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

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Appearances:
John S. Evangelisti, Esq., for the appellant
Miriam D. Ozur, Esq., for the Director

Docket No. 06-487
Issued: February 7, 2007

Oral Argument January 17, 2007

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

JURISDICTION
On December 27, 2005 appellant filed a timely appeal from a November 28, 2005 merit
decision of the Office of Workers’ Compensation Programs which denied her claim that she was
totally disabled for the period January 22, 2001 to April 30, 2004. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was totally
disabled for the period January 22, 2001 to April 30, 2004 due to her accepted conditions.
FACTUAL HISTORY
On July 8, 1996 appellant, then a 31-year-old PTF clerk, sustained an employmentrelated cervical strain when she was hit in the head and neck by bundled flats of mail. A
magnetic resonance imaging (MRI) scan of the cervical spine at that time was reported as
negative. On August 5, 1996 she accepted a limited-duty job offer of answering the telephone,
and on August 15, 1996 accepted a limited-duty position of six hours of answering the telephone
and two hours of letter distribution with a 10-pound lifting restriction and no carrying, pushing,

pulling or reaching above her shoulders. Dr. Jeffrey A. Wunder, an attending Board-certified
physiatrist, provided reports dating from July 31 to September 18, 1996 in which he advised that
appellant could work modified duty with no climbing, kneeling, reaching or driving and minimal
bending, stooping and twisting with a 10-pound lifting restriction. On October 8, 1996 he
advised that he did not approve a job described by appellant and indicated this on an employing
establishment job offer dated September 26, 1996 which described appellant’s regular manual
distribution duties. On October 4, 1996 appellant was issued a notice of removal by the
employing establishment for misappropriation of postal funds. In a duty status report dated
October 16, 1996, Dr. Wunder reiterated his previous restrictions and advised that appellant
should not case mail. Appellant resigned on October 18, 1996 and on November 20, 1996
Dennis Shearer, supervisor of customer service at the employing establishment, indicated that
this was due to a pending disciplinary action.
In 1998 the Office determined that a conflict in medical evidence had been created
between Dr. Wunder and Office referral physicians, Dr. Stephen H. Shogan, Board-certified in
neurosurgery, and Dr. Jeffrey M. Hrutkey, Board-certified in orthopedic surgery.1 The Office
then referred appellant to Dr. William M. Johnson, a Board-certified neurosurgeon, for an
impartial evaluation regarding whether she continued to have residuals of her accepted condition
and was surgery warranted. In a report dated January 28, 1999, Dr. Johnson advised that a
cervical MRI scan demonstrated only a small annular tear at C6-7 and that surgery was not
warranted. Dr. Wunder continued to submit reports and on June 19, 1999 advised that an MRI
scan was normal. In an April 6, 1999 decision, the Office denied appellant’s request for
authorization for surgery.
Appellant continued to receive medical benefits, and on December 31, 2001 the Office
expanded the accepted condition to include disc herniation at C4-5 and authorized surgical repair
that was performed on January 22, 2002 by Dr. Hans C. Coester, a Board-certified neurosurgeon.
A June 5, 2002 cervical spine MRI scan demonstrated postoperative changes. Dr. Wunder
submitted a number of reports dating from February 19 to December 17, 2002 in which he
advised that appellant could work modified duty with a 10-pound lifting restriction and no lifting
above her head. In his report dated December 17, 2002, Dr. Wunder noted that appellant had
recently fallen and fractured her left elbow. In reports dated February 17 and March 28, 2003,
Dr. W. Carlton Reckling, a Board-certified orthopedic surgeon, noted positive physical findings
and diagnosed chronic headaches, chronic neck pain, cervical spondylosis at C5-6, status post
fusion at C4-5, thoracic outlet syndrome on the left and ulnar nerve compression at the left
elbow. He recommended pain management. By report dated May 6, 2003, Dr. Charles Bradley
Sisson, Board-certified in anesthesiology, noted appellant’s past medical history, her physical
complaints and made physical findings. He diagnosed status post anterior cervical fusion at C45 with chronic cervicalgia, cervicogenic migrainous headaches, cervical radiculopathy of the left
upper extremity in the C7-8 distribution, left shoulder pain, rule-out rotator cuff tear, opioid
habituation, depression and chronic pain. A June 5, 2003 electromyography (EMG) and nerve
conduction study of the upper extremities was normal. On August 23, 2003 Dr. Richard J.
1

The Office had previously referred appellant to Dr. Stephen Dinenberg, an orthopedic surgeon, and in a June 23,
1997 report he advised that, based on examination findings and review of the record, she had no current orthopedic
pathology and no diagnosis related to the July 8, 1996 employment injury, stating that she had no objective evidence
of residuals of cervical strain.

2

Sanders, a Board-certified surgeon, noted the history of injury and appellant’s complaints of
chronic pain in her neck, shoulders, arms and hands with upper extremity weakness and tremors.
He reported positive findings on physical examination and diagnosed cervical spine disease,
bilateral thoracic outlet syndrome, left worse than right and possible left forearm and carpal
tunnel syndrome. Dr. Sisson followed appellant for pain management and drug dependency and
performed nerve blocks on August 5 and September 4, 2003. A December 30, 2003 MRI scan of
the cervical spine demonstrated postsurgical changes, unchanged myelomalacia and mild
degenerative disc disease at C3-4, C5-6 and C6-7. In a January 3, 2004 report, Dr. Coester noted
appellant’s past medical history and complaints of severe pain. He reviewed the MRI scan,
noting diffuse degenerative disease and advised that cervical spine surgery was not warranted.
Dr. Coester recommended neurological evaluation with nerve conduction studies. An
electromyogram performed on April 6, 2004 demonstrated minimal median neuropathy on the
left. By report dated April 8, 2004, Dr. Gergana Popova, Board-certified in family medicine,
noted appellant’s past medical history and complaints of chronic pain. She diagnosed chronic
pain syndrome, most likely with narcotic dependence and protein S deficiency. In an April 12,
2004 report, Dr. Shogan noted appellant’s continued complaint of neck pain and advised that
further cervical spine surgery was not needed.2
On April 5, 2004 she filed a Form CA-7 claim for compensation for the period
January 22, 2001 to April 30, 2004 and the employing establishment controverted the claim,
advising that appellant had resigned on October 18, 1996 with charges pending. This was
confirmed by a Form-50 history report. On May 28, 2004 Dr. Sanders requested authorization
for thoracic outlet syndrome surgery, which was authorized on June 28, 2004.
By letter dated July 13, 2004, the Office informed appellant of the specific evidence
needed to support her disability claim. In reports dated April 21 and May 5, 2004, Dr. Robert M.
Monger, Board-certified in internal medicine and rheumatology, noted her past medical history
including a diagnosis of rheumatoid arthritis and her complaints of chronic pain secondary to her
cervical condition with bilateral thoracic outlet syndrome causing arm and hand pain. He
advised that she had no evidence of rheumatoid arthritis. On July 22, 2004 Dr. Sanders
performed authorized thoracic outlet repair on the left.3 In a statement dated November 1, 2004,
Kathleen Allen of the employing establishment again advised that appellant resigned due to a
pending disciplinary action. She stated that appellant’s job at that time was no overhead work,
pushing, pulling or work with her left shoulder.
By decision dated August 25, 2004, the Office denied appellant’s claim for wage-loss
compensation on the grounds that the medical evidence did not support disability due to her
accepted conditions. The Office noted that appellant would be entitled to wage-loss
compensation for postoperative recovery but that she submitted no medical documentation to
support disability due to her employment-related conditions. On September 16, 2004 appellant,
through counsel, requested reconsideration and submitted an August 31, 2004 report in which
Dr. Sanders noted that appellant developed pneumonia postoperatively and still required nasal
oxygen. By decision dated December 16, 2004 the Office denied modification of the August 25,
2

The record also contains laboratory test results and physical therapy reports.

3

Appellant also submitted records from this hospitalization dating from July 22 through August 2, 2004.

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2004 decision. The Office again noted that appellant would be entitled to wage-loss
compensation for postoperative recovery but that she submitted no medical documentation to
support disability due to her employment-related conditions. On August 25, 2005 appellant,
through her attorney, requested reconsideration and submitted reports dated March 24, April 15,
May 12 and July 11, 2005, in which Dr. Byron D. Jones, a Board-certified physiatrist, noted
appellant’s complaints and that she sustained a nerve injury with diaphragmatic paralysis
following her July 2004 surgery. Dr. Jones advised that her condition was worsening. A July 1,
2005 MRI scan of the cervical spine demonstrated surgical fusion at C4-5, a disc protrusion at
C5-6 with cord compression and increased stenosis. In an affidavit dated August 25, 2005,
appellant described her regular job duties of distributing mail and the September 26, 1996 job
offer. She also described her work history since resigning from the employing establishment.
This included bartending, retail sales, clean up at construction sites and as a personal care
provider at a nursing facility. Appellant last worked in October 2001. Dr. Bradley D. Vilims, a
Board-certified anesthesiologist, performed cervical steroid injection on October 18, 2005. On
October 24, 2005 Dr. Sanders diagnosed partial improvement following left thoracic outlet
syndrome surgery, cervical spine disease, left shoulder arthritis, bilateral pectoral minor
syndrome, pulmonary insufficiency and recovery from phrenic nerve paresis. By decision dated
November 28, 2005, the Office denied modification of the prior decision.4
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of
reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.5
Under the Federal Employees’ Compensation Act6 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.7 Disability is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act,8 and whether a particular injury causes an employee disability for employment is a medical
4

By decision dated January 28, 2005, the Office approved an attorney’s fee of $8,696.55 for work before the
Office from December 31, 2003 to December 30, 2004 and in a December 23, 2005 decision approved an attorney’s
fee of $10,168.45 for work before the Office from December 14, 2004 to August 25, 2005. These decisions have
not been appealed to the Board.
5

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
6

5 U.S.C. §§ 8101-8193.

7

See Prince E. Wallace, 52 ECAB 357 (2001).

8

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

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issue which must be resolved by competent medical evidence.9 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.10
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.11 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.12
ANALYSIS
In this case, the Office accepted that on July 8, 1996 appellant sustained an employmentrelated cervical strain. On October 18, 1996 she resigned. In December 2001, the Office
expanded the accepted condition to include disc herniation at C4-5, and appellant underwent
authorized surgical repair on January 22, 2002. On April 5, 2004 she filed a claim for
compensation for the period January 22, 2001 to April 30, 2004, and in decisions dated
August 25 and December 16, 2004 and November 11, 2005, the Office denied the claim. The
Office noted that appellant would be entitled to wage-loss compensation for postoperative
recovery but that she submitted no medical documentation to support disability due to her
employment-related conditions.
Appellant has contended that she resigned in October 1996 because she was forced to
work outside her physical limitations. The record, however, shows that on October 4, 1996 she
was issued a notice of removal by the employing establishment for misappropriation of postal
funds. The employing establishment advised that she resigned with charges pending, and a
Form-50 history form supports this. Appellant did not claim that she worked outside her
physical restrictions until she submitted an affidavit on August 25, 2005 and in that affidavit
merely described her regular job duties and restrictions. The job offer accepted by appellant on
August 15, 1996 described her duties as six hours of answering the telephone and two hours of
letter distribution with a 10-pound lifting restriction and no carrying, pushing, pulling or
reaching above her shoulders. The medical evidence contemporaneous with her resignation
includes Dr. Wunder’s reports dating from July 31 to September 18, 1996 in which he advised
that appellant could work modified duty with no climbing, kneeling, reaching or driving and
minimal bending, stooping and twisting with a 10-pound lifting restriction. On October 8, 1996
he advised that he did not approve a job described by appellant and indicated this on an
employing establishment job offer dated September 26, 1996 which described appellant’s regular
manual distribution duties. In a duty status report dated October 16, 1996, Dr. Wunder reiterated
9

Donald E. Ewals, 51 ECAB 428 (2000).

10

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

11

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

12

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

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his previous restrictions and advised that appellant should not case mail. While there is a job
description dated September 26, 1996 that was not approved by Dr. Wunder, this is for her
regular manual distribution duties, and there is no indication in the record that she was actually
performing this job when she resigned, including in her affidavit. Rather, the record supports
that she was still performing the restricted-duty position that was within her medical restrictions.
As stated above, the evidence contemporaneous with appellant’s resignation indicates that this
was because charges were pending. The Board therefore finds that the record supports that the
job appellant was working at the time she resigned was not outside her restrictions and her
argument to the contrary is without merit.
Appellant also failed to meet her burden of proof to establish that she was totally disabled
beginning on January 22, 2001. In her August 24, 2005 affidavit, she stated that she continued to
work until October 2001. While she submitted numerous medical reports covering the period in
question which discuss her complex medical condition and treatment regimen, most of these do
not discuss any type of work restrictions or disability, and medical evidence that does not offer
any opinion regarding the cause of an employee’s condition or disability is of limited probative
value on the issue of causal relationship.13 The only reports of record which discuss work
restrictions are those dating from February 19 to December 17, 2002 in which Dr. Wunder
provided a 10-pound lifting restriction and advised that appellant should not lift above her head
These are within the restrictions that were in place when she resigned and therefore do not show
that she was totally disabled from her limited-duty job. In its decisions dated August 25 and
December 16, 2004, the Office noted that appellant would be entitled to wage-loss compensation
for postoperative recovery but that she submitted no medical documentation to support disability
due to her employment-related conditions. Appellant submitted no such evidence. The medical
evidence of record, therefore, does not establish that she had an employment-related disability
for the period January 22, 2001 to April 30, 2004.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the period January 22, 2001 to April 30, 2004 causally
related to her accepted conditions.

13

See Willie M. Miller, 53 ECAB 697 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2005 be affirmed
Issued: February 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-1002
Issued: November 25, 2019

Case Submitted on the Record

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

JURISDICTION
On April 8, 2019 appellant filed a timely appeal from a March 14, 2019 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 has met his burden of proof to establish a lumbar strain
causally related to the accepted January 21, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 14, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 29, 2019 appellant, then a 40-year-old mail processing clerk filed a traumatic
injury claim (Form CA-1) alleging that on January 21, 2019 he injured his lower back when pulling
a tray of mail out of a rack while in the performance of duty.
On January 21, 2019 Sheri Lamparter, a nurse practitioner, referred appellant for a
magnetic resonance imaging (MRI) scan of the lumbar spine and diagnosed low back pain. John
Noerpel, a nurse practitioner, also examined appellant on January 21, 2019 and noted that appellant
experienced increased back pain with left straight leg raising and that he was unable to walk due
to pain. Mr. Noerpel diagnosed acute bilateral low back pain without sciatica.
On January 22, 2019 Dr. Thomas Z. Pineo, an osteopath, diagnosed lumbar strain. He
recounted that appellant developed low back pain at work while lifting and transferring 20-pound
boxes. Dr. Pineo reported that appellant had experienced a similar event four years prior which
was not as severe. He reviewed appellant’s January 22, 2019 MRI scan and found a disc bulge at
L4-5 consistent with an annular fissure as well as minimal central canal narrowing and mild
bilateral neural foraminal narrowing. Dr. Pineo also provided appellant with a work release note
excusing appellant from work for the period January 21 to February 4, 2019.
In a January 22, 2019 statement, appellant’s supervisor, A.Z., reported that, as appellant
was pulling trays off of a rack, he felt a sharp lower back pain which prevented him from standing
straight or walking. He helped appellant into a wheelchair and pushed him to the office. Appellant
reported that this was an old injury and that he experienced pain occasionally, but this pain was
“too strong.” He indicated that he did not want transportation to the hospital and his wife came to
pick him up.
In a February 4, 2019 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
On February 4, 2019 Ali Saleh, a physician assistant, diagnosed other dorsalgia. Appellant
also provided notes from Abigail Lind, a physical therapist.
In a note dated February 6, 2019, Dr. Ronald W. Lippe, a Board-certified orthopedic
surgeon, examined appellant and noted appellant’s history of injury of transferring a tray of mail
and developing pain in his back. He diagnosed low back pain.
By decision dated March 14, 2019, OWCP denied appellant’s traumatic injury claim
finding that he failed to submit any medical evidence containing a medical diagnosis in connection
with the accepted January 21, 2019 employment incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
2

time limitation period of FECA,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.9 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.10
In any 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.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish lumbar strain
causally related to the accepted January 21, 2019 employment incident.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.C., Docket No. 19-0834 (issued October 28, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

8

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

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

F.C., Docket No. 19-0594 (issued August 13, 2019); I.J., 59 ECAB 408 (2008).

11
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).

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In support of his claim, appellant submitted a note dated January 22, 2019 from Dr. Pineo,
an osteopath, diagnosing lumbar strain. Dr. Pineo reported that appellant developed low back pain
at work while lifting and transferring 20-pound boxes. While he provided a diagnosis of lumbar
strain, and related appellant’s history of injury, his report is insufficient to establish appellant’s
traumatic injury claim because they merely repeat appellant’s allegations and are unsupported by
adequate medical rationale explaining how the incident on January 21, 2019 actually caused the
diagnosed condition of back strain.12 Such generalized statements do not establish causal
relationship and as such this report is insufficient to satisfy appellant’s burden of proof with respect
to causal relationship.13
On February 6, 2019 Dr. Lippe examined appellant and noted his history of injury of
transferring a tray of mail and diagnosed low back pain. The Board has held that pain is a
symptom, not a compensable medical diagnosis.14 The Board has also held that a medical report
is of no probative value if it does not provide a firm diagnosis of a particular medical condition, or
offer a specific opinion as to whether the accepted employment incident caused or aggravated the
claimed condition.15 As such, Dr. Lippe’s report is insufficient to establish the claim.
The January 22, 2019 MRI scan is insufficient to establish appellant’s traumatic injury
claim. The Board has held that diagnostic reports lack probative value as they fail to provide an
opinion on the causal relationship between his employment duties and the diagnosed conditions.16
The notes from Ms. Lamparter and Mr. Noerpel, nurse practitioners, Ms. Saleh, a
practitioner physician assistant, and Ms. Lind, a physical therapist, are also insufficient to meet
appellant’s burden of proof. Certain healthcare providers such as physician assistants, nurse
practitioners, physical therapists, and social workers are not considered “physician[s]” as defined
under FECA. Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits.17
For these reasons, the Board finds that the evidence of record is insufficient to meet
appellant’s burden of proof on the issue of causal relationship.

12

J.B., Docket No. 18-1006 (issued May 3, 2019); K.W., 59 ECAB 271, 279 (2007).

13

J.K., Docket No. 19-0462 (issued August 5, 2019).

14

J.C., Docket No. 18-1503 (issued May 2, 2019); C.M., Docket No. 18-0146 (issued August 16, 2018); D.D., 57
ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).
15

L.E., Docket No. 19-0470 (issued August 12, 2019); M.J., Docket No. 18-1114 (issued February 5, 2019).

16

K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019); J.M.,
Docket No. 17-1688 (issued December 13, 2018).
17
J.T., Docket No. 18-0664 (issued August 12, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57
ECAB 316, 320 n.11 (2006). Supra note 11 at Chapter 2.805.3.a(1) (January 2013).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lumbar strain
causally related to the accepted January 21, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 10-603
Issued: November 4, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant filed a timely appeal from the August 11, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her occupational injury
claim and the September 23, 2009 nonmerit decision denying her request for reconsideration.
Pursuant to 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 met her burden of proof to establish that she
sustained an injury causally related to factors of her federal employment; and (2) whether the
refusal of the Office to reopen appellant’s case for further consideration of the merits pursuant to
5 U.S.C. § 8128(a) constituted an abuse of discretion.

FACTUAL HISTORY
On May 12, 2009 appellant, a 46-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained injuries to her left foot as a result of employment
activities. She described the history of her injury, noting that she fractured and tore ligaments in
her left foot on May 30, 2007 while walking her route. On January 4, 2008 appellant injured her
left foot as she stepped out of her postal vehicle and, on January 3, 2009, she injured her knee
when she fell in snow while delivering mail. Appellant returned to full duty on February 9, 2009
following her knee injury. After walking her route for seven hours a day beginning February 9,
2009, she experienced excruciating pain in her left foot and knee.
In a January 16, 2009 report, Dr. Mark A. Lazar, a treating physician, stated that
appellant complained of pain over the plantar and lateral aspect of the base of the fifth metatarsal
since January 4, 2008 when she rolled her foot stepping out of a truck. Appellant previously
fractured the fifth metatarsal in May 2007. A subsequent magnetic resonance imaging (MRI)
scan revealed mild stress reactions to the second and third metatarsal cuneiform and medial
navicular, with no stress fracture identified. Dr. Lazar restricted appellant temporarily to four
hours each of walking and driving, with the hope that she would be able to resume her walking
route full time within the next few weeks.
In a February 17, 2009 report, Dr. Jonathan Smerek, a Board-certified orthopedic
surgeon, treated appellant for complaints of lateral-sided tenderness over the fifth metatarsal. He
diagnosed left forefoot synovitis. Dr. Smerek described the history of her left foot condition,
noting that she originally sustained a left fifth metatarsal fracture on May 30, 2007 when she
twisted her foot while exiting from a postal vehicle. On January 4, 2008 appellant again
sustained a left midfoot fracture when she stepped off a truck and inverted her left foot.
On examination of the left lower extremity, appellant demonstrated no anteromedial or
anterolateral ankle joint line tenderness. Ankle range of motion was from 20 degrees of
dorsiflexion to 60 degrees of plantar flexion with no tenderness. There was a negative Tinel’s
sign over the tarsal tunnel. Examination of the midfoot demonstrated no talonavicular or
calcaneacuboid or Lisfranc tenderness. There was tenderness over the proximal metatarsals two
through five. X-rays demonstrated a prior bunionette correction, as well as evidence of an
accessory sesamoid of the fifth metatarsophalangeal joint. There was no evidence of stress
fracture, midfoot arthritis or prior fracture. A July 2008 MRI scan demonstrated stress reaction
within the second and third metatarsals. An October 2007 computerized tomography scan of the
left foot showed a nondisplaced avulsion fracture at the base of the fifth metatarsal. Dr. Smerek
stated that appellant’s lateral column pain “may be due to her prior fractures, early stress
fractures.”
In a May 20, 2009 letter, the Office informed appellant that the evidence submitted was
insufficient to establish her claim and advised her to submit details regarding the employment
duties she believed caused or contributed to her claimed condition. It also requested a
comprehensive medical report from a treating physician, which contained symptoms, a diagnosis
and an opinion with an explanation as to how employment activities in which she engaged after
February 9, 2009 were causally related to her claimed condition.

2

Appellant submitted a May 19, 2009 duty status report from Dr. Ronald R. Banta, a
podiatrist. In the history of injury section, Dr. Banta stated that appellant fell out of her postal
vehicle on January 4, 2009, “broke her foot and continued to have pain.” He diagnosed tibio
fibular ligament distal.
On June 15, 2009 Dr. Banta stated that appellant was being treated for traumatic
degenerative arthritis in the left foot at the mid tarsal joint. Incidental findings demonstrated
calcaneal valgus bilaterally and lateral ankle weakness on the left side, as well as peroneal
tendinitis. Dr. Banta advised that her condition had been building for two years. X-rays
demonstrated degenerative changes in the three cuneiforms of the left foot at the mid tarsal joint,
with mild osteoporosis. Dr. Banta stated:
“Based on the patient’s job description, the changes could be compounded by
continuous walking. We believe her daily job walking requirement may be
worsening this condition.”
By decision dated August 11, 2009, the Office denied appellant’s claim. It accepted that
she had engaged in repetitive walking on her route following her return to work on
February 9, 2009. The Office denied the claim, however, on the grounds that the medical
evidence did not establish a causal relationship between the diagnosed left foot condition and the
accepted work-related activities.
On May 7, 2007 appellant requested reconsideration. She did not submit any evidence or
argument in support of her request.
In a September 23, 2009 decision, the Office denied appellant’s request for
reconsideration on the grounds that she had not submitted sufficient evidence or argument to
warrant further review of the merits.1
LEGAL PRECEDENT -- ISSUE 1
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 an injury was

1

The Board notes that appellant submitted additional evidence after the Office issued its September 23, 2009
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may
submit this evidence to the Office, together with a request for reconsideration pursuant to 5 U.S.C. § 8128(a) and id.
at § 10.606(b)(2).
2

Id. at §§ 8101-8193.

3

sustained in the performance of duty as alleged3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence presenting a physician’s well-reasoned opinion on how the established
factor of employment caused or contributed to the claimant’s diagnosed condition. To be of
probative value, 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
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents, is sufficient to establish a causal relationship.7
ANALYSIS -- ISSUE 1
The medical evidence of record is insufficient to establish that appellant’s left foot
condition was caused or aggravated by factors of her federal employment. Therefore, she has
failed to meet her burden of proof.
On January 16, 2009 Dr. Lazar noted appellant’s complaints of pain over the plantar and
lateral aspect of the base of the fifth metatarsal since January 4, 2008, when she rolled her foot
stepping out of a truck. He restricted her temporarily to four hours each of walking and driving,
with the hope that she would be able to resume her walking route full time within the next few
weeks. Dr. Lazar did not, however, provide a current diagnosis or an opinion on the cause of her

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and manner alleged. He must
also establish that such event, incident or exposure caused an injury.” See also id. at § 8101(5) (“injury” defined);
id. at § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

4

current condition. The Board has held that medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of limited probative value.8
In a February 17, 2009 report, Dr. Smerek provided examination findings and diagnosed
left forefoot synovitis. He described the history of appellant’s left foot condition, noting that she
originally sustained a left fifth metatarsal fracture on May 30, 2007 when she twisted her foot
coming out of a postal vehicle and again sustained a left midfoot fracture on January 4, 2008
when she stepped off of a truck and inverted her left foot. Dr. Smerek opined that her lateral
column pain “may be due to her prior fractures, early stress fractures.” His opinion as to the
cause of appellant’s condition is vague and speculative. Dr. Smerek did not explain the medical
process through which the accepted repetitive work activities would have been competent to
coutribute to her preexisting condition. Medical conclusions unsupported by rationale are of
limited probative value.9
On May 19, 2009 Dr. Banta diagnosed “tibio fibular ligament distal.” On June 15, 2009
he diagnosed traumatic degenerative arthritis in the left foot at the mid tarsal joint and indicated
that her condition had been building for two years. Based on appellant’s job description, he
opined that the changes “could” be compounded by continuous walking and that her daily job
walking requirement “may be worsening this condition.” Dr. Banta’s speculative opinion is
insufficient to establish a causal relationship between accepted employment activities and a
diagnosed condition. His reports fail to adequately explain how repetitive walking contributed to
appellant’s current condition. Such an explanation is particularly important in light of his
diagnosis of traumatic degenerative arthritis. Dr. Banta did not provide a full review of
appellant’s medical history of treatment regarding her left foot and her prior injuries. The Board
finds that Dr. Banta’s reports are insufficiently rationalized to establish a causal relationship
between the established employment factors and appellant’s claimed condition. Therefore, they
are of limited probative value.
Appellant expressed her belief that her alleged condition resulted from her duties as a
carrier. However, the Board has held that the mere fact that a condition manifests itself during a
period of employment does not raise an inference that there is a causal relationship between the
two.10 Neither the fact that the condition became apparent during a period of employment, nor
the belief that the condition was caused or aggravated by employment factors or incidents, is
sufficient to establish causal relationship.11 Causal relationship must be substantiated by
reasoned medical opinion evidence, which it is appellant’s responsibility to submit. Therefore,
appellant’s belief that her condition was caused by the alleged work-related injury is not
determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
8

A.D., 58 ECAB 149 (2006); Michael E. Smith, 50 ECAB 313 (1999).

9

Willa M. Frazier, 55 ECAB 379 (2004).

10

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

11

Id.

5

opinion, with medical reasons, on the cause of her condition. Appellant failed to do so. As there
is no probative, rationalized medical evidence addressing how her claimed conditions were
caused or aggravated by her employment, she has not met her burden of proof in establishing
that she sustained an occupational disease in the performance of duty causally related to factors
of employment.
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”12
The application for reconsideration 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.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 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.15
ANALYSIS -- ISSUE 2
The Office refused to reopen appellant’s case for further consideration on the merits of
her claim on the grounds that the evidence she submitted was insufficient to warrant a merit
review. The record reflects that appellant submitted no additional evidence or argument
subsequent to the last merit decision in this case.
The Board finds that, although timely filed, appellant’s August 31, 2009 application for
reconsideration did not set forth arguments or contain evidence that either: (1) showed that the
Office erroneously applied or interpreted a specific point of law; (2) advanced a relevant legal
argument not previously considered by the Office; or (3) constituted relevant and pertinent new
evidence not previously considered by the Office.16 Therefore, because appellant failed to meet

12

20 C.F.R. § 10.605.

13

Id. at § 10.606.

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

16

Supra note 13.

6

at least one of these standards, the Office properly denied the application for reconsideration
without reopening the case for a review on the merits.17
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty. The Board also finds that the Office did not
abuse its discretion in refusing to reopen appellant’s case for further consideration on the merits
of her claim.
ORDER
IT IS HEREBY ORDERED THAT the September 23 and August 11, 2009 decisions of
the Office of Workers’ Compensation Programs are affirmed.

Issued: November 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

Supra note 15.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, BALTIMORE
PERFORMANCE CLUSTER, Baltimore, MD,
Employer
__________________________________________

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

Docket No. 19-0057
Issued: May 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 9, 2018 appellant filed a timely appeal from a September 21, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 21, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective April 13, 2018, because she ceased to have residuals or disability due
to her accepted employment condition.
FACTUAL HISTORY
In April 1985 OWCP accepted that appellant, then a 31-year-old letter sorting machine
operator, sustained an occupational injury in the form of bilateral carpal tunnel syndrome due to
performing the repetitive duties of her job. Appellant underwent OWCP-approved bilateral carpal
tunnel release surgery in 1985 and 1986.3 She stopped work in July 2003 and retired from the
employing establishment in February 2009.4
Commencing in 1997, appellant received periodic medical treatment for her upper
extremity conditions from Dr. Ramana Gopalan, a Board-certified internist.
In a December 20, 2016 report, Dr. Gopalan noted that appellant complained of constant
pain in both wrists, forearms, elbow, and shoulders (right worse than left). He advised that, upon
physical examination, appellant exhibited bilateral swelling, tenderness, and decreased active
range of motion of her wrists. Dr. Gopalan opined that appellant continued to have employmentrelated bilateral carpal tunnel syndrome and that she was unable to return to work (due to that
condition.
OWCP referred appellant for a second opinion examination to Dr. Stuart J. Gordon, a
Board-certified orthopedic surgeon, and requested that he provide an opinion regarding whether
appellant had residuals or disability due to her employment-related bilateral carpal tunnel
syndrome.
In a January 17, 2017 report, Dr. Gordon reported his physical examination findings and
diagnosed bilateral carpal tunnel syndrome with evidence of continued presence (status post
release), unrelated degenerative disease of the carpometacarpal joints of the hands, and obesity.
He found that appellant continued to have employment-related bilateral carpal tunnel syndrome,
however, she was capable of working in a limited-duty capacity.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Gopalan and Dr. Gordon regarding the extent of appellant’s disability due to her employmentrelated bilateral carpal tunnel syndrome. In order to resolve the conflict, it referred appellant,
pursuant to section 8123(a) of FECA, to Dr. John F. Perry, a Board-certified orthopedic surgeon,
for an impartial medical examination and an opinion on the matter.
In a June 1, 2017 report, Dr. Perry discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted that she
3

Appellant underwent surgical release of the proximal pulley of her right thumb in January 1987. There is no
indication in the case record that OWCP approved this surgery or that appellant has an accepted right thumb condition.
4
By decision dated March 22, 2011, OWCP granted appellant a schedule award for eight percent permanent
impairment of each upper extremity. The award ran for 49.92 weeks for the period April 11, 2010 to March 26, 2011.

2

presented to the examination with complaints of numbness/swelling in both hands. Dr. Perry
indicated that bilateral Phalen’s testing did not produce paresthesias (although bilateral median
nerve compression did so), sensation was normal to pinprick in both upper extremities, and there
was no right thumb triggering or tenderness. He determined that appellant no longer had
employment-related bilateral carpal tunnel syndrome, noting that her reported increasing carpal
tunnel symptoms were unrelated to her employment as she had not worked since 2003. Dr. Perry
opined that appellant’s upper extremity problems were due to nonwork-related conditions,
including hypothyroidism, obesity, and “constitutional issues.” He indicated in the beginning of
the impression and comments section of the report that appellant could return to work without
restrictions, but noted that in the latter portion of the impression and comments section that she
could return to work for eight hours per day with physical restrictions.
On August 14, 2017 OWCP requested that Dr. Perry provide a supplemental report which
clarified his June 1, 2017 report with respect to appellant’s ability to work. In a September 4, 2017
report, Dr. Perry indicated that appellant could return to unrestricted work. He repeated his earlier
opinion that she ceased to have an employment-related medical condition.
OWCP determined that there was a new conflict in the medical opinion evidence between
Dr. Gopalan and Dr. Perry regarding the existence of employment-related bilateral carpal tunnel
syndrome. Dr. Gopalan had found that appellant had employment-related residuals of bilateral
carpal tunnel syndrome in a December 20, 2016 report, whereas Dr. Perry found that appellant had
no such residuals in June 1 and September 4, 2017 reports.5
On September 22, 2017 OWCP issued a conflict statement and referred appellant to
Dr. Sanjiv H. Naidu, a Board-certified orthopedic surgeon, for a new impartial medical
examination and opinion regarding whether appellant had continuing residuals, including
disability, of her employment-related bilateral carpal tunnel syndrome.
In a November 16, 2017 report, Dr. Naidu detailed appellant’s factual and medical history,
including the history of her surgical intervention in the 1980’s and the electromyogram and nerve
conduction velocity (EMG/NCV) testing of her upper extremities between 1997 and 2017. He
noted that January 13, 2017 testing of appellant’s upper extremities revealed right distal motor
latency of 5.1 milliseconds and left distal motor latency of 4.0 milliseconds. Dr. Naidu reported
the findings of the physical examination he conducted on November 10, 2017. There was no
evidence of carpal instability in either wrist, bilateral wrist motion was full and symmetrical, and
bilateral Tinel’s, Phalen’s, carpal compression, and ulnocarpal impingement tests were negative.
Dr. Naidu advised that appellant had 5/5 strength in both upper extremities and that two-point
discrimination and sensation were intact in all digits. He diagnosed resolved bilateral carpal tunnel
syndrome and resolved right trigger thumb and flexor tenosynovitis.

5

OWCP considered Dr. Perry to have served as an OWCP referral physician with respect to the existence of
employment-related bilateral carpal tunnel syndrome because there had not been a conflict in the medical opinion
evidence on this matter at the time of the initial referral to Dr. Perry. The record reflects that Dr. Gopalan found that
appellant had employment-related residuals of bilateral carpal tunnel syndrome in a December 20, 2016 report,
whereas Dr. Gordon also found that appellant had employment-related residuals of bilateral carpal tunnel syndrome
in a January 17, 2017 report.

3

Dr. Naidu further indicated that appellant had been adequately treated with bilateral carpal
tunnel release surgery for the employment injury sustained in the mid-1980s. He noted that
appellant’s current main complaint was bilateral thumb/wrist pain which would be consistent with
her underlying osteoarthritis. Dr. Naidu maintained that with respect to appellant’s current
complaints of progressive upper extremity numbness/tingling, the numerous EMG/NCV studies
obtained since her surgical intervention indicated progression of sensory neuropathy secondary to
chronic untreated hypothyroidism and goiter. He opined that appellant’s employment-related
condition of bilateral carpal tunnel syndrome/entrapment neuropathy had completely resolved and
that no further treatment was needed for this employment injury. In an attached work capacity
evaluation form (Form OWCP-5c), Dr. Naidu determined that appellant was capable of
performing her usual job without restrictions.6
By letter dated February 21, 2018, OWCP advised appellant of its proposed termination of
her wage-loss compensation and medical benefits because she ceased to have residuals or disability
due to her accepted employment condition. It informed appellant that the proposed termination
action was based on the November 16, 2017 opinion of Dr. Naidu, the impartial medical specialist.
OWCP afforded appellant 30 days to submit evidence and argument challenging the proposed
action.
In mid-March 2018 appellant contacted OWCP regarding her request for authorization of
right carpal tunnel surgery. However, she did not submit new evidence or argument challenging
the proposed termination action.
By decision dated April 13, 2018, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, because she ceased to have residuals or disability due to
her accepted employment condition.
On May 2, 2018 OWCP requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
By decision dated September 21, 2018, OWCP’s hearing representative affirmed the
April 13, 2018 decision terminating appellant’s wage-loss compensation and medical benefits
effective that date. The hearing representative determined that the weight of the medical opinion
evidence with respect to employment-related residuals and disability continued to rest with the
opinion of Dr. Naidu.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying termination
or modification of compensation benefits.7 OWCP may not terminate compensation without

6

In attached November 10, 2017 Pennsylvania Department of Labor and Industry form, Dr. Naidu indicated that
appellant’s bilateral carpal tunnel condition had resolved.
7
C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB
541 (1986).

4

establishing that the disability ceased or that it was no longer related to the employment.8 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”10 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist 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.11
ANALYSIS
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective April 13, 2018, because she ceased to have residuals or disability due
to her accepted employment condition.
OWCP properly determined that there was a conflict in the medical opinion evidence
between Dr. Gopalan, an attending physician, and Dr. Perry, an OWCP referral physician, on the
issue of whether appellant continued to have residuals of her accepted employment injury.12
Dr. Gopalan found that appellant had employment-related residuals of bilateral carpal tunnel
syndrome in a December 20, 2016 report, whereas Dr. Perry found that appellant had no such
residuals in June 1 and September 4, 2017 reports. In order to resolve the conflict, OWCP properly
referred appellant, pursuant to section 8123(a) of FECA, to Dr. Naidu for an impartial medical
examination and an opinion on the matter.13

8

A.D., Docket No. 18-0497 (issued July 25, 2018). In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time of such injury. See
20 C.F.R. § 10.5(f).
9

See C.C., supra note 7.

10

5 U.S.C. § 8123(a).

11

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).
12

The Board notes that, while initially Dr. Perry served as an impartial medical specialist regarding the matter of
the extent of appellant’s disability, he actually served as an OWCP referral physician with respect to the existence of
employment-related bilateral carpal tunnel syndrome because there had not been a conflict in the medical opinion
evidence on this matter at the time of the initial referral to Dr. Perry. There was no such conflict at that time because
Dr. Gopalan found that appellant had employment-related residuals of bilateral carpal tunnel syndrome in a
December 20, 2016 report, and Dr. Gordon also found that appellant had employment-related residuals of bilateral
carpal tunnel syndrome in a January 17, 2017 report. See R.H., Docket No. 17-1477 (issued March 14, 2018) (finding
that, due to the lack of a conflict in the medical opinion evidence regarding the underlying issue at the time of referral
to a physician for an impartial medical examination, the physician actually served as an OWCP referral physician with
respect to that issue).
13

See supra note 10.

5

The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Naidu, the impartial medical specialist selected to resolve the
conflict in the medical opinion.14 The report of Dr. Naidu establishes that appellant no longer had
residuals or disability due to her accepted employment condition.
In his November 16, 2017 report, Dr. Naidu detailed appellant’s factual and medical
history, and reported the findings of the physical examination he conducted on
November 10, 2017, noting that there was no evidence of carpal instability in either wrist, bilateral
wrist motion was full and symmetrical, and bilateral Tinel’s, Phalen’s, carpal compression, and
ulnocarpal impingement tests were negative. Dr. Naidu provided a diagnosis which indicated that
appellant’s employment-related bilateral carpal tunnel syndrome had resolved and explained that
appellant had been adequately treated with bilateral carpal tunnel release surgery for the
employment injury sustained in the mid-1980s. He noted that appellant’s current main complaint
was bilateral thumb/wrist pain which would be consistent with her underlying osteoarthritis.15
Dr. Naidu opined that appellant’s employment injury had fully resolved and no further treatment
was needed for an employment-related condition. In an attached form report, he determined that
appellant was capable of performing her usual job without restrictions.
The Board has reviewed the opinion of Dr. Naidu and notes that it has reliability, probative
value, and convincing quality with respect to its conclusions regarding the relevant issue of the
present case. Dr. Naidu provided a thorough factual and medical history and accurately
summarized the relevant medical evidence. He provided medical rationale for his opinion by
explaining appellant had no objective findings of bilateral carpal tunnel syndrome upon physical
examination or diagnostic testing. Dr. Naidu also explained that appellant’s continuing bilateral
upper extremity symptoms were not related to her accepted employment condition, but rather were
related to nonwork-related factors, including underlying osteoarthritis and hypothydroidism.16
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits, effective April 13, 2018, because she ceased to have residuals or disability due
to her accepted employment condition.

14

See supra note 11.

15

Dr. Naidu further maintained that, with respect to appellant’s current complaints of progressive upper extremity
numbness/tingling, the numerous EMG/NCV studies obtained since her surgical intervention indicated progression of
sensory neuropathy secondary to chronic untreated hypothyroidism and goiter.
16
See W.C., Docket No. 18-1386 (issued January 22, 2019); Melvina Jackson, 38 ECAB 443 (1987) (regarding the
importance, when assessing medical evidence, of such factors as a physician’s knowledge of the facts and medical
history, and the care of analysis manifested and the medical rationale expressed in support of the physician’s opinion).

6

ORDER
IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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Appearances:
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-167
Issued: February 27, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2014 appellant, through counsel, timely appealed the October 2, 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 the claim.
ISSUE
The issue is whether appellant’s hearing loss claim is timely pursuant to 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
On August 5, 2014 appellant, then a 68-year-old former ships nuclear fluid mechanical
systems inspector foreman, filed a claim (Form CA-2) for binaural hearing loss. He indicated
that he first realized that his condition was employment related on January 1, 1993. Appellant
1

5 U.S.C. §§ 8101-8193.

retired from the employing establishment effective March 31, 1998. On the CA-2 the employing
establishment indicated that he first reported his condition to a supervisor on August 5, 2014, the
date he filed his CA-2.
OWCP received various employee personnel records dating back to June 1973.
Appellant also provided a description of his job titles and the various duties he performed for the
employing establishment between 1973 and 1998. OWCP also received the results of various
audiograms, including a June 26, 1973 preemployment study. The evidence included a summary
of the results of at least 18 audiograms that were administered as part of the employing
establishment’s hearing conservation program. The latest employer-administered audiogram was
dated March 26, 1998. Additionally, appellant submitted the results of a May 7, 2014
audiogram.
By decision dated October 2, 2014, OWCP denied appellant’s hearing loss claim as
untimely filed. It identified January 1, 1993 as the date of injury, and noted that he retired
effective “March 31, 1993.” Appellant did not file his claim until August 5, 2014, and the
evidence did not support that his immediate superior had actual knowledge within 30 days of the
date of injury.
LEGAL PRECEDENT
An original claim for compensation for disability or death must be filed within three
years after the injury or death.2 A claim filed outside this time frame must be disallowed unless
the immediate superior had actual knowledge of the injury or death within 30 days.3 In a case of
latent disability, the time for filing a claim does not begin to run until the employee has a
compensable disability and is aware or by the exercise of reasonable diligence should have been
aware of the causal relationship of the compensable disability to his employment.4 An employee
with actual or constructive knowledge of his or her employment-related condition, who
continues to be exposed to injurious working conditions, must file a claim within three years of
the date of last exposure to the implicated conditions.5
A positive test result from an employing establishment program of regular audiometric
examination as part of a hearing conservation programs is sufficient to establish knowledge of a
hearing loss so as to put the immediate superior on notice of an on-the-job injury.6

2

Id. at § 8122(a).

3

Id. at § 8122 (a)(1).

4

Id. at § 8122(b).

5

E.g., James A. Sheppard, 55 ECAB 515, 518 (2004); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time,
Chapter 2.801.6 (March 1993).
6

See James A. Sheppard, id.; Federal (FECA) Procedure Manual, id.

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ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant claimed to have been aware of his employment-related hearing loss on or about
January 1, 1993. Based on his reported employment history, appellant’s occupational noise
exposure continued until his retirement effective March 31, 1998. After retiring, appellant
waited more than 16 years before filing the current occupational disease claim. Clearly, he did
not file his claim within three years of the date of last exposure to the implicated conditions.
Under the circumstances, appellant’s claim must be disallowed unless the immediate superior
had actual knowledge of the injury or death within 30 days.
In finding there was no evidence that appellant’s immediate superior had actual
knowledge of his injury, OWCP failed to acknowledge that, for more than two decades,
appellant regularly participated in the employing establishment’s hearing conservation program.7
The October 2, 2014 decision incorrectly stated that only two diagnostic tests (audiograms) had
been received, which were dated May 13, 1997 and May 7, 2014.8 As noted, the record includes
the results of at least 18 employer-administered audiograms through March 26, 1998. If any of
the conservation program test results were positive, this would suffice for purposes of
establishing that appellant’s immediate superior received notice of an on-the-job injury.9
Because OWCP failed to address the evidence regarding the employing establishment’s
hearing conservation program, the case shall be remanded for further development. After such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The case is not in posture for decision.

7

Appellant’s counsel initially raised this issue in an August 19, 2014 letter to OWCP.

8

OWCP also incorrectly noted that appellant retired in “1993,” rather than March 31, 1998.

9

The procedure manual provides in relevant part:
“If the employing agency gave regular physical examinations which might have detected signs of
illness (for example, regular x-rays or hearing tests), the agency should be asked whether the
results of such tests were positive for illness and whether the employee was notified of the results.
[If the claimant was still exposed to employment hazard on or after September 7, 1974 and the
agency’s testing program disclosed the presence of an illness or impairment, this would constitute
actual knowledge on the part of the agency, and timeliness would be satisfied even if the employee
was not informed…].”

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6c.

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ORDER
IT IS HEREBY ORDERED THAT the October 2, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 27, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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