United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Wilkes-Barre, PA, Employer
__________________________________________

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

Docket No. 16-0391
Issued: September 7, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 21, 2015 appellant filed a timely appeal from a June 25, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s June 25, 2015 decision was December 22, 2015. Since
using December 29, 2015, the date the appeal was received by the Clerk of the Appellate Boards would result in the
loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service
postmark is December 21, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained high
blood pressure resulting in an aortic aneurysm causally related to factors of his federal
employment.
FACTUAL HISTORY
On July 26, 2010 appellant, then a 57-year-old general engineer, filed an occupational
disease claim (Form CA-2) alleging that work stress caused chronically elevated blood pressure
and an aortic aneurysm.
OWCP accepted as compensable employment factors that the employing establishment
failed to promote appellant in March 2008 as a result of age discrimination and retaliated against
him for filing an EEO complaint when it denied his request to attend a training seminar in
October 2008, made him sign an acknowledgement that his position required drug testing, rated
his performance October 2008 as “fully successful.” It further found as compensable factors that
the employing establishment failed to address his challenge of his performance rating as of
November 17, 2008, denied his request for a training course in December 2008, took away his
duties as a project manager in April 2009, upheld his 2008 performance rating, and erroneously
indicated that it had discussed the outcome of his performance rating challenge.
On August 17, 2010 Dr. David A. Dalessandro, a Board-certified internist, diagnosed a
“thoracic aortic aneurysm of the ascending thoracic aorta.” He noted that appellant had a family
history of early coronary artery disease. Dr. Dalessandro advised that latent hypertension may
have caused the thoracic aortic aneurysm. He opined that work stress could cause “increased
risk for either development of a thoracic aortic aneurysm and/or aortic dissection and possibly
aortic rupture in a person with a preexisting thoracic aortic aneurysm due to the associated
increase in heart rate and blood pressure.…”
In a report dated August 23, 2010, Dr. Jihad Charabati, Board-certified in family
medicine, noted that appellant was experiencing work stress. He diagnosed depression, a
generalized anxiety disorder, and insomnia.
In a report dated February 18, 2011, Dr. Dalessandro related that repeated exposure to
stress may have caused variations in appellant’s blood pressure causing his aneurysm to increase
in size more quickly.
In a report dated November 8, 2011, received by OWCP on November 23, 2011,
Dr. Dalessandro related that appellant “demonstrated a mild increase in the diameter of his
thoracic aortic aneurysm, both at the level of the aortic root and in the ascending aorta, which
could certainly be attributable to his continued stressful work environment with result in
fluctuations in his blood pressure and heart rate.”
On July 24, 2012 OWCP referred appellant to Dr. Basil M. Rudusky, a Board-certified
internist, for a second opinion examination. In a report dated August 2, 2012, Dr. Rudusky
opined that his thoracic aortic aneurysm was unrelated to work stress. He further found no

2

relationship between appellant’s employment and the diagnosed condition of hypertension,
hyperlipidemia, and arteriosclerotic cardiovascular disease. Dr. Rudusky advised that appellant
should avoid excessive physical exertion.
By decision dated December 19, 2012, OWCP denied appellant’s claim after finding that
the weight of the medical evidence, as represented by Dr. Rudusky, established that he had not
sustained an aortic aneurysm due to the accepted compensable employment factors.
On January 17, 2013 appellant requested a telephone hearing. In a statement dated
January 31, 2013, he noted that the medical evidence did not show evidence of an aneurysm until
2009. Appellant asserted that Dr. Rudusky had not adequately addressed the medical evidence
or provide rationale for his opinion.
The telephone hearing was held on May 7, 2013. By decision dated July 23, 2013, an
OWCP hearing representative set aside the December 19, 2012 decision. She found that a
conflict existed between Dr. Dalessandro and Dr. Rudusky regarding the cause of appellant’s
aortic aneurysm and its relationship to his employment.
On November 7, 2013 OWCP referred appellant to Dr. Manoj Khandelwal, a Boardcertified internist, for an impartial medical examination. In a report dated November 22, 2013,
Dr. Khandelwal reviewed the medical evidence, including a 2013 diagnostic study. He noted
that appellant had a history of hypertension diagnosed in 2005, hyperlipidemia diagnosed in
2006, and cigar smoking beginning 2008. Dr. Khandelwal related, “In summary, [appellant] has
a positive family history of atherosclerosis, history of longstanding hypertension, history of
longstanding hyperlipidemia, [and] cigar smoking who suffers from asymptomatic thoracic
aneurysm which was incidentally discovered on routine chest x-ray surveillance for possible
asbestosis.” He noted that thoracic aortic aneurysms usually occurred in males between 60 and
70 with hypertension and “rarely cause issues for the majority of patients.” Dr. Khandelwal
further indicated that the condition occurred more frequently in obese, sedentary patients,
African Americans, and those who were depressed or who had a significant sodium intake. He
opined:
“There is no conclusive evidence that hypertension is caused by stress in or out of
the workplace. Hypertension is usually idiopathic and can be familial with no
evidence that external stresses contribute to its presence or severity. There is no
scientific basis for the very popularly held belief that stress is related to
hypertension. The data regarding stress/anxiety and hypertension is mixed,
inconclusive and in fact has little credibility. There is also no evidence in the
literature that external stresses lead to the formation of thoracic aortic aneurysms.
“Thus, there is no evidence that any factors of employment contributed,
aggravated, precipitated or accelerated the development of hypertension, or to the
development subsequently of an aortic aneurysm, or the development of the aortic
aneurysm directly. Also, the diagnosis of hypertension predated the alleged
workplace issues. [Appellant] is entirely asymptomatic and has no ‘injury.’”

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Dr. Khandelwal found that appellant’s hypertension was mild and that he had “all the
typical risk factors for aneurysm development and underlying factors and that predispose him to
such a disease, none of which is related to his workplace.” He advised that a search in a
computer research database did not reveal references linking stress and a thoracic aortic
aneurysm. In a May 15, 2014 work restriction evaluation, Dr. Khandelwal opined that appellant
could perform his usual employment duties.
By decision dated September 19, 2014, OWCP denied appellant’s claim as the weight of
the medical evidence, as represented by the opinion of the impartial medical examiner,
established that he did not sustain a medical condition causally related to compensable work
factors.3
On September 12, 2014 appellant requested a telephone hearing. At the telephone
hearing, held on April 9, 2015, he contended that OWCP referral physicians failed to consider
the compensable work factors or discuss the literature linking stress at work with hypertension
and aneurysms.4 Appellant related that his physician diagnosed hypertension in 2005 and put
him on medication, which controlled his hypertension. He indicated that medical reports and
x-rays from his screenings for asbestos were normal until 2008, when his employing
establishment created a hostile work environment. Appellant maintained that stress from 2008
until 2011 aggravated his aneurysm. He cited the case of Robert Sisolak,5 in support of his
assertion that Dr. Khandelwal had not adequately considered the relationship between stress,
hypertension, and aneurysms.
On April 30, 2015 appellant asserted that he did not have any preexisting heart or
vascular condition before the employing establishment created a hostile work environment.6 He
also noted that his aneurysm had increased in size during the time that the employing
establishment retaliated against him for filing his EEO complaint. Appellant argued that
Dr. Khandelwal used an online research site to determine that stress was unrelated to the
development of aneurysms. He noted that the Board found in Sisolak7 that the claimant had
submitted medical literature regarding the relationship between stress and ruptured aneurysms.
Appellant indicated that on December 22, 2010 an OWCP medical examiner found a relationship
between hypertension and aneurysm.8
3

OWCP issued decisions on August 25 and 26, 2014 addressed to appellant, but referencing in part another
claimant. It issued an amended decision on September 19, 2014.
4

Appellant also questioned whether, when OWCP confused his file with another claimant’s a copy of his health
information may have gone to another agency.
5

Docket No. 00-0952 (issued April 20, 2001).

6

Appellant also indicated that he had not received the September 19, 2014 amended decision.

7

See supra note 6.

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On December 22, 2010 OWCP requested that the medical adviser discuss whether stress at work caused his
thoracic aortic aneurysm. In a response dated January 1, 2011, the medical adviser found that there was “no direct
causal relationship between the stress and thoracic aortic aneurysm” but that it instead resulted from hypertension
and a preexisting cardiac condition.

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By decision dated June 25, 2015, the hearing representative affirmed the September 19,
2014 decision.
On appeal, appellant contends that the hearing representative did not consider whether
work factors aggravated his aneurysm. He also alleges that Dr. Khandelwal failed to discuss the
accepted work factors and asserts that his opinion is not entitled to more weight than
Dr. Dalessandro’s. Appellant notes that he did not have many of the risk factors that had been
identified by Dr. Khandelwal as causing an aneurysm, including age, obesity, family history,
alcohol abuse, and ethnicity. He continues to maintain that work aggravated his underlying
condition. Appellant contends that in Judy A. Lemmons,9 the Board found that an impartial
medical examiner must reference identified work factors. He asserts that he did not have any
heart or vascular condition before the hostile work environment began in 2008. Appellant also
references his April 30, 2015 letter to the hearing representative.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.10 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.13

9

Docket No. 97-0627 (issued December 14, 1998).

10

Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

11

Gregorio E. Conde, 52 ECAB 410 (2001).

12

Dennis J. Balogh, 52 ECAB 232 (2001).

13

Id.

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.14 The opinion of the
physician must be based on a complete factual and medical background of the claimant,15 and be
one of reasonable medical certainty16 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.17
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.18 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.19
When 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.20
ANALYSIS
Appellant alleged that he sustained a thoracic aortic aneurysm due to chronic high blood
pressure as a result of stress at work. OWCP accepted as compensable work factors that the
employing establishment failed to promote him in March 2008 as a result of age discrimination
and retaliated against him for filing an EEO complaint when it denied his request to attend a
training seminar in October 2008, made him sign an acknowledgement that his position required
drug testing, and rated his performance October 2008 as “fully successful.” OWCP further
found as compensable work factors that the employing establishment failed to address his
challenge of his performance rating as of November 17, 2008, denied his request for a training
course in December 2008, took away his duties as a project manager in April 2009, upheld his
2008 performance rating, and erroneously indicated that it had discussed the outcome of his
challenge to the performance rating.

14

John J. Montoya, 54 ECAB 306 (2003).

15

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

16

Supra note 14.

17

Judy C. Rogers, 54 ECAB 693 (2003).

18

5 U.S.C. § 8123(a).

19

20 C.F.R. § 10.321.

20

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

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OWCP determined that a conflict existed between Dr. Dalessandro, appellant’s treating
physician, and Dr. Rudusky, an OWCP referral physician, regarding whether appellant’s high
blood pressure and thoracic aneurysm were causally related to the compensable work factors. It
referred him, together with a statement of accepted facts describing the compensable work
factors, to Dr. Khandelwal, a Board-certified internist, for an impartial medical examination.
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.21
The Board finds that Dr. Khandelwal’s opinion represents the weight of the evidence and
establishes that appellant’s thoracic aortic aneurysm was not causally related to the accepted
employment factors. In a report dated November 22, 2013, Dr. Khandelwal reviewed the
medical evidence and discussed appellant’s family history of atherosclerosis, hypertension,
hyperlipidemia, and cigar smoking. He concluded that work factors did not cause or aggravate
appellant’s hypertension or development of his aortic aneurysm. Dr. Khandelwal provided
rationale for his opinion by explaining that appellant had the risk factors of hypertension,
hyperlipidemia, and cigar smoking and that no reliable studies established a relationship between
stress and hypertension or stress and a thoracic aortic aneurysm. He accurately summarized the
relevant medical evidence, provided detailed findings on examination, and reached conclusions
about appellant’s condition, which comported with his findings.22 As Dr. Khandelwal’s report is
detailed, well rationalized, and based on a proper factual background, his opinion is entitled to
the special weight accorded an impartial medical examiner.23 His report represents the weight of
the evidence and establishes that appellant’s thoracic aortic aneurysm was unrelated to the
compensable work factors.
On appeal, appellant contends that OWCP failed to address whether work factors
aggravated his aneurysm. Dr. Khandelwal, however, found that his employment did not
aggravate or accelerate the development of his aneurysm.
Appellant further contends that Dr. Khandelwal did not discuss the accepted work factors
as required by Lemmons.24 In Lemmons, the Board determined that OWCP had not met its
burden of proof to rescind acceptance of left thoracic outlet syndrome. The Board found that
OWCP had not provided the impartial medical examiner with a complete statement of accepted
facts. The Board further determined that the physician had not relied on an accurate employment
history. In the current case, however, OWCP provided Dr. Khandelwal with an accurate
statement of accepted facts and an accurate work history.

21

Id.

22

Manuel Gill, 52 ECAB 282 (2001).

23

See Katheryn E. Demarsh, 56 ECAB 677 (2005).

24

Docket No. 97-0627 (issued December 14, 1998).

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Appellant maintains that he does not have a majority of the risk factors identified by
Dr. Khandelwal as causing an aneurysm, including age, obesity, family history, alcohol abuse,
and ethnicity. Dr. Khandelwal, however, discussed all risk factors and specifically identified the
risk factors that appellant exhibited, including hypertension and hyperlipidemia, and concluded
that work stress was unrelated to the development of his condition.
Appellant asserts that he did not have any heart or vascular condition before the hostile
work environment began in 2008. His lay opinion, however, is not relevant to the medical issue
in this case. Further, the Board has held that the mere fact that a disease or condition manifests
itself during a period of employment does not raise an inference of causal relationship between
the condition and the employment.25
Appellant also referenced on appeal his statement to the hearing representative, in which
he noted that the Board found in Sisolak that the claimant had submitted medical evidence
regarding a relationship between a ruptured cerebral aneurysm and stress, which was not
considered by a physician. In Sisolak the impartial medical examiner indicated that there was no
literature supporting a relationship between stress and a ruptured cerebral aneurysm. The
claimant submitted medical literature discussing the relationship between a ruptured aneurysm
and stress. The Board found that the statement by the impartial medical examiner that there was
no literature supporting a causal relationship showed a lack of expertise and remanded the case.
Dr. Khandelwal, however, did not deny the existence of any literature showing a causal
relationship between stress and hypertension, but found, based on his medical expertise, that it
was inconclusive and lacked credibility. He also determined that the medical literature did not
link the development of a thoracic aortic aneurysm and stress, which is a different issue than that
raised in Sisolak regarding the relationship between stress and a ruptured cerebral aneurysm.
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 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 that he
sustained high blood pressure and an aortic aneurysm causally related to factors of his federal
employment.

25

D.E., 58 ECAB 448 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the June 25, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 7, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Hackensack, NJ, Employer
__________________________________________

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

Docket No. 11-1145
Issued: December 6, 2011

Case Submitted on the Record

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

JURISDICTION
On April 13, 2011 appellant, through her attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) merit schedule award decision dated
December 20, 2010. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 more than an eight percent permanent impairment to
her left lower extremity.
FACTUAL HISTORY
Appellant, a 26-year-old letter carrier, injured her left knee when she slipped while
ascending a flight of stairs on May 12, 2007. She filed a claim for benefits on May 16, 2007,
which OWCP accepted for left knee contusion. On September 20, 2007 appellant filed a Form
CA-2 claim for occupational disease for a left knee condition which she alleged was causally
1

5 U.S.C. § 8101 et seq.

related to employment factors under case number xxxxxx367. OWCP accepted the claim for
dislocation of the left patella. It commenced payment for temporary total disability
compensation as of September 19, 2007 and placed her on the periodic rolls.
On December 23, 2008 appellant underwent arthroscopic surgery for ligament
reconstruction.
Appellant returned to light duty on May 11, 2009. She filed another Form CA-2 claim
for occupational disease for a left knee condition on June 28, 2009 under case number
xxxxxx815; OWCP accepted this claim for acute exacerbation of left medial collateral ligament
sprain. The claims were combined under case number xxxxxx819.
In a November 12, 2009 report, Dr. Arthur Becan, Board-certified in orthopedic surgery,
found that appellant had an 18 percent permanent impairment of the left lower extremity
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) (A.M.A., Guides). He advised on examination that appellant had
complaints of daily left knee pain, swelling and stiffness of intermittent severity. Dr. Becan
stated that she also had complaints of instability with locking of her left knee. He diagnosed
post-traumatic internal derangement to the left knee, recurrent patellofemoral instability to the
left knee and post-traumatic chondromalacia patella in the left knee. Dr. Becan rated a class 2,
16 percent disability based on left patellar subluxation with instability pursuant to the sixth
edition of the A.M.A., Guides. He determined that appellant had a default impairment of class 1,
which yielded a grade C impairment of two percent at Table 16-3, page 510 of the A.M.A.,
Guides.2 Applying the net adjustment formula at pages 521-22 of the A.M.A., Guides,3
Dr. Becan found that appellant had a class 2 impairment, the rating utilized for a moderate
problem for left knee, patellar subluxation or dislocation. He found that the grade at Table 16-6
for functional history was 2, for a moderate problem; the grade for physical examination at Table
16-7 was 1, for a mild problem; and the grade at Table 16-8 for clinical studies was 1, for a mild
problem. Dr. Becan then subtracted the grade modifier of 1 from grade 2 at Table 16-6 and from
grade 1 at Tables 16-7 and 16-8; this yielded a total, adjusted 18 percent impairment of the left
lower extremity impairment.
In order to determine whether appellant could return to her usual job as a letter carrier,
OWCP referred her for a second opinion examination with Dr. Stanley Soren, Board-certified in
orthopedic surgery. In a February 23, 2010 report, Dr. Soren stated findings on examination and
made findings on appellant’s ability to perform work. He reviewed a list of questions pertaining
to whether she could return to her usual job. Dr. Soren did not conduct an impairment evaluation
or render an opinion as to whether appellant had any impairment stemming from her accepted
left knee conditions.
On March 11, 2010 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left lower extremity.

2

A.M.A., Guides 510.

3

Id. at 521-22.

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In a June 10, 2010 report, Dr. Henry J. Magliato, Board-certified in orthopedic surgery
and an OWCP medical adviser, reviewed the reports from Drs. Becan and Soren and found that
appellant had an eight percent permanent impairment under the A.M.A., Guides. He opined that
Dr. Becan used the wrong figures in the net modifier adjustment formula and rendered a grade
modifier of +2 in his calculations instead of the proper figure, a -2. Dr. Magliato further stated
that Dr. Becan based his rating on patella subluxation with moderate instability, a class 2 rating,
without sufficient, supporting objective findings. He advised that Dr. Becan’s examination did
not indicate that there was moderate patella instability, crepitus or pain on patellofemoral
compression, which constituted evidence that the patella was no longer subluxing. Dr. Magliato
also stated that Dr. Soren’s February 23, 2010 report did not mention any patella instability in the
left knee, merely indicating that she had mild grinding. He therefore rated a class 1 impairment
on page 510, Table 16-3, for mild instead of moderate instability in the patella, which rendered
an eight percent impairment for the left lower extremity under that table.
On July 23, 2010 OWCP granted appellant a schedule award for an eight percent
permanent impairment of the left lower extremity for the period November 12, 2009 to April 13,
2010, for a total of 23.04 weeks of compensation.
On July 28, 2010 appellant, through her attorney, requested an oral hearing, which was
held on November 5, 2011.
By decision dated December 20, 2010, an OWCP hearing representative affirmed the
July 23, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.7

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

6

Id.

7

Veronica Williams, 56 ECAB 367, 370 (2005).

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ANALYSIS
On appeal, appellant’s counsel argues that a conflict in medical opinion exists between
Dr. Becan and Dr. Magliato concerning the nature and the extent of permanent impairment
caused by the accepted left knee condition. The Board finds that there is a conflict in the
medical evidence between these two physicians of record. Dr. Becan rated an 18 percent
impairment to the left lower extremity pursuant to the sixth edition of the A.M.A., Guides based
on a class 2, moderate impairment for patellar instability. He stated in his report that appellant
had complaints of instability with locking of her left knee, diagnosed post-traumatic internal
derangement to the left knee with recurrent patellofemoral instability to the left knee, posttraumatic chondromalacia patella in the left knee and patellar subluxation with instability.
Dr. Magliato, an OWCP medical adviser, found that appellant had an eight percent impairment
of her left lower extremity pursuant to the sixth edition of the A.M.A., Guides. He disagreed
with Dr. Becan’s finding of a moderate impairment based on patellar instability, finding that she
only rated a mild, class 1 impairment for patellar instability based on subluxation or dislocation
which yielded an eight percent impairment under Table 16-3, page 510.
The Board notes that Dr. Becan presented a probative, well-supported method for
calculating an impairment of the left lower extremity, which was in conformance with the
applicable protocols of the A.M.A., Guides. Further, Dr. Magliato’s reliance on Dr. Soren’s
opinion for purposes of an impairment rating was in error. Dr. Soren was asked by OWCP to
determine whether appellant was capable of returning to her usual job as a letter carrier and to
evaluate the extent of her disability. His report did not contain findings intended to evaluate
impairment of the accepted left knee condition and therefore is of no probative value with regard
to consideration of a schedule award. Therefore a conflict exists in the medical opinion evidence
between Dr. Becan and Dr. Magliato as to the degree of impairment caused by appellant’s
accepted left patellar knee condition.
Accordingly, the Board set aside the December 20, 2010 OWCP decision and remands
for referral of appellant, the case record and a statement of accepted facts to an appropriate
independent medical specialist to determine the nature and the degree of appellant’s permanent
impairment to her accepted left knee condition. The impartial specialist should be instructed to
provide the appropriate net adjustment for functional history, the final overall adjustment grade,
and the correct modifier for clinical studies. On remand, OWCP should instruct the impartial
medical specialist to resolve this conflict and to clearly indicate the specific background and
protocols of the A.M.A., Guides upon which he based his opinion. After such further
development of the record as it deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision. The December 20, 2010
decision is remanded for further development of the medical evidence.

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ORDER
IT IS HEREBY ORDERED THAT the December 20, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further
action consistent with this decision of the Board.
Issued: December 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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Appearances:
Chris Gayles, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1488
Issued: November 19, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 19, 2014 appellant, through her representative, filed a timely appeal from a
May 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
right leg and lumbar injury in the performance of duty.
FACTUAL HISTORY
On August 13, 2013 appellant, then a 55-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a lower back and right leg injury on
August 9, 2013. She reported that her injuries were a result of lifting and carrying heavy mail
1

5 U.S.C. § 8101 et seq.

containers for a period of five days. Appellant stopped work on August 11, 2013 and notified
her supervisor on August 13, 2013. Her supervisor controverted the claim stating that appellant
did not work alone in her assignments. She further stated that appellant was not working on
August 9, 2013, the date of the alleged injury.
In an August 9, 2013 medical report, Dr. Carlos Garrett, Board-certified in internal
medicine, reported that appellant was seen for severe low back pain with radiation down her
right leg to foot. Appellant reported last working the mail line on August 7, 2013 and
experiencing soreness after work. The pain worsened the following day when she was off work
causing her to seek medical treatment. Dr. Garrett noted that appellant was a postal employee
for the last 10 years and worked 40 hours per week. Appellant’s duties included prolonged
standing and walking, repetitive use of hands with the computer, kneeling, squatting, bending,
pushing and pulling 25 to 70 pounds of repetitive lifting. Dr. Garrett noted history of a 2012
back injury consisting of a lumbar sprain with no radicular symptoms. According to appellant,
her current injury was not caused by a single specific event but was the result of a repetitive
cumulative injury. Upon physical examination and review of x-rays, Dr. Garrett diagnosed
lumbar sprain, lumbar radiculopathy and sciatica. Regarding appellant’s work status, he found
that the findings and diagnosis were consistent with her account of injury or onset of illness.
Appellant was restricted from working until August 12, 2013.
By letter dated August 14, 2013, the employing establishment controverted the claim. It
contended that appellant’s description of injury did not conform to guidelines for a traumatic
injury and that she was not working on August 9, 2013, the date she alleged being injured.
By letter dated August 13, 2013, appellant stated that beginning August 2, 2013 she was
assigned to dump heavy trays of mail which required bending, lifting and loading 1,000 to 2,000
trays each shift. After lifting approximately 1,000 trays on August 7, 2013, she went home with
a sore back. The following day was her day off; but she could not get out of bed due to right leg
and back pain which caused her to seek medical treatment.
By letter dated August 20, 2013, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised that it was unclear whether she was
claiming a traumatic injury or occupational disease claim and asked to clarify the nature of her
claim. OWCP further requested additional medical and factual evidence and asked that she
respond within 30 days.
On August 28, 2013 appellant responded that she was claiming a traumatic injury. She
reported that lifting and carrying heavy trays caused external force and strain on her back.
Appellant further reported that on August 9, 2013 she was on the employing establishment
premises and the employing establishment sent her to U.S. Health Works for a medical
examination.
In an August 9, 2013 report, Dr. Peter Herwitt, a Board-certified diagnostic radiologist,
reported that an x-ray of the lumbar spine revealed minimal spondylolisthesis at L4-5 and mild
retrolisthesis at L5-S1 with marked disc space narrowing at L5-S1.

2

In reports dated August 12 to September 13, 2013, Dr. Larry Barnhart, Board-certified in
family medicine, provided the same medical and occupational history as described by
Dr. Garrett. He reported that appellant’s condition had not improved significantly. Upon
physical examination and review of the diagnostic study, Dr. Barnhart diagnosed lumbar sprain,
lumbar radiculopathy and sciatica. Regarding appellant’s work status, he found that the findings
and diagnosis were consistent with her account of injury or onset of illness. Appellant was
restricted from working and referred for chiropractic treatment, physical therapy and an
orthopedic consult.2
In a September 17, 2013 work status report, Dr. Arthur Garfinkel, a Board-certified
orthopedic surgeon, diagnosed lumbosacral spondylosis and reported that appellant was
restricted from working until October 1, 2013.
By decision dated September 26, 2013, OWCP denied appellant’s claim. It found that
the evidence did not establish that the incident occurred as alleged. OWCP noted that appellant
could not have sustained a work-related traumatic injury on August 9, 2013 because she was not
working on that date. It further noted that her description of injury appeared to meet the
definition of an occupational disease (Form CA-2) rather than a traumatic injury.
On October 7, 2013 appellant requested an oral hearing before the Branch of Hearings
and Review. She reported that her supervisor gave her the incorrect form to file and she was
unclear of the difference between a traumatic injury and occupational disease. Appellant stated
that she believed she suffered an occupational injury as a result of twisting and lifting heavy
trays of mail from August 2 through 8, 2013.
In a September 16, 2013 report, Dr. Barry Berkowitz, a Board-certified diagnostic
radiologist, provided findings pertaining to a magnetic resonance imaging (MRI) scan of the
lumbar spine.
In a September 17, 2013 medical report, Dr. Garfinkel reported that appellant was
referred for an initial orthopedic surgical consultation with respect to an alleged work-related
injury sustained while working for the postal service on August 9, 2013. He noted that appellant
had a several-month history of low back pain as a result of cumulative, repetitive and strenuous
activities required at work. Appellant worked for the postal service for the last 28 years and
denied other work-related or back injuries. Dr. Garfinkel reviewed her medical reports, provided
findings on physical examination and summarized the September 16, 2013 MRI scan of the
lumbar spine. He diagnosed sprain and strain of the lumbosacral spine, spondylolisthesis of the
lumbosacral spine, lumbar spondylosis and ligamentum flavum hypertrophy of the lumbosacral
spine. In reviewing appellant’s history, medical records and examination, she sustained an injury
to the lumbosacral spine arising out of and caused by the industrial exposure on August 9, 2013.
A hearing was held on April 8, 2014. Appellant contended that her injuries were a result
of her work-related duties.

2

Treatment notes dated August 26 and September 5, 2013 were submitted from Dr. Rodney Kaufman, a treating
chiropractor.

3

By decision dated May 27, 2014, a hearing representative affirmed the September 26,
2013 decision. He found that appellant failed to provide sufficient evidence to support a
diagnosed medical condition causally related to factors of her federal employment. The hearing
representative accepted as factual appellant’s occupational employment duties as described from
August 2 through 7, 2013.3
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.6 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
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.7
To establish a 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 based on a complete factual and medical background, supporting such
3

The Board notes that appellant submitted additional evidence after OWCP rendered its May 27, 2014 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
4

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

5

Michael E. Smith, 50 ECAB 313 (1999).

6

Elaine Pendleton, supra note 4.

7

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

4

a causal relationship.8 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.9
ANALYSIS
Appellant filed a traumatic injury claim alleging that she sustained a right leg and lower
back injury on August 9, 2013 as a result of lifting and carrying heavy mail trays for a period of
five days. By letter dated October 7, 2013, she stated that she sustained an occupational injury as
a result of twisting and lifting heavy trays of mail starting on August 2 through 8, 2013. While
OWCP initially denied the claim as one for traumatic injury, in the May 27, 2014 decision, the
hearing representative found that appellant’s claim was for occupational disease.10 The Board
will treat this claim as an occupational disease as appellant alleged an injury resulting from her
work environment over a period longer than a single workday or shift.11
The Board finds that appellant failed to establish that she developed a back condition or
right leg injury related to factors of her federal employment as a mail handler.12
In an August 9, 2013 report, Dr. Garrett treated appellant for right leg and back pain after
experiencing soreness from working the mail line on August 7, 2013. Upon physical
examination and review of x-rays, he diagnosed lumbar sprain, lumbar radiculopathy and
sciatica. While Dr. Garrett provided a medical diagnosis, the Board finds that his opinion on
causal relationship is not well rationalized. He merely recounted appellant’s statement that she
believed her condition was the result of a repetitive cumulative injury. Dr. Garrett noted
prolonged standing and walking, repetitive use of hands with the computer, kneeling, squatting,
bending, pushing and pulling 25 to 70 pounds of repetitive lifting. He did not specify how often
she was required to perform such tasks or the frequency of these physical movements.
Dr. Garrett opined that the findings and diagnosis were consistent with appellant’s account of
injury, yet failed to explain how these repetitive movements caused or aggravated her diagnosed
conditions. He noted a prior back injury but failed to provide sufficient detail or clarity on
whether appellant’s current conditions were caused or aggravated by a preexisting condition or
8

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

9

James Mack, 43 ECAB 321 (1991).

10

The Board has previously held that should a claimant submit an incorrect form, such as a notice of traumatic
injury rather than a notice of occupational disease, such a submission is a technical error. OWCP should inform the
claimant and employing establishment of whether the claim has been converted to a different type of injury than
what was originally claimed and explain the reasons for the method of adjudication. S.N., Docket No. 12-1814
(issued March 11, 2013).
11

J.F., Docket No. 13-1082 (issued September 18, 2013).

12

See Robert Broome, 55 ECAB 339 (2004).

5

her repetitive employment duties as a mail handler.13 Without a sufficient explanation as to the
mechanism of injury, Dr. Garrett’s statement that appellant suffered a work-related injury is
equivocal in nature and of limited probative value.14
The Board notes that the reports dated August 12 to September 13, 2013 from
Dr. Barnhart are nearly identical to the August 9, 2013 report of Dr. Garrett. Additional
diagnostic testing was submitted and the physician noted physical examination findings upon
continued treatment. Dr. Barnhart opined that appellant’s lumbar sprain, lumbar radiculopathy
and sciatica were consistent with her account of injury or onset of illness. As noted,
Dr. Barnhart’s reports are also insufficient to establish causal relation. Medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.15 The opinion of a physician supporting causal relationship must
rest on a complete factual and medical background supported by affirmative evidence, address
the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of
employment.16 Dr. Barnhart’s reports do not meet that standard and are insufficient to meet
appellant’s burden of proof.
In a September 17, 2013 medical report, Dr. Garfinkel noted that appellant had a severalmonth history of low back pain as a result of cumulative, repetitive and strenuous activities from
her employment at the postal service. He diagnosed sprain and strain of the lumbosacral spine,
spondylolisthesis of the lumbosacral spine, lumbar spondylosis and ligamentum flavum
hypertrophy of the lumbosacral spine. Dr. Garfinkel’s generalized statement that appellant
sustained an injury to the lumbosacral spine arising out of and caused by the August 9, 2013
industrial exposure is insufficient to establish a work-related injury. He did not provide an
adequately detailed medical history or adequate explanation detailing the August 9, 2013
industrial exposure. Dr. Garfinkel failed to describe appellant’s work duties, did not specify how
many hours she worked as a mail handler and the frequency of physical movements and tasks
which would cause her injury. Moreover, he failed to provide any explanation regarding which
employment duties caused appellant injury and the mechanism of injury. Without medical
reasoning explaining how appellant’s federal employment duties as a mail handler caused or
contributed to her lumbosacral spine injury, Dr. Garfinkel’s report is insufficient to meet
appellant’s burden of proof.17
The reports of Dr. Herwitt and Dr. Berkowitz provided diagnostic findings pertaining to
the lumbar spine and fail to state any opinion on causal relationship.18 There is no indication that
13

B.S., Docket No. 13-920 (issued July 9, 2013).

14

S.W., Docket 08-2538 (issued May 21, 2009).

15

Id.

16

See Lee R. Haywood, 48 ECAB 145 (1996).

17

C.B., Docket No. 08-1583 (issued December 9, 2008).

18

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

6

Dr. Kaufman, appellant’s chiropractor, diagnosed subluxation based on the results of an x-ray.19
As Dr. Kaufman does not meet the statutory definition of a physician, his reports lack probative
value.20 Therefore, the remaining medical evidence is also insufficient to establish appellant’s
claim.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s diagnosed conditions and factors of her federal employment as a
mail handler. Thus, appellant has failed to meet her burden of proof.
The Board notes that appellant submitted additional evidence following the May 27, 2014
merit decision. The Board may not consider new evidence for the first time on appeal which was
not before OWCP at the time it issued its final decision.21
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
leg and lumbar conditions are causally related to the accepted factors of her federal employment
as a mail handler.

19

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
20

T.G., Docket No. 13-76 (issued March 22, 2013).

21

Supra note 2.

7

ORDER
IT IS HEREBY ORDERED THAT the May 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.Z., Appellant
and
U.S. POSTAL SERVICE, SOUTH SHORE
ANNEX, Staten Island, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 14-508
Issued: June 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 7, 2014 appellant, through her representative, filed a timely appeal from the
September 9, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which found her at fault in creating an overpayment resulting from the forfeiture of her
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant was at fault in creating the $33,161.07 overpayment that
arose from the forfeiture of her compensation.
FACTUAL HISTORY
On the prior appeal,2 the Board issued an August 23, 2013 decision affirming OWCP’s
December 18, 2012 overpayment decision on the issues of fact and amount of overpayment.
1

5 U.S.C. § 8101 et seq.

2

Docket No. 13-873 (issued August 23, 2013).

Appellant forfeited her right to compensation from September 16, 2009 to September 3, 2010
because she failed to report all of her earnings during the period, in particular, the $500.00 she
earned on May 6, 2010 for a singing engagement at a birthday party. The Board set aside the
December 18, 2012 decision, however, on the issue of fault. The Board found that OWCP did
not apply a proper standard under 20 C.F.R. § 10.433(a).3
In a decision dated September 9, 2013, OWCP found that appellant was at fault in
creating the overpayment that arose from the forfeiture of her compensation. It had previously
found that she was at fault on the grounds that she knowingly failed to report or underreported
earnings. Acknowledging that the Board had found this to be an incorrect standard, OWCP
found that appellant was at fault on the grounds that she failed to provide information which she
knew or reasonably should have known to be material.
OWCP advised that the wording on the form appellant completed on September 3, 2010
was sufficiently specific to indicate to any reasonable person that any monies earned, or
“payment of any kind,” must be reported. “As such, you failed to provide information which
you knew or should have known to be material.” OWCP noted appellant’s website, which
advertised that she was “currently looking for a gig.”
LEGAL PRECEDENT
Extensive due process rights attach to any attempt by OWCP to recoup benefits already
paid, even if paid in error.4 The United States Supreme Court ruling in the case of Califano v.
Yamasaki, 442 U.S. 682 (1979), required that the Social Security Administration defer any
measures to recover an overpaid benefit until the claimant had been notified of the overpayment,
told of the right to seek reconsideration, and was given an opportunity for an oral hearing on the
issues of fault and waiver. Because the wording of the Social Security Administration waiver
provision is similar to that in FECA, OWCP also provides the right to a prerecoupment hearing
to compensation claimants.5
ANALYSIS
OWCP issued a preliminary determination that appellant was at fault in creating the
overpayment of compensation because she knowingly failed to report or underreported earnings
on her Form EN-1032. The Board found this to be an improper standard. OWCP subsequently
found, under 20 C.F.R. § 10.433(a), that appellant was at fault on the grounds that she failed to
provide information which she knew or should have known to be material.

3

Appellant, a 26-year-old sales and service associate, sustained an occupational injury in the performance of duty
while picking up bags from the workroom floor and hanging them. OWCP accepted her claim for aggravation of
brachial neuritis or radiculitis not otherwise specified and aggravation of internal derangement of the right shoulder.
The facts of this case, as set forth in the Board’s prior decision, are hereby incorporated by reference.
4

See generally FECA Circular No. 82-48, “Overpayments and Waiver” (December 1, 1982).

5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Overpayment Overview, Chapter 6.100.3.k
(May 2004).

2

Although this is a proper standard for fault, OWCP did not provide appellant an
opportunity to respond to the grounds upon which it made this new finding. It did not issue a
preliminary determination. Instead, OWCP directly issued a final decision on the matter, thereby
denying her the right to a prerecoupment hearing.
Under the circumstances, this case will be remanded for further consideration.6 On
remand, OWCP should allow appellant a proper opportunity to respond to the grounds upon
which it finds her at fault and afford her the right to a prerecoupment hearing prior to any final
decision it might issue in the matter.
CONCLUSION
The Board finds that this case is not in posture for decision. Further action is warranted.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: June 6, 2014
Washington, DC

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

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

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

6

Dorothy F. Ellis, 41 ECAB 296 (1989).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Lithonia, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-291
Issued: September 18, 2009

Case Submitted on the Record

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

JURISDICTION
On November 10, 2008 appellant filed a timely appeal from the July 10 and October 3,
2008 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefit on July 10, 2008; and (2) whether appellant established continuing
disability after that date, causally related to the accepted employment injury.
FACTUAL HISTORY
On May 31, 2003 appellant, a 33-year-old mailhandler, injured her lower back when she
attempted to move a cage of mail. She filed a claim for benefits on June 3, 2003, which the Office
accepted for myofascial strain and herniated disc at L5-S1. It paid compensation for temporary
total disability. Appellant underwent L5 laminectomy and L5-S1 lumbar fusion surgery on
August 10, 2004, performed by Dr. Lee A. Kelley, Board-certified in orthopedic surgery.

In a work capacity evaluation dated November 27, 2006, Dr. Kelley stated that appellant
had reached maximum medical improvement and could return to an eight-hour workday with
restrictions of no sitting for more than four hours per day, no walking, standing or operating a
motor vehicle for more than one hour per day, no pushing, pulling or lifting exceeding 10 pounds
for more than one hour per day and no reaching, reaching above the shoulder, twisting, bending,
stooping, squatting, kneeling or climbing. He indicated that appellant should be allowed to take
breaks on as needed basis for up to 15 minutes.
In a December 7, 2006 report, Dr. Kelley noted that appellant had chronic pain after the
lumbar fusion and that her work restrictions were permanent. Appellant was capable of working
only at a sedentary job with the ability to alternate sitting and standing and take breaks on a
regular basis.
On August 3, 2007 the employing establishment offered appellant a job as a modified
mailhandler within Dr. Kelley’s restrictions. Appellant accepted the job on August 14, 2007.
In an August 20, 2007 report, Dr. Kelley noted appellant’s complaint of low back pain
primarily in the morning with shooting pain into both of her legs and her feet. He noted no
changes on physical examination. Appellant reported mild pain and limitation with lumbosacral
bending. Dr. Kelley stated that her lower extremity motor and sensory functions were intact
bilaterally, with no change in her lower extremity deep tendon reflexes. In a return to work form
dated August 30, 2007, Dr. Kelley wrote “continue current light duty, four hours per eight-hour
day only!”
In reports dated September 17 and October 10, 2007, he related that appellant had pain in
her low back and down both of her legs along the posterolateral thighs into the calves and plantar
aspects of both feet. Appellant also showed limited lumbar range of motion. She was tender on
palpation across the lumbosacral spine, with pain and limitation with flexion and extension and
right and left side bending. Dr. Kelley noted that appellant was working light duty as of
August 26, 2007 but had to take time off because she experienced increasing significant pain and
was unable to perform most of her daily activities at work. In a Form CA-20 report dated
October 23, 2007, he reiterated that appellant was working light duty with restrictions.
In order to determine appellant’s current condition, the Office referred her to
Dr. Harold H. Alexander, Board-certified in orthopedic surgery, for a second opinion examination.
In a February 20, 2008 report, Dr. Alexander stated that she had achieved a complete fusion at the
L5-S1 level. He noted persistent bilateral radiation of pain in both legs, decreased sensation in the
right foot and ankle, severe restriction of motion and with persistent root irritation.
Dr. Alexander noted, however, that these findings were somewhat inconsistent with the excellent
fusion appellant had attained from the 2004 surgery and opined that her subjective complaints far
outweighed her objective findings. He did not believe that appellant’s current residuals were
disabling and opined that she could participate in sedentary activities with limitations caused by a
left shoulder rotator cuff tear. Dr. Alexander advised that appellant could not return to work as a
letter carrier because of the persistent unclear residual symptoms consisting of back pain radiating
to both legs with numbness in her right leg and occasional giving way of her back. He advised that
appellant could do sedentary work. Dr. Alexander reviewed an electromyogram (EMG) on
February 28, 2008 and noted there were no signs of radiculopathy.

2

In an April 21, 2008 report, Dr. Kelley stated that appellant had ongoing back pain and
bilateral leg weakness with shooting pain from her left hip and buttocks into the left leg. He
related that appellant’s legs gave out four weeks prior to his examination. On examination,
Dr. Kelley noted low-grade tenderness on palpation in the lumbar spine with moderate pain with
lumbar flexion, extension and right and left side bending and low back pain with straight leg
raising bilaterally. Dr. Alexander noted that appellant experienced chronic pain and found that she
was totally disabled for work.
The Office found a conflict in medical opinion between Dr. Kelley, appellant’s treating
physician, who opined that she was totally disabled for work, and Dr. Alexander, the second
opinion physician, who opined that she was capable of performing full-time sedentary duty. It
referred the case to Dr. Thomas R. Cadier, a Board-certified orthopedic surgeon. In a report
dated May 5, 2008, he reviewed the medical history and statement of accepted facts and set forth
findings on examination. Dr. Cadier noted that appellant was 5’8 tall and weighed 220 pounds.
There was no muscle atrophy. Dr. Cadier noted inconsistent complaints between seated and
lying straight leg raising results. Deep tender reflexes were brisk. Dr. Cadier noted appellant’s
complaint of severe back pain with virtually any testing of motion of the lower extremities. He
advised that appellant’s herniated disc resolved by surgery and that her subjective complaints
outweighed objective findings. Dr. Cadier stated:
“In my opinion, [appellant] is capable of working her date-of-injury position as a
letter carrier. She has a solid fusion and absence of any objective findings which
would lead me to a different conclusion. I believe the only reason [appellant] may
find it difficult to do her job might be the presence of the shoulder pathology or
possibly a knee problem and these have not been accepted as related, to her workrelated back injury.
“In my opinion, [appellant] is capable of working as a modified mail handler
position also since this modified position is less physically demanding than her
date-of-injury position…. She has had surgery, she still has some symptoms, but in
absence of other objective findings....
“I do not believe further treatment is indicated.”
In a notice of proposed termination dated June 6, 2008, the Office found that the weight
of the medical evidence demonstrated that appellant was no longer disabled due to her May 31,
2003 employment injury. It found that Dr. Cadier’s opinion as an impartial medical examiner
resolved the conflict in the medical evidence and constituted the weight of the medical evidence.
The Office allowed appellant 30 days to submit additional evidence or legal argument in
opposition to the proposed termination.
In a report dated June 30, 2008, Dr. Kelley noted that appellant was nearly four years
status post lumbar fusion and complained that her low back is “giving out” if she stands for long
periods. Appellant was evaluated with an EMG/nerve conduction test on February 28, 2008,
which revealed no evidence of radiculopathy in either the right or the left lower extremity. She
remained out of work stating that she was medically retired as of June 16, 2008. Dr. Kelly noted
no change in appellant’s examination. He found motor strength and sensation were intact in the

3

lower extremities bilaterally. Appellant complained of low back pain with straight leg raise on
the right and left but she did not complain of radiating leg pain. There were no changes in her
deep tendon reflexes. Dr. Kelley diagnosed chronic pain syndrome and advised that appellant
remained out of work.
By decision dated July 10, 2008, the Office terminated appellant’s compensation
benefits.1
On September 11, 2008 appellant requested reconsideration. In an August 13, 2008
report, Dr. Kelley reiterated her history of lumbar fusion surgery and chronic pain. An attempt was
made to return appellant’s light-sedentary duty status, but she was unable to do this due to
complaint of pain. Dr. Kelley did not expect her situation to improve or resolve and advised that
she was permanently disabled. In a September 8, 2008 report, he reiterated his findings and
conclusions.
By decision dated October 3, 2008, the Office denied modification of the July 10, 2008
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his or 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.3
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.4
ANALYSIS -- ISSUE 1
The Office found a conflict in the medical opinion between appellant’s treating
physicians, Dr. Kelley and Dr. Alexander, the second opinion physician, regarding appellant’s
residuals disability and work capacity. It referred appellant to Dr. Cadier, a Board-certified
specialist selected as the impartial referee. In a May 5, 2008 report, Dr. Cadier noted that she
still complained of symptoms from her 2003 work injury, but found that further treatment for the
accepted condition was not indicated in the absence of objective findings. He advised that
1

The Board notes that the Office issued a decision dated August 19, 2008, which reversed a November 19, 2007
Office decision denying a claim for recurrence of disability. Docket No. 08-463 (issued August 19, 2008). The
Board found that the Office in effect terminated appellant’s wage-loss compensation in that decision but that it failed
to meet its burden to do so.
2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Regina T. Pellecchia, 53 ECAB 155 (2001).

4

appellant was capable of working her date-of-injury position as a letter carrier. Dr. Cadier stated
that appellant had achieved a solid fusion of the L5-S1 disc and noted the absence of any objective
findings which would lead to a different conclusion. He also advised that appellant was capable of
working as a modified mail handler position since this job was less physically demanding than her
date-of-injury position. Dr. Cadier noted some residual impairment of appellant’s low back due to
the spinal fusion but that the electrical studies were completely normal. He advised that
appellant’s complaints were a manifestation of symptom magnification. The Office relied on
Dr. Cadier’s opinion in its July 10, 2008 decision, finding that appellant had no continuing
disability of her May 5, 2003 work injury and was therefore, not entitled to compensation or
medical benefits.
The Board finds that Dr. Cadier’s referee opinion constitutes the weight of medical
evidence. Dr. Cadier’s report was based on a thorough history of appellant’s condition and a
review of the diagnostic studies. On examination, he found that appellant no longer had any
disabling residuals from her accepted May 5, 2003 injury.5 Dr. Cadier’s opinion is probative,
rationalized and based upon a proper factual background. Therefore, the Office properly
accorded his opinion the special weight of an impartial medical examiner.6
LEGAL PRECEDENT -- ISSUE 2
Once the Office properly terminated appellant’s compensation in its July 10, 2008
decision, the burden of proof shifted to her to establish continuing disability.7
ANALYSIS -- ISSUE 2
Appellant subsequently requested reconsideration and submitted the August 13 and
September 8, 2008 reports from Dr. Kelley, who advised that she had chronic pain since the
lumbar fusion surgery in 2004. Dr. Kelley noted that appellant attempted to return to work on light
duty; however, she was unable to continue due to complaint of low back pain. He opined that
appellant was permanently disabled due to her continuing back pain.
Dr. Kelley’s reports are not sufficient to overcome the weight of medical opinion given to
Dr. Cadier as the impartial specialist. They do not contain a well-reasoned opinion, complete
with findings on examination, that warrant the reinstatement of compensation. Dr. Kelley’s
report was on one side of the conflict in medical evidence which was resolved by Dr. Cadier’s
referee opinion. His additional reports reiterate his prior opinion concerning appellant’s
residuals and incapacity for work. Appellant failed to submit medical evidence sufficient to
negate the finding by Dr. Cadier that she does not have disability caused by residuals of the
accepted employment injury. The Office properly found that she had not submitted sufficient
evidence to outweigh the opinion of Dr. Cadier.
5

While Dr. Cadier addressed permanent impairment to the lumbar spine and noted an impairment rating, the
Board noted that the Act excludes the back or spine from consideration of a schedule award. See Guiseppe Aversa,
55 ECAB 164 (2003).
6

Gary R. Seiber, 46 ECAB 215 (1994).

7

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

5

CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits on July 10, 2008. Appellant did not establish any employment-related
disability following the termination of her benefits.
ORDER
IT IS HEREBY ORDERED THAT the October 3 and July 10, 2008 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: September 18, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1015
Issued: November 2, 2017

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 April 10, 2017 appellant, through counsel, filed a timely appeal from a February 13,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to an accepted June 22, 2015 employment incident.
FACTUAL HISTORY
On July 29, 2015 appellant, then a 57-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on June 22, 2015 he strained his lower back when he
slipped on spilt coffee and fell while getting exiting an elevator at work. The claim form did not
indicate whether he stopped work.
Appellant was initially treated in the emergency room by Dr. Daniel R. Kievlan, Boardcertified in emergency medicine, who related in a June 22, 2015 critical care note, that appellant
slipped on liquid and fell at work outside of the main elevators. Dr. Kievlan indicated that
appellant had a history of lumbar spinal stenosis and spondylolisthesis. Examination of
appellant’s lumbar spine showed no tenderness to palpation. Dr. Kievlan reported decreased
sensation to light touch in the left lower extremities, but normal sensation in all other extremities.
He diagnosed mechanical fall and left lower extremity weakness/numbness, likely exacerbation
of chronic spinal stenosis/spondylolisthesis.
In a June 22, 2015 hospital record, Dr. Palaniswamy Sundaram, a Board-certified
internist, indicated that appellant slipped and fell on fluid outside of an elevator at work around
10:45 a.m. and experienced back, left hip, and left thigh pain. He noted that appellant had a
significant history for lumbar spinal stenosis with chronic back pain. Upon physical examination
Dr. Sundaram reported tenderness over the lower lumbar area, left lateral hip, and lateral aspect
of the left knee. He diagnosed accidental fall with left thigh contusion and exacerbation of
chronic low back pain.
Appellant underwent a series of diagnostic scans and examinations. In a June 22, 2015
lumbar spine computerized tomography (CT) scan report, Dr. Scott A. Lapidus, a radiologist,
noted visualized vertebral bodies that were normal in height and alignment and well-preserved
disc spaces. In a June 22, 2015 pelvis CT scan, Dr. Wendy W. Rhoads, a Board-certified
diagnostic radiologist, indicated that appellant complained of low back pain and left hip
tenderness after an accidental fall. She reported degenerative changes of the sacroiliac joints and
bilateral hip joints and facet arthropathy in the visualized lumbar spine. In a June 22, 2015
lumbar spine radiology report, Dr. Vidhi A. Gupta, a Board-certified diagnostic radiologist,
reported normal vertebral body heights and decreased disc space at L4-5, T12-L1 level and
osteophytes and facet hypertrophy. She diagnosed degenerative disease and no evidence of
instability. In a left femur and knee radiology report, Dr. Gupta indicated that appellant fell and
complained of left knee and thigh pain. She noted no evidence of acute osseous trauma and mild
degenerative disease in the knee.
Dr. David Suski, Board-certified in emergency medicine, treated appellant on July 13,
2015 in the emergency room and noted that appellant had a known history of back pain. He
related that a recent lumbar spine magnetic resonance imaging (MRI) scan showed multilevel
disc disease and narrowing of the central canal and bilateral neural foraminal narrowing.

2

Dr. Suski noted that appellant sustained a slip and fall accident at work on June 22, 2015 and was
off work for five days before returning to work. He reported that appellant now complained that
his back pain had flared up and was too much for him to continue working. Upon physical
examination of appellant’s lumbar spine, Dr. Suski reported no thoracic spine tenderness to
palpation and diffuse lumbar spine tenderness to palpation. Neurological examination of the
lower extremities showed intact strength. Dr. Suski diagnosed acute chronic lumbar pain. He
reported that appellant had a known history of lumbar disc disease and had a recent fall on
June 22, 2015. Dr. Suski recommended that appellant remain off work for two days.
In an August 12, 2015 progress note, Dr. Deepika Pasunur, a Board-certified internist,
related appellant’s complaints of low back pain after he slipped and fell in front of the elevator at
work on June 22, 2015. She noted that he had stopped work and returned two weeks ago, but
now complained that he could not tolerate the pain. Dr. Pasunur indicated that appellant was
scheduled for lumbar fusion surgery on September 25, 2015. Examination of appellant’s lumbar
spine showed no tenderness and positive straight leg raise testing in the bilateral lower
extremities. Dr. Pasunur reported that examination of appellant’s cervical spine also revealed
nontenderness and pain in the left paracervical area with lateral flexion towards the left and right.
She diagnosed lumbar spinal stenosis and cervical radiculopathy.
Appellant underwent a cervical spine diagnostic scan by Dr. Amr A. Mourad, a Boardcertified radiologist, who related in an August 12, 2015 report that he complained of left side
pain and radiculopathy. Dr. Mourad noted a loss of normal cervical lordosis, degenerative
changes with marginal osteophyte formation and sclerosis, and narrowing of the neural foramina
at C3-4, C4-5, and C5-6 and C6-7 neural foramina.
In a September 15, 2015 progress note, Dr. Joon Lee, a Board-certified orthopedic
surgeon, indicated that appellant was scheduled for lumbar surgery on September 25, 2015. He
explained that appellant recently had a fall and complained of worsening left-sided arm pain,
weakness, and clumsiness. Dr. Lee related that, upon physical examination, he observed
difficulty with range of motion secondary to neck pain. He also reported positive Spurling’s sign
toward the left and positive Hoffman’s sign on both sides. Dr. Lee indicated that a cervical MRI
scan showed severe spinal stenosis with myelomalacia at C4-5, C5-6, and C6-7 levels with cord
compression. He recommended that appellant undergo cervical surgery before the scheduled
lumbar surgery.
Appellant underwent a cervical spine MRI scan by Dr. Taik-Kun Kim, a Board-certified
neuroradiologist, who noted in a September 2, 2015 report that appellant had severe multilevel
degenerative changes and congenitally short pedicles resulting in chronic compressive
myelopathy at C3-4, C4-5, and C5-6.
On September 16, 2015 appellant underwent cervical laminectomy, facetectomy, and
foraminotomy with decompression of the spinal cord.
On October 28, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
for the period August 9 to 22, 2015.

3

By letter dated October 28, 2015, OWCP informed appellant that his claim was initially
approved as a minor injury, but it was being reopened because he requested wage-loss
compensation. It advised him that the evidence submitted was insufficient to establish his claim.
OWCP requested that appellant respond to an attached development questionnaire in order to
substantiate that the June 22, 2015 incident occurred as alleged and provide additional medical
evidence to establish a diagnosed condition causally related to the alleged June 22, 2015
incident. Appellant was afforded 30 days to submit additional evidence.
Appellant continued to file various Form CA-7 claims for wage-loss compensation for
the period August 23 to November 28, 2015.
On November 13, 2015 OWCP received appellant’s completed development
questionnaire. Appellant explained that he was on break and going from the ground floor to the
first floor. He reported that when he stepped off the elevator his left foot slipped on some split
coffee on the floor and he fell backwards. Appellant related that he immediately felt pain in his
shoulder and back and was taken to employee health and the emergency room. He indicated that
he did not have any similar neck or back disabilities or symptoms before this injury.
In a decision dated December 1, 2015, OWCP denied appellant’s claim. It accepted that
the June 22, 2015 employment incident occurred as alleged and that he was diagnosed with a
lumbar condition, but it denied his claim because the medical evidence of record failed to
establish causal relationship between the diagnosed medical condition and the accepted June 22,
2015 employment incident.
Appellant resubmitted the July 13, 2015 emergency room records and discharge
instructions and Dr. Lee’s September 15, 2015 progress note.
On January 13, 2016 appellant requested a telephonic hearing and a review of the written
record by a representative of OWCP’s Branch of Hearings and Review. By decision dated
February 8, 2016, an OWCP hearing representative denied his request for a telephone hearing
and a review of the written record because his request was not made within 30 days of OWCP’s
December 1, 2015 decision. She exercised her discretion and determined that the issue in
appellant’s case could equally well be addressed by requesting reconsideration.
On November 17, 2016 appellant, through counsel, requested reconsideration. He related
that he was submitting a November 8, 2016 report by Dr. Lee, which was not previously
considered.
In a November 8, 2016 report, Dr. Lee indicated that appellant was seen at his clinic in
September 2015 for symptomatic lumbar stenosis and scheduled for lumbar surgery. He related
that appellant initially had no complaints of cervical symptoms, but was again examined on
September 15, 2015 after sustaining a fall at work. Dr. Lee reported that appellant complained
of left arm pain, weakness, clumsiness, and worsening balance issues. He related that a cervical
spine MRI scan showed severe spinal stenosis with myelomalacia at C4-5, C5-6, and C6-7
levels. Dr. Lee provided his examination findings. He opined that appellant had “preexisting
asymptomatic cervical stenosis that was exacerbated by the fall after which [appellant]

4

developed symptomatic myelopathy and myelomalacia changes on his MRI scan.” Dr. Lee
noted that appellant underwent cervical surgery on September 16, 2015.
By decision dated February 13, 2017, OWCP denied modification of its December 1,
2015 denial decision. It found that the medical evidence of record did not contain a wellrationalized medical opinion from a physician explaining how appellant’s medical condition
resulted from the June 22, 2015 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability or condition relates to the
employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative
3

Id.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS
Appellant alleged that on June 22, 2015 he strained his lower back when he slipped on
spilt coffee and fell down at work. OWCP accepted that the June 22, 2015 incident occurred as
alleged and that he was diagnosed with a lumbar condition. However, it denied appellant’s claim
finding insufficient medical evidence to establish that his diagnosed lumbar condition was
causally related to the accepted incident.
The Board finds that appellant failed to meet his burden of proof to establish an injury on
June 22, 2015 causally related to the accepted incident.
Dr. Kievlan initially treated appellant in the emergency room. He related in a June 22,
2015 critical care note that appellant slipped and fell down while getting out of the main
elevators at work. Dr. Kievlan reported that appellant had a history of lumbar spinal stenosis and
spondylolisthesis. He provided physical examination findings and diagnosed fall and left lower
extremity weakness/numbness, likely exacerbation of chronic spinal stenosis/spondylolisthesis.
Dr. Kievlan, however, did not provide an opinion or explain whether the described June 22, 2015
slip and fall incident at work caused or contributed to appellant’s medical condition. The Board
has held that 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.13
Likewise, Dr. Sundaram’s June 22, 2015 hospital record also fails to establish appellant’s claim
as he did not provide any opinion on the cause of appellant’s low back symptoms. These reports,
therefore, are insufficient to establish appellant’s claim.14
Appellant was also treated by Dr. Suski in the emergency room on July 13, 2015.
Dr. Suski noted a history of appellant’s back pain and accurately described the June 22, 2015
employment incident. He provided physical examination findings and diagnosed chronic lumbar
pain. Although Dr. Suski described the June 22, 2015 incident and provided a medical
diagnosis, he did not explain how the June 22, 2015 slip and fall accident at work caused or
contributed to appellant’s medical condition. A physician must provide a narrative description of
the identified employment incident and a reasoned opinion on whether the employment incident
described caused or contributed to appellant’s diagnosed medical condition.15
Likewise, Dr. Pasunur’s August 12, 2015 progress note also fails to establish appellant’s
claim as she accurately described the June 22, 2015 employment incident and noted diagnoses of
lumbar spinal stenosis and cervical radiculopathy, but did not opine as to the causal relationship
12

James Mack, 43 ECAB 321 (1991).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
14

Id.

15

John W. Montoya, 54 ECAB 306 (2003).

6

of the incident and diagnosis.16 For these reasons, this medical report also fails to establish his
traumatic injury claim.
Appellant submitted various medical reports by Dr. Lee. In a September 15, 2015
progress note, Dr. Lee related that appellant recently had a fall at work and complained of
worsening left-sided arm pain, weakness, and clumsiness. He noted that appellant had a history
of spinal stenosis and was scheduled for lumbar surgery on September 25, 2015. Upon physical
examination of appellant’s cervical spine, Dr. Lee reported difficulty with range of motion
secondary to neck pain. Spurling’s sign was positive toward the left and Hoffman’s sign was
positive on both sides. In a November 8, 2016 report, Dr. Lee opined that appellant had
“preexisting asymptomatic cervical stenosis that was exacerbated by the fall after which
[appellant] developed symptomatic myelopathy and myelomalacia changes on his MRI scan.”
The Board notes that, although Dr. Lee provided an affirmative opinion which supported causal
relationship, he did not offer any rationalized medical explanation to support his opinion.
Medical evidence that states a conclusion, but does not offer any rationalized medical
explanation regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.17 Rationalized medical opinion evidence is especially needed in this
case since appellant has a history of a preexisting lumbar condition. Although Dr. Lee
emphasized that appellant was not symptomatic before the fall, he failed to provide a reasoned
opinion on how the June 22, 2015 employment incident contributed to or exacerbated appellant’s
lumbar condition.18 For these reasons, his reports fail to establish appellant’s claim.
The diagnostic reports dated June 22, 2015 by Drs. Lapidus, Rhoads, and Gupta are also
insufficient to establish appellant’s traumatic injury claim. Diagnostic testing is of limited
probative value as it fails to provide a physician’s opinion on the causal relationship between
appellant’s work incident and his conditions.19
While the physicians noted degenerative changes of the sacroiliac and bilateral hip joints,
decreased disc spaces in the lumbar spine, and degenerative disc disease of the lumbar spine,
none of the physicians provided any opinion on the cause of appellant’s medical conditions. As
none of these physicians offered an opinion on whether his medical conditions were causally
related to his employment, these reports are insufficient to establish his claim.20 Similarly,
Dr. Mourad’s August 12, 2015 cervical spine radiology report and Dr. Kim’s September 2, 2015
cervical spine MRI scan report also fail to establish appellant’s claim as none of the physician’s
offered an opinion on whether appellant’s cervical spine condition was causally related to the
June 22, 2015 employment incident.21
16

Id.

17

J.F., and A.D., supra note 13.

18

Supra note 15.

19

G.C., Docket No. 17-0675 (issued June 15, 2017).

20

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

21

Supra note 19.

7

In order to obtain benefits under FECA an employee has the burden of proof to establish
the essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.22 Because appellant has failed to provide such evidence demonstrating that his lumbar
condition was causally related to the June 22, 2015 incident, he has failed to meet his burden of
proof to establish his claim.
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 an injury
causally related to the accepted June 22, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 13, 2017 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: November 2, 2017
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

22

Supra note 5.

8