United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 15-375
Issued: April 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2014 appellant, through counsel, filed a timely appeal from the July 17,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On January 16, 2013 appellant, then a 39-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a strain due to the performance of his
repetitive work duties. He indicated that he first became aware of his claimed condition on
October 16, 2012 and that he first realized that it was caused or aggravated by his employment
1

5 U.S.C. §§ 8101-8193.

on January 3, 2013. Appellant did not stop work around the time he filed his claim but he
continued performing light-duty work.
In a January 3, 2013 “work ability” form report, Dr. James M. Daniels, an attending
Board-certified family medicine physician, diagnosed “atypical back pain since October” and
indicated that appellant could return to work on January 3, 2013 with restrictions, including no
lifting, pushing, or pulling more than 20 pounds. X-ray testing of appellant’s lumbar spine
obtained on January 3, 2013 showed no acute fracture or vertebrae subluxation, but did show
minimal degenerative disc disease. Dr. Daniels diagnosed “atypical back pain” in a January 11,
2013 “work ability” form report and chronic “facet symptoms” in a January 17, 2013 narrative
report. He continued to indicate that appellant could work with restrictions, including no lifting,
pushing, or pulling more than 20 pounds. On January 28, 2013 Dr. Daniels noted that appellant
had been complaining of back pain for a “number of months” as well as pain going into his
buttocks and stated, “He did prior to this work in landscaping and did a lot of heavy work, and he
also did a lot of weightlifting. We told him this probably can cause some increased degenerative
changes in his back. We told him most of all it [i]s most likely due to the fact that he smokes.”
Appellant also submitted January 7, 8, and 10, 2012 reports of Todd Watterkotte, an
attending physical therapist, who diagnosed lumbago and lumbar region sprain.
In a February 13, 2013 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his claim for a work-related occupational disease claim.
In an undated narrative statement received by OWCP on March 12, 2013, appellant stated
that his claimed work injury was due to the performance of his work duties over time, including
repeatedly bending over to fill his mailbag, inserting mail into mailboxes, getting parcels out of
his vehicle, carrying parcels up and down hills and flights of stairs, and carrying a mailbag
weighing more than 25 pounds on his shoulder. He indicated that, while collecting mail over the
prior three years, he constantly bent over to retrieve full tubs of mail out of collection boxes,
exited and entered his mail vehicle with full tubs of mail, and lifted full tubs of mail and parcels.
In a March 1, 2013 report, Dr. Daniels indicated that he “offered today to let [appellant]
back to full duty” but that he did not want to do that. He noted that appellant “more of less has a
facet problem” and discussed the possibility of performing additional testing to determine if he
had a spinal disc herniation.
In an April 1, 2013 decision, OWCP denied appellant’s claim because he did not submit
sufficient probative medical evidence to establish that he sustained an occupational disease in the
performance of duty. It found that the physical therapy reports appellant submitted did not
constitute medical evidence and determined that he did not submit medical evidence relating his
claimed occupational disease to work factors. OWCP stated, “You have established that you are
a federal civilian employee who filed a timely claim, and the evidence supports that the injury
and/or event(s) occurred as described; however, your claim for compensation is denied because
the medical component of the third basic element, fact of injury, has not been met.”
In an August 1, 2013 memorandum, counsel, on behalf of appellant, requested
reconsideration. He stated that appellant indicated that he should have filed a Form CA-1 for a
traumatic injury rather than a Form CA-2 for an occupational disease, and that the actual date of

2

injury was October 17, 2012 (rather than October 16, 2012). Counsel noted that appellant stated
that he was carrying a loaded mailbag over his shoulder when he felt a sharp pain shoot up his
back and down his leg.
Appellant submitted a June 3, 2013 report in which Dr. Daniels noted that he reported
that “back in October [2012] he was carrying some letters and started having pain in his low
back and maybe his hip area.” He indicated that appellant’s complaint was low back pain and
that the neurological examination was intact with no evidence of any type of long tract signs.
There was increased lordosis of the lumbosacral spine and more pain on back extension than
flexion. Under the diagnosis portion of the report, Dr. Daniels stated, “Nonspecific low back
pain most likely facet syndrome. Pain was atypical. We did do a metabolic workup and x-ray.”
Regarding causal relationship, Dr. Daniels noted:
“In my medical opinion, the facts of the injury are the direct and proximate cause
of the diagnosis I cited above. This is based on reasonable medical probability.
There may be other causes for this medical problem, but one of the causes is
clearly the activities of work described by the patient and described above.”
Appellant submitted additional physical therapy notes of Mr. Watterkotte dated between
January 15 and 25, 2013 as well as copies of previously submitted medical reports.
By decision dated July 17, 2014, OWCP affirmed its April 1, 2013 decision denying
appellant’s claim for an occupational disease, finding that the new medical evidence submitted
by appellant did not contain a rationalized medical opinion that he sustained a specific medical
condition due to work factors. It noted that appellant appropriately filed a claim for an
occupational disease as he claimed that his medical condition was due to exposure to work
factors over the course or more than one day or work shift.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4

2

OWCP stated, “If you are attributing your condition to an injury occurring on October 17, 2012, you should file
a [Form] CA-1, Notice of Traumatic Injury, and pursue a claim for a traumatic injury.
3

B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992 (1990); Ruthie M. Evans, 41 ECAB 416 (1990). A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift
whereas an occupational disease refers to an injury produced by employment factors which occur or are present over a
period longer than a single workday or work shift. 20 C.F.R. § 10.5(ee), (q); Brady L. Fowler, 44 ECAB 343 (1992).

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
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 claimant’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 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.5
Physical therapists are not physicians under FECA and therefore their opinions do not
constitute medical opinion evidence and have no weight or probative value on medical matters.6
ANALYSIS
On January 16, 2013 appellant filed an occupational disease claim alleging that he
sustained a strain due to the performance of his repetitive work duties over time, including
repeatedly bending over to fill his mailbag, inserting mail into mailboxes, getting parcels out of
his vehicle, carrying parcels up and down hills and flights of stairs, carrying a mailbag weighing
more than 25 pounds on his shoulder, bending over to retrieve full tubs of mail out of collection
boxes, exiting and entering his mail vehicle with full tubs of mail, and lifting full tubs of mail
and parcels. He indicated that he first became aware of his claimed condition on October 16,
2012 and that he first realized that it was caused or aggravated by his employment on
January 3, 2013.
The Board finds that appellant did not submit sufficient probative medical evidence to
establish that he sustained an occupational disease in the performance of duty.
In reports dated beginning in January 2013, Dr. Daniels, an attending Board-certified
family medicine physician, discussed appellant’s back complaints and diagnosed such conditions
as “atypical back pain since October” and chronic “facet symptoms.” He recommended lightduty work with restrictions, including no lifting, pushing, or pulling more than 20 pounds.
In a June 3, 2013 report, Dr. Daniels noted that appellant reported that “back in October
[2012] he was carrying some letters and started having pain in his low back and maybe his hip
area.” He indicated that appellant’s complaint was low back pain and that the neurological
5

See Donna Faye Cardwell, 41 ECAB 730 (1990).

6

C.E., Docket No. 14-710 (issued August 11, 2014); Jane A. White, 34 ECAB 515 (1983).

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examination was intact. Dr. Daniels diagnosed, “[n]onspecific low back pain most likely facet
syndrome” and noted that his pain was atypical. He stated, “In my medical opinion, the facts of
the injury are the direct and proximate cause of the diagnosis I cited above…. There may be
other causes for this medical problem, but one of the causes is clearly the activities of work
described by the patient and described above.”
The Board notes that the June 3, 2013 report of Dr. Daniels is of little probative value
regarding appellant’s occupational disease claim because he did not provide a rationalized
medical opinion relating a specific diagnosed condition to appellant’s performance of his work
duties over time. Dr. Daniels did not provide a clear opinion on appellant’s medical condition in
that he provided diagnoses such as “atypical pain” and nonspecific low back pain which was
“most likely facet syndrome.”7 Appellant provided a detailed description of his work duties but
Dr. Daniels did not show that he had a complete understanding of these duties as he merely noted
that appellant reported pain after “carrying some letters” in October 2012. Dr. Daniels did not
describe any medical process through which appellant’s particular work duties could have caused
a specific medical condition. Moreover, he did not adequately explain why appellant’s pain
complaints were not due to some nonwork-related condition such as the natural progression of
degenerative disc disease or nonwork-related activities.8 The record contains diagnostic testing
showing some degenerative disc disease of the low back and, in fact, Dr. Daniels suggested in a
January 28, 2013 report that activities unrelated to federal employment, such as weightlifting and
landscaping, could have aggravated this preexisting condition.
Appellant submitted notes of Mr. Watterkotte, a physical therapist, dated between
January and 25, 2013. However, these reports are of no probative value on the relevant issue of
the present case because physical therapists are not considered physicians under FECA and their
opinions do not constitute medical opinion evidence. Therefore, their reports have no weight or
probative value on medical matters.9
For these reasons, appellant did not establish that he sustained an occupational disease in
the performance of duty.10 Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty.
7

See C.F., Docket No. 08-1102 (issued October 10, 2008 (finding that pain is a symptom, not a compensable
medical diagnosis).
8

See Chris Wells, 52 ECAB 445 (2001) (finding that entitlement to compensation is shown when a factor of
employment aggravates, accelerates, or otherwise combines with a preexisting, nonoccupational pathology).
9

See id.

10

In a reconsideration letter, counsel suggested that appellant actually sustained a traumatic injury on
October 17, 2012. However, appellant implicated a number of work duties performed over a period of time as
causing his claimed condition and OWCP appropriately developed the case as a claim for a work-related
occupational disease.

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ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 12-284
Issued: September 4, 2012

Case Submitted on the Record

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

JURISDICTION
On November 23, 2011 appellant filed a timely appeal from an August 16, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a November 2, 2011
nonmerit decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment; and (2) whether OWCP properly denied appellant’s request for an oral hearing as
untimely.
On appeal, appellant contends that he was unfamiliar with the process of filing a claim
and requested reconsideration.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 21, 2011 appellant, then a 44-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed a bone spur on the fourth toe of his left foot due to
factors of his federal employment, such as walking in his work shoes. He first became aware of
his condition on July 2, 2010 and attributed it to his employment on February 10, 2011.
In a July 1, 2011 statement, appellant indicated that the injury began in July 2010. He
believed that his condition was caused by his daily 12- to 13-mile route in postal regulation shoes
and slip-on rubbers over the shoes.
By letter dated July 14, 2011, OWCP notified appellant of the deficiencies of his claim
and requested additional evidence, including medical documentation which contained a reasoned
opinion from his physician regarding how employment activities caused or aggravated the
claimed condition. It allotted 30 days for him to respond to its inquiries. Appellant did not
respond.
By decision dated August 16, 2011, OWCP denied the claim on the basis that the
evidence submitted was insufficient to establish fact of injury.
By appeal request form postmarked October 4, 2011 and received by OWCP on
October 11, 2011, appellant requested an oral hearing before an OWCP hearing representative,
via telephone, in connection with his claim.
By decision dated November 2, 2011, OWCP denied appellant’s request for an oral
hearing. It found that his request was untimely because it was not made within 30 days of its
August 16, 2011 decision. OWCP further indicated that it had exercised its discretion and
further denied appellant’s request for the reason that the relevant issue of the case could be
addressed by requesting reconsideration and submitting evidence not previously considered by
OWCP.2
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that he sustained an injury in the
performance of duty, he must submit sufficient evidence to establish that he experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.3

2

The Board notes that, following the issuance of the August 16, 2011 OWCP decision, appellant submitted new
evidence. The evidence was not reviewed by OWCP at the time it issued its November 2, 2011 nonmerit decision.
Therefore, the Board is precluded from reviewing the evidence as it was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).
3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

2

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion 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.4
ANALYSIS -- ISSUE 1
Appellant failed to meet his burden of proof to establish a prima facie claim that federal
employment factors caused his left foot condition.5 While he submitted a statement in which he
identified the factors of employment that he believed caused his condition, in order to establish
his claim that he sustained an employment-related injury, he must also submit rationalized
medical evidence which explains how his left foot condition was caused or aggravated by the
implicated factors.6
On July 14, 2011 OWCP notified appellant of the evidence needed to support his claim
and requested a physician’s report explaining how his condition was caused by factors of his
federal employment. Appellant did not respond. The Board finds that he did not provide the
factual and medical evidence required to establish a prima facie claim for compensation.7
Following the August 16, 2011 decision, appellant submitted medical reports to OWCP.
On appeal, he contends that he was unfamiliar with the process of filing a claim and requested
reconsideration. The Board cannot consider evidence for the first time on appeal, as its review is
limited to the evidence of record which was before OWCP at the time of its final merit decision.8
Appellant may submit the new evidence with a written request for reconsideration to OWCP

4

See J.L., Docket No. 11-771 (issued November 17, 2011); Solomon Polen, 51 ECAB 341 (2000).

5

See Donald W. Wenzel, 56 ECAB 390 (2005) (where the Board found that appellant did not establish a prima
facie claim. Appellant submitted a statement identifying employment factors without any medical documentation).
6

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

7

See Richard H. Weiss, 47 ECAB 182 (1995).

8

20 C.F.R. § 501.2(c).

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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 PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the FECA provides: “Before review under section 8128(a) of this
title [relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his] claim before a representative of the
Secretary.”9
Section 10.615 of Title 20 of the Code of Federal Regulations provide, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”10 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.11 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.12 In such a case, it will determine whether
to grant a discretionary hearing and, if not, will so advise the claimant with reasons.13
ANALYSIS -- ISSUE 2
Appellant had 30-calendar days from OWCP’s August 16, 2011 decision or until
September 15, 2011 to request an oral hearing. Because his request was postmarked October 4,
2011, his request was untimely. Appellant was not entitled to an oral hearing as a matter of right
under section 8124(b)(1) of FECA. Exercising its discretion to grant an oral hearing, OWCP
denied his request on the grounds that he could equally well address any issues in his case by
requesting reconsideration. Because reconsideration exists as an alternative appeal right to
address the issues raised by OWCP’s August 16, 2011 decision, the Board finds that OWCP did
not abuse its discretion in denying appellant’s untimely request for an oral hearing.14
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty causally related to factors of his federal
employment. The Board further finds that OWCP properly denied his request for an oral hearing
as untimely filed.
9

5 U.S.C. § 8124(b)(1).

10

20 C.F.R. § 10.615.

11

Id. at § 10.616(a).

12

See G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

13

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

14

See Gerard F. Workinger, 56 ECAB 259 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 2 and August 16, 2011 are affirmed.
Issued: September 4, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-1281
Issued: September 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 18, 2015 appellant filed a timely appeal from a March 4, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a back injury in
the performance of duty on January 16, 2015.

1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant indicates that she provided evidence to the employing establishment, but which was
submitted to OWCP after the March 4, 2015 decision. The Board’s review is limited to evidence that was before
OWCP at the time of the final decision. 20 C.F.R. § 501.2(c)(1). Appellant may submit new evidence to OWCP
along with a request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On January 28, 2015 appellant, then a 37-year-old letter carrier, filed a Form CA-1
(traumatic injury claim) alleging that she sustained a back injury on January 16, 2015. She
submitted a brief undated statement that her truck had broken down for two days, and she had to
load her mail satchel and walk three to four blocks to deliver the mail. Appellant stopped work
on January 16, 2015 and returned to work on January 27, 2015. On the reverse side of the claim
form, her supervisor stated that appellant had told management of back pain several days before
the alleged incident.
Appellant submitted medical evidence including a form report dated January 16, 2015
indicating that she was treated by Dr. Jessica Wyant, Board-certified in emergency medicine,
with a diagnosis of low back pain and thoracic spine strain. In a note dated January 20, 2015,
Dr. Laura Asher, a family practitioner, indicated that appellant was unable to work from
January 18 to 27, 2015. The record also contains a duty status report (Form CA-17) dated
January 20, 2015 from an internist diagnosing back pain and thoracic spine sprain.3 The report
indicated that appellant could return to light duty on January 27, 2015.
OWCP requested that appellant submit additional factual and medical evidence in a letter
dated January 30, 2015. As to factual evidence, it noted that it was not clear whether she was
claiming an injury during a single workday (traumatic injury) or over more than a single
workday (an occupational disease or illness). Appellant was instructed to provide a detailed
description of how the injury occurred and other relevant details. In addition, OWCP indicated
that she should submit supporting medical evidence with an opinion on causal relationship
between a diagnosed condition and the work incident.
In a report dated February 9, 2015 from Dr. Christina Hunter, an internist, it was noted
that appellant was seen on that day for low back pain and referred for physical therapy.
By decision dated March 4, 2015, OWCP denied the claim for compensation. It found
that appellant had not submitted sufficient factual and medical evidence to establish the claim.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”4 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”5 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.6 In order to determine whether
3

The signature of the physician is illegible.

4

5 U.S.C. § 8102(a).

5

Valerie C. Boward, 50 ECAB 126 (1998).

6

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.7
OWCP procedures recognize that a claim may be accepted without a medical report when
the condition is a minor one which can be identified on visual inspection.8 In clear-cut traumatic
injury claims, such as a fall resulting in a broken arm, a physician’s affirmative statement is
sufficient, and no rationalized opinion on causal relationship is needed. In all other traumatic
injury claims, a rationalized medical opinion supporting causal relationship is required.9
ANALYSIS
In the present case, OWCP found that appellant did not establish the factual element of
her claim. Appellant had filed a traumatic injury claim alleging an injury on January 16, 2015
when she had to carry a mail satchel. The narrative statement she provided offered little
description of the alleged incident or other relevant details. OWCP asked appellant to provide a
detailed description of how the injury occurred in its January 30, 2015 letter. It was noted, for
example, that she had referred to her truck had broken down for two days, and it was not clear
whether she was alleging an injury that had been produced over one day or two days.10
Appellant did not submit an additional statement on the alleged employment incidents.
It is appellant’s burden of proof to establish her claim and this includes providing a
detailed description of the alleged employment incident or incidents.11 In this case appellant
failed to respond to a request for a sufficient description of the incident and she has not
established that the incident occurred as alleged.12
OWCP therefore properly denied the claim for compensation. The Board need not
address the medical evidence, in this appeal.

7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

9

Id., Chapter 2.805.3(d) (January 2013). Rationalized medical opinion evidence is medical evidence that is based
on a complete factual and medical background, of reasonable medical certainty and supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. Jennifer Atkerson, 55 ECAB 317, 319 (2004).
10

A traumatic injury is an injury caused by an incident or incidents within a single workday or shift. An
occupational disease or illness is a condition produced by the work environment over more than one workday or
shift. 20 C.F.R. §§ 10.5(ee) and (q).
11

See J.M., Docket No. 14-1809 (issued December 23, 2014).

12

Id.

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a back injury
in the performance of duty on January 16, 2015.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 4, 2015 is affirmed.
Issued: September 16, 2015
Washington, DC

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

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

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

4


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

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

Docket No. 15-0901
Issued: July 22, 2015

Case Submitted on the Record

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

JURISDICTION
On March 23, 2015 appellant filed a timely appeal from a November 25, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On September 5, 2014 appellant, then a 33-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained severe depression due to her work.
Regarding the relationship of her claimed injury to her work, appellant stated: “When I was in
1

5 U.S.C. §§ 8101-8193.

the ER talking to the psychiatrist, I came to the conclusion that working in the Whitinsville Post
Office is way too stressful.”2 She first became aware of her claimed condition and its
relationship to work on August 23, 2014. Appellant stopped work on August 27, 2014. On the
same form, Jonathan Graves, the Postmaster at appellant’s workplace, indicated that the
employing establishment was challenging appellant’s claim.
In a September 4, 2014 statement, appellant reported that within weeks of transferring to
the Whitinsville Post Office in June 2013, coworkers started making comments to her, including
being asked whether she was “running” her route. One coworker made a comment to her about
finishing her work so early. Appellant indicated that she used a lot of vacation time because her
route was not a full eight-hour route. She indicated that, when she returned to work after a
November 2013 injury, coworkers made comments to her such as “glad you could make it” and
“thanks for coming in.”3 Coworkers also made comments about instances when she had to leave
work due to dependent care issues. Appellant stated that a coworker asked her if she was “going
to cards that night” and she responded that she did not know. The coworker then asked another
coworker if he was going to cards that night and he responded that he did not know and that
appellant should answer the question. Appellant interpreted this exchange as being related to her
absences from work. On another occasion, a coworker “got under her skin” but she could not
remember the comments he made. Appellant stated that, on an occasion when she was at work
delivering mail, her mind started racing with all of the issues at work and in her personal life and
she began to cry. She consulted an official from the employee assistance program and then
sought treatment at an emergency room. Appellant submitted a medical note indicating that she
should be excused from work between August 28 and September 6, 2014.
In a September 8, 2014 letter, Mr. Graves countered that there was no evidence that
appellant was subjected to harassment at work. He indicated that when she was observed in a
distressed state at work on August 27, 2014 she told a coworker that the problems in her personal
life at home were overwhelming.4 Mr. Graves noted that, after questioning several coworkers, it
was determined the comments “glad you could make it” and “thanks for coming in” occurred in
the normal banter among employees. These coworkers indicated that the comments were made
in a joking manner because the former Postmaster regularly walked around and thanked
employees for coming in, a practice which they found amusing. The coworkers did acknowledge
asking appellant about her attendance at poker night, but they denied that anything was said to
appellant with malice. They did not recall making comments to appellant about her mail
delivery route.5

2

Appellant indicated that she was a single mother to a child with medical issues and stated that “time off and
comments just became too much.”
3

Appellant stated that coworkers made these comments on more than one occasion.

4

The record contains an August 27, 2014 statement in which a coworker related that appellant came to him on
that date and expressed that she was upset about problems at home. In an August 21, 2014 statement, the same
coworker noted that appellant discussed personal problems with him shortly prior to the date of the statement.
5

One coworker recalled that, on August 23, 2004, appellant told him to mind his own business. The coworker
did not recall what he had stated to appellant on that date.

2

On September 17, 2014 the employing establishment controverted her claim because
there was no evidence of harassment at work.
In an October 8, 2014 letter, OWCP provided appellant and the employing establishment
an opportunity to submit additional factual and medical evidence in support of their arguments.6
Mr. Graves stated in a letter dated October 15, 2014 that there were no aspects of
appellant’s job that were stressful beyond the scope of normal duties. Management never
observed any conflict between appellant and her coworkers, and appellant had not reported any
problems prior to filing her Form CA-2.
Appellant submitted medical evidence, including an undated report in which an attending
psychiatrist diagnosed major depression disorder due to “stress at work.”7
In a November 25, 2014 decision, OWCP denied appellant’s emotional condition claim
because she had failed to establish any compensable work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.8 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.9
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors.10 However, for harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment did in fact occur. Mere
perceptions of harassment are not compensable under FECA.11

6

OWCP provided a questionnaire for appellant to complete, but it does not appear that she completed it.

7

Appellant also submitted an October 13, 2014 report of “initial psychiatric evaluation” completed by a
registered nurse.
8

Lillian Cutler, 28 ECAB 125 (1976).

9

Gregorio E. Conde, 52 ECAB 410 (2001).

10

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

11

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

3

Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.12 This burden includes the submission of a detailed
description of the employment factors or conditions which she believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.13
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.14 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.15 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 wellexplained opinion on whether there is a causal relationship between the claimant’s diagnosed
condition and the compensable employment factors.16
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
incidents and conditions at work. OWCP denied appellant’s emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of FECA.
The Board notes that appellant’s allegations do not pertain to her regular or specially
assigned duties under Lillian Cutler.17 Rather, she has alleged that she was exposed to
harassment by her coworkers.
Appellant claimed that coworkers subjected her to harassment by making various
comments to her at work. The employing establishment denied harassment and appellant has not
12

Pamela R. Rice, 38 ECAB 838, 841 (1987).

13

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

14

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

15

Id.

16

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

17

See supra note 8.

4

submitted sufficient evidence to establish that she was harassed by coworkers.18 Appellant
alleged that coworkers made comments about the running of her postal route, finishing her mail
delivery route early, and about attending a poker night with coworkers.19 However, she did not
provide corroborating evidence, such as witness statements, to establish that harassing statements
actually were made as alleged.20 Appellant’s supervisor did acknowledge that, after questioning
coworkers, he learned that comments such as “glad you could make it” and “thanks for coming
in” were made to appellant. The supervisor contended that the coworkers’ comments were made
without malice. These coworkers reported to the supervisor that the comments were made in a
joking manner because the former postmaster regularly walked around and thanked employees
for coming in, a practice which they found amusing. Although the Board has recognized the
compensability of verbal abuse in certain circumstances, this does not imply that every statement
uttered in the workplace will give rise to coverage under FECA.21 Appellant has not established
the specifics of these conversations nor has she shown that any of these were made with ill
intent.22 Thus, appellant has not established a compensable employment factor under FECA
with respect to the claimed harassment by coworkers.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof to establish an emotional
condition in the performance of duty.23
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition in the performance of duty.
18

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
19

Appellant also generally indicated that a coworker “got under her skin” on one occasion, but she could not
remember the comments he made.
20

See William P. George, 43 ECAB 1159, 1167 (1992). Appellant felt that the comments about attending poker
night represented a criticism about her work attendance. A supervisor noted that coworkers acknowledged asking
appellant about attending poker night, but they indicated that there was no malicious intent in asking her about this
matter.
21

Harriet J. Landry, 47 ECAB 543, 547 (1996).

22

See, e.g., Alfred Arts, 45 ECAB 530, 543-44 (1994) and cases cited therein (finding that the employee’s
reaction to coworkers’ comments such as “you might be able to do something useful” and “here he comes” was selfgenerated and stemmed from general job dissatisfaction). Compare Abe E. Scott, 45 ECAB 164, 173 (1993) and
cases cited therein (finding that a supervisor’s calling an employee by the epithet “ape” was a compensable
employment factor).
23

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

5

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charles City, IA, Employer
__________________________________________

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

Docket No. 19-0846
Issued: October 17, 2019

Case Submitted on the Record

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

JURISDICTION
On March 11, 2019 appellant filed a timely appeal from a December 27, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3

1

The Board notes that, during the pendency of this appeal, OWCP issued a March 22, 2019 decision which denied
an oral hearing before a representative of OWCP’s Branch of Hearings and Review concerning the December 27,
2018 merit decision currently on appeal. OWCP’s March 22, 2019 decision is null and void as the Board and OWCP
may not simultaneously exercise jurisdiction over the same issue(s) in a case on appeal. 20 C.F.R. §§ 501.2(c)(3),
10.626; see e.g., M.C., Docket No. 18-1278 (issued March 7, 2019); Lawrence Sherman, 55 ECAB 359, 360
n.4 (2004).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 27, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the

ISSUE
The issue is whether appellant has met his burden of proof to establish a left leg injury on
November 11, 2018 in the performance of duty, as alleged.
FACTUAL HISTORY
On November 11, 2018 appellant, then a 46-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that date he stepped in a pothole in the parking
lot and heard his leg pop while in the performance of duty. He alleged that he sustained a left calf
tear. On the reverse side of the Form CA-1, appellant’s supervisor, S.K., indicated that the injury
was not sustained in the performance of duty because he was in the parking lot while coming into
work. In regards to appellant’s work schedule, S.K. indicated that appellant worked “as needed,”
and therefore did not have a regular, fixed schedule. The Form CA-1 indicated that appellant
stopped work on the date of the injury and had not returned.
In a November 11, 2018 attending physician’s report, an unknown healthcare provider
indicated that morning at 8:00 a.m., appellant stepped his left foot into a pothole and heard a pop.
The provider diagnosed a torn left calf muscle.
In a development letter dated November 16, 2018, OWCP acknowledged receipt of
appellant’s claim and informed him that additional evidence was needed in support of his claim.
It advised him of the type of factual and medical evidence needed to establish his claim and
provided a questionnaire for his completion. The questionnaire inquired as to the ownership of
the parking lot, whether appellant was required to park in the parking lot, whether he was required
to pay for parking, and his scheduled duty hours. In a separate letter of even date, OWCP also
requested additional information from the employing establishment, and warned that appellant’s
factual allegations would be taken as factual if it failed to respond. It afforded both he and the
employing establishment 30 days to respond.
Subsequent to the development letter, OWCP received an emergency room report from
Dr. Iftekhar A. Awan, an emergency medicine specialist, dated November 11, 2018, which noted
that appellant presented for an injury to his left calf which occurred that morning at around
8:00 a.m. Dr. Awan reported that the injury occurred when his left foot went into a pothole causing
the stretching of the calf, and he heard a pop in his left leg followed by swelling and pain in the
left calf.
In a November 16, 2018 duty status report (Form CA-17) signed by Dr. Anthony G.
Slinger, a chiropractor, diagnosed a severe sprain/strain of the left calf musculature, with a possible
tear, and restricted appellant from returning to work.
In a November 16, 2018 attending physician’s report (Form CA-20), Dr. Slinger noted that
appellant stepped into a pothole by accident in the parking lot while walking into work. He

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.

2

diagnosed a severe strain/sprain of the left gastrocnemius and soleus. Dr. Slinger indicated that
appellant was totally disabled from November 11, 2018 until a date yet to be determined.
By decision dated December 27, 2018, OWCP denied the claim, finding that appellant had
not established that the injury occurred in the performance of duty, as alleged. It noted that he had
not responded with evidence pertinent to that requested in the development letter, and that he failed
to respond to the development letter’s attached questionnaire.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. 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.7 The second component is whether the employment incident caused a personal
injury.8
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty. 9 The phrase “sustained while in the performance
of duty” is regarded as the equivalent of the coverage formula commonly found in workers’
compensation laws, namely, arising out of and in the course of employment. 10 In the course of
employment pertains to the work setting, locale, and time of injury, whereas arising out of the

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

See G.H., Docket No. 18-0989 (issued January 3, 2019).

8

Id.

9

5 U.S.C. § 8102(a); R.K., Docket No. 18-1269 (issued February 15, 2019); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10
This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).

3

employment encompasses not only the work setting, but also the requirement that an employment
factor caused the injury. 11
Regarding what constitutes the premises of an employing establishment, the Board has
held:
“The term premises as it is generally used in [workers’] compensation law, is not
synonymous with property. The former does not depend on ownership, nor is it
necessarily coextensive with the latter. In some cases premises may include all the
property owned by the employing establishment; in other cases even though the
employing establishment does not have ownership and control of the place where
the injury occurred the place is nevertheless considered part of the premises.”12
The Board has also held that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces on the lot were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no unauthorized cars were parked in the lot,
whether parking was provided without cost to the employees, whether the public was permitted to
use the lot, and whether other parking was available to the employees. Mere use of a parking
facility, alone, is insufficient to bring the parking lot within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
In determining whether the parking lot should be considered part of the employing
establishment’s premises, the Board must consider such factors as whether the employing
establishment contracted for its exclusive use by its employees, whether the employing
establishment assigned spaces, whether the area was checked to see that no unauthorized cars we re

11

L.P., Docket No. 17-1031 (issued January 5, 2018).

12

Id.

13

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(f) (August 1992).
See also Chapter 2.804.4(b). If the employee has a fixed place of work, the claims examiner (CE) must ascertain
whether the employee was on the premises when the injury occurred. The answers to the appropriate sections of
CA-1, CA-2, and CA-6 forms contain information on this point. If clarification is needed, it should be secured from
the official superior in the form of a statement which describes the boundaries of the premises and shows whether the
employee was within those boundaries when the injury occurred. Where indicated, the clarification should include a
diagram showing the boundaries of the industrial premises and the location of the injury s ite in relation to the premises.
See also D.D., Docket No. 15-0837 (issued July 10, 2015).

4

parked in the lot, whether the public was permitted to use the lot, whether parking was provided
without cost to the employees, and whether employees were reimbursed for parking expenses. 14
While S.K. stated on the CA-1 form that appellant was not within the performance of duty
because he was in the parking lot, he did not provide information as to whether the employing
establishment owned, reserved, or otherwise required employees to use the parking lot at issue.
OWCP’s procedures provide that it should obtain relevant information from an official superior if
it requires clarification before determining whether or not the employee was on the premises. 15 Its
procedures further provide that it should request that an official superior relate whether the parking
facilities are owned, controlled, or managed by the employing establishment.16 OWCP, however,
failed to obtain a statement from the employing establishment in accordance with its procedures
prior to finding that appellant had not shown that he was on the premises of the employing
establishment when injured.17
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested arbiter.
While appellant has the burden of proof to establish entitlement to compensation, OWCP shares
the responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other governmental source. 18
The Board finds that OWCP did insufficiently develop the evidence regarding whether he was on
the premises of the employing establishment at the time of injury.19
On remand OWCP should obtain information from the employing establishment needed to
determine whether the parking lot was owned, managed, or controlled by the employing
establishment and thus part of the premises. It should then determine whether appellant was in the
performance of duty and under any control by the employing establishment at the time of the
incident and, if so, adjudicate whether the factual and medical evidence establishes that he
sustained an injury in the performance of duty as alleged. Following such further development as
deemed necessary, OWCP shall issue a de novo decision.20

14

Id.

15

See supra note 13.

16

Id.

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(d)(1)
(If an employing agency fails to respond to a request for comments on the claimant ’s allegations, the CE may usually
accept the claimant’s statements as factual. However, acceptance of the claimant’s statements as factual is not
automatic in the absence of a reply from the employing establishment, especially in instances where performance of
duty is questionable. The Board has consistently held that allegations unsupported by probative evidence are not
established).
18

R.K., supra note 9; supra note 11.

19

See id.; see also supra note 17.

20

Supra note 18.

5

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2018 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: October 17, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Carmel, CA, Employer
__________________________________________

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

Docket No. 19-0868
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from January 11 and March 1, 2019
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish disability
from work during the period April 24, 2018 through January 10, 2019, causally related to his
accepted September 27, 2017 employment injury; (2) whether OWCP has met its burden of proof
to terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the issuance of the March 1, 2019 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury; and (3) whether appellant has met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
FACTUAL HISTORY
On September 27, 2017 appellant, then a 60-year-old clerk/lobby director, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he injured his lower back when he slipped
and fell as he walked from a pickup window while in the performance of duty. He stopped work
on September 28, 2017.
On November 27, 2017 OWCP accepted appellant’s claim for contusions of the lower back
and pelvis, initial encounter. It paid him wage-loss compensation on the supplemental rolls from
November 12, 2017 to March 2, 2018 and on the periodic rolls from March 4 to 31, 2018.
On March 28, 2018 appellant returned to a part-time modified position for five hours per
day as a clerk, but later stopped work on April 24, 2018.
OWCP received an April 26, 2018 progress note by Dr. Dale A. Helman, a Board-certified
neurologist, who noted a history of injury that approximately seven months prior, appellant slipped
and fell backwards and severely twisted his lumbar spine at work . Dr. Helman reported findings
on physical examination and provided an impression that it was “very likely there is some sort of
nerve impingement.” He performed an electromyogram/nerve conduction velocity (EMG/NCV)
study on the same date of his examination and reported that it was abnormal due to right L5-S1
radiculopathy.
On May 11, 2018 appellant filed a claim for compensation (Form CA-7) seeking for
disability from work from April 24 through May 4, 2018.
In support of his claim, appellant submitted medical reports dated April 24, 2018 from
Dr. Timothy Wilken, an attending family practitioner. In these reports, Dr. Wilken noted a history
of appellant’s September 27, 2017 employment injury and diagnosed lumbar radiculopathy,
lumbar and cervical strains, contusion of the lumbar region, and low back pain. He advised that
he was unable to work until his next scheduled appointment in four weeks.
OWCP, in a May 21, 2018 development letter, informed appellant that the evidence
submitted was insufficient to establish disability from April 24 to May 4, 2018 and requested that
he submit additional evidence to establish his claim. It afforded him 30 days to submit the
necessary evidence.
OWCP received an additional report dated May 22, 2018 by Dr. Wilken who reiterated
appellant’s history of injury and repeated his prior diagnoses of lumbar radiculopathy, lumbar and
cervical strains, contusion of the lumbar region, and low back pain. Additionally, Dr. Wilken
continued to advise that appellant was unable to work until his next scheduled appointment in four
weeks.
Appellant filed additional CA-7 forms claiming compensation for disability from work
from May 4 to 31, and June 2 to 30, 2018.
2

In support of his claims, appellant submitted a May 22, 2018 duty status report (Form CA17) from Dr. Wilken who provided diagnoses “due to injury” of lumbar and cervical strains.
Dr. Wilken placed appellant off work.
By development letter dated July 9, 2018, OWCP informed appellant that the evidence
submitted was insufficient to establish his claims for disability compensation commencing
April 24, 2018, but that he would be referred to a second opinion examination by a Board-certified
specialist.
OWCP thereafter received a July 5, 2018 EMG/NCV study by Dr. Helman, who reported
bilateral C6-7 radiculopathy and bilateral carpal tunnel syndrome.
On July 16, 2018 OWCP referred appellant’s claim, the case record, a statement of
accepted facts (SOAF), and a series of questions to Dr. Aubrey A. Swartz, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether he continued to have
residuals and disability causally related to his accepted September 27, 2017 employment injury.
In narrative reports and a Form CA-17 report dated July 17, 2018, Dr. Wilken reiterated
his prior assessments of appellant’s lumbar and cervical conditions and opinion that he was unable
to work. He also provided a diagnosis of herniated lumbar disc with myleopathy. In the Form
CA-17 report, Dr. Wilken again provided diagnoses of cervical and lumbar strains “due to injury.”
Appellant continued to file CA-7 forms claiming compensation for disability from work
from July 28 to August 24, 2018.
In support thereof, appellant submitted reports dated June 19 and August 14, 2018 from
Dr. Wilken, who continued to restate his prior assessments of appellant’s lumbar and cervical
conditions and opinion that he could not work. On an August 14, 2018 Form CA-17 report
Dr. Wilken listed the date of injury as September 27, 2017 and again reiterated his prior diagnosis
of herniated lumbar disc with myelopathy “due to injury.”
In a July 26, 2018 report, Dr. Mark W. Howard, a Board-certified orthopedic surgeon,
noted that appellant presented for consultation regarding lumbar spine problems he had since
September 27, 2017. He discussed his examination findings and reviewed diagnostic test results.
Dr. Howard provided diagnoses of low back pain and bilateral lower extremity radicular pain in
the setting of mod-large right L4-5 disc bulge, L5-S1 disc degeneration, right L4 greater than right
L5 foraminal stenosis, left L5 greater than left L4 foraminal stenosis, L5 -S1 greater than L4-5
spondylolisthesis with demonstrated sagittal plane instability, and right L5-S1 radiculopathy based
on Dr. Helman’s April 26, 2018 EMG/NCV study.
Dr. Swartz, in an August 8, 2018 report, reviewed the SOAF and appellant’s medical
record. He reported his findings on examination and diagnosed lumbar and cervical strains, lumbar
contusion, and lumbar radiculopathy. Dr. Swartz noted that a February 8, 2018 magnetic
resonance imaging (MRI) scan study of the lumbar spine revealed no signal abnormalities of the
lumbar spine or spinal cord/cauda equine, and no paravertebral soft tissue abnormality, marrow
replacing lesion, or marrow edema, which indicated that appellant’s claim of hitting his low back
against a pole when he fell was in question and would be a minor event at most as none of these
signals showed up on the MRI scan study reflecting a contusion of any significance. He indicated
that an examination by Dr. Wilken on October 10, 2017 did not reveal any muscle spasm in the
3

lumbar spine which would basically rule out an injury of any significance whether it was a strain
or contusion. Dr. Swartz further indicated that his examination revealed a normal range of motion
of the lumbar spine, slight tenderness only and without any spasm in the neck and upper or lower
back, and normal neurologic examination of the lower extremities. He opined that the injuries
regarding appellant’s claim had resolved, and no further treatment was required. Dr. Swartz
further opined that he had an aggravation of preexisting lumbar conditions that ceased on the date
of his examination. He concluded that appellant was capable of returning to his position as a
clerk/lobby director which was basically his date-of-injury position. In an accompanying work
capacity evaluation (Form OWCP-5c) of even date, Dr. Swartz advised that appellant could not
perform his usual job without restrictions, but he could work eight hours per day with specific
physical restrictions.
Appellant filed several additional CA-7 forms claiming compensation for intermittent
periods of disability from August 25 to December 14, 2018.
In additional narrative reports and Form CA-17 reports dated June 19, August 14,
September 11, October 9, and November 6, 2018, Dr. Wilken reiterated his prior lumbar and
cervical assessments and opinion that appellant was unable to work. In the October 9 and
November 6, 2018 Form CA-17 reports, he continued to list the date of injury as September 27,
2017, indicate that appellant’s diagnoses of herniated lumbar disc, lumbar strain with
radiculopathy, and cervical strain were “due to injury,” and advise that he was unable to work.
Dr. Howard, in an August 14, 2018 report, reiterated his prior diagnoses of low back pain,
bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy based on Dr. Helman’s April 26, 2018 EMG/NCV
study.
In a November 11, 2018 report, Dr. Scott Prysi, a family practitioner, noted a date of injury
as September 27, 2017. He discussed findings on examination and provided diagnoses of lumbar
radiculopathy, lumbar strain, lumbar region contusion, and low back pain. Dr. Prysi advised that
appellant could perform modified work with restrictions until his next scheduled appointment.
On November 21, 2018 Dr. Victor Li, Board-certified in pain medicine, reported a history
of the September 27, 2017 employment injury. He also reported examination findings and
reviewed diagnostic test results. Dr. Li provided diagnoses of myofascial pain, and spondylosis
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary.
By notice dated December 11, 2018, OWCP advised appellant that it proposed to terminate
his wage-loss compensation and medical benefits based on Dr. Swartz’s opinion that the accepted
conditions had ceased without residuals and that he was not disabled from work. It afforded him
30 days to submit additional evidence or argument challenging the proposed action.
OWCP subsequently received narrative reports and a Form CA-17 dated December 17,
2018 from Dr. Prysi who restated his prior diagnoses of lumbar radiculopathy, lumbar strain,
lumbar region contusion, and low back pain, and his opinion that appellant could perform modified
work until his next scheduled appointment. In the December 17, 2018 Form CA-17 report,
4

Dr. Prysi listed September 27, 2017 as the date of injury and provided diagnoses of lumbar spine
strain and radiculopathy “due to injury.” He advised that appellant could work with restrictions.
In a letter of even date, Dr. Prysi noted that he had reviewed Dr. Swartz’s August 8, 2018 report3
and disagreed with his findings. He noted that appellant had a baseline pain level of 7 out of 10
and he was unable to sit or stand for more than 30 minutes. Dr. Prysi further noted that, based on
his physical examination, he could not lift more than 10 pounds at work. He maintained that it
was not possible for appellant to return to full-duty work.
OWCP also received a September 27, 2017 lumbar spine x-ray report by Dr. Tracy Chen,
a diagnostic radiologist, who provided impressions of no acute osseous pathology, grade 1
anterolisthesis of L5-S1, degenerative disc disease at L5-S1, and mild multilevel degenerative
arthrosis.
By decision dated January 11, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, finding that Dr. Swartz’s opinion was
entitled to the weight of the medical evidence.
OWCP thereafter received an additional Form CA-17 report dated January 14, 2019 from
Dr. Prysi. Dr. Prysi continued to note September 27, 2017 as the date of injury, provide a diagnosis
of lumbar strain “due to injury,” and opine that appellant could work with restrictions.
On January 6, 2019 appellant filed another Form CA-7 seeking compensation for disability
from December 14, 2018 to January 11, 2019. On the reverse side of the claim form the employing
establishment noted that he did not sign its job offer for modified work. 4
Dr. Prysi, in a January 14, 2019 narrative report, restated appellant’s lumbar assessments
and opinion that he could perform modified work until his next scheduled appointment.
In a January 16, 2019 progress report, Dr. Li diagnosed contusion of the lower back. He
noted that appellant did not work and restated his prior opinion that appellant’s work status was
permanent and stationary.
OWCP, by decision dated March 1, 2019, denied appellant’s claims for compensation for
the period April 24, 2018 through January 10, 2019, finding that the medical evidence of record
was insufficient to establish that the claimed disability was causally related to his accepted
September 27, 2017 employment injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
3

The Board notes that it appears that Dr. Prysi inadvertently indicated that the date of Dr. Swartz’s report was dated
November 19, 2018 rather than August 8, 2018 as the only report of record by Dr. Swartz is dated August 8, 2018.
4

On January 18, 2019 the employing establishment offered appellant a modified clerk position based on the medical
documentation from his treating physician. Appellant rejected the job offer contending that it did not meet his
physician’s restrictions.
5

Supra note 1.

5

compensation is claimed is causally related to the employment injury.6 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.7 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.8
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.9 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.10
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.11 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the claimed disability and the accepted employment injury.12
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury.
In support of his claims for compensation, appellant submitted a series of reports from
Dr. Wilken. In Form CA-17 reports dated May 22 through November 6, 2018, Dr. Wilken noted
diagnoses of herniated lumbar disc, lumbar strain with radiculopathy, and cervical strain “due to
injury” on September 27, 2017. Although he found employment-related disability in these reports,
they are of limited probative value in establishing appellant’s claim for disability during the period
April 24, 2018 through January 10, 2019 as he did not explain why he was disabled during this
time period due to objective medical findings of his accepted conditions. To establish a period of
disability the medical evidence must provide a discussion of how objective medical findings
attributable to the accepted conditions support a finding that appellant could not perform his job
6

See C.B., Docket No. 20-0629 (issued May 26, 2021); D.S., Docket No. 20-0638 (issued November 17, 2020);
F.H., Docket No. 18-0160 (issued August 23, 2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn
Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).
7

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id. at § 10.5(f); see e.g., G.T., Docket No. 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB
397 (1999).
10

G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

11

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

12

Id

6

duties.13 A medical opinion is of limited value if it is conclusory in nature. 14 In narrative reports
dated April 24 through November 6, 2018, Dr. Wilken reiterated his prior nonaccepted diagnoses
of lumbar radiculopathy, lumbar strain, cervical strain, herniated lumbar disc. He also diagnosed
contusion of the lumbar region and low back pain. Dr. Wilken opined that appellant was totally
disabled from work. However, he did not relate appellant’s disability to the accepted
September 27, 2017 employment injury and the opinion is therefore of diminished probative
value.15 For these reasons, the Board finds that Dr. Wilken’s reports are insufficient to establish
appellant’s disability claim.
Dr. Helman’s April 26, 2018 progress note related a history of the September 27, 2017
employment injury and indicated that it was “very likely there is some sort of nerve impingement”
of the lumbar spine. The Board finds his opinion is speculative and equivocal and therefore,
insufficient to establish her burden of proof. 16
In reports dated April 26 and July 5, 2018, Dr. Helman provided EMG/NCV study results.
The Board has consistently held that diagnostic test studies, standing alone, lack probative value
as they do not address whether the accepted employment injury caused the diagnosed condition.17
For these reasons, the Board finds that the medical evidence from Dr. Helman is insufficient to
establish appellant’s disability claim.
Dr. Howard’s July 26 and August 14, 2018 reports provided diagnoses of low back pain
and bilateral lower extremity radicular pain in the setting of mod-large right L4-5 disc bulge, L5-S1
disc degeneration, right L4 greater than right L5 foraminal stenosis, left L5 greater than left L4
foraminal stenosis, L5-S1 greater than L4-5 spondylolisthesis with demonstrated sagittal plane
instability, and right L5-S1 radiculopathy. He noted that appellant had lumbar spine problems
since September 27, 2017. Dr. Li, in a report dated November 21, 2018, noted a history of the
September 27, 2017 employment injury and provided diagnoses of myofascial pain, spondylosis,
and radiculopathy of the lumbar region. He advised that appellant’s work status was permanent
and stationary. Neither physician offered an opinion as to whether appellant was disabled from
work due to the accepted employment injury.18 Accordingly, the reports of Dr. Howard and Dr. Li
are of no probative value and are insufficient to establish the claimed period of disability.

13

See M.M., Docket No. 19-0061 (issued November 21, 2019); W.E., Docket No. 17-0451 (issued
November 20, 2017).
14

See R.B., Docket No. 19-1527 (issued July 20, 2020); R.S., Docket No. 19-1774 (issued April 3, 2020).

15

See J.K., Docket No. 19-0488 (issued June 5, 2020); M.M., supra note 13; E.B., Docket No. 17-0875 (issued
December 13, 2018).
16

See G.H., Docket No. 20-0892 (issued July 9, 2021); I.J., 59 ECAB 408 (2008).

17

See T.G., Docket No. 20-0032 (issued November 10, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019).

18

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

7

Dr. Chen’s September 27, 2017 lumbar spine x-ray report is insufficient to establish
disability as it predates and, therefore, does not address the claimed period of disability. 19
Dr. Swartz, the second opinion physician, in an August 8, 2018 report and Form OWCP5c, opined that appellant’s accepted September 27, 2017 employment-related conditions and
aggravation of preexisting lumbar conditions had resolved and no further treatment was required.
He further opined that appellant was not totally disabled from work and he was capable of returning
to his clerk/lobby director position. Dr. Swartz reasoned that a February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his essentially normal
examination findings, with the exception of slight tenderness, revealed no objective residuals of
the accepted conditions. As Dr. Swartz reviewed the medical record and supported his conclusion
with medical rationale, the Board finds that his report represents the weight of th e evidence
regarding appellant’s claims for total disability.20
Dr. Prysi reviewed Dr. Swartz’s August 8, 2018 report, and in a December 17, 2018 letter,
disagreed with his conclusion that appellant could return to full-duty work because his pain level
and inability to sit or stand for more than 30 minutes and lift more than 10 pounds at work
prevented him from returning to work. His November 11 and December 17, 2018 narrative reports
provided diagnoses of lumbar radiculopathy, lumbar strain, lumbar region contusion, and low back
pain. Dr. Prysi also provided appellant’s work restrictions but did not opine that he was ever totally
disabled from work for the claimed period due to his September 27, 2017 employment injury.21
His remaining December 17, 2018 Form CA-17 report reiterated his diagnoses of lumbar spine
strain and lumbar radiculopathy and found that the diagnosed conditions were due to the
September 27, 2017 employment injury. Dr. Prysi did not, however, provide an opinion or specify
that appellant’s ability to perform modified-duty work was due to his September 27, 2017
employment injury.22 For these reasons, his reports are insufficient to overcome the weight
accorded to Dr. Swartz’s second opinion report or to create a conflict in the medical opinion
evidence.23
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period April 24, 2018 through January 10, 2019 causally related to his accepted
September 27, 2017 employment injury, the Board finds that appellant has not met his burden of
proof.

19

See M.L., Docket Nos. 18-1058 and 18-1224 (issued November 21, 2019); D.J., Docket No. 18-0200 (issued
August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).
20
21

See M.L., id.
Supra note 18.

22

See M.M., Docket No. 18-0817 (issued May 17, 2019); see also supra note 18.

23

See id.

8

LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.24 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 25 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background. 26
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. 27 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective January 11, 2019, as he no longer had disability or
residuals causally related to his accepted September 27, 2017 employment injury.
As previously discussed, Dr. Swartz, in his comprehensive August 8, 2018 second opinion
report, explained that there were no objective findings based on the February 8, 2018 lumbar spine
MRI scan study, Dr. Wilken’s October 10, 2017 examination findings, and his own essentially
normal examination findings which supported ongoing residuals or disability due to appellant’s
accepted September 27, 2017 employment injury. He opined that appellant could return to his
clerk/lobby director position and he did not require further medical treatment.
Subsequent to Dr. Swartz’s evaluation, appellant was evaluated by Dr. Wilken on
September 11, 2018, Dr. Howard on August 14, 2018, Dr. Li on November 21, 2018, and Dr. Prysi
on November 11 and December 17, 2018. As previously discussed, none of these physicians
provided a well-reasoned explanation as to why appellant continued to have residuals or disability
for work due to the September 27, 2017 employment injury.
Appellant submitted Dr. Chen’s September 27, 2017 lumbar spine x-ray report and
Dr. Helman’s April 26, 2018 EMG/NCV study report. The Board has held, however, that

24

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
25

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
26

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

27

J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued February 27, 2019).

28

L.S., Docket No. 19-0959 (issued September 24, 2019); R.P., Docket No. 18-0900 (issued February 5, 2019).

9

diagnostic studies, standing alone, lack probative value on the issue of causal relationship as they
do not address whether the implicated employment factors caused the diagnosed conditions. 29
The Board finds Dr. Swartz’s well-rationalized opinion to be probative evidence and
reliable and sufficient to justify OWCP’s termination of wage-loss compensation and medical
benefits, effective January 11, 2019.30 The medical evidence from appellant’s physicians is
insufficient to overcome the weight accorded to Dr. Swartz’s second opinion or to create a
conflict.31 OWCP, therefore, has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 3
Once OWCP properly terminated compensation benefits, the burden shifts to appellant to
establish continuing disability after that date causally related to the accepted injury. 32 To establish
causal relationship between the accepted conditions as well as any attendant disability claimed and
the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background supporting such causal relationship.33
ANALYSIS -- ISSUE 3
The Board finds that appellant has not met his burden of proof to establish continuing
employment-related disability or residuals on or after January 11, 2019 due to his accepted
employment injury.
Subsequent to the termination of his wage-loss compensation and medical benefits,
appellant submitted reports dated January 14, 2019 from Dr. Prysi. In a January 14, 2019 Form
CA-17 report, Dr. Prysi diagnosed lumbar strain due to the September 27, 2017 employment injury
and advised that appellant could work with restrictions. In a narrative report of even date, he
restated his prior diagnoses of lumbar radiculopathy, strain, and contusion, and low back pain.
Dr. Prysi also reiterated his prior opinion that appellant could perform modified work. However,
he failed to explain with rationale why the work restrictions were causally related to the
September 27, 2017 employment injury.34 Consequently, Dr. Prysi’s reports are of diminished
probative value and insufficient to establish continuing employment-related residuals or disability.
In his January 16, 2019 progress report, Dr. Li diagnosed lower back contusion. He
indicated that appellant did not work and again opined that appellant’s work status was permanent
29

See J.H., Docket No. 17-1916 (issued January 9, 2019); T.H., Docket No. 17-0025 (issued July 6, 2017).

30

V.D., Docket No. 19-0979 (issued February 5, 2020); T.W., Docket No. 18-1573 (issued July 19, 2019); M.C.,
Docket No. 18-1199 (issued April 5, 2019); see also A.C., Docket No. 16-1670 (issued April 6, 2018).
31

See M.M., supra note 13.

32

See J.N., Docket No. 20-1030 (issued November 20, 2020); S.M., Docket No. 18-0673 (issued January 25, 2019);
L.C., Docket No. 18-1759 (issued June 26, 2019).
33

Id.

34

See D.Y., Docket No. 20-0112 (June 25, 2020).

10

and stationary. Dr. Li did not, however, provide a rationalized opinion as to whether appellant’s
disability was causally related to the accepted employment injury. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains a medical
opinion which is unsupported by medical rationale. 35
Appellant has not submitted rationalized medical evidence establishing continuing
employment-related disability or residuals on or after January 11, 2019 due to the accepted
September 27, 2017 employment injury. As such, the Board finds that he has not met his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish disability during
the period April 24, 2018 through January 10, 2019, causally related to his accepted September 27,
2017 employment injury. The Board further finds that OWCP has met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 11, 2019,
as he no longer had disability or residuals causally related to his accepted September 27, 2017
employment injury. The Board also finds that appellant has not met his burden of proof to establish
continuing employment-related disability or residuals on or after January 11, 2019 due to his
accepted employment injury.

35

See L.S., Docket No. 19-0959 (issued September 24, 2019); M.H., Docket No. 17-0210 (issued June 3, 2018).

11

ORDER
IT IS HEREBY ORDERED THAT the January 11 and March 1, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2022
Washington, DC

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

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

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

12