedule, which involved sitting,
restricted standing and walking and less driving of a truck. Appellant had no brace or support
but used a cane occasionally. Dr. Shaffer stated that he agreed with the modified-duty
assignment at the employing establishment.
In a decision dated April 8, 2009, OWCP found that appellant had been recently
employed in a modified carrier position for eight months with wages of $1,032.38 a week. It
found that her actual wages resulted in no loss in earning capacity.
On May 21, 2010 appellant filed a claim for compensation for the period May 8
through 21, 2010. A May 25, 2010 time analysis form indicated that she did not work
intermittent hours between May 12 and 21, 2010. The reason given for leave was “no work.”
By decision dated June 29, 2010, OWCP denied appellant’s claim for compensation from
May 8 through 21, 2010. It determined that she had not met the requirements for modifying the
2009 wage-earning capacity determination.
Appellant requested an oral hearing before an OWCP hearing representative that was
held on October 6, 2010. She testified that she returned to full-time work in August 2008 in a
position that allowed her to sit or stand and that she was okay doing that job. Appellant
continued to work in that position until May 8, 2000 when she was told to go home after five or
six hours because there was no light-duty work available. She missed three hours of work that
day and, thereafter, was sent home earlier and earlier.

2

In a December 28, 2010 decision, an OWCP hearing representative affirmed the June 29,
2010 decision as the evidence failed to establish that the loss of wage-earning capacity
determination of April 8, 2009 should be modified. The hearing representative further
determined that the evidence failed to establish that appellant was disabled from May 8
to 21, 2010.
Appellant submitted additional claims for compensation for missed hours.
Appellant’s claim for compensation for the period June 19 through July 2, 2010 was
denied by OWCP in an August 24, 2010 decision. This decision was affirmed by a hearing
representative in a decision dated January 11, 2011. The hearing representative found that
appellant did not meet the burden of proof for modification of the April 8, 2009 loss of wageearning capacity determination. The hearing representative noted that the medical evidence of
record did not establish that the accepted condition worsened or that an increase in injury-related
disability occurred.
In an August 4, 2010 decision, OWCP denied appellant’s claim for compensation for the
period June 5 through 18, 2010. This decision was affirmed by an OWCP hearing representative
on February 28, 2011. The hearing representative found that the evidence failed to establish any
error with regard to the loss of wage-earning capacity determination rendered on April 8, 2009.
Appellant’s claim for compensation for the period July 3 through 16, 2010 was denied by
OWCP on September 14, 2010. This decision was affirmed by an OWCP hearing representative
on April 26, 2011. The hearing representative found that appellant had not established that the
April 8, 2009 loss of wage-earning capacity decision should be modified.
Appellant’s claim for compensation for the period July 17 through August 13, 2010 was
denied by OWCP on September 24, 2010. This decision was affirmed by an OWCP’s hearing
representative on April 26, 2011. The hearing representative found that appellant had not
established that the April 8, 2009 decision should be modified.
Appellant’s claim for compensation for August 14 through September 13, 2010 was
denied by OWCP on October 18, 2010. By decision dated November 3, 2010, OWCP denied her
claim for compensation for the period September 10 through 24, 2010. It denied appellant’s
claim for compensation for the period September 27 to October 8, 2010 in a November 15, 2010
decision.
By letter dated November 15, 2010, OWCP noted that it had received appellant’s claim
for wage loss from October 23 through November 7, 2010. It advised that the evidence indicated
that specific hours of her limited-duty assignment had been withdrawn as part of the National
Reassessment Process (NRP).
The decisions of October 18, November 3 and 15, 2010 were affirmed by an OWCP
hearing representative on May 25, 2011. The hearing representative found that appellant had not
established that the loss of wage-earning capacity determination should be modified. The
hearing representative did find that there was sufficient evidence to support that appellant had
developed left knee post-traumatic arthritis in the lateral compartment due to her work-related
injury. The hearing representative determined that the medical evidence did not establish that
3

the left knee arthritis impacted her ability to perform her modified duty. The hearing
representative noted that the diagnosis of lateral tibial plateau fracture, left knee was medically
connected to her work-related injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.4
Once the wage-earning capacity is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original
determination was, in fact, erroneous. These are the customary criteria for modification and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.5
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of wageearning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.6
ANALYSIS
OWCP accepted appellant’s claim for closed fracture of the upper end of the left tibia and
for traumatic arthopathy of the left lower leg. Appellant returned to work in a limited-duty
assignment on July 28, 2008. On May 8, 2010 the employing establishment reduced her hours of
work in her modified position. Appellant filed claims for compensation that showed loss of
intermittent hours for periods starting May 8, 2010. She indicated that she was sent home
because no work was available.
On April 8, 2009 OWCP issued a loss of wage-earning capacity decision. The employing
establishment reassessed appellant’s position under NRP which resulted in her being assigned to
a limited-duty position with limited hours. OWCP analyzed the case under the customary
criteria for modifying a loss of wage-earning capacity determination, but did not acknowledge
3

5 U.S.C. § 8102(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009)
5

Daniel J. Boesen, 38 ECAB 556 (1987)

6

FECA Bulletin No. 09-05 (issued August 18, 2009).

4

FECA Bulletin No. 09-05 or fully follow the procedures outlined therein for claims, such as this,
in which limited-duty positions are withdrawn pursuant to NRP.7
When a loss of wage-earning capacity decision has been issued and the position is later
withdrawn pursuant to NRP, FECA Bulletin No. 09-05 requires OWCP to develop the evidence
to determine whether a modification of the decision is appropriate.8 To this end, FECA Bulletin
No. 09-05 states that OWCP should confirm that the file contains documentary evidence
supporting that the position was an actual bona fide position. It requires OWCP to review
whether a current medical report supports work-related disability and establishes that the current
need for limited duty or medical treatment is a result of injury-related residuals, and to further
develop the evidence from both the claimant and the employing establishment if the case lacks
current medical evidence.9
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating and
to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.10
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the December 28, 2010 and January 11, February 28, April 26 and May 25, 2011 decisions
and remand the case for further consideration. After proper compliance with FECA Bulletin
No. 09-05 guidelines, OWCP shall issue an appropriate de novo decision on appellant’s
entitlement to wage-loss compensation beginning May 8, 2009.11
CONCLUSION
The Board finds that this case is not in posture for decision.

7

See M.A., Docket No. 12-316 (issued July 24, 2012).

8

FECA Bulletin No. 09-05, supra note 6.

9

Id. at §§ I.A.1-2.

10

Id. at § I.A.3.

11

M.A., supra note 7; see also M.E., Docket No. 11-1416 (issued May 17, 2012).

5

ORDER
IT IS HEREBY ORDERED THAT the May 25, April 26, February 28 and January 11,
2011 and December 28, 2010 decisions of the Office of Workers’ Compensation Programs are
set aside and the case remanded for further action.
Issued: September 26, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0500
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a July 14, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0500.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 14, 2021 decision was January 10, 2022. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
July 14, 2021 OWCP decision, the Board finds that the appeal docketed as No. 22-0500 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained his failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the ap peal docketed
as No. 22-0500, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0500 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2