United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Maspeth, NY, Employer
________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket Nos. 18-1751 and 19-0792
Issued: May 6, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant, through counsel, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards assigned Docket No. 18-1751. On January 8, 2019 appellant,
through counsel, filed a timely appeal from a December 7, 2018 merit decision of OWCP, to which
the Clerk of the Appellate Boards assigned Docket No. 19-0792. 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.

ISSUES
The issue are: (1) whether appellant has met his burden of proof to establish that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries; and (2) whether appellant has met his burden of proof to establish a recurrence of total
disability commencing April 18, 2018 causally related to his accepted employment-related
injuries.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for injuries resulting from continued use of his right shoulder, back,
neck, elbow, and hands while performing his repetitive work duties.3 He noted that he first became
aware of his conditions and their relationship to his federal employment on January 29, 2018.
Appellant stopped work on February 8, 2018 and returned to part-time, light-duty work on
February 21, 2018. He stopped work again on April 18, 2018 and has not returned to work. On
May 24, 2018 OWCP accepted the claim for right hand and shoulder sprains.
OWCP subsequently received a letter dated May 2, 2018 from Dr. Barry M. Katzman, an
attending Board-certified orthopedic surgeon, to counsel. Dr. Katzman indicated that he first
examined appellant on May 11, 2016. He noted a history of appellant’s accepted February 16,
2016 and January 29, 2018 employment injuries and medical treatment. Dr. Katzman noted that
he had reviewed appellant’s medical records. He discussed findings on physical examination and
provided an impression of cervical disc herniations, status post left shoulder surgery, and right
shoulder, left elbow and knee, and bilateral wrist sprains. Dr. Katzman opined that appellant’s
conditions were causally related to the accepted February 16, 2016 and January 29, 2018 workrelated injuries. He recommended cervical surgery.
In a report dated April 25, 2018, Dr. Tanzania Khan, a pain medicine specialist, noted a
history that appellant sustained a traumatic back injury three months prior related to his
performance of repetitive activity at work. She reported physical examination findings and
provided an assessment of lumbar radiculopathy and lumbago.
A May 10, 2018 lumbar magnetic resonance imaging (MRI) scan report by
Dr. Francisco A. Delara, Jr., a diagnostic radiologist, provided an impression of multilevel
degenerative annular bulges identified at L2-3, L3-4, and L4-5 with mild-to-moderate central canal
stenosis at L3-4 and L4-5, and narrowing of the lateral recesses at L3-4 and L4-5. Dr. Delara also
provided an impression of small superimposed right extra foraminal disc protrusion at L2-3 that
nearly contacts the exiting right L2 nerve root. He further provided an impression of foraminal
narrowing at L2-3 through L4-5.

3

The record indicates that appellant has a prior claim for a February 16, 2016 traumatic injury, assigned OWCP
File No. xxxxxx484. OWCP accepted that claim for cervical and left shoulder sprains and right hand and left knee
contusions.

2

Dr. Khan, in a May 23, 2018 report, indicated that appellant had undergone a lumbar MRI
scan and an electromyogram (EMG). She reexamined him and provided an assessment of lumbar
disc displacement, spondylosis, and spinal stenosis, and lumbosacral degenerative disc disease.
Dr. Khan reiterated her assessment of lumbar radiculopathy. She responded “yes” to the question
of whether the diagnosed conditions were caused by appellant’s history of injury. Dr. Khan
advised that he was totally disabled.
OWCP, by letter dated June 7, 2018, referred appellant, together with a statement of
accepted facts, the case record, and a set of questions, to Dr. Jeffrey Guttman, a Board-certified
orthopedic surgeon, for a second opinion to determine the nature and extent of his injury-related
medical residuals and disability and to determine whether any additional conditions were causally
related to the accepted employment injuries.
Dr. Khan continued to treat appellant. In a duty status report (Form CA-17) dated May 23,
2018 and an attending physician’s report (Form CA-20) dated May 29, 2018, she noted a history
of the accepted employment injuries. Dr. Khan diagnosed spinal stenosis at L2-3, L4-5 and
restated her diagnoses of lumbar disc displacement, lumbosacral spondylosis derangement, lumbar
disc displacement, stenosis, degenerative disc disease, and radiculopathy. In the Form CA-17
report, she advised that the diagnosed conditions were due to the accepted employment factors. In
the Form CA-20 report, Dr. Khan checked a box marked “yes” indicating that the diagnosed
conditions were caused by the described employment activity. She related that appellant’s
conditions were likely related to repetitive lifting, pushing, bending, and twisting while moving
parcels. In both reports, Dr. Khan advised that appellant was unable to work and listed his physical
restrictions. She indicated that his disability began on January 29, 2018. In a May 29, 2018 work
capacity evaluation (Form OWCP-5c), Dr. Khan indicated that appellant was unable to work due
to pain and numbness along his lower back and leg that limited his daily functions of standing,
sitting, walking, and lifting.
In a thoracic spine x-ray report dated May 7, 2018, Dr. Baik H. Kang, a Board-certified
diagnostic radiologist, noted an impression of levoscoliosis of the thoracic and lumbar spines and
degenerative disc disease at L2, L3, L4, and osteoarthritis with muscle spasm.
OWCP received additional reports dated May 16 and 31, 2018 from Dr. Katzman who
diagnosed right shoulder sprain, cervical and lumbar radiculopathy, right elbow lateral
epicondylitis, right hand strain, thoracic back pain, muscle spasm, cervical spondylosis, and right
wrist sprain. Dr. Katzman advised that appellant was totally disabled from work and listed his
physical restrictions. In a Form CA-17 report date May 31, 2018, he indicated that appellant’s
thoracic back pain and muscle spasm were due to the January 29, 2018 employment injury. In a
May 31, 2018 Form CA-20 report, Dr. Katzman placed a check in a box marked “yes” indicating
that appellant’s diagnosed right shoulder, elbow, and hand conditions were caused by repetitive
overhead work. He advised that appellant was totally disabled from September 18, 2018 to the
date of his examination. In a Form OWCP-5c dated May 31, 2018, Dr. Katzman explained that
appellant was unable to work because he was still recovering from his injuries. In a disability
certificate dated May 31, 2018, he advised that appellant was totally incapacitated for work from
May 26 through June 27, 2018.

3

In a report dated May 21, 2018, Dr. Peter Perdik, a Board-certified internist, indicated that
nerve conduction velocity (NCV) and EMG study revealed evidence of a mild peroneal motor
peripheral neuropathy predominantly affecting the bilateral lower extremity and bilateral L4-5
radiculopathy. In reports dated May 7, 10 and 16, 2018, he examined appellant and diagnosed
lumbar radiculopathy on the right at L2-3 and L3-4, strain of the muscle and tendon of unspecified
wall of the thorax, multilevel disc bulges on the right lumbar spine, and right L2 nerve
impingement.
Dr. Narayan B. Paruchuri, a Board-certified diagnostic radiologist, performed an MRI scan
of the right shoulder on June 5, 2018. He provided an impression of intermediate grade partialthickness bursal surface tear of the posterior ﬁbers of the supraspinatus tendon. Dr. Paruchuri also
provided an impression of intermediate grade interstitial tear of the anterior ﬁbers of the
subscapularis tendon and cyst in the myotendinous junction.
A report dated June 15, 2018 by Dr. Steven Ross, a Board-certified neurologist, was
received. He noted a history that appellant was status post a January 29, 2018 work-related injury
and that he sustained work-related injury in February 2016. Dr. Ross reported findings on physical
examination and provided an impression that appellant was status post a January 29, 2018 workrelated overuse injury resulting in cervical, thoracic, and lumbar myofascial derangement with
lumbar disc bulges, lumbar radiculopathy, and right shoulder pain. He advised that appellant was
markedly partially disabled.
Reports dated June 28 and 29 and July 17 and 19, 2018 were received from appellant’s
physical therapist.
Reports dated April 6 and June 15, 2018 by Dr. Jason M. Gallina, a Board-certified
orthopedic surgeon, noted appellant’s accepted February 16, 2016 employment injury and
discussed findings on physical and neurological examination and diagnostic testing. He provided
an assessment of neck pain and left greater than right radiating arm pain.
In a June 27, 2018 report, Dr. Katzman reexamined appellant and reiterated his diagnoses
of right shoulder sprain, cervical radiculopathy, and right elbow lateral epicondylitis.
Dr. Guttman, in a medical report dated July 26, 2018, described a history of appellant’s
accepted employment injuries and reviewed medical records. He discussed findings on physical
examination and diagnosed status post cervical and lumbar radiculopathy, status post right
shoulder, elbow, and wrist sprains. In response to OWCP’s questions, Dr. Guttman indicated that
the accepted right hand and right shoulder sprains were resolving. He noted that there were no
subjective complaints that did not correspond with his objective ﬁndings. Dr. Guttman further
noted that appellant had a prior accident and injured his neck, back, left shoulder, and right hand
and elbow. Appellant also had prior left shoulder surgery. Dr. Guttman advised that appellant’s
other diagnosed conditions were causally related superimposed upon preexisting conditions. He
did not suffer from any concurrent nonwork-related conditions. Dr. Guttman indicated that
appellant’s preexisting conditions were temporarily aggravated by his employment and were
resolving. He further indicated that appellant was temporarily moderately disabled due to his
accepted conditions. Appellant was not currently disabled from other nonwork-related preexisting
or subsequent conditions. Dr. Guttman advised that appellant had not reached maximum medical

4

improvement. Appellant could return to sedentary light-duty work with restrictions, eight hours a
day. Dr. Guttman noted that appellant’s September 29, 2016 left shoulder arthroscopy,
debridement of the labrum and rotator cuff, bursectomy, and subacromial decompression
sufﬁciently addressed an accepted work condition. He maintained that the requested cervical spine
surgery, C5-6 and C6-7 anterior cervical discectomy, and fusion were not medically necessary.
Dr. Guttman explained that this injury was superimposed upon a preexisting injury. He
recommended a series of two lumbar spine epidural steroid injections. Dr. Guttman indicated that
appellant’s prognosis was good and there were no specific problems hindering his recovery.
OWCP, by decision dated August 17, 2018, denied the expansion of the acceptance of
appellant’s claim to include the additional conditions. It found that the medical evidence of record
did not contain a rationalized opinion explaining how appellant’s diagnosed conditions were
caused or contributed to by the accepted employment conditions.
By a second decision dated August 17, 2018, OWCP expanded the acceptance of
appellant’s claim to include left shoulder, elbow, and wrist sprains, right wrist sprain, and right
and left shoulder derangement.
Appellant filed a notice of recurrence (Form CA-2a) on September 7, 2018 alleging that he
continued to experience symptoms of his January 29, 2018 work-related conditions on April 18,
2018, the date he stopped work. In support of his claim, he submitted reports from Dr. Ross. In a
Form CA-20 report dated April 17, 2018, Dr. Ross again related a history of the January 29, 2018
employment injury. He diagnosed right shoulder derangement and reiterated his diagnoses of
cervical/thoracic/lumbar spine myofascial derangement. Dr. Ross placed a check in a box marked
“yes” indicating that the diagnosed conditions were caused or aggravated by the described
employment activity. He explained that repetitive use of both shoulders and overhead work caused
the diagnosed conditions. Dr. Ross advised that appellant was totally disabled commencing
April 18, 2018. In a Form CA-17 report dated April 17, 2018, he again opined that appellant’s
cervical/thoracic/lumbar spine and right shoulder derangement were due to his accepted
January 29, 2018 employment injury. Dr. Ross indicated that appellant was unable to work. In a
Form OWCP-5c dated April 17, 2018, he restated his cervical, thoracic, and lumbar spine and right
shoulder diagnoses and opinion on appellant’s disability status. Dr. Ross also listed appellant’s
physical restrictions.
Appellant submitted a report dated April 18, 2018 from Dr. Katzman, who again diagnosed
right shoulder sprain, cervical radiculopathy, right elbow lateral epicondylitis, and right hand
strain. Dr. Katzman also reiterated his opinion on causal relationship. He advised that appellant’s
complaints were causally related to the January 29, 2018 employment injury superimposed on his
previous right shoulder injury.
In subsequently received reports dated August 1 and September 12, 2018, Dr. Katzman
continued to diagnose right shoulder sprain, cervical radiculopathy, right elbow lateral
epicondylitis, and right hand strain.
By development letter dated October 30, 2018, OWCP advised appellant of the
deficiencies of his recurrence claim by explaining the type of factual and medical evidence
required and provided a questionnaire for his completion. It afforded him 30 days to respond.

5

On November 21, 2018 appellant responded to OWCP’s questionnaire. He noted that he
experienced a spontaneous change for the worse in his symptoms and nature and extent of his
work-related condition without an intervening cause. Appellant related that he continued to
experience symptoms of his work-related medical condition which resulted in work restrictions.
He maintained that his claim was not for a new occupational disease or traumatic injury due to his
worsening work-related condition without an intervening cause. Appellant further maintained that
he had continuing symptoms of his original injury from the time of this injury through the date of
his alleged recurrence. He indicated that he had not sustained any other injuries or illnesses on or
off work since his original injury. Appellant also had no hobbies and/or activities that may have
affected his work-related condition.
By decision dated December 7, 2018, OWCP denied appellant’s claim for a recurrence of
disability, finding that the medical evidence of record was insufficient to establish a material
change or worsening of his accepted conditions without an intervening cause.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.4
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.5 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6 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.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries.

4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

6

Leslie C. Moore, 52 ECAB 132 (2000).

7
Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

6

In a May 2, 2018 report, appellant’s physician, Dr. Katzman, noted a history of appellant’s
accepted employment injuries and his prior accepted February 16, 2016 employment injuries. He
provided examination findings and an impression of cervical disc herniations, status post left
shoulder surgery, and right shoulder, left elbow and knee, and bilateral wrist sprains. Dr. Katzman
opined that the diagnosed conditions were causally related to the accepted February 16, 2016 and
January 2018 work-related injuries. He recommended cervical surgery. Other reports from
Dr. Katzman dated May 16 and 31, 2018 diagnosed cervical and lumbar radiculopathy, right elbow
lateral epicondylitis, right hand strain, thoracic back pain, muscle spasm, cervical spondylosis, and
right wrist sprain. In a May 31, 2018 narrative report, he opined that the diagnosed conditions
were due to the accepted January 29, 2018 employment injury. The Board finds that, although
Dr. Katzman supported causal relationship in his May 2 and 31, 2018 reports, he did not provide
medical rationale explaining the causal relationship between appellant’s diagnosed conditions and
recommended surgery to the accepted work injuries.8 In a May 31, 2018 Form CA-20 report,
Dr. Katzman checked a box marked “yes” indicating that appellant’s diagnosed conditions were
caused by the accepted employment injuries. He advised that appellant was totally disabled from
September 18, 2018 to the date of his examination. The Board has held that a report that addresses
causal relationship with an affirmative checkmark, without medical rationale explaining how the
employment injuries caused or aggravated the diagnosed condition, is of diminished probative
value and insufficient to establish causal relationship.9 Dr. Katzman failed to offer medical
rationale explaining how appellant’s diagnosed cervical, lumbar right elbow, hand, and wrist,
thoracic back conditions and disability were caused or aggravated by the accepted employment
factors. In his remaining reports, he addressed appellant’s right shoulder and elbow and cervical
conditions and medical treatment, but failed to offer an opinion stating that the diagnosed
conditions and disability were caused or contributed to by the accepted employment injuries.10
Thus, this evidence is therefore insufficient to meet appellant’s burden of proof.11
In her April 25, 2018 report, Dr. Khan diagnosed lumbar radiculopathy and lumbago, but
failed to provide an opinion finding that the diagnosed conditions were caused or contributed to
by the accepted employment injuries. As there is no opinion on causal relationship, this report is
of no probative value.12 Other reports from Dr. Khan dated May 23 and 29, 2018 diagnosed spinal
stenosis at L2-3 and L4-5, lumbar disc displacement, lumbosacral spondylosis derangement,
lumbar disc displacement, stenosis, degenerative disc disease and lumbar radiculopathy. In a
May 23, 2018 Form CA-17, she opined that those diagnosed conditions were due to the accepted
January 2018 employment injury. In both reports, Dr. Khan found that appellant was totally
disabled from work. The Board finds that she did not provide medical rationale explaining the
causal relationship between his diagnosed conditions and attendant disability and the accepted

8

S.S., Docket No. 17-1256 (issued December 13, 2018).

9

See S.C., Docket No. 18-1242 (issued March 13, 2019).

10

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

11

See Y.C., Docket No. 17-1938 (issued January 7, 2019).

12

Supra note 10.

7

work injuries.13 Dr. Khan’s opinion, in a May 29, 2018 Form CA-20 report, that appellant’s
diagnosed conditions were “likely” related to his repetitive work activity is speculative in nature
and thus insufficient to meet appellant’s burden of proof.14 Thus, this evidence is insufficient to
meet appellant’s burden of proof.15
Dr. Gallina’s April 6 and June 15, 2018 reports found that appellant had neck pain and left
greater than the right radiating arm pain. Pain is a description of a symptom rather than a clear
diagnosis of a medical condition.16 Moreover, Dr. Gallina did not provide an opinion on causal
relationship.17 The Board finds that his report is insufficient to establish appellant’s burden of
proof.
The reports from appellant’s physical therapist have no probative medical value in
establishing appellant’s claim as physical therapists are not considered physicians as defined under
FECA.18 As such, this evidence is also insufficient to meet appellant’s burden of proof.
Appellant also submitted diagnostic reports from Drs. Kang, DeLara, Perdik, and
Paruchuri. However, the Board has held that diagnostic studies lack probative value as they do
not provide an opinion on causal relationship between the accepted employment factors and a
diagnosed condition.19
On appeal, counsel contends that the medical evidence of record was sufficient to expand
the acceptance of appellant’s claim to include his diagnosed cervical, thoracic, lumbar, conditions
and additional right and left shoulder, and left knee conditions. For the foregoing reasons, the
Board finds that the medical evidence of record is insufficient to establish that appellant sustained
additional conditions causally related to the accepted employment injuries.

13

S.S., supra note 8.

14

B.M., Docket No. 17-1079 (issued June 4, 2018).

15

See Y.C., supra note 11.

16

B.H., Docket No. 18-1219 (issued January 25, 2019); C.B., Docket No. 09-2027 (issued May 12, 2010); Robert
Broome, 55 ECAB 339 (2004) (the Board has consistently held that pain is a symptom rather than a compensable
medical diagnosis).
17

Supra note 12.

18

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See 5 U.S.C. § 8102(2); S.A., Docket No. 16-1128 (issued November 24, 2017); M.M., Docket No. 16-1617 (issued
January 24, 2017); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as nurses, physician
assistants and physical therapists are not competent to render a medical opinion under FECA). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).
19

See E.V., Docket No. 18-1617 (issued February 26, 2019); R.G., Docket No. 18-1045 (issued February 1, 2019).

8

LEGAL PRECEDENT -- ISSUE 2
Section 10.5(x) of OWCP’s regulations provides that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate
an employee’s physical limitations due to his or her work-related injury or illness is withdrawn
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties or
a reduction-in-force), or when the physical requirements of such an assignment are altered so that
they exceed his or her established physical limitations.20
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative, and substantive evidence, a recurrence
of total disability and to show that he or she cannot perform such light-duty work. As part of this
burden, the employee must show a change in the nature and extent of the light-duty job
requirements.21
Causal relationship is a medical issue that must be established by rationalized medical
opinion evidence.22 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.23 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.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing April 18, 2018 causally related to his accepted employment-related
injuries.

20

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

21

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

22

Supra note 5.

23

Supra note 6.

24

Supra note 7.

9

Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. Therefore, he must thus provide medical evidence establishing that he was disabled
due to a worsening of his accepted work-related conditions.25 The Board finds that appellant did
not submit medical evidence to support that he was disabled due to a worsening of his accepted
work-related conditions commencing April 18, 2018.
In an April 17, 2018 Form CA-20 report, Dr. Ross placed a check in a box marked “yes”
indicating that appellant’s diagnosed conditions of right shoulder derangement,
cervical/thoracic/lumbar spine myofascial derangement were caused or aggravated by his accepted
employment injuries. He explained that repetitive use of both shoulders and overhead work caused
the diagnosed conditions. Dr. Ross found that appellant was totally disabled commencing
April 18, 2018. OWCP only accepted right shoulder derangement. It has not accepted the other
diagnosed conditions. Dr. Ross did not adequately explain how appellant’s disability on or after
April 18, 2018 was due to a worsening of his accepted work-related right shoulder condition.26
Moreover, he did not explain how appellant’s other diagnosed conditions were due to a worsening
of his accepted work-related conditions. Without such an explanation, this report of Dr. Ross is
insufficient to establish a recurrence of disability. In a Form CA-17 report and Form OWCP-5c
report dated April 17, 2018, Dr. Ross again reiterated his opinion that appellant’s
cervical/thoracic/lumbar spine and right shoulder derangement were due to his accepted
employment injuries. He also reiterated his opinion that appellant was totally disabled from work.
Dr. Ross did not specifically explain whether appellant sustained a recurrence of disability causally
related to the accepted employment conditions or otherwise provide medical reasoning explaining
why any current condition or disability beginning April 18, 2018 was due to the accepted
employment injuries.27 For the reasons stated, his reports are insufficient to establish appellant’s
burden of proof.
Dr. Katzman’s April 18, August 1 and September 12, 2018 reports diagnosed right
shoulder sprain, cervical radiculopathy, right elbow lateral epicondylitis, and right hand strain. He
opined that the diagnosed conditions were causally related to the January 29, 2018 employment
injury superimposed on his previous right shoulder injury. However, Dr. Katzman did not
specifically explain whether appellant sustained a recurrence of disability causally related to the
accepted employment conditions or otherwise provide medical reasoning explaining why any
current condition or disability beginning April 18, 2018 was due to the accepted employment
injuries.28 Thus, his reports are insufficient to meet appellant’s burden of proof.
Dr. Khan’s May 29, 2018 Form OWCP-5c report found that appellant was totally disabled
from work due to his back and leg pain and numbness. As noted, pain is a description of a symptom
rather than a clear diagnosis of a medical condition.29 Moreover, Dr. Khan did not provide an
25

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

26

A.P., Docket No. 15-1513 (issued March 2, 2016).

27

D.H., Docket No. 18-0129 (issued July 23, 2018).

28

Id.

29

Supra note 15.

10

opinion as to whether appellant’s disability was due to a worsening of his accepted employmentrelated conditions.30 Likewise, his May 31, 2018 disability certificate did not offer an opinion as
to whether appellant’s disability from work from May 26 through June 27, 2018 was causally
related to a worsening of his accepted employment-related conditions.31 Thus, the Board finds
that his reports are insufficient to establish appellant’s burden of proof.
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which compensation is
claimed.32 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused total disability during the period in question, or supported a finding
that his newly diagnosed conditions were causally related to the accepted injury.33 Appellant
therefore did not meet his burden of proof.34
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 that the
acceptance of his claim should be expanded to include cervical, lumbar, thoracic conditions and
additional right hand and shoulder conditions as causally related to his accepted employment
injuries. The Board further finds that appellant has not met his burden of proof to establish a
recurrence of total disability, commencing April 18, 2018, causally related to his accepted
employment-related injuries.

30

L.B., supra note 10.

31

Id.

32

C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

33

See C.Y., Docket No. 17-0605 (issued January 11, 2018); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
34

Supra note 27.

11

ORDER
IT IS HEREBY ORDERED THAT the December 7 and August 17, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 6, 2019
Washington, DC

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

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 14-610
Issued: July 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 24, 2014 appellant filed a timely appeal from an August 15, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
employment-related injury and a November 21, 2013 nonmerit decision denying her request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a right knee or right shoulder injury in the performance of duty on June 28, 2013, as
alleged; and (2) whether OWCP properly refused to reopen appellant’s case for further
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 21, 2013 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that OWCP improperly refused to reopen her case for
further reconsideration of the merits based on the new reports she submitted from Dr. Andrew
Islam, a Board-certified orthopedic surgeon.
FACTUAL HISTORY
On June 29, 2013 appellant, then a 52-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a right knee and right shoulder injury in the
performance of duty on June 28, 2013 as the result of loading a tray which began to fall causing
her to bounce back and twist her right knee and right shoulder.
Appellant submitted a June 29, 2013 report from Dr. DeAnn Brewer, a Board-certified
internist, who diagnosed “rotator cuff strain vs. tear” and “medial collateral ligament (MCL)
strain v. tear.” Dr. Brewer checked a box “yes” indicating that appellant’s conditions were
caused or aggravated by an employment activity.
In a July 1, 2013 report, Dr. Andrea Islam, a Board-certified orthopedic surgeon, advised
that appellant was injured on June 28, 2013 and diagnosed knee and shoulder strains.
In a July 10, 2013 letter, OWCP notified appellant of the deficiencies of her claim. It
afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a July 23, 2013 report from Dr. Islam who diagnosed sprain/tear of
the right knee. Dr. Islam noted that a magnetic resonance imaging (MRI) scan showed a medial
meniscus tear and mild degenerative changes. She released appellant back to full duty.
By decision dated August 15, 2013, OWCP accepted that the June 28, 2013 incident
occurred as alleged. It denied the claim finding that appellant failed to submit sufficient medical
evidence in connection with the accepted incident.
On August 20, 2013 appellant requested reconsideration. She submitted two reports
dated August 20, 2013 from Dr. Islam who diagnosed right knee strain and stated that appellant
had no significant complaints except for twisting-type limitations and some mild limitation of
motion. Dr. Islam found that appellant had reached maximum medical improvement and
instructed her in proper work-type motions. He opined that “she probably [had] a permanent
partial impairment rating of approximately two percent at this point.”
By decision dated November 21, 2013, OWCP denied appellant’s request for
reconsideration of the merits finding that she did not submit pertinent new and relevant evidence
or show that OWCP erroneously applied or interpreted a point of law not previously considered.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
3

5 U.S.C. § 8101 et seq.

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States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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.7
ANALYSIS -- ISSUE 1
OWCP accepted that the employment incident of June 28, 2013 occurred at the time,
place and in the manner alleged. The issue is whether appellant sustained an injury in the
performance of duty on June 28, 2013. In a July 1, 2013 report, Dr. Islam stated that appellant
was injured on June 28, 2013 and diagnosed knee and shoulder strains. However, the Board
finds that appellant did not meet her burden of proof to establish the causal relationship between
the conditions for which compensation is claimed and the employment incident.
Dr. Islam noted generally that appellant was injured on June 28, 2013 and diagnosed knee
and shoulder strains. On July 23, 2013 he diagnosed sprain/tear of the right knee and stated that
an MRI scan showed a medial meniscus tear and mild degenerative changes. Dr. Islam failed to
provide a rationalized opinion addressing how appellant’s right knee or right shoulder conditions
were caused or aggravated by loading a tray at work on June 28, 2013. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition
4

OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

See T.H., 59 ECAB 388 (2008). See also Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB
1143 (1989).
6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

Id. See Gary J. Watling, 52 ECAB 278 (2001).

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is of limited probative value on the issue of causal relationship.8 Lacking thorough medical
rationale on the issue of causal relationship, the Board finds Dr. Islam’s reports are of diminished
probative value and insufficient to establish that appellant sustained an employment-related
injury in the performance of duty on June 28, 2013.
In a June 29, 2013 report, Dr. Brewer diagnosed “rotator cuff strain vs. tear” and “medial
collateral ligament (MCL) strain v. tear” and checked a box “yes” indicating that appellant’s
conditions were caused or aggravated by an employment activity. Although the “yes” check
mark indicates general support for causal relationship, Dr. Brewer’s medical report is insufficient
to establish a causal relationship.9 The Board has held that when a physician’s opinion on causal
relationship consists only of a check mark on a form, without more by way of medical rationale,
the opinion is of diminished probative value.10 Dr. Brewer failed to provide a sufficient medical
explanation of the relationship between appellant’s right knee and right shoulder conditions and
the June 28, 2013 employment incident.11 The Board finds that appellant did not meet her
burden of proof with the submission of Dr. Brewer’s report.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a June 28, 2013 employment incident,
she has failed to meet her burden of proof to establish a claim for compensation.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.12 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).13
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
8

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

9

See Lucrecia Nielsen, 42 ECAB 583 (1991); Lillian Jones, 34 ECAB 379 (1982) (an opinion on causal
relationship which consists only of a physician checking “yes” to a medical form report question on whether the
claimant’s disability was related to the history given is of little probative value).
10

See Gary J. Watling, 52 ECAB 278 (2001).

11

See Thomas L. Hogan, 47 ECAB 323, 328-29 (1996).

12

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
13

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

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relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.14 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.15 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.16
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record17 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.18
ANALYSIS -- ISSUE 2
In support of her August 20, 2013 reconsideration request, appellant submitted two
reports dated August 20, 2013 from Dr. Islam who diagnosed right knee strain and stated that
appellant had no significant complaints except for twisting-type limitations and some mild
limitation of motion. Dr. Islam found that appellant had reached maximum medical
improvement and instructed her in proper work-type motions. He opined that “she probably
[had] a permanent partial impairment rating of approximately two percent at this point.”
The Board finds that submission of these reports did not require reopening appellant’s
case for merit review as they failed to address the issue of causal relationship between her right
knee and right shoulder conditions and the June 28, 2013 employment incident, which was the
issue before OWCP. Therefore, the reports do not constitute relevant and pertinent new evidence
and are not sufficient to require OWCP to reopen the claim for consideration of the merits.
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP, nor did she submit any relevant and pertinent new evidence not
previously considered. The Board finds that she did not meet any of the necessary requirements
and is not entitled to further merit review.19
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
knee and right shoulder conditions are causally related to a June 28, 2013 employment incident,
14

20 C.F.R. § 10.606(b)(3). See A.L., Docket No. 08-1730 (issued March 16, 2009).

15

20 C.F.R. § 10.607(a).

16

Id. at § 10.608(b).

17

See A.L., supra note 14. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

18

Id. See also Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

19

See L.H., 59 ECAB 253 (2007).

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as alleged. The Board further finds that OWCP properly refused to reopen appellant’s case for
further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 21 and August 15, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 21, 2014
Washington, DC

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

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

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

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

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-626
Issued: September 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 26, 2012 appellant, through his attorney, filed a timely appeal from the Office
of Workers’ Compensation Programs’ (OWCP) August 17, 2011 merit decision denying his
recurrence claim. 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 OWCP properly determined that the issue presented was whether
appellant sustained a recurrence of disability.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 1997 appellant, then a 52-year-old welder, sustained an injury to his right
knee in the performance of duty. OWCP accepted his traumatic injury claim for tear of the right
medial meniscus and paid appropriate compensation benefits for lost wages.2
By decision dated March 18, 2008, OWCP determined that the position of an electronics
worker fairly and reasonably represented his wage-earning capacity and reduced his
compensation benefits accordingly. In a decision dated September 29, 2008, an OWCP hearing
representative affirmed the March 18, 2008 loss of wage-earning capacity decision.
On November 13, 2010 appellant filed a claim for a recurrence of disability, alleging that
residuals from his accepted injury caused him to stumble on December 5, 2009, thereby
reinjuring his right knee. By decision dated March 14, 2011, OWCP denied the claim for a
recurrence of disability. It found that appellant had not submitted sufficient medical evidence to
establish that the claimed recurrence resulted from the accepted injury. By decision dated
August 17, 2011, an OWCP hearing representative affirmed the March 14, 2011 decision.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
OWCP’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.4
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.5 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.6
2

Appellant’s October 23, 1995 traumatic injury claim was accepted for right knee contusion and right leg
cellulitis (File No. xxxxxx248). File No. xxxxxx248 was combined with the instant case, which serves as the master
file.
3

See Sharon C. Clement, 55 ECAB 552 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
5

Sue A. Sedgwick, 45 ECAB 211 (1993).

6

Id.

2

ANALYSIS
In the present case, OWCP determined that the issue was whether appellant sustained a
recurrence of disability on or after December 5, 2009. Appellant alleged that he sustained a
recurrence of disability when residuals from his accepted injury caused him to stumble, thereby
reinjuring his right knee. The record, however, indicates that on March 18, 2008 OWCP
determined that the position of an electronics worker fairly and reasonably represented his wageearning capacity. When appellant subsequently claimed disability, OWCP was obligated to
evaluate the evidence to determine if modification of the wage-earning capacity was warranted.7
As noted above, appellant’s entitlement to compensation is based on the wage-earning capacity
determination and it remains undisturbed until modified.
OWCP did not address the issue of modification of the wage-earning capacity
determination. The hearing representative noted that a wage-earning capacity decision had been
issued, but did not consider the issue of modification. The case will be remanded to OWCP for
an appropriate decision on this issue.
CONCLUSION
The Board finds that appellant’s claims for compensation raised the issue of whether a
modification of the March 18, 2008 wage-earning capacity decision was warranted and the case
must be remanded for a proper decision on the issue presented.

7

See Katherine T. Kreger, 55 ECAB 633 (2004). The Board notes that consideration of the modification issue
does not preclude OWCP from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. Id.; see also Sharon C. Clement, supra note 3.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2011 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: September 20, 2012
Washington, DC

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

Patricia Howard Fitzgerald, 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.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, LA, Employer
__________________________________________

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Appearances:
Daniel E. Broussard, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-190
Issued: July 27, 2010

Case Submitted on the Record

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

JURISDICTION
On October 20, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 23, 2009. Pursuant to 20 C.F.R. §§ 501.2
and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established a recurrence of total disability commencing
October 8, 2005 causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board. In a June 1, 2006 decision, the Board
affirmed an August 23, 2005 Office decision finding that appellant did not establish his claim for
a recurrence of total disability beginning July 2, 2003 causally related to his accepted left wrist
tenosynovitis.1 The Board noted that appellant filed a recurrence of disability claim after the
1

Docket No. 05-1906 (issued June 1, 2006).

employing establishment removed his limited-duty clerk assignment on July 2, 2003 due to his
failure to provide updated medical documentation to support his status. On October 6, 2003 the
employer transferred him to the Vidalia Post Office as a carrier based on an Equal Employment
Opportunity Commission (EEOC) directive although limited-duty work was only available for
two hours daily. There was no wage loss from July 2 to October 6, 2003 as appellant did not
stop work. While he stated that he filed the claim because he wanted to be returned to his
limited-duty status, the Board found that it had no jurisdiction to address the employing
establishment’s removal of his limited-duty status due to failure to submit medical
documentation as this issue does not arise under the Federal Employees’ Compensation Act.2
The Board noted that the employer was directed by the EEOC to transfer appellant to Vidalia as
a carrier and, having complied, the employer could only provide him with about two hours of
limited-duty work daily. For any disability after October 6, 2003, the medical evidence did not
establish that appellant sustained disability due to residuals of his accepted condition. The Board
found that there was no evidence of a change in the nature of appellant’s injury-related condition
or that the available limited-duty work exceeded his restrictions. Although, appellant asserted
that his recurrence was due to his transfer from clerk to carrier, the Board found that the transfer
was based on the EEOC’s decision and his stated preference to work as a carrier at that location
due to its convenience. The history of the case as set forth in the Board’s prior decision is
incorporated herein by reference.
On October 8, 2005 appellant was terminated from the employing establishment on the
basis that he was medically unable to perform the duties of a city carrier. On June 27, 2007 he
filed a notice of recurrence of disability commencing October 8, 2005 the date of his termination.
In support of his claim, appellant submitted numerous treatment notes and diagnostic testing
from the Department of Veterans Affairs, which diagnosed various medical conditions, along
with a copy of the October 3, 2005 letter of removal from the employing establishment. A
June 8, 2007 clinic note reported that appellant presented for a boil on his neck and a
September 13, 2007 note diagnosing a cervical radiculopathy injury.
In an October 9, 2007 note, Dr. Yolanda O’Rourke, a Board-certified internist, stated that
appellant had multiple medical problems that include hypertension, colon polyps, remote peptic
ulcer disease, dyslipidemia, type II diabetes mellitus, chronic insomnia and chronic neck pain
with bilateral radiculopathy. She indicated that, while he has seen multiple specialists, there has
been no significant improvement in his chronic neck pain.
In a June 18, 2008 letter, the Office advised appellant of the deficiencies in his claim and
requested further factual and medical evidence, including a narrative report from his attending
physician which addressed the history of the original injury and contained the physician’s
opinion regarding the need for continued medical treatment and the accepted work-related
condition and the physician’s opinion on why he was unable to work.
In response, appellant submitted a July 16, 2008 sworn affidavit maintaining that his
current condition was related to his initial injury and that he had not sustained any intervening
injuries at work or elsewhere.
2

5 U.S.C. §§ 8101-8193.

2

In a July 15, 2008 medical report, Dr. O’Rourke advised that appellant had undergone
continuous medical care by many specialists for over a decade secondary to left neck and left
upper extremity pain which began after a 1996 work injury. She stated that appellant’s overall
condition has worsened over the years; however, he should be able to perform light-duty work as
a mail clerk. Dr. O’Rourke indicated that his current diagnoses included left shoulder adhesion
capsulitis, subacromial bursitis, left rotator cuff tear, cervical radiculopathy, hypertension,
diabetes mellitus and hyperlipidemia. She noted that a 2005 magnetic resonance imaging (MRI)
scan revealed degenerative cervical spondylosis with mild left foraminal narrowing at C6-7 and
C7-T1 and that appellant’s cervical radiculopathy was confirmed in 2000 with an
electromyogram (EMG).
In a July 30, 2008 decision, the Office denied appellant’s recurrence claim on the basis
that the medical evidence failed to establish that his current conditions were causally related to
the accepted work-related conditions of tenosynovitis of the left forearm and wrist.
On August 11, 2008 appellant requested a telephonic hearing, which was held on
December 9, 2008. At the hearing, his attorney argued that, although appellant had other
nonemployment-related conditions, the current work restrictions of carrying and lifting were
caused by the accepted injury and thus the recurrence claim should be accepted on the basis that
the employing establishment failed to provide limited work in accordance with his injury-related
restrictions. Appellant testified as to his current limitations caused by the accepted injury and
maintained that there had not been any other accidents or injuries since he was terminated.
Numerous reports concerning appellant’s multiple conditions were submitted. In a
December 22, 2008 report, Dr. O’Rourke stated that appellant had chronic pain involving the
neck and radiating into his left shoulder (cervical radiculopathy) plus bilateral carpal tunnel
syndrome. She noted that he has been followed in multiple specialty clinics and took multiple
medications including a narcotic medication to control his pain. Dr. O’Rourke indicated that
there has been little clinical improvement in appellant’s condition and he must continue with
more medical treatment and evaluation. She noted that he was scheduled for an EMG study next
month and his specialist was hoping that this test would provide additional information.
By decision dated April 23, 2009, an Office hearing representative affirmed the prior
decision. The hearing representative noted that no medical evidence of record indicated that
appellant’s current cervical condition at C6-7 and resultant radiculopathy was causally related to
the accepted employment events on and prior to September 12, 1996.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the

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employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.3
Office regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition,
which had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.4 This term also means an inability to
work that takes place when a light-duty assignment made specifically to accommodate an
employee’s physical limitations due to his or her work-related injury or illness is withdrawn,
(except when such withdrawal occurs for reasons of misconduct, nonperformance of job duties
or a reduction-in-force) or when the physical requirements of such an assignment are altered so
that they exceed his or her established physical limitations.5
ANALYSIS
The employing establishment terminated appellant for employment effective October 8,
2005 on the basis that he was unable to medically perform the duties of a city carrier. Appellant
filed a claim for recurrent total disability as of October 8, 2005. The Office previously accepted
that appellant sustained tenosynovitis of the left forearm and wrist as a result of his federal
duties. As noted in the Board’s prior decision, appellant returned to limited-duty work until he
was eventually reclassified as a regular city carrier and transferred to a different location
pursuant to an EEOC decision and his preference to work at that location due to its convenience.
As indicated, the Board previously found that it had no jurisdiction over the employing
establishment’s removal of appellant’s limited-duty status due to his failure to submit supporting
medical documentation. There is no evidence of record following the Board’s prior decision
showing that the reasons for the removal of limited duty had changed or that the Office further
reviewed the basis of the denial of appellant’s limited-duty status.6 Consequently, appellant’s
assertions before the Office and on appeal, regarding the employing establishment’s failure to
provide him further light duty have already been reviewed and decided by the Board.
In support of his claim for a change in the nature and extent of his injury-related
condition, appellant submitted several reports from Dr. O’Rourke regarding his current cervical
condition at C6-7 and resultant radiculopathy. Dr. O’Rourke advised that appellant has been
undergoing continuous medical care for over a decade secondary to left neck and left upper
extremity pain which began after a 1996 work injury. She indicated in several reports that
appellant’s overall condition had worsened over the years and he required continued medical
treatment and evaluation. In her July 15, 2008 report, Dr. O’Rourke indicated that appellant
3

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

4

20 C.F.R. § 10.5(x).

5

Id.

6

A decision of the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R.
§ 501.6(d). In the absence of further review by the Office on the issue addressed by a Board decision, the subject
matter reviewed is res judicata and is not subject to further consideration by the Board. Clinton E. Anthony, Jr., 49
ECAB 476 (1998).

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should be able to perform light-duty work as a mail clerk. However, while she stated that
appellant’s left neck and left upper extremity pain began after a 1996 work injury, she failed to
mention or discuss the employment events or provide a rationalized medial opinion bridging his
current condition(s) and disability to such events.7 Furthermore, Dr. O’Rourke did not
specifically address why appellant’s disability beginning October 8, 2005 was caused by a
spontaneous change in his accepted left tenosynovitis condition nor did she explain why
diagnosed conditions, not accepted by the Office, would have been caused or aggravated by the
accepted left tenosynovitis.8 As such, her opinion is insufficient to support that the claimed
recurrent disability is causally related to the accepted employment injury.
The remainder of the medical evidence of record, which includes numerous medical
reports for several conditions and diagnostic testing, do not contain any opinion on the causal
relationship of appellant’s conditions or the need for continued treatment to the accepted
employment injury.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9 For these reasons, the medical evidence does not establish that
appellant sustained a recurrence of disability on October 8, 2005 causally related to his accepted
left wrist tenosynovitis condition or the accepted employment events on and prior to
September 12, 1996.
CONCLUSION
The Board finds that appellant failed to establish that he had any condition or disability
on and after October 8, 2005 causally related to his September 12, 1996 employment injury.

7

See Mary A. Ceglia, 55 ECAB 626 (2004).

8

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009) (for conditions not accepted or approved
by the Office as due to an employment injury, the claimant bears the burden of proof to establish that such
conditions are causally related to the employment injury through the submission of rationalized medical evidence).
9

See Walter D. Morehead, 31 ECAB 188, 194-95 (1986).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 23, 2009 decision is affirmed.
Issued: July 27, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. BORDER PATROL ACADEMY,
IMPERIAL BEACH STATION, San Diego, CA,
Employer
__________________________________________

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

Docket No. 10-1855
Issued: June 2, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from a June 1, 2010 merit decision of the
Office of Workers’ Compensation Programs regarding his wage-earning capacity. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly determined that appellant’s actual earnings as a
plane interior technician fairly and reasonably represented his wage-earning capacity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 12, 2008 appellant, then a 35-year-old border patrol trainee, injured his left
elbow during a training exercise. He stopped work and received continuation of pay. The Office
accepted a closed fracture of the left radius head and left elbow closed dislocation. Appellant
underwent a left radial head replacement and repair of left elbow lateral collateral ligaments on
March 25, 2008. He was released to modified duty with restrictions on April 9, 2008. On
September 11, 2008 appellant was terminated from his federal position as he was unable to
perform border patrol agent duties.
He claimed wage-loss compensation beginning
September 11, 2008 and the Office paid compensation.
On January 26, 2009 Dr. Daniel B. Cullan, II, a Board-certified orthopedic surgeon,
found appellant permanent and stationary with restrictions of limited use of the left upper
extremity and no lifting greater than 10 pounds.
In August 2009, appellant was referred for vocational rehabilitation. In an initial report
of August 27, 2009, the rehabilitation specialist noted that appellant was considering two job
offers.
On August 25, 2009 Dr. Michael Lenihan, a Board-certified orthopedic surgeon and
associate of Dr. Cullan,2 listed appellant’s work restrictions. He agreed with Dr. Cullan’s
assessment of appellant’s work status. Dr. Lenihan advised that, for no more than two hours a
day, appellant could lift no more than 10 pounds, push no more than 20 pounds and pull no more
than 30 pounds with no striking or impact loading with the left extremity.
On September 15, 2009 appellant began private employment as an aircraft
mechanic/plane interior technician working eight hours a day, five days a week for $15.00 per
hour or $600.00 a week.3 An October 2, 2009 earnings statement verified that appellant earned
$15.00 per hour for a 40-hour week plus $30.00 differential for Shift 3, for a total of $630.00.
The rehabilitation counselor advised that appellant regularly earned an additional $30.00 per
week for Shift 3 work and that he was doing well in his new position.
The employing establishment noted that effective September 15, 2009 appellant’s dateof-injury position of Grade 5, Step 02 earned $42,258.00 per year or $812.65 a week.
By decision dated December 31, 2009, the Office found that appellant had been
employed as a plane interior technician effective September 15, 2009, which was over 60 days,
and that he earned weekly wages of $630.00. It found that there was no evidence the job was
temporary and that the medical restrictions of August 25, 2009 supported his capacity to perform
such work. The Office found that appellant’s actual earnings fairly and reasonably represented
his wage-earning capacity. In a computation of compensation worksheet, it advised that the
weekly pay rate when disability began, effective September 11, 2008, was $780.43 and the
current pay rate for the date-of-injury position, effective September 15, 2009, was $812.65. The
2

Dr. Lenihan became appellant’s treating physician after Dr. Cullan left the practice.

3

The rehabilitation counselor also provided a position description for a cabin mechanic.

2

Office used the current rate for appellant’s date-of-injury position, $812.65, and applied the
Shadrick4 formula to find a loss in earning capacity of $171.69 per week and a compensation rate
of $128.77 per week or $515.77 every four weeks. Accordingly, it reduced his compensation
effective November 18, 2009 to reflect the loss in wage-earning capacity.
Following clarification regarding life insurance enrollment, the Office issued a
January 11, 2010 decision which incorporated the December 31, 2009 decision. A revised
computation of compensation worksheet reflects deductions for life insurance, which changed
the net compensation appellant received each four weeks from $515.77 to $484.29 after a basic
life insurance premium of $12.90 and an optional life insurance premium of $17.88 were taken
into account.
Appellant disagreed with the Office’s decision and requested a telephonic hearing which
was held April 7, 2010. At the hearing, appellant’s attorney asserted that appellant’s job was a
no-bid job that was created for him and could not be used for a loss of wage-earning capacity
decision. Appellant testified that he currently worked as an interior aviation technician. He
stated that, because he had a 30-pound weight restriction, he could not work as an aviation
technician and use his license because he could not lift the 50 pounds necessary to work on the
exterior of a plane. Appellant noted that no particular license was needed for his current job. He
obtained his current job by researching and sending out his resume and denied that the job was
created for him. Appellant testified that he was 10 days from finishing the border patrol
academy when he broke his elbow, which he alleged was due to the negligence of his instructors.
When he returned to modified duty as a border patrol trainee at the employing establishment his
pay had increased to that of a GS-9. No additional evidence pertaining to the loss of wageearning capacity issue was received.
By decision dated June 1, 2010, an Office hearing representative affirmed the January 11,
2010 decision.
LEGAL PRECEDENT
Section 8115(a) of the Act5 provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
earnings fairly and reasonably represent his wage-earning capacity.6 Office procedures indicate
that a determination regarding whether actual wages fairly and reasonably represent wageearning capacity should be made after a claimant has been working in a given position for more
than 60 days7 and actual earnings will be presumed to fairly and reasonably represent wageearning capacity only in the absence of contrary evidence.8 Its procedure manual provides that
4

See infra note 10.

5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8115(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (July 1997); see William D. Emory, 47 ECAB 365 (1996).
8

See Mary Jo Colvert, 45 ECAB 575 (1994).

3

factors to be considered in determining whether the claimant’s work fairly and reasonably
represents his wage-earning capacity include the kind of appointment, that is, whether the
position is temporary, seasonal or permanent and the tour of duty, that is, whether it is part time
or full time.9 Further, a makeshift10 or odd-lot position designed for a claimant’s particular needs
will not be considered suitable.11
The formula for determining loss of wage-earning capacity based on actual earnings,
developed in the Board’s decision in Albert C. Shadrick,12 has been codified by regulations at 20
C.F.R. § 10.403. Office procedures provide that a determination regarding whether actual
earnings fairly and reasonably represent wage-earning capacity should be made after an
employee has been working in a given position for more than 60 days.13 The amount of any
compensation paid is based on the wage-earning capacity determination and it remains
undisturbed until properly modified.14
ANALYSIS
Appellant was a full-time border patrol trainee at the time of his injury on
March 12, 2008. The Office accepted his claim for a closed fracture of left radius head and left
elbow closed dislocation, for which he underwent surgery on March 25, 2008. It authorized
treatment and paid wage-loss compensation.
After a period of disability, appellant returned to modified duty as a border patrol trainee.
He claimed his pay increased from a GS-5 to a GS-9. Appellant’s federal employment was
terminated on September 11, 2008. On September 15, 2009 he accepted a position working as
an aviation interior technician earning $15.00 an hour plus $30.00, a Shift 3 differential, for 40
hours a week or a total of $630.00. The Office reduced appellant’s compensation effective
November 18, 2009 based on his actual earnings as an aviation interior technician.
The Board finds that appellant’s actual earnings as an aviation interior technician fairly
and reasonably represent his wage-earning capacity. The employing establishment was unable to
accommodate appellant’s physical restrictions and terminated his employment on
September 11, 2008. Appellant obtained employment in the competitive labor market and had
two job offers pending at the time rehabilitation services began. He was selected for a position
which was available to the general public. On August 25, 2009 Dr. Lenihan opined that for no
more than two hours per day appellant could lift no more than 10 pounds, push no more than 20
9

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.814.7 (July 1997).

10

A makeshift position is one that is specifically tailored to an employees particular needs and generally lacks a
position description with specific duties, physical requirements and work schedule. See William D. Emory, 47
ECAB 365 (1996); James D. Champlain, 44 ECAB 438 (1993).
11

See e.g., Michael A. Wittman, 43 ECAB 800 (1992).

12

5 ECAB 376 (1953).

13

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.814.7(c) (December 1993).

14

See Sharon C. Clement, 55 ECAB 552 (2004).

4

pounds and pull no more than 30 pounds with no striking or impact loading with the left
extremity. Appellant worked in the aviation interior position for more than 60 days. There is no
evidence that the position was seasonal, temporary or makeshift work designed for his particular
needs and no evidence to show that he was not working eight hours a day.15 As there is no
evidence that appellant’s wages in this position did not fairly and reasonably represent his wageearning capacity, they must be accepted as the best measure of his wage-earning capacity.16
Appellant’s attorney argued that appellant’s job was a no-bid job that the employing
establishment created. The Office hearing representative found, and the record supports, there is
no factual basis for this argument. Appellant sold his services in the competitive labor market
and retained a position, which was available to the general public in the private sector. He
testified as to his duties and acknowledged that it was a real job. As noted, there is no evidence
that the position was seasonal, temporary or makeshift work designed for appellant’s particular
needs or that he was not working eight hours a day. The Board notes that he did not challenge
that he had actual earnings before the Office’s hearing representative. Rather, appellant
indicated that he cannot utilize his aviation license and work on the exterior of a plane because of
his 30-pound weight restriction. Frustration or desire over not being able to work in a particular
environment, however, is not considered in determining the suitability of a position.17
Additionally, appellant applied for and accepted such position.
As appellant’s actual earnings as a plane interior technician fairly and reasonably
represent his wage-earning capacity, the Board must determine whether the Office properly
calculated his wage-earning capacity based on his actual earnings. The Board finds that this
aspect of the case is not in posture for decision.
In computing the compensation, the Office used the current pay rate for the job and step
when appellant was injured. The rate of pay for compensation purposes is the highest rate which
satisfies the terms of section 8101(4) of the Act, i.e., the monthly pay at the time of injury, or the
monthly pay at the time disability begins, or the monthly pay at the time of recurrent disability, if
the recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater, except when otherwise determined
under section 8113 of the Act with respect to any period.18
After the March 12, 2008 work injury and March 25, 2008 surgery, appellant returned to
modified duty on April 9, 2008 and was terminated from his federal position on September 11,
2008 as he was unable to perform border patrol agent duties. The Board finds that, as appellant
only worked modified duty after the March 12, 2008 employment injury and did not return to
regular employment, he is not entitled to a recurrent pay rate.19 Appellant testified that he was
15

J.C., 58 ECAB 700 (2007).

16

Loni J. Cleveland, 52 ECAB 171 (2000).

17

Cf. Lillian Cutler, 28 ECAB 125 (1976) (frustration from desire to work in a particular position is not
compensable).
18

5 U.S.C. § 8101(4); see Patricia K. Cummings, 53 ECAB 623 (2002).

19

5 U.S.C. § 8101(4); see Jeffrey T. Hunter, 52 ECAB 503 (2001).

5

only days from graduation from the academy when he was injured. He advised that, before he
was terminated from the employing establishment, his salary increased to a GS-9 level. As
appellant was working as a modified border patrol trainee and asserted that his salary increased
to that of a GS-9, the Office should develop the issue of whether appellant was employed in a
learner’s capacity under section 8113(a).20 The case will, therefore, be remanded to the Office to
determine whether he is entitled to a pay rate based upon his date of injury, date of disability or a
learner’s capacity under section 8113(a) of the Act, if applicable. After such further
development as the Office deems necessary, the Office shall issue a de novo decision regarding
the pay rate on which his loss of wage-earning capacity determination is based.
CONCLUSION
The Board finds that the Office properly determined that appellant’s actual earnings fairly
and accurately represented his wage-earning capacity. The case is remanded to the Office for
further development regarding his proper pay rate for compensation purposes.

20

If an individual (1) was a minor or employed in a learner’s capacity at the time of injury; and (2) was not
physically or mentally handicapped before the injury; the Secretary of Labor, on review under section 8128 of
this title after the time the wage-earning capacity of the individual would probably have increased but for the
injury, shall recompute prospectively the monetary compensation payable for disability on the basis of an
assumed monthly pay corresponding to the probable increased wage-earning capacity. 5 U.S.C. § 8113(a).
FECA Program Memorandum No. 122 provides that the compensation rate of a learner should be adjusted if the
pay rate increased as a result of a change in his or her learner’s status, which would have brought him or her
either: (1) to a new level within; or (2) to completion of the learner’s program. FECA Program Memorandum
No. 122, issued May 19, 1970; see Hayden C. Ross, 55 ECAB 455 (2004); Mary K. Rietz, 49 ECAB 613 (1998).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs is affirmed in part and the case remanded in part for further proceedings
consistent with this decision.
Issued: June 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Bothell, WA, Employer
__________________________________________

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

Docket No. 19-0182
Issued: May 13, 2019

Case Submitted on the Record

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

JURISDICTION
On November 5, 2018 appellant filed a timely appeal from a May 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization of chiropractic treatment.
FACTUAL HISTORY
On June 16, 2016 appellant, then a 52-year-old emergency manager, filed an occupational
disease claim (Form CA-2) alleging that she sustained stress-related conditions, including posttraumatic stress disorder and major depressive disorder, due to incidents and conditions at work.
1

5 U.S.C. § 8101 et seq.

She asserted that she had been deployed to a federally-declared disaster area and was responsible
for all the response and recovery actions, including managing landslide areas and identifying
human remains. Appellant indicated that she first became aware of her claimed conditions on
March 11, 2014 and first related them to her federal employment on April 22, 2016. She stopped
work on October 27, 2016. OWCP initially accepted that appellant sustained post-traumatic stress
disorder and major depressive disorder (recurrent, moderate),2 and paid appellant disability
compensation on the daily rolls commencing October 27, 2016 and on the periodic rolls
commencing November 13, 2016.
In mid-2017 appellant requested that OWCP authorize chiropractic treatment.3
In support of her request, appellant submitted a June 7, 2017 letter from Dr. Jeffrey P.
Metcalf, an attending chiropractor, who indicated that appellant was being treated for spinal
injuries and associated acute low back pain. Dr. Metcalf opined that, based on appellant’s case
history and examination findings, her spinal condition had signiﬁcantly affected her employmentrelated major depressive disorder. He opined that the stress associated with “her diagnosed
condition” had exacerbated her low back condition. Dr. Metcalf attached a May 31, 2017 report
detailing findings of the chiropractic evaluation he performed on that date.4
In an undated report received on June 14, 2017, Dr. Steven K. Greenhouse, an attending
licensed clinical psychologist, indicated that he had reviewed the findings of Dr. Metcalf. He
noted that appellant had experienced severe chronic back pain since at least October 2016 which
significantly affected her major depressive disorder. Dr. Greenhouse indicated that he agreed with
Dr. Metcalf’s treatment plan given its improving effect on appellant’s mood, affect, hopefulness,
sleep, overall energy, and pain diminution. He opined that appellant’s chiropractic treatment was
an essential component in treating her major depressive disorder. Dr. Greenhouse concluded that,
but for appellant’s post-traumatic stress disorder and major depressive disorder, the chiropractic
procedures described by Dr. Metcalf in his May 31, 2017 report would not have been necessary.
In August 2017 OWCP referred appellant for a second opinion examination to
Dr. Michael K. Friedman, an osteopath and Board-certified psychiatrist. In its referral letter it
requested that Dr. Friedman provide an opinion regarding whether appellant’s chiropractic
treatment was necessary to treat her accepted stress-related conditions.
In a September 5, 2017 report, Dr. Friedman provided a description of appellant’s factual
and medical history and reported the findings of the psychiatric evaluation he conducted on that
date. He diagnosed recurrent major depressive disorder with anxious distress and post-traumatic
stress disorder (chronic). In response to Dr. Greenhouse’s opinion that chiropractic treatment was
an essential component for treating appellant’s depressive disorder, Dr. Friedman opined that there
was no evidence that chiropractic treatment would be an efﬁcacious or indicated therapy for
depressive disorders. In response to Dr. Greenhouse’s opinion that appellant would not have
2

OWCP later expanded the accepted conditions to include other somatoform disorders (bruxism) and cracked tooth.

3

Appellant also requested that OWCP authorize a gastric duodenal switch surgery which she had undergone on
November 30, 2016.
4
The case record contains evidence which shows that Dr. Metcalf diagnosed cervical, thoracic, and lumbar spine
subluxations as demonstrated by May 31, 2017 x-rays to exist.

2

needed chiropractic care in the absence of her accepted stress-related conditions, Dr. Friedman
indicated that “there would be no correlation between the claimant’s psychiatric condition and the
need for chiropractic treatment.”
By decision dated September 20, 2017, OWCP denied appellant’s request for chiropractic
treatment, noting that the weight of the medical evidence rested with the September 5, 2017 report
of Dr. Friedman, OWCP’s referral physician.5
On October 12, 2017 appellant requested a telephonic hearing with a representative of
OWCP’s Branch and Hearings and Review. During the hearing held on March 7, 2018, appellant
argued that her chiropractic treatment was necessary to treat the effects of her post-traumatic stress
disorder and major depressive disorder.
By decision dated May 18, 2018, OWCP’s hearing representative affirmed OWCP’s
September 20, 2017 decision with respect to the denial of appellant’s request for authorization of
chiropractic treatment.6
LEGAL PRECEDENT
Section 8103(a) of FECA states in pertinent part: “The United States shall furnish to an
employee who is injured while in the performance of duty, the services, appliances, and supplies
prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely
to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of
the monthly compensation.”7
The Board has found that OWCP has great discretion in determining whether a particular
type of treatment is likely to cure or give relief.8 The only limitation on OWCP’s authority is that
of reasonableness.9 Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.10 In order to be entitled to reimbursement
of medical expenses, it must be shown that the expenditures were incurred for treatment of the

5

OWCP also denied appellant’s request for authorization of gastric duodenal switch surgery.

6
OWCP’s hearing representative set aside OWCP’s September 20, 2017 decision with respect to appellant’s request
for authorization of gastric duodenal switch surgery and remanded the case to OWCP for further development due to
an unresolved conflict in the medical opinion evidence as to the need for said surgery and its relationship to the
accepted employment injuries. The matter of appellant’s request for authorization of gastric duodenal switch surgery
is therefore not currently before the Board as the case record does not contain a final adverse decision regarding that
issue within its jurisdiction. See 20 C.F.R. §§ 501.2(c) and 501.3.
7

5 U.S.C. § 8103.

8

R.C., Docket No. 18-0612 (issued October 19, 2018).

9

Id.

10

G.B., Docket No. 18-1478 (issued October 18, 2018).

3

effects of an employment-related injury or condition.11 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.12
Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.13 OWCP’s regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation, or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained in
the reading of x-rays.14
ANALYSIS
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization of chiropractic treatment.
In the development of the claim OWCP referred appellant to a second opinion examination.
In a September 5, 2017 report, Dr. Friedman opined that chiropractic treatment was an essential
component for treating appellant’s depressive disorder and that there was no evidence that
chiropractic treatment would be an efﬁcacious or indicated therapy for depressive disorders.
Dr. Friedman further opined that there was no correlation between the claimant’s psychiatric
condition and the need for chiropractic treatment, x-rays to exist. The Board finds that OWCP, in
denying appellant’s request for authorization of chiropractic treatment, properly found that the
weight of the medical evidence with respect to this matter rests with the well-rationalized
September 5, 2017 report of Dr. Friedman, OWCP’s referral physician.
The reports of Dr. Metcalf15 and Dr. Greenhouse are of limited probative value in
supporting appellant’s request for authorization of chiropractic treatment as they failed to provide
adequate medical rationale in support of their opinions that chiropractic care was necessary to treat
appellant’s accepted stress-related conditions.16 The Board has held that proof of causal
relationship in cases involving a request for medical reimbursement of medical expenses must
include supporting rationalized medical evidence, but appellant has not submitted such evidence
in the present case.17

11

J.R., Docket No. 17-1523 (issued April 3, 2018); Bertha L. Arnold, 38 ECAB 282, 284 (1986).

12

S.W., Docket No. 17-1319 (issued December 7, 2017); John E. Benton, 15 ECAB 49 (1963).

13

5 U.S.C. § 8101(2). See A.D., Docket No. 18-1478 (issued February 4, 2019).

14

20 C.F.R. § 10.5(bb).

15

The Board notes that Dr. Metcalf qualifies as a physician within the meaning of FECA and his June 7, 2017
report constitutes medical evidence because the evidence of record reveals he diagnosed cervical, thoracic, and lumbar
spine subluxations as demonstrated by May 31, 2017
16

The Board notes that neither physician related appellant’s need for medical care to the accepted conditions of
other somatoform disorders (bruxism) and cracked tooth.
17

See supra note 13.

4

As noted above, in order to be entitled to reimbursement of medical expenses, it must be
shown that the expenditures were incurred for treatment of the effects of an employment-related
injury or condition.18 The Board finds that OWCP reasonably determined that the chiropractic
treatment requested by appellant was unnecessary to treat an accepted employment-related
condition as the evidence of record does not indicate that OWCP committed any act in connection
with its denial of appellant’s request for authorization of chiropractic treatment which could be
found to be an abuse of discretion.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization of chiropractic treatment.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 13, 2019
Washington, DC

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

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

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

18

See supra note 12.

19

See supra notes 9 through 11.

5