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

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

Docket No. 14-0560
Issued: November 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 14, 2014 appellant filed a timely appeal from an October 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective July 10, 2013 as he no longer had any residuals or disability causally
related to his accepted employment-related injury.
FACTUAL HISTORY
On October 28, 2000 appellant, then a 46-year-old mail clerk, filed an occupational
disease claim. He claimed that on October 26, 2000 he had developed a left shoulder condition
1

5 U.S.C. § 8101 et seq.

with neck pain from operating a bar code sorting machine. OWCP accepted appellant’s claim
for left shoulder strain and paid compensation benefits.
On January 4, 2002 appellant filed a claim for recurrence of total disability on
January 2, 2002. OWCP paid compensation for temporary total disability and placed him on the
periodic rolls. On April 25, 2002 appellant underwent an authorized left shoulder distal clavicle
resection and left shoulder acromioplasty, performed by Dr. Richard L. Uhl, a Board-certified
orthopedic surgeon.
Appellant filed a separate occupational disease claim for elbow and wrists conditions as
of April 5, 2001 under file number xxxxxx107. OWCP accepted bilateral carpal tunnel
syndrome and lateral epicondylitis.
In 2002, it consolidated the claims with file
number xxxxxx465, as the master file. On October 18, 2002 and on January 3, 2003 Dr. Uhl
also performed left and right side carpal tunnel releases, respectively.
In April 2003, Dr. Uhl requested approval for a left lateral epicondylectomy and
requested that her claim should be expanded to include a right shoulder condition due to over
compensation on the right for weakness on the left. In an April 29, 2003 letter, OWCP advised
appellant that the medical evidence was insufficient to support either request.
On July 21, 2003 Dr. Uhl noted that OWCP had denied surgical treatment for the left
elbow and workup for the right shoulder and he opined that appellant was totally disabled and
not able to work in any meaningful capacity. Appellant was not able to use his hands for any
lifting or repetitive motion and had severe pain with any motion of the left elbow. Further, he
could not use his shoulders to reach overhead. In a July 14, 2004 report, Dr. Uhl opined that
appellant had reached maximum medical improvement on January 1, 2004 but that the problems
with his left shoulder, left elbow, and right and left hands had worsened.
OWCP referred appellant for a second opinion to Dr. John Buckner, a Board-certified
orthopedic surgeon. In a December 20, 2004 report, Dr. Buckner set forth findings on
examination and determined that appellant’s work-related conditions had resolved and he could
return to work with restrictions for the left shoulder.
In a January 19, 2005 report, Dr. Uhl reviewed Dr. Buckner’s report and reiterated that
appellant had no useful function of the left upper extremity. He did not alter his earlier opinions.
OWCP found a conflict of medical opinion between Dr. Uhl and Dr. Buckner as to
appellant’s residual disability and work capacity. It referred appellant to Dr. Paul G. Jones, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a May 16, 2005
report, Dr. Jones noted that appellant had poor motion in his left shoulder but was capable of
working two hours with his right upper extremity; that he could not work above waist level with
his left arm; and that these work restrictions were permanent. In an August 29, 2005 addendum,
he noted that he had erroneously listed that appellant could work only two hours a day with
restrictions. Dr. Jones clarified that appellant could work eight hours a day. He also noted his
agreement with Dr. Uhl’s impairment findings for the left and right upper extremities.
In June 2006, OWCP received medical reports from Dr. Kerry Ricker, an osteopath and
family medicine physician. Dr. Ricker reported chronic left shoulder pain secondary to a
2

previous surgery and repetitive trauma from a previous job, ongoing pain, limited flexion and
extension of the hands, and left elbow pain.2
In progress reports dated 2007 through 2009, Dr. Ricker listed left upper extremity
findings of decreased range of motion, weakness, and numbness with little improvement. She
opined that appellant remained disabled. In progress reports dated 2010 and 2011, Dr. Ricker
opined that he had chronic nerve damage in his wrists, impingement of the left shoulder with loss
of range of motion, and arthritis. She opined that appellant continued to be permanently disabled
and that there was a direct causal relationship between his disability and his job, which required
chronic repetitive movement.
In November 2011, OWCP received an October 25, 2011 left elbow x-ray which was
reported as unremarkable. The results of a November 1, 2011 magnetic resonance imagining
(MRI) scan of the left elbow revealed a high grade partial thickness tear and tendinopathy of the
common extensor tendon.
In a November 9, 2011 report, Dr. Suheil M. Khuri, a Board-certified orthopedic surgeon,
provided a history of the injury and found on examination some tenderness over the lateral
epicondyle, restricted movement in his shoulder, and pain associated with the previous surgery.
He confirmed that the November 1, 2011 MRI scan showed a high grade partial thickness
common extensor tendinopathy and partial tearing consistent with lateral epicondylitis, as well as
changes in the biceps consistent with a partial tearing or tenosynovitis, with similar changes in
the triceps. Dr. Khuri diagnosed chronic left elbow strain and tendinitis, mostly lateral
epicondylitis with some biceps and medial epicondylitis. He advised that elbow surgery was not
warranted at that time and prescribed physical therapy and steroid injection.
OWCP prepared an updated statement of accepted facts dated February 27, 2012 and
referred appellant to Dr. Edwin E. Mohler, a Board-certified orthopedic surgeon, for a second
opinion examination. In an April 12, 2012 report, Dr. Mohler reviewed the statement of
accepted facts, the medical records of file and a surveillance digital versatile disc (DVD) which
had been provided to OWCP by the employing establishment.3 He noted findings on
examination and advised that appellant’s pain complaints were in excess of objective findings
suggesting symptom magnification. Dr. Mohler outlined his review of appellant’s activities on
the investigative DVD, noting that appellant used his left arm and extended his left elbow. He
stated that the observed activities did not substantiate appellant’s statements made to him during
the evaluation. Based on appellant’s observed activities, Dr. Mohler found no orthopedic
rationale for appellant to remain off work. He was unable to justify an orthopedic impairment as
it affected the function of appellant’s upper extremities in relation to the accepted conditions.
2

Appellant was separated from the employing establishment and approved for disability retirement as of
April 26, 2007.
3

In a September 23, 2011 investigative memorandum, the employing establishment’s Office of the Inspector
General had transmitted a DVD containing surveillance video of appellant between March 2010 and April 2011
showing observations of appellant shoveling snow, snow blowing, lifting a snow blower, carrying bricks in each
hand, cleaning dog droppings, shopping, lifting, and moving cases of soda, using hand-held power tools, driving,
and other tasks. The report indicated that appellant often used both hands and his efforts frequently involved
repetitive motions, bending, stooping, lifting, reaching, walking, and standing.

3

Dr. Mohler noted that the November 2011 MRI scan of the left elbow had no relationship to the
accepted claim of October 26, 2000. He concluded that the accepted conditions had resolved and
that appellant could work full duty. Dr. Mohler stated that, although appellant had known
preexisting impairments, appellant was able to return to his preinjury job as a clerk on a full-time
basis. This was evidenced by his potential and the capabilities demonstrated in the observed
activities in March 2010, and January, February, March, and April 2011, as those activities
negated any current disability.
By notice dated May 24, 2012, OWCP proposed to terminate appellant’s wage-loss and
medical compensation benefits based on the second opinion report of Dr. Mohler. In a June 11,
2012 letter, appellant requested an extension and a copy of the referenced investigative DVD.
By decision dated July 11, 2012, OWCP terminated his wage-loss and medical
compensation benefits effective that date. The weight of the medical evidence was accorded to
Dr. Mohler’s medical opinion.
On August 8, 2012 appellant requested an oral hearing. By decision dated November 1,
2012, an OWCP hearing representative performed a preliminary review of the case and reversed
the July 11, 2012 OWCP decision. He found that Dr. Mohler’s opinion was deficient as it was
not based on a complete statement of accepted facts and it had failed to provide sufficient
rationale for finding that all residuals of the accepted conditions had resolved. The hearing
representative requested that OWCP revise its statement of accepted facts and request a
supplemental report from Dr. Mohler as to whether residuals remained of the accepted conditions
and surgeries. Appellant’s benefits were reinstated retroactive to July 11, 2012.
Pursuant to a September 3, 2012 request, on December 4, 2012 OWCP provided
appellant a copy of the surveillance DVD.
On remand, OWCP prepared an updated statement of accepted facts that included a
description of appellant’s job duties as a postal clerk and, on December 18, 2012, it requested
clarification from Dr. Mohler. In the November 26, 2012 supplemental report, Dr. Mohler stated
that during physical examination, appellant exhibited exaggerated pain behaviors. He found no
evidence of tendinitis, no evidence of carpal tunnel syndrome, and no impairment to his vascular
status of his upper extremities. There was no atrophy of the musculature of appellant’s hand or
of his upper extremities and he provided nonphysiological response to sensory examination.
Dr. Mohler noted that multiple physicians, who had been treating and examining appellant over
the years, had referenced a psychogenic overlay and he provided a list of those physicians. He
noted that no residuals remained from the accepted conditions/surgeries as there was a lack of
any objective findings on physical examination. Dr. Mohler noted the disconnect between the
observed activities on the DVD compared to appellant’s presentation to him, as well as other
physicians, over the years in concluding that there was no orthopedic rationale preventing him
from working in his usual capacity without restrictions. He further stated that given appellant’s
clinical presentation, lack of identifying evidence of carpal tunnel or tendinitis in his upper
extremities on physical examination, and the capabilities he demonstrated on DVD, it did not
matter what job he was assigned as he could perform any work without restrictions.

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OWCP determined that a conflict in medical opinion existed between the opinions of
Dr. Mohler and Dr. Ricker, as to appellant’s disability and work capacity. It referred appellant to
Dr. Kuhrt Wieneke, Jr., a Board-certified orthopedic surgeon. In an April 22, 2013 report,
Dr. Wieneke reviewed the statement of accepted facts, the medical evidence of record, the
surveillance DVD and job descriptions. He noted a history of the injury and the accepted
conditions of lateral epicondylitis both elbows, carpal tunnel syndrome both wrists and left
shoulder sprain with resulting surgery. Dr. Wieneke noted his review of the surveillance photos
and reports and noted that in three surveillances, between February and April 2011, appellant
was shown with limited use of his left arm to the point of shoveling snow and sweeping snow
from his car and snow blower using only his right arm, accompanied by grimacing and limping
during these activities. Such pain behavior was not noted in surveillance on three separate days
between March 2010 and April 2011. Dr. Wieneke noted that, in the forwarded photos of
surveillance, appellant appeared to be using both upper extremities symmetrically, specifically
on April 2, 2011, carrying bricks with both hands and, on April 9, 2011, carrying large grocery
bags, one in each hand. He noted that, while Dr. Ricker suggested that appellant had rotator cuff
surgery on the left, he did not. The surgery was specifically an acromioplasty, as well as a
resection of the outer clavicle, which is usually a result of arthritic changes in the
acromioclavicular joint. Dr. Wieneke noted that Dr. Ricker was responsible for appellant’s
medications, including chronic high dose of oral narcotics. He opined that because Dr. Ricker is
appellant’s treating physician and was using long-term high-dose narcotics as part of the
treatment regimen, she loses objectivity.
Dr. Wieneke noted that physicians who had previously evaluated appellant independently
had concluded that his pain complaints in his left shoulder, left elbow and both wrists
substantially outweighed any physical positive findings. He recommended that appellant be
weaned from narcotics, especially in light of the evidence of major symptom magnification.
Dr. Wieneke noted that appellant had giveaway weakness in his left shoulder, left elbow and
both wrists, all which were accompanied by facial grimacing, loud outcries of pain, sudden
jerking motion in both upper and lower extremities and an insistence on remaining in a standing
position. He noted that when appellant walked into the examining room, appellant leaned
forward and substantially to his right and, when he left the office, he leaned forward and sharply
to his left. Dr. Wieneke also observed appellant in the parking lot leaning to his right and not
using his left upper extremity which was hanging at his side.
Dr. Wieneke found there was no sensory loss in either hand, no muscle atrophy on the
thenar or hypothenar sides and Tinel’s sign testing was negative. Wrist flexion and extension
testing were negative on both sides and range of motion findings were provided. Both shoulders
were symmetrical in appearance, with no forearm or arm atrophy and musculature was normal
on palpation, percussion, and resisted activities. Dr. Wieneke stated that appellant’s shoulders
were stable and there was a mild loss of motion in the left shoulder girdle, but appellant claimed
he had no active use of his left shoulder girdle. Strength of pinch and grasp were normal with no
sensory deficit on either side. No abnormality was found about either elbow. Dr. Wieneke
opined that appellant’s behavior was bizarre and he had obvious pain modification.
Dr. Wieneke opined that appellant was not disabled, based on his physical findings nor
based on the surgeries performed on his left shoulder and both wrists. He opined that appellant
was capable of working full time as a mail processor, according to the position description.

5

Dr. Wieneke further opined that there was evidence of a left shoulder arthroplasty,
acromioclavicular joint, which was a long-term preexisting condition and had little, if any,
relationship to the repetitive work activities of a postal clerk. He opined that carpal tunnel
syndrome had largely resolved and appellant’s two percent impairment of each wrist was
appropriate. Dr. Wieneke further opined that there was no remaining evidence of lateral
epicondylitis in either elbow. He found that appellant had reached maximum medical
improvement, there was no disability from work, and he was capable of returning to his regular
work as a postal clerk.
On June 6, 2013 OWCP issued a notice of proposed termination. The special weight of
the medical evidence was accorded to the impartial medical opinion of Dr. Wieneke.
In a June 28, 2013 statement, appellant questioned how Dr. Wieneke could observe him
coming into his office as he had been dropped off. He argued that Dr. Wieneke’s examination
was brief and he had misunderstood several of appellant’s statements. Appellant argued that
Dr. Jones, an impartial medical specialist, had found him disabled due to his injuries in 2005 and
that this opinion should outweigh the opinion of Dr. Wieneke.
By decision dated July 10, 2013, OWCP terminated appellant’s wage-loss and medical
compensation benefits effective that day based on the opinion of Dr. Wieneke.
On July 18, 2013 appellant requested a review of the written record before an OWCP
hearing representative. By decision dated October 22, 2013, the hearing representative affirmed
the July 10, 2013 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.4 Its burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.5 Furthermore, the right to medical benefits for an accepted
condition is not limited to the period of entitlement for disability. To terminate authorization for
medical treatment, OWCP must establish that a claimant no longer has residuals of an
employment-related condition which require further medical treatment.6
Section 8123(a) of FECA 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.7 The implementing regulations
4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

7

5 U.S.C. § 8123(a).

6

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.8 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.9
ANALYSIS
OWCP accepted the claim for left shoulder sprain with left shoulder surgery on
April 25, 2002, bilateral/lateral epicondylitis and bilateral carpal tunnel syndrome with releases
in 2003. On July 10, 2013 it terminated appellant’s compensation benefits effective that day
based on the opinion of the impartial medical examiner, Dr. Wieneke. The issue to be
determined is whether OWCP met its burden of proof to terminate appellant’s medical and
wage-loss benefits.
Dr. Mohler, OWCP’s second opinion physician, examined appellant in April 2012. In
reports dated April 12 and November 25, 2012, he found no objective findings of the accepted
conditions and opined that there was no residual impairment or disability from the accepted
conditions. Dr. Mohler concluded that, based on his observed activities, appellant could return to
his preinjury job as clerk on a full-time basis.
Dr. Ricker, the treating physician, opined that appellant had chronic nerve damage in his
wrists and impingement of the left shoulder with loss of range of motion and arthritis and that he
continued to be permanently disabled.
To resolve this conflict, OWCP referred appellant to Dr. Wieneke pursuant to 5 U.S.C.
§ 8123 for an impartial medical opinion. Dr. Wieneke was provided with appellant’s medical
record, a statement of accepted facts, and the surveillance DVDs. In an April 22, 2013 report, he
reviewed appellant’s history of injury and medical record, and provided findings on examination.
Dr. Wieneke opined that appellant was capable of working full time as a mail processor,
according to the position description.
Dr. Wieneke noted that, while there was evidence of a left shoulder arthroplasty in the
acromioclavicular joint, it was for a long-term preexisting condition which had little, if any,
relationship to repetitive work activities as a postal clerk. He opined that carpal tunnel syndrome
had largely resolved with a minor amount of impairment in each wrist and that there was no
remaining evidence of lateral epicondylitis in either elbow. Dr. Wieneke opined that appellant
had reached maximum medical improvement, there was no evidence of disability from work, and
that he was capable of returning to his regular work as a postal clerk. He noted examples of

8

20 C.F.R. § 10.321.

9

Gloria J. Godfrey, 52 ECAB 486 (2001); Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

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appellant’s behavior and opined that he had obvious pain magnification and should be weaned
from his long-term, high dose, narcotic use.
The Board finds that the opinion of the impartial medical specialist is based on a
complete factual and medical background, is sufficiently well rationalized, and should be
accorded special weight in resolving whether appellant has any disabling residuals or disability
from his accepted conditions. At the time benefits were terminated, Dr. Wieneke had clearly
opined that appellant had no work-related reason for disability. His report also concluded that
appellant had exhibited multiple episodes of symptom magnification and secondary gain.
Dr. Wieneke’s opinion as set forth in his April 22, 2013 report is probative and reliable. Neither
appellant nor his treating physician, Dr. Ricker, has submitted evidence of medical treatment
since September 2012.
On appeal, appellant argued that OWCP improperly determined the issue of the case and
retaliated against him through denial of compensation for his accepted injuries. However, these
allegations are unsubstantiated. The intent of FECA is to return an injured employee to gainful
employment; it is not a retirement program. The special weight of the medical evidence, as
accorded to Dr. Wieneke’s opinion, establishes that appellant no longer has any disabling
residuals from his accepted injuries and can return to his preinjury position.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation for the
accepted conditions in this case.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.10
Issued: November 12, 2015
Washington, DC

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

Michael E. Groom, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective December 27, 2014.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bigfork, MT, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2076
Issued: June 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2009 appellant, through her attorney, filed a timely appeal from an
April 3, 2009 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed the termination of her compensation benefits for refusing suitable
work. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
September 25, 2008 on the grounds that she refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c).
On appeal, appellant’s counsel contends that the Office failed to follow its procedures in
terminating her benefits.

FACTUAL HISTORY
This is the second appeal before the Board. In a November 5, 2007 decision, the Board
affirmed a September 12, 2006 Office decision that denied wage-loss compensation for
intermittent periods of disability from February 22 to March 2 and 6, 2006. The Board found,
however, that appellant was entitled to wage-loss compensation for March 3, 2006. The history
of the case as set forth in the Board’s prior decision is incorporated herein by reference.1
During the pendency of the prior appeal the issue of appellant’s work capacity was under
development. On January 12, 2007 appellant accepted a light-duty job offer working five hours
a day with Sundays off. The listed job duties included one hour of manual mail distribution;
one-half hour of express, registry and carrier checkout; and three and one-half hours of post
office box distribution. Physical restrictions for the position were listed as five hours of standing
and sitting; five hours of simple grasping and three hours of intermittent bending, stooping and
twisting.
In a June 19, 2007 report, Dr. Kenneth V. Carpenter, a second opinion Board-certified
orthopedic surgeon, diagnosed C4-5 degenerative disc disease. He noted that appellant
continued to experience neck pain and headaches as a result of her accepted employment injury.
Dr. Carpenter advised that appellant was currently working five hours a day, which was
appropriate and he expected no change in her work hours. He stated, however, that, if
appellant’s duty was increased to eight hours a day, “increased restrictions would need to be
placed upon her lifting, standing and walking activities.” Dr. Carpenter based her work
restrictions on a five-hour day when he completed the attached work capacity evaluation form.
In addition to working and standing, he allowed up to two hours a day of reaching above the
shoulder; no squatting; and up to four hours a day of pushing, pulling and lifting up to 10
pounds. Dr. Carpenter checked “yes” to the question of whether appellant was capable of
working an eight-hour day on the work capacity evaluation form.
On June 22, 2007 Dr. Steven Johnson, an attending physician, concurred with the
restrictions recommended by Dr. Carpenter’s report. In a June 26, 2007 report, he agreed that
appellant was capable of working five hours a day and restricted lifting to no more than 10
pounds.
On August 17, 2007 Dr. Johnson indicated that appellant was limited to working five
hours per day with restrictions. Restrictions included intermittent lifting/carrying up to 10
pounds and intermittent sitting, standing, walking, climbing stairs, kneeling, driving,
pushing/pulling, simple grasping and fine manipulation.
On November 5, 2007 the Office referred appellant to Dr. Michael Sousa, a Boardcertified orthopedic surgeon, to resolve a conflict in medical opinion evidence between
Dr. Johnson, her attending physician, and Dr. Carpenter, a second opinion Board-certified
orthopedic surgeon, as to appellant’s work restrictions.
1

On February 2, 2001 appellant, then a 48-year-old postal clerk, filed an occupational disease claim alleging that
her degenerative cervical disc disease had been caused or aggravated by her employment. The Office accepted the
claim for cervical degenerative disc disease.

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In a November 27, 2007 report, Dr. Sousa reviewed the history of injury and medical
treatment, statement of accepted facts and provided findings on physical examination. He
diagnosed cervical degenerative disc disease and found that appellant was capable of working a
six-day work week for five hours a day with permanent restrictions including a 10-pound weight
restriction. In an attached work capacity evaluation form, Dr. Sousa provided restrictions
including two to three hours per day of walking and standing; up to one hour per day of reaching
and reaching above the shoulder, no climbing; and two to four hours per day of pushing, pulling
and lifting up to 10 pounds.
On June 3, 2008 the employing establishment offered appellant the position of mail
processing clerk working five hours a day with Saturday and Sunday as her days off based on the
work restrictions provided by Dr. Sousa. Physical requirements included lifting, pushing, pulling
up to 10 pounds for nor more than two to four hours per day, no climbing, walking/standing no
more than two to three hours and no reaching above the shoulder more than one hour. The duties
of the position included opening unit-express registered/carrier/checkout, post office box
distribution, NOV verification and manual letter distribution. It noted that appellant had been
performing such duties since May 4, 2007 and that it was not available on a permanent basis to
her. Appellant rejected the job offer on June 14, 2008 contending that the position required the
repetitive work which was aggravating her condition.
On July 28, 2008 the Office received a March 24, 2008 report from Dr. Johnson, who
noted that appellant was seen for complaint of increased neck pain which she attributed to her
repetitive work duties. Dr. Johnson opined that appellant’s repetitive work involved use of her
arms at or above shoulder height while exacerbated her neck pain. He recommended that
appellant’s work duties be limited as to the repetitive motion required to minimize exacerbation
of her neck pain.
In a July 1, 2008 letter, the Office notified appellant that it had reviewed the employing
establishment’s light-duty offer and found it suitable to her medical limitations. It confirmed
that the position was available and notified her that she would be paid for any difference in pay
between the offered position and her date-of-injury job. The Office advised appellant that she
was expected to accept the position within 30 days or provide a written explanation of her
reasons for rejecting the offer otherwise her compensation would be terminated.
In a letter dated July 23, 2008, appellant noted that her condition was inoperable and that
Dr. Johnson had found that her repetitive work duties aggravated her cervical condition.
On August 22, 2008 the Office reviewed appellant’s July 23, 2008 statement but noted
that she did not provide a sufficient reason for refusing the offered position. It advised that the
weight of the medical evidence rested with Dr. Sousa, who found that she was capable of limited
duty within the provided restrictions. The Office notified appellant that she had 15 additional
days to accept the offer or her benefits would be terminated.
The Office subsequently received letters dated August 12 and September 5, 2008 from
appellant who advised that she had returned to work on July 31, 2008, but stopped work on
August 12, 2008 due to pain.

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In a September 23, 2008 memorandum to file, the employing establishment related that
appellant had returned to work but refused to sign the job offer. It noted that she had a history of
returning to work but then stopping. Appellant had also applied for disability retirement.
By decision dated September 25, 2008, the Office terminated appellant’s compensation
benefits effective that day on the grounds that she failed to accept suitable employment. It
reviewed the offered light-duty position of customer representative and found that the position
was suitable and within the work restrictions provided by Dr. Sousa, who represented the weight
of the medical evidence.
On October 4, 2008 appellant requested an oral hearing before an Office hearing
representative that was held on February 13, 2009. She was represented by counsel.
In an April 3, 2009 decision, the Office hearing representative affirmed the
September 25, 2008 decision terminating appellant’s compensation benefits based on her refusal
of an offer of suitable work.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.2 Under section 8106(c)(2) of the Act, the Office may terminate
the compensation of a partially disabled employee who refuses or neglects to work after suitable
work is offered to, procured by or secured for the employee.3 To justify termination, the Office
must show that the work offered was suitable and must inform appellant of the consequences of
refusal to accept such employment.4 Section 8106(c) will be narrowly construed as it serves as a
penalty provision, which may bar an employee’s entitlement to compensation based on a refusal
to accept a suitable offer of employment.5
When the Office considers a job to be suitable, it shall advise the employee of its finding
and afford her 30 days to either accept the job or present any reasons to counter the Office’s
finding of suitability.6 If the employee presents such reasons and the Office determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days in which to accept the offered work without penalty.7 After

2

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

3

5 U.S.C. § 8106(c)(2); see also Mary E. Woodard, 57 ECAB 211 (2005); Geraldine Foster, 54 ECAB
435 (2003).
4

T.S., 59 ECAB ___ (Docket No. 07-1686, issued April 24, 2008); Ronald M. Jones, 52 ECAB 190 (2000).

5

Richard P. Cortes, 56 ECAB 200 (2004); Joan F. Burke, 54 ECAB 406 (2003).

6

20 C.F.R. § 10.516.

7

Id. However, the 15-day notification need not explain why the Office found the employee’s reasons for refusal
unacceptable. Id.

4

providing the 30-day and 15-day notices, the Office will terminate the employee’s entitlement to
further compensation.8 However, the employee remains entitled to medical benefits.9
ANALYSIS
The employing establishment offered appellant a position on June 3, 2008. The Office
found the position to be suitable to her work limitations and notified appellant of the
consequences of refusal to accept a suitable position. By letter dated August 22, 2008, afforded
appellant a final opportunity to accept the position.10 The September 25, 2008 Office decision
makes a finding that appellant had refused an offer of suitable work. The record indicates,
however, that she returned to work on July 31, 2008 at the employing establishment and
attempted to perform the assigned duties before stopping work eight days later.
The Office may terminate compensation under 5 U.S.C. § 8106(c)(2) if a claimant
neglects to work or, as the Office procedures states, abandons the job.11 Such a termination,
however, must follow appropriate procedural requirements. In Coralisia L. Sims (Smith), the
Board explained that, when a claimant returns to work, even for a brief period, she is entitled to
notice and an opportunity to respond to the specific grounds for the termination.12 In Sims
(Smith) the Office sent a letter to the employee regarding the consequences of refusing an offer
of suitable work; however, the Office did not provide notice of an opportunity to respond to the
issue of neglecting or abandoning suitable work. Office procedures require that a claimant be
advised of the consequences of abandoning a job under 5 U.S.C. § 8106(c)(2) and allowed 30
days to submit reasons for abandoning the job.13
As appellant had returned to work, the Office should have notified appellant and provided
her with an opportunity to present reasons for abandoning the job. Since it did not follow its
procedures for neglecting or abandoning suitable work, the Board finds that it did not properly
terminate compensation under 5 U.S.C. § 8106(c)(2).

8

20 C.F.R. § 10.517(b). This includes compensation for lost wages as well as compensation for any permanent
loss of use of a schedule member. Id.; see 5 U.S.C. §§ 8105, 8106 and 8107.
9

20 C.F.R. § 10.517(b).

10

With respect to the procedural requirements of termination under section 8106(c), the Board has held that the
Office must inform appellant of the consequences of refusal to accept suitable work and allow appellant an
opportunity to provide reasons for refusing the offered position. If she presents reasons for refusing the offered
position, the Office must inform the employee if it finds the reasons inadequate to justify the refusal of the offered
position and afford appellant a final opportunity to accept the position. Maggie L. Moore, 42 ECAB 484 (1991),
reaff’d on recon., 43 ECAB 818 (1992).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.10 (December 1995).
12

46 ECAB 172 (1994). The employee returned to work and was sent to a training session for approximately two
hours before being instructed to report to her job using a letter sorting machine. She contended that the chair at the
machine was unsuitable and stopped work.
13

5 U.S.C. § 8106 (c)(2).

5

CONCLUSION
The Office did not meet its burden of proof to terminate compensation pursuant to
5 U.S.C. § 8106(c)(2) on September 25, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2009 is reversed.
Issued: June 8, 2010
Washington, DC

David S. Gerson, 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
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hazelwood, MO, Employer
__________________________________________

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

Docket No. 15-448
Issued: May 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 19, 2014 appellant filed a timely appeal from a July 10, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
further merit review. As more than 180 days elapsed from the last merit decision of February 24,
2014 to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal. The Board may not consider new evidence for the first time
on appeal as its review of a case is limited to the evidence that was before OWCP at the time it issued its final
decision. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On August 16, 2011 appellant, then a 47-year-old mail handler, filed a claim for injuries
to her neck and left arm while putting trays on the belt. OWCP accepted the claim for a cervical
strain, left trapezius sprain, and left shoulder sprain and paid benefits. Appellant was provided
conservative medical care, including physical therapy.
On September 7, 2011 Dr. Sheikh M. Zahid, an internist, released appellant to return to
her regular-duty position. He reported normal shoulder examination, noting that range of motion
was normal and tests were negative. There was no tenderness of the shoulder, including the
biceps tendon.
On November 18, 2013 appellant filed a Form CA-2a, notice of recurrence, claiming a
need for additional medical care for her accepted work-related conditions. She was on
limited/light duty and had a torn rotator cuff of the left shoulder. No supporting documentation
was received with the claim. By letter dated December 17, 2013, OWCP advised appellant that
additional factual and medical information was needed to establish a recurrence of injury and
provided her 30 days in which to submit the requested information. No further factual or
medical evidence was received. By decision dated February 24, 2014, OWCP denied the
recurrence claim beginning November 18, 2013 as the evidence was insufficient to establish a
worsening of appellant’s accepted work-related conditions.
On June 16, 2014 appellant requested reconsideration. In a May 23, 2014 statement, she
stated that her primary care physician advised her that surgery would not help her condition and
that she required pain management therapy. Appellant further stated that her injury had
worsened and that she had seen a specialist. She advised that she had nerve damage in her hand,
but could not afford therapy. Appellant stated that treatment was necessary as the pain from her
injuries caused hypertension. No medical information was submitted.
By decision dated July 10, 2014, OWCP denied reconsideration without reviewing the
merits of the case.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.5 When a claimant fails to
3

Under section 8128(a) of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

2

meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.6
ANALYSIS
The issue is whether appellant has submitted sufficient evidence relevant to the issue of
whether she has sustained a recurrence of the accepted injury. Her request for reconsideration
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. While appellant indicated in her May 23, 2014 statement that her injury had worsened,
that is a medical determination.7 Her lay opinion on the cause of her condition is insufficient to
discharge her burden of proof. The Board has held that lay individuals are not competent to
render a medical opinion.8 Consequently, appellant was not entitled to a review of the merits
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(2).
The Board also finds that appellant did not provide any relevant or pertinent new
evidence warranting the reopening of the case on the merits. While appellant advised that she
had a torn rotator cuff of the left shoulder, she submitted no medical evidence from a physician
to support that diagnosis or which contained a medical explanation as to the relationship between
her current condition and the accepted August 16, 2011 work incident or accepted conditions.
Thus, there is no evidence sufficient to reopen her claim for further merit review.
The Board finds that appellant did not show that OWCP erroneously interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered by OWCP. Appellant did not
meet any of the regulatory requirements and OWCP properly declined to reopen her claim for
further merit review.9
On appeal, appellant contends that her injuries are worsening and the record does not
contain a lot of submitted documentation.10 However, as noted above, she submitted no medical
evidence to support her recurrence claim. While appellant indicated that her occupational
disease claim with her right hand was ignored, the Board notes that a right hand condition is not
part of this claim.11
6

Id. at § 10.608(b).

7

See D.G., Docket No. 06-1400 (issued October 10, 2006).

8

Gloria J. McPherson, 51 ECAB 441 (2000).

9

A.K., Docket No. 09-2032 (issued August 3, 2010) (when an application for reconsideration does not meet at
least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits); M.E., 58 ECAB 694 (2007); Susan A.
Filkins, 57 ECAB 630 (2006).
10

Appellant submitted new evidence with her appeal. The Board may not consider new evidence for the first
time on appeal as its review of a case is limited to the evidence that was before OWCP at the time it issued its final
decision. See 20 C.F.R. § 501.2(c).
11

See A.L., Docket No. 08-1730 (issued March 16, 2009).

3

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Iowa City, IA, Employer
__________________________________________

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

Docket No. 08-1546
Issued: December 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated March 5, 2008, which denied modification of a
July 18, 2007 decision denying his claim for a traumatic injury. Pursuant to 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 appellant has met his burden of proof in establishing that he
sustained a right shoulder injury in the performance of duty.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 56-year-old maintenance mechanic, filed a Form CA-1,
traumatic injury claim alleging that on February 13, 2007 he was removing a chain hoist from a
trolley and injured his right shoulder. He did not stop work. Appellant’s supervisor noted that
he failed to timely report this shoulder injury.

By letter dated June 13, 2007, the Office noted that there was insufficient evidence to
establish the claimed employment incident. It also noted that appellant did not submit medical
evidence, which diagnosed a medical condition resulting from the February 13, 2007
employment incident. The Office asked appellant to submit a reasoned medical opinion from his
treating physician explaining how specific work factors or incidents contributed to his claimed
right shoulder injury.
Appellant submitted an April 12, 2007 report from Dr. James L. Donahue, a Boardcertified internist, who treated him for right shoulder pain. He reported right shoulder pain since
September 2004, with no clear injury but he claimed an exacerbation of his shoulder condition
when he grabbed a hoist at work several weeks earlier. Appellant noted that he did not fill out an
injury report at the time of the incident and thought it may be problematic for him to report it at
this time. Dr. Donahue noted appellant’s history was significant for right shoulder calcific
tendinitis and mild osteoarthritis diagnosed by x-ray in September 2004. He noted right shoulder
examination findings of decreased range of motion and minimally impaired rotation.
Dr. Donahue diagnosed suspected moderate impingement syndrome or a possible rotator cuff
tear with known osteoarthritis of the shoulder. An April 30, 2007 right shoulder magnetic
resonance imaging (MRI) scan revealed a small full thickness tear of the supraspinatus, stenosing
tenosynovitis of the long head of the biceps and a degenerative slap tear. Appellant submitted
physical therapy notes from May 30 to June 18, 2007.
Appellant was treated by Dr. John Flint, a Board-certified internist, on May 29, 2007 for
right shoulder pain and decreased range of motion. Dr. Flint noted that an old x-ray revealed
osteoarthritis. He opined that this was possibly a remote injury that was reinjured when
appellant grabbed a cable at work. Appellant reported pulling a chain in February 2007 and
experiencing an immediate onset of right shoulder pain. Dr. Flint diagnosed right traumatic
small supraspinatus tear and recommended physical therapy for six weeks. On June 19, 2007 he
diagnosed right rotator cuff tear and provided work restrictions of no lifting greater than 10
pounds and no overhead activity. In a work ability note dated May 29, 2007, Dr. Flint advised
that appellant could return to work with restrictions of carrying limited to 40 pounds and no use
of the right arm above the shoulder.
By decision dated July 18, 2007, the Office denied appellant’s claim on the grounds that
the evidence was insufficient to establish that he sustained the alleged injury on
February 13, 2007. It found that the initial evidence was insufficient to establish that appellant
experienced the claimed incident on February 13, 2007.
On November 16, 2007 appellant requested reconsideration. He indicated that he delayed
filing his claim because, when the injury occurred, he thought it was an aggravation of his
existing shoulder condition and did not realize the severity of the injury or that he tore the rotator
cuff. Appellant submitted a statement from George Harris, a coworker, who assisted appellant
with the trolley on February 13, 2007 and noted that he informed him that he pulled a muscle in
his shoulder. In another statement dated September 20, 2007, Robert L. Marshall, a coworker,
noted that during the first week of February 2007 appellant complained of right shoulder pain
and indicated that he injured his arm when he removed a chain hoist. In a June 22, 2007

2

statement, Richard C. Johns1 of the employing establishment noted that appellant reported
sustaining a right shoulder injury in February 2007, when a chain pulled on his right arm. He
diagnosed right, small supraspinatus tear and opined that, based on appellant’s history and
absence of other trauma, the incident of February 2007, was most likely the cause of his right
rotator cuff tear.
Appellant also submitted an October 10, 2006 health care provider certificate from
Dr. Donahue who treated him for low back and bilateral shoulder pain. Dr. Donahue noted
examination findings including bilateral shoulder pain with palpable tenderness and joint
osteophytes. He advised that appellant developed a back condition in 2002 and a shoulder
condition in September 2004. Dr. Donahue noted that appellant’s back and shoulder episodes
occurred every four to six months and lasted one to three days. He recommended physical
therapy and set forth work restrictions when appellant’s symptoms were active.
In a decision dated March 5, 2008, the Office denied appellant’s request for modification
of the prior decision. It found that the factual evidence and the medical evidence were
insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an federal employee of the United States within the meaning of the Act, that the
claim was filed within the applicable time limitation 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 is causally related to the employment injury. 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
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident, which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee

1

It is unclear from the record whether this individual is a physician.

2

Id.

3

Gary J. Watling, 52 ECAB 357 (2001).

4

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

3

must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
ANALYSIS
The Office denied appellant’s claim on the grounds that he failed to establish that the
events occurred as alleged. It is not disputed that appellant’s duties as a maintenance mechanic
involved lifting and removing chain hoists from trolleys and the use of his right shoulder.
Appellant’s supervisor did not dispute appellant’s work duties or that he was performing his
work duties on or about February 13, 2007. Appellant explained why he did not sooner file a
claim and he provided a consistent history of the incident that is consistent with what was
reported on medical reports including a report from Dr. Donahue dated April 12, 2007, which
noted that he exacerbated his right shoulder condition when he grabbed a hoist and jerked it
while working several weeks ago. Other reports from Dr. Flint from May 29, 2007 noted that
appellant reinjured his right shoulder when he pulled a cable in February 2007 and had an
immediate onset of right shoulder pain. Statements from appellant’s coworkers also indicate that
he reported the claimed injury to them contemporaneous with its occurrence. The Board finds
that appellant’s statements are consistent with the surrounding facts and circumstances and thus
has established that he experienced the employment incident on February 13, 2007 as alleged.
The Board finds, however, that the medical evidence is insufficient to establish that
appellant developed a right shoulder condition causally related to his employment duties. On
June 13, 2007 the Office advised appellant of the type of medical evidence needed to establish
his claim. Appellant did not submit a medical report from an attending physician addressing
how specific employment factors may have caused or aggravated his claimed condition.
In his April 12, 2007 report, Dr. Donahue noted that appellant reported right shoulder
pain since September 2004, with no apparent injury but noted having an exacerbation of his right
shoulder condition when he grabbed a hoist and jerked it at work. Dr. Donahue noted findings
and diagnosed suspected moderate impingement syndrome or a possible rotator cuff tear with
5

Id.

6

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

7

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

4

known osteoarthritis of the shoulder. However, he appears merely to be repeating the history of
injury as reported by appellant without providing his own opinion regarding whether his
condition was work related.8 To the extent that Dr. Donahue is providing his own opinion, he
failed to provide a rationalized opinion regarding the causal relationship between appellant’s
condition and the factors of employment believed to have caused or contributed to such
condition.9 In an October 10, 2006 certificate of a health care provider form, Dr. Donahue noted
treating appellant for low back pain in 2002 and bilateral shoulder pain in 2004 with palpable
tenderness and joint osteophytes. However, this evidence is of no value in establishing the
claimed traumatic injury of February 13, 2007 since it predates the time of the claimed injury.
Appellant submitted reports from Dr. Flint, dated May 29 and June 19, 2007, who treated
him for right shoulder pain and decreased range of motion. He reported that he pulled a chain in
February and had an immediate onset of right shoulder pain. Dr. Flint diagnosed right traumatic
small supraspinatus tear. He noted appellant’s history of osteoarthritis and opined that his
condition was possibly a remote injury that was reinjured when appellant grabbed a cable at
work. Although Dr. Flint noted that appellant’s condition was “possibly” work related, he
couched his opinion in speculative terms. The Board has held that medical opinions which are
speculative or equivocal in character have little probative value.10 Therefore, this report is
insufficient to meet appellant’s burden of proof.
Appellant also submitted a statement from Mr. Johns dated June 22, 2007, who noted a
history of injury and diagnosed right, small supraspinatus tear. Mr. Johns opined that, based on
appellant’s history and absence of other trauma, the incident of February 2007 was most likely
the cause of his right rotator cuff tear. The Board notes that it is unclear from the record if
Mr. Johns is a physician11 and even if he is considered a physician, his opinion is speculative at
best, noting that the incident of February 2007 is “most likely” the cause of appellant’s right
rotator cuff tear. Therefore, this report is insufficient to meet appellant’s burden of proof.
Likewise, notes from a physical therapist are insufficient to establish appellant’s claim as a
physical therapist is not a physician under the Act.12 Therefore, these notes do not establish
appellant’s claim.
The remainder of the medical evidence, including an MRI scan of the right shoulder
dated April 30, 2007, fails to provide an opinion on the causal relationship between appellant’s

8

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

See Jimmie H. Duckett, supra note 7.

10

See Frank Luis Rembisz, supra note 8.

11

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
See also D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification cannot be considered as probative
evidence in support of a claim).
12

See id; David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under the Act).

5

job duties and his diagnosed conditions. For this reason, this evidence is not sufficient to meet
appellant’s burden of proof.
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 is
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.13 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied his claim for compensation.
CONCLUSION
The Board therefore finds that appellant failed to establish that he developed an
employment-related injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2008 and July 18, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed as modified.
Issued: December 19, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.A., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION EARLE, Colts Neck, NJ,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1652
Issued: May 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 22, 2020 appellant, through counsel, filed a timely appeal from an April 2,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of the
claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological changes
in the extremities causally related to his accepted January 18, 2018 employment injury.
FACTUAL HISTORY
On January 18, 2018 appellant, then a 54-year-old materials handler, filed a traumatic
injury claim (Form CA-1) alleging that on that date he strained and bruised his low back when he
slipped on ice and fell backward on concrete stairs while in the performance of duty. He stopped
work on January 19, 2018.
In a January 29, 2018 report, Dr. Nasser Ani, a Board-certified orthopedic surgeon,
recounted appellant’s complaints of lower back pain and numbness and tingling in the lower
extremities following a January 18, 2018 slip and fall incident at work. He reported lumbar
examination findings of mildly limited range of motion and muscle stiffness. Straight leg raise
testing was positive on the left. Dr. Ani diagnosed lumbar intervertebral disc displacement, lumbar
intervertebral disc degeneration, and lumbar radiculopathy.
In a January 29, 2018 attending physician’s report (Form CA-20), Dr. Ani noted a
January 18, 2018 date of injury. He reported that an x-ray scan showed abnormal findings of
degenerative disc disease at L4-5 and L5-S1 with disc bulge and herniation at L3-S1, intervertebral
disc degeneration, lumbar radiculopathy, and lumbar spondylosis. Dr. Ani checked a box marked
“Yes” indicating that appellant’s condition was caused or aggravated by the described employment
activity. He noted “aggravated by slip [and] fall at work.”
In a February 1, 2018 work capacity evaluation form (Form OWCP-5c), Dr. Ani indicated
that appellant was unable to work.
In a February 14, 2018 development letter, OWCP informed appellant that, when his claim
was first received, it appeared to be a minor injury that resulted in minimal or no lost time from
work and; therefore, payment of a limited amount of medical expenses was administratively
approved without formal consideration of the merits of his claim. It, however, reopened his claim
for consideration of the merits because he had not yet returned to full-time work, and that his claim
would now be formally adjudicated. OWCP advised appellant of the deficiencies of his claim,
requested additional factual and medical evidence, and provided a questionnaire for his
completion. It afforded him 30 days to respond.
OWCP subsequently received reports and referral notes dated February 12 through
March 19, 2018 by Dr. Ani. Dr. Ani recounted the January 18, 2018 employment incident and
noted appellant’s continued complaints of lumbar pain with numbness and tingling in the lower
extremities. He provided examination findings and diagnosed lumbar intervertebral disc
displacement, lumbar intervertebral disc degeneration, lumbar radiculopathy, and lumbar
spondylolisthesis.

2

On February 20, 2018 appellant underwent a lumbar spine magnetic resonance imaging
(MRI) scan, which revealed disc bulges at L3-4, L4-5, and L5-S1 with herniation at L3-4 and L45, Grade 1 listhesis at L5-S1, and moderate L3-4 central canal stenosis.
In a March 5, 2018 work status form, Dr. Ani indicated that appellant could work with
restrictions of no pushing, no pulling, and no heavy manual labor.
On March 5, 2018 appellant accepted a light-duty job offer with the employing
establishment.
In a March 21, 2018 letter, Dr. Ani related that on January 29, 2018 he examined appellant
and diagnosed lumbar disc herniation, degeneration, and lumbar radiculopathy. He opined that
these diagnoses were directly caused by appellant’s traumatic injury that occurred at work when
he slipped and fell down on stairs. Dr. Ani provided examination findings. He explained that a
diagnosis of disc herniation would occur with a sudden jerking of the spine, which occurred when
appellant slipped and fell due to black ice. Dr. Ani indicated that this mechanism of injury was
synonymous with the description appellant provided and would also causes a spondylolisthesis
when the vertebra slips forward and the spine becomes unstable. He reported that appellant’s
preexisting lumbar condition was aggravated by the January 18, 2018 work accident.
In a March 23, 2018 decision, OWCP denied appellant’s claim. It accepted that the
January 18, 2018 incident occurred as alleged and that lumbar conditions had been diagnosed;
however, it denied his claim, finding that he had had not established causal relationship between
the accepted employment incident and the diagnosed conditions.
On April 17, 2018 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review. By decision dated July 25, 2018, the hearing representative set
aside the March 23, 2018 decision and remanded the case for additional development of the
medical evidence.
Appellant submitted lumbar operative reports dated December 13, 2002 and April 20,
2005, which indicated that he underwent left L4-5 hemilaminectomy, left medial facetectomy, and
left microlumbar discectomy.
OWCP subsequently referred appellant, along with a statement of accepted facts (SOAF),
a copy of the case record, and a series of questions, to Dr. Howard M. Pecker, a Board-certified
orthopedic surgeon, for a second opinion evaluation regarding whether appellant sustained a
medical condition causally related to the January 18, 2018 employment incident. In a
September 27, 2018 report, Dr. Pecker accurately described the January 18, 2018 employment
incident and discussed the medical records that he had reviewed. He indicated that appellant’s low
back pain had markedly improved. Upon examination of appellant’s lumbar spine, Dr. Pecker
observed no paravertebral spasm. Neurologic testing of the lower extremities revealed decreased
strength in the right ankle and cavus deformity of the right foot. Dr. Pecker reported that appellant
sustained a temporary aggravation of preexisting lumbar degenerative disease on January 18, 2018
that would have ceased after three months of the slip and fall injury.
By decision dated October 17, 2018, OWCP accepted appellant’s claim for temporary
aggravation of preexisting degenerative changes of the lumbar spine.
3

By separate decision of even date, OWCP denied appellant’s claim for lumbar
radiculopathy, lumbar degenerative disc changes, and neurological changes in the extremities. It
found that the medical evidence of record was insufficient to establish causal relationship between
these diagnosed conditions and the accepted January 18, 2018 employment incident.
On October 25, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on March 11, 2019.
Appellant continued to receive treatment from Dr. Ani and submitted reports and referral
notes dated December 3, 2018 through January 24, 2019. Dr. Ani recounted appellant’s
complaints of low back pain, numbness, and tingling in the lower extremities. He provided
examination findings and diagnosed intervertebral disc displacement of the lumbar spine,
intervertebral disc degeneration of the lumbar spine, lumbar radiculopathy, lumbar
spondylolisthesis, and lumbar spondylolysis. In a December 26, 2018 report, Dr. Ani noted his
disagreement with Dr. Pecker’s September 27, 2018 report and asserted that appellant also
sustained lumbar herniation and listhesis as injuries related to the January 18, 2018 work incident.
In a March 5, 2019 letter, Dr. Bruce R. Rosenblum, a Board-certified neurosurgeon,
indicated that appellant was under his care for lumbar radiculopathy and was scheduled for lumbar
spine surgery on March 8, 2019.
By decision dated April 16, 2019, an OWCP hearing representative set aside the
October 17, 2018 decision. He found that a conflict in medical opinion evidence existed between
Dr. Ani, appellant’s treating physician, and Dr. Pecker, an OWCP second opinion examiner,
regarding whether appellant sustained additional conditions causally related to the January 18,
2018 employment injury. As such, the hearing representative remanded the case for referral for
an impartial medical examination in order to resolve the conflict of medical evidence.
OWCP subsequently referred appellant, along with an updated SOAF,3 for an impartial
medical examination to resolve the conflict of medical evidence. In a May 27, 2019 report,
Dr. Ian B. Fries, a Board-certified orthopedic surgeon serving as an impartial medical examiner
(IME), noted his review of the SOAF and appellant’s medical records. He noted that the SOAF
did not include appellant’s accepted diagnosis. Dr. Fries described the January 18, 2018 work
injury and noted that appellant had previous lumbar surgeries in 2002 and 2005. Upon physical
examination, he observed that appellant walked with a normal gait, but could not tiptoe on the
right. Examination of appellant’s lower extremities revealed clear atrophy of his right calf,
compared to the left, and mild varus in his left knee. Dr. Fries reported that lumbar examination
demonstrated full range of motion and no tenderness about his low back. He indicated that current
findings were consistent with chronic preexisting problems temporarily aggravated on
January 18, 2018. Dr. Fries explained that no mechanism of injury could cause multilevel
degenerative changes. He also reported that, while the neurological changes in the right lower
extremity were new, these findings were not consistent with a slip and fall trauma. In response to
OWCP’s questions, Dr. Fries indicated that he could not provide all diagnoses or conditions

3
The SOAF, dated April 18, 2019, did not mention accepted appellant’s claim for temporary aggravation of
preexisting degenerative changes of the lumbar spine.

4

causally related to the January 18, 2018 employment incident without recent medical records,
including MRI scan and operative findings.
In a June 4, 2019 letter, Dr. Rosenblum indicated that appellant was status post lumbar
spine surgery and may return to light duty on June 4, 2019.
In a June 24, 2019 development letter, OWCP requested that appellant provide a copy of
the March 8, 2019 operative report and all medical records from Dr. Rosenblum. It afforded him
30 days to submit the requested information.
On July 19, 2019 OWCP received Dr. Rosenblum’s March 8, 2019 operative report, which
noted preoperative diagnoses of status post prior left L4-5 decompression and microdiscectomy
with recurrent left lumbar radiculopathy and left L3-4 lateral recess subarticular neural foraminal
stenosis. Appellant also submitted a March 2, 2019 lumbar spine MRI scan, which revealed stable
grade 1 anterolisthesis of L5 upon S1, prior left hemilaminectomy at L4-5 with no residual or
recurrent disc herniation, and moderate-to-severe canal stenosis, as well as left paracentral disc
herniation with annular fissure at L3-4.
In a July 30, 2019 letter, Dr. Rosenblum indicated that appellant was status post lumbar
spine surgery and was to remain on light-duty sedentary work for an additional eight weeks.
In an August 16, 2019 addendum report, Dr. Fries noted his review of the July 22, 2019
SOAF and additional medical records. He indicated that the March 8, 2019 surgery revealed
findings consistent with residuals of prior operations and spinal degeneration and no specific
traumatic injury findings. Dr. Fries explained that no disc herniation was noted during the surgery.
In response to OWCP’s questions, he responded that there were no additional lumbar spine or
lower extremity conditions causally related to the January 18, 2018 work injury.
By decision dated September 13, 2019, OWCP denied expansion of appellant’s claim to
include degenerative disc changes of the lumbar spine, lumbar radiculopathy, and neurological
changes in the extremities. It found that the special weight of the medical evidence rested with
Dr. Fries, the IME, who determined in May 27 and August 16, 2019 reports that appellant did not
have any disability, residuals nor additional conditions causally related to the accepted January 18,
2018 employment injury.
On September 19, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on January 17, 2020.
By decision dated April 2, 2020, the hearing representative affirmed the September 13,
2019 decision.

5

LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.4
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.5 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.6 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
employment injury.7
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, OWCP shall
appoint a third physician (known as a referee physician or IME) who shall make an examination.8
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.9 When there exists opposing
medical reports of virtually equal weight and rationale and the case is referred to an IME for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological
changes in the extremities causally related to his accepted January 18, 2018 employment injury.
OWCP properly determined that a conflict in medical evidence existed between appellant’s
treating physician, Dr. Ani, who diagnosed additional employment-related conditions, and
Dr. Pecker, who determined that the only condition causally related to the January 18, 2018
employment incident was temporary aggravation of preexisting lumbar degenerative disease,
4
J.R., Docket No. 20-0292 (issued June 26, 2020); W.L., Docket No. 17-1965 (issued September 12, 2018); V.B.,
Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200, 204 (2004).
5

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

6

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

Id.

8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

10
K.D., Docket No. 19-0281 (issued June 30, 2020); J.W., Docket No. 19-1271 (issued February 14, 2020);
Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

resolved. It referred him to Dr. Fries for an impartial medical examination to resolve the conflict
in medical evidence, pursuant to 5 U.S.C. § 8123(a).
In a May 27, 2019 report, Dr. Fries described the January 18, 2018 work injury and noted
appellant’s preexisting lumbar injury. He reported that examination of appellant’s lower
extremities revealed atrophy of the right calf, compared to the left, and mild varus in the left knee.
Examination of appellant’s lumbar spine demonstrated full range of motion and no tenderness
about his low back. Dr. Fries indicated that his current findings were consistent with chronic
preexisting problems temporarily aggravated on January 18, 2018. He explained that, while the
neurological changes in the right lower extremity were new, these findings were not consistent
with a slip and fall trauma. In an August 16, 2019 addendum report, Dr. Fries noted his review of
the updated SOAF and additional medical records. He concluded that there were no additional
lumbar spine or lower extremity conditions causally related to the January 18, 2018 work injury.
The Board finds that Dr. Fries accurately described the accepted employment injury and
noted his review of the medical record, including the updated July 22, 2019 SOAF. Dr. Fries
performed a thorough clinical examination and provided detailed findings. He is a specialist in
the appropriate field and reached a reasoned conclusion regarding whether appellant’s claim
should be expanded, noting that there was no evidence to find causal relationship between
additional lumbar and lower extremity conditions and the accepted employment injury.11
Dr. Fries’ opinion, as set forth in his May 27 and August 16, 2019 reports, constitute probative and
reliable evidence. The Board, therefore, finds that Dr. Fries’ opinion is entitled to the special
weight accorded to an IME with regard to the issue of whether acceptance of appellant’s claim
should be expanded to include additional lumbar and lower extremity conditions.12 Consequently,
appellant has not met his burden of proof to expand the accepted conditions of his claim.
On appeal counsel argues that Dr. Fries’ medical opinion was not sufficiently rationalized
to exclude additional lumbar conditions, specifically paracentral disc herniation at L3-4. As
explained above, however, Dr. Fries’ medical opinion was sufficiently rationalized to establish
that appellant did not sustain additional conditions causally related to the accepted January 18,
2018 employment injury and, thus, was entitled to the special weight of the medical evidence.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include lumbar radiculopathy, lumbar degenerative disc disease, and neurological
changes in the extremities causally related to his accepted January 18, 2018 employment injury.

11

See R.R., Docket No. 19-0086 (issued February 10, 2021); see also D.S., Docket No. 18-0353 (issued
February 18, 2020).
12

W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, TRAINING
ACADEMY, Quantico, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0811
Issued: March 9, 2020

Case Submitted on the Record

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

JURISDICTION
On March 7, 2019 appellant filed a timely appeal from a January 17, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment.

1
Appellant timely requested oral argument pursuant to the Board’s Rules of Procedure. 20 C.F.R. § 501.5(b). By
order dated December 10, 2019, the Board exercised its discretion and denied the request, finding that the arguments
on appeal could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket
No. 19-0811 (issued December 10, 2019).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 8, 2018 appellant, then a 29-year-old special agent trainee, filed an
occupational disease claim (Form CA-2) alleging that he sustained sharp chest pain and heavy
breathing while shooting at the firing range and running from class to class. He did not stop work.
In a development letter dated February 12, 2018, OWCP informed appellant that the
evidence submitted was insufficient to establish his claim. It advised him of the type of evidence
needed, including a reasoned medical report from a physician providing an opinion on causal
relationship. In an attached questionnaire, OWCP asked appellant about “exposure to substances
such as paint, fumes, solvents, etc. that contributed to his pulmonary condition.” In a separate
letter of even date, it asked the employing establishment to comment on his exposure to substances
and provide results of air sampling and safety data.
Appellant submitted a February 6, 2018 emergency department report in which
Dr. Douglas Sturm, an osteopath Board-certified in emergency medicine, noted a history of chest
pain with light activity, worsened by movement, and deep breaths. He described examination
findings of normal heart rate and rhythm, normal heart sounds, and normal pulses. Appellant was
not in respiratory distress, and breath signs were normal. Two electrocardiograms were performed.
Each showed early repolarization. Dr. Sturm diagnosed atypical chest pain and referred appellant
to Dr. Anna Czajka, a Board-certified cardiologist, for follow-up. A February 6, 2018 chest x-ray
showed no convincing evidence of acute thoracic disease.
In a report dated February 8, 2018, Dr. Czajka noted a history of left-sided chest pain
aggravated by deep breaths over the prior two weeks. She described examination findings and
diagnosed chest pain, unspecified, and abnormal electrocardiogram. Dr. Czajka recommended
additional studies.
In correspondence dated March 14, 2018, an employing establishment supervisory special
agent M.H., indicated that appellant’s injury/illness was consistent with his allegations. Further,
M.H. indicated no knowledge that appellant was exposed to harmful substances, fumes, dust, or
chemicals. The employing establishment also forwarded a position description coversheet for the
position of special agent.
By decision dated May 11, 2018, OWCP denied the claim finding that appellant had not
established fact of injury because the evidence submitted was insufficient to establish that the event
occurred as alleged.
On January 9, 2019 appellant requested reconsideration. He asserted that he was forced
against his will to go to the emergency room. Appellant maintained that his claimed injury was
caused by his required rigorous 20-week training cycle, and that if he had not gone to the medical
appointments he would have been deemed unable to complete his training. He noted that he was
only requesting reimbursement for funds covering the appointments. Appellant attached a
completed questionnaire in which he stated that when the injury occurred he was at the firing range
and was not inhaling irritants, and that he had been sent to the emergency room.

2

By decision dated January 17, 2019, OWCP found that appellant had established fact of
injury, but denied the claim because he had not submitted medical evidence that established a
diagnosis in connection with the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (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.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 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 incident.8
ANALYSIS
The Board finds that this case is not in posture for decision.
On February 8, 2018 appellant filed an occupational disease claim alleging that he
sustained sharp chest pain and heavy breathing while shooting at the firing range and running from
class to class. OWCP sent development letters to both him and the employing establishment on
February 12, 2018. Each letter, however, identified a claimed pulmonary condition rather than a

3

Id.

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Joe D. Cameron, 41 ECAB
153 (1989).
5

Id.

6

L.C., Docket No. 19-1301 (issued January 29, 2020).

7

D.L., Docket No. 19-1053 (issued January 8, 2020).

8

D.J., supra note 4.

3

cardiac condition, and requested further information regarding appellant’s exposure to substances,
including paint, fumes, and cleaning solvent etc.
OWCP’s procedures provide that it is responsible for requesting evidence in developing a
case, including all information needed to properly adjudicate a case.10 This includes issuing
development letters to a claimant and the employing establishment that are tailored to the specifics
of the individual case.11 OWCP did not appropriately tailor the development letter to the specific
allegations made in this case. Appellant did not allege exposure to substances such as paint, fumes,
or solvents, which could cause a pulmonary condition. Rather, he alleged chest pain and heavy
breathing while firing at a shooting range and running from class to class. The Board notes that,
while OWCP has accepted employment factors, it is unclear what factors are accepted, given the
discrepancy in the development of appellant’s claim. The Board also finds that, because OWCP
failed to send proper claim development letters requesting required information about a claimed
cardiac condition, rather than solely a pulmonary condition, appellant’s claim has not been
properly developed.12 The Board, therefore, finds that the case must be remanded to OWCP to
prepare appropriate development letters that properly identify a claimed cardiac event.
9

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.13 Once OWCP
undertakes development of the record, it must do a complete job in procuring evidence that will
resolve the relevant issues in the case.14 In this case it failed to properly develop the claim, and its
January 17, 2019 decision failed to make adequate findings on the issues presented. As OWCP
did not properly discharge its responsibilities in development of the record, the case will be
remanded to OWCP.
On appeal appellant maintains that he was forced against his will to go to the emergency
room by the employing establishment. OWCP, however, did not adjudicate the issue of whether
emergency or unusual circumstances were present, which would allow OWCP to exercise its
discretion for payment of medical expenses. Ordinarily, the employing establishment will
authorize treatment of a job-related injury by providing the employee a properly executed
authorization for examination and/or treatment (Form CA-16) within four hours of the alleged
injury. In this case, the record does not contain a CA-16 form or any other authorization from
OWCP for medical treatment. However, under section 8103 of FECA, OWCP has broad

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(2)
(June 2011); see W.B., Docket No. 19-1775 (issued December 18, 2019).
10

Federal (FECA) Procedure Manual, id. at Chapter 2.800.5.b(1).

11

Id.

12

See D.B., Docket No. 19-0443 (issued November 15, 2019).

13

W.B., supra note 9.

14

C.H., Docket No. 19-0255 (issued September 3, 2019).

4

discretionary authority to approve unauthorized medical care which it finds necessary and
reasonable in cases of emergency or other unusual circumstances.15
After this and other such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for proceedings
consistent with this decision of the Board.
Issued: March 9, 2020
Washington, DC

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

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

15
5 U.S.C. § 8103; 20 C.F.R. § 10.304. See J.W., Docket No. 19-0335 (issued July 2, 2019); see also supra note 9
at Part 3 -- Medical, Authorizing Examination and Treatment at Chapter 3.300.3a.(3) (February 2012).

5