United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA MEDICAL CENTER, Decatur, GA,
Employer
__________________________________________

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

Docket No. 15-595
Issued: June 2, 2015

Case Submitted on the Record

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

JURISDICTION
On January 23, 2015 appellant filed a timely appeal of a November 20, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a head injury in
the performance of duty on July 15, 2014, as alleged.
FACTUAL HISTORY
On July 18, 2014 appellant, then a 40-year-old nurse, alleged that she hit her head on an
open door of the Omnicell, which a logistics staff member was restocking on July 15, 2014. She
1

5 U.S.C. § 8101 et seq.

sought treatment in the employing establishment emergency room and received a diagnosis of
head trauma. Appellant underwent a computerized tomography (CT) scan of her head on
July 15, 2014 due to a closed head injury. This CT scan did not demonstrate any acute
intracranial abnormality.
In a statement dated July 18, 2014, Angela Weiss, a coworker, stated that on July 14,
2014 appellant walked into the open glass door of an Omnicell medical storage device. She
stated that she heard the impact. Ms. Weiss stated that she could tell by the look on appellant’s
face that she had been injured by the impact. Appellant stood still for a few minutes clutching
her head while groaning. Ms. Weiss asked if she was okay, and appellant replied, “no.” After a
few more moments, appellant seemed to lose her balance and sat down hard. She continued to
clutch her head. Ms. Weiss asked if appellant felt that she had lost consciousness and she stated,
“yes.” Appellant could recall her name and location, but was unable to state the day of the week
or recall any information about the incident she just experienced. Ms. Weiss determined that
appellant was unable to stand and walk and transferred her to the emergency department for
evaluation and treatment.
Vendola Lawrence, a coworker, submitted a statement dated July 17, 2014 and reported
that appellant hit the right side of her head on the corner of the Omnicell door. Appellant stood
exclaiming, “my head, my head,” for about three minutes and then sat on the floor.
Dr. Badar Syed, a Board-certified neurologist, examined appellant on August 7, 2014.
He stated on July 15, 2014 at work she suddenly developed sharp pain in the right side of her
scalp. Appellant lowered herself to the floor, but when she stood up she hit her head against the
counter top and briefly passed out. Since July 15, 2014 she experienced daily headaches,
dizziness, nausea, and visual disturbances. Dr. Syed diagnosed probable postconcussion
syndrome and stated that the possibility of traumatic vestibulopathy could not be excluded,
possible tension type headache and visual disturbance which was very unusual for a typical head
concussion.
In a letter dated October 17, 2014, OWCP requested additional factual and medical
evidence from appellant.
By decision dated November 20, 2014, OWCP denied appellant’s traumatic injury claim
finding that she failed to submit medical evidence including a firm diagnosis as a result of her
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
2

Id. at §§ 8101-8193.

2

injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7 The Board has held that medical opinions that
are speculative or equivocal in character diminish the probative value of the medical opinion.8
ANALYSIS
Appellant filed a traumatic injury claim alleging that on July 15, 2014 she hit her head on
the open door of a medical storage cabinet. She submitted witness statements regarding the
event. Appellant sought treatment in the employing establishment emergency room and received
a diagnosis of head trauma. However, there is no signature on this note and the Board is unable
to determine if this diagnosis was provided by a physician; therefore, it is of no probative value.9
Appellant also submitted a report from Dr. Syed dated August 7, 2014 which noted a
different history of injury and including a sharp pain prior to her traumatic incident. Dr. Syed
diagnosed probable postconcussion syndrome, possible tension type headache, possible
traumatic vestibulopathy, and visual disturbance. His diagnoses are speculative and equivocal.
Dr. Syed did not offer a clear opinion as to which, if any, of the offered diagnoses appellant
experienced and which, if any, resulted from her July 15, 2014 employment incident. Due to the
lack of evidence of a clear diagnosed medical condition resulting from appellant’s accepted
employment incident, the Board finds that appellant has not established her claim.
The Board finds that appellant has failed to submit sufficient medical opinion evidence to
establish that she sustained an injury in the performance of duty on July 15, 2014, as alleged.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

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

5

20 C.F.R. § 10.5(ee).

6

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

7

J.Z., 58 ECAB 529 (2007).

8

A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006).

9

See Merton J. Sills, 39 ECAB 572 (1988).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a traumatic injury in the performance
of duty on July 15, 2014, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Denver, CO, Employer
__________________________________________

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

Docket No. 12-937
Issued: January 7, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 13, 2012 appellant, through counsel, filed a timely appeal from a
December 30, 2011 decision of the Office of Workers’ Compensation Programs (OWCP)
concerning the denial of his traumatic injury claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a right shoulder injury on
May 6, 2011 in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 6, 2011 appellant, then a 61-year-old transportation security officer, filed a
traumatic injury claim alleging that he sustained a shoulder strain that day when he shifted his
weight forward while pushing a cart. He stumbled after being struck in the left heel by a gate.
The employing establishment noted there was no lost time from work but appellant sought
medical treatment.
In a May 6, 2011 report, Richard Shouse, a physician’s assistant, diagnosed a
trapezius/rhomboid strain. Appellant related that the injury occurred when a coworker closed a
gate on his left heel, which caused him to almost fall while pushing a cart. A physical
examination of the right shoulder revealed normal rotator cuff motion, no joint line tenderness
and tenderness in the mid-trapezius region from the shoulder to the neck. The remainder of
appellant’s shoulder examination was noted as unremarkable.
By letter dated May 17, 2011, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required to support his claim and given 30 days to provide this information.
In response to OWCP’s request, appellant submitted medical notes for the period
May through July 2011 from Mr. Shouse, who provided physical findings and diagnosed a
possible impingement syndrome, trapezius/rhomboid strain and right shoulder strain.
In a May 24, 2011 attending physician’s report (Form CA-20), Dr. James D. Fox, a
treating physician, diagnosed right trapezius/rhomboid strain. Under history of injury, he noted
that appellant’s heel got caught by a gate while pushing a cart and he sustained a strained
shoulder. X-ray interpretations were negative. Dr. Fox checked “yes” to the question as to
whether the diagnosed condition was employment related.
In a May 26, 2011 report, Dr. Fox provided a summary of his findings to OWCP. The
date of injury was May 6, 2011 with a resulting injury of right shoulder posterior strain along the
trapezius muscle from the neck to scapular region. Dr. Fox reported a negative x-ray
interpretation and full neck and shoulder range of motion. He opined that the May 6, 2011 work
incident was the cause of the right shoulder injury.
In a June 30, 2011 report, Dr. Mark S. Failinger, an examining Board-certified orthopedic
surgeon, diagnosed possible right shoulder subscapularis tear with possible biceps tendon
subluxation. He described the injury as occurring on May 6, 2011 when appellant was walking,
slipped and leaned forward. A review of x-rays revealed no obvious abnormalities. Physical
examination findings included some pain with abduction in the supraspinatus, 5-/5 strength, 170
degrees forward flexion and no redness or increased warmth in the shoulder. Dr. Failinger
recommended a magnetic resonance imaging (MRI) scan to ensure there was no full-thickness
tear.
On July 7, 2011 Dr. Fox diagnosed a right shoulder labral tear based on an MRI scan. He
noted that there was a question about causation of this condition and whether it was attributable
to the May 6, 2011 employment incident. Dr. Fox deferred to Dr. Failinger to address causation.

2

On July 14, 2011 Dr. Failinger diagnosed right shoulder probable rotator cuff strain,
pectoralis strain and a degenerative labral tear with possible acute-on-chronic component. A
physical examination revealed good external rotation, 160 degrees forward flexion with some
pain and no warmth, redness or instability. An injury date of May 6, 2011 was noted.
OWCP referred appellant to Dr. A.C. Lotman, a Board-certified orthopedic surgeon, for a
second opinion examination. On August 2, 2011 Dr. Lotman opined that there was no evidence
supporting a right shoulder injury due to the May 6, 2011 incident. The physical examination
revealed good cervical range of motion, some mild localized tenderness at C7, full right shoulder
range of motion, positive labral signs and no gross right shoulder instability. A review of the
videotape of the May 6, 2011 incident showed appellant pushing a cart with a cross-bar at
approximately lower chest level. At one point, appellant appeared to lift the cart and push it
forward with no sign of limping. He returned to his workstation, placing his right arm on the xray machine with his right shoulder in an elevated abducted position. No pain behavior was
seen. Appellant returned his right arm to his side and pointed at a coworker or passenger with no
signs of discomfort. Dr. Lotman concluded, based on his physical examination, review of
medical records and the videotape, that a right shoulder injury was not established. Appellant’s
physical examination findings after the employment incident showed a full cervical and shoulder
range of motion, no radiculopathy and no cervical tenderness. Four days after the May 6, 2011
incident, his physical examination findings were not supportive of a right shoulder injury. The
findings made four days after the May 6, 2011 incident included full range of cervical motion, no
cervical spine tenderness, full right shoulder range of motion with no pain, no radiculopathy and
4/5 right shoulder strength.
By decision dated August 12, 2011, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that he sustained a right shoulder condition due to the
accepted May 6, 2011 employment incident.
On August 17, 2011 appellant’s counsel requested a telephonic hearing, which was held
on November 16, 2011.
On September 20, 2011 Dr. Douglas A. Foulk, an examining Board-certified orthopedic
surgeon, diagnosed right posterior superior glenoid labrum tear. He reported the history of the
injury as occurring at work on May 6, 2011 when appellant stumbled forward while pushing a
cart after a coworker closed a gate on his left heel. The stumbling caused appellant to catch his
weight on the cart he was pushing, which resulted in an immediate onset of shoulder, neck and
foot pain.
In a September 28, 2011 report, Dr. Failinger diagnosed right rotator cuff tendinitis and
possible right shoulder posterior/superior labral tear. Appellant related that at the time of the
incident, he placed his weight on his right arm to prevent himself from falling. He immediately
noted right shoulder pain and reported it to his supervisor. Dr. Failinger reviewed a videotape of
the May 6, 2011 incident which did not show the right shoulder during the incident. The
videotape showed the left shoulder, appellant stopping abruptly, hopping and the continuing to
push the cart. Dr. Failinger observed appellant placing his right hand on the x-ray machine with
elbow bent and limited right shoulder flexion/abduction. He stated that there was no evidence on
the videotape that significant weight had been placed on the shoulder at the time of the incident.

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Dr. Failinger stated that “it would take a fair amount of force and weight to be placed on that
right shoulder in either a push or a pull type of mechanism to cause any significant
symptomatology.” He could “only rely on [appellant’s] subjective report” after relating that
appellant stated a fair amount of weight and force had occurred.
By decision dated December 30, 2011, an OWCP hearing representative affirmed the
August 12, 2011 decision denying appellant’s claim.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the

2

The Board notes that, following the December 30, 2011 hearing representative’s decision, OWCP received
additional evidence. However, the Board may only review evidence that was in the record at the time OWCP issued
its final decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59
ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54
ECAB 373 (2003).
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

4

compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.11 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.12
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained a right shoulder injury
as the result of an incident on May 6, 2011. OWCP denied his claim on August 12, 2011 on the
grounds that the medical evidence was insufficient to establish a right shoulder condition
causally related to the May 6, 2011 employment incident. On December 30, 2011 an OWCP
hearing representative affirmed the denial. The issue before the Board is whether appellant
established a right shoulder condition was caused or aggravated by the accepted May 6, 2011
employment incident. The Board finds that OWCP properly denied his traumatic injury claim.
Appellant was referred for a second opinion examination by Dr. Lotman, who opined that
the evidence was insufficient to support a right shoulder condition as a result of the May 6, 2011
employment incident. Dr. Lotman reported that his physical examination of appellant revealed a
good cervical range of motion and full shoulder motion. He compared reports contemporaneous
to the employment incident and noted that they also included full range of motion, no cervical
spine tenderness, full right shoulder motion with no pain and no radiculopathy. Dr. Lotman also
noted that the videotape did not show any pain behavior. He concluded that, based on his own
examination of appellant, a review of a videotape of the incident and physical findings from
reports immediately after the injury showed that no shoulder condition occurred as a result of the
May 6, 2011 employment incident.
The Board finds that Dr. Lotman’s second opinion report is sufficient to negate a causal
relationship between the May 6, 2011 work incident and appellant’s right shoulder condition.
Dr. Lotman reviewed the statement of accepted facts, video tape of the incident, medical records
and performed a physical examination and concluded that no shoulder injury was sustained as a
result of the May 6, 2011 incident at work. The Board therefore finds that it constitutes the
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

12

E.K., Docket No. 09-1827 (issued April 21, 2010); P.K., Docket No. 08-2551 (issued June 2, 2009); Sean
O’Connell, 56 ECAB 195 (2004); Dennis M. Mascarenas, 49 ECAB 215 (1997).

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weight of medical opinion. Appellant did not establish that he sustained a right shoulder injury
on May 6, 2011.
Dr. Failinger failed to directly address the issue of causal relationship as he did not
explain how the mechanism of the May 6, 2011 employment incident was sufficient to cause or
aggravate appellant’s right shoulder conditions. In a June 30, 2011 report, he listed the
diagnosed conditions as a possible right shoulder subscapularis tear with possible biceps tendon
subluxation to the May 6, 2011 employment injury. Dr. Failinger did not provide medical
rationale explaining how appellant’s right shoulder conditions had been caused or aggravated by
the May 6, 2011 employment incident. He offered no opinion as to the cause of the diagnosed
right shoulder conditions in his July 14, 2011 report. Lacking thorough medical rationale on the
issue of causal relationship, the reports are of limited probative value and not sufficient to
establish that appellant sustained an employment-related injury in the performance of duty on
May 6, 2011.13
The record also contains a September 28, 2011 report from Dr. Failinger, in which he
reviewed a videotape of the May 6, 2011 incident. Based on his review of the videotape,
Dr. Failinger stated that it did not appear that appellant placed significant weight on his shoulder
at the time of the incident sufficient to cause a shoulder injury. He noted that his opinion was
based on information provided by appellant who stated that there had been significant force to
cause the shoulder injury. Dr. Failinger stated that he had to rely upon information provided by
appellant in rendering his opinion. He failed to explain how appellant’s stumbling when his left
heel was hit by a gate and shifting his weight forward onto a cart he was pushing on May 6, 2011
pathophysiologically caused or contributed to the diagnosed condition.14 Medical reports
consisting solely of conclusory statements without supporting rationale are of diminished
probative value.15 Thus, this report is insufficient to support appellant’s claim.
Appellant also submitted a September 20, 2011 report from Dr. Foulk and a July 7, 2011
report from Dr. Fox, which are of limited probative value as they offered no opinion on whether
appellant’s May 6, 2011 employment incident caused or aggravated his right shoulder
condition.16
The record also contains a May 24, 2011 attending physician’s report and a May 26 2011
report from Dr. Fox. In his May 24 and 26, 2011 reports, Dr. Fox diagnosed a right
trapezius/rhomboid strain. He checked “yes” to the question of whether the diagnosed condition
was caused by the employment incident in the May 24, 2011 attending physician’s report. The
13

See S.S., 59 ECAB 315 (2008); Richard A. Neidert, 57 ECAB 474 (2006); Mary E. Marshall, 56 ECAB 420
(2005) (medical reports not containing rationale on causal relation are entitled to little probative value and are
generally insufficient to meet an employee’s burden of proof). See also M.W., 57 ECAB 710 (2006); Cecelia M.
Corley, 56 ECAB 662 (2005) (medical conclusions based on an inaccurate or incomplete factual history are of
diminished probative value).
14

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

15

William C. Thomas, 45 ECAB 591 (1994).

16

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009); Ellen L.
Noble, 55 ECAB 530 (2004).

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Board has held that a check mark without more, by way of rationale, is insufficient to establish a
claim for compensation.17 In a May 26, 2011 report Dr. Fox attributed appellant’s right shoulder
injury to the May 6, 2011 employment incident. However, he provided no explanation as to how
the May 6, 2011 employment incident caused the diagnosed trapezius/rhomboid strain. In his
May 26, 2011 report, Dr. Fox attributed appellant’s right shoulder condition to the May 6, 2011
employment incident. However, he provided no supporting rationale explaining this conclusion.
Medical reports not containing adequate rationale on causal relationship are of diminished
probative value and are insufficient to meet an employee’s burden of proof.18
The record also contains a number of reports from Mr. Shouse, a physician’s assistant.
However, the reports have no probative value as medical evidence as they were not signed or
approved by a physician. A physician’s assistant is not a physician as defined under FECA.19
Section 8101(2) of FECA provides that the term physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by the applicable state law.20
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 established that he sustained a right shoulder
injury on May 6, 2011.

17

Cecelia M. Corley, supra note 13.

18

S.S., supra note 13; Roma A. Mortenson-Kindschi, supra note 11.

19

See J.M., 58 ECAB 303 (2007); Lyle E. Dayberry, 49 ECAB 369 (1998) (the reports of a physician’s assistant
are entitled to no weight as a physician’s assistant is not a “physician” as defined by section 8101(2) of FECA).
20

5 U.S.C. § 8101(2). Thomas O. Bouis, 57 ECAB 602 (2006); see also Paul Foster, 56 ECAB 208 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 30, 2011 is affirmed.
Issued: January 7, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 16-0745
Issued: February 8, 2017

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a November 20, 2015 merit
decision and a February 8, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty; and (2) whether OWCP properly refused to
reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant contends that the medical evidence he submitted was the best he
could do with his physician as she readily supplied the diagnosis of coccidioides infection, but
was reluctant to offer an opinion as to how and where he contracted it or how his employment
activities caused or aggravated his condition.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 12, 2015 appellant, a 53-year-old engineering equipment supervisor, filed an
occupational disease claim, (Form CA-2) alleging that he contracted a coccidioides infection also
known as Valley Fever, as a result of working at the Elk Ridge Archeological Site in Gila
National Forest. He indicated that he first became aware of his condition on July 4, 2015 and
related it to his federal employment on August 10, 2015. In a narrative statement, appellant
stated that his federal duties required moving excavated soils and rocks on July 2, 2015 for six
hours. He alleged that a few days later he became ill with fever, respiratory problems, joint
aches, and fatigue. Appellant stated that he went to see a doctor and was informed that he had
tested positive for coccidioides infection on August 10, 2015.
Appellant submitted an August 3, 2015 report from Dr. Jennifer Agosta, a Board-certified
internist, who found that he had tested positive for coccidioides infection.
In an October 7, 2015 letter, OWCP advised appellant of the deficiencies of his claim and
afforded him 30 days to submit additional evidence and respond to its inquiries.
Subsequently, appellant submitted a position description and a narrative statement
reiterating the factual history of his claim.
In an October 15, 2015 statement, the employing establishment indicated that at the time
of exposure appellant was supervising and assisting the back-filling of an excavated room block
and the construction of a rock-filled gabion erosion protection wall to prevent damage to a
compromised archeological site. It confirmed that appellant’s exposure was a one-time, six-hour
exposure on or about July 2, 2015 to soil dust, as well as dust related to the machine and
subsequent hand placement of rip-rap-type rock used to fill gabion wire baskets.
In an August 3, 2015 report, Dr. Agosta asserted that appellant presented with a persistent
cough that had lasted approximately one month and subjective intermittent fevers. She reported
that appellant had been working on an archeological dig close to a second dig where two workers
had been found with coccidioidal fever. On September 3, 2015 Dr. Agosta asserted that
appellant had been tested for coccidioides based on reported exposure and his laboratory results
came back indicating an immune response to coccidioides, indicating exposure to the virus. She
concluded that appellant had been exposed to the coccidioides virus and showed a positive
immune response, indicating infection.
By decision dated November 20, 2015, OWCP denied appellant’s claim, finding that he
failed to submit evidence containing a medical diagnosis in connection with the injury or events.
On January 22, 2016 appellant submitted an appeal request form with a check mark
indicating that he was requesting reconsideration. He did not submit any evidence in support of
his request.
By decision dated February 8, 2016, OWCP denied appellant’s request for
reconsideration of the merits finding that he did not submit pertinent new and relevant evidence
and did not show that OWCP erroneously applied or interpreted a point of law not previously
considered by OWCP.
2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for 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.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature

2

Id.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010). See also Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

3

of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant was working at an archeological site on July 2, 2015 when
he was exposed to soil dust for a six-hour period. It denied his claim on the basis that the
evidence failed to establish a medical diagnosis in connection with the injury or events. The
Board finds that appellant has established fact of injury as Dr. Agosta provided a firm diagnosis
of coccidioides infection. However, the Board finds that appellant failed to provide sufficientlyrationalized medical opinion evidence establishing that his condition was causally related to the
accepted work activities.
Dr. Agosta found that appellant had tested positive for coccidioides infection and asserted
that appellant presented with a persistent cough that had lasted approximately one month with
subjective intermittent fevers. She reported that appellant had been working on an archeological
dig close to a second dig at which two workers had been found with coccidioidal fever. On
September 3, 2015 Dr. Agosta asserted that appellant had been tested for coccidioides based on
reported exposure and his laboratory results came back indicating an immune response to
coccidioides, indicating exposure to the virus. She concluded that appellant had been exposed to
the coccidioides virus and showed a positive immune response, indicating infection. Dr. Agosta,
however, failed to provide a rationalized opinion explaining the mechanism of how factors of
appellant’s federal employment, such as being exposed to soil dust for a six-hour period, caused
or aggravated the diagnosed condition. Dr. Agosta noted that appellant’s condition occurred
while he was at work, but such generalized statements do not establish causal relationship
because they merely repeat appellant’s allegations and are unsupported by adequate medical
rationale explaining how his physical activity at work actually caused or aggravated the
diagnosed condition.9 The mere fact that appellant’s symptoms arose during a period of
employment or produced symptoms revelatory of an underlying condition does not establish a
causal relationship between his condition and his employment factors.10 Consequently,
Dr. Agosta’s reports are of limited probative value and insufficient to establish that appellant
sustained an employment-related injury causally related to factors of his federal employment.
On appeal appellant contends that the medical evidence he submitted was the best he
could do with his physician as she readily supplied the diagnosis of coccidioides infection, but
was reluctant to offer an opinion as to how and where he contracted it or how his employment
activities caused or aggravated his condition. As appellant has not submitted any rationalized
medical evidence to support his allegation that he sustained an injury causally related to factors
of his federal employment, he has failed to meet his burden of proof to establish a claim for
compensation.

8

See O.W., supra note 4.

9

See K.W., Docket No. 10-98 (issued September 10, 2010).

10

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

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.11 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).12
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.13 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his application
for review within one year of the date of that decision.14 When a claimant fails to meet one of
the above standards, OWCP will deny the application for reconsideration without reopening the
case for review on the merits.15
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record16 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.17
ANALYSIS -- ISSUE 2
With his January 22, 2016 reconsideration request, appellant merely checked an appeal
request form indicating that he was requesting reconsideration. He did not allege or demonstrate
that OWCP erroneously applied or interpreted a specific point of law, or advance a relevant legal
argument not previously considered by OWCP. Consequently, appellant was not entitled to a
review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).18
With respect to the third above-noted requirement under section 10.606(b)(3), appellant
did not submit new evidence with his reconsideration request. As he did not show that OWCP
11

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
12

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

13

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

14

Id. at § 10.607(a).

15

Id. at § 10.608(b).

16

See A.L., supra note 13. See also Eugene F. Butler, 36 ECAB 393, 398 (1984).

17

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

18

See supra note 13.

5

erred in applying a point of law, advance a relevant legal argument not previously considered, or
submit relevant and pertinent new evidence not previously considered by OWCP, the Board
finds that OWCP properly denied his reconsideration request.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty. The Board further finds that OWCP properly
refused to reopen appellant’s case for further reconsideration of the merits pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2016 and November 20, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: February 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

See D.P., Docket No. 13-1721 (issued February 21, 2014).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Columbus, OH,
Employer
__________________________________________

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

Docket No. 10-34
Issued: July 15, 2010

Case Submitted on the Record

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

JURISDICTION
On October 5, 2009 appellant, through counsel, filed a timely appeal of an August 28,
2009 merit decision of the Office of Workers’ Compensation Programs terminating her
compensation benefits. 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 benefits
effective January 20, 2009 on the grounds that she no longer had any residuals causally related to
her employment-related injuries.
On appeal, counsel contends that the Office hearing representative’s decision is contrary
to fact and law.

FACTUAL HISTORY
The Office accepted that on August 13, 1993 appellant, then a 49-year-old material
verifier, sustained a lumbar strain and chronic pain syndrome while in the performance of duty
on that date. She stopped work on August 16, 1993. By decision dated April 3, 1996, the Office
reduced appellant’s wage-loss compensation effective April 28, 1996 on the grounds that the
constructed position of order filler represented her wage-earning capacity.
By letter dated July 25, 2008, the Office referred appellant, together with a statement of
accepted facts and medical record, to Dr. E. Gregory Fisher, a Board-certified orthopedic
surgeon, for a second opinion medical examination to determine the nature and extent of her
employment-related injuries. In an August 18, 2008 medical report, Dr. Fisher obtained a history
of her employment-related injuries and medical treatment. He noted her complaint of low back
pain, which she rated as 6 out of 10. Dr. Fisher listed his normal findings on physical
examination. Appellant did not wear a transcutaneous electrical nerve stimulator unit, pain
patches or brace over the back area. She did not walk with any external support such as a cane.
Her gait was normal without a discernable limp. General alignment of the back was normal.
The pelvis level and chest expansion were also normal. Appellant had no kyphosis or scoliosis
deformities over the thoracic or lumbar regions. Leg lengths were equal. The back, thoracic,
lumbar and sacral areas, buttocks and posterior thighs, arms, forearms, thighs and calves were
not tender or painful on palpation. No muscle spasms, guarding or atrophy were noted over the
lumbar or lumbosacral regions. Forward flexion of the back was 45 degrees with some
discomfort and pain over the midline of the lower lumbar and lumbosacral area. Appellant could
laterally bend the back to the right and left 20 degrees with pain over the midline area of the low
back. Reflexes over the knees were 1 + and equal and over the ankles were trace and equal.
Motor power over the lower extremities was 5/5 with no apparent muscle loss or weakness.
Sensation over the lower extremities was intact to light touch. Straight leg raising of the right
and left side to 80 degrees caused a minimal pulling sensation over the low back area with no
pain over the back, buttocks or thighs.
Dr. Fisher opined that there were no clinical findings of any residuals of appellant’s
August 13, 1993 employment injuries. The intermittent low back pain she experienced over the
past 15 years was due to degenerative disc disease/arthritis of the lumbar and lumbosacral area.
Dr. Fisher stated that this condition was caused by appellant’s normal aging process. It
progressed over the years due to an increase in her age. Dr. Fisher found that the condition was
not caused by, aggravated, accelerated or precipitated by the August 13, 1993 employment
injuries.
By letter dated August 29, 2008, the Office requested that appellant have an attending
physician review Dr. Fisher’s August 15, 2008 report.
In a September 24, 2008 letter, appellant contended that she not only continued to suffer
from residuals of her August 13, 1993 employment injuries, but also other physical and
emotional conditions. She submitted laboratory blood test results dated January 3 and April 1,
2006 from Ohio Health Grant Riverside Laboratories. In an undated Ohio workers’
compensation form, Dr. Albert C. Clairmont, a Board-certified physiatrist, requested that the
diagnoses of dystonic movements and neuropathic sympathetic disorder be added to appellant’s

2

list of allowed conditions. An undated and unsigned note from Ohio State University Spine
Center requested that these same conditions be added to her claim. A December 27, 2005 x-ray
report from Dr. Todd S. Klausner, a Board-certified radiologist, found that appellant was
developing osteoarthritis in her right knee, early arthritic changes in her left knee, mild to
moderate multilevel degenerative disc disease and associated facet sclerosis of the lumbar spine
and pelvis. No acute osseous abnormality or significant osteoarthritic change was found in the
right hip. The left femoral head of the left hip appeared normally contoured and well seated with
no evidence of avascular necrosis or acute fracture deformity. The hip joint space appeared
generally preserved with no significant osteoarthritic change identified. There appeared to be
very mild subchondral eburnation involving the left S1 joint. No chondrocalcinosis was noted.
An unsigned and undated report from Musculoskeletal Medical Specialists, Inc. advised that
appellant experienced pain in the lower back, knee and leg.
On December 15, 2008 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Fisher’s August 15, 2008 medical
opinion. Appellant was afforded 30 days to respond to this notice. She did not respond.
By decision dated January 20, 2009, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to her accepted employment-related injuries,
effective that date. The submitted medical evidence was found insufficient to establish that she
had any continuing residuals causally related to her August 13, 1993 employment injuries. By
letter dated February 19, 2009, appellant, through counsel, requested a telephonic hearing with
an Office hearing representative.
During the June 10, 2009 telephonic hearing, appellant contended that following her
August 13, 1993 employment injuries, she never returned to work. She was found to be totally
disabled by the Social Security Administration. Appellant’s application for retirement benefits
was denied by the Office of Personnel Management. She described her ongoing medical
treatment.
In an August 28, 2009 decision, an Office hearing representative affirmed the January 20,
2009 termination decision. The medical evidence was found insufficient to establish that
appellant had any continuing residuals causally related to her accepted employment-related
injuries.
LEGAL PRECEDENT
Once the Office 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 her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.1
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.2 Furthermore, the right to medical
1

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

2

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

3

benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.3
ANALYSIS
On appeal, appellant contends that the Office’s decision is contrary to fact and law. The
Board finds, however, that the Office met its burden of proof to terminate appellant’s wage-loss
and medical benefits as of January 20, 2009. It accepted that she sustained a lumbar strain and
chronic pain syndrome while in the performance of duty on August 13, 1993. The Office
subsequently referred appellant to Dr. Fisher for a second opinion evaluation.
Dr. Fisher’s August 18, 2008 report reviewed a history of appellant’s August 13, 1993
employment-related injuries and medical treatment. He found that there were no clinical
findings of any residuals of the accepted employment injuries. Dr. Fisher advised that his
physical examination was normal. He explained that he found no pain, tenderness or discomfort
on palpation of any of the muscle groups of the upper and lower extremities and lower back area.
Dr. Fisher further explained that appellant did not exhibit any muscle spasms, guarding or
atrophy over the lower back area. He stated that she had normal lumbar range of motion
associated with some discomfort. Dr. Fisher advised that his neurological examination over the
lower extremities was normal. He explained that there was no motor or sensory weakness.
Dr. Fisher attributed appellant’s long-standing intermittent low back pain to degenerative disc
disease/arthritis of the lumbar and lumbosacral area. He explained that this condition was caused
by the normal aging process and had progressed due to an increase in her age. Dr. Fisher opined
that the condition was not caused by, aggravated, accelerated or precipitated by the August 13,
1993 employment injury.
The Board finds that Dr. Fisher’s report represents the weight of the medical evidence
and that the Office properly relied on his report in terminating appellant’s compensation benefits
on January 20, 2009. Dr. Fisher’s opinion is based on proper factual and medical history as he
reviewed a statement of accepted facts and referenced appellant’s prior treatment. He also
related his comprehensive examination findings in support of his opinion that all work-related
conditions had resolved.
None of the medical evidence from Ohio Health Grant Riverside Laboratories,
Dr. Clairmont, Ohio State University Spine Center, Dr. Klausner and Musculoskeletal Medical
Specialists, Inc. provides any opinion addressing the causal relationship between the diagnosed
lumbar and lower bilateral extremity conditions and the August 13, 1993 employment-related
injuries.4 There is no other medical evidence contemporaneous with the termination of
appellant’s benefits which supports that appellant has any continuing employment-related
condition.

3

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

4

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

4

The Board finds that the weight of the medical evidence establishes that appellant no
longer had any residuals causally related to her accepted employment-related lumbar strain and
chronic pain syndrome. Therefore, the Office met its burden of proof to terminate her
compensation benefits.
As noted above, appellant had received a loss of wage-earning capacity determination in
1996. The Board has established that once a loss of wage-earning capacity is determined, it
remains in place unless modified.5 A modification of such a determination is not warranted
unless there is a material change in the nature and extent of the employment-related condition,
the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was in fact erroneous.6 In certain situations, however, if the medical evidence is
sufficient to meet the Office’s burden of proof to terminate benefits, the same evidence may also
negate a loss of wage-earning capacity such that a separate evaluation of the existing wageearning capacity determination is unnecessary.7 The Office’s burden to demonstrate no further
disability is effectively the same, irrespective of whether there is an existing determination in
place finding loss of earning capacity. Case law may suggest that a threshold evaluation of the
wage-earning capacity needs to be performed before there is a termination of benefits. The
Board finds, however, that the burden is often substantially the same, the evidence is the same
and the process of terminating benefits need only be done once. While a claimant may still have
unrelated medical conditions or impairments, the medical evidence must establish that the
employment-related disability and medical conditions no longer exist.
In this case, as the Board finds that the Office properly terminated benefits, no further
analysis on the modification of the wage-earning capacity is necessary.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective January 20, 2009.

5

A wage-earning capacity determination remains in effect until it is properly modified. See Katherine T. Kreger,
55 ECAB 633 (2004).
6

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

7

A.P., 60 ECAB ___ (Docket No. 08-1822, issued August 5, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
INSTALLATION MANAGEMENT AGENCY,
Fort Dix, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1872
Issued: April 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On September 13, 2012 appellant filed a timely appeal from a June 13, 2012 decision of
the Office of Workers’ Compensation Programs’ (OWCP) hearing representative, affirming a
November 10, 2011 schedule award determination and remanding the case for further
development based on new medical evidence. The appeal was docketed as No. 12-1872. On
appeal, counsel argues that the record does not establish that OWCP properly selected a referee
physician pursuant to 5 U.S.C. § 8123(a).
This case was previously before the Board. In a decision dated September 20, 2010, the
Board set aside an April 17, 2009 OWCP decision which affirmed appellant’s entitlement to two
percent impairment of the right leg and remanded the case on the basis that the impartial medical
specialist, Dr. Thomas Osteen, was not properly selected and an unresolved medical conflict
remained regarding the extent of appellant’s permanent impairment.1 Following the Board’s
September 20, 2010 decision, OWCP selected Dr. Karl E. Bolstad, a Board-certified orthopedic

1

Docket No. 09-2015 (issued September 20, 2010).

surgeon, as the referee physician.2 The Board finds, however, that the record does not establish
that Dr. Bolstad was properly selected as a referee physician in accord with OWCP procedures.
A physician selected by OWCP to serve as a referee should be one wholly free to make a
completely independent evaluation and judgment. In order to achieve this, OWCP has
developed specific procedures for the selection of referee physicians designed to provide
adequate safeguards against any possible appearance that the selected physician’s opinion was
biased or prejudiced. The procedures contemplate that referes will be selected on a strict rotating
basis through the Physicians’ Directory System (PDS) in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.3
It is well established that OWCP has an obligation to verify that it selected Dr. Bolstad in
a fair and unbiased manner. It maintains records for this very purpose.4 The current record
includes only a September 30, 2010 ME023 report (Appointment Schedule Notification) that
lists Dr. Bolstad as the selected physician. There are no other documents, screen captures or any
other evidence showing how the PDS system was used to properly select Dr. Bolstad in
accordance with the strict rotational system used to select a referee physician.
The Board has placed great importance on the appearance as well as the fact of
impartiality and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist.5 OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures in this case.6

2

In an October 28, 2010 report, Dr. Bolstad concluded that appellant had two percent impairment of the right leg.
On January 19, 2011 OWCP denied the claim for any greater impairment. In a March 28, 2011 decision, an OWCP
hearing representative set aside the January 19, 2011 decision and directed OWCP to have Dr. Bolstad clarify his
opinion and have an OWCP medical adviser review the report. On May 20, 2011 OWCP denied the claim for
greater impairment. In an August 16, 2011 decision, the hearing representative set aside the May 20, 2011 decision
finding that Dr. Bolstad’s report required clarification. On November 10, 2011 OWCP denied the claim for greater
impairment. In a June 13, 2012 decision, the hearing representative affirmed the November 10, 2011 decision and
remanded the case for further development based on new medical evidence.
3

See Raymond J. Brown, 52 ECAB 192 (2001).

4

M.A., Docket No. 07-1344 (issued February 18, 2008).

5

See D.M., Docket No. 11-1231 (issued January 25, 2012); D.L., Docket No. 11-660 (issued October 25, 2011).

6

An ME023 form is not sufficient documentation that OWCP properly followed its selection procedures. D.A.,
Docket No. 12-311 (issued July 25, 2012); C.P., Docket No. 10-1247 (issued September 28, 2011), petition for
recon. denied, (issued May 15, 2012).

2

The Board will remand the case to OWCP for proper selection of a referee physician.7
After such further development as necessary, OWCP shall issue an appropriate decision.8
IT IS HEREBY ORDERED THAT the June 13, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this order of the Board.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

7

OWCP subsequently implemented its iFECS-based Medical Management application. See Federal (FECA)
Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter 3.500.5 (July 2011). The
application contains the names of physicians who are Board-certified in over 30 medical specialties for use as
referees within appropriate geographical areas.
8

Due to the disposition of this case, counsel’s remaining arguments on appeal will not be addressed.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, FOX VALLEY
PROCESSING & DISTRIBUTION CENTER,
Aurora, IL, Employer
__________________________________________

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

Docket No. 13-921
Issued: August 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 7, 2013 appellant filed a timely appeal from a November 29, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) that denied modification of a wageearning capacity determination. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that an October 6,
1997 wage-earning capacity decision should be modified.
FACTUAL HISTORY
This case has previously been before the Board. In a July 11, 2012 decision, the Board
set aside a December 2, 2010 decision in which OWCP denied modification of an October 6,
1997 wage-earning capacity determination. The Board noted that OWCP denied modification on
the grounds that the medical evidence was insufficient to meet the requirements for modification
1

5 U.S.C. §§ 8101-8193.

and did not discuss whether the original determination was erroneous or whether she had been
retrained or vocationally rehabilitated or indicate that it had assessed her case in accordance with
FECA Bulletin No. 09-05.2 On remand, OWCP was to follow the procedures found in FECA
Bulletin No. 09-05 to determine if appellant met her burden to modify the October 6, 1997 wageearning capacity determination, to be followed by an appropriate decision on the merits of
appellant’s claims for compensation beginning on October 6, 2010.3
In correspondence dated October 10, 2012, OWCP informed appellant of the criteria
needed to modify a wage-earning capacity determination. It noted that the evidence of record
was assessed to determine if she had continuing residuals of the accepted conditions of bilateral
carpal tunnel syndrome, right shoulder impingement and right rotator cuff tear and concluded
that, at present, the medical evidence was insufficient. Appellant was asked to submit a wellrationalized medical report addressing whether she continued to suffer residuals of the accepted
conditions and, if so, whether the residuals were disabling. She was allotted 30 days to provide
the requested information.
In a December 7, 2010 report, Dr. Jacob Salomon, an attending Board-certified surgeon,
stated that he advised appellant that she could return to work on October 6, 2010 with
appropriate restrictions, but that the post office informed her that no work was available within
her restrictions. On January 12, 2011 he reiterated that she was entitled to compensation because
no work was available. A February 18, 2011 upper extremity electrodiagnostic study
demonstrated residual left sensory motor median nerve entrapment neuropathy at the wrist or
mild carpal tunnel syndrome; very mild right motor medial nerve entrapment neuropathy at the
wrist for very mild carpal tunnel syndrome; right suprascapular nerve neuropathy; and no strong
electrodiagnostic evidence of cervical radiculopathy. A March 23, 2012 electrodiagnostic study
demonstrated persistent severe left sensory motor median nerve neuropathy at the wrist and
moderate right sensory medial nerve entrapment neuropathy. In an October 18, 2012 report,
Dr. Axel Vargas, a Board-certified anesthesiologist, advised that he had seen appellant in
May 2010 for neck pain, which was physically and radiologically suggestive of multilevel
2

FECA Bulletin No. 09-05 discusses the procedures to be followed when a wage-earning capacity decision is in
place and the dismissal of a claimant is due to the national rehabilitation process (NRP). FECA Bulletin No. 09-05
(issued August 18, 2009); see also M.A., Docket No. 12-316 (issued July 24, 2012).
3

Docket No. 11-733 (issued July 11, 2012). On November 29, 1994 appellant, a mail handler, filed an
occupational disease claim for bilateral wrist weakness and pain. The claim, adjudicated by OWCP under file
number xxxxxx291, was accepted for bilateral carpal tunnel syndrome. Appellant underwent surgery on
September 25 and October 30, 1996 on the right and left respectively. She returned to a modified mail handler
position on February 10, 1997. In an October 6, 1997 decision, OWCP found that appellant’s actual earnings in the
modified position fairly and reasonably represented her wage-earning capacity with zero loss. On April 24, 1998
appellant was granted a schedule award for 10 percent impairment of the right arm and 5 percent impairment on the
left. On March 16, 1999 she filed a traumatic injury claim, alleging that she strained her arms, shoulder and hands
lifting a tub of mail on March 13, 1999 when she stopped work. OWCP adjudicated the claim under file number
xxxxxx777 and accepted right shoulder strain and right partial rotator cuff tear. On June 21, 1999 appellant returned
to limited duty at the nixie table and continued in the job until July 26, 2004 when she underwent authorized
arthroscopic repair of the torn right rotator cuff. She returned to modified duty on October 12, 2004. In
March 2007, appellant began working as a security monitor. On April 11, 2007 she was granted a schedule award
for an additional 18 percent impairment of the right arm. On November 26, 2007 an OWCP hearing representative
affirmed the April 11, 2007 decision. Appellant returned to the nixie position in February 2009 and continued in the
nixie position until October 6, 2010 when she was dismissed under NRP. She filed Form CA-7, claims for
compensation, beginning October 6, 2010 and continuing. On November 9, 2010 OWCP doubled appellant’s
claims.

2

degenerative cervical spondylosis with an associated herniated disc at C4-5 and C5-6 and rightsided radiculopathy. He performed cervical and right shoulder injections and indicated that he
had last seen appellant on December 27, “2012.”
In a November 29, 2012 decision, OWCP denied modification of the October 6, 1997
wage-earning capacity determination. It stated that the record was reviewed consistent with the
procedures outlined in FECA Bulletin No. 09-05 and that the medical evidence failed to establish
that appellant continued to have disabling residuals of the accepted condition. Appellant’s claim
for compensation commencing October 6, 2010 was denied.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
OWCP’s procedures provide that, “[i]f a formal loss of wage-earning capacity decision
has been issued, the rating should be left in place unless the claimant requests resumption of
compensation for total wage loss. In this instance the [claims examiner] will need to evaluate the
request according to the customary criteria for modifying a formal loss of wage-earning
capacity.”5
Chapter 2.814.11 of the procedure manual contains provisions regarding the modification
of a formal loss of wage-earning capacity. The relevant part provides that a formal loss of wageearning capacity will be modified when: (1) the original rating was in error; (2) the claimant’s
medical condition has changed; or (3) the claimant has been vocationally rehabilitated. OWCP’s
procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met. If OWCP is
seeking modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.6
The Board has held that OWCP may accept a limited period of disability without
modifying a standing wage-earning capacity determination. This occurs when there is a
demonstrated temporary worsening of a medical condition of insufficient duration and severity to
warrant modification of a wage-earning capacity determination. This narrow exception is only
applicable for brief periods of medical disability. It does not apply to situations where there is a
wage-earning capacity determination in place and the employee claims additional wage-loss
compensation due to the withdrawal of light-duty work.7

4

Katherine T. Kreger, 55 ECAB 633 (2004).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
6

Id. at Chapter 2.814.11 (June 1996).

7

K.R., Docket No. 09-415 (issued February 24, 2010).

3

FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions
withdrawn pursuant to NRP. Regarding claims for total disability when a wage-earning capacity
decision has been issued, OWCP should, inter alia, further develop the medical evidence and
inquire from the postal service whether the position on which the rating was based was a bona
fide position at the time of the rating before issuing a decision denying modification.8
ANALYSIS
The Board finds this case is not in posture for decision. OWCP issued a loss of wageearning capacity on October 6, 1997. On October 6, 2010 appellant’s position on the nixie Desk
was reassessed under NRP, which resulted in a withdrawal of her modified position. She
thereafter filed claims for wage-loss compensation.9 Following the Board’s remand of July 11,
2012 for OWCP to assess appellant’s claim in accordance with FECA Bulletin No. 09-05,10
OWCP issued a November 29, 2012 decision denying her claims for wage-loss compensation.
The criteria for addressing cases under NRP, when a formal wage-earning capacity
decision has been issued are delineated above. OWCP, however, did not fully follow the
procedures outlined in FECA Bulletin No. 09-05 following the Board’s remand. It asked
appellant on October 10, 2012 to submit a well-rationalized medical report addressing whether
she continued to suffer residuals of the accepted conditions and, if so, whether the residuals were
disabling. OWCP did not request that the post office address whether the position on which the
wage-earning capacity determination was based was a bona fide position at the time of the
rating.11
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate. OWCP is to review the loss of wage-earning capacity decision to determine
whether it was based on an actual bona fide position. To this end, the FECA Bulletin No. 09-09
directs OWCP to confirm that the file contains documentary evidence supporting that the
position was an actual bona fide position. It also requires OWCP to review the record to
determine whether a current medical report supports employment-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was a bona fide position at the time of the rating and to direct the
employing establishment to review its files for contemporaneous evidence concerning the
position. OWCP did not do so in this case. The case will be remanded to OWCP to fully
address the procedures outlined in FECA Bulletin No. 09-05. If, after development and review
8

FECA Bulletin No. 09-05, supra note 2.

9

Supra note 3.

10

FECA Bulletin No. 09-05, supra note 2.

11

Id.

4

by OWCP, the evidence establishes that the loss of wage-earning capacity decision was proper
and none of the customary criteria for modifying the determination were met, then OWCP may
issue a decision denying modification of the loss of wage-earning capacity determination.12
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the November 29, 2012 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue a de novo
decision on appellant’s entitlement to wage-loss compensation beginning October 6, 2010.13
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 29, 2012 decision of the Office of
Workers’ Compensation Programs is vacated and the case remanded to OWCP for proceedings
consistent with this order of the Board.
Issued: August 16, 2013
Washington, DC

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

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

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

12

Id.

13

See R.R., Docket No. 12-1712 (issued February 21, 2013).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, COLESVILLE POST
OFFICE, Silver Spring, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0150
Issued: January 10, 2022

Case Submitted on the Record

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

JURISDICTION
On November 11, 2020 appellant, through her representative, filed a timely appeal from
an August 25, 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. 3

1

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

5 U.S.C. § 8101 et seq.

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

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 15, 2020, as she no longer had
disability or residuals causally related to her accepted January 8, 2018 employment injury; and
(2) whether appellant has met her burden of proof to establish continuing disability or residuals on
or after January 15, 2020 due to the accepted January 8, 2018 employment injury.
FACTUAL HISTORY
On January 8, 2018 appellant, then a 55-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she suffered a right knee injury when she slipped and
fell on an icy walkway while delivering a package in the performance of duty. She initially stopped
work on January 9, 2018.
On March 22, 2018 OWCP accepted the claim for lateral meniscus tear of the right knee,
right knee contusion, and right knee sprain. Appellant underwent OWCP-authorized right knee
arthroscopy with partial lateral meniscectomy, debridement of chondromalacia, and removal of
loose body on May 4, 2018. She stopped work on that date and did not return. OWCP paid
appellant wage-loss compensation on the supplemental rolls from May 12 through October 13,
2018 and on the periodic rolls, commencing October 14, 2018.
In a December 28, 2018 report, Dr. James York, a Board-certified orthopedic surgeon,
noted that appellant experienced continued right knee pain following her right knee surgery. He
examined appellant and diagnosed left knee articular cartilage damage and meniscal tear,
aggravation of lumbar spondylosis, strain and tearing of the pelvis, aggravation of left hip
osteoarthritis, and strain and tearing of the left thigh. Dr. York recommended physical therapy
treatment and advised that appellant could not work for three months.
On February 4, 2019 OWCP referred appellant, a statement of accepted facts (SOAF), and
a series of questions to Dr. Rafael Steuart, a Board-certified orthopedic surgeon, for a second
opinion evaluation to determine the nature of her accepted conditions, the extent of disability, and
appropriate medical treatment.
In a February 27, 2019 report, Dr. Steuart noted his review of the SOAF and appellant’s
medical record. He examined appellant and opined that her right knee discomfort related to her
preexisting degenerative joint disease. Dr. Steuart further opined that appellant’s work-related
conditions had resolved and indicated that she could resume full-duty work as a letter carrier.
In an April 18, 2019 report, Dr. York opined that appellant’s employment injury
aggravated her underlying hip arthritis and lumbar spondylosis. He found that the mechanism of
slipping and falling “result[ed] in an injury force of 2,500 N[ewtons]” which caused trauma to the
component parts of her knees, hips, pelvis, and lumbar spine. Dr. York noted that appellant’s
preexisting arthritis, chondromalacia, and lumbar spondylosis were asymptomatic and that the
employment injury significantly aggravated these conditions. He indicated that appellant had no
thigh, pelvis, back, hip, or knee symptoms prior to the employment injury. Dr. York opined that
appellant suffered permanent aggravation of her underlying conditions and that she was not able
to return to work in any capacity.

2

In a June 6, 2019 supplemental report, Dr. Steuart reviewed reports from Dr. York. He
again opined that no other medical diagnoses were causally related to the employment injury other
than those that were previously accepted. Dr. Steuart advised that appellant could return to fullduty work as she had a normal physical examination without any objective clinical findings.
On July 11, 2019 OWCP referred appellant, an updated SOAF, and a series of questions to
Dr. Robert M. Saltzman, a Board-certified orthopedic surgeon, for an impartial medical
examination to resolve the conflict of medical opinion evidence between Dr. York, appellant’s
treating physician, and Dr. Steuart, OWCP’s referral physician.
In an August 12, 2019 report, Dr. Eric Dawson, an orthopedic surgeon, noted appellant’s
history of injury and provided physical examination findings and diagnosed left knee tears,
insertional tendinitis, adductor muscle tear, left hip tear, and lumbar nerve impingement.
Dr. Dawson noted that there was no evidence of previous injuries and opined that the employment
injury caused appellant’s conditions. He recommended electromyography (EMG) and nerve
conduction velocity (NCV) studies.
In a report, dated August 16, 2019, Dr. Saltzman reviewed the medical record and SOAF.
He examined appellant and found that her range of motion (ROM) in the right knee was from 10
to 100 degrees. Dr. Saltzman opined that appellant’s right knee symptoms were related to her
underlying degenerative joint disease. He noted that she had a temporary aggravation of right knee
degenerative joint disease with degenerative lateral meniscus tear, which was treated by
arthroscopic partial lateral meniscectomy. Dr. Saltzman agreed with Dr. Steuart’s assessment that
appellant’s current symptoms were related to her preexisting conditions. He indicated that her
magnetic resonance imaging (MRI) scan findings appeared to show degenerative conditions and
not acute abnormalities. Dr. Saltzman further noted that appellant’s x-ray findings showed
underlying hip arthritis prior to the employment injury. He advised that appellant was unable to
resume work as a letter carrier due to her preexisting osteoarthritis. Dr. Saltzman noted that she
could only work in a light-duty capacity with limited walking, standing, pushing, and pulling.
On September 5, 2019 OWCP requested that Dr. Saltzman provide clarification regarding
why appellant’s aggravation was temporary and when it resolved. It further requested that he
provide medical rationale as to whether appellant’s accepted conditions had resolved.
In a September 12, 2019 addendum report, Dr. Saltzman noted that appellant’s MRI scan
and physical examination findings at the time of her arthroscopic surgery did not show any acute
changes. He indicated that her meniscus tear was “more than likely present even prior” to the
employment injury. Dr. Saltzman advised that it was not possible to fully determine the difference
between the work-related aggravation and the natural course of osteoarthritis. He opined that
appellant’s aggravation of right knee degenerative joint disease was temporary as she sustained a
knee sprain with no new findings. “Without any new specific injury, symptoms would be expected
to resolve with time but the arthritis not only remains constant, but worsens with time.” He went
on to say that a sprain would be expected to heal after six months and any aggravation beyond that
time would be related to her underlying tricompartmental osteoarthritis. Dr. Saltzman noted that
appellant’s lateral meniscus tear resolved with surgical intervention and her right knee contusion
resolved with time. He found that appellant’s right knee sprain also resolved as she had no
ligamentous laxity on physical examination or ligament tears on MRI scan. Dr. Saltzman opined
that her current objective findings were expected given her age, weight, and underlying
osteoarthritis.
3

In a September 26, 2019 report, Dr. Dawson noted that appellant had continued pain,
spasm, stiffness, discomfort, numbness, tingling, burning, and weakness to the back, ankles, and
knees. He provided physical examination findings and diagnosed lumbar discopathy with nerve
impingement, intraarticular pathology to the right knee, and ankle sprain.
On October 17, 2019 OWCP expanded the acceptance of appellant’s claim to include
resolved temporary aggravation of tricompartmental osteoarthritis of the right knee.
On October 18, 2019 OWCP issued a notice proposing to terminate her wage-loss
compensation and medical benefits based on Dr. Saltzman’s opinion that the January 8, 2018
accepted conditions had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence or argument challenging the proposed termination.
OWCP subsequently received an October 16, 2019 report from Dr. York who provided
physical examination findings and diagnosed right chondromalacia and right knee primary
osteoarthritis. In an accompanying duty status report (Form CA-17), Dr. York advised that
appellant could not resume work.
In an October 25, 2019 report, Dr. Dawson provided physical examination findings. He
noted that appellant had enthesopathy to the right knee and indicated that her employment duties
contributed to her knee conditions. Dr. Dawson refuted Dr. Saltzman’s assessment that appellant’s
conditions were due to degenerative changes. He opined that the employment injury stretched
appellant’s medial components and compressed her lateral components. Dr. Dawson noted that
her femoral condyle hammered her lateral tibial eminence and plateau with her lateral meniscus
cartilage caught in between. He advised that appellant’s symptoms were due to this mechanism
of injury. Dr. Dawson further indicated that Dr. Saltzman failed to adequately measure appellant’s
ROM or describe which ligaments of the knee were tested. He noted that appellant performed fullduty work without restrictions prior to the employment injury. Dr. Dawson asserted that appellant
had pain, swelling, and stiffness, which was not considered by Dr. Saltzman.
By decision dated January 15, 2020, OWCP finalized the proposed termination of
appellant’s wage-loss compensation and medical benefits, effective that date. It found that the
medical evidence submitted was insufficient to outweigh Dr. Saltzman’s opinion, with whom the
special weight of the medical evidence rested.
On January 22, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
In a February 5, 2020 report, Dr. York examined appellant and diagnosed right knee
chondromalacia, right knee osteoarthritis, left knee arthritis, right knee lateral meniscus tear, and
right knee injury. In an accompanying CA-17 report, he advised that appellant could resume
limited-duty work with restrictions.
A telephonic hearing was held on June 10, 2020. Appellant testified that she returned to
work on January 16, 2020.
In a June 22, 2020 report, Dr. Dawson noted that appellant had no significant preexisting
arthritic condition or other major medical condition that would affect her knees prior to the
employment injury. He reiterated that the employment injury was sufficient to cause a sprain,
strain, or even tear to the nerves of the intraarticular structures. Dr. Dawson indicated that
4

appellant demonstrated a loss of ROM and atrophic changes on examination. He opined that
appellant’s conditions were not simply due to aging and were traumatic in nature. Dr. Dawson
noted that meniscal surgery caused loss of long-term stability in her right knee. He opined that the
employment injury caused a permanent aggravation of appellant’s osteoarthritis.
By decision dated August 25, 2020, OWCP’s hearing representative affirmed the
January 15, 2020 termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment. 8
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination. 9 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 10

4

R.H., Docket No. 19-1604 (issued October 9, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

C.R., Docket No. 19-1132 (issued October 1, 2020); I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
6

E.K., Docket No. 18-0835 (issued September 23, 2020); G.H., Docket No. 18-0414 (issued November 14, 2018);
Del K. Rykert, 40 ECAB 294-96 (1988).
7

M.P., Docket No. 20-0024 (issued September 1, 2020); L.W., Docket No. 18-1372 (issued February 27, 2019);
Furman G. Peake, 41 ECAB 361, 364 (1990).
8

D.B., Docket No. 19-0663 (issued August 27, 2020); R.P., Docket No. 18-0900 (issued February 5, 2019);
Calvin S. Mays, 39 ECAB 993 (1988).
9

5 U.S.C. § 8123(a); V.S., Docket No. 19-1792 (issued August 4, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).
10

D.B., supra note 8; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

5

ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 15, 2020.
Appellant’s attending physician, Dr. York opined that appellant was totally disabled from
work and had ongoing residuals related to the accepted employment injury. OWCP referred
appellant for a second opinion evaluation with Dr. Steuart who opined that appellant’s workrelated conditions had resolved and indicated that she could resume full-duty work as a letter
carrier. In order to resolve the conflict, OWCP properly referred appellant for an impartial medical
examination with Dr. Saltzman, pursuant to 5 U.S.C. § 8123(a).11
In a September 12, 2019 supplemental report, Dr. Saltzman noted that appellant’s
meniscus tear was likely present prior to the employment injury. He advised that it was not
possible to fully determine the difference between the work -related aggravation and the natural
course of osteoarthritis. Dr. Saltzman opined that appellant’s aggravation of right knee
degenerative joint disease was temporary, pointing out that appellant had sustained a knee sprain
without any findings and that “Without any new specific injury, symptoms would be expected to
resolve with time but the arthritis not only remains constant, but worsens with time.” He further
pointed out that a sprain would be expected to resolve after six months and that any aggravation
beyond six months would be related to her underlying tricompartmental osteoarthritis.
Dr. Saltzman noted that appellant’s lateral meniscus tear resolved with surgical intervention and
her right knee contusion resolved with time. He found that appellant’s right knee sprain also
resolved as she had no ligamentous laxity on physical examination or ligament tears on MRI scan.
The Board finds that Dr. Saltzman’s opinion was conclusory in nature and did not contain
sufficient medical reasoning to establish that appellant was no longer disabled due to her accepted
January 8, 2018 employment injury. 12 The factors that determine the probative value of medical
evidence include the opportunity for and thoroughness of examination performed by the physician,
the accuracy, or completeness of the physician’s knowledge of the facts and medical history, the
care of analysis manifested, and the medical rationale expressed by the physician on the issues
addressed to him by OWCP. 13
Dr. Saltzman opined that appellant’s accepted conditions had resolved. However, he failed
to provide a well-rationalized opinion explaining how or whether the accepted January 8, 2018
employment injury contributed, in any way, to the preexisting, degenerative conditions that were
diagnosed. The Board has explained that medical rationale is particularly necessary if appellant
has a preexisting condition. 14 Dr. Saltzman merely provided a conclusory statement that any
aggravation beyond six months would be related to appellant’s underlying tricompartmental
osteoarthritis. He provided no discussion on the opinions of Drs. York and Dawson that appellant
11

5 U.S.C. § 8123(a).

12

See P.J., Docket No. 20-0550 (issued April 26, 2021); J.W., Docket No. 19-1014 (issued October 24, 2019);
S.B., Docket No. 18-0700 (issued January 9, 2019); S.J., Docket No. 17-0543 (issued August 1, 2017).
13

See R.K., Docket No. 19-1980 (issued May 7, 2020); A.G., Docket No. 19-0220 (issued August 1, 2019);
James T. Johnson, 39 ECAB 1252 (1988).
14

E.K., supra note 6.

6

suffered a permanent aggravation of her underlying osteoarthritis. Furthermore, Dr. Saltzman
advised that it was not possible to fully determine the difference between the work -related
aggravation and the natural course of osteoarthritis. The Board has held that a medical opinion
which is equivocal in nature is of limited probative value regarding a given medical question. 15
Accordingly, Dr. Saltzman’s conclusory, equivocal opinion is insufficient to meet OWCP’s
burden of proof to terminate her wage-loss compensation and medical benefits.
The Board therefore finds that Dr. Saltzman’s reports are, therefore, not entitled to special
weight and are insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 15, 2020.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 15, 2020.16
ORDER
IT IS HEREBY ORDERED THAT the August 25, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 10, 2022
Washington, DC

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

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

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

15

See J.C., Docket No. 20-0973 (issued February 9, 2021); E.B., Docket No. 18-1060 (issued November 1, 2018);
Leonard J. O’Keefe, 14 ECAB 42, 48 (1962).
16

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

7