United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tampa, FL, Employer
__________________________________________

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

Docket No. 11-1476
Issued: December 21, 2011

Case Submitted on the Record

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

JURISDICTION
On June 8, 2011 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated February 9, 2011. 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 sustained a back injury in the performance of duty on
September 14, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 15, 2010 appellant, a 53-year-old agriculture specialist, filed a claim for
benefits, alleging that he injured his back while attempting to close a container door on
September 14, 2010.
In a September 21, 2010 report, Dr. Mikel Anglin, Board-certified in internal medicine,
stated that appellant had experienced back pain after lifting a barrel at work. He diagnosed a
back strain and noted complaints of low back pain on the right not associated with tingling,
numbness or weakness. Dr. Anglin opined that appellant could return to work with restrictions
on repetitive twisting, bending and lifting more than 15 pounds.
Appellant submitted an September 21, 2010 Form CA-17 duty status report from
Dr. Anglin which indicated that he sustained a back strain injury on September 14, 2010.
Dr. Anglin checked a box advising that appellant’s injury corresponded with his description of
how the September 14, 2010 work incident occurred. He submitted progress reports dated
September 28 to November 2, 2010 in which he reiterated his previously stated findings and
conclusions.
By letter dated January 4, 2011, OWCP informed appellant that, while it had initially
handled his claim administratively and authorized payment of a limited amount of medical
expenses, it was reopening his claim because his medical bills had exceeded $1,500.00. It noted
that the merits of the claim needed to be adjudicated and requested additional factual and
medical evidence to determine whether he was eligible for compensation benefits. OWCP asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition, and an opinion as to whether his claimed
condition was causally related to his federal employment. It requested that he submit the
additional evidence within 30 days. Appellant did not respond.
By decision dated February 9, 2011, OWCP denied appellant’s claim, finding that he
failed to submit sufficient medical evidence in support of his claim that he sustained a back strain
in the performance of duty on September 14, 2010.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability 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

2

5 U.S.C. §§ 8101-8193.

3

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

2

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, 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.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
OWCP has accepted that appellant attempted to close a container door on
September 14, 2010. The question of whether an employment incident caused a personal injury
can only be established by probative medical evidence.10 Appellant has not submitted sufficient,
probative medical evidence to establish that the September 14, 2010 employment incident would
have been competent to cause the claimed injury.

4

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

5

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

6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

7

Id.

8

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

9

Id.

10

John J. Carlone, supra note 5.

3

Dr. Anglin submitted several reports in which he listed findings on examination and
indicated that appellant had a back strain. These reports, however, did not relate the diagnoses to
the September 14, 2010 incident at work. The weight of medical opinion is determined by the
opportunity for and thoroughness of examination, the accuracy and completeness of physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.11 Dr. Anglin advised in his
September 21, 2010 report that appellant sustained a back strain and had complaints of lower
back pain on the right not associated with tingling, numbness or weakness. He advised that
appellant could return to work with restrictions on repetitive twisting, bending and lifting more
than 15 pounds. However, Dr. Anglin’s opinion is of limited probative value for the further
reason that it is generalized in nature and equivocal in that he only noted summarily that
appellant’s condition was causally related to the September 14, 2010 work incident. It is unclear
if he had an accurate history of the September 14, 2010 incident as he stated that appellant
sustained his injury while lifting a barrel; this contradicted appellant’s statement on the Form
CA-1 that he injured his back while attempting to close a container door.12
Although Dr. Anglin presented a diagnosis of appellant’s condition and stated generally
that he experienced back pain on September 14, 2010, he did not adequately address how this
condition and these findings were causally related to the September 14, 2010 work incident. The
medical reports of record did not explain how medically appellant would have sustained a back
injury because he attempted to close a container door on September 14, 2010. There is
insufficient rationalized evidence in the record that his back strain was work related.
Furthermore, the September 14, 2010 form report from Dr. Anglin which supports causal
relationship with a check mark is insufficient to establish the claim, as the Board has held that
without further explanation or rationale, a checked box is not sufficient to establish causation.13
Therefore, appellant failed to provide a medical report from a physician that explains how the
work incident of September 14, 2010 caused or contributed to the claimed back strain.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the September 14, 2010 work accident would have
caused the claimed injury. Accordingly, he did not establish that he sustained a back strain in the
performance of duty. OWCP properly denied appellant’s claim for compensation.
For the reasons stated above the Board finds that appellant did not meet his burden of
proof to establish that he sustained a back strain in the performance of duty. 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.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

12

See Geraldine H. Johnson, 44 ECAB 745 (1993).

13

Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB 247 (1979).

4

CONCLUSION
The Board finds that appellant has failed to establish that he sustained a back strain in the
performance of duty on September 14, 2010.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Macon, GA,
Employer
__________________________________________

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

Docket No. 10-2047
Issued: May 19, 2011

Case Submitted on the Record

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

JURISDICTION
On August 4, 2010 appellant filed a timely appeal from the July 15, 2010 merit decision
of the Office of Workers’ Compensation Programs, which denied authorization for a chest x-ray.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied authorization for a chest x-ray.
FACTUAL HISTORY
On January 25, 2000 appellant, then a 50-year-old mail handler, filed a claim for
compensation benefits alleging that a coworker with tuberculosis had exposed him to the disease.
When he saw his family physician, Dr. Samuel E. Palmer, appellant denied any symptoms.
1

5 U.S.C. § 8101 et seq.

Appellant’s examination was negative. A January 17, 2000 chest x-ray showed no evidence of
tuberculosis. Noting a positive skin test, Dr. Palmer recommended a yearly chest x-ray.
The Office accepted appellant’s claim for exposure to tuberculosis.
Chest x-rays on January 15 and June 4, 2003 were normal, as were chest x-rays on
January 15, 2004. A February 24, 2006 chest x-ray showed no evidence of acute pulmonary
pathology.
In 2010 the Office received a request to authorize another chest x-ray.
In a decision dated July 15, 2010, the Office denied the request. It noted that the file did
not support that appellant had anything beyond an exposure to tuberculosis. Regular diagnostic
tests continued to be negative for any pulmonary diagnosis. As the risk for developing active
disease was highest in the first two years after exposure and a positive skin test, and as it had
been more than 10 years since appellant’s exposure with no diagnosis of tuberculosis, the Office
found that he had no ongoing need for medical treatment for the accepted condition, “which was
simple exposure and which never developed into tuberculosis.” It closed appellant’s case.
On appeal, appellant argues that the Office overrode Dr. Palmer’s recommendation and
closed his case without medical input.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances and supplies prescribed or recommended by a qualified physician
that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability or aid in lessening the amount of any monthly compensation.2 The Office must
therefore exercise discretion in determining whether the particular service, appliance or supply is
likely to effect the purposes specified in the Act.3 The only limitation on the Office’s authority is
that of reasonableness.4
ANALYSIS
The Office denied authorization for another chest x-ray on the grounds that the risk for
developing active disease is the highest in the first two years after exposure and development of
a positive skin test, and that it had been 10 years in appellant’s case without a diagnosis of
tuberculosis. It, however, did not identify the source of this information. The issue is a medical
one, and it does not appear that the Office sought the advice of its district medical adviser.
Appellant’s family physician, Dr. Palmer, recommended a yearly chest x-ray. The Board finds,

2

Id. at § 8103(a).

3

See Marjorie S. Geer, 39 ECAB 1099 (1988) (the Office has broad discretionary authority in the administration of
the Act and must exercise that discretion to achieve the objectives of section 8103).
4

Daniel J. Perea, 42 ECAB 214 (1990).

2

as appellant argues on appeal, that it was unreasonable for the Office to deny authorization for an
annual chest x-ray in the absence of medical opinion to the contrary.
The Board will set aside the July 15, 2010 decision and remand the case for further
development of the medical opinion evidence and a proper exercise of discretion under section
8103 of the Act. After such further development as may be necessary, the Office shall issue an
appropriate final decision on whether to authorize another chest x-ray for appellant’s accepted
exposure to tuberculosis.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical opinion evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 15, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this opinion.
Issued: May 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 20-1188
Issued: July 20, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 15, 2020 appellant filed a timely appeal from a May 5, 2020 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from the last merit decision, dated August 9, 2019, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction2 over the merits of this case.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 9, 2019 decision, appellant submitted additional evidence to OWCP.
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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior orders are incorporated herein by reference. The relevant facts are as follows.
On April 7, 2004 appellant, then a 42-year-old mail processor, filed an occupational disease
claim (Form CA-2) alleging that factors of her federal employment caused numbness and tingling
in her hands and elbows.4 By decision dated May 14, 2004, OWCP accepted the claim for bilateral
carpal tunnel syndrome. On July 5, 2005 it accepted an April 27, 2005 modified job offer as a
mail processor.
On December 13, 2012 OWCP expanded the acceptance of the claim to include bilateral
lesion of the ulnar nerve; sprain of the shoulder and upper arm acromioclavicular, right; and right
trigger finger (acquired).
On July 31, 2014 OWCP expanded the acceptance of appellant’s claim to include left
trigger thumb. On September 11, 2014 appellant underwent a left trigger finger release and OWCP
paid appropriate compensation benefits. She returned to part-time limited-duty work on
October 29, 2014.
On October 29, 2014 appellant accepted a part-time limited-duty assignment as an
expedition clerk. The physical requirements involved intermittent simple grasping for two hours,
intermittent fine manipulation for two hours, and standing for two hours. Appellant worked for
two hours per day from October 29, 2014 through January 28, 2015.
In a November 26, 2014 medical report appellant’s treating physician, Dr. Leo Raisis, a
Board-certified orthopedic surgeon, provided work restrictions pertaining to the repetitive use of
her upper extremities, which included repetitive gripping, pushing or pulling, and use of the arms
at shoulder level or above. He reported that she could lift 5 to 10 pounds continuously and up to
20 pounds intermittently. Appellant could also do one to two hours of simple grasping and fine
manipulation per day. Dr. Raisis noted that she complained of pain when driving a car for a long
time due to her upper extremity conditions.
3

Order Remanding Case, Docket No. 17-0771 (issued August 9, 2018); Order Remanding Case, Docket No. 161412 (issued December 20, 2016); Order Remanding Case, Docket No. 11-0779 (issued January 12, 2011).
4

OWCP assigned the claim OWCP File No. xxxxxx674. The record indicates that appellant had a prior
occupational disease claim, which was accepted for bilateral carpal tunnel syndrome under OWCP File No.
xxxxxx739. On March 15, 2006 OWCP administratively combined OWCP File Nos. xxxxxx739 and xxxxxx674,
with the latter serving as the master file. OWCP File No. xxxxxx674 has also been administratively combined with a
number of other claim files including an accepted as resolved right shoulder and upper arm strain/sprain under OWCP
File No. xxxxxx841, and a September 21, 2012 occupational disease claim OWCP File No. xxxxxx659, accepted for
right carpal tunnel syndrome and right trigger finger.

2

In a January 20, 2015 medical note, Dr. Raisis advised that appellant should not drive more
than 15 miles per day “for work purposes.” Medical evidence indicated that appellant was
complaining of increased pain when driving and wanted a job closer to home. No reasoning or
clarification was provided by the physician.
In a January 23, 2015 letter, the employing establishment advised OWCP that appellant
had provided a medical narrative informing them that she could no longer drive more than 15 miles
per day for work purposes. It noted that driving was not a requirement of her job and requested
further information pertaining to whether this request required consideration pertaining to a workrelated injury. The employing establishment further reported that appellant provided the
documentation to the reasonable accommodations team.
On January 29, 2015 appellant filed a notice of recurrence (Form CA-2a) under OWCP
File No. xxxxxx674, reporting that on January 28, 2015 the employing establishment informed her
that there was no available work within her restrictions. She indicated that the recurrence was
solely due to time loss from work after her supervisor informed her that no work was available
within her restrictions.
On February 23, 2015 OWCP requested clarification from the employing establishment as
to whether they could no longer accommodate the appellant at working two hours per day.
The employing establishment responded advising that appellant provided a limitation that
stated that she could not drive more than 15 miles per day for work, but that she lived more than
15 miles from her assigned-duty station. It noted that her modified-duty job was still available for
two hours per day, which did not entail any driving, but that management would not allow her to
drive to work in violation of what her physician wrote.
On February 27, 2015 OWCP advised the employing establishment that appellant’s claim
had been accepted for carpal tunnel and that it was reasonable to assume her work-related injury
prevented her from driving to work. It requested that the employing establishment consider
offering the position within the restrictions if available.
On March 6, 2015 OWCP referred appellant, along with a statement of accepted facts
(SOAF), for a second opinion examination with Dr. Robert F. Draper, a Board-certified orthopedic
surgeon. In a March 23, 2015 report, Dr. Draper noted that the claim was accepted for bilateral
carpal tunnel syndrome, bilateral lesion of ulnar nerve, right sprain of shoulder and upper arm, and
bilateral trigger finger. He reported that appellant continued to suffer from residuals of her
occupational injuries. Dr. Draper provided work restrictions, which included lifting no more than
10 pounds occasionally and 5 pounds frequently, and to avoid excessive use of the upper
extremities bilaterally. He further reported that appellant could drive for a total of one hour each
way, to and from work.
By decision dated March 30, 2015, OWCP denied appellant’s recurrence claim, finding
that the medical evidence of record was insufficient to establish a recurrence of disability
commencing January 29, 2015 due to a material change/worsening of her accepted work-related
conditions. It noted that the weight of the medical evidence rested with Dr. Draper.

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On April 13, 2015 appellant requested review of the written record by a representative of
OWCP’s Branch of Hearings and Review. An April 17, 2015 work capacity evaluation (Form
OWCP-5c) was submitted from her physician who reported that she could drive up to 20 miles at
a time, allowing for intermittent rest between standing and sitting.
By decision dated September 25, 2015, an OWCP hearing representative affirmed the
March 30, 2015 decision.
On June 27, 2016 appellant appealed to the Board.
On August 1, 2016 OWCP referred appellant, along with a SOAF, for a second opinion
examination with Dr. Steven J. Valentino, a Board-certified orthopedic surgeon. In his August 22,
2016 report, Dr. Valentino evaluated her and opined that she could work full time in a sedentary
capacity.
On December 20, 2016 the Board set aside OWCP’s September 25, 2015 decision, finding
that the decision was never received by appellant as it was returned to OWCP as undeliverable and
never resent or reissued in a timely manner.5 The Board remanded the case to OWCP for a de
novo decision.
Appellant continued to submit various medical documents discussing her treatment,
disability, and work restrictions.
Upon return of the case record from the Board, by decision dated February 8, 2017, an
OWCP hearing representative affirmed the March 30, 2015 decision.
On February 21, 2017 appellant appealed to the Board.
During the pendency of the appeal before the Board, OWCP referred appellant, along with
a SOAF, for an impartial medical examination to resolve the conflict in medical opinion between
Dr. Raisis, appellant’s attending physician, and Dr. Valentino, the second opinion physician,
pertaining to her work-related restrictions and whether she could drive to and from work for more
than 15 miles per day. In a January 25, 2018 medical conflict statement, OWCP requested the
impartial medical examiner (IME) provide clarification pertaining to whether appellant required
driving restrictions based on the effects of the accepted work-related injuries.
On March 23, 2018 appellant was examined by Dr. Richard G. Schmidt, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict in medical opinion
surrounding her work-related restrictions. Dr. Schmidt noted issues pertaining to her bilateral
carpal tunnel, ulnar nerve dysfunction, right shoulder sprain, acromioclavicular joint (AC) arthritis,
and multiple trigger finger problems. He opined that appellant was capable of working in a fulltime, sedentary position. Dr. Schmidt concluded that he agreed with the restrictions imposed by
Dr. Valentino and would not impose any restrictions on her ability to drive during her commute to
and from work.

5

Order Remanding Case, Docket No. 16-1412 (issued December 20, 2016).

4

By decision dated August 9, 2018, the Board set aside the February 8, 2017 decision,
finding that OWCP failed to follow its instructions on remand.6 The Board again remanded the
case for OWCP to issue a de novo decision as previously ordered by the Board.
By de novo decision dated January 8, 2019, OWCP denied appellant’s recurrence claim,
finding that evidence of record was insufficient to establish disability due to a material
change/worsening of her accepted work-related conditions.
On January 22, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. In an accompanying narrative statement, she argued
that her claim was improperly denied. Appellant listed the submission of 30 documents in support
of her claim and reiterated that she had filed a recurrence claim because the light-duty position
made specifically to accommodate her was withdrawn by the employing establishment on
January 29, 2015. She asserted that her supervisor provided no explanation as to why she was
denied work and sent home on January 29, 2015. Appellant noted accepting an offer of modified
assignment from the employing establishment in late 2014. Following her return to work as a
modified clerk, appellant submitted additional work restrictions from her physician, which limited
driving to and from work. She noted that she was working in the modified position for almost two
months before her supervisor instructed her that there was no work available within her
restrictions.
In support of her claim, appellant submitted documentation from the employing
establishment pertaining to her offer of modified assignment and request for reasonable
accommodations, various correspondence from OWCP, and prior medical reports discussing her
work limitations.
An oral hearing was held on June 12, 2019.
By decision dated August 9, 2019, OWCP’s hearing representative affirmed the January 8,
2019 decision.
On August 19, 2019 appellant requested reconsideration of the August 9, 2019 decision.
She noted that both the second opinion physician and IME agreed with her attending physician’s
prior work restrictions and only disagreed about her capability to drive to and from work.
Appellant argued that Dr. Valentino and Dr. Schmidt should not have been afforded the weight of
the medical evidence as they only evaluated her on one occasion. She asserted that her attending
physician provided the most relevant assessment because he was well acquainted with her detailed
medical history and conditions from treating her throughout the years. Appellant further argued
that the physicians selected by OWCP are not impartial. She explained that she filed the Form
CA-2a due to loss time from work after she was denied work by the employing establishment.
Appellant argued that her recurrence claim was filed because of the withdrawal of her light-duty
assignment made specifically to accommodate her work-related conditions. She further noted that
her work restrictions were permanent and had been in place for over 13 years determined by
previous functional capacity evaluations. As such, the employing establishment provided her
modified-job assignments within these restrictions. Appellant referenced Dr. Raisis’ prior medical
6

Order Remanding Case, Docket No. 17-0771 (issued August 9, 2018).

5

reports, which found that she had reached maximum medical improvement, that her conditions
were permanent in nature, and that she experienced upper extremity pain when driving a car for a
long time. She argued that Dr. Raisis never opined that her work restrictions were due to a
change/worsening of her accepted work-related conditions. Rather, these restrictions were
provided as a result of her initial work-related injuries. Appellant provided supporting
documentation for her arguments including correspondence from the employing establishment, the
January 28, 2015 Form CA-2a, prior medical reports, and two accepted offers of modified-job
assignment from the employing establishment.
By decision dated May 5, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.10 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.11

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); see L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see also H.H., Docket No. 18-1660 (issued March 14, 2019); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
9
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
10

Id. at § 10.608(a). See also D.P., Docket No. 19-0001 (issued June 13, 2019); M.S., 59 ECAB 231 (2007).

11
Id. at § 10.608(b); S.M., Docket No. 18-1158 (issued January 16, 2019); J.F., Docket No. 17-1508 (issued
March 28, 2018); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.
On reconsideration, appellant submitted a relevant legal argument not previously
considered. She asserted that she had accepted an offer of a modified-duty assignment and worked
for two hours per day based on these restrictions prior to the withdrawal of her limited-duty
position. Appellant alleged that when she requested additional work restrictions pertaining to her
commute, the employing establishment withdrew the current light-duty position she had been
assigned. She argued that OWCP did not acknowledge that her actual modified employment
position had been withdrawn. Appellant explained that she was not alleging a material
change/worsening of her work-related conditions, but was rather alleging a recurrence of disability
due to withdrawal of her light-duty position.
As this argument is relevant to the underlying issue of whether appellant has established a
recurrence of disability due to withdrawal of a light-duty assignment, the Board finds that
reconsideration of the merits of the claim is warranted.12 This legal argument requires reopening
of appellant’s claim for merit review pursuant to the second prong of section 10.606(b).13
Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20
C.F.R. § 10.608. The case shall therefore be remanded to OWCP for consideration of the merits
of appellant’s claim, to be followed by an appropriate merit decision.14
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.

12

B.S., Docket No. 20-0555 (issued April 22, 2021).

13

See M.E., Docket No. 20-0067 (issued October 15, 2020); C.H., Docket No. 17-1065 (issued December 14,
2017); J.W., Docket No. 18-0822 (issued July 1, 2020); D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R.
Mroczkowski, 40 ECAB 855 (1989).
14

V.S., Docket No. 20-0502 (issued December 31, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 20, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Millbrae, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0553
Issued: November 5, 2018

Case Submitted on the Record

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

JURISDICTION
On January 19, 2018 appellant filed a timely appeal from two December 5, 2017 merit
decisions and a January 3, 2018 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 the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a traumatic
injury in the performance of duty on November 11, 2014, as alleged, and if so, whether he is
entitled to continuation of pay (COP); and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 20, 2017 appellant, then a 54-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 11, 2014 he injured his left knee while in the
1

5 U.S.C. § 8101 et seq.

performance of his federal employment “at a tree root” in front of a house … while delivering mail
weather raining and dark.” The employing establishment controverted the claim alleging that
appellant’s supervisor was not aware of the incident. It also controverted continuation of pay as
the injury was not reported on a Form CA-1 within 30 days following the injury.
By development letter dated October 26, 2017, OWCP notified appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence required and attached a questionnaire for his completion. OWCP afforded him 30 days
to provide the necessary information.
The employing establishment submitted a statement confirming that appellant had
delivered mail on November 11, 2014.
On March 13, 2015 Dr. Alberto Bolanos, a Board-certified orthopedic surgeon, related that
a left knee magnetic resonance imaging (MRI) scan, taken on February 17, 2015, showed a tear of
the posterior horn of the medial meniscus and grade 4 chondromalacia of the trochlea. He noted
that a right knee MRI scan of the same day showed grade 2-3 chondromalacia of the trochlea, but
no meniscal tear. Dr. Bolanos diagnosed left knee medial meniscal tear and chondromalacia of
the trochlea, right knee chondromalacia on MRI scan, mild left hip arthritis with moderate
symptoms, and lumbar spondylosis with chronic low back pain and possible radiculopathy,
recently severe.
On April 13, 2015 Dr. Bolanos performed a left knee arthroscopy with resection of the
posterior horn and the medial meniscus, and resection of the free edge tear of the mid body of the
lateral meniscus. He noted that grade 3-4 chondromalacia of the trochlea was found and a
chondroplasty was performed. Dr. Bolanos followed up with appellant after the surgery on
April 30 and June 11, 2015. He noted in his June 11, 2015 report that appellant was still having
some pain in his left knee, but less than previously.
The record also contains disability notes signed by Dr. Bolanos indicating that appellant
was seen on December 16, 2014, and February 13 and June 11, 2015.
By decision dated December 5, 2017, OWCP determined that appellant was not entitled to
continuation of pay for the period November 12 to December 26, 2014 as his injury was not
reported on a form approved by OWCP within 30 days following the alleged injury.
In a separate decision dated December 5, 2017, OWCP denied appellant’s claim, finding
that he had not submitted sufficient evidence to establish that the incident occurred as alleged. It
also noted that the medical documentation was insufficient to establish that a diagnosed medical
condition was causally related to the alleged work injury or event.
On December 19, 2017 appellant requested reconsideration. He noted that he immediately
reported his injury to his supervisor, who asked him to continue working and finish delivering the
mail. Appellant noted that he had no choice, but to continue to work, and did not go to the doctor
that day because he had to pick up his children at school. He noted that he started having severe
pain, but his supervisor rejected his request for days off. Appellant alleged that his supervisor did
not document his injury when he reported it to him.

2

By decision dated January 3, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review. It noted that he had not submitted a statement describing how
the incident occurred. OWCP further noted that appellant had not submitted medical evidence
establishing a diagnosed medical condition causally related to the alleged employment incident.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA2 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether the fact of injury has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.4 The second component is whether the employment incident caused a personal
injury.5 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.6
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.7 Moreover,
an injury does not have to be confirmed by eyewitnesses.8 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 of proof to establish 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

2

Id.

3

S.S., Docket No. 16-1760 (issued January 23, 2018).

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
6

Shirley Temple, 48 ECAB 404, 407 (1997).

7

D.P., Docket No. 18-0190 (issued May 22, 2018).

8

S.B., Docket No. 17-1779 (issued February 7, 2018).

3

medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statement
in determining whether a prima facie case has been established.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on November 11, 2014, as alleged.
On his traumatic injury claim form, appellant indicated that he injured his left knee “at a
tree root in front of a house ... while delivering mail weather raining and dark.” By letter dated
October 26, 2017, OWCP asked appellant to provide a more detailed description as to how the
injury occurred. OWCP also asked appellant to explain why he did not report the injury to his
supervisor within 30 days. He did not respond to this letter.
The Board finds that appellant has not provided sufficient detail to establish that a traumatic
incident occurred as alleged.10 Appellant’s description of the traumatic incident is vague and fails
to provide any specific detail to determine the manner in which he sustained his claimed injury.11
He did not respond to the questionnaire and he failed to provide a narrative statement detailing the
traumatic incident prior to the issuance of OWCP’s denial of his claim on December 15, 2017. By
failing to describe the employment incident and circumstances surrounding his alleged injury, the
Board finds that the evidence of record is insufficient to establish that the traumatic injury occurred
on November 11, 2014 as alleged.12
Furthermore, while an injury does not have to be confirmed by eyewitnesses in order to
establish that an employee sustained an injury in the performance of duty, the employee’s
statement must be consistent with the surrounding facts and circumstances and his subsequent
course of action.13 Appellant alleged that the incident occurred on November 11, 2014, but he did
not file a claim until almost three years later on October 20, 2017. Furthermore, the first indication
that appellant sought treatment for a left knee condition was not until he sought treatment on
March 13, 2015 with Dr. Bolanos. The Board also notes that the employing establishment
indicated on the claim form that it was not aware of the incident. As there are significant
inconsistencies in the record that cast doubt on appellant’s claim, appellant has not established that
the November 11, 2014 incident occurred, as alleged. As such, it is unnecessary to address the
medical evidence regarding causal relationship.14

9

D.C., Docket No. 17-0993 (issued November 20, 2017).

10

A.E., Docket No. 17-0522 (issued April 13, 2018).

11

Id.

12

G.L., Docket No. 17-1635 (issued December 5, 2017).

13

R.B., Docket No. 18-0007 (issued April 2, 2018).

14

See T.N., Docket No. 15-1099 (issued December 16, 2016).

4

The Board also finds that because appellant’s traumatic injury claim is denied he is not
eligible for continuation of pay (COP). To be eligible for COP an employee must have an
established traumatic injury which is employment related.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRCEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with discretionary authority to determine whether it
will review an award for or against compensation either under its own authority or on application
by a claimant.16 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).17 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.18 Section 10.608(b) provides that when a request for reconsideration is
timely, but fails to meet at least one of these requirements, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim.
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law. Moreover, appellant has not advanced a relevant legal argument
not previously considered. As such, he is 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).
OWCP denied appellant’s claim as it determined that he had failed to establish that the
employment incident occurred as alleged. The only evidence submitted on reconsideration was
his statement. In his undated statement, received by OWCP on November 11, 2017, appellant
again indicated that he was injured on November 11, 2017 [sic], and that he immediately reported
the injury to the supervisor. He still did not address how the employment incident occurred. The
Board has held that the submission of evidence or argument which repeats or duplicates evidence
15

See 20 C.F.R. § 10.205(a)(1); see also C.B., Docket No. 13-0760 (issued June 20, 2013).

16

5 U.S.C. § 8128(a).

17

20 C.F.R. § 10.608(b).

18

Id. at § 10.606(b)(3).

19

Id. at § 10.608(b).

5

or argument already in the case record does not constitute a basis for reopening a claim.20
Appellant’s statement indicated that he sustained pain at work, but does not discuss how the injury
occurred. His statement is general in nature and does not constitute relevant and pertinent new
evidence sufficient to reopen his claim for merit review. As noted, the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a claim.21
The Board finds that, as appellant did not satisfy any of the three requirements under
section 10.606(b)(3) to warrant further merit review of his claim, OWCP properly denied his
request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury on November 11, 2014 in the performance of duty, as alleged and, thus, he was not entitled
to COP. The Board also finds that OWCP properly denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 3, 2018 and December 5, 2017 regarding denial of

20

See J.H., Docket No. 17-0826 (issued August 22, 2018).

21

S.T., Docket No. 17-0790 (issued May 22, 2018).

6

reconsideration and performance of duty, respectively, are affirmed. The December 5, 2017
decision regarding COP is affirmed as modified.
Issued: November 5, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Boise, ID, Employer )
__________________________________________ )
S.S., Appellant

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

Docket No. 08-424
Issued: June 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 23, 2007 appellant filed a timely appeal from the September 14, 2007
merit decision of the Office of Workers’ Compensation Programs denying her claim for a
recurrence of a medical condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of her medical condition, on or subsequent to April 5, 2007, that was causally related
to her accepted injury.
FACTUAL HISTORY
On February 10, 2003 appellant, a 49-year-old firefighter, filed a traumatic injury claim
alleging that she injured her left knee and back when she slipped and fell on wet pavement in an
employee parking lot on February 2, 2003. Her claim was accepted for a left medial meniscus
tear and subsequent partial meniscectomy. On August 15, 2003 appellant’s treating physician,

Dr. Field T. Blevins, a Board-certified orthopedic surgeon, released appellant to return to work
full duty.
In a report dated February 25, 2004, Dr. Blevins stated that appellant was doing quite
well and that she was experiencing no symptoms whatsoever in her left knee. The record
contains prescriptions for physical therapy signed by Dr. Blevins and numerous physical therapy
notes for the period March 24, 2003 through August 15, 2004.
On April 6, 2007 appellant filed a recurrence of her accepted condition. She stated that
she had been “fine” until the day before, when she experienced a sharp pain in her left knee
while biking/walking to get into shape for the “pack test.” Appellant did not stop working and
indicated that she sought medical treatment only.
Appellant submitted an April 6, 2007 report from Dr. Blevins, who described her
condition as “post left knee partial meniscectomy.” Dr. Blevins indicated that appellant had been
doing well, with lots of skiing and firefighting, until two weeks before, when she experienced a
“searing type of pain” in the patella region while “cycling uphill, pushing hard.” On
examination, he found her calves to be nontender and no evidence of effusion. There was no
medial pain with the patellar grind test. There was tenderness over the pes tendons and some
mild tenderness over the lateral epicondyle. Dr. Blevins stated that she “may have bruised the
patella or perhaps injured the chondral surface; however, she does not have swelling or
mechanical symptoms and most of her findings on examination today center around tenderness
at the pes tendon area a little bit over the iliotibial bend.”
On May 9, 2007 Dr. Blevins related appellant’s complaints of severe pain in her left
knee, especially when walking uphill. His examination revealed range of motion of 0 to 125
degrees, with negative effusion and negative grind. Dr. Blevins diagnosed patellofemoral pain,
left knee. On May 22, 2007 he found mild tenderness under the lateral aspect of the patella and
stated that a recent magnetic resonance imaging (MRI) scan revealed no significant
abnormalities. On June 12, 2007 Dr. Blevins noted a gradual improvement in patellofemoral
pain.
Appellant submitted notes signed by Ellen Tomsie, a physical therapist. On May 16,
2007 Ms. Tomsie indicated that appellant had a sudden onset of searing knee pain while riding a
bike during a training session last Spring. On June 18, 2007 she noted appellant’s progress in the
left knee condition.
In a letter dated June 21, 2007, the Office informed appellant that the information
submitted was insufficient to establish that her current condition was causally related to the
accepted left knee injury. The Office advised her to submit a physician’s narrative report with a
diagnosis and a rationalized opinion explaining how her current condition was related to the
original February 2, 2003 injury.
Appellant submitted a position description for a supervisory range/forestry technician.
She submitted physical therapy notes from Ms. Tomsie for the period June 8 through 25, 2007.
Appellant also submitted a May 18, 2007 report of an MRI scan of the left knee. The report
revealed findings of a prior meniscal surgery and identified only a small amount of meniscal tear.

2

In a July 2, 2007 report, Dr. Blevins indicated that appellant was capable of performing
her regular duties. He opined that “based upon appellant’s history, the current pain likely
originated at the time of the original February 3, 2003 injury.” Dr. Blevins further stated that the
“recurrence of symptoms of anterior knee pain is very likely related to the original injury.” On
July 3, 2007 he diagnosed anterior left knee pain. Dr. Blevins stated, “[a]ppellant relates her
symptoms to the injury in 2003.”
In a July 13, 2007 statement, appellant indicated that her physical condition was good
until April 5, 2007, when she engaged in training for the arduous “pack test.” The test, which is
a requirement of her employment position, involves carrying 45 pounds for three miles in 45
minutes. Appellant stated, “I know this is a recurrence of disability because I have never had
knee trouble until my original injury.”
By decision dated September 14, 2007, the Office denied appellant’s recurrence claim, on
the grounds that the medical evidence was insufficient to show that her current medical condition
was due to the accepted work injury.
LEGAL PRECEDENT
Appellant has the burden of establishing that she sustained a recurrence of a medical
condition1 that is causally related to her accepted employment injury. To meet her burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.2 Where no such
rationale is present, the medical evidence is of diminished probative value.3
The Office’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an

1

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).
2

Ronald A. Eldridge, 53 ECAB 218 (2001).

3

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

3

attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.4
ANALYSIS
Appellant has not met her burden of proof to establish that she sustained a recurrence of a
medical condition on or subsequent to April 5, 2007. The Office accepted appellant’s
February 10, 2003 traumatic injury claim for left medial meniscus tear and subsequent left knee
partial meniscectomy. Appellant has alleged that, on April 5, 2007, she experienced an onset of
searing knee pain while riding a bike during a training session. However, she has failed to
produce any rationalized medical opinion evidence establishing that she required further medical
treatment for a continuing employment-related condition.
On February 25, 2004 Dr. Blevins reported that appellant was doing quite well and that
she was experiencing no symptoms whatsoever in her left knee. The record contains
prescriptions for physical therapy signed by Dr. Blevins and numerous physical therapy notes for
the period March 24, 2003 through August 15, 2004. There is no evidence of record establishing
that appellant received medical treatment for her accepted condition between August 15, 2004
and April 6, 2007, when she was again examined by Dr. Blevins. As computed from the date of
the last physical therapy session on August 15, 2004, the treatment on April 6, 2007 was
rendered more than 90 days after appellant’s release from medical care. Therefore, appellant
was responsible for submitting an attending physician’s report containing a description of the
objective findings and supporting causal relationship between her current condition and the
previously accepted work injury.5 She had the burden of submitting sufficient medical evidence
to document the need for further medical treatment.6 Appellant did not submit the evidence
required and thus failed to establish a need for continuing medical treatment.7
Dr. Blevins’ reports do not establish that appellant’s current knee condition was causally
related to the accepted employment injury. On April 6, 2007 he stated that appellant had been
doing well, with lots of skiing and firefighting, until two weeks before, when she experienced a
“searing type of pain” in the patella region while “cycling uphill, pushing hard.” Dr. Blevins
provided examination findings and stated that appellant “may have bruised the patella or perhaps
injured the chondral surface.” His report is speculative and fails to provide a definitive
diagnosis. Moreover, it does not contain an opinion that appellant’s current condition was

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id., at Chapter 2.1500.5(a).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

6

20 C.F.R. § 10.5(y).

7

See J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006).

4

related to the original February 2, 2003 injury. Rather, it implies that appellant may have
sustained a new injury while cycling. For these reasons, the report is of limited probative value.
In reports dated May 9 and 22 and June 12, 2007, Dr. Blevins related appellant’s
complaints of severe pain in her left knee and diagnosed patellofemoral pain, left knee.
However, none of these reports contained an opinion as to the cause of her condition. They are,
therefore, of diminished probative value.8
On July 2, 2007 Dr. Blevins indicated that appellant was capable of performing her
regular duties. He opined that “based upon appellant’s history, the current pain likely originated
at the time of the original February 3, 2003 injury.” Dr. Blevins further stated that the
“recurrence of symptoms of anterior knee pain is very likely related to the original injury.” His
report is speculative and unsupported by rationalized medical evidence explaining the nature of
the relationship between appellant’s knee condition and the accepted injury.9 Therefore, it, too,
is of diminished probative value. On July 3, 2007 Dr. Blevins noted appellant’s contention that
her symptoms were related to the injury in 2003. He did not express his own opinion, but rather
merely reported appellant’s belief that her current knee pain was related to the accepted injury.
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there was a causal relationship between her claimed condition and her
employment.10
Appellant submitted physical therapy notes from Ms. Tomsie. Physical therapists do not
qualify as “physicians” under the Federal Employees’ Compensation Act. Therefore, their
opinions are of no probative value.11 Reports of MRIs scan and x-rays, which do not contain an
opinion as to the cause of appellant’s condition, are of diminished probative value and are
insufficient to establish appellant’s claim.12
The Board finds that the evidence submitted was insufficient to establish that appellant
sustained a recurrence of a medical condition and the Office properly denied her claim.

8

See Mary E. Marshall, 56 ECAB 420, 427 (2005).

9

While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The
opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition
for which compensation is claimed is causally related to federal employment and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow,
50 ECAB 370 (1999).
10

Patricia J. Glenn, 53 ECAB 159 (2001).

11

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.”
12

See Mary E. Marshall, supra note 8.

5

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of a medical condition that was causally related to her accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 08-441
Issued: June 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 28, 2007 appellant timely appealed the October 30, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied his September 13,
2007 request for reconsideration. He also timely appealed the October 26, 2007 merit decision
denying wage-loss compensation on or after June 7, 2007. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d), the Board has jurisdiction over the merits of appellant’s claim for wage-loss
compensation beginning June 7, 2007.1

1

The record on appeal includes additional medical evidence received after the Office issued its October 26, 2007
merit decision. Although this evidence is relevant to appellant’s claim for wage-loss compensation beginning
June 7, 2007, the Board cannot consider evidence for the first time on appeal. The review of a case shall be limited
to the evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c).

ISSUES
The issues are: (1) whether the Office properly denied appellant’s September 13, 2007
request for reconsideration under 5 U.S.C. § 8128(a); and (2) whether appellant was disabled
from June 7 to July 7, 2007 due to his September 20, 1996 employment injury.
FACTUAL HISTORY
Appellant, a 48-year-old letter carrier, has an accepted occupational disease claim for
bilateral carpal tunnel syndrome and left lunotriquetral ligament tear, which arose on or about
September 20, 1996. In 2003 he underwent three surgical procedures involving his left upper
extremity. The Office approved all three procedures. Appellant returned to his regular duties on
February 25, 2004. However, this was short-lived. Appellant filed a notice of recurrence on
March 24, 2004. He claimed he had not fully recovered from his injuries when he returned to his
regular duties on February 25, 2004. Nonetheless, appellant attempted to perform his regular
duties until March 16, 2004, when he could no longer continue. The employing establishment
provided appellant light-duty work effective March 17, 2004. On May 26, 2004 the Office
accepted appellant’s recurrence of disability beginning February 25, 2004.
In a decision dated August 19, 2005, the Office terminated appellant’s entitlement to
continuing disability on the basis that he was no longer disabled from performing his date-ofinjury position. However, he remained eligible for medical benefits.2 The decision was based on
the December 9, 2004 and February 15, 2005 reports of Dr. Peter D. Wirtz, a Board-certified
orthopedic surgeon and impartial medical examiner.3
Appellant subsequently requested an oral hearing, which was held on June 27, 2006. No
additional medical evidence was admitted into the record. By decision dated September 12,
2006, the Office hearing representative affirmed the termination of compensation benefits
effective August 19, 2005. Appellant remained eligible for medical benefits.
In February 2007, the Office received a request for authorization for a right carpal tunnel
release from Dr. John G. Piper, a Board-certified neurosurgeon. The Office granted Dr. Piper’s
request on March 15, 2007.
On July 16, 2007 appellant filed a claim for compensation (Form CA-7) for the period
June 7 to July 7, 2007. The employing establishment certified that appellant had stopped work
on June 7, 2007 and returned to limited duty effective July 10, 2007. The Office initially
received a June 7, 2007 preoperative electrocardiogram and a July 6, 2007 duty status report
(Form CA-17).

2

The Office issued a corrected copy of the decision on August 29, 2005. The August 19, 2005 decision
incorrectly identified the date of injury and the position appellant held at the time of injury.
3

The Office found a conflict of medical opinion between appellant’s treating physician, Dr. Timothy M.
Schurman, a Board-certified plastic surgeon, with a subspecialty in hand surgery and Dr. Keith W. Riggins, a Boardcertified orthopedic surgeon and Office referral physician.

2

By letter dated July 26, 2007, the Office advised appellant that there was no evidence to
support his absence from work for the period June 7 to July 7, 2007. The Office further
explained that, while surgery had been authorized, there was no evidence, such as an operative
report, to establish that the surgery had occurred. Appellant was afforded 30 days to submit the
requisite evidence to support his claimed disability for work due to his accepted employment
injury.
The Office subsequently received a July 23, 2007 duty status report, a July 23, 2007
referral for physical therapy, and physical therapy treatment records for the period July 25 to
August 24, 2007. The physical therapy records indicated, among other things, that appellant had
undergone a carpal tunnel surgery on June 6, 2007. Appellant was released to resume his fulltime regular duties effective September 12, 2007.
On September 13, 2007 the Office received an undated request for reconsideration of the
hearing representative’s September 12, 2006 decision affirming the termination of compensation
effective August 19, 2005. Appellant stated that he was submitting additional pertinent evidence
not previously considered. The request was accompanied by a September 6, 2007 report from
Dr. Douglas S. Reagan, a Board-certified orthopedic hand surgeon, who had been treating
appellant since October 2006. Dr. Reagan noted that appellant’s primary pain had been over the
dorsal ulnar wrist area, however, he did not specify whether it was the left wrist, right wrist or
both. He also discussed various surgical procedures that might alleviate appellant’s ongoing
symptoms, which he considered to be employment related.
In a decision dated October 26, 2007, the Office denied appellant’s claim for wage-loss
compensation for the period June 7 to July 7, 2007. The Office noted that there was no medical
evidence explaining appellant’s month-long absence from work beginning June 7, 2007.
By decision dated October 30, 2007, the Office denied reconsideration of the hearing
representative’s September 12, 2006 decision.4 The Office found that appellant failed to provide
any evidence demonstrating his inability to perform his date-of-injury job. Consequently, there
was no basis to review the Office’s decision terminating appellant’s entitlement to continuing
disability effective August 19, 2005.
LEGAL PRECEDENT -- ISSUE 1
The Office has the discretion to reopen a case for review on the merits.5 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.6
4

The Office mistakenly identified the prior decision as having been issued September 13, 2007.

5

5 U.S.C. § 8128(a) (2000).

6

20 C.F.R. § 10.606(b)(2).

3

Section 10.608(b) provides that, when an application for reconsideration does not meet at least
one of the three requirements enumerated under section 10.606(b)(2), the Office will deny the
application for reconsideration without reopening the case for a review on the merits.7
ANALYSIS -- ISSUE 1
Appellant’s request for reconsideration, which the Office received on September 13,
2007, neither alleged nor demonstrated that the Office erroneously applied or interpreted a
specific point of law. Additionally, he did not advance a relevant legal argument not previously
considered by the Office. Therefore, appellant is 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)(2).8
Appellant also failed to satisfy the third requirement under section 10.606(b)(2).
Although he claimed to have submitted pertinent evidence not previously considered by the
Office, Dr. Reagan’s September 6, 2007 report did not provide a basis for reopening the claim
for merit review. Dr. Reagan did not specifically address appellant’s ability to perform his fulltime regular duties as a letter carrier. Thus, while his report was new to the record, it was not
relevant to the issue of whether appellant was disabled from performing his date-of-injury job.
Dr. Reagan identified specific upper extremity symptoms, which he related to appellant’s
employment injury. He also discussed various surgical procedures he believed could possibly
resolve appellant’s symptoms. But Dr. Reagan offered no opinion on the pertinent issue of
whether appellant was capable of performing his date-of-injury job duties. Because his
September 6, 2007 opinion is not relevant to the issue on reconsideration, appellant is not
entitled to a review of the merits of his claim based on the third requirement under section
10.606(b)(2).9 As appellant was not entitled to a review of the merits of his claim pursuant to
any of the three requirements under section 10.606(b)(2), the Office properly denied the
September 13, 2007 request for reconsideration.
LEGAL PRECEDENT -- ISSUE 2
A claimant has the burden of establishing the essential elements of his claim, including
that the medical condition for which compensation is claimed is causally related to the claimed
employment injury.10 For wage-loss benefits, the claimant must submit medical evidence
showing that the condition claimed is disabling.11 The evidence submitted must be reliable,
probative and substantial.12

7

Id. at § 10.608(b).

8

Id. at § 10.606(b)(2)(i) and (ii).

9

Id. at § 10.606(b)(2)(iii).

10

Id. at § 10.115(e) (2007); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

11

20 C.F.R. § 10.115(f).

12

Id. at § 10.115.

4

ANALYSIS -- ISSUE 2
Appellant claimed that from June 7 to July 7, 2007 he was recuperating from recent
carpal tunnel surgery. The Office authorized a right carpal tunnel release in March 2007 and his
July 25, 2007 physical therapy records indicated that he had undergone a carpal tunnel release on
June 6, 2007. This evidence, however, is insufficient to establish that appellant was disabled
from June 7 to July 7, 2007 due to his September 20, 1996 employment injury. The Office
advised him on July 26, 2007 that the record was insufficient to establish entitlement to wageloss compensation for the period June 7 to July 7, 2007. Appellant was afforded 30 days to
submit evidence in support of the claimed period of disability, however, he did not respond in a
timely fashion. On October 26, 2007 the Office denied wage-loss compensation because there
was no medical evidence explaining appellant’s month-long absence from work beginning
June 7, 2007. Because the record before the Office at that time did not support his claim to wage
loss for the period June 7 to July 7, 2007, the Board must affirm the October 26, 2007 decision.13
CONCLUSION
Appellant did not establish entitlement to wage-loss compensation for the period June 7
to July 7, 2007. The Board further finds that the Office properly denied appellant’s
September 13, 2007 request for reconsideration.

13

The information the Office had previously requested was received just a few days after it issued the October 26,
2007 decision denying wage-loss compensation. The Board, however, is not permitted to consider new evidence on
appeal. 20 C.F.R. § 10.501.2(c). Appellant may file a request for reconsideration with the Office in order for this
additional evidence to be properly considered. 20 C.F.R. § 10.606(b)(2).

5

ORDER
IT IS HEREBY ORDERED THAT the October 30 and 26, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 6, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David Dillard, for the appellant
Office of Solicitor, for the Director

Docket No. 11-368
Issued: October 6, 2011

Case Submitted on the Record

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

JURISDICTION
On December 3, 2010 appellant, through his representative, filed a timely appeal from an
October 20, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that his right
shoulder condition is causally related to a December 6, 2009 employment incident, as alleged.
On appeal appellant’s representative explained that appellant misunderstood OWCP’s
December 23, 2009 inquiry regarding “any similar disability or symptoms before the injury” to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the issuance of the October 20, 2010 OWCP decision and on appeal appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

mean the time immediately preceding the alleged December 6, 2009 injury. Appellant did not
mention his 1999 rotator cuff surgery because it was successful, he returned to full-duty work
and he was not experiencing any pain or discomfort until the evening of December 6, 2009. He
also contends that OWCP attempted to discredit appellant’s statements by pointing out that he
described his action on December 6, 2009 as “pulling” off-the-road containers (OTRs) and
Dr. Francis Mercado, a Board-certified internist, referred to it as “throwing.”
FACTUAL HISTORY
On December 11, 2009 appellant, then a 57-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on December 6, 2009 he sustained a right shoulder
rotator cuff injury while pulling OTRs from vans in the performance of duty. His supervisor
indicated that appellant did not feel any pain or discomfort while performing his duties.
Appellant felt sharp pain while at home on his day off and did not seek medical treatment until
three days later.
By letter dated December 23, 2009, OWCP notified appellant that the evidence submitted
was insufficient to support his claim. It allotted 30 days for him to submit additional evidence
and respond to its inquiries.
In a December 11, 2009 medical report, Dr. John W. Fuchs, a family medicine physician,
diagnosed acute bursitis with rotator cuff syndrome and opined that there was a strong likelihood
of a rotator cuff tear. He reported that appellant twisted his shoulder while moving OTRs on
December 6, 2009, initially had pain in the anterior compartment and some paresthesias and loss
of grip strength in the right arm, and could not raise his arm to brush his teeth and could hardly
use it for any activities of daily living by the following morning. Dr. Fuchs indicated that
appellant had only 25 percent of forward abduction and 20 percent of lateral abduction in the
right shoulder and could not lift up his arm. Appellant could place his arm across his chest with
assistance, three rotator cuff signs and maneuvers localized to the anterior capsule of the
shoulder, and was point tender over the biceps groove and in the anterior shoulder compartment.
Dr. Fuchs noted appellant’s history of chronic pain syndrome since 2001, impingement
syndrome of the right shoulder and right rotator cuff repair in 1999.
In a December 11, 2009 duty status report, Dr. Fuchs diagnosed rotator cuff tear and
advised appellant to return to work on December 11, 2009 with medical restrictions, including no
use of his right shoulder and arm for one month.
In a January 22, 2010 narrative statement, appellant explained that he did not
immediately seek medical attention because there were no immediate effects of the injury. He
stated that it took two days for him to realize that he had an injury due to other nonemploymentrelated pains.
By decision dated January 26, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence submitted was not sufficient to establish causal relationship.
Subsequently, appellant submitted a January 25, 2010 medical report by Dr. Mark A.
Friedman, a Board-certified orthopedic surgeon, that noted either right shoulder impingement

2

syndrome or recurrent right rotator cuff tear. Dr. Friedman’s reported that the right upper
extremity was grossly distally neurovascularly intact. Passively appellant had full elevation and
internal and external rotation, but actively he had difficulty elevating beyond 90 degrees.
Dr. Friedman opined that appellant’s strength was good with resisted external rotation and
supraspinatus testing. Appellant’s impingement signs were mixed. Dr. Friedman recommended
a magnetic resonance imaging (MRI) scan and surgical repair in the case of tear or retear of the
rotator cuff or physical therapy if no tear.
On April 7, 2010 appellant, through his representative, requested reconsideration and
submitted additional evidence in support of his claim.
Appellant submitted an August 3, 1999 medical record of his rotator cuff repair surgery, a
series of medical reports related to the 1999 surgery and duty status reports dated January 25,
April 12 and June 20, 2010.
In a December 10, 2009 medical report, David R. Brand, a physician’s assistant,
diagnosed rotator cuff tendinitis and restricted appellant from lifting more than 10 pounds with
his right arm.
In a January 28, 2010 radiological report by Dr. George T. Wang, a Board-certified
radiologist, who indicated that a right shoulder MRI scan revealed moderate amount of fluid in
the right subacromial-subdeltoid bursa, suggestive of bursitis, mild right supra and infraspinatus
tendinosis without evidence of significant retear, and that evaluation of the labrum was limited
without intraarticular contrast. He reviewed and compared January 25, 2010 right shoulder
radiographs. Dr. Wang reported appellant’s history of right shoulder pain since December 6,
2009 and rotator cuff surgery in 1999.
In a February 10, 2010 medical report, Dr. Mercado diagnosed right shoulder bursitis,
most likely resulting from a work injury on December 6, 2009, labral tears and right shoulder
pain. He opined that appellant may definitely have developed a bursitis and possible labral tears
from throwing the OTRs.
By decision dated October 20, 2010, OWCP denied modification of the January 26, 2010
decision on the grounds that the medical evidence submitted was not sufficient to establish
causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time

3

5 U.S.C. §§ 8101-8193.

3

limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of December 6, 2009 occurred at the
time, place and in the manner alleged. The issue is whether appellant’s right shoulder condition
resulted from the December 6, 2009 employment incident. The Board finds that appellant did
not meet his burden of proof to establish a causal relationship between the condition for which
compensation is claimed and the December 6, 2009 employment incident.
On December 11, 2009 Dr. Fuchs diagnosed acute bursitis with rotator cuff syndrome
and opined that there was a strong likelihood for a rotator cuff tear. He reported that appellant
twisted his shoulder while moving OTRs on December 6, 2009 and could hardly use it for any
activities of daily living by the following morning. In a December 11, 2009 duty status report,
Dr. Fuchs diagnosed rotator cuff tear and advised appellant to return to work that same day with
medical restrictions. In a January 28, 2010 radiological report, Dr. Wang indicated that a right
4

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

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

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

7

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

4

shoulder MRI scan revealed moderate amount of fluid in the right subacromial-subdeltoid bursa
which was suggestive of bursitis and diagnosed mild right supra and infraspinatus tendinosis
without evidence of significant retear. On February 10, 2010 Dr. Mercado diagnosed right
shoulder bursitis, most likely resulting from a December 6, 2009 work injury, labral tears and
right shoulder pain. He opined that appellant may definitely have developed a bursitis and
possible labral tears from throwing the OTRs. Although Drs. Fuchs, Wang and Mercado
provided firm diagnoses, they failed to directly address the issue of causal relationship as they
did not explain how the mechanism of the December 6, 2009 employment incident caused or
aggravated appellant’s right shoulder condition. Moreover, Drs. Fuchs and Mercado couched
their opinions in speculative terms. Therefore, appellant did not meet his burden of proof as the
medical reports of Drs. Mercado, Fuchs and Wang are not sufficient to establish that appellant
sustained an employment-related injury on December 6, 2009.
On January 25, 2010 Dr. Friedman diagnosed either right shoulder impingement
syndrome versus recurrent right rotator cuff tear. He reported that the right upper extremity was
grossly distally neurovascularly intact and appellant had difficulty elevating his arm beyond 90
degrees. Dr. Friedman opined that appellant’s impingement signs were mixed. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.8 The medical report of
Dr. Friedman does not provide a firm diagnosis or medical rationale explaining how appellant’s
right shoulder condition was caused or aggravated by the December 6, 2009 employment
incident. Lacking thorough medical rationale on the issue of causal relationship, the report is of
limited probative value and not sufficient to establish that appellant sustained an employmentrelated injury in the performance of duty on December 6, 2009.
The report from Mr. Brand, a physician’s assistant, is of no probative value as he is not a
physician under FECA.9 As such, the Board finds that appellant did not meet his burden of proof
with this submission.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to the indicated employment factors, he has
failed to meet his burden of proof.
On appeal appellant’s representative contends that OWCP attempted to discredit
appellant’s statements by pointing out that appellant described his action on December 6, 2009
as “pulling” whereas Dr. Mercado referred to it as “throwing.” As OWCP accepted the incident,
the Board finds that the representative’s argument is not substantiated.

8

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

9

5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

5

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 submitted sufficient rationalized medical opinion
evidence to establish that the December 6, 2009 employment incident was causally related to the
right shoulder condition. Therefore, appellant failed to meet his burden of proof to establish a
claim.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6