United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Warrendale, PA,
Employer
__________________________________________

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Appearances:
Douglas Sughrue, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1784
Issued: March 6, 2012

Case Submitted on the Record

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

JURISDICTION
On July 28, 2011 appellant, through her attorney, filed a timely appeal from an April 14,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) terminating her
compensation benefits. 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 this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective September 25, 2009 on the grounds that she had no further disability due to her
August 19, 2006 employment injury; (2) whether it properly terminated authorization for
medical treatment; and (3) whether appellant established that she had continuing employmentrelated disability after September 25, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 24, 2006 appellant, then a 54-year-old mail handler, filed a claim alleging that
on August 19, 2006 she sustained a gash in her right leg and tendinitis of the right knee when she
was struck from behind with a cart. OWCP accepted the claim for a contusion of the right lower
leg and a torn right medial meniscus. Appellant stopped work on August 19, 2006 and returned
to limited-duty work for four hours per day on January 30, 2007. She began working modified
employment for six hours per day on October 27, 2007.2
On December 16, 2008 OWCP referred appellant to Dr. Scott J. Szabo, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated January 29, 2009,
Dr. Szabo reviewed the history of injury and discussed her complaints of right knee pain. On
examination he found patellofemoral crepitation “symmetrical to [appellant’s] contralateral
side.” Dr. Szabo found no rotator instability and negative McMurray and Apley tests with good
strength on knee flexion but mild discomfort. He stated:
“The accepted conditions of the right lower leg and contusion and right medial
meniscus tear have resolved. In spite of subjective complaints of pain and
perceived limitations, her contusion and laceration have healed uneventfully.
[Appellant’s] [magnetic resonance imaging (MRI) scan study] reviewed does not
demonstrate a meniscus tear and her examination does not demonstrate any
contusion or meniscus tearing. Her extremity has no disuse atrophy, loss of
motion, weakness, instability or effusion noted. It does, however, demonstrate
evidence of patella chondromalacia and mild pes anserine bursitis, provocative
tests of meniscus tear that is unrelated.”
Dr. Szabo opined that appellant had no residuals of her August 19, 2006 employment
injury as there was no objective evidence of “medial meniscus pathology” by imaging study or
on examination. He advised that she had no work restrictions due to her employment injury but
that her nonemployment-related preexisting patella chondromalacia might cause limitations.
Dr. Szabo determined that appellant’s chondromalacia was not aggravated by her employment
injury. He found that she could work full time. Dr. Szabo stated:
“The MRI [scan study] does not demonstrate medial meniscus tearing. Subjective
complaints are not over her medial side of her knee, but rather anterior and
objectively she has medial knee pain over her pes anserine bursa as opposed to
her meniscus with negative McMurray and Apley. This claimant can work her
regular position based on the description as previously reviewed and does not
need arthroscopic knee surgery.”
In an addendum dated March 5, 2009, Dr. Szabo reiterated that appellant had no
limitations due to her contusion and laceration of the calf or medial mensical tear but had
limitations due to preexisting nonemployment-related patella condromalacia. He completed a
work restriction evaluation and provided restrictions.
2

By decision dated March 13, 2007, OWCP denied appellant’s claim for compensation for total disability from
December 23, 2006 to January 19, 2007 and January 22 to February 2, 2007.

2

By letter dated March 17, 2009, OWCP requested that Dr. Derek J. (Duke) Thomas, a
Board-certified orthopedic surgeon and appellant’s attending physician, review Dr. Szabo’s
report and discuss whether he agreed with the conclusions. In a work restriction evaluation dated
March 24, 2009, Dr. D. Thomas found that appellant could work six hours per day with
restrictions.
On August 21, 2009 OWCP notified appellant of its proposed termination of her
compensation and authorization for medical benefits as she had no further employment-related
disability or condition requiring medical treatment.
In a September 5, 2009 response, appellant disagreed with the proposed termination of
compensation. She described difficulties performing activities and noted that the opinions of her
attending physicians conflicted with the opinion of Dr. Szabo.
By decision dated September 25, 2009, OWCP terminated appellant’s compensation and
medical benefits effective that date. It found that Dr. Szabo’s opinion represented the weight of
the evidence and established that she had no further residuals of her work injury.
In a report dated January 4, 2010, Dr. Stephen J. Thomas, a Board-certified orthopedic
surgeon, related that he initially evaluated appellant on April 11, 2007 at the request of
Dr. D. Thomas. He discussed her August 18, 2006 work injury and the MRI scan study finding
of a medial meniscal tear. On April 11, 2007 Dr. S. Thomas recommended a knee arthroscopy
but appellant did not undergo surgery. He stated, “I do believe that her physical findings, as well
as history, were consisted with a work[-]related medial meniscal tear. Since I have not seen her
since April 2007, I could not comment on the prognosis or her work limitations.” Dr. S. Thomas
related that he had reviewed Dr. Szabo’s report and “did not feel, at this point, an examination
approximately [two and a half] years after the injury, is valid enough for its conclusions.”
On January 12, 2010 Dr. D. Thomas related that he had treated appellant since
August 30, 2006 for her August 18, 2006 work injury. He described her treatment and findings
on examination beginning August 30, 2006. Dr. D. Thomas provided permanent work
restrictions on December 5, 2007 and noted that Dr. S. Thomas had recommended arthroscopic
surgery in 2007. He related that, when he last evaluated appellant on March 12, 2008, he found
that she had reached maximum medical improvement and released her from treatment.
Dr. D. Thomas opined that she was not “going to improve really significantly with[out] any
major interventions. Perhaps an arthroscopic surgery may give [appellant’s] some relief. Based
on the length of [appellant’s] injury and the time she has been in light duty I do not think she is
going to return to her normal job at any time.”
On February 1, 2010 Dr. S. Thomas related that the injury appellant sustained could
result in a medial meniscal tear. On February 9, 2010 Dr. D. Thomas asserted that her work
injury could cause a medial meniscal tear based on the mechanism of impact.
On March 15, 2010 appellant requested reconsideration. By decision dated June 21,
2010, OWCP denied modification of its September 25, 2009 decision.
In a report dated January 6, 2011, Dr. Gregory T. Altman, a Board-certified orthopedic
surgeon, related that an MRI scan study showed an intact meniscus but an articular cartilage
3

injury. He stated, “It appears that [appellant] had a traumatic cartilage injury after her workrelated accident in 2005. It was either an acute traumatic injury or an aggravation to her articular
cartilage that has caused her symptoms and this appears to be directly related.” In a duty status
report dated February 14, 2011, Dr. Altman listed work restrictions.
On March 10, 2011 appellant, through her attorney, requested reconsideration. He
argued that Dr. Altman found that she continued to have a knee problem due to her work injury.
Counsel also contended that Dr. Szabo’s report was insufficient to constitute the weight of the
evidence as he ignored appellant’s subjective complaints even though the complaints were
supported by objective findings. He asserted that a conflict in medical opinion existed.
By decision dated April 14, 2011, OWCP denied modification of its June 21, 2010
decision. It found that Dr. Altman did not provide medical rationale or a complete medical
history and thus his opinion was insufficient to outweigh Dr. Szabo’s findings or to create a
conflict in opinion.
On appeal, appellant’s attorney argues that Dr. Szabo’s opinion is of less probative value
then that of her attending physicians and as it is incomplete and unrationalized. Counsel also
argues that Dr. Szabo’s opinion was insufficient to meet OWCP’s burden of proof as he ignored
her subjective complaints and listed work restrictions. He contends that a conflict in medical
opinion exists and that appellant should not be penalized for failing to undergo surgery. Counsel
notes that Dr. Altman found an articular cartilage tear.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a contusion of the right leg and a torn right
medial meniscus due to an August 19, 2006 work injury. On October 27, 2007 appellant began
working modified employment for six hours per day and receiving compensation for two hours
per day.
On December 16, 2008 OWCP referred appellant to Dr. Szabo for a second opinion
examination. It terminated her compensation based on its finding that his report constituted the
weight of the medical evidence and established that she had no further employment-related
disability. The Board has reviewed the opinion of Dr. Szabo and finds that it has reliability,
probative value and convincing quality with respect to the conclusions reached. On January 29,
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

2009 Dr. Szabo discussed the history of injury and appellant’s current complaints of pain in the
right knee. On examination he found patellofemoral crepitation of both knees symmetrically, no
rotator instability and negative McMurray and Apley tests. Dr. Szabo determined that
appellant’s right lower leg contusion and right medial meniscus tear had resolved. He provided
rationale for his opinion by explaining that an MRI scan study that did not show a meniscal tear
and that on examination he found no atrophy, motion loss, effusion, weakness or instability.
Dr. Szabo opined that appellant had no work restrictions due to her employment injury but had
limitations resulting from nonemployment-related preexisting patella chondromalacia unrelated
to or aggravated by her employment injury. The Board finds that Dr. Szabo’s report, which is
reasoned and based on a properly factual and medical history, constitutes the weight of the
evidence and establishes that appellant’s right leg contusion and torn medial meniscus tear have
resolved.5
The remaining evidence submitted prior to OWCP’s termination of compensation is
insufficient to show that appellant remained disabled due to her work injury. On March 17, 2009
OWCP requested that Dr. D. Thomas, her attending physician, review and discuss Dr. Szabo’s
second opinion examination. In response, Dr. D. Thomas provided a work restriction evaluation
indicating that appellant could work six hours per day with restrictions. He did not, however,
address the cause of her work limitations and thus his opinion is of little probative value.6
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Szabo, the second opinion examiner, who found that appellant had no
residuals of her accepted conditions. Dr. Szabo explained that, based on his physical
examination and the diagnostic studies, she had no further medial meniscal tear or right leg
contusion. As his opinion is detailed and well rationalized, it constitutes the weight of the
evidence and establishes that she has no further need for medical treatment due to her accepted
employment injury.9
5

See E.J., 59 ECAB 695 (2008); K.E., Docket No. 08-1461 (issued December 17, 2008).

6

See Conard Hightower, 54 ECAB 796 (2003) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship); S.E., Docket
No. 08-2214 (issued May 6, 2009).
7

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

See Manual Gill, 52 ECAB 282 (2001); Mary A. Lowe, 52 ECAB 223 (2001).

9

Id.

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LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
appellant to establish that he has continuing disability after that date related to his accepted
injury.10 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal
relationship.11 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.12
ANALYSIS -- ISSUE 3
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Szabo in
terminating compensation, the burden of proof shifts to appellant to establish that she remains
entitled to compensation after that date.13
On January 4, 2010 Dr. S. Thomas indicated that at the time he evaluated appellant on
April 11, 2007 he diagnosed a torn medial meniscus and recommended surgery. He asserted
that, since he had not treated her since 2007, he could not address her work limitations. As
Dr. S. Thomas did not address the relevant issue of whether appellant had any further
employment-related disability, his opinion is of diminished probative value.
In a report dated January 12, 2010, Dr. D. Thomas discussed his treatment of appellant
from August 30, 2006 until his last evaluation on March 12, 2008. He indicated that on
December 5, 2007 he found permanent work restrictions and on March 12, 2008 he released her
from care. Dr. D. Thomas related that without surgery or other intervention appellant would not
improve and stated, “Based on the length of her injury and the time she has been in light duty I
do not think she is going to return to her normal job at any time.” He did not, however, explain
how the August 19, 2006 employment injury continued to cause disability. As Dr. D. Thomas
failed to provide a rationalized medical opinion supporting that appellant’s ongoing work
restrictions were related to the accepted work injury, his report is insufficient to establish
continuing employment-related disability.14
In a report dated February 1, 2010, Dr. S. Thomas indicated that the type of injury
appellant sustained could result in a medial meniscal tear. On February 9, 2010 Dr. D. Thomas
determined that the mechanism of injury could cause a medial meniscal tear. OWCP, however,
accepted that appellant sustained an employment-related right medial meniscal tear. The issue is
10

See I.J., 59 ECAB 408 (2008); Franklin D. Haislah, 52 ECAB 457 (2001).

11

Id.

12

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

See Manual Gill, supra note 8.

14

Medical reports not containing rationale on causal relationship are entitled to little probative value. See Jimmie
Duckett, 52 ECAB 332 (2001).

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whether it caused disability after September 25, 2009. The physicians do not address the
relevant issue and thus their reports are of little probative value.
On January 6, 2011 Dr. Altman asserted that an MRI scan study showed no medial
meniscal tear but instead an articular cartilage injury. He found that the articular cartilage injury
appeared to be either caused or aggravated by a 2005 injury. OWCP, however, did not accept an
articular cartilage tear as employment related. Where appellant claims that, a condition not
accepted or approved by OWCP was due to her employment injury, she bears the burden of
proof to establish that the condition is causally related to the employment injury through the
submission of rationalized medical evidence.15 Dr. Altman did not provide a description of the
August 19, 2006 work injury and thus his report is of diminished probative value.16 Further, he
did not provide any rationale for his causation finding. A mere conclusion without the necessary
rationale explaining how and why the physician believes that a claimant’s accepted exposure
could result in a diagnosed condition is not sufficient to meet her burden of proof.17
On appeal, appellant’s attorney argues that Dr. Szabo did not provide sufficient rationale
for his opinion and did not explain his disability finding given appellant’s subjective complaints
and need for work restrictions. Dr. Szabo, however, determined that she had subjective
complaints and required work restrictions due to nonemployment-related patella chondromalacia.
Counsel also contends that Dr. Szabo’s opinion conflicts with that of appellant’s attending
physicians. As discussed, however, the opinions of her physicians are insufficiently rationalized
to support that she had continuing employment-related disability. Appellant’s attorney also
maintains that appellant should not be penalized for failing to undergo surgery. The issue,
however, is whether appellant has any further disability due to her August 19, 2006 work injury
rather than whether she properly refused surgery. Counsel also notes that Dr. Altman diagnosed
an articular cartilage tear but, as discussed above, he did not rely on a complete history of injury
or provide rationale for his opinion.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical benefits effective September 25, 2009 on the grounds that she had no
further disability due to her August 19, 2006 employment injury. The Board further finds that
she has not established that she had continuing employment-related disability after
September 25, 2009.

15

See JaJa K. Asaramo, 55 ECAB 200, 204 (2004).

16

See Douglas M. McQuaid, 52 ECAB 382 (2001); Joseph M. Popp, 48 ECAB 624 (1997).

17

See Beverly A. Spencer, 55 ECAB 501 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the April 14, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Mill, SC, Employer
__________________________________________

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

Docket No. 19-1116
Issued: November 25, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 22, 2019 appellant, through counsel, filed a timely appeal from a March 28, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 28, 2019 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted June 28, 2018 employment incident.
FACTUAL HISTORY
On June 28, 2018 appellant, then a 47-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she reinjured her right shoulder on the back door of a longlife vehicle (LLV) while in the performance of duty. She stopped work on the date of injury.
In a June 28, 2018 duty status report (Form CA-17), Dr. Avkash V. Daji, a family
practitioner, indicated that appellant had injured her right shoulder that day due to pulling while at
work. Appellant presented with decreased range of motion (ROM) and increased right shoulder
pain. Dr. Daji provided work restrictions of lifting no more than five pounds and no
pulling/pushing.
On the second page of an attending physician’s report (Form CA-20), dated June 28, 2018,
Dr. Daji reported that appellant had opened a door at work that day and it hit her right shoulder.
He checked a box marked “Yes” indicating his opinion that appellant’s right shoulder injury was
caused or aggravated by her federal employment. Dr. Daji further indicated that appellant had
chronic shoulder pain that was worsened by the June 28, 2018 employment incident.
In a July 10, 2018 development letter, OWCP requested that appellant provide additional
factual and medical information in support of her claim, including a detailed factual statement and
a report from her attending physician addressing causal relationship between any diagnosed
condition(s) and the claimed June 28, 2018 employment incident. It afforded her 30 days to
respond to its request for additional evidence.
In response, appellant submitted a narrative statement dated July 21, 2018 indicating that
on June 10, 2017 she was on her route delivering mail when she reached back to close the LLV
door. When she pulled the door, she felt a tear sensation followed by a sharp pain in her right
shoulder. Appellant went on to complete her route and then on her next stop to get out of the LLV,
upon opening the door, she tried to use caution because at that time her shoulder was throbbing.
While pulling the door to open it, she felt the same tearing feeling in her shoulder. When she
returned to her duty station, appellant reported the incident to her supervisor, but did not go to
urgent care due to her fear that they might put her off work.
On June 28, 2018 Dr. Daji diagnosed “injury of shoulder region” and referred appellant to
an orthopedist.
In a November 20, 2017 work status note, Dr. David DuPuy, a Board-certified orthopedic
surgeon, diagnosed right shoulder and arm pain and advised that appellant was able to return to
work without restrictions that day.
In a report dated July 24, 2018, Dr. DuPuy diagnosed right shoulder pain and carpal tunnel
syndrome of the right hand. He noted that appellant was quite angry with him as soon as he walked
in the door and contended that he had misrepresented what she said when she first treated with
him for an earlier right shoulder injury sustained on June 10, 2017. Appellant alleged that he had
not reported the injury and then he reviewed his statement with her that she worked as a postal
2

worker and repetitively had to open and close the door to her mail truck. Dr. DuPuy explained
that he saw her in November 2017 and explained to her that she had a bursitis-type inflammation
in the shoulder as well as carpal tunnel syndrome. Appellant continued working until, what she
described as an injury, on June 28, 2018. She stated that at that time she was closing the door to
her truck and “something about a latch that either did not click or fell off or something that caused
pain.” Appellant went to the emergency room and was evaluated as having a shoulder injury and
was kept off work.
By decision dated August 13, 2018, OWCP found that the factual evidence was sufficient
to establish that the June 28, 2018 employment incident occurred as alleged, but it denied the claim
as the medical evidence of record was insufficient to establish a medical diagnosis in connection
with the employment incident. Thus, it found that appellant had not established the medical
component of fact of injury.
On September 5, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
Appellant further submitted a magnetic resonance imaging (MRI) scan of the right shoulder
dated August 22, 2018 which demonstrated mild acromioclavicular (AC) joint degenerative
change, but no labral or rotator cuff tear.
In two reports dated August 27, 2018, Dr. Scott B. O’Neal, a Board-certified orthopedic
surgeon, diagnosed impingement syndrome of the right shoulder and referred appellant to physical
therapy.4 He also provided work restrictions of no pushing or pulling greater than 5 to 10 pounds
effective August 29, 2018.
In a November 10, 2017 report, Dr. Daniel Lee Kelly, a Board-certified family practitioner,
diagnosed “injury of right shoulder and upper arm.”
A telephonic hearing was held before an OWCP hearing representative on
January 22, 2019. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
Appellant submitted a note dated December 3, 2018 from Dr. Larry F. Berman, an
internist, who advised that appellant had recovered sufficiently to return to work on December 4,
2018 with restrictions of no lifting over 25 pounds.
In a February 13, 2019 report, Dr. Glen Feltham, a Board-certified orthopedic surgeon,
diagnosed strain of the rotator cuff and subsequent shoulder bursitis, which he opined was created
through a one-time over-stressing of the rotator cuff, or with repetitive use and overuse of the
rotator cuff. He opined that both explanations could easily be attributable to her occupation.
Dr. Feltham further indicated that on June 28, 2018 appellant injured her shoulder trying to open
a roller door when the roller was found to be missing and the door had jammed. He opined that
the described mechanism of injury was consistent with a rotator cuff strain and, therefore,
appellant’s conditions were work related.

4

Appellant also submitted two physical therapy treatment notes dated August 30, 2018 through January 10, 2019.

3

Dr. Feltham later submitted a note dated March 19, 2019 that provided work restrictions of
no lifting, carrying, pulling, or pushing more than 35 pounds and no reaching above the shoulder.
By decision dated March 28, 2019, the hearing representative affirmed the prior decision,
as modified, finding appellant had established a diagnosed medical condition. She determined,
however, that the medical evidence of record was insufficient to establish that appellant’s
diagnosed right shoulder conditions were causally related to the accepted June 28, 2018
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.6 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. 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.8 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an employment incident must be based on a complete factual
and medical background.11 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and appellant’s specific employment
incident.12

5

Supra note 2.

6

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
7

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

8

G.C., Docket No. 18-0506 (issued August 15, 2018).

9

Id.

10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted June 28, 2018 employment incident.
In his June 28, 2018 duty status report, Dr. Daji indicated that appellant presented with
decreased ROM and increased pain of the right shoulder. However, he merely repeated the history
of injury as reported by appellant, who alleged injuring her right shoulder while pulling at work,
without providing his own opinion regarding whether appellant’s condition was work related. The
mere recitation of patient history does not suffice for purposes of establishing causal relationship
between a diagnosed condition and the employment incident.13
Without explaining
physiologically how the accepted employment incident caused or contributed to the diagnosed
conditions, the physician’s reports are of limited probative value.14 Therefore, this report is
insufficient to establish appellant’s claim.
In his attending physician’s report of event date, Dr. Daji checked a box marked “yes”
opining that appellant’s right shoulder injury was caused by her federal employment. The Board
has held that when a physician’s opinion on causal relationship consists of checking “yes” to a
form question, without adequate explanation or rationale, that opinion is of diminished probative
value and is insufficient to establish a claim.15 Therefore, this report is also insufficient to meet
appellant’s burden.
In his November 20, 2017 and July 24, 2018 reports, Dr. DuPuy diagnosed right shoulder
pain and carpal tunnel syndrome of the right hand. He explained that he had seen appellant in
November 2017 for a bursitis-type inflammation in the shoulder and carpal tunnel syndrome prior
to her June 28, 2018 employment incident. The Board finds that while Dr. DuPuy attributed
appellant’s conditions to a “November 2017” incident, he has not provided an opinion on causal
relationship between the diagnosed conditions and the accepted June 28, 2018 employment
incident. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.16
Thus, Dr. DuPuy’s reports are insufficient to meet appellant’s burden of proof17 to establish the
claim.18
In his February 13, 2019 report, Dr. Feltham diagnosed strain of the rotator cuff and
subsequent shoulder bursitis, which he opined was created through a one-time over-stressing of
the rotator cuff, or with repetitive use and overuse of the rotator cuff. The Board has held that a
report is of limited probative value regarding causal relationship if it does not contain medical

13

See J.G., Docket No. 17-1382 (issued October 18, 2017).

14

See A.B., Docket No. 16-1163 (issued September 8, 2017).

15

See M.O., Docket No. 18-1056 (issued November 6, 2018); Deborah L. Beatty, 54 ECAB 340 (2003).

16

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

17

T.R., Docket No. 18-1272 (issued February 15, 2019).

18

D.H., Docket No. 17-1913 (issued December 13, 2018).

5

rationale explaining how a given medical condition/disability was related to employment factors.19
As Dr. Feltham’s opinions are conclusory, they are insufficient to establish causal relationship.
Appellant also submitted evidence from Drs. O’Neal, Kelly, and Berman, but they did not
address causal relationship. As explained above, the Board has held that medical evidence that
does not offer an opinion regarding the cause of an employee’s condition is of no probative value
on the issue of causal relationship.20 These reports, therefore, are insufficient to establish
appellant’s claim.
Appellant further submitted physical therapy treatment notes. The Board has held that
medical reports signed solely by a physical therapist are of no probative value as such health care
providers are not considered physicians as defined under FECA and are therefore not competent
to provide medical opinions.21 Consequently, this evidence is also insufficient to establish
appellant’s claim.
On appeal counsel contends that appellant has met her burden of proof to establish causal
relationship based upon the medical report of Dr. Feltham. As explained above, however, the
evidence of record is insufficient to establish appellant’s claim as it fails to include a rationalized
medical opinion regarding the issue of causal relationship.
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 her burden of proof to establish a right shoulder
condition causally related to the accepted June 28, 2018 employment incident.

19

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

20

Supra note 19.

21
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law); J.M., 58 ECAB 448 (2007)
(physical therapists are not considered physicians under FECA).

6

ORDER
IT IS HEREBY ORDERED THAT the March 28, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-550
Issued: December 17, 2010

Case Submitted on the Record

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

JURISDICTION
On December 22, 2009 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated August 17 and November 5, 2009. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits; and (2) whether appellant met his burden of proof to establish that he
developed an abdominal aortic aneurysm and an embolic condition in the performance of duty.

FACTUAL HISTORY
On December 30, 2006 appellant, a 55-year-old mail expeditor, was struck in the back
and left leg by a heavy mail bin. He filed a claim for benefits, which the Office accepted for
back contusion; abrasion or friction burn of the left leg, not including the foot, with no infection.1
On January 23, 2007 Dr. Joseph M. Falsone, a Board-certified family practitioner, noted
that he examined appellant on January 5, 2007 and diagnosed an abdominal aortic aneurysm. He
indicated that this condition was related to the December 30, 2006 work incident in which
appellant was struck in the back of his lower leg.2
On May 21, 2007 Dr. Falsone related that appellant had begun to experience severe pain
in his right leg and calf three days prior after walking one-half mile. Appellant also developed
an ingrown toe nail.
In a May 21, 2007 report, Dr. Lawrence Sichel, Board-certified in internal medicine,
stated that appellant had experienced pain in his right great toe due to an ingrown toe nail and
had developed severe pain in his right leg after walking one-half mile. The medial edge of
appellant’s right great toe had turned purple. Dr. Sichel recommended that appellant do only
limited walking. On May 24, 2007 he indicated that appellant had bilateral leg pain and that his
legs stiffened after walking for two hours. On examination appellant was unable to squat more
than two inches due to pain in his right calf and right thigh and was unable to sleep due to right
leg discomfort. On May 29, 2007 Dr. Sichel noted severe pain in both calves and the right great
toe, which was purple. On June 1, 2007 he reiterated his findings.
Appellant underwent an abdominal aortogram on June 12, 2008 which showed an
abdominal aneurysm. He was referred to Dr. Stanley G. Crossland, a specialist in vascular
surgery. In a June 12, 2007 report, Dr. Crossland advised that appellant had developed an
abdominal-iliac aneurysm with emboli in both lower extremities. He performed an amputation
of the right leg, below the knee, an endovascular aortoiliac repair procedure. Appellant had a
known history of hypertension and noninsulin-dependent diabetes mellitus and had been
diagnosed with a large infrarenal abdominal aortic aneurysm, an iliac aneurysm with a large
amount of thrombus in February 2007. Dr. Crossland noted that six to eight weeks prior
appellant developed symptoms of chronic embolic phenomena of the left lower extremity
manifested by increasing episodes of calf pain, claudication, inability to ambulate and ischemic
rest pain. He advised that appellant had progressive ischemic emboli changes in his feet,
particularly on the right; he noted that appellant had undergone anticoagulant therapy.
Dr. Crossland noted that appellant was recently hospitalized for ischemic, gangrenous changes of
both feet and related that he initially deferred surgical intervention and had been placed on
antiplatelet therapy.
1

Although the Office stated in its April 17, 2008 statement of accepted facts that appellant did not return to work
after his injury, he submitted leave analysis sheets which indicated that he returned to work on January 3, 2007 and
continued to work periodically until May 21, 2007. A Form CA-17 dated December 30, 2006 indicates that he was
released to return to work on January 1, 2007.
2

The Office noted that appellant did not file a claim for wage-loss compensation and was only receiving medical
benefits for the December 20, 2006 work injury.

2

In a report dated August 22, 2007, Dr. Crossland performed surgery to amputate the left
great toe and left fourth and fifth toes. He stated that appellant had developed gangrene in each
of these toes, in addition to the lateral side of the foot, which necessitated the amputation
procedure.
The Office received a January 11, 2007 computerized axial tomography (CAT) scan of
his abdomen and pelvis on April 7, 2008. The test was scheduled by Dr. Falsone, who had
diagnosed an abdominal aortic aneurysm six days before. A comparison was made to an
abdominal CT scan performed on May 21, 2006.
The test results demonstrated marked
atherosclerotic disease of the aorta with eccentric plaque formation and a 3.9 centimeter
abdominal aortic aneurysm which extended into the common iliac arteries.
In an April 17, 2008 addendum to the statement of accepted facts, the Office noted that
appellant’s aneurysms in the abdominal aorta and iliac were nonwork-related conditions.
In order to determine whether appellant’s aneurysm, emboli and subsequent amputations
were causally related to the December 20, 2006 work injury, and whether he still had residuals
from his accepted conditions, the Office referred appellant to Dr. Joshua A. Eisenberg, a
specialist in general surgery, for a second opinion examination. In a May 28, 2008 report,
Dr. Eisenberg reviewed the medical history and the statement of accepted facts, stated findings
on examination and opined that the accepted, work-related December 20, 2006 back contusion
and left leg abrasion did not aggravate or contribute to the embolism that resulted in his June 12
and August 22, 2007 limb amputations. He advised that appellant’s abdominal aortic aneurysm
with thrombus was a very common finding which was unrelated to the December 20, 2006
trauma; he stated that it was very unlikely that the free floating thrombus was caused by this
trauma. Dr. Eisenberg advised that a floating thrombus can be visualized even when trauma is
not present, and since no previous studies were done to document whether it was present or not,
it is impossible to say whether it contributed to the embolic nature of his disease. He noted that
appellant had initially complained of calf pain for several months; he stated, however, that this
type of microemboli had usually occurred in more distal vessels such as the toes, especially since
he had no signs of occlusive disease of the vessels. Dr. Eisenberg opined that emboli to small
vessels in his toes should not cause claudication symptoms or calf pain.
Dr. Eisenberg noted that appellant had an abdominal aortic aneurysm at the time of his
traumatic injury; he opined, however, that this was unrelated to the traumatic injury. He stated
that appellant had hypertension and diabetes, which are associated with progression of aneurysm
disease, and were contributing risk factors to his aneurysm. Dr. Eisenberg indicated that it was
common knowledge that thrombus forms in an aneurysm and that distal emboli can occur with
aneurismal disease. He opined that all of these conditions contributed to appellant’s aneurysm
formation and limb loss. Dr. Eisenberg concluded that appellant’s embolic phenomenon was
most likely not related to the thrombus in his aneurysm.
In an October 6, 2008 report, Dr. Eisenberg advised that diagnostic tests taken shortly
after the December 20, 2006 employment injury showed that appellant had an abdominal aortic
aneurysm and thrombus. Although it was impossible to determine whether thrombus was related
to the December 20, 2006 traumatic event, he believed that it was probably not related in light of
the fact that appellant did not have significant symptoms until several months later.

3

Dr. Eisenberg found nothing in the medical literature indicating that traumatic events caused
dislodgement of aortic thrombus, resulting in the development of embolic disease over a period
of months. He opined that if appellant’s subsequent symptoms were related to the December 20,
2006 traumatic work incident then this embolic event would have occurred shortly thereafter.
Dr. Eisenberg reiterated that appellant’s embolic disease was not related to the December 2006
traumatic event.
In a report dated October 9, 2008, received by the Office on October 16, 2008,
Dr. Crossland disagreed with Dr. Eisenberg’s opinion. While he agreed that appellant’s
abdominal aneurysm did not develop from the December 20, 2006 traumatic injury, he noted that
appellant already had an abdominal aneurysm with thrombus at the time of his injury, which was
at high risk for embolization. He stated that medical records dating from the time of that injury
until appellant underwent revascularization and amputation indicated multiple complaints
consistent with embolic phenomena and elevated muscle enzymes. The biopsy of the muscles
taken at the time of appellant’s June 12, 2007 amputation clearly showed a tissue infarct at an
age consistent with a pattern of continued embolic phenomena from his aneurysm from the time
of his original injury to the time of repair. He stated:
“The aneurysm seen at the time of his injury should have been repaired prior to all
of the embolic phenomena that occurred. The emboli that [appellant] experienced
are not related to his prior underlining medical conditions. It is my opinion
however that the aneurysm and his thrombus were traumatized by the injury to his
back and resulted in embolic phenomena despite the use of coumadin and
anticoagulation. I also disagree with Dr. Eisenberg that this lesion was
appropriately surgically managed. Given the aneurysm that is documented on
computerized axial tomography scan with iliac involvement and large amounts of
thrombus [appellant] was at significant risk of embolization and rupture. I believe
that earlier repair of this aneurysm shortly after his injury may well have
precluded the loss of his limb and the resulted amputations on the contralateral
side.”
The Office found a conflict in medical opinion between Dr. Crossland, who opined that
appellant had residuals due to an aneurysm precipitated by the December 20, 2006 work injury,
and Dr. Eisenberg, who opined that appellant’s accepted and left leg abrasion conditions had
resolved and that appellant’s embolic disease was not related to the December 20, 2006
traumatic injury. On February 24, 2009 the Office referred the case to Dr. Maurice R. Roulhac, a
Board-certified general surgeon, selected as the impartial medical specialist. In a June 14, 2009
report, Dr. Roulhac reviewed the medical history and statement of accepted facts and made
findings on examination. He opined that appellant’s December 20, 2006 work injury did not
aggravate or contribute to the embolism that resulted in limb amputation. Dr. Roulhac stated that
the aneurysm of the aortoiliac segment was present prior to the injury and did not lead to
immediate emboli. He advised that no medical literature supported that a blunt trauma could
cause emboli immediately or, as Dr. Crossland asserted, five months later. Dr. Roulhac stated:
“Most emboli are secondary atherosclerotic plaque and possible ulceration
thereof, that leads to micro and microembolization to the proximal muscular
regions of the thigh. However there is literature that supports the fact that

4

coumadin anticoagulation can produce hemorrhagic plaque rupture with distal
embolization.... The standard treatment to minimize embolization from an
[aneurysm] is antiplatelet therapy with aspirin and plavix. The patient was indeed
placed on coumadin in January of 2007 with muscle pain noted in March and
subsequent skin changes and lower extremity embolization noted in May. These
sequence of events were completely unrelated to the initial trauma.
“More importantly atheroemboli following open and endovascular aortic
aneurysm is a well known occurrence and with two episodes of intra-aortic
instrumentations of angiographic evaluation and endograft placement. This
directly led to rhabdomyolysis and a nonviable extremity resulting in [amputation
of the right leg below the knee] and subsequent toe amputations of the left foot.
These sequences of events are perioperative complications and completely
unrelated to the work injury.
“It is therefore my impression that [an aneurysm] can lead to emboli regardless of
trauma and in fact the literature documents that anticoagulation with coumadin as
well as [aneurysm] repair can and did lead to emboli to the extremity resulting in
amputation. This is therefore most consistent with a management problem rather
than a sequelae from blunt trauma in a patient with an [abdominal aortic
aneurysm] and mural thrombus.”
On July 13, 2009 the Office issued a notice of proposed termination of compensation to
appellant. It stated that the weight of the medical evidence, as represented by Dr. Roulhac’s
referee opinion, established that his accepted low back and left leg conditions had ceased or were
no longer injury related. The Office found that appellant’s aneurysm and subsequent
amputations were not causally related to his December 20, 2006 work injury. It noted that the
record indicated that appellant had a preexisting condition, abdominal aortic aneurysm, at the
time of the December 20, 2006 work injury which did not become symptomatic until the
May 2007 events in which appellant developed gangrene, discoloration and inflammation in his
right calf and right toe. Based on these findings, the Office concluded that the weight of medical
evidence showed that he no longer had any disability or residuals from his accepted, workrelated condition.
By decision dated August 17, 2009, the Office terminated appellant’s compensation,
finding that Dr. Roulhac’s opinion represented the weight of the medical evidence.
On August 11, 2009 appellant’s attorney requested reconsideration. Counsel contended
that Drs. Eisenberg and Roulhac erroneously stated that there was no medical literature
supporting the theory that a traumatic blow can mobilize aortic thrombosis. He attached two
articles from the Journal of Vascular Surgery purporting to describe the occurrence of such an
event. Counsel noted that Dr. Crossland was the physician who actually performed the
amputations and on examination of the amputated tissue was able to locate emboli that would be
approximately the expected age of such tissue given the date of the accident and the onset of the
acute symptoms. He therefore argued that Dr. Crossland’s opinion outweighs those of
Dr. Eisenberg and Dr. Roulhac.

5

Counsel further argued that, although appellant continued to experience pain immediately
following his December 20, 2006 work injury, his physicians told him his condition was normal.
He contended that this assertion is supported by several attached statements from coworkers
which demonstrate that following the accident of December 2006 he remained in constant pain
and was unable to work on his feet the way he did prior to the December 20, 2006 employment
injury. Based on the arguments advanced above, counsel requested that the Office set aside the
August 17, 2009 termination decision and accept a condition for aggravation and/or acceleration
by trauma of abdominal aortic aneurysm resulting in embolic gangrene of the extremities, right
worse than left, and amputation of right lower extremity and partial amputation of left foot.
Appellant submitted time analysis sheets from December 2006 through May 2007 which
showed that he took increasing amounts of sick leave and time off after December 20, 2006. He
also submitted a July 29, 2009 statement from Heather Bell, a coworker, a July 31, 2009
statement from Yvonne S. Young, a coworker, and an undated statement from J.D. Hooker, a
coworker. These statements indicated that appellant, formerly a robust and productive employee
with a good attendance record, experienced a significant deterioration in his physical condition
and ability to walk following the December 20, 2006 employment injury.
By decision dated November 5, 2009, the Office denied modification of the August 17,
2009 decision.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.4
ANALYSIS -- ISSUE 1
The Board finds that the Office has failed to meet its burden to terminate compensation.
Following the December 30, 2006 work injury, the Office accepted the conditions of
back contusion and abrasion or friction burn of the left leg. In its July 13, 2009 pretermination
notice, it found that appellant was no longer entitled to compensation because the weight of the
medical evidence, as represented by Dr. Roulhac’s referee opinion, established that his accepted
low back and left leg conditions had ceased or were no longer injury related. The Office further
found that appellant’s emboli, aneurysm and subsequent amputations were not causally related to
his December 20, 2006 work injury. Based on these findings, it determined in its August 17,
2009 decision that the weight of medical evidence showed that he no longer had any disability or
residuals from his accepted, work-related conditions. This finding was erroneous, however, as
the Office did not present any medical evidence regarding whether appellant’s accepted back and
3

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

4

Id.

6

left leg conditions had resolved. It had found that there was a conflict in the medical evidence
regarding whether the accepted back contusion aggravated or contributed to the preexisting
embolism resulting in the limb amputation. The Office never considered medical evidence
pertaining to whether appellant’s low back and left leg conditions, the only conditions accepted
by the Office, had ceased. While Dr. Roulhac, the impartial medical specialist selected to
resolve the conflict in the medical evidence, found that the gangrene, discoloration and
inflammation which developed in appellant’s right calf and right toe, and the emboli, abdominal
aortic aneurysm, and subsequent amputations were not causally related to the accepted
December 30, 2006 work injury, these conditions were never accepted by the Office. He made
no mention of whether appellant’s accepted low back or left leg conditions had resolved.
Therefore Dr. Roulhac’s referee opinion was not a sufficient basis to support the Office’s finding
that appellant no longer had any disability or residuals from his accepted, work-related
conditions. Accordingly, the Office has failed to meet its burden to terminate compensation.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing that any specific condition for which compensation is claimed is causally
related to the employment injury.6
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.9
5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

7

Id.

8

Id.

9

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

7

ANALYSIS -- ISSUE 2
The Board finds that appellant has failed to meet his burden of proof in establishing that
his abdominal aortic aneurysm and emboli conditions and subsequent amputations were causally
related to his accepted employment injury. The record indicates that appellant had a preexisting
condition, abdominal aortic aneurysm, at the time of the December 20, 2006 work injury.
Appellant subsequently developed an emboli and required amputation of the right leg below the
knee and the subsequent toe amputations of the left foot. In order to resolve the conflict in the
medical evidence between appellant’s treating physician, Dr. Crossland, and Dr. Eisenstein, the
second opinion physician, regarding whether appellant’s claimed conditions were causally
related to employment factors, the Office referred the case to a referee medical specialist,
Dr. Roulhac, who found in his June 14, 2009 report that appellant’s December 20, 2006 work
injury did not aggravate or contribute to the embolism which resulted in limb amputation.
Dr. Roulhac noted that appellant’s aneurysm of the aortoiliac segment was present prior to the
injury and did not lead to immediate emboli. He asserted that there was no medical literature
supporting that a blunt trauma can cause emboli immediately or even five months later.
Dr. Roulhac stated that there was literature supporting the fact that coumadin anticoagulation,
which was prescribed to appellant in January 2007, can produce hemorrhagic plaque rupture with
distal embolization. He advised that the atheroemboli following open and endovascular aortic
aneurysm that appellant experienced is a well known occurrence; appellant had two episodes of
intra-aortic instrumentations of angiographic evaluation and endograft placement. Dr. Roulhac
stated that this directly led to rhabdomyolysis and a nonviable extremity resulting in the
amputation of the right leg below the knee and the subsequent toe amputations of the left foot.
He concluded that this sequence of events involved perioperative complications from an
abdominal aortic aneurysm and mural thrombus and was completely unrelated to the trauma
appellant experienced from the December 20, 2006 work injury.
The Board finds that Dr. Roulhac’s referee opinion constituted medical evidence
sufficient to negate a causal relationship between appellant’s claimed condition and disability
and employment factors. The Board has held that the mere fact that appellant’s symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish a causal relationship between appellant’s condition and his employment factors.10
Causal relationship is a medical question that can generally be resolved only by rationalized
medical opinion evidence.11 Dr. Roulhac thoroughly discussed the medical history documenting
that appellant sustained abdominal aortic aneurysm and emboli conditions which subsequently
required amputation of the right leg below the knee and toe amputations of the left foot. He
found, however, that the development of these conditions occurred in a manner which was
completely unrelated to the December 20, 2006 work injury. Dr. Roulhac’s opinion is
sufficiently probative, rationalized, and based upon a proper factual background. Therefore, the
Office properly accorded Dr. Roulhac’s opinion the special weight of an impartial medical

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

See Steven S. Saleh, 55 ECAB 169 (2003); Robert G. Morris, 48 ECAB 238 (1996).

8

examiner in finding that appellant’s abdominal aortic aneurysm and emboli conditions and
subsequent amputations were not related to employment factors.12
Following the Office’s August 17, 2009 decision, appellant requested reconsideration.
However, he did not submit any additional medical evidence. His attorney submitted medical
literature which, he argued, supported the theory that a traumatic blow can trigger aortic
thrombosis, contrary to the opinions of Drs. Eisenberg and Roulhac. Counsel contended that
Dr. Crossland’s opinion was entitled to greater weight because he was the physician who
actually performed appellant’s amputations. The Office properly rejected these arguments.
Appellant’s attorney is not a physician and his opinion and the medical literature he presented
with his request for reconsideration contains no probative value; neither do the time analysis
sheets and witness statements from coworkers. The question of whether appellant has an
occupational condition causally related to employment factors is a medical one and appellant has
submitted no medical evidence in support of his request for reconsideration. Counsel is merely
restating one side of the conflict in medical evidence which was resolved by Dr. Roulhac’s
opinion; he did not provide well-reasoned and sufficiently supported opinions that would vitiate
the Office’s August 17, 2009 determination that appellant did not have any employment-related
disability or residuals stemming from the December 2006 work injury.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation benefits in its August 17, 2009 decision. The Board finds that appellant has not
met his burden of proof to establish that he developed an abdominal aortic aneurysm and an
embolic condition in the performance of duty.

12

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

9

ORDER
IT IS HEREBY ORDERED THAT the November 5 and August 17, 2009 decision of
the Office of Workers’ Compensation Programs is reversed in part and affirmed in part.
Issued: December 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0936
Issued: February 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 3, 2018 appellant filed a timely appeal from an October 26, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish intermittent periods
of disability from April 30 through August 28, 2016, causally related to her accepted employment
conditions.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 26, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 30, 2014 appellant, then a 54-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained an injury as a result of
standing, bending, sweeping, pushing, and pulling in the performance of duty. She indicated that
she became aware of her disease or illness on November 16, 2014, and related it to factors of her
federal employment on November 25, 2014. Appellant did not stop work. In a supplemental
statement, she related that she had worked for the employing establishment as a mail processor
since 1997. Appellant had a prior accepted injury to her feet, and had returned to work with no
restrictions approximately 15 months prior to her current claim. She noted that approximately six
months prior to her claim she began to experience pain in her hands and elbow, as well as pain in
her knees and back.
On March 20, 2015 OWCP accepted the claim for the conditions of sprain of the elbow
and forearm, unspecified site, bilateral; carpal tunnel syndrome, bilateral; displacement of lumbar
intervertebral disc without myelopathy; other internal derangement of the knee, bilateral.
On July 28, 2016 appellant filed several claims for wage-loss compensation (Form CA-7)
for the period April 30 to July 8, 2016.
OWCP received work excuse notes dated May 11 and 18 and June 8 and 29, 2016 from
Dr. Charles Reinhardt, a Board-certified family practitioner. Dr. Reinhardt related that appellant
was placed off work for intermittent dates from May 1 through July 5, 2016. He indicated that
appellant was unable to work “due to workers’ comp[ensation]” and advised that appellant was
unable to perform her job duties because she was “incapacitated.” In the May 11, 2016 note,
Dr. Reinhardt also indicated that appellant could return to full duty on May 12, 2016. In the
May 18, 2016 note, he indicated that appellant could return to full-duty employment on
May 19, 2016.
In a separate report dated May 18, 2016, Dr. Reinhardt related appellant’s history of injury,
reviewed magnetic resonance imaging (MRI) scan and electromyography (EMG) studies, and
noted his own physical examination findings. He diagnosed lumbar disc disease with
radiculopathy, bilateral carpal tunnel syndrome, and probable de Quervain’s disease.
Dr. Reinhardt advised that appellant could work light duty.
OWCP received several copies of May 18, 2016 Form CA-17 duty reports from
Dr. Reinhardt advising that appellant could return to light-duty work on May 19, 2016.
By development letters dated August 12 and September 6, 2016, OWCP advised appellant
her claims for intermittent disability had been received, but that additional evidence was needed
to support her claim and informed her of the evidence needed. It explained that her physician must
submit a comprehensive narrative medical report, which included a history of injury and thorough
explanation with findings as to how her condition worsened such that she was no longer able to
perform the duties of her position when she stopped work on April 30, 2016. OWCP explained
that a medical slip disabling her from work or a Form CA-17 would not be sufficient without the
necessary medical explanation and objective findings. It afforded appellant 30 days to submit the
requested evidence.

2

OWCP received additional work excuses from Dr. Reinhardt dated August 2 to 15, 2016
excusing appellant from work during intermittent dates from July 23 through August 15, 2016.
Dr. Reinhardt indicated that appellant was unable to perform her job duties because of
“exacerbation of pain” from her work-related injuries.
By decision dated September 20, 2016, OWCP denied appellant’s claim for compensation
for wage loss for the period April 30, 2016 and continuing. It explained that the medical evidence
of record did not establish that she was disabled for work and thus she was not entitled to wageloss compensation during the claimed periods.
On January 31, 2017 appellant requested reconsideration. She indicated that she was
enclosing new medical evidence in support of her claim, which showed that her accepted
conditions had worsened.
In a September 9, 2016 report, Dr. Reinhardt noted the duties appellant performed at the
employing establishment. He also noted that she had a separate claim for an injury to her feet.
Dr. Reinhardt explained that when appellant returned to work from her prior injury, she was
required to engage in prolonged standing and repetitive use of both hands, arms, and elbows. He
explained that the prolonged standing aggravated her lumbar disc displacement and her knee
conditions, as appellant was required to stand, bend, and twist to perform duties on her machine.
Dr. Reinhardt explained that the repetitive sweeping of the automated machine also aggravated
her carpal tunnel and her elbows. He indicated that as long as appellant was performing these
duties she would continue to have recurring episodes of disability, which could be viewed as a
worsening of her condition. Dr. Reinhardt advised that she was temporarily totally disabled from
work due to swelling, reduced range of motion, pain, and diagnoses provided in his
electrodiagnostic reports. He indicated that appellant was totally disabled on intermittent dates
from May 7 through August 27, 2016.
OWCP continued to receive reports from Dr. Reinhardt through February 2017 relating to
appellant’s treatment from October 2016 through February 2017.3
By decision dated April 14, 2017, OWCP denied modification of the September 20, 2016
decision. It explained that appellant had not provided rationalized medical evidence to support
that she was totally disabled on the dates claimed.
On July 28, 2017 appellant requested reconsideration. She indicated that her accepted
conditions were worsening and were causing additional work restrictions.
In a July 10, 2017 report, Dr. Reinhardt indicated that he was providing a response to
OWCP’s April 14, 2017 decision. He repeated appellant’s history of injury and his prior opinions
from his September 9, 2016 and January 9, 2017 reports. Dr. Reinhardt added that during the
period May 7 through August 17, 2016 “the patient’s condition was temporarily disabled, which
left her incapacitated to perform any duties because it would cause further damage to her range of

3
OWCP received a narrative report from Dr. Reinhardt dated January 9, 2017 which addressed appellant’s period
of alleged disability. This report, except for the date, was identical to his September 9, 2016 report.

3

motions, symptomology of sprain, and the diagnoses noted in the EMG report of October 28, 2016
and reevaluation report of November 26, 2016.”
OWCP also received a copies of previously submitted October 11 and 28, 2016 reports
from Dr. Reinhardt.
By decision dated October 26, 2017, OWCP denied modification of the April 14, 2017
decision. It again found that the medical evidence of record did not establish that appellant was
totally disabled from work during intermittent periods April 30 through August 28, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of proof to establish that she was disabled for work as a
result of the accepted employment injury.5 Whether a particular injury causes an employee to
become disabled for work, and the duration of that disability, are medical issues that must be
proved by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that she was receiving at the
time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, she is entitled to compensation for any loss of wages.
The claimant must submit medical evidence showing that the condition claimed is
disabling.10 The evidence submitted must be reliable, probative, and substantial.11 The physician’s
opinion must be based on the facts of the case and the complete medical background of the
employee, must be one of reasonable medical certainty, and must include objective findings in
4

See B.K., Docket No. 18-0386 (issued September 14, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005);
see also Nathaniel Milton, 37 ECAB 712 (1986).
5

See D.G., Docket No. 18-0597 (issued October 3, 2018); see also Amelia S. Jefferson, id.

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); 20 C.F.R. § 10.5(f).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

10

See M.D., Docket No. 18-0474 (issued October 3, 2018); 20 C.F.R. § 10.115.

11

Id.

4

support of its conclusions.12 Subjective complaints of pain are not sufficient, in and of themselves,
to support payment of continuing compensation.13 Likewise, medical limitations based solely on
the fear of a possible future injury are also insufficient to support payment of continuing
compensation.14
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and entitlement
to compensation.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish intermittent
periods of disability from April 30 to August 28, 2016, causally related to her accepted
employment conditions.
In support of her claim for wage-loss compensation appellant alleged that her accepted
conditions had worsened and limited her ability to perform her employment duties. Appellant
submitted numerous reports from her treating physician, Dr. Reinhardt. However, the Board finds
that Dr. Reinhardt has not provided a rationalized opinion explaining why appellant was disabled
during any specific date as a result of her accepted employment conditions.16
Dr. Reinhardt submitted multiple work excuse notes from May 11 to July 5, 2016
indicating that appellant was unable to work “due to workers’ comp[ensation]” and advised that
appellant was unable to perform her job duties because she was “incapacitated.” The Board notes
that this reasoning fails to offer an explanation or rationale regarding why appellant was
incapacitated other than to note “due to workers’ comp[ensation].” A conclusory medical opinion
without additional explanation as to how the accepted conditions caused disability is of limited
probative value.17
Dr. Reinhardt noted on May 11, 2016 that appellant could return to full-duty work on
May12, 2016, and on May 18, 2016 he advised that appellant could return to full duty on
May 19, 2016. In a second May 18, 2016 report, he related that appellant could return to light duty
on May 18, 2016. However, in his subsequent narrative reports, including his September 9, 2016
report, he indicated that appellant was totally disabled on May 12 through 16, 2016 and from

12

20 C.F.R. § 10.501(a)(2).

13

Id.

14

Id.

15

See also B.K, supra note 3. William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

16

Id.

17

See R.T., Docket No. 15-0907 (issued August 18, 2015).

5

May 19 through 27, 2016. As Dr. Reinhardt provided inconsistent opinions regarding appellant’s
disability status on specific dates, these reports are of limited probative value.18
OWCP subsequently received additional work excuses dated from August 2 to 15, 2016
from Dr. Reinhardt in which he placed appellant off work on intermittent dates from July 23
through August 15, 2016. Dr. Reinhardt indicated that appellant was unable to perform her job
duties because of “exacerbation of pain.” The Board notes subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing compensation.19
In a narrative September 9, 2016 report, Dr. Reinhardt explained when appellant returned
to work, she was required to engage in prolonged standing and repetitive use of both hands, arms,
and elbows which aggravated her lumbar disc displacement and her knees, as appellant was
required to stand, bend, and twist to perform duties on her machine. He explained that the
repetitive sweeping of the automated machine also aggravated her carpal and her elbows.
Dr. Reinhardt indicated that as long as appellant was performing these duties, she would continue
to have recurring episodes of disability, which could be viewed as a worsening of her condition.
He advised that appellant was temporarily totally disabled from work due to swelling, reduced
range of motions, pain, and diagnoses provided in his electrodiagnostic reports. Dr. Reinhardt
indicated that she was totally disabled on May 7, 9, 12,13, 14, 15, 16, 19, 20, and 27, June 11, 17,
18, 27, and 30, July 1, 2, 3, 23, 24, and 25, and August 1, 4, 5, 6, 7, 8, 11, 15, 18, 25, 26
and 27, 2016. He, however, did not provide objective findings of appellant’s accepted conditions
on the dates in question, nor did he explain why these objective findings caused appellant total
disability during the specific dates. As previously noted, subjective complaints are insufficient, in
and of themselves, to support payment of continuing compensation.20 Additionally, medical
limitations based solely on the fear of a possible future injury are also insufficient to support
payment of compensation.21
In a July 10, 2017 report, Dr. Reinhardt indicated that he was responding to OWCP’s
April 14, 2017 decision. In addition to his prior conclusions, he added that appellant was
temporarily disabled during the dates in question, which left her incapacitated to perform any
duties because work would cause further damage to her range of motion, symptomology of sprain,
and her other diagnoses. However, again, Dr. Reinhardt offered no objective findings from the
dates in question which would substantiate that appellant could not perform her employment
duties.
As noted, appellant must submit reasoned medical evidence directly addressing the specific
dates of disability for work for which she claims compensation.22 She did not provide medical
evidence containing a rationalized opinion explaining why objective findings substantiated that

18

Supra note 14.

19

20 C.F.R. § 10.501(a)(3).

20

Id.

21

Id.

22

See K.A., Docket No. 16-0592 (issued October 26, 2016).

6

she could not work for intermittent periods April 30 to August 25, 2016 causally related to her
accepted employment conditions. Thus, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish intermittent
periods of disability from April 30 to August 25, 2016, causally related to her accepted
employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2019
Washington, DC

Christopher J. Godfrey, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-325
Issued: September 24, 2012

Case Submitted on the Record

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

JURISDICTION
On November 26, 2011 appellant, through her attorney, filed a timely appeal from a
June 3, 2011 decision of the Office of Workers’ Compensation Programs (OWCP), which denied
modification of a wage-earning capacity decision. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether modification of OWCP’s May 20, 1997 wage-earning capacity
determination is warranted.
FACTUAL HISTORY
On July 2, 1986 appellant, then a 28-year-old clerk, filed an occupational disease claim
alleging that she developed bilateral carpal tunnel syndrome as a result of performing repetitive
1

5 U.S.C. §§ 8101-8193.

keying and throwing mail at work. OWCP accepted her claim for bilateral wrist sprain, bilateral
overuse syndrome and bilateral myofascial pain of the upper extremities. Appellant stopped
work intermittently until she returned to full-time light-duty work on February 15, 1997.2 Her
pay at the date of injury was $26,300.00 per year.
Appellant came under the treatment of Dr. James E. Culver, a Board-certified orthopedic
surgeon, on October 3, 1986 for discomfort in the upper extremities. He noted tenderness over
the dorsum of the left wrist and diagnosed overuse syndrome related to the repetitive type stress
that she encountered in keying and throwing mail at work.
On August 6, 1988 appellant accepted a full-time position in the private sector with the
Higbee Company as a sales clerk. On August 26, 1988 OWCP adjusted her compensation
benefits to reflect her 30 percent wage-earning capacity as a sales clerk. It concluded that the
position of full-time sales fairly and reasonably represented appellant’s wage-earning capacity.
Appellant worked as a sales clerk at Higbee Company until June 1989 and stopped completely.
She continued to be treated by Dr. Culver for repetitive use syndrome and he opined that
appellant was disabled from work.
Appellant underwent a functional capacity evaluation on June 18, 1996, which showed
that she was in a medium classification. She was advised to return to work on a gradual basis,
part time, 20 hours per week, avoid continuous repetitive hand motions, varied duties with
breaks every two hours. A July 19, 1996 work capacity report from Dr. Culver noted that
appellant could return to work part time, 20 hours per week subject to restrictions.
On November 20, 1996 appellant was offered a permanent job as a modified mail handler
(rehabilitation), four hours per day for the first two weeks, increasing to six hours per day the
next two weeks and then eight hours per day after four weeks. The position was effective
December 7, 1996. Appellant accepted the job under duress and requested that her starting date
be changed to February 1, 1997. She noted that she was not given adequate time to review the
job offer and that the shift was undesirable. On November 27, 1996 Dr. Culver reviewed the
limited-duty job offer and noted that appellant was able to perform the duties. Appellant
returned to work on January 19, 1997. In an April 4, 1997 rehabilitation memorandum, OWCP
indicated that she was increased to full-time work.
On May 20, 1997 OWCP advised that appellant had been reemployed as a modified mail
handler with wages of $806.76 per week, effective February 15, 1997. It determined that her
actual earnings as a modified mail handler fairly and reasonably represented her wage-earning
capacity. OWCP found that appellant had performed the position for more than 60 days without
incident and it was suitable to her partially disabled condition. Because there was no loss in
earnings, it found that she had zero loss of wage-earning capacity. Accordingly, appellant was
not entitled to wage-loss compensation.

2

On October 26, 1982 appellant filed an occupational disease claim alleging that she developed left sided
tendinitis as a result of casing mail at work, file number xxxxxx031. OWCP accepted tenosynovitis of the left hand.
On October 2, 1984 appellant filed an occupational disease claim for left hand and neck pain, file number
xxxxxx891. OWCP accepted right wrist sprain/dorsal sprain.

2

On March 5, 1999 appellant was treated by Dr. Michael Stanton-Hicks, an
anesthesiologist, for repetitive strain injuries of the upper extremities. Dr. Stanton-Hicks
diagnosed myofascial pain syndrome and opined that this condition resulted from repetitive
duties at work.
Appellant came under the treatment of Dr. Audley M. Mackel, III, a Board-certified
orthopedic surgeon, on July 7, 2010, for repetitive stress syndrome of both hands. In a duty
status report of the same date, Dr. Mackel noted clinical findings of chronic repetitive stress of
the bilateral wrists and diagnosed tenosynovitis of the left and right hands, wrists and forearms.
He noted that appellant could resume full-time, limited-duty work on July 8, 2010.
On August 3, 2010 the employing establishment offered appellant a modified limitedduty position as a modified mail handler, full time, with a salary of $54,396.00 a year effective
August 7, 2010. The duties of the modified assignment were using a hand stamp for up to six
hours per day. The physical requirements of the job offer were not noted. On August 3, 2010
appellant accepted the job offer.
On August 27, 2010 appellant filed a Form CA-7, claim for compensation, leave without
pay, for 28.75 hours, for the period August 16 to 27, 2010. She also requested a night
differential. In a time analysis form dated August 31, 2010, appellant noted that no work was
available for 28.75 hours. The employing establishment noted the employee was part of the
National Reassessment Process (NRP).
In an August 16, 2010 employee leave informational letter, appellant’s supervisor noted
that a search for the necessary tasks meeting her medical restrictions within the facility was
performed and the employing establishment was unable to identify enough available necessary
tasks within her medical restrictions for her to complete a full days work.
On September 7, 2010 OWCP noted receipt of appellant’s CA-7 form for the period
August 16 to 27, 2010.3 It noted that the evidence showed that the specific hours of the limitedduty job were withdrawn effective August 16, 2010 as part of the employing establishment’s
NRP. OWCP further noted that a formal loss in wage-earning capacity decision was issued on
May 20, 1997 which determined that the position of a modified handler fairly and reasonably
represented her wage-earning capacity. It advised appellant of the criteria for modification of the
loss of wage-earning capacity determination and requested that she submit evidence in support of
her claim.
In a letter dated September 13, 2010, appellant noted that the change in her work hours
was due to NRP. According to her restrictions, she was working 40 hours per week and the
changes in her schedule were due to NRP. Appellant noted that none of the criteria for
modification of a wage-earning capacity decision applied to her situation as the change in
schedule was solely due to NRP. She noted the employing establishment was no longer
accommodating limited-duty employees with jobs based on their restrictions. In a September 28,
2010 statement, appellant amended her prior statement and indicated that her medical condition
had not changed and that any activity at work could aggravate her condition. She indicated that
3

Appellant continued to submit CA-7 form, claims for compensation, through May 20, 2011.

3

the current job offer on the hand cancel belt aggravated her condition and involved continuous
facing and cancelling mail with no variety in the activities. Appellant noted that she could
tolerate this job for four hours per day with the help of medication and braces but that she could
not tolerate an eight-hour day. She indicated that the employing establishment refused to offer
her a limited-duty position within her restrictions.
On September 14, 2010 appellant filed a claim for recurrence of disability. She
submitted a report from Dr. Mackel dated October 6, 2010, who treated her for continuing
discomfort from repetitive use syndrome of the upper extremities. Appellant reported a
reassignment of her job with more repetitive use of the hand, which was a change from her
previous more sedentary functional use of her hand. Dr. Mackel diagnosed repetitive use
syndrome of the bilateral upper extremities.
In a decision dated October 15, 2010, OWCP denied appellant’s claim for compensation
commencing August 16, 2010. It noted that she failed to meet the three criteria for modifying a
wage-earning capacity determination.
On November 8, 2010 appellant requested a review of the written record. She submitted
reports from Dr. Mackel dated January 5 to 15, 2011.4 In a January 5, 2011 report, Dr. Mackel
treated appellant for continuing discomfort of her wrists bilaterally. In a January 15, 2011 report,
he noted treating her since 2000 for chronic repetitive stress syndrome of both wrists,
tenosynovitis and bilateral myofascial pain in the upper extremities. Dr. Mackel noted
appellant’s job restrictions. He addressed OWCP’s September 7, 2010 letter and noted that the
accepted employment condition had materially changed. Dr. Mackel noted the change in the
sense that appellant has remained unable to do repetitive-type activities with her hands. He
noted the repetitive activity would flare her symptoms causing her to work less hours or not at
all. Dr. Mackel noted the need for appellant to remain at her present employment level and
function.
In a decision dated February 17, 2011, an OWCP hearing representative affirmed the
October 15, 2010 OWCP decision.
On May 4, 2011 appellant requested reconsideration. In an accompanying statement she
asserted that OWCP erroneously used the modified mail handler position to establish her wageearning capacity determination on May 20, 1997. She noted that she was never rehabilitated for
this job, that the employer changed her craft from clerk to mail handler and that for years she had
not been allowed to work this job. Appellant noted that Dr. Mackel’s January 15, 2011 report
supported that her condition materially changed and that she was unable to perform repetitive
activities. She submitted a job offer dated January 9, 1997 and a January 15, 2011 report from
Dr. Mackel, all previously of record. Appellant submitted an April 6, 2011 report from
Dr. Mackel who noted appellant’s symptoms were stable. Dr. Mackel diagnosed repetitive stress
syndrome of the upper extremities. He continued appellant’s present level of work activity and
advised that her condition was unchanged and that she would need appropriate protection of her
hands and time off when her hand symptoms flared. In an April 6, 2011 duty status report,
4

Dr. Mackel’s report was dated January 15, 2010; however, this appears to be a typographical error and should be
January 15, 2011.

4

Dr. Mackel noted that appellant reached maximum medical improvement and diagnosed
tenosynovitis of the left and right hands, wrists and forearms. He noted that appellant could
resume work on April 9, 2011, with restrictions.
In a decision dated June 3, 2011, OWCP denied modification of the February 17, 2011
decision.
LEGAL PRECEDENT
Section 8102 of FECA provides compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.5 When an employee cannot
return to the date-of-injury job because of disability due to a work-related injury or disease, but
does return to alternative employment with an actual wage loss, OWCP must determine whether
the earnings in the alternative employment fairly and reasonably represent the employees wageearning capacity.6
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was, in fact, erroneous.7 The burden of proof is on the party
attempting to show modification of the award.8
FECA Bulletin No. 09-05, outlines certain OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.9
ANALYSIS
After OWCP issued its formal wage-earning capacity decision in 1997, the employing
establishment reassessed appellant’s rated position under NRP, resulting in a reduction of
limited-duty hours and a claim for wage-loss compensation beginning August 16, 2010. It
analyzed the case under the customary criteria for modifying a wage-earning capacity
determination, but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures
outlined therein for claims, such as this, in which limited-duty positions are withdrawn pursuant
to NRP.

5

5 U.S.C. § 8102(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
7

George W. Coleman, 38 ECAB 782, 788 (1987); Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

8

James D. Champlain, 44 ECAB 438 (1986); Jack E. Rohrabaugh, 38 ECAB 186, 190 (1986).

9

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

5

When a wage-earning capacity decision has been issued, FECA Bulletin No. 09-05
requires OWCP to develop the evidence to determine whether a modification of the decision is
appropriate. It thereby shifts the burden onto OWCP to review wage-earning capacity decision
to determine whether it was based on an actual bona fide position. To this end, FECA Bulletin
No. 09-05 asks OWCP to confirm that the file contain documentary evidence supporting that the
position was an actual bona fide position. It requires OWCP to review whether a current medical
report supports work-related disability and establishes that the current need for limited duty or
medical treatment is a result of injury-related residuals and to further develop the evidence from
both the claimant and the employing establishment if the case lacks current medical evidence.
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the June 3, 2011 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate decision
on appellant’s entitlement to wage-loss compensation beginning August 16, 2010.10
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s May 20, 1997 wage-earning capacity is appropriate.

10

M.A., Docket No., 12-316 (issued July 24, 2012); see M.E., Docket No. 11-1416 (issued May 17, 2012).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 3, 2011 is set aside and the case remanded for further action consistent with
this decision.
Issued: September 24, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7