United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1180
Issued: February 16, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 31, 2009 appellant filed a timely appeal of a December 18, 2008 decision of
the Office of Workers’ Compensation Programs affirming the termination of her wage-loss
compensation benefits
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective December 20, 2008.
FACTUAL HISTORY
On January 26, 2006 appellant, then a 44-year-old city carrier, filed a traumatic injury
claim alleging that on that date she injured her left forearm after falling down several steps while
delivering mail. She stopped work on January 27, 2006 and underwent an open reduction with
internal fixation on her left forearm. On March 3, 2006 the Office accepted appellant’s claim for

closed left fracture of the radius and ulna. On September 5, 2006 appellant returned to light duty
working four hours per day.1
Reports dated between February 6 and June 14, 2006 from appellant’s treating physician,
Dr. David Tuckman, a Board-certified orthopedic surgeon, diagnosed left radial and ulna
fractures. Dr. Tuckman also recommended physical therapy and noted that appellant was not yet
able to return to work.
On June 20, 2006 the Office referred appellant, with a statement of accepted facts, to
Dr. P. Leo Varriale, a Board-certified orthopedic surgeon, for a second opinion evaluation. It
inquired whether appellant had any continued disability as a result of the accepted work injury.
In a July 10, 2006 report, Dr. Varriale diagnosed status post open reduction and internal fixation
of the radius and ulna of the left forearm with radial sensory nerve deficit. He opined that
appellant had not fully recovered from the effects of her injury and required continued physical
therapy. Dr. Varriale noted that appellant had a nerve injury to her forearm related to the surgery
and work injury. He advised that appellant could return to light duty without repetitive use of
her left arm and no lifting over one pound. In a July 12, 2006 work capacity evaluation form,
Dr. Varriale indicated that appellant could not perform her usual job because her arm fractures
were healing, however, she could work four hours per day with restrictions.
From August 10, 2006 and March 18, 2008 Dr. Tuckman advised that appellant
continued working limited duty at four hours per day. Beginning December 28, 2006, appellant
was also treated by Dr. Gary Kaplan, a Board-certified psychiatrist and neurologist, who noted
the history of injury and advised that appellant required continued light duty due to persistent
functional and motor deficits that were residuals of the accepted fracture and its repair.
Dr. Kaplan restricted appellant to light duty for four hours a day.
On February 21, 2008 the Office referred appellant to Dr. Frank Hudak, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a March 19, 2008 report, Dr. Hudak
reviewed appellant’s history of injury and medical records and conducted a physical
examination. He opined that appellant had not totally recovered from the effects of her work
injury as she had residual loss of sensation of the superficial radial nerve of the left forearm.
Dr. Hudak found, however, that appellant could increase her schedule to eight hours a day as the
loss of sensation condition was not functionally significant in terms of work activity. He advised
that appellant could return to full duty as a city carrier and that she did not require further
treatment as she had reached maximum medical improvement.
On April 24, 2008 Dr. Kaplan noted a small area over the radial aspect of appellant’s left
forearm distally of decreased sensation. He opined that appellant had continued functional
disability of the left upper extremity as she was unable to lift or carry. Dr. Kaplan advised that
she continue with light duty at four hours a day.

1

Upon appellant’s return to work part time, she received wage-loss compensation for the other four hours per day
for her partial disability.

2

On May 15, 2008 the Office proposed to terminate appellant’s wage-loss compensation,
finding that the weight of medical evidence, represented by Dr. Hudak’s report, established that
appellant no longer remained disabled from performing the duties of her preinjury job.
In a statement dated May 12, 2008, appellant’s representative contended that appellant
sustained additional work-related injuries and conditions from the January 26, 2006 event that
should be accepted based on the medical evidence from Dr. Kaplan.
In a July 24, 2008 letter, the Office notified appellant that there was a conflict in medical
evidence between Dr. Hudak, who opined that appellant could return to full duty as her left
forearm condition was not functionally significant to her work activity, and Dr. Kaplan, who
opined that she had continued functional disability requiring continued part-time light duty. On
July 24, 2008 it referred appellant with a statement of accepted facts to Dr. Norman Sveilich, an
osteopath Board-certified in orthopedic surgery, to resolve the conflict in medical opinion.
In an August 21, 2008 report, Dr. Sveilich summarized appellant’s work injury and
medical treatment. X-rays of the left radius and ulna performed at the examination revealed two
bone fractures, plated and healed in acceptable alignment. Dr. Sveilich diagnosed residual
hypoesthesia sensory nerve, two to three centimeters proximally to the left anterior wrist
laterally, and mild disuse muscle atrophy. He also noted permanent partial physical disability.
Dr. Sveilich opined that appellant’s work injury caused her left forearm fractures and that
surgery was necessary because the fractures were not in satisfactory alignment. He further
opined that the surgery led to sensory nerve ulnar injury with nerve entrapment causing residual
hypoesthesia. Dr. Sveilich advised that appellant was able to perform her regular full work
duties. In an attached examination report dated August 4, 2008, he noted appellant’s history and
complaints of left wrist joint pain. Dr. Sveilich’s examination revealed no left hand muscle
atrophy, no left wrist instability and normal motion. He also found no atrophy of the extensor,
flexor and pronator muscles of the left forearm. Dr. Sveilich noted slight decrease of extension
and flexion strength of the left wrist. He further found no swelling or deformity of the left elbow
and normal motion. Dr. Sveilich assessed permanent partial physical disability, mild disuse
muscle atrophy and residual hypoesthesia sensory nerve. He advised that appellant was fully fit
for work.
In a September 10, 2008 letter, the Office requested clarification from Dr. Sveilich
regarding his opinion that appellant had permanent partial disability but was also fit for full duty.
In a September 18, 2008 addendum report, Dr. Sveilich indicated that residual hypoesthesia of
the nerve fibers were the basis of appellant’s permanent partial disability rating. He advised that
this finding had no effect on her ability to function.
On September 15, 2008 an Office medical adviser concurred with Dr. Sveilich’s opinion
on causal relationship.
In an October 10, 2008 decision, the Office expanded appellant’s accepted conditions to
include hypoesthesia of the sensory nerve, two to three centimeters proximally to the left anterior
wrist laterally. Also on that date, it issued a notice of proposed termination of wage-loss
compensation, finding that the weight of medical evidence rested with Dr. Sveilich’s report and

3

established that the accepted medical condition no longer caused disability from work. The
Office noted that appellant would remain entitled to medical benefits.2
Appellant submitted a November 4, 2008 report from Dr. Tuckman, who reported that
appellant’s left arm wound had healed and there was full range of motion. Dr. Tuckman
recommended that appellant continue light duty with four-hour workdays and follow up with
treatment as needed. A November 19, 2008 report from Dr. Kaplan noted that appellant still had
difficulty carrying with her left arm and that there was tenderness with pressure over the dorsal
aspect of the proximal left forearm. Dr. Kaplan also noted occasional left shoulder pain and no
focal motor deficits. He opined that appellant remain disabled from full duty and continue with
light duty.
In a December 2, 2008 statement, appellant’s representative noted that he had previously
submitted a request for expanded accepted condition due to appellant’s work injury. He asserted
that the evidence of record established that appellant was only capable of performing light duty.
In a December 18, 2008 decision, the Office terminated appellant’s wage-loss benefits
effective December 20, 2008 finding that Dr. Sveilich, who represented the weight of medical
evidence, found that appellant had no continued disability and that other evidence submitted was
insufficient to alter this recommendation.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 After it has determined that an employee has disability
causally related to his federal employment, the Office may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6

2

On November 5, 2008 the Office reissued the proposed notice and sent a copy to appellant’s representative as
the original notice was only sent to appellant.
3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Fermin G. Olascoaga, 13 ECAB 102,
104 (1961).
4

Vivien L. Minor, 37 ECAB 541 (1986).

5

T.P., 58 ECAB 524 (2007); Larry Warner, 43 ECAB 1027 (1992).

6

5 U.S.C. § 8123(a).

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ANALYSIS
The Office accepted that appellant’s January 26, 2006 work injury caused closed left
fracture of the radius and ulna and hypoesthesia sensory nerve, two to three centimeters
proximally to the left anterior wrist laterally. It paid appellant appropriate compensation before
terminating her wage-loss compensation effective December 20, 2008. The Board finds that the
Office met its burden to establish that appellant was no longer disabled from her job effective
December 20, 2008.
The Office properly determined that a conflict existed in the medical evidence as to
whether appellant had any disability due to her accepted left forearm condition. Appellant’s
treating physician, Dr. Kaplan, indicated that appellant had continued functional disability of the
left upper extremity due to her work injury as she was unable to lift or carry, and therefore,
advised continued light duty at four hours per day. On the other hand, the second opinion
physician, Dr. Hudak, opined that appellant could return to full duty as her residual loss of
sensation of the superficial radial nerve of the left forearm was not disabling.
The Office properly referred appellant to Dr. Sveilich for an independent medical
examination to resolve the conflict in medical opinion between Drs. Kaplan and Hudak as to
whether appellant had any disability due to the accepted left forearm condition. In reports dated
August 4 and 21, 2008, Dr. Sveilich provided a detailed history of appellant’s condition in which
he reviewed the medical record. He conducted a comprehensive examination noting that
appellant had no left hand muscle atrophy, no left wrist instability, no atrophy of the extensor,
flexor and pronator muscles in the left forearm, no swelling or deformity and normal motion.
Moreover, x-rays performed at the examination revealed that appellant’s fractures were healed
and in acceptable alignment. Dr. Sveilich diagnosed residual hypoesthesia sensory nerve near
the left wrist and mild disuse muscle atrophy and opined that this was due to the work injury. He
also noted some permanent partial disability. Based on his findings, Dr. Sveilich concluded that
appellant was fit to perform her regular full-duty position.
On September 10, 2008 the Office asked Dr. Sveilich to clarify if appellant was fit for
full duty if she had permanent partial disability.7 In a September 18, 2008 addendum report,
Dr. Sveilich indicated that residual hypoesthesia of the nerve fibers was the basis of appellant’s
permanent partial disability rating. However, he explained that this finding had no effect on
appellant’s ability to function.
The Board finds that Dr. Sveilich’s opinion is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight8 and establishes that
appellant is no longer disabled from her regular job. Dr. Sveilich had a statement of accepted
7

When the Office secures an opinion from an impartial medical specialist for the purpose of resolving a conflict
in the medical evidence and the opinion from the specialist requires clarification or elaboration, it has the
responsibility to secure a supplemental report from the specialist for the purpose of correcting a defect in the original
report. T.C., 60 ECAB __ (Docket No. 08-2112, issued June 12, 2009).
8

See Y.A., 59 ECAB __ (Docket No. 08-254, issued September 9, 2008) (when a case is referred to an impartial
medical specialist for the purpose of resolving a conflict in medical opinion, the opinion of such specialist, if
sufficiently well rationalized and based on a proper background, must be given special weight).

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facts, appellant’s position description and his report accurately summarized the relevant medical
evidence. Furthermore, he analyzed the case record and his own findings on examination to
support his conclusion regarding appellant’s left forearm condition.9
Dr. Sveilich’s
comprehensive report noted detailed examination findings and he found no basis for any work
restrictions due to residuals of appellant’s work injury.
Following receipt of Dr. Sveilich’s reports, appellant submitted additional medical
evidence. However, this evidence is insufficient to overcome the weight of Dr. Sveilich’s
opinion or to create a new medical conflict. A November 19, 2008 report from Dr. Kaplan, who
was on one side of the conflict resolved by Dr. Sveilich,10 provided no new rationale in support
of continuing causal relationship for appellant’s left forearm condition and is insufficient to
create a new conflict or overcome Dr. Sveilich’s report. Likewise, Dr. Tuckman’s November 4,
2008 report did not offer any medical rationale to support that appellant had an ongoing workrelated disability.11
For these reasons, the weight of the medical evidence rests with Dr. Sveilich and
establishes that appellant had no continued disability due to her accepted left forearm conditions,
and therefore, the Office met its burden of proof to terminate appellant’s wage-loss
compensation benefits.
On appeal, appellant asserts that nothing in the Office’s December 18, 2008 decision
negates the evidence or arguments outlined in the statements submitted by her representative
requesting expanded accepted medical conditions. She also asserts that the Office did not refer
to her representative’s December 2, 2008 response in its December 18, 2008 decision. However,
the Board notes that the Office was responsive to appellant’s request to update accepted
conditions when it accepted sensory nerve hypoesthesia based on Dr. Sveilich’s reports.
However, Dr. Sveilich provided no support for any other conditions being work related and
appellant did not submit any reasoned medical evidence explaining how any particular
nonaccepted conditions were caused or aggravated by appellant’s work injury.12 Appellant
further asserts that the medical evidence of record makes the termination of wage-loss
compensation improper. As noted, the weight of the medical evidence rests with Dr. Sveilich’s
9

See Naomi Lilly, 10 ECAB 560 (1959) (the opportunity for and thoroughness of examination, the accuracy and
completeness of the doctor’s knowledge of the facts and medical history, the care of analysis manifested and the
medical rationale expressed in support of the doctor’s opinion are factors which enter into the weight of an
evaluation).
10

I.J., 59 ECAB __ (Docket No. 07-2362, issued March 11, 2008); see also Dorothy Sidwell, 41 ECAB
857 (1990) (reports from a physician who was on one side of a medical conflict that an impartial specialist resolved,
are generally insufficient to overcome the weight accorded to the report of the impartial medical examiner, or to
create a new conflict).
11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

See T.M., 60 ECAB __ (Docket No. 08-975, issued February 6, 2009) (where a claimant claims that a condition
not accepted or approved by the Office was due to an employment injury, the claimant bears the burden of proof to
establish that the condition is causally related to the employment injury through the submission of rationalized
medical evidence).

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opinion as the independent medical evaluator, who found that appellant’s left forearm conditions
no longer resulted in any disability from her job.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation effective December 20, 2008.13
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs
decisions dated December 18, 2008 is affirmed.
Issued: February 16, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

Following issuance of the Office’s December 18, 2008 decision, additional evidence was received into the
record. However, the Board may only review evidence that was in the record at the time the Office issued its final
decision. See 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
U.S. POSTAL SERVICE, EASTSIDE STATION,
Savannah, GA, Employer
__________________________________________

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Appearances:
Glenn Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1264
Issued: February 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 24, 2006 appellant filed a timely appeal from a September 6, 2005 merit
decision of the Office of Workers’ Compensation Programs terminating her benefits. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. The
Board also has jurisdiction to review the Office’s January 20, 2006 nonmerit decision denying
reconsideration.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
medical and wage-loss compensation benefits effective September 6, 2005, on the grounds that
she had no further residuals due to her accepted March 1, 2004 employment injury; and
(2) whether the refusal of the Office to reopen appellant’s case for further reconsideration on the
merits pursuant to 5 U.S.C. § 8128(a) constituted an abuse of discretion.

FACTUAL HISTORY
On March 11, 2004 appellant, a 54-year-old casual letter carrier,1 filed a traumatic injury
claim alleging that she injured her knees on March 1, 2004 when she stepped in a gopher hole
and fell over a tree stump.2 The Office accepted the claim for bilateral knee sprain and
authorized arthroscopic left knee surgery, which was performed on September 23, 2004.
Appellant was placed on the periodic rolls for temporary total disability effective July 11, 2004.
In an October 8, 2004 report, Dr. Mark A. Winchell, a treating Board-certified orthopedic
surgeon, opined that appellant was doing well following the arthroscopic surgery. A physical
examination revealed no calf pain, no significant effusion or crepitants and “good range of
motion with some minimal stiffness.” He reported appellant was healing well from the surgery
and released her to return to work in early November. In an accompanying work capacity
evaluation form (FORM OWCP-5c), Dr. Winchell released appellant to full duty effective
November 1, 2004.
On December 8, 2004 the Office issued a notice of proposed termination of compensation
benefits. The Office proposed to terminate appellant’s wage-loss and medical compensation
benefits based on Dr. Winchell’s report.
In response, appellant submitted reports dated December 22, 2004 and March 18, 2005,
by Dr. Winchell and a January 26, 2005 functional capacity evaluation (FCE). On December 22,
2004 Dr. Winchell noted a good range of motion in the knee with no instability or crepitants.
Appellant reported leg pain and “her leg gives out on her fairly regularly.” Dr. Winchell
diagnosed “[l]eft knee pain of unknown origin” post knee arthroscopy. On March 18, 2005 he
diagnosed “left knee patellofemoral arthritis exacerbated by long distance walking and stress
related to her [employing establishment] training.” A physical examination revealed good left
knee “range of motion with some patellofemoral crepitants.” Dr. Winchell concluded that
appellant was capable of working with restrictions including lifting no more than 56 pounds and
limited stair climbing and walking.3 The latter restrictions on stair climbing and walking were to
reduce “her likelihood of arthritis progression.”
In a July 11, 2005 report, Dr. Winchell concluded that appellant’s knee strain had
resolved. He related that appellant “most likely had an underlying patellofemoral degenerative
problem” which had been aggravated by activity required in her job training. Dr. Winchell
stated that “[t]his would explain the synovitis, her intermittent stiffness and patellofemoral pain.”
He opined that appellant was capable of performing her date-of-injury job with restrictions.
Dr. Winchell noted that the physical restrictions were due to her preexisting arthritic condition
and were unrelated to her accepted knee strain. He reported that appellant had been discharged
from his care.
1

Appellant had been in the position approximately three weeks prior to sustaining her injury.

2

The employing establishment terminated appellant’s employment effective June 25, 2004.

3

On June 3, 2005 the employing establishment offered appellant a modified job based upon the restrictions set by
Dr. Winchell. Appellant rejected the job offer.

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In letters dated July 25 and August 1, 2005 appellant’s counsel requested that the Office
expand her claim to accept a consequential emotional condition.
On August 3, 2005 the Office issued notice of proposed termination of benefits. It
proposed to terminate appellant’s wage-loss and medical compensation benefits based on
Dr. Winchell’s July 11, 2005 report.
On August 3, 2005 the Office received a statement detailing her claim of a hostile work
environment and discrimination by her supervisor. In a June 6, 2005 report, Dr. Daniel B.
Nagelberg, Ph.D., a licensed clinical psychologist, opined that appellant’s “emotional problems
appear directly related to her work-related injury (left knee).” Dr. Nagelberg also attributed the
emotional condition to alleged discrimination appellant suffered at the employing establishment
before her termination by the employing establishment.
Appellant subsequently submitted additional factual and medical evidence. She
attributed her depression to harassment and discrimination following her knee injury. In a
May 12 2005 report, Dr. Nagelberg noted appellant’s medical history, employment history and
diagnosed depression.
In a letter dated August 11, 2005, the Office informed appellant that she must continue to
pursue her emotional condition claim under the occupational disease claim she filed. In a letter
dated August 29, 2005, appellant disagreed with the Office regarding her claim for a
consequential injury and requested a hearing.
In a letter dated August 29, 2005, appellant disagreed with the proposal to terminate her
compensation benefits. She submitted factual and medical evidence regarding her ability to
work with restrictions.
By decision dated September 6, 2005, the Office finalized the termination of appellant’s
wage-loss and medical benefits compensation.4 With respect to her claim for compensation due
to her emotional condition, the Office advised appellant to pursue this under the occupational
disease claim she filed.
In a letter dated November 17, 2005, appellant’s counsel requested reconsideration of the
termination of her benefits.5 She submitted a March 18, 2005 report from Dr. Winchell and an
August 31, 2005 statement regarding prior earnings.

4

On October 5, 2005 appellant filed a claim for a schedule award. In a letter dated November 1, 2005, informed
appellant that she was not entitled to a schedule award due to the decision terminating her benefits on
September 6, 2005. She was advised to follow the appeal rights to the September 6, 2005 decision terminating her
compensation benefits.
5

In a separate letter dated November 17, 2005, appellant’s counsel requested the Office adjudicate the issue of
appellant’s pay rate. As the Office did not issue a final decision with regard to the pay rate issue, the Board does not
have jurisdiction over the matter. See 20 C.F.R. § 501.2(c); see also Karen L. Yaeger, 54 ECAB 323 (2003). (The
Board’s jurisdiction is limited to reviewing final decisions of the Office).

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By nonmerit decision dated January 20, 2006, the Office denied appellant’s request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.6 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.7 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a bilateral knee sprain and authorized left
knee arthroscopic surgery, which was performed on September 23, 2004. It based its decision to
terminate her benefits upon medical evidence from Dr. Winchell, a treating physician.
The Board finds that the medical evidence of record supports the termination of
appellant’s medical and wage-loss compensation benefits. The medical evidence consists of
reports from Dr. Winchell, a treating physician. He found that she has no ongoing residuals of
her accepted bilateral knee sprain. Dr. Winchell reported normal range of motion in the knee.
He provided physical restrictions for appellant in a March 18, 2005 report. However, in a
July 11, 2005 report, Dr. Winchell concluded that any restrictions he set were due to appellant’s
preexisting arthritic condition and not her accepted employment injury. In support of this
conclusion, he stated that her employment job training after her return to work, most likely
aggravated an underlying patellofemoral degenerative problem. Dr. Winchell opined: “[t]his
would explain the synovitis, her intermittent stiffness and patellofemoral pain.” He concluded
that her employment-related condition had resolved. The Board finds that Dr. Winchell’s
opinion establishes that appellant has no residuals or continuing disability due to her accepted
bilateral knee sprain. The record is devoid of any medical evidence supporting that appellant
continues to suffer from an employment-related knee condition.

6

Paul L. Stewart, 54 ECAB 824 (2003).

7

Elsie L. Price, 54 ECAB 734 (2003).

8

See Del K. Rykert, 40 ECAB 284 (1988).

9

James F. Weikel, 54 ECAB 660 (2003).

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The record contains reports from Dr. Nagelberg diagnosing depression. He attributed her
condition to her left knee injury and work harassment and discrimination. This condition has not
been accepted by the Office. Dr. Nagelberg’s reports contain insufficient medical reasoning
explaining how appellant’s depression was caused or aggravated by the accepted employment
injury. In addition, Dr. Nagelberg attributed her condition to harassment and discrimination,
employment factors which were not part of her original traumatic injury claim. His opinion that
appellant’s depression was employment related is conclusory and contains no medical reasoning
explaining the causal relationship between appellant’s condition and the accepted knee condition.
The Board has held that a medical opinion not fortified by medical rationale is of diminished
probative value.10 Dr. Nagelberg’s opinion is insufficient to support any continuing residuals
from appellant’s accepted bilateral knee injury.
The Board finds that Dr. Winchell’s opinion that appellant’s employment-related
conditions had resolved constitutes the weight of the medical evidence. Accordingly, the Office
met its burden of proof to justify termination of compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act11 under section 8128(a) provides that the
Office may review an award for or against payment of compensation at any time on its own
motion or upon application.12 The employee shall exercise this right through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.13
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.14
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.15 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
10

Cecelia M. Corley, 56 ECAB ___ (Docket No. 05-324, issued August 16, 2005).

11

5 U.S.C. §§ 8101 et seq.

12

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB ___ (Docket No. 06-121, issued June 6, 2006).

13

20 C.F.R. § 10.605.

14

Id. at § 10.606. See Susan A. Filkins, 57 ECAB ___ (Docket No. 06-868, issued June 16, 2006).

15

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB ___ (Docket No. 06-452, issued May 3, 2006).

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its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.16
ANALYSIS -- ISSUE 2
Appellant’s November 17, 2005 request for reconsideration neither alleged, nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office.
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a March 18, 2005 report by
Dr. Winchell and an August 31, 2005 statement regarding her prior earnings. The Board finds
that Dr. Winchell’s report is duplicative of those previously considered. Material which is
cumulative or duplicative of that already in the record has no evidentiary value in establishing
the claim and does not constitute a basis for reopening a case for further merit review.17 While
the statement regarding appellant’s prior earnings is new, it is not relevant to the issue at hand.
The issue is whether the Office properly terminated appellant’s compensations benefits since her
accepted bilateral knee sprain had resolved. The Board has held that the submission of evidence
which does not address the particular issue involved in the case does not constitute a basis for
reopening the claim.18
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her November 17, 2005 request for reconsideration.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s medical
and wage-loss compensation benefits. The Board further finds that the Office properly refused
to reopen appellant’s case for further review of the merits of her claim pursuant to 5 U.S.C.
§ 8128(a).

16

Id. at § 10.608(b). See Candace A. Karkoff, 56 ECAB ___ (Docket No. 05-677, issued July 13, 2005).

17

Betty A. Butler, 56 ECAB ___ (Docket No. 04-2044, issued May 16, 2005); Daniel M. Dupor, 51 ECAB
482 (2000).
18

D’Wayne Avila, 57 ECAB ___ (Docket No. 06-366, issued June 21, 2006).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 20, 2006 and September 6, 2005 are affirmed.
Issued: February 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Morrilton, AR, Employer
__________________________________________

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Appearances:
Hilary Rippenkroeger, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1498
Issued: January 9, 2020

Case Submitted on the Record

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

JURISDICTION
On July 3, 2019 appellant, through counsel, filed a timely appeal from a February 1, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated December 13, 2017, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction to review the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 17, 2017 appellant, then a 52-year-old regular rural carrier, filed a traumatic
injury claim (Form CA-1) alleging that, on the same date, she sustained injury when her postal
vehicle ran into a light pole on the side of the road when she was delivering mail while in the
performance of duty. OWCP accepted her claim for left shoulder and left elbow contusions.
Appellant stopped work on April 29, 2017 and later filed a claim for wage-loss
compensation benefits (Form CA-7) for the period April 29 through September 1, 2017.
In support of her claim for wage-loss compensation benefits, appellant submitted several
medical reports including a March 20, 2017 report from Dr. Peter J. Post, a Board-certified family
practitioner, who noted that she reported running off the road at work on March 17, 2017 and
hitting a light pole. Dr. Post detailed physical examination findings and diagnosed contusions of
the left shoulder and left elbow, and of an “unspecified knee.” He opined that appellant could
return to work on March 25, 2017. In an April 13, 2017 report, Dr. Post diagnosed left knee pain
and noted that he was referring appellant for an orthopedic evaluation.
Appellant submitted other reports from this period, including April 25 and May 16, 2017
reports from Dr. Grant W. Bennett, a Board-certified orthopedic surgeon. Dr. Bennett detailed
appellant’s reporting of the March 17, 2017 accident and diagnosed left knee contusion,
fibromyalgia, lumbago, bilateral lower extremity radiculopathy, and possible lumbar facet
arthropathy. Appellant also submitted a number of diagnostic testing reports and follow-up
treatment reports from Dr. Bennett which primarily concerned her back and lower extremities.
By decision dated December 13, 2017, OWCP denied appellant’s claim finding that she
had not submitted sufficient medical evidence to establish entitlement to wage-loss compensation
benefits for the period April 29 through September 1, 2017.
On May 16, 2018 appellant, through counsel, requested reconsideration of the
December 13, 2017 decision. In support of this request, appellant submitted reports from her
emergency room visit on March 17, 2017.
By decision dated August 1, 2018, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On December 12, 2018 appellant, through counsel, again requested reconsideration.
Appellant submitted an October 24, 2017 report from Dr. Bennett who noted that she presented
for a follow-up examination relating to her complaints of left knee and lower back pain.3
3
Dr. Bennett listed a date of injury/onset for the knee as March 17, 2017 and a date of injury/onset for the lower
back as an unspecified date in April 2017.

2

Dr. Bennett indicated that, upon physical examination, appellant’s affect was abnormal with
subjective testing changes and that she had full range of motion of her left knee. He diagnosed
chronic lumbago with radiculopathy, fibromyalgia, and left knee pain.
In a March 21, 2018 report, Dr. Bennett indicated that appellant returned for a follow-up
examination of her left knee. He provided the same diagnoses listed in his October 24, 2017 report
and added the diagnosis psychological abnormalities. Dr. Bennett advised that appellant’s pain
would not prevent her from working, including engaging in mail delivery.
Appellant also resubmitted March 20 and April 13, 2017 reports from Dr. Post.
By decision dated February 1, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.4
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence which: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.5 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.6 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.7
To be timely, a request for reconsideration must be received by OWCP within one year of
the date of OWCP’s decision for which review is sought.8 Timeliness is determined by the
document “received date” as recorded in the iIntegrated Federal Employees’ Compensation
System (iFECS).9 If the last day of the one-year time period is a Saturday, Sunday, or a legal

4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3); see also M.S., Docket No. 18-1041 (issued October 25, 2018); C.N., Docket No.
08-1569 (issued December 9, 2008).
6

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

7

Id. at § 10.608(b); L.S., Docket No. 18-0858 (issued November 19, 2019); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

20 C.F.R. § 10.607(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).

3

holiday, OWCP will still consider a request to be timely filed if it is received on the next business
day.10
The Board has held that the submission of evidence or argument which repeats or duplicates
evidence or argument already in the case record11 and the submission of evidence or argument which
does not address the particular issue involved does not constitute a basis for reopening a case.12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on December 12, 2018,13 but she did
not establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Accordingly, the Board finds that
appellant is not entitled to a review of the merits based on either the first or second requirement
under 20 C.F.R. § 10.606(b)(3).14
In support of her request for reconsideration, appellant submitted October 24, 2017 and
March 21, 2018 reports from Dr. Bennett who noted appellant’s complaints of left knee and back
pain. The reports do not contain an opinion that she had disability causally related to an
employment-related injury. While this medical evidence submitted by appellant was new, it was
not relevant because it did not directly address the underlying issue of the present case, i.e., whether
she had disability for the period April 29 through September 1, 2017 causally related to her
March 17, 2017 employment injury. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.15
Appellant also submitted March 20 and April 13, 2017 reports from Dr. Post which had
previously been submitted and considered by OWCP. However, the submission of this evidence
does not require reopening of appellant’s case for review on the merits as the Board has held that
the submission of evidence or argument which repeats or duplicates evidence or argument already
in the case record does not constitute a basis for reopening a case.16

10

Id. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

11

N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

12

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

13

See supra note 8; J.F., Docket No. 16-1233 (issued November 23, 2016).

14

See supra note 5.

15

See supra note 12.

16

See supra note 11.

4

Therefore, appellant also failed to satisfy the third requirement under 20 C.F.R.
§ 10.606(b)(3).17
On appeal counsel argues that the evidence appellant submitted upon reconsideration
required reopening of her claim for review on the merits. However, the Board has explained that
the submitted evidence was insufficient to require such reopening of her claim given its failure to
meet the requirements of 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). OWCP properly denied merit review.18
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2020
Washington, DC

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

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

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

17

See supra note 5.

18

See supra notes 5 through 7.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Corpus Christi, TX, Employer
__________________________________________
Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-09
Issued: May 13, 2013

Case Submitted on the Record

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

On October 1, 2012 appellant, through his attorney, filed a timely appeal from a June 25,
2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision which denied his
claim for an employment-related injury. The Board docketed the appeal as No. 13-09.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
On January 26, 2010 appellant, then a 54-year-old building equipment mechanic, filed a
Form CA-2a alleging that he sustained a recurrence of a May 5, 2008 employment injury on
October 10, 2008. Under OWCP File No. xxxxxx613, OWCP had accepted appellant’s claim for
contusion of the right elbow and calcifying tendinitis of the right shoulder causally related to a
motor vehicle accident in the performance of duty on May 5, 2008. By letters dated March 29,
2010, OWCP converted appellant’s notice of recurrence to occupational disease claims for carpal
tunnel syndrome and an upper back condition. By decision dated April 29, 2010, OWCP denied
the newly created occupational disease claim finding that the evidence of record failed to

establish the medical component of fact of injury.1 By decision dated June 13, 2011, OWCP
denied modification of the April 29, 2010 decision on the basis that the medical evidence failed
to establish causal relationship between appellant’s condition and factors of his federal
employment. By decision dated June 25, 2012, OWCP denied modification of the June 13, 2011
decision on the grounds that the medical evidence submitted was not sufficient to establish
causal relationship.
Decisions of OWCP shall contain findings of fact and a statement of reasons.2 The Board
finds that the basis on which OWCP denied appellant’s claim is unclear and thus the Board is
unable to render an informed decision in this case. The record contains evidence of appellant’s
attempt to file a claim for a recurrence of a May 5, 2008 employment injury which was accepted
by OWCP under File No. xxxxxx613. However, OWCP continued to adjudicate the claim as
new occupational disease claims. Consequently, the case will be remanded for OWCP to
combine the current case record with File No. xxxxxx613 and properly adjudicate the issue of
whether appellant has established a recurrence of disability on October 10, 2008 causally related
to the May 5, 2008 employment injury.3 Following this and such other development as deemed
necessary, OWCP shall issue a de novo decision.

1

On May 25, 2010 appellant, through his attorney, requested an oral hearing before an OWCP hearing
representative. In an August 16, 2010 letter, appellant’s attorney requested withdrawal of the oral hearing scheduled
for August 18, 2010 at 12:00 p.m. By decision dated August 25, 2010, OWCP granted appellant’s request for
withdrawal of the hearing.
2

See 20 C.F.R. § 10.126.

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8
(February 2000). Under 2.400.8(c), cases should be doubled when correct adjudication of the issues depends on
frequent cross-reference between files, including: (1) a new injury case is reported for an employee who previously
filed an injury claim for a similar condition or the same part of the body. For instance, a claimant with an existing
case for a back strain submits a new claim for a herniated lumbar disc; (2) two or more separate injuries (not
recurrences) have occurred on the same date; and (3) adjudication or other processing will require frequent reference
to a case which does not involve a similar condition or the same part of the body. For instance, an employee with an
existing claim for carpal tunnel syndrome files a new claim for a mental condition which has overlapping periods of
disability.

2

IT IS HEREBY ORDERED THAT the June 25, 2012 Office of Workers’
Compensation Programs decision is set aside and the case remanded for further development
consistent with this order of the Board.
Issued: May 13, 2013
Washington, DC

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

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

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

3


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

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

Docket No. 13-1970
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 26, 2013 appellant, through her attorney, filed a timely appeal of a June 12,
2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained neck and low back
conditions in the performance of duty, causally related to factors of her employment.
On appeal, appellant’s counsel contends that OWCP erred in relying upon the second
opinion physician’s opinion in denying appellant’s claim. Counsel also argues that there is an
unresolved conflict in the medical opinion evidence requiring referral for an impartial medical
examination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 3, 2010 appellant, then a 35-year-old part-time flexible clerk, filed an
occupational disease claim alleging that her back condition was due to her employment duties.
She related that she first became aware of her condition on August 4, 2008, but did not realize it
was employment related until October 3, 2008.2
In a March 19, 2010 report, Dr. Steven Mandel, an examining Board-certified
neurologist, diagnosed S1 radiculopathy with chronic and acute changes.
In a March 22, 2010 report, Dr. Larry H. Chou, an examining Board-certified physiatrist,
provided physical findings and reviewed objective evidence. He diagnosed left S1 acute chronic
radiculopathy, L4-5, L5-S1 facet arthropathy and bilateral L5 and left S1 myotomes weakness.
On August 26, 2010 OWCP received a March 12, 2010 report from Dr. Shailen Jalali, a
treating Board-certified anesthesiologist and pain medicine physician, who diagnosed spinal
stenosis, lumbar radiculitis and sacroilitis.
By decision dated August 11, 2010, OWCP denied appellant’s claim.
In a letter dated August 17, 2010, appellant’s counsel requested an oral hearing before an
OWCP hearing representative, which was held on December 7, 2010.
Following the hearing, appellant submitted additional medical evidence including reports
from Dr. Frederick B. Vivino, a treating Board-certified internist and rheumatologist, as set forth
below.
In progess notes dated September 22 and December 9, 2009, Dr. Vivino noted findings
on examination and diagnoses of cervical/lumbar spondylosis, L5-S1 radiculopathy, bilateral
carpal tunnel syndrome and L4-5 spinal stenosis. In the December 9, 2009 progress note,
appellant related having poor balance, falling twice at home since her last visit and “occassional
episodes of back pain with heavy lifting at the [employing establishment].”
In progress notes dated October 1, 2010, Dr. Vivino provided physical examination
findings and diagnosed multiple sclerosis (MS), back pain, L4-5 lateral recess spinal stenosis and
bilateral carpal tunnel syndrome. He noted that appellant’s magnetic resonance imaging (MRI)
scan showed lateral recess stenosis at L4-5 and clincially that she had weakness in L2-4
dermatones. Dr. Vivino related that “[t]his discordant finding would suggest the weakness to be
more due to MS.”
On January 24, 2011 OWCP received a February 12, 2010 progress note from Dr. Jalali
diagnosing spinal stenosis, lumbar radiculitis and sacroilitis.
By decision dated February 7, 2011, the hearing representative set aside the August 11,
2010 decision denying appellant’s claim. The hearing representative found that the medical
2

Appellant stopped work on April 9, 2010 and retired on disability in May 2011.

2

evidence was insufficient to establish her claim, but sufficient to warrant further development of
the evidence. OWCP was instructed to refer appellant for a second opinion evaluation after
preparing a new statement of accepted facts.
Following the February 7, 2011 decision, OWCP received a February 2, 2011 report and
February 23, 2010 progress note from Dr. Vivino. In the February 23, 2010 progress note,
Dr. Vivino provided physical examination findings as well as review of objective testings.
Diagnoses included cervical/lumbar spondylosis, L5-S1 radiculopathy, bilateral carpal tunnel
syndrome and L4-5 spinal stenosis. Appellant related having poor balance, no sciatica and no
falls since November. She reported occasional back pain episodes due to heavy lifting at the
employing establishment.
In his February 2, 2011 report, Dr.Vivino reported that appellant was being treated for
spinal stenosis, cervical and lumbosacral spondylosis, radiculopathy and bilateral carpal tunnel
syndrome. He noted that she had increased back pain as a result of having to perform heavy
lifting at the employing establishment.
In a September 30, 2011 report, Dr. Robert Franklin Draper, Jr., a second opinion Boardcertified orthopedic surgeon, diagnosed MS, C3-4, C4-5, C5-6 and C6-7 degenerative bulging
disc disease with facet hypertrophy and L2-3, L3-4, L4-5 and L5-S1 degenerative bulging disc
disease, facet hypertrophy and osteoarthritis. He provided physical findings, reviewed the
medical evidence and referenced the statement of accepted facts. Dr. Draper attributed
appellant’s cervical and lumbar spine degenerative bulging disc disease and facet arthritis to the
aging process. He opined that these conditions were unrelated to her job duties or her
employment at the employing establishment. Dr. Draper concluded that appellant was capable
of working with restrictions which he attributed to her MS, bilateral carpal tunnel syndrome and
cervical and lumbar degenerative disc disease.
By decision dated November 20, 2011, OWCP denied appellant’s claim that her
employment caused or aggravated cervical and lumbar conditions.
On November 28, 2011 appellant’s counsel requested an oral hearing before an OWCP
hearing representative, which was held on March 30, 2012.
By decision dated June 14, 2012, the hearing representative set aside the November 20,
2011 decision and remanded for OWCP to obtain a supplemental report from Dr. Draper
explaining his conclusions.
In a September 20, 2012 supplemental report, Dr. Draper noted that all of the changes
seen in the cervical, thoracic and lumbar MRI scans are due to the degenerative processes. He
explained that disc osteophyte complexes, degenerative bulging disc disease, facet hypertrophy
and facet osteoarthritis are degenerative processess which occur due to changes associated with
the aging process. None of the changes seen were structural which would be attributable to
trauma. Dr. Draper related that, by the age of 30, disc disease processes start with drying up of
the disc or disc desiccation. At age 40 and 50 patients with disc degeneration develop bulging
discs disease. The bone spurs and facet osteoarthritis appellant has “are part of the arthritis that
develops in the neck and back with the aging process.” In concluding, Dr. Draper opined that

3

her cervical and lumbar conditions were not employment related nor were they aggravated by her
employment duties.
By decision dated October 11, 2012, OWCP denied appellant’s claim that her cervical
and lumbar conditions had been caused or aggravated by her employment.
In an October 23, 2012 letter, appellant’s counsel requested an oral hearing before an
OWCP hearing representative, which was held on March 25, 2013.
By decision dated June 12, 2013, the hearing representative affirmed the denial of
appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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.4 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.5
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty

3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

4

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.9
ANALYSIS
Appellant filed a claim alleging that her neck and back conditions were caused or
aggravated by her employment. By decision dated October 11, 2012, OWCP denied her claim
that her cervical and lumbar conditions had been caused or aggravated by her employment. On
June 12, 2013 an OWCP hearing representative affirmed the denial of appellant’s claim. The
Board finds that appellant has not established that her neck or back conditions are causally
related to the implicated factors of her federal employment.
In support of her occupational disease claim, appellant submitted reports from her
treating physicians. In a February 12, 2010 progress note and a March 12, 2010 report, Dr. Jalali
diagnosed lumbar radiculitis, sacroilitis and spinal stenosis. On March 19, 2010 Dr. Mandel
diagnosed S1 radiculopathy with chronic and acute changes. Dr. Chou diagnosed left S1 acute
chronic radiculopathy, L4-5, L5-S1 facet arthropathy and bilateral L5 and left S1 myotomes
weakness in a March 22, 2010 report. Drs. Chou, Jalali and Mandel did not address how any of
the diagnosed lumbar and back conditions were due to appellant’s employment duties. The
Board has held that medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.10 Thus,
these reports are insufficient to support her claim.
The record also contains reports from Dr. Vivino diagnosing spinal stenosis, cervical and
lumbosacral spondylosis, radiculopathy, bilateral carpal tunnel syndrome. Dr. Vivino offered no
opinion as to the cause of appellant’s diagnosed conditions in progress notes dated
September 22, 2009 and October 1, 2010. As noted above, medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.11 Thus, these progress notes of Dr. Vivino are insufficient to meet
appellant’s burden of proof to establish causal relationship between her cervical and back
conditions and factors of her federal employment as they fail to offer an opinion on causal
relationship. The December 9, 2009 and February 23, 2010 progress notes from Dr. Vivino are
also insufficient to support her claim. While Dr. Vivino noted that appellant related having
occasional episodes of back pain or increased back pain as the result of having to perform heavy
lifting at work, they do not specifically address how work conditions caused or contributed to
any diagnosed medical conditions.12 For these reasons, this evidence is not sufficient to meet her
burden of proof.

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

See A.D., 58 ECAB 149 (2006); Conard Hightower, 54 ECAB 796 (2003).

11

Id.

12

See Joan R. Donovan, 54 ECAB 615 (2003) (medical opinion regarding causal relationship must explain from
a medical perspective how the current condition is related to the injury).

5

To further develop the claim, OWCP referred appellant to Dr. Draper for a second
opinion as to whether her right knee condition was causally related to her accepted work injury.
In his September 30, 2011 report, Dr. Draper diagnosed MS, C3-4, C4-5, C5-6 and C6-7
degenerative bulging disc disease with facet hypertrophy and L2-3, L3-4, L4-5 and L5-S1
degenerative bulging disc disease, facet hypertrophy and osteoarthritis. He opined that these
conditions were unrelated to appellant’s job duties or her employment at the employing
establishment, but were instead due to the aging process. In a September 20, 2012 supplemental
report, Dr. Draper explained that disc osteophyte complexes, degenerative bulging disc disease,
facet hypertrophy and facet osteoarthritis are degenerative processes which occur due to changes
associated with the aging process. According to him, none of the changes seen were structural
which would be attributable to trauma. Dr. Draper related that he bone spurs and facet
osteoarthritis appellant has “are part of the arthritis that develops in the neck and back with the
aging process.” In concluding, he opined that her cervical and lumbar conditions were not
employment related nor were they aggravated by her employment duties.
The Board finds that the opinion of Dr. Draper represents the weight of the evidence and
establishes that appellant’s cervical and back conditions were not causally related to her accepted
employment duties. Neither the fact that a claimant’s condition became apparent during a period
of employment, nor the belief that the condition was caused, precipitated or aggravated by the
employment is sufficient to establish causal relationship.13 Thus, appellant did not meet her
burden of proof to establish that her cervical and back conditions are causally related to her
employment duties.
On appeal, appellant’s counsel contends that there is an unresolved conflict in the
medical opinion evidence requiring referral for an impartial medical examination. As explained
above none of the medical reports submitted by appellant were sufficient to establish her claim.
As these reports either contained no opinion as to the cause of appellant’s conditions or were
insufficiently rationalized, they are insufficient to create a conflict in the medical opinion
evidence. Counsel also argues that Dr. Draper’s opinion is insufficient to support the denial of
her claim. However, this argument is not supported by the evidence. As found above,
Dr. Draper provided sufficient rationale supporting his conclusion that appellant’s cervical and
back conditions were not employment related. His report constitutes the weight of the medical
evidence.
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 failed to meet her burden of proof to establish that she
developed neck and back conditions in the performance of duty causally related to factors of her
federal employment.

13

D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2013 is affirmed.
Issued: March 6, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________
Appearances:

)
)
)
)
)
)
)
)
)

Docket No. 19-0733
Issued: June 8, 2020

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 13, 2019 appellant filed a timely appeal from a November 28, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 19-0733.
On August 1, 2013 appellant, then a 56-year-old package router, filed an occupational
disease claim (Form CA-2) alleging a loss of hearing causally related to factors of his federal
employment, including making deliveries to ships. By decision dated January 17, 2014, OWCP
accepted that appellant sustained employment-related bilateral sensorineural hearing loss.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. By decision dated February 20, 2014, OWCP found that appellant had 18 percent
binaural hearing loss. On August 27, 2018 appellant requested reconsideration of OWCP’s
February 20, 2014 schedule award decision. He indicated that he still worked at the employing
establishment and had increased hearing loss. Appellant submitted a November 10, 2017 report
of Dr. Julie Gustafson, a Board-certified otolaryngologist, who determined based on a
November 1, 2017 audiometric evaluation that he had an increased binaural hearing loss under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of

Permanent Impairment.1 By decision dated November 28, 2018, OWCP denied appellant’s
reconsideration request, finding that the request was untimely filed and failed to demonstrate clear
evidence of error.
The Board has held that a claimant may request a schedule award or increased schedule
award at any time based on evidence of a new exposure or medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.2
When a claimant has requested reconsideration, and has submitted new and relevant evidence with
respect to a permanent impairment or an increased permanent impairment, then he or she will be
entitled to a merit decision on the issue.3
In the present case, appellant submitted a November 10, 2017 report of Dr. Gustafson after
OWCP’s February 20, 2014 schedule award decision. This report addressed the pertinent issue of
this case, i.e., whether appellant was entitled to additional schedule award compensation for
hearing loss, as it contained an impairment rating that referenced the A.M.A., Guides. Although
appellant submitted a letter and form in which he requested reconsideration, it is evident that he
was not seeking reconsideration of the February 20, 2014 decision, but was seeking a schedule
award based on new medical evidence. As noted above, where a claimant has requested
reconsideration, and has submitted new and relevant evidence with respect to a permanent
impairment or an increased permanent impairment, then he or she will be entitled to a merit
decision on the issue.4
The case will be remanded for OWCP to adjudicate this matter as a request for an increased
schedule award. Following this and such other development as deemed necessary, OWCP shall
issue an appropriate merit decision on appellant’s claim.

1

A.M.A., Guides (6th ed. 2009).

2

R.D., Docket No. 18-0579 (September 14, 2018); D.S., Docket No. 17-0407 (issued May 24, 2017).

3
See C.W., Docket No. 18-1110 (issued December 28, 2018); Linda T. Brown, 51 ECAB 115 (1999); Paul R.
Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking
a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the
schedule award claim rather than adjudicate an application for reconsideration).
4

Id.

2

IT IS HEREBY ORDERED THAT the November 28, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 8, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

3


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0223
Issued: October 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 6, 2019 appellant, through counsel, filed a timely appeal from a
September 9, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left hand and wrist
conditions causally related to the accepted April 9, 2018 employment incident.
FACTUAL HISTORY
On May 7, 2018 appellant, then a 54-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 9, 2018 she felt a pop and noticed swelling in her left hand and
wrist area when she was trying to lift a bag of fertilizer while in the performance of duty. She
stopped work on April 23, 2018. On the reverse side of the claim form, the employing
establishment controverted the claim noting that appellant was wearing a brace on her hand prior
to the date of the alleged injury.
In an April 24, 2018 report, Dr. Tami Kannan, a Board-certified internist, noted that
appellant was seen on that date and recommended desk work for four weeks to reduce repetitive
work with her left wrist. In a May 4, 2018 report, she noted that appellant should be excused from
work from April 2 to May 7, 2018, to reduce repetitive work with appellant’s left wrist, at which
time she could return to part-time work.
In reports dated May 7 and 9, 2018, Dr. Charlton McNair, a Board-certified internist,
diagnosed de Quervain’s radial styloid tenosynovitis and recommended that appellant return to
work on May 7, 2018 with restrictions.
In a May 18, 2018 development letter, OWCP informed appellant that additional factual
and medical evidence was necessary to establish her claim. It advised her of the type of factual
and medical evidence needed and provided a questionnaire for her completion. OWCP afforded
appellant 30 days to respond.
An x-ray of appellant’s left wrist, dated May 7, 2018, was interpreted by Dr. William H.
McCuskey, a Board-certified diagnostic radiologist, as demonstrating normal findings.
Dr. McNair provided additional reports dated May 16, 21, 25, and 30, 2018. Within those
reports he diagnosed de Quervain’s radial styloid tenosynovitis and recommended work
restrictions.
In a June 5, 2018 statement, appellant reiterated that on April 9, 2018 she injured her left
hand when she picked up a large bag of fertilizer with both hands. She also indicated that she had
not sustained any other injuries on or off the job since the date of her injury on April 9, 2018.
Appellant also denied any prior similar disability or symptoms.
By decision dated June 19, 2018, OWCP denied appellant’s claim finding that she had not
submitted sufficient evidence to establish causal relationship between her diagnosed conditions
and the accepted April 9, 2018 employment incident. It noted that there was no medical report
opining that her diagnosed condition was a direct result of her accepted employment incident.
OWCP further noted that appellant needed to provide a medical report from her physician
explaining how the employment incident caused or affected her condition.

2

On July 12, 2018 appellant requested reconsideration.
In support of her reconsideration request appellant submitted additional medical evidence
including reports from Dr. McNair dated June 13, 20, and 27 and July 5, 2018. In his July 5, 2018
report, Dr. McNair diagnosed de Quervain’s tendinitis of the left hand. He indicated that appellant
was injured when she tried to lift a bag of fertilizer that weighed 50 pounds and that she had denied
any previous injury or diagnosis to her left hand or arm. Dr. McNair noted that her x-rays were
negative for any bone involvement. He opined that appellant’s condition was work related and
explained that the diagnosis of tendinitis is a cumulative result of repetitive trauma with lifting.
Dr. McNair explained how use of the extensors of the thumb and wrist when lifting was the cause
of her tendinitis. He concluded by noting that the type of lifting that caused the injury, and
continues to aggravate the tendinitis, is associated with lifting and grasping at the same time.
OWCP also received physical therapy notes dated from May 30 through June 8, 2018.
On September 4, 2018 appellant noted that she had requested reconsideration and she
described her history of medical treatment. She also noted that she had requested that the
employing establishment provide her with reasonable accommodations.
In a September 5, 2018 report, Dr. John Gaul, a Board-certified orthopedic surgeon,
recommended that appellant undergo surgery to repair her diagnosed left hand and wrist
conditions. In a September 7, 2018 report, he indicated that she was scheduled for surgery on
September 27, 2018. Dr. Gaul noted that, if light duty was not available, appellant would not be
able to return to work for four weeks.
By decision dated October 9, 2018, OWCP denied modification of its prior decision.
On April 9, 2019 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a June 28, 2018 report, Dr. Michael L. Dockery, a Board-certified orthopedic surgeon,
noted that the appellant sustained injury while lifting a heavy bag of fertilizer. He diagnosed left
wrist pain and de Quervain’s tenosynovitis. Dr. Dockery also found preexisting left thumb
carpometacarpal joint and degenerative joint disease. In a report dated June 29, 2018, he provided
appellant with work restrictions.
In a July 19, 2018 report, Dr. Gaul noted the history of injury included that on April 9,
2018 appellant was lifting a heavy bag of fertilizer (about 50 pounds) and that she was grasping
with both hands, palm side down, when she felt a pop in her left hand and had immediate pain and
swelling that she reported to her supervisor. He noted subluxation of her extensor tendons and
indicated that he believed that she had a partial retinaculum rupture. Dr. Gaul diagnosed subluxing,
extensor tendon and de Quervain’s tenosynovitis. He opined that these diagnosed left hand and
wrist conditions were work related. Dr. Gaul also noted that appellant had some osteoarthritis of

3

her thumb joint, which he opined was not work related. In a separate report of the same date, he
noted her continuing work restrictions.
A July 26, 2018 magnetic resonance imaging scan read by Dr. Daniel Uri, a diagnostic
radiology specialist, revealed a dorsal periscapular ganglion.
In an August 30, 2018 report, Dr. Gaul diagnosed left wrist de Quervain’s tenosynovitis
and pain which he attributed to appellant’s work. He explained that the history of injury in which
she reported the feeling of a “pop” was “compatible with a partial sprain of the periscapular area”
and he noted that this mechanism of injury can also cause a ganglion cyst.
In a September 27, 2018 operative report, Dr. Gaul diagnosed dorsal ganglion cyst of the
left wrist and de Quervain’s tenosynovitis of the left wrist.
In an October 11, 2018 report, Dr. Gaul opined “I have explained that [it is] somewhat
difficult to tell in terms of whether a work-related injury caused this or not.” He also provided
November 8 and December 20, 2018 reports and noted that appellant accepted a seasonal position
with a private employing establishment and had not returned to the employing establishment. On
December 20, 2018 Dr. Gaul reported that she could return to work on January 20, 2019 without
restrictions.
By decision dated September 9, 2019, OWCP denied modification of the October 9, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.7 Fact of injury
3

Id.

4

See M.A., Docket No. 19-1551 (issued April 30, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989).
5

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

4

consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.10
ANALYSIS
The Board finds that the case is not in posture for a decision.
In support of her claim appellant submitted a series of narrative medical reports from her
attending physicians. In his July 5, 2018 report, Dr. McNair diagnosed de Quervain’s tendinitis
of the left hand. He noted the history of lifting a bag of fertilizer at work and noted no history of
a prior hand or wrist condition. Dr. McNair noted that appellant’s x-rays were negative for any
bone involvement and opined that her condition was work related. He explained that her diagnosis
of tendinitis is one that results from cumulative and repetitive trauma with lifting. Dr. McNair
further explained and identified that appellant’s use of the extensors of the thumb and wrist when
lifting was the cause of her tendinitis. He concluded by noting that the type of lifting that caused
the injury, and continues to aggravate the tendinitis, is lifting and grasping at the same time.
Appellant also submitted supportive medical opinion evidence from Dr. Gaul, who in a
series of reports generally noted that the diagnosed left upper extremity conditions were work
related. In his July 19, 2018 report, Dr. Gaul noted the history of injury of lifting a heavy bag of
fertilizer while grasping with both hands, palm side down, when she felt a pop in her left hand and
had immediate pain and swelling that she immediately reported to her supervisor. He opined that
these diagnosed conditions were work related. There is no opposing medical evidence contained
in the record as presented to the Board.
The Board finds that the reports from Drs. McNair and Gaul, when read together, are
sufficient to require further development of the medical evidence. Both of these physicians are
qualified in their field of medicine to render rationalized opinions on the issue of causal
relationship and they provided a comprehensive understanding of the medical record and case
history. Dr. McNair’s July 5, 2018 report provides a pathophysiological explanation as to how
appellant’s accepted employment incident on April 9, 2018 when lifting a heavy bag of fertilizer
resulted in the diagnosed left hand and wrist conditions. He sufficiently explains that the act of
lifting and grasping simultaneously with the extensors of the thumb resulted in sufficient force to
cause a pop and the development of tendinitis. The reports of Dr. Gaul supplement this explanation
provided by Dr. McNair, as he too notes lifting and grasping during the accepted employment
8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

Id., see also Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

incident. The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that which is necessary to convince the adjudicator that the conclusion drawn is
rational, sound, and logical.11 Accordingly, the Board finds that the medical opinion of
Drs. McNair and Gaul are rationalized and logical and are therefore sufficient to require further
development of appellant’s claim.12
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate specialist. The chosen physician shall provide a rationalized opinion as
to whether the diagnosed left hand and wrist conditions are causally related to the accepted April 9,
2018 employment incident. If the physician opines that the diagnosed conditions are not causally
related, he or she must explain, with rationale, how or why the causation opinion differs from that
of Drs. McNair and Gaul. Following this and such other further development as deemed necessary,
OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for a decision.

11

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
12

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
13

See id. See also S.M., Docket No. 19-1634 (issued August 25, 2020); A.P., Docket No. 17-0813 (issued January 3,
2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).
14
See B.C., Docket No. 20-0498 (issued August 27, 2020); B.C., Docket No. 15-1853 (issued January 19, 2016);
E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2019 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: October 22, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7