United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, PROCTOR STATION,
Tacoma, WA, Employer
__________________________________________

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Appearances:
Coby Jones, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0381
Issued: July 11, 2017

Case Submitted on the Record

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

JURISDICTION
On December 12, 2016 appellant, through her representative, filed a timely appeal from a
June 17, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

Appellant timely requested oral argument before the Board. By order dated April 11, 2017, the Board exercised
its discretion and denied the request, finding that the issue presented could be adequately addressed based on a
review of the case record. Order Denying Request for Oral Argument, Docket No. 17-0381 (issued April 11, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant sustained a bilateral knee condition causally related to
factors of her federal employment.
FACTUAL HISTORY
On May 1, 2015 appellant, then a 50-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained disorders due to repeated trauma causally related
to factors of her federal employment. She did not stop work. OWCP assigned the case file
number xxxxxx521.
In an accompanying statement, appellant related that she injured both knees at work on
May 15, 2013. On November 4, 2014 she resumed work after knee surgery, but her knees
continued to hurt due to the requirements of her employment. Appellant described in detail her
job duties.
OWCP had previously accepted under case file number xxxxxx011 that appellant
sustained lumbar sprain and bilateral knee and leg sprains on May 15, 2013 when she was
attacked by a dog while in the performance of duty. On September 16, 2014 Dr. David A.
Coons, an attending osteopath and Board-certified orthopedic surgeon, performed partial medial
and lateral meniscectomies with chondroplasties of both knees. Appellant stopped work on
September 16, 2014 and resumed her usual job on November 3, 2014. OWCP had also accepted
that she sustained a left ankle sprain and sacroiliac ligament sprain on January 29, 2015 under
file number xxxxxx217.4 Appellant worked six hours a day with restrictions following the
injury.5
In support of her May 1, 2015 occupational disease claim, appellant submitted evidence
relevant to her May 15, 2013 work injury under file number xxxxxx011. In an April 27, 2015
report, Dr. Coons diagnosed osteoarthritis of both knees aggravated by her work injury and
employment activities.
In a report dated May 28, 2015, Dr. Mario G. Alinea, Board-certified in family practice,
evaluated appellant for knee pain bilaterally and noted that she had a history of meniscal tears
and degeneration. He advised that after knee surgery she continued to have symptoms that
prevented her from performing her usual employment. Dr. Alinea diagnosed bilateral
osteoarthritis of the knees aggravated by her employment injury and job duties. He
recommended a right total knee replacement. Dr. Alinea related:
“It is the orthopedic surgeon’s opinion that the events and nature of [appellant’s]
job over the last 26 years as a letter carrier having to walk long distance, up and
down hills, climbing up and down stairs and multiple work[-]related injuries to
her knees are such that this is responsible for the aggravation [of] her knee, which
4

OWCP combined the aformentioned files, with case file number xxxxxx011 serving as the master file.

5

OWCP claim file number xxxxxx217 is not before the Board on the present appeal.

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has led to a cascade of treatment and is now leading to a need for knee
replacement.”
By decision dated June 25, 2015, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence was insufficient to show that she sustained a diagnosed
condition as a result of the accepted employment factors.6
Appellant, on July 21, 2015, requested an oral hearing before an OWCP hearing
representative. At the hearing, held on December 16, 2015, she related that her knees became
worse when she returned to work.
By letter dated December 11, 2015, appellant attributed her knee condition to her job
duties as a letter carrier for 26 years. She discussed her May 15, 2013 knee injuries and noted
that after her September 16, 2014 surgery she returned to her usual duties in November 2014.
Appellant’s symptoms worsened due to additional work exposure and she began limping in
April 2015. She described the job duties to which she attributed her bilateral knee condition.
In a report dated January 6, 2016, Dr. Coons diagnosed bilateral end-stage osteoarthritis
of the knees. He noted that bilateral knee surgery on September 16, 2014 confirmed “complete
loss of cartilage in both the right and left knees.” Dr. Coons reviewed appellant’s history of two
nonemployment-related knee injuries, a torn left meniscus in August 2006 and a meniscus tear
on September 23, 2007. Both injuries were treated with surgery that revealed preexisting
degenerative changes. Appellant’s knee problems increased and she underwent bilateral knee
surgery on November 16, 2014, following which she resumed her usual work duties. Dr. Coons
described her work duties as a letter carrier for 26 years, noting that she walked around 20,000
miles and entered and exited a vehicle hundreds of thousands of times. He related:
“My medical opinion is that work has certainly been a contributing factor to the
development of the degenerative changes in her knees. This is especially true
when we consider that [appellant] was only 41 years old when she had her first
arthroscopy and was found to have some ‘preexisting’ degenerative changes.
Arthritis typically develops over a period of time, and it is likely that she began
having degenerative changes in her 30’s. This time frame is not consistent with
typical, age[-]related osteoarthritis. It is much more likely that overuse and
overwork over long periods of time in [appellant’s] occupation permanently
accelerated and led to the degenerative changes, which were noted at such a
young age. The biomechanical forces would be excessive cartilage pressure and
micro-degeneration with recurrent and prolonged twisting, turning, squatting, and
jumping impact, which are described inherent to her job. These mechanical
forces were causative of any injury and inflammation cascade leading to the early
6

OWCP noted that appellant underwent a second opinion examination in master file number xxxxxx011. In a
report dated August 9, 2014, Dr. Justin Sherfey, an osteopath, diagnosed degenerative joint disease of the right knee
with a progression of preexisting arthritis disease unrelated to the May 15, 2013 work injury an aggravation of right
knee degenerative joint disease, a medial meniscus tear of the left knee due to the work injury, a temporary
aggravation of preexisting degenerative joint disease due to the work injury, and a preexisting anterior cruciate
ligament tear of the left knee.

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degenerative changes on a more probable than not basis given the absence of
predisposing injury or malformation.”
Dr. Coons recommended bilateral total knee replacements due to appellant’s end-stage
osteoarthritis, which he found “permanently aggravated and accelerated by her occupation.”
By decision dated February 17, 2016, OWCP’s hearing representative vacated the
June 25, 2015 decision. She found that Dr. Coons’ January 6, 2016 report was sufficient to
require further development of the evidence. The hearing representative instructed OWCP to
refer appellant for a second opinion examination to determine whether she sustained a bilateral
knee condition caused or aggravated by factors of her federal employment.
OWCP initially referred appellant to Dr. Louis Kretschmer, a Board-certified orthopedic
surgeon, for a second opinion examination; however, it subsequently determined that his report
and addendum should be excluded from the record.7
On May 17, 2016 OWCP referred appellant to Dr. Robert L. Kalb, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated June 2, 2016, Dr. Kalb
noted that she experienced difficulties beginning in May 2013 after she hurt her knees and back
during a dog attack. He related that he had reviewed and concurred with Dr. Kretschmer’s
reports. Dr. Kalb opined that appellant did not sustain arthritis of the bilateral knees due to any
of her injuries. He further related, “The work requirements of standing, walking, and delivering
the mail would not in and of themselves by direct cause, aggravation, precipitation, or
acceleration lead to advanced arthritis with requirement for bilateral knee replacement.”
Dr. Kalb advised that appellant had no work restrictions as a result of her accepted injuries and
that her current symptoms were “related to osteoarthritis in her knees, which is not an allowed or
accepted [w]orkers’ [c]ompensation condition.”
By decision dated June 17, 2016, OWCP denied appellant’s claim for a bilateral knee
condition causally related to factors of her federal employment. It found that Dr. Kalb’s opinion
constituted the weight of the evidence and established that work duties did not cause or
contribute to her bilateral knee osteoarthritis.
On appeal counsel contends that the opinion of Dr. Coons was rationalized and based on
a detailed description of her work duties. He further asserts that Dr. Kalb failed to refer to
appellant’s work duties and appeared to find that OWCP did not allow bilateral osteoarthritis as
an accepted condition.
7

OWCP indicated that it was excluding Dr. Kretschmer’s reports due to insufficient rationale as he based his
opinion on literature rather than the facts of the case. Dr. Kretschmer’s reports, however, do not fall within the
category of reports which should be excluded from the record. There is no evidence that he performed fitness-forduty examinations for the employing establishment, that OWCP had previously requested an impartial report and
failed to seek clarification before seeking his opinion; that his reports were obtained through telephone contact, that
OWCP improperly utilized leading questions, or that it involved surveillance video provided to a referee physician
directly by the employing establishment. OWCP therefore was not required to exclude Dr. Kretschmer’s reports
from the record. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Development and Evaluating Medical
Evidence, Chapter 2.810.12(a) (September 2010); see also D.M., Docket No. 10-0857 (issued January 3, 2011).
Any error in excluding the physicians’ reports was harmless, however, as it does not affect the outcome of this case.

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LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.9 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;11 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;12 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.13
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.14 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.15
ANALYSIS
Appellant attributed her bilateral knee condition to the performance of her work duties as
a city carrier. OWCP accepted the occurrence of the claimed employment factors. The issue

8

Supra note 3.

9

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

10

See Ellen L. Noble, 55 ECAB 530 (2004).

11

Michael R. Shaffer, 55 ECAB 386 (2004).

12

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

13

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

14

5 U.S.C. § 8123(a).

15

20 C.F.R. § 10.321.

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therefore is whether the medical evidence establishes a causal relationship between the claimed
conditions and the identified employment factors.
In support of her occupational disease claim, appellant submitted a May 28, 2015 report
from Dr. Alinea. Dr. Alinea diagnosed bilateral knee osteoarthritis aggravated by her work
injury and job duties, noting that her orthopedic surgeon believed that extensive walking,
climbing stairs, and repeated injuries caused an aggravation of a knee condition and the need for
knee replacement.
Dr. Coons, in a January 6, 2016 report, discussed appellant’s history of bilateral knee
surgery on September 16, 2013 showing a total loss of cartilage in both knees. He noted that she
had a history of meniscal tears not related to work in 2006 and 2007. Dr. Coons provided a
description of appellant’s employment duties for the past 26 years as a letter carrier, including
walking about 20,000 miles and entering and exiting her vehicle hundreds of thousands of times
over the course of her career. He diagnosed bilateral end-stage knee arthritis. Dr. Coons opined
that work contributed to the degenerative changes in appellant’s knees, particularly as her
arthritis began when she was 41 years old and thus was not consistent with osteoarthritis
resulting from age. He asserted that overuse due to her work duties accelerated and caused
degeneration due to the biomechanical forces of “excessive cartilage pressure and microdegeneration with recurrent and prolonged twisting, turning, squatting, and jumping impact,
which are described inherent to her job.” Dr. Coons opined that appellant required bilateral total
knee replacements due to end-stage osteoarthritis aggravated and hastened by work duties.
OWCP referred appellant to Dr. Kalb for a second opinion examination. On June 2, 2016
Dr. Kalb discussed her history of a back and bilateral knee injury in May 2013. He found that
appellant’s bilateral knee arthritis was not related to either her history of injuries or her job
duties. Dr. Kalb opined that standing, walking, and mail delivery were not activities that would
cause, aggravate, or accelerate arthritis severe enough to require knee replacements.
The Board finds that the case is not in posture for decision due to a conflict in the medical
evidence between appellant’s physician, Dr. Coons and OWCP’s referral physician, Dr. Kalb.
As previously noted, when there is disagreement between an OWCP physician and the
employee’s physician, OWCP will appoint a third physician who shall make an examination.16
For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.17 The Board finds that the opinions of Dr. Coons and Dr. Kalb to be of virtually equal
weight. Consequently, the case must be remanded for OWCP to prepare an updated statement of
accepted facts and refer appellant to an appropriate impartial medical examiner for resolution of
the conflict regarding whether she sustained a bilateral knee condition causally related to her
employment duties. After such further development as deemed necessary, it shall issue a de
novo decision.

16

See supra notes 13-14.

17

See W.S., Docket No. 16-0111 (issued March 14, 2017).

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 11, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Adelanto, CA, Employer
__________________________________________
Appearances:
Joe Mansour, for the appellant
Office of Solicitor, for the Director

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Docket No. 14-1663
Issued: September 29, 2015

Case Submitted on the Record

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

On July 29, 2014 appellant, through her representative filed a timely appeal of an
April 9, 2014 Office of Workers’ Compensation Programs’ (OWCP) decision. The Board
docketed the appeal as No. 14-1663.1
In the April 9, 2014 OWCP decision on appeal, an OWCP hearing representative
affirmed a July 25, 2013 decision finding that appellant did not sustain an emotional condition in
the performance of duty. 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.
Appellant, a 49-year-old disciplinary hearing officer, filed a (Form CA-1) traumatic
injury claim on May 31, 2013, alleging an emotional condition sustained in the performance of
duty. She asserted that she was subjected to intimidation and profane, vulgar language by a
coworker after reporting misconduct on his part, and that on May 23, 2013 the coworker held a
door to prevent her from leaving. In a statement received by OWCP on July 16, 2013, appellant
alleged that she was subjected to intimidation and harassment by a coworker, R.A., a fellow
1

Appellant had requested oral argument before the Board. By order dated June 10, 2015 the Board denied
appellant’s request for oral argument as appellant’s contentions on appeal could be addressed on the record.
2

5 U.S.C. § 8101 et seq.

disciplinary hearing officer (DHO). She alleged that she spoke to her warden and management
about having the office staff move to another location. Appellant also told him about an
August 2009 incident between herself and R.A. in which he initiated a loud verbal confrontation
about her use of office space in an office formerly occupied by a former employee. She asserted
that, in August 2010, she followed up with the warden and management and was told that they
were not moving because “someone had to watch the wolf in the hen house.” Appellant alleged
that on February 7, 2013 R.A. engaged in disorderly, disruptive behavior which included making
derogatory, profane, joking remarks about murdered police officers. She asserted that she was
not comfortable with the way R.A. conducted himself in the worksite and that he presented
himself in an overbearing, harassing manner toward the younger female secretaries in the office.
In addition, appellant alleged that he received preferential treatment from management which
encouraged him to develop an aggressive demeanor. She asserted that he openly used profanity
in the office setting. Appellant alleged that these actions on the part of R.A. were condoned by
management and that, taken together, they constituted a hostile environment. She reported
R.A.’s misconduct to her superiors; however, management did not take any disciplinary action
against him. Management denied her request to be transferred to another facility.
By decision dated July 25, 2013, OWCP denied appellant’s claim on the basis that she
failed to establish fact of injury. In an April 30, 2013 memorandum, appellant asserted that R.A.
was guilty of waste, fraud, and abuse because he was being paid for work despite the fact that he
did not seem to have much work to do. She described several incidents in which R.A. engaged
in inappropriate behavior toward office secretaries and engaged in inappropriate personal
conversations. In a June 2013 memorandum, appellant reiterated her previous allegations and
made several additional allegations. In a June 18, 2013 statement, she reiterated that R.A.
engaged in inappropriate office behavior and made inappropriate personal remarks and
comments about salaries. By letter dated September 3, 2013, appellant requested an oral hearing.
By decision dated April 9, 2014, an OWCP hearing representative affirmed the July 25, 2013
decision. She modified the previous decision to the extent that she found appellant’s allegations
were factual. Appellant, however, found that the incidents alleged by appellant did not constitute
compensable acts of employment.
Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.3 The Board notes that, despite the fact that appellant made numerous
factual allegations in this case, OWCP made only one attempt to obtain information from the
employing establishment, a letter dated March 4, 2014. OWCP procedures state:
“If an employing agency fails to respond to a request for comments on the
claimant’s allegations, the [claims examiner] may usually accept the claimant’s
statements as factual. However, acceptance of the claimant’s statements as factual
is not automatic in the absence of a reply from the agency, especially in instances
where performance of duty is questionable. The Board has consistently held that
allegations unsupported by probative evidence are not established. James E.
Norris, 52 ECAB 93 (1999), Michael Ewanichak, (1997). The [claims examiner]

3

20 C.F.R. § 10.126.

2

should consider the totality of the evidence and evaluate any inconsistencies prior
to making a determination.”4
OWCP’s hearing representative nonetheless summarily found that the incidents alleged
by appellant did not constitute compensable acts of employment. The Board concludes that
these allegations were accepted as factual by OWCP’s hearing representative simply because the
employing establishment did not respond to OWCP’s development letter. In a voluminous case
with such vague and unsubstantiated allegations, it was incumbent upon OWCP’s hearing
representative to ascertain all the facts prior to making her finding. Therefore, as OWCP’s
hearing representative did not make the required findings in her April 9, 2014 decision, her
decision was issued in error.
Accordingly, the case will be remanded to OWCP to obtain the requisite information
from the employing establishment and determine whether her allegations were factually
substantiated. OWCP is directed to make findings of fact where appropriate and provide reasons
for its decision, pursuant to the standards set forth in section 8128(a) and section 20 C.F.R.
§ 10.126.5 After such further development as OWCP deems necessary, it should issue an
appropriate decision to protect appellant’s appeal rights.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)
(June 2011).
5

The Board further notes that this case was filed as a traumatic injury case based on one incident. Appellant
alleged that R.A. held a door closed on her, preventing her from entering the building. Nevertheless, the hearing
representative adjudicated this case as one based on an occupational disease claim. On remand, therefore, OWCP is
directed to further clarify the issue(s) presented in the claim.

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IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of Workers
Compensation Programs is set aside; the case record is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: September 29, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MANCHESTER VETERANS MEDICAL
CENTER, Manchester, NH, Employer
__________________________________________

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Appearances:
Bradley M. Lown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1563
Issued: January 15, 2019

Case Submitted on the Record

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

JURISDICTION
On July 10, 2017 appellant, through counsel, filed a timely appeal from a February 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.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 February 23, 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.

ISSUE
The issue is whether OWCP improperly denied appellant’s request for authorization for
left shoulder surgery.
FACTUAL HISTORY
On April 29, 2010 appellant, a 50-year-old physician, filed an occupational disease claim
(Form CA-2) alleging that he developed constant pain inside his right elbow, a burning sensation
up his forearm, and numbness in his 4th and 5th digits due to his federal employment. OWCP
initially accepted the claim for right medial epicondylitis and right ulnar neuritis. It authorized a
right elbow common flexor pronator repair and anterior submuscular ulnar nerve transposition,
which appellant underwent on November 29, 2010. OWCP later expanded the acceptance of
appellant’s claim to include bilateral medial epicondylitis, lesion of right ulnar nerve, bilateral
carpal tunnel syndrome, adhesive capsulitis of bilateral shoulders, and right rotator cuff
impingement syndrome. Appellant also has another occupational disease claim (date of injury
October 8, 2010), which OWCP accepted for bilateral epicondylitis with ulnar neuritis (OWCP
File No. xxxxxx080).
Appellant submitted reports dated April 1, 2, 14, and May 13, 2014 from Dr. Ira Moby
Parsons,4 a Board-certified orthopedic surgeon, who diagnosed left adhesive capsulitis of shoulder,
left partial tear of biceps tendon, bilateral carpal tunnel syndrome, left lateral epicondylitis,
bilateral recalcitrant medial epicondylitis with ulnar neuritis, and right, non-outlet shoulder
impingement secondary to posterior shoulder capsulitis. In his April 14, 2014 report, Dr. Parsons
opined that appellant had reached maximum medical improvement and had exhausted all forms of
operative and nonoperative treatment that was likely to benefit him.
In the May 13, 2014 report, Dr. Parsons noted that appellant had been working at a car
dealership which required significant repetitive motion in turning on ignition keys, opening
windows and trunks, and all of this in an ergonomically unfavorable position reaching into the car.
He opined that this caused significant exacerbation of appellant’s symptoms to the point where
both of his hands were numb. Appellant also had severe pain in both thenar eminences, elbows,
palms, and his left shoulder was severely painful.
On May 20, 2014 appellant requested authorization for left shoulder surgery.
In a May 19, 2014 report, Dr. Parsons reiterated his diagnoses and advised that appellant
was not capable of any repetitive activity on a day-to-day basis.
In a June 11, 2014 development letter, OWCP found that the medical evidence of record
was insufficient to authorize the surgery because the requested treatment did not appear to be
medically necessary for and/or causally related to appellant’s accepted conditions. It requested a
medical narrative from appellant’s physician describing why the procedure was medically
necessary and what future benefits he or she hoped to attain through the surgery. OWCP afforded
appellant 30 days to submit additional evidence and respond to its inquiries.

4

Dr. Ira M. Parsons also refers to himself and signs medical reports as Dr. Moby Parsons.

2

In response, appellant submitted a June 11, 2014 report from Dr. Parsons who indicated
that appellant was experiencing a severe aggravation of upper extremity cumulative trauma
disorders including carpal tunnel syndrome, cubital tunnel syndrome, medial epicondylitis, and
left shoulder impingement. Dr. Parsons reiterated his opinion that appellant was unable to tolerate
vocational rehabilitation either physically or due to the emotional toll that his daily pain was
causing along with his sleep disturbance. He further indicated that the degree of driving and
keyboarding required by even a sedentary job would only worsen his condition which already
precluded such activity. Dr. Parsons advised that appellant remained totally disabled from work.
In a July 16, 2014 letter, OWCP found that the evidence submitted was insufficient to
modify its previous authorization determination because appellant’s physician had not provided a
report discussing the requested procedure, describing the procedure, explaining why it was
medically necessary as treatment for his accepted conditions, and noting what future benefits he
hoped to attain through the requested procedure. It noted that this was not a final decision and if
appellant wanted a formal decision regarding this matter, he should submit a written request.
Appellant subsequently submitted a June 16, 2014 report from Dr. Parsons who noted that
he had been taking care of appellant for at least six years for bilateral repetitive overuse upper
extremity disorders. Dr. Parsons reported that appellant had been through an extensive course of
treatment, including multiple cortisone injections in the left shoulder. He opined that appellant
“developed adhesive capsulitis and impingement syndrome as a consequence of his other upper
extremity cumulative trauma disorders in compensation for the multiple functional deficits that he
has distal to his shoulder.” Dr. Parsons concluded that these additional conditions were causally
related to his accepted employment injury.
On June 30, 2014 Dr. Parsons noted that appellant currently had recalcitrant impingement
of his left shoulder as a result of adhesive capsulitis and explained that he had failed conservative
measures. He reiterated his opinion that the resultant adhesive capsulitis was directly related to
appellant’s work-related injuries and should be covered under that claim.
In a July 18, 2014 report, Dr. Parsons indicated that appellant was still awaiting approval
for his shoulder surgery.
A June 24, 2014 magnetic resonance imaging (MRI) scan of the left elbow revealed mild
common extensor tendinosis, without discrete tear, unremarkable MRI scan appearance of the
common flexor/pronator tendon complex, and trace joint effusion.
In a September 7, 2014 report, Dr. Parsons reviewed the June 24, 2014 MRI scan and found
that it confirmed significant tendinosis of the common flexor pronator tendon. He opined that this
was a degenerative tendon problem that was chronic and, given its duration, unlikely to heal.
Dr. Parsons also found that appellant had a small reactive effusion in the joint beneath this area
which was a bystander consequent of the ongoing tendon degeneration. He opined that this would
indicate that the tendon had reached a relative stalemate in terms of its biological capacity for
improvement and was likely to stay at a fixed state of degeneration with ongoing symptomatology.
On September 10, 2014 Dr. Parsons reported that appellant had been through extensive
therapy, including multiple cortisone injections, occupational therapy, massage therapy, and
acupuncture, all without appreciable long-term relief. He opined that given appellant’s lack of
response to conservative treatment, he recommended and proposed a left shoulder diagnostic
3

arthroscopy with indicated procedures to include subacromial decompression, capsular release,
and repair of his biceps tendon through tenodesis. Dr. Parsons explained that indicated procedures
meant that should other problems such as rotator cuff be encountered, these could be addressed
concomitantly due to their association with ongoing pain. He further explained that an
arthroscopic procedure was one in which small portals could be used to permit the insertion of a
camera which allowed diagnostic and therapeutic procedures to be done in a minimally invasive
fashion which should expedite recovery. Dr. Parsons explained that the outcome of the procedure
was that appellant should have significant improvement in range of motion and reduction in pain.
The recovery would depend on all that was done and should appellant require significant repair of
tendinous structures, may require up to three to six months with rehabilitation to regain strength
and range of motion.
In a December 7, 2014 report, Dr. David Krohn, a Board-certified internist and OWCP
district medical adviser (DMA), reviewed the medical evidence of record and concluded that the
proposed left shoulder surgery was neither warranted nor necessitated by any of appellant’s workrelated conditions. He noted that the only shoulder condition accepted by the statement of accepted
facts (SOAF) was that of right rotator cuff impingement syndrome and that no left shoulder
condition had been accepted by OWCP. Dr. Krohn further indicated that, even if a left shoulder
condition was considered, it was his opinion that it was more likely to have resulted from
appellant’s underlying diabetes and avocational activities.
In reports dated November 7, 2014 and January 7, 2015, Dr. Parsons continued to diagnose
adhesive capsulitis of the left shoulder.
By decision dated February 4, 2015, OWCP denied authorization for left shoulder surgery.
In reports dated February 11, 2015, Dr. Parsons opined that the fact that appellant’s
cortisone injections only provided short-term relief validated that further injection therapy and
other conservative measures were unlikely to cure his left shoulder pain without surgical
intervention. He further opined that the benefit of this surgery was that it had a high likelihood of
curing his left shoulder pain, which seemed to be the most troublesome to him at this point in time
and for which he required ongoing continuous medical care.
On February 24, 2015 Dr. Parsons opined that when diabetes affected a frozen shoulder, it
resulted in a global adhesive capsulitis which appellant did not exhibit. He found that appellant
had selective tightness of his posterior capsule, which resulted in an impingement-type process in
the shoulder and was distinctly different from diabetic adhesive capsulitis. Dr. Parsons also noted
that appellant’s glycemic control had been excellent, which was further indication that it was less
likely that his shoulder problems were a result of his diabetes as those most prone to frozen
shoulder and other musculoskeletal complications of diabetes tended to be patients with longstanding poor glycemic control.
In a March 24, 2015 narrative statement, appellant indicated that OWCP had accepted
adhesive capsulitis of both (bilateral) shoulders.
By decision dated April 3, 2015, OWCP denied modification of its prior decision denying
authorization for surgery. It noted that appellant’s claim had been accepted for adhesive capsulitis
of bilateral shoulders, but denied authorization for left shoulder surgery because the medical
evidence then of record was insufficient to establish that the proposed surgery was necessary.
4

In an April 22, 2015 report, Dr. Parsons reiterated his opinion that appellant had failed a
host of conservative measures and remained disabled with limited tolerance for even simple daily
activities.
On June 11, 2015 Dr. Parsons noted that appellant had recently been diagnosed with a
complete tear of his common extensor tendon of the left elbow and that the etiology of the tear
stemmed from the multiple cortisone injections he had to receive for pain management.
On April 1, 2016 counsel requested reconsideration.
In a March 16, 2016 report, Dr. Parsons indicated that appellant needed ongoing cortisone
injection therapy, which was likely to cause further damage to the tendon and ultimately require
surgical debridement and repair secondary to the dystrophic effects of cortisone on collagen-based
tissues. He opined that surgical treatment was causally related to appellant’s accepted conditions
and necessary to definitely treat this rather than causing further damage.
OWCP referred appellant to Dr. Christopher B. Geary, a Board-certified orthopedic
surgeon, for a second opinion examination, along with a SOAF which listed all of appellant’s
accepted conditions including bilateral adhesive capsulitis of the shoulder. In his June 6, 2016
report, Dr. Geary concluded that the proposed diagnostic left shoulder arthroscopy was not
medically necessitated or causally related to appellant’s accepted conditions. He opined that
appellant’s impingement or adhesive capsulitis was likely related to normal degenerative changes
and his underlying metabolic conditions, including diabetes and smoking. Dr. Geary found no
evidence that any of his work-related conditions would have put appellant at risk for frozen
shoulder or impingement. Specifically, he found no evidence that his elbow or wrist conditions
would put him at risk for impingement, which would necessitate shoulder arthroscopy.
In a June 24, 2016 addendum report, Dr. Geary continued to opine that the left shoulder
arthroscopy was not medically necessary because he found that appellant’s left shoulder condition
was more degenerative in nature and not in any way related to his previous federal employment as
a physician because it did not entail any heavy lifting or overhead work which might have caused
or accelerated a shoulder condition.
By decision dated July 11, 2016, OWCP denied modification of its prior decision, relying
on Dr. Geary’s second opinion.
On September 26, 2016 counsel requested reconsideration.
In an August 12, 2016 report, Dr. Parsons commented on the second opinion report of
Dr. Geary. He noted that appellant had always demonstrated a focal posterior capsulitis of his
shoulder which would tend to be associated with a non-outlet impingement-type syndrome
associated with cumulative trauma of the upper extremities as would lead to an impingement
process. Dr. Parsons noted that this condition is marked by specific loss of internal rotation which
causes obligate anterior superior translation of the humeral head against the coracoacromial arch
putting excess pressure and abrasion on the rotator cuff. He explained that appellant’s condition
was distinctly different than a global frozen shoulder, which is what occurs in the setting of
diabetes where there is glycosylation of the collagen molecules throughout the entire shoulder
capsule leading to loss of range of motion in all planes, not specific to internal rotation.
Dr. Parsons noted that appellant’s current symptomology is consistent with his cumulative trauma
5

disorder of his upper extremities and not, as opined by Dr. Geary, a result of systemic endocrine
abnormalities.
In a supplemental report dated September 30, 2016, Dr. Geary advised that appellant was
unable to use his upper extremities in any capacity be it typing, lifting, writing, pushing, pulling,
or anything else requiring the use of his upper extremities.
Appellant submitted reports dated October 17 and November 11, 2016 from Dr. Parsons
indicating that he received cortisone injections for his medial epicondylitis.
By decision dated February 23, 2017, OWCP denied modification of its prior decision
denying authorization for surgery.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.6 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.7 Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.8 It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.9 To be entitled to reimbursement of medical expenses, a claimant has the burden of
establishing that the expenditures were incurred for treatment of the effects of an employmentrelated injury or condition. Proof of causal relationship in a case such as this must include
supporting rationalized medical evidence.10 In order for a surgical procedure to be authorized, a
claimant must submit evidence to show that the surgery is for a condition causally related to an
employment injury and that it is medically warranted. Both of these criteria must be met in order
for OWCP to authorize payment.11
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
5

5 U.S.C. § 8103.

6

See J.B., Docket No. 11-1301 (issued March 22, 2012).

7

Id.

8

Id.

9

See Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

10

M.B., 58 ECAB 588 (2007).

11

R.C., 58 ECAB 238 (2006).

6

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 and resolve the conflict of medical evidence.12 This is called a referee examination
and OWCP will select a physician who is qualified in the appropriate specialty and who has no
prior connection with the case.13
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.14
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP initially accepted appellant’s claim for right medial epicondylitis and right ulnar
neuritis and authorized right elbow surgery. It later expanded acceptance of the claim to include
bilateral medial epicondylitis, lesion of right ulnar nerve, bilateral carpal tunnel syndrome,
adhesive capsulitis of bilateral shoulders, and right rotator cuff impingement syndrome.
In a report dated September 10, 2014, appellant’s attending physician, Dr. Parsons,
reported that appellant had undergone extensive therapy including multiple cortisone injections,
occupational therapy, massage therapy, and acupuncture, all without any appreciable long-term
relief. Given appellant’s lack of response to conservative treatment, he recommended and
proposed a left shoulder diagnostic arthroscopy, with indicated procedures to include subacromial
decompression, capsular release, and repair of his biceps tendon through tenodesis. Dr. Parsons
explained that an arthroscopic procedure was one in which small portals could be used to permit
the insertion of a camera which allowed diagnostic and therapeutic procedures to be done in a
minimally invasive fashion which should expedite recovery. He explained that the outcome of the
procedure was that appellant should have significant improvement in range of motion and
reduction in pain. The recovery would depend on all that was done and should appellant require
significant repair of tendinous structures, may require up to three to six months with rehabilitation
to regain strength and range of motion.
In his June 6, 2016 second opinion report, Dr. Geary concluded that the proposed
diagnostic left shoulder arthroscopy was not medically necessitated or causally related to
appellant’s accepted conditions based on his opinion that appellant’s adhesive capsulitis was likely
related to normal degenerative changes and his underlying metabolic conditions, including
diabetes. In his June 24, 2016 addendum report, he continued to opine that the left shoulder
arthroscopy was not medically necessary.
Dr. Parsons opined, in reports dated February 24, 2015 and August 12, 2016, that when
diabetes affects a frozen shoulder, it results in a global adhesive capsulitis which appellant did not
exhibit. He found that appellant had selective tightness of his posterior capsule, which resulted in
12

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., 58 ECAB 328 (2007).

13

R.C., supra note 11.

14

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

7

an impingement-type process in the shoulder and was distinctly different from diabetic adhesive
capsulitis. Dr. Parsons also noted that appellant’s glycemic control had been excellent, which was
further indication that it was less likely that his shoulder problems were a result of his diabetes as
those most prone to frozen shoulder and other musculoskeletal complications of diabetes tended
to be patients with long-standing poor glycemic control. He asserted that appellant had always
demonstrated a focal posterior capsulitis of his shoulder which restricted internal rotation, but did
not affect global range of motion, which was associated with a nonoutlet impingement-type
syndrome associated with cumulative trauma of the upper extremities as would lead to an
impingement-type process. Dr. Parsons explained that it was marked by specific loss of internal
rotation which caused obligate anterior superior translation of the humeral head against the
coracoacromial arch putting excess pressure and abrasion on the rotator cuff. He pointed out that
this was distinctly different than a global frozen shoulder which occurred in the setting of diabetes
where there was a glycosylation of the collagen molecules throughout the entire shoulder capsule
leading to loss of range of motion in all planes, not specific to internal rotation. Dr. Parsons found,
therefore, that given appellant’s presentation of an isolated restriction of his posterior capsule, it
was not fair to pin this on a diagnosis of diabetes which caused an entirely different clinical
circumstance of global loss of range of motion. He concluded that appellant’s current
symptomatology was consistent with his cumulative trauma disorder of his upper extremities and
not a result of his systemic endocrine abnormalities.
The Board finds that Dr. Geary’s opinion conflicts with the SOAF. The SOAF made clear
that OWCP had accepted appellant’s claim for adhesive capsulitis of the right and left (bilateral)
shoulders. OWCP procedures provide that, when an OWCP medical adviser, second opinion
specialist, or referee physician renders a medical opinion based on a SOAF which is incomplete
or inaccurate, or does not use the SOAF as the framework in forming his or her opinion, the
probative value of the opinion is seriously diminished or negated altogether.15 In this case,
Dr. Geary failed to follow the accepted conditions as set forth in the SOAF and therefore his
opinion is insufficient as a basis to deny authorization for the requested surgery.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done. As OWCP undertook development of the evidence by referring appellant to Dr. Geary, it
had the duty to secure an appropriate report based on a proper factual and medical background,
resolving the issue.16
For these reasons, the Board finds that this case is not in posture for decision and further
development is required. After such other development as OWCP deems necessary, OWCP shall
issue a de novo decision regarding appellant’s claim for authorization of left shoulder surgery.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

E.G., Docket No. 12-1011 (issued November 28, 2012).

16

See Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002);
William J. Cantrell, 34 ECAB 1233 (1993); Dorothy L. Sidwell, 36 ECAB 699 (1985).

8

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: January 15, 2019
Washington, DC

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

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

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

9


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

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

Docket No. 10-279
Issued: August 12, 2010

Case Submitted on the Record

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

JURISDICTION
On November 19, 2009 appellant filed a timely appeal from an October 19, 2009 decision
of the Office of Workers’ Compensation Programs. Under 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained left hip, left leg and lower
back injuries in the performance of duty.
FACTUAL HISTORY
Appellant, a 56-year-old postmaster, filed a traumatic injury claim for benefits on
February 28, 2008 alleging a popping sensation in her left hip while lifting a tub of flat mail on
February 27, 2008. She further alleged that her left leg gave out later that day while she was
descending a flight of stairs.

On March 7, 2008 the Office advised appellant that she needed to submit additional factual
and medical evidence in support of her claim. It provided her 30 days to submit the requested
information.
In a February 28, 2008 report, Dr. Kelly Miller, a chiropractor, diagnosed sacral vertebral
subluxation with associated sprain/strain of pelvic girdle muscles, muscle spasm and sciatica.1
On April 3, 2008 she documented her course of treatment throughout March 2008. Appellant
did not undergo x-ray tests during these examinations.
In a decision dated April 11, 2008, the Office denied appellant’s claim finding that the
evidence was not sufficient to establish a left hip or left leg injuries on February 27, 2008.
On January 7, 2009 Dr. James P. Fitzgerald, Board-certified in orthopedic surgery, stated
that appellant had experienced difficulty with pain in her left hip since the February 27, 2008
work incident. He advised that the pain was predominantly on the lateral side of her hip and
occasionally radiated into her thigh. Appellant continued to be active in spite of her pain.
Dr. Fitzgerald noted that she was able to walk without difficulty and had excellent range of
motion in the left hip with good straight leg raise and no obvious atrophy, however, she was
exquisitely tender over the superior portion of her greater trochanter. He reviewed x-rays taken
six months before and advised that they showed no significant degenerative changes.
Dr. Fitzgerald diagnosed trochanteric bursitis and administered a cortisone injection to
ameliorate pain.
In a March 4, 2009 report, Dr. Fitzgerald advised that the injection he administered in
January 2009 did not provide relief. Appellant continued to complain of left hip pain which
extended into the buttock, thigh and down to the left foot, in addition to numbness and tingling.
Dr. Fitzgerald was unaware that appellant’s injury had occurred at work; however, he now
considered this to be a workers’ compensation issue. On examination appellant appeared to be
neurologically intact with less tenderness over the greater trochanter and a very positive straight
leg raise. Dr. Fitzgerald found that appellant had a ruptured disc, most probably L5-S1 on the
left. He stated that appellant’s injury was definitely work related, although she was not currently
disabled from her work. Dr. Fitzgerald recommended that appellant undergo a magnetic
resonance imaging (MRI) scan and referred her to a neurosurgeon.
In a March 12, 2009 report, Dr. Ryan P. Den Haese, neurosurgeon, stated that appellant
had lumbar degenerative disc disease with vacuum disc phenomenon at L4-5, sacroiliac joint
pain and lumbar radiculopathy to the left lower extremity. Appellant rated her complaints of
pain as 6 out of 10 in severity. Dr. Den Haese noted complaint of numbness and pain radiating
down the posterolateral aspect of the left leg into the lateral aspect of the foot, into the first and
second digits, with hip joint pain in her buttock and gluteal region, minimal pain on palpation of
her hips and severe pain to deep palpation of the S1 joint. He advised that appellant’s range of
motion was somewhat limited in her back and was accompanied by pain. Dr. Den Haese noted
that standing, lifting, bending and sitting exacerbated her symptoms. He stated that x-rays of

1

Dr. Miller is not listed as the chiropractor of record in these reports. Appellant identified Dr. Miller as her
treating chiropractor for this period during the July 17, 2009 hearing.

2

May 14, 2008 showed vacuum disc phenomena at L4-5, severe loss of disc height and
degenerative disc disease at L3-4 with slight retrolisthesis.
By letter dated March 23, 2009, appellant’s attorney requested an oral hearing, which was
held on July 17, 2009.
In a March 26, 2009 report, Dr. Fitzgerald advised that appellant continued to experience
pain in her low back, buttock and into the hip region with occasional numbness that extended
down into her leg. He initially considered her condition to be trochanteric bursitis; but after
observing that she did not respond to treatment, he concluded that she had a disc pathology, most
probably at L5-S1 on the left. Dr. Fitzgerald advised that appellant’s present problems were the
direct result of her claimed employment injury. He noted that she had experienced symptoms
throughout this time period.
In an x-ray report dated May 14, 2008, Dr. Russell Elwell, a Board-certified radiologist,
stated that the left hip joint was unremarkable, with no fracture or dislocation in the left hip. He
advised that lumbar x-rays showed severe diffuse degenerative disc disease with severe
intervertebral disc height loss, discogenic endplate sclerosis and endplate osteophytes.
Appellant submitted records documenting chiropractic treatment from September 2003
through July 2008. She also submitted physical therapy records dated May 2008 to May 2009.
In an October 19, 2009 decision, an Office hearing representative affirmed the April 11,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, the Office must first be determined whether a “fact of injury” has been
established. 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.5
2

5 U.S.C. § 8101 et seq.

3

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

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

3

Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.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 her 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.
ANALYSIS
The Office accepted that appellant lifted a tub of flat mail on February 27, 2008. The
question of whether an employment incident caused a personal injury can only be established by
probative medical evidence.9 Appellant has not submitted sufficient medical evidence to establish
that the February 27, 2008 employment incident caused her back or leg conditions.
The reports from Dr. Miller, a chiropractor, diagnosed sacral vertebral subluxation with
associated sprain/strain of pelvic girdle muscles, muscle spasm and sciatica. These reports are
not considered as probative medical evidence under section 8101(2), as the chiropractor did not
diagnosis subluxation based on x-rays.10 The records of Dr. Miller do not support that he
obtained an x-ray to support the diagnosis he provided. In addition, the reports from a physical
therapist are of no probative medical value. A physical therapist is not a physician as defined
under section 8101(2).11
Appellant submitted reports from Dr. Fitzgerald and Dr. Den Haese. On January 7, 2009
Dr. Fitzgerald diagnosed trochanteric bursitis based on her history of experiencing left hip pain
since the February 27, 2008 work incident. He stated that x-rays taken six months prior had
demonstrated no significant degenerative changes. Dr. Fitzgerald administered a cortisone
injection to appellant in January 2009 but it did not provide relief. Following further medical
review he considered appellant’s condition to be a ruptured disc at L5-S1 on the left.
Dr. Fitzgerald referred appellant to Dr. Den Haese, a neurosurgeon, who diagnosed lumbar
degenerative disc disease with vacuum disc phenomenon at L4-5, sacroiliac joint pain and
6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

7

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

8

Id.

9

Carlone, supra note 5.

10

See 5 U.S.C. § 8101(2) (the term physician includes chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist and subject to regulation by the Secretary).
11

Id.; A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

4

lumbar radiculopathy to the left lower extremity. He noted that numbness and pain radiating
down the posterolateral aspect of appellant’s left leg into with left hip joint pain in her buttock
and gluteal region, minimal pain on palpation of her hips, stiffness and severe pain to deep
palpation of the S1 joint. Dr. Den Haese advised that x-rays from May 14, 2008 showed vacuum
disc phenomena at L4-5, severe loss of disc height and degenerative disc disease at L3-4 with
slight retrolisthesis. On March 26, 2009 appellant continued to complain of low back, buttock,
hip pain and numbness radiating into the left leg. Dr. Den Haese stated that he had changed his
diagnosis from trochanteric bursitis to a left-sided L5-S1 pathology based on her responses to his
prescribed courses of treatment and her consistent symptomatology since the February 27, 2008
work incident.
Although Dr. Fitzgerald and Dr. Den Haese provided diagnoses of appellant’s condition,
they did not adequately address how her back or leg conditions were causally related to the
February 27, 2008 work incident. In assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality; the opportunity for
and thoroughness of examination, the accuracy and completeness of the physician’s knowledge
of the facts and medical history, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion, are facts which determine the weight to be given
to each individual report.12 The medical reports of record do not explain how picking up a tub of
mail would cause or contribute to either the left hip symptomatology or aggravate the degenerative
disc disease of her lumbar spine. There is insufficient rationalized evidence in the record that
appellant’s left hip, leg or low back conditions are work related. Appellant failed to provide fully
rationalized, probative medical opinion relating her current condition to any factors of her
employment.
The Office advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the February 27, 2008 incident would have caused the
claimed condition. Accordingly, she did not establish an injury on that date. The Office properly
denied her claim for compensation.
CONCLUSION
The Board finds that appellant failed to establish that she sustained injuries to her left hip,
left leg or low back on February 27, 2008.

12

Michael S. Mina, 57 ECAB 379 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 15-0166
Issued: May 10, 2016

Case Submitted on the Record

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

JURISDICTION
On November 3, 2014 appellant filed a timely appeal from a September 23, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established bilateral hearing loss causally related to factors
of his federal employment.
FACTUAL HISTORY
On April 15, 2014 appellant, then a 77-year-old retired general foreman, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

exposure to high levels of noise in his federal employment. He first became aware of his
condition and of its relationship to his employment on January 1, 2012. Appellant notified his
supervisor on April 15, 2014. A supervisor noted that appellant had retired effective July 3,
1992, which was also the last date of exposure to the conditions alleged to have caused his
bilateral hearing loss. Appellant explained that he had not filed a claim within 30 days after
injury because he was not aware of his hearing loss until recently.
On April 22, 2014 OWCP requested additional factual and medical evidence from
appellant. It also requested that the employing establishment respond to its inquiries regarding
his duties and facts surrounding the claimed injury.
In a checklist for filing a federal occupational hearing loss claim dated March 25, 2014,
appellant stated that he had no history of ear or hearing problems and no hobbies involving
exposure to loud noise. He noted that he was last exposed to hazardous noise at work in
July 1992.
Appellant submitted his employment history on March 25, 2014. From April 5, 1954
through 1968, he worked as an electrician for the employing establishment aboard ships and in
engine rooms, and was exposed to noise for eight hours per day. Hearing protection was not
provided. From 1968 through 1969, appellant worked as an electrician for a private-sector
employer (Anaconda Brass and Copper) in a smelter, and was exposed to noise for eight hours
per day. Hearing protection was not provided. From 1969 through 1988, he worked as an
electrician for the employing establishment and was exposed to noise generated by tools for eight
hours per day. Hearing protection was not provided. From 1988 through 1990, appellant
worked as a planner man for the employing establishment, and was exposed to noise from
tradesmen working onboard a ship for four hours per day. Hearing protection was not provided.
From 1990 through 1992, appellant continued to work as a general foreman for the employing
establishment, and was exposed to noise from cranes responsible for train movement for eight
hours per day. For this last position, appellant was provided with safety devices for hearing
protection and used them.
Appellant submitted audiograms from a hearing conservation program dated from
March 20, 1969 through April 28, 1992. The audiogram performed on March 20, 1969 reflected
testing at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second and revealed the
following: right ear 15, 10, 10, and 10 decibels; left ear 15, 10, 5, and 20 decibels. The
audiogram performed on April 28, 1992 tested the same frequency levels and revealed the
following: right ear 10, 15, 15, and 20 decibels; left ear 10, 15, 15, and 25 decibels.
On May 12, 2014 appellant responded to OWCP’s inquiries. He noted that he was
enrolled in a hearing conservation program and had filed his claim in a timely manner.
On May 21, 2014 the employing establishment submitted a noise assessment worksheet
for appellant detailing his noise exposure over the course of his federal employment. From
April 7, 1969 through October 7, 1979, appellant was an electrician and was exposed to sound
levels from 79 through 89 decibels continuously and from 85 through 110 decibels
intermittently. From October 7, 1979 through July 27, 1985, he was a shop planner and was
exposed to sound levels from 79 through 89 decibels continuously and from 85 through 110

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decibels intermittently. From July 27, 1985 through February 15, 1987, appellant was a planner
and estimator and was exposed to sound levels from 79 through 89 decibels continuously and
from 85 through 110 decibels intermittently. From February 16, 1987 through January 19, 1990,
he was a crane operator foreman and was exposed to sound levels from 80 through 90 decibels
intermittently. From January 19, 1990 through July 3, 1995, appellant was a transportation
general foreman and was exposed to sound levels from 62 through 92 decibels intermittently.
By letter dated June 17, 2014, the employing establishment noted that the majority of
appellant’s exposure to industrial noise would have occurred while employed as an electrician
from April 7, 1969 through October 7, 1979. After this time period, appellant’s position required
him to spend approximately 50 percent of his time in an office environment with noise levels
below 80 decibels.
By decision dated September 23, 2014, OWCP denied appellant’s claim. It stated that he
had failed to establish the factual component of fact of injury, as the evidence was insufficient to
establish that he experienced noise exposure sufficient to cause a hearing loss. OWCP further
stated that appellant had not established that, at the time of his retirement from the employing
establishment, he had sustained hearing loss as a result of work-related noise exposure. It also
noted that he had not submitted sufficient medical evidence to establish work-related hearing
loss in connection with activities of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

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An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses.
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.6
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish bilateral
hearing loss causally related to factors of his federal employment.
The Board has recognized that a claimant may be entitled to a schedule award for hearing
loss, even after exposure to hazardous noise has ceased, if causal relationship is supported by the
medical evidence of record.8 Appellant submitted hearing conservation records from the
employing establishment, which demonstrate his exposure to noise and a record of hearing loss
over the period of employment. As such, appellant established that he sustained occupational
noise exposure. However, there is no medical evidence of record from a qualified physician
documenting current hearing loss. Without a diagnosis from a qualified physician that appellant
has hearing loss, appellant has not met his burden of proof to establish occupational hearing loss,
nor has he met his burden of proof to warrant further development by OWCP on the issue of
occupational hearing loss.
As such, the Board finds that there is no medical evidence to establish hearing loss
causally related to his employment. 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 his condition was caused, precipitated or aggravated by
his employment, is sufficient to establish causal relationship.9 Causal relationship must be
established by rationalized medical opinion evidence. As noted, the medical evidence is
insufficient to establish appellant’s claim. Consequently, OWCP properly found that he did not
meet his burden of proof in establishing his claim.
5

Gregory J. Reser, 57 ECAB 277 (2005).

6

I.J., 59 ECAB 408 (2008).

7

James Mack, 43 ECAB 321 (1991).

8

See J.R., 59 ECAB 710, 713 (2008).

9

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

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish bilateral
hearing loss causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the September 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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