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

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

Docket No. 19-1860
Issued: March 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 10, 2019 appellant, through counsel, filed a timely appeal from a March 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a chest injury
causally related to the accepted February 25, 2017 employment incident.
FACTUAL HISTORY
On March 3, 2017 appellant, then a 54-year-old mail handler in a modified-duty status,
filed a traumatic injury claim alleging that on February 25, 2017 she was working on a tray sorter
machine to containerize trays while in the performance of duty when she felt chest pain and
tingling in her right wrist, aggravating a previously accepted employment-related condition of
carpal tunnel syndrome (CTS).3 She explained that she experienced symptoms from CTS on a
daily basis and on the evening of February 25, 2017, the tingling and numbness in her hands woke
her up out of her sleep. Initially, appellant had some tingling in her right wrist, but by the following
day her left hand was causing problems, including pain and swelling in her ring finger. On the
reverse side of the claim form the employing establishment noted that, following appellant’s
original injury, she was on limited duty until returning to full-duty work. It indicated that she
stopped work on February 25, 2017.
In a March 2, 2017 report, Dr. Scott M. Fried, an osteopath Board-certified in orthopedic
surgery, noted appellant’s employment duties and her medical history of bilateral CTS. Appellant
continued to have symptoms of bilateral numbness, tingling, swelling, and pain in her hands
radiating into her fingers. She noted that she was working overtime in January and February on
tray sorter machines and experienced pain in her left axilla, spreading across her left chest. On
physical examination appellant was found to have left trapezius muscle spasms of the cervical
spine; positive Phalen’s and Tinel’s tests of the median and ulnar nerve of the right wrist and right
elbow, and positive Roos and Hunter testing indicative of inflammation and scarring about the
nerves of the brachial plexus at the thoracic outlet level. Dr. Fried diagnosed bilateral median
neuropathy, left radial neuropathy, carpal tunnel median neuropathy of the bilateral upper
extremities, and right and left flexor tenosynovitis. He advised that appellant remained
symptomatic and limited and was unable to perform her usual job duties.
On March 13, 2017 Dr. Knic Rabara, an osteopath and family practitioner, treated
appellant for a recent onset of left upper chest pain, which began in February. Appellant underwent
a cardiac workup, which was unremarkable. She attributed her condition to repetitive use of her
arms, chest, and shoulders while performing her mail handler duties. Dr. Rabara diagnosed left
chest pain, likely musculoskeletal, and left shoulder and neck pain due to pectoral major/minor
strain.

3

On December 13, 2007 appellant, then a 44-year-old mail handler, filed an occupational disease claim (Form
CA-2) alleging that she developed bilateral CTS as a result of repetitive lifting, bending, pushing, and pulling tubs of
flat mail while in the performance of duty. On April 7, 2008 OWCP accepted her claim for bilateral CTS under
OWCP File No. xxxxxx484. On March 21, 2017 it notified appellant that it administratively converted the recurrence
claim under OWCP File No. xxxxxx484 to a new traumatic injury claim occurring on February 25, 2017 under OWCP
File No. xxxxxx880.

2

An attending physician’s report (Form CA-20) from Dr. Michael Goldis, a Board-certified
internist, dated March 13, 2017, diagnosed atypical chest pain possibly due to lifting. Dr. Goldis
indicated by checking a box marked “Yes” that the condition was caused or aggravated by an
employment activity and opined that appellant was totally disabled from February 28 to
April 1, 2017. In a work capacity evaluation (Form OWCP-5c), dated March 3, 2017, he noted
that appellant reported pain in the left chest with lifting and returned her to work full time with no
lifting.
In a development letter dated March 24, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to respond.
Appellant was treated by Dr. Bryan Saia, a Board-certified cardiologist, on March 9, 2017
for chest pain and essential hypertension. Dr. Saia noted a cardiac catheterization was negative.
He diagnosed chest pain, likely musculoskeletal, left axillary area mildly tender to palpation,
hypertension controlled, and dyslipidemia. Dr. Saia recommended weight loss and lifestyle
modifications.
OWCP also received March 9, 2017 x-rays of the lumbar, thoracic, and cervical spine,
which revealed no acute bony abnormality, mild dextroscoliosis of the thoracolumbar spine, and
degenerative changes at the L5-S1 level.
In a follow-up note dated March 20, 2017, Dr. Rabara diagnosed improving left chest, left
shoulder, and neck pain. He noted that x-rays for the neck and shoulders revealed disc narrowing
at C5-6 and degenerative changes of the left shoulder.
In a narrative statement dated April 4, 2017, appellant indicated that on February 25, 2017
she was working on a high-speed tray sorter, containerizing the trays, putting them in the allpurpose containers (APC), labeling the APC’s, and pushing the full APC’s out, and replacing them
with another one. She reported pushing about six APC’s and lifting over 300 trays when she
noticed pain in the left side of her chest.
In a report dated April 6, 2017, Dr. Fried diagnosed bilateral median and radial neuropathy,
left brachial plexopathy/cervical radiculopathy with long thoracic neuritis and scapular winging,
carpal tunnel median neuropathy of the left upper extremity with brachial plexus involvement
secondary to work activities, overuse syndrome of bilateral upper extremities, right and left flexor
tenosynovitis, pectoralis minor strain with brachial plexus involvement left secondary to work
injury, and left shoulder rotator cuff strain and sprain. He opined that there was no doubt appellant
sustained a significant acute injury secondary to her work duties on February 25, 2017 when she
was reaching, grasping, pulling, pushing, and lifting while at work. Dr. Fried explained that the
lifting of trays and placing them on APC’s, reaching, grasping, and awkward posturing resulted in
a significant acute pectoral strain, paracervical strain, and brachial plexus injury. He noted that
appellant described an acute onset of pain with radiation symptomology while performing her
work duties consistent with a pectoral injury. Dr. Fried indicated that the pectoralis is located over
the plexus and the lower plexus travels through the axilla and shoulder area and down the arm,

3

which correlated with appellant’s specific work activities and the acute injury. He concluded that
this was an acute injury separate and additive to her previous bilateral CTS injuries. In a disability
certificate dated April 6, 2017, Dr. Fried found that appellant was disabled from work.
By decision dated May 4, 2017, OWCP denied the claim, finding that the medical evidence
of record failed to establish causal relationship between appellant’s diagnosed chest condition and
the accepted February 25, 2017 employment incident.
In a duty status report (Form CA-17) dated May 4, 2017, Dr. Fried diagnosed bilateral CTS
and noted that appellant was totally disabled. In reports dated May 18 and July 11, 2017, he again
noted her extensive diagnoses. Dr. Fried noted some improvement in appellant’s condition as her
off-work status continued, but she remained significantly symptomatic and limited. He opined
that there was no doubt she sustained a significant acute injury secondary to her work duties on
February 25, 2017 when reaching, grasping, pulling, pushing, and lifting. Dr. Fried explained that
the lifting of trays and placing these on APC’s, reaching, grasping, and awkward posturing resulted
in a significant acute pectoral strain, paracervical strain, and brachial plexus injury. He again noted
that appellant described an acute onset of pain with radiation symptomology while performing her
work duties, consistent with a pectoral injury.
On May 17, 2017 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated July 18, 2017, an OWCP hearing representative vacated the decision
dated May 4, 2017 and remanded the case for further medical development. He found that
Dr. Fried provided an affirmative opinion that appellant’s work activities on February 25, 2017
caused or contributed to her diagnosed acute pectoral strain, paracervical strain, and brachial
plexus injury, which merited further development by a second opinion evaluation. The hearing
representative further instructed OWCP to administratively combine OWCP File Nos. xxxxxx880
and xxxxxx484 as correct adjudication depended on cross-referencing these files.
An electromyogram (EMG) dated August 16, 2017 revealed severe bilateral median nerve
impairments at the bilateral wrists, moderate right posterior interosseous nerve impairment at the
dorsal elbow, and borderline/mild left ulnar nerve impairment at medial elbow level.
Appellant attended physical therapy treatment from August 28 to September 13, 2017.
On February 16, 2018 OWCP referred appellant for a second opinion evaluation with
Dr. Stanley Askin, a Board-certified orthopedic surgeon, to determine whether appellant sustained
a diagnosed medical condition causally related to the accepted February 25, 2017 employment
incident.
In a March 2, 2018 report, Dr. Askin noted appellant’s medical history included bilateral
CTS. Physical examination of appellant’s neck, bilateral shoulders, scapulothoracic area, elbows,
forearms, wrists, trapezius, pectoralis major, and deltoids was unremarkable, with intact sensation
and strength, and positive Phalen’s and Tinel’s signs. Dr. Askin diagnosed bilateral carpal tunnel
syndrome. He found no disabling residuals of any condition associated with appellant’s current
claim, rather he opined that her difficulty persisted from the earlier accepted CTS. Dr. Askin

4

advised that carpal tunnel release was expected to be therapeutic for CTS, but appellant chose not
to have surgery. He noted that there were no objective findings that she suffered an aggravation
or had current disability. Dr. Askin indicated that appellant reached maximum medical
improvement (MMI) and there was no work-related reason referable to OWCP File No.
xxxxxx880 that precluded her from returning to work full duty with lifting limited to 100 pounds
occasionally.
By decision dated May 16, 2018, OWCP denied appellant’s claim, finding the medical
evidence of record was insufficient to establish causal relationship between the diagnosed medical
conditions and the accepted February 25, 2017 employment incident. It found the weight of the
medical opinion evidence rested with Dr. Askin’s opinion. OWCP mailed the decision to appellant
and counsel at their last known addresses of record.
OWCP continued to receive evidence. A magnetic resonance imaging (MRI) scan of the
right shoulder dated February 25, 2018 revealed a longitudinal split tear of the long head tendon
of the biceps and mild subacromial/subdeltoid bursitis. An MRI scan of the cervical spine revealed
chronic disc osteophyte complex at C5-6 resulting in partial effacement to the anterior
subarachnoid space, and posterior annular bulging in the upper thoracic region at T1-2, T2-3, and
T3-4.
In a March 22, 2018 report, Dr. Robert Falconiero, an osteopath, noted that appellant
presented with right shoulder pain, which began after lifting a heavy object. He diagnosed biceps
tendinitis of the right shoulder, longitudinal tear of the right biceps tendon, subacromial
bursitis/impingement of the right shoulder, degenerative disc disease of the cervical spine,
osteophyte disc complex at C5-6, and possible right cervical radiculopathy.
On December 17, 2018 appellant, through counsel, requested reconsideration. Counsel
asserted that neither he nor the employing establishment received the May 16, 2018 decision and,
thus, it did not issue to the interested parties. He requested that the decision be reissued with full
appeal rights.
By decision dated March 18, 2019, OWCP denied modification of the decision dated
May 16, 2018.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 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

4

5 U.S.C. § 8101 et seq.

5
S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

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to the employment injury.6 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.7
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.8 There are 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.9 The
second component is whether the employment incident caused a personal injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and
appellant’s specific employment incident.13
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.14 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.15
When there exists opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of

6
T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
7

T.E., Docket No. 18-1595 (issued March 13, 2019); 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).
8

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

9

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

11

S.S., supra note 8; Robert G. Morris, 48 ECAB 238 (1996).

12

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

13

Id.

14

5 U.S.C. § 8123(a); M.W., Docket No. 19-1347 (issued December 5, 2019); C.T., Docket No. 19-0508 (issued
September 5, 2019); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
15

20 C.F.R. § 10.321.

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such specialist, if sufficiently well rationalized and based upon a proper factual background, must
be given special weight.16
ANALYSIS
The Board finds that this case is not in posture for decision.
Dr. Fried, appellant’s treating physician, diagnosed bilateral median and radial neuropathy,
left brachial plexopathy/cervical radiculopathy, thoracic neuritis, scapular winging, carpal tunnel
median neuropathy of the left upper extremity with brachial plexus involvement secondary to work
activities, overuse syndrome of bilateral upper extremities, right and left flexor tenosynovitis,
pectoralis minor strain with brachial plexus involvement left secondary to work injury, and left
shoulder rotator cuff strain and sprain. He opined that there was no doubt appellant sustained a
significant acute injury secondary to her work duties on February 25, 2017 when reaching,
grasping, pulling, pushing, and lifting while at work. Dr. Fried explained that lifting trays and
placing them on APC’s, reaching, grasping, and awkward posturing resulted in a significant acute
pectoral and paracervical strains and brachial plexus injury. He found appellant to be totally
disabled from work.
By contrast, Dr. Askin, a second opinion physician, opined in his March 2, 2018 report that
appellant had no disabling residuals of any condition associated with her current claim, rather her
difficulty persisted from the earlier accepted CTS. He advised that there were no objective findings
that she suffered an aggravation or had any current disability. Dr. Askin noted that appellant
reached MMI and opined that there was no work-related reason referable to OWCP File No.
xxxxxx880 that precluded her from returning to work full duty with lifting limited to 100 pounds
occasionally.
Dr. Fried provided a rationalized description of how the accepted work factors caused or
contributed to the diagnosed conditions. Dr. Askin, however, opined that there was no causal
relationship between the identified employment factors and appellant’s chest condition. The
Board, therefore, finds that a conflict in medical opinion exists regarding whether she sustained a
chest injury in the performance of duty on February 25, 2017.
OWCP’s regulations provide that, if a conflict exists between the medical opinion of the
employee’s physicians and the medical opinion of a second-opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination.17 The Board will,
thus, remand the case to OWCP for referral to an impartial medical examiner regarding whether
appellant has met her burden of proof to establish that she sustained a chest injury due to the

16

M.W., supra note 14; C.T., supra note 14; Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52
ECAB 486 (2001).
17

5 U.S.C. § 8123(a); M.W., supra note 14.

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accepted employment incident.18 Following this and any such further development as may be
deemed necessary, OWCP shall issue a de novo decision.19
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 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.20
Issued: March 15, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

18

Id.

19

On appeal counsel asserts the May 16, 2018 decision was not properly served on appellant, appellant’s
representative, or the employing establishment. Under the mailbox rule, it is presumed, absent evidence to the
contrary, that a notice mailed to an individual in the ordinary course of business was received by that individual. See
D.R., Docket No. 18-0232 (issued October 2, 2018); A.C. Clyburn, 47 ECAB 153 (1995). The record supports that
OWCP’s decision dated May 16, 2018 was sent to appellant and appellant’s counsel at the address of record and does
not indicate that it was returned as undeliverable.
20

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board effective January 20, 2021.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, VIRGIN
ISLANDS NATIONAL PARK, St. John, VI,
Employer
__________________________________________

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

Docket No. 14-1789
Issued: January 12, 2015

Case Submitted on the Record

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

JURISDICTION
On August 11, 2014 appellant filed a timely appeal from a July 3, 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 a traumatic injury in
the performance of duty on Friday, March 15, 2013.
On appeal appellant’s attorney asserts that the July 3, 2014 decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 21, 2013 appellant, then a 53-year-old automotive mechanic, filed a traumatic
injury claim alleging that on March 15, 2013 he sustained low back and leg pain while lifting and
installing a 90- to 100-pound sump pump into a sewage tank.2 In support of his claim, he
submitted a March 18, 2013 report in which Dr. Brian Bacot, a Board-certified orthopedic
surgeon, noted a history of debilitating low back pain that occurred on April 14, 2011 when
appellant was lifting a heavy object. Dr. Bacot reported lumbar spine x-ray findings of severe L4
and L5 degenerative disc disease and an implanted spinal stimulator. He diagnosed low back
pain radiating into both legs and sciatica. In a March 30, 2013 report, Dr. Alexander N. Lenard,
Board-certified in orthopedic surgery and an associate of Dr. Bacot, noted that appellant had a
long history of back issues dating back to the 1980s when he underwent L4-5 surgery and
recently had a sudden onset of severe back pain with heavy lifting at work. Physical
examination demonstrated a normal straight leg raise test. Dr. Lenard diagnosed lumbago. On
April 18, 2013 Dr. Bacot reported that a computerized tomography (CT) scan of the lumbar
spine confirmed a diagnosis of L4-5 degenerative disc disease and reiterated his diagnoses.
By letter dated May 3, 2013, OWCP informed appellant of the evidence needed to
support his claim and asked the employing establishment to respond. In a statement dated
“March 14, 2013,” appellant indicated that on March 15, 2013 he was helping a coworker install
a new sewage pump, and he climbed a ladder and was lifting the pump about five feet when he
felt an electrical shock, after which his back immediately began to hurt. An April 15, 2013
lumbar spine CT scan study demonstrated marked degenerative disc disease at L4-5. In an
April 15, 2013 attending physician’s report, Dr. Bacot noted that appellant had a long history of
back pain with a stimulator in place and was complaining of back pain after lifting a heavy
object. He diagnosed recurrent back pain and indicated that appellant could perform light duty
with no lifting or stooping. In a May 10, 2013 report, Dr. Phillip G. St Louis, a Board-certified
neurosurgeon, advised that decompressive surgery was scheduled for May 14, 2013. A brief
emergency department discharge summary dated May 22, 2013 indicated that appellant was seen
that day with a diagnosis of back pain and lumbar strain and was to follow up with Dr. St Louis.
By decision dated June 5, 2013, OWCP denied the claim because the medical evidence
was insufficient to establish that a medical condition was diagnosed in connection with the
claimed work factors.
Appellant, through his attorney, timely requested a hearing, and submitted additional
evidence. On August 3, 2013 Dr. Angel L. Soto Vega, a family practitioner, performed a fitnessfor-duty evaluation for the employing establishment. He indicated that appellant ambulated with
difficulty using a cane and also reported a history of lumbar disc disease dating to 1983 with
increased pain after a lifting incident on March 15, 2013. Dr. Soto Vega noted the CT scan study
findings and indicated that Dr. St Louis had recommended surgery. He also reported that he
reviewed a July 15, 2013 mental health evaluation done by Anne Nayer, licensed in social work,

2

Appellant also filed a CA-7 claim for compensation for the period April 30 to May 3, 2013.

2

and an August 8, 2013 report from Dr. David D. Weisher, a Board-certified neurologist.3
Dr. Soto Vega noted physical examination findings of pain with straight leg raising bilaterally,
tenderness to palpation of the lumbar spine, and limited lumbar spine range of motion. He
diagnosed severe chronic lumbar pain, lumbar degenerative disc disease, major depression,
lumbar radiculitis, and lumbar muscular spasm. Dr. Soto Vega concluded that appellant was not
stable and it was expected that he would suffer sudden incapacitation from carrying out job
duties. On September 10, 2013 he indicated that, based on appellant’s medical condition and a
review of the position description, appellant could not perform the duties of automotive
mechanic. Dr. Soto Vega advised that appellant’s chronic degenerative spine condition was
permanent.4
In an October 2, 2013 report, Dr. St Louis noted that appellant was seen for preoperative
assessment. He diagnosed lumbar disc disorder without myelopathy and indicated that surgical
fusion would be performed on October 3, 2013.5 An October 3, 2013 CT study of the lumbar
spine demonstrated multilevel spondylosis with mild central canal stenosis at L4-5 and
multilevel neuroforaminal narrowing, most severe at L4-5. In reports dated October 18, 2013,
Dr. St Louis noted a history of a 1983 injury with spinal stimulator placement and a new injury
in 2013 that caused radiating sharp pain. He diagnosed L4-5 degenerative disc disease with
severe disc space narrowing and advised that “appellant’s current surgery was related to the
injury of March 2013 as based on his history and also the findings at the time of surgery.”
A state compensation insurance fund letter dated September 19, 2013, addressed to Dr. St
Louis, indicated that his request for surgical authorization and a lumbar brace had been approved
on September 19, 2013. The approval letter indicated that this was in regard to a California
injury that occurred on December 29, 1983.
At the hearing, held on November 13, 2013, appellant testified that in 1983 he hurt his
back at work in California, had surgery in 1984, and a spine stimulator was later inserted. He
indicated that the claim was still open. Appellant stated that he began work at the employing
establishment in 2006 and they were aware of his medical history including that he had a spine
stimulator in place. He described the Friday, March 15, 2013 incident and indicated that he saw
Dr. Bacot the following Monday, who referred him to Dr. Lenard and then went to Dr. St Louis
for surgery on October 3, 2013. The hearing representative asked appellant to provide
information regarding the 1983 injury in California.
A decision dated May 4, 1988 by the California Workers’ Compensation Appeals Board
awarded appellant 123.75 weeks of compensation, or $16,087.50 and entitlement to further
medical care.
3

Neither Ms. Nayer’s nor Dr. Weisher’s reports are found in the case record. Dr. Soto Vega indicated that
Ms. Nayer diagnosed major depressive disorder associated with chronic lumbar pain and that Dr. Weisher indicated
that appellant’s examination and history suggested surgically significant lumbar stenosis.
4

In a September 10, 2013 attending physician’s report, Bonnie O’Rourke-Barr, a physical therapist, noted that
appellant was seen at physical therapy with a diagnosis of lumbar radiculopathy. She advised that appellant had an
80 percent disability.
5

An operative report is not found in the case record.

3

By decision dated January 20, 2014, an OWCP hearing representative found that the
lifting incident occurred on March 15, 2013, but that the medical evidence did not establish a
causal relationship between the March 2013 incident and any diagnosed condition.
On April 9, 2014 appellant’s attorney requested reconsideration. He submitted a
March 18, 2014 “to whom it may concern” letter in which Dr. St Louis noted the April 15, 2013
CT examination findings and indicated that he reviewed the findings on May 8, 2013.
Dr. St. Louis stated:
“At that time, it was determined that these findings correlated with the patient’s
symptoms of sharp back pain shooting from lower back to bilateral buttocks and
chronic numbness in calves and toe. In summary, the findings from the CT
lumbar spine completed on April 15, 2013 correlate with the patient’s symptoms
from work-related injury from March 15, 2013. Surgery was then recommended
for his L4-L5 levels.”
In a merit decision dated July 3, 2014, OWCP found the evidence submitted was
insufficient to modify the January 10, 2014 decision because the medical evidence did not
contain a well-reasoned medical explanation with supporting objective findings explaining how
the March 15, 2013 employment incident caused or aggravated appellant’s lumbar condition.
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/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.6
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.7 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.8
6

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

7

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

8

Gary J. Watling, supra note 6.

4

Under FECA, when employment factors cause an aggravation of an underlying physical
condition, the employee is entitled to compensation for the periods of disability related to the
aggravation.9 Where the medical evidence supports an aggravation or acceleration of an
underlying condition precipitated by working conditions or injuries, such disability is
compensable.10 However, the normal progression of untreated disease cannot be said to
constitute “aggravation” of a condition merely because the performance of normal work duties
reveal the underlying condition.11 For the conditions of employment to bring about an
aggravation of preexisting disease, the employment must cause acceleration of the disease or
precipitate disability.12 When the aggravation is temporary and leaves no permanent residuals,
compensation is not payable for periods after the aggravation ceased.13
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.14 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 employee.15 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.16
ANALYSIS
OWCP found and the Board agrees that the March 15, 2013 lifting incident occurred.
The Board, however, finds that the medical evidence submitted by appellant is insufficient to
establish that this incident caused a medical condition.
Appellant has a long history of lumbar spine degenerative disc disease. In the 1980s he
sustained a work-related injury and was paid compensation by the State of California. Appellant
had a spinal stimulator inserted after this injury. Following the March 15, 2013 incident, he
submitted reports from attending orthopedic surgeon Dr. Bacot and his associate Dr. Lenard.
Dr. Bacot indicated on March 18, 2013 that appellant’s back pain began following a lifting
incident in April 2011, and both physicians reported a long history of degenerative disc disease.
Neither physician related a medical condition to the March 15, 2013 lifting incident. Likewise,
9

Raymond W. Behrens, 50 ECAB 221, 222 (1999); James L. Hearn, 29 ECAB 278, 287 (1978).

10

A.C., Docket No. 08-1453 (issued November 18, 2008).

11

See Glenn C. Chasteen, 42 ECAB 493 (1991).

12

A.C., supra note 10.

13

Raymond W. Behrens, supra note 9.

14

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

15

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

16

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

5

Dr. Soto Vega, who examined for the employing establishment, noted a long history of back pain
and lumbar degenerative disc disease. He reported that appellant’s pain increased after a lifting
incident at work on March 15, 2013 but did not identify or diagnose a specific injury. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.17
Dr. St Louis performed a back surgery in October 2013 paid for by the California
insurance fund under the California claim. While he advised on March 18, 2014 that the findings
from an April 15, 2013 CT scan study of the lumbar spine correlated with appellant’s symptoms
from a March 15, 2013 work-related injury, he did not explain the mechanics of the March 15,
2013 lifting incident or how the incident caused an injury. He also did not explain the
relationship, if any, of the previous work injury to the March 2013 incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.18 No physician did so in this case.
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 an
employment-related injury on March 15, 2013.

17

Willie M. Miller, 53 ECAB 697 (2002).

18

D.D., Docket No. 13-1517 (issued April 14, 2014).

6

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 12, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Orion, MI, Employer
__________________________________________

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

Docket No. 16-0239
Issued: May 4, 2016

Case Submitted on the Record

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

JURISDICTION
On November 23, 2015 appellant, through counsel, filed a timely appeal from a June 26,
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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease causally related to factors of his federal employment.
FACTUAL HISTORY
On October 3, 2013 appellant, then a 51-year-old substitute rural carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained a torn rotator cuff in the
performance of duty. He attributed his constant left shoulder pain to repetitive movement.
1

5 U.S.C. § 8101 et seq.

Appellant indicated that he first became aware of his condition on May 3, 2013. He became
aware of its relation to his federal employment on September 30, 2013. Appellant did not stop
work.
Multiple disability status reports (CA-7 forms) were submitted. In a May 6, 2013 report,
Dr. Paul Siatczynski, a Board-certified orthopedic surgeon, advised that appellant was totally
incapacitated. In July 11 and September 30, 2013 disability status reports, he advised that
appellant was unable to work over time.
By letter dated October 7, 2013, the employing establishment controverted appellant’s
claim. It advised that he requested light-duty work beginning in May 2013, but never indicated
that he had a work injury.
An October 15, 2013 injury compensation notification form advised that appellant
sustained a left shoulder injury and noted that he was restricted from doing overtime and
working more than one route.
By letter dated October 21, 2013, OWCP advised appellant of the type of evidence
needed to establish his claim.
A May 6, 2013 report from Lakeside Medical Group, P.C. with an illegible doctor’s
signature advised that appellant had a left shoulder injury.
In an October 22, 2013 statement, appellant advised that his employment activities
included casing mail, reaching, grabbing, and lifting. He indicated that performing these
repetitive motions thousands of times a day for the past eight years contributed to his condition.
Appellant noted that his activities outside of his federal employment included golf, driving, and
riding a mountain bike.
In a September 30, 2013 report, Dr. Siatczynski advised that appellant began having left
shoulder pain on May 3, 2013 after sneezing. He noted that prior to that incident appellant had
no issues. Dr. Siatczynski indicated that appellant had pain with elevation, internal rotation
behind the back, weakness, and stiffness. A left shoulder x-ray revealed an os acromiale in the
axillary view of the left shoulder, sclerosis on the undersurface of the acromion, and cystic
changes of the greater tuberosity with some osteophyte formation. Dr. Siatczynski assessed a
large tear of the supraspinatus and infraspinatus and atrophy of the infraspinatus fossa on the
posterior scapula. He recommended surgery, but noted that appellant would have to pay cash as
he did not have health insurance at that time.
In a November 7, 2013 report, Dr. Steven Hartz, a Board-certified osteopath specializing
in family medicine, advised that he began treating appellant on May 5, 2013. He noted that
appellant had been complaining of left shoulder pain for two months prior to an unfortunate
sneeze that caused his condition to go from sub-acute to acute. Dr. Hartz indicated that he
initially diagnosed acute tendinitis and that an x-ray and magnetic resonance imaging (MRI) scan
later revealed a torn rotator cuff. Examination revealed reduced range of motion, reduced
strength, and almost no abduction or reverse flexion. Dr. Hartz noted that even with a restricted
work environment appellant was not improving. He advised that appellant was without health
insurance and needed workers’ compensation to initiate and complete needed treatment.
2

By decision dated January 30, 2014, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish that he sustained a medical condition causally
related to the accepted factors of his employment.
In a February 4, 2014 letter, appellant, through counsel, requested an oral telephone
hearing before an OWCP hearing representative.
In July 1, 2013, and April 24 and 29, 2014 disability status reports, Dr. Hartz advised that
appellant was restricted from working overtime, working more than eight hours per day, and
working more than one route.
In an August 18, 2014 hearing, appellant reiterated that repetitive movements at work
caused or contributed to his condition. He noted that a left shoulder MRI scan showed that he
had a torn rotator cuff. Appellant advised that a sneeze while at work made his shoulder feel
worse, but specified that he was already experiencing shoulder pain prior to this incident.
Dr. Siatczynski, in a September 30, 2013 report, advised that a left shoulder x-ray
revealed an os acromiale in the axillary view of the left shoulder, sclerosis on the undersurface of
the acromion, and cystic changes of the greater tuberosity with some osteophyte formation. In a
September 30, 2013 diagnostic report, he advised that an ultrasound revealed significant tearing
of the supraspinatus and infraspinatus with retraction and fluid around the biceps consistent with
a synovitis.
In a January 20, 2014 report, Dr. Siatczynski advised that appellant was working
60 hours per week and wanted a doctor’s note placing him on three days per week restriction.
On examination he noted positive Neer sign, positive Speed’s test, positive pain and weakness on
stressing external rotation, pain stressing the supraspinatus, and Popeye deformity of the right
arm. Dr. Siatczynski assessed chronic rotator cuff tear of the left shoulder. He opined that
appellant needed to proceed with surgical intervention sooner rather than later if he hoped to
regain function of the left shoulder.
By decision dated November 4, 2014, an OWCP hearing representative affirmed the
January 30, 2014 denial of appellant’s claim.
In a March 26, 2015 Family and Medical Leave Act form, Dr. Hartz advised that
appellant was under his treatment for a left shoulder condition and noted that he required
intermittent time off from work for medical appointments.
Appellant, through counsel, requested reconsideration on March 26, 2015.
In a December 8, 2014 report, Dr. Hartz advised that appellant injured his right shoulder
when he sneezed. Examination revealed reduced grip strength and bicep tendon pain. Dr. Hartz
assessed biceps tendinitis and rotator cuff tear. He opined that appellant’s injury was
exacerbated by his work and repetitive motions.
By decision dated June 26, 2015, OWCP denied modification of its prior decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS
There is no dispute that appellant’s employment activities included casing mail, reaching,
grabbing, and lifting. However, the Board finds that the medical evidence of record is
insufficient to establish that factors of his federal employment caused or aggravated his left
rotator cuff syndrome.
In a December 8, 2014 report, Dr. Hartz advised that appellant injured his right shoulder
when he sneezed. He assessed biceps tendinitis and rotator cuff tear. Dr. Hartz opined that
appellant’s injury was exacerbated by his work and repetitive motions. This report is insufficient
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

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

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

4

to discharge appellant’s burden of proof as it is not sufficiently rationalized. Although Dr. Hartz
attributed appellant’s condition to his work, he did not explain how these work activities caused
his diagnosed conditions. The Board has long held that medical opinions not containing
rationale on causal relation are of diminished probative value and are generally insufficient to
meet appellant’s burden of proof.7 Further, Dr. Hartz did not provide an accurate factual
background as he indicated that appellant sustained a right shoulder injury rather than a left
shoulder injury as claimed by appellant. It is well established that medical reports must be based
on a complete and accurate factual and medical background and medical opinions based on an
incomplete or inaccurate history are of little probative value.8 In his November 7, 2013 report,
Dr. Hartz advised that appellant had been complaining of left shoulder pain for two months prior
to an unfortunate sneeze that caused him to go from a sub-acute situation to an acute one. He
noted that even with a restricted work environment appellant was not improving and advised that
he needed workers’ compensation to provide treatment. This report is insufficient to discharge
appellant’s burden of proof as it does not attribute appellant’s diagnosed condition to factors of
his employment. Although Dr. Hartz noted that appellant was not improving while working
restricted duties and indicated that he needed workers’ compensation to pay for his treatment, he
failed to relate appellant’s work duties to his diagnosed condition.
In his January 20, 2014 report, Dr. Siatczynski advised that appellant was working
60 hours per week and wanted a doctor’s note placing him on three days per week restriction.
He assessed chronic rotator cuff tear of the left shoulder and opined that appellant needed to
proceed with surgery sooner rather than later if he hoped to regain function of the left shoulder.
Although Dr. Siatczynski noted that appellant was having difficulty working, he attributed his
condition to a sneeze. In his September 30, 2013 report, he advised that appellant began having
left shoulder pain on May 3, 2013 after sneezing. Dr. Siatczynski noted that prior to that incident
appellant had no issues and assessed a large tear of the supraspinatus and infraspinatus with
atrophy of the infraspinatus fossa on the posterior scapula. Again, he attributed appellant’s
condition to a sneeze and indicated that appellant was symptom free prior to the incident. These
reports are insufficient to discharge appellant’s burden of proof as they fail to attribute his
diagnosed condition to any factor of his employment. The mere fact that the sneeze occurred
while appellant was at work does not make it a factor of his employment. Other reports by
Dr. Siatczynski are also insufficient to discharge appellant’s burden of proof as they do not
address causal relationship.9
Other medical reports submitted, including disability status and diagnostic reports, are of
limited probative value and insufficient to discharge appellant’s burden of proof as they do not
address causal relationship.10

7

Carolyn F. Allen, 47 ECAB 240 (1995).

8

Douglas M. McQuaid, 52 ECAB 382 (2001).

9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).
10

Id.

5

Consequently, the Board finds that appellant has submitted insufficient medical evidence
to establish his claim. Causal relationship is a medical question that must be established by
probative medical opinion from a physician.11 The physician must accurately describe
appellant’s work duties and medically explain the pathophysiological process by which these
duties would have caused or aggravated his condition.12
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 an
occupational disease causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 4, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

Jennifer Atkerson, 55 ECAB 317 (2004).

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Williamsville, NY, Employer
__________________________________________
Appearances:
Douglas J. Lawrence, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-1360
Issued: March 12, 2021

Case Submitted on the Record

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

On July 1, 2020 appellant, through a representative, filed a timely appeal from a January 9,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk
of the Appellate Boards assigned Docket No. 20-1360.
On August 14, 2018 appellant, then a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 11, 2018 she sustained a right hip/buttocks strain from
unloading a parcel from the rear of a postal vehicle onto a dolly.2 (RD 8/16/2018) Appellant
stopped work on August 13, 2018.
In support of her claim appellant submitted medical evidence including disability notes
dated August 13, 16, and September 4, 2018, from Kristin Murchison, a physician assistant and
1

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

OWCP assigned the claim File No. xxxxxx833.

Lisa Ann Feitshans, a nurse practitioner. Also submitted were emergency department notes and
discharge summary dated August 13, 2018, and a September 4, 2018 duty status report (Form CA17), bearing an illegible signature.
On August 14 2018 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16). The Form CA-16 listed the date of injury as
August 11, 2018 and noted appellant’s alleged injuries to her right hip/buttocks.
In a September 14, 2018 development letter, OWCP indicated that when appellant’s claim
was first received it appeared to be a minor injury that resulted in minimal or no lost time from
work and payment of a limited amount of medical expenses was administratively approved. It
explained that it had reopened the claim for consideration because she had not returned to work in
a full-time capacity. OWCP requested that appellant submit additional factual and medical
evidence in support of her claim and provided a questionnaire for her completion. Appellant was
provided 30 days to submit the requested evidence.
OWCP subsequently received an August 16, 2018 report and progress notes dated
September 24 and October 9, 2018 from Ms. Feitshans diagnosing lumbago concurrent with rightsided sciatica, and a September 24, 2018 Form CA-17 from Dr. Manju Ceylony, a Board-certified
internist, releasing appellant to return to work on September 26, 2018.
By decision dated October 24, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a medical diagnosis in connection
with her accepted employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined under FECA.
Following the denial of her claim, OWCP received additional medical evidence from
Kristen Latona-Brezinski, a chiropractor, including duty status reports (Form CA-17) dated
October 22, November 2, 16, and 30 2018, progress reports covering the period October 22, 2018
to January 18, 2019, and limited-duty work certification forms dated December 19 and, 28, 2018.
OWCP also received an October 22, 2018 x-ray report from Dr. Maria Komissarova, Boardcertified in diagnostic radiology, and an April 17, 2019 report from Dr. Dr. Andrea Wong, Boardcertified in anesthesiology and pain medicine.
On May 9, 2019 OWCP received a letter from appellant dated May 2, 2019, in which she
“appealed” the denial of her claim under OWCP File No. xxxxxx833. The letter was addressed to
OWCP and OWCP labeled the request in its iFECS record as a reconsideration request. Along
with appellant’s letter, OWCP received additional medical evidence, including x-ray and magnetic
resonance imaging reports dated January 7, 2019, and additional progress reports from
chiropractor Latona-Brezinski.
On January 8, 2020 OWCP received a letter from appellant requesting the status of her
request for reconsideration, which was received by OWCP on May 8, 2019.
By decision dated January 9, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
medical evidence was received on May 9, 2019; however, no request for reconsideration was
received until January 8, 2020.
2

The Board has duly considered this matter and finds that OWCP improperly determined
that appellant’s request for reconsideration was untimely filed.3
The case record contains a letter dated May 2, 2019 and received by OWCP on
May 9, 2019. In the letter, appellant appealed the rejection of her claim. Appellant also identified
the proper OWCP claim number and explicitly noted that she was appealing the denial of her
claim. With her May 2, 2019 letter, appellant submitted medical evidence in support of her claim.
Accordingly, the Board finds that her May 2, 2019 letter, received by OWCP on May 9, 2019,
constituted a request for reconsideration of OWCP’s October 24, 2018 merit decision.4
As the May 9, 2019 request for reconsideration was received within one year of OWCP’s
October 24, 2018 merit decision,5 it was timely filed.6 Therefore, OWCP should have applied the
standard applicable to timely reconsideration requests as set forth in 20 C.F.R. § 10.606(b)(3),
rather than the more stringent clear evidence of error standard for untimely reconsideration
requests set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the more stringent clear evidence
of error standard which applies to untimely filed reconsideration requests, the Board will remand
the case for review of this evidence under the proper standard of review for timely reconsideration
requests.7
Thus, the Board finds that this case must be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.8
Accordingly,

3
I.A., Docket No. 19-1910 (issued September 29, 2020); Order Remanding Case, D.F., Docket No. 20-0267 (issued
June 29, 2020); E.S., Docket No. 17-0698 (issued July 14, 2017).
4

T.L., Docket No. 19-1110 (issued August 11, 2020); R.D., Docket No. 14-0896 (issued August 1, 2014); C.M.,
Docket No. 11-1988 (issued June 6, 2012).
5

R.T., Docket No. 20-0298 (issued August 6, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4(a) (February 2016).
6

J.H., Docket No. 18-1367 (issued July 17, 2019); R.M., Docket No. 17-0473 (issued June 6, 2017); C.B., Docket
No. 13-1732 (issued January 28, 2014).
7

Order Remanding Case, L.N., Docket No. 19-0170 (issued August 21, 2019).

8

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

3

IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.9
Issued: March 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9
The Board notes that, following appellant’s July 1, 2020 appeal to the Board, by decision dated September 11
2020, OWCP reviewed appellant’s letter received on May 9, 2019, conducted a merit review and denied modification.
The Board and OWCP may not exercise simultaneous jurisdiction over the same issues in a case on appeal. 20 C.F.R.
§ 501.2(c)(3). Following the docketing of an appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue(s) on appeal until after the Board relinquishes jurisdiction. Id. Therefore, the
subsequent decision of OWCP dated September 11, 2020 is null and void as the Board and OWCP may not
simultaneously have jurisdiction over the same issue. See 20 C.F.R. § 10.626; see also M.J., Docket No. 20-1067
(issued December 23, 2020); A.C., Docket No. 18-1730 (issued July 23, 2019); Arlonia B. Taylor, 44 ECAB 591
(1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0025
Issued: September 3, 2019

Case Submitted on the Record

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

On October 2, 2018 appellant filed a timely appeal from a September 13, 2018 decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Board’s
docketed the appeal as No. 19-0025.
This matter has previously been before the Board.2 The facts and circumstances of the
previous decision of the Board are incorporated herein by reference. The relevant facts are as
follows.

1

Appellant also filed a timely request for oral argument. By order dated April 4, 2019, the Board, after exercising
its discretion, denied his request as his arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 19-0025 (issued April 4, 2019).
2

Docket No. 17-1631 (issued January 3, 2018).

OWCP accepted that on October 29, 2009 appellant, then a 56-year old mail handler,
sustained a right complete rotator cuff rupture, cervicalgia, and degeneration of a cervical
intervertebral disc while in the performance of duty.3
On October 18, 2013 appellant filed a claim for a schedule award (Form CA-7).
OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for
a second opinion evaluation regarding the extent of his right upper extremity permanent
impairment. In a December 20, 2016 report, Dr. Brecher determined that appellant had reached
maximum medical improvement and had 10 percent permanent impairment of the right upper
extremity based on the range of motion (ROM) methodology. On January 23, 2017
Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as an OWCP District Medical
Adviser (DMA), agreed with Dr. Brecher’s permanent impairment rating.
By decision dated March 9, 2017, OWCP granted appellant a schedule award for 10
percent permanent impairment of his right upper extremity.
Appellant filed an appeal with the Board on July 24, 2017. By decision dated January 3,
2018, the Board set aside OWCP’s March 9, 2017 schedule award decision and remanded the case
for further development.4 The Board found that OWCP had inconsistently applied Chapter 15 of
the sixth edition of the A.M.A., Guides when granting schedule awards for upper extremity claims.
The Board noted that following OWCP’s development of a consistent method for calculating
permanent impairment for upper extremities, OWCP would issue a de novo decision.
Following remand, on April 24, 2018, OWCP referred appellant to Dr. Brecher for a
supplemental evaluation in accordance with the A.M.A., Guides and FECA Bulletin No. 17-06.5
In an April 24, 2018 supplemental report, Dr. Brecher provided examination findings and
noted that he could not provide a spinal nerve rating until appellant underwent an electromyogram
(EMG) study. Utilizing the ROM method, he calculated 13 percent permanent impairment of the
right upper extremity.
Following Dr. Brecher’s April 24, 2018 evaluation, OWCP authorized and scheduled
appellant for an EMG and nerve conduction velocity (NCV) study on May 22, 2018.
In a May 22, 2018 report, Dr. C. Johnson, a Board-certified radiologist, indicated that
appellant’s bilateral EMG/NCV study revealed bilateral carpal tunnel syndrome and bilateral midcervical root irritation.

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Under subsidiary claim OWCP File No. xxxxxx171, OWCP granted appellant a schedule award for 18 percent
permanent impairment of the left upper extremity. OWCP administratively combined OWCP File No. xxxxxx171
with the present claim, with the latter serving as the master file.
4
5

Supra note 2.).
FECA Bulletin No. 17-06 (May 8, 2017).

2

On June 18, 2018 Dr. Brecher resubmitted his April 24, 2018 report with an accompanying
addendum. He reported that he reviewed the May 22, 2018 EMG and his opinion was unchanged,
noting that it was not possible to provide appellant a true permanent impairment rating until his
carpal tunnel syndrome was addressed and further treatment was provided.
On July 30, 2018 OWCP referred Dr. Brecher’s April 24, 2018 report and a statement of
accepted facts (SOAF) back to Dr. Katz for an opinion in accordance with the Board’s January 3,
2018 decision.
In an August 3, 2018 report, Dr. Katz noted review of Dr. Brecher’s initial December 20,
2016 report and supplemental April 24, 2018 report. Utilizing the DBI method, he calculated 12
percent permanent impairment of the right upper extremity based on an acromioclavicular (AC)
joint injury status post distal clavicle resection. Dr. Katz further determined that the ROM method
for the right shoulder established 13 percent permanent impairment of the right upper extremity.
He concluded that appellant sustained 13 percent permanent impairment of the right upper
extremity.
By decision dated September 13, 2018, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the right upper extremity.
Having reviewed the case record submitted by OWCP, the Board finds that this case is not
in posture for decision.
The record reflects that subsequent to Dr. Brecher’s April 24, 2018 examination, OWCP
scheduled appellant for a May 22, 2018 EMG/NCV study of the bilateral upper extremities. In a
June 18, 2018 addendum report, Dr. Brecher reviewed the findings of the EMG/NCV study and
determined that his opinion regarding impairment had not changed, noting that he could not yet
provide a spinal nerve impairment rating.
On July 30, 2018 OWCP referred Dr. Brecher’s April 24, 2018 report and a SOAF to
Dr. Katz for review and determination of the extent of permanent impairment for purposes of a
schedule award. However the July 30, 2018 SOAF did not reflect the most recent diagnostic
testing performed on May 22, 2018. OWCP procedures indicate that, when a DMA, second
opinion specialist, or referee physician renders a medical opinion based on a SOAF which is
incomplete or inaccurate, or does not use the SOAF as the framework in forming his or her opinion,
the probative value of the opinion is seriously diminished or negated altogether.6 While Dr. Katz
agreed with the impairment rating provided in Dr. Brecher’s April 24, 2018 report, it does not
appear that he had an opportunity to review the findings of the EMG/NCV study as his report made
no reference to the May 22, 2018 diagnostic report or to Dr. Brecher’s June 18, 2018 addendum
report.7 As these reports contained findings pertinent to appellant’s accepted conditions, the DMA
was not provided a complete and accurate framework, rendering his opinion of limited probative

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.5
(September 2009); see also A.C., Docket No. 07-2423 (issued May 15, 2008).
7

T.R., Docket No. 17-1961 (issued December 20, 2018).

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value.8 The Board therefore finds that further development is required. On remand, OWCP should
prepare an updated SOAF and refer the case file and relevant reports to a DMA for a reasoned
opinion regarding the extent of appellant’s permanent impairment of the right upper extremity.
Following such further development as deemed necessary, it shall issue a de novo decision.9
Accordingly,
IT IS HEREBY ORDERED THAT the September 13, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this order of the Board.
Issued: September 3, 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

8

F.R., Docket No. 17-1711 (issued September 6, 2018); L.J., Docket No. 14-1682 (issued December 11, 2015).

9

D.D., Docket No. 16-0558 (issued August 5, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, DUBLIN POST
OFFICE, Dublin, OH, Employer
__________________________________________

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

Docket No. 10-1309
Issued: April 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 12, 2010 appellant, through counsel, filed a timely appeal from decisions of the
Office of Workers’ Compensation Programs dated March 26, 2010 affirming the denial of his
recurrence and schedule award claims. Pursuant to the Federal Employees’ Compensation Act1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of these
decisions.
ISSUES
The issues are: (1) whether appellant has established entitlement to a schedule award;
and (2) whether he established that he sustained a recurrence of disability for the period July 11
to 20, 2009.
FACTUAL HISTORY
This case was previously before the Board. In a September 21, 2007 decision, the Board
set aside a December 8, 2006 hearing representative’s decision affirming an August 31, 2006
1

5 U.S.C. § 8101 et seq.

Office decision and remanded the case for further development on the issue of whether appellant
established a recurrence of disability beginning June 16, 2006 causally related to his accepted
aggravation of severe facet arthrosis at L5-S1.2 The Board found that the medical evidence
warranted further medical development regarding whether his disability for his modified position
was due to his accepted condition. The facts and the circumstances of the case as set forth in the
Board’s prior decision are incorporated herein by reference.3
On February 25, 2009 appellant filed a claim for a schedule award.
In a letter dated February 26, 2009, the Office requested Dr. James B. Dunnan, a Boardcertified family practitioner, to provide an impairment rating for appellant’s lower extremities
using the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
In response to the Office’s letter, Dr. Dunnan on March 5, 2009 diagnosed chronic low
back pain, L5-S1 arthrosis and L4-5 bulging disc and that maximum medical improvement was
reached in 2006. A physical examination of the back revealed decreased range of motion with 5
degrees extension, 90 degrees flexion, 15 degrees right bending and 5 degrees left bending.
On July 7, 2009 appellant accepted a modified mail processing clerk position with
physical restrictions of two to four hours of standing, four to seven hours of intermittent carrying
up to 20 pounds, six to eight hours of simple grasping and two to four hours of reaching above
the shoulder. The duties of the position were two to four hours of loading ledge of AFSM 100
machine, two to four hours of sweeping AFSM 100 machine, two to four hours of casing return
to sender letters and two hours of netflixs.
On July 23, 2009 appellant filed a claim for a recurrence of disability for the period
July 11 to 20, 2009. He submitted an attending physician’s report from Dr. Kedar K.
Deshpande, an examining Board-certified physiatrist, who diagnosed low back pain and myalgia.
Dr. Deshpande indicated that appellant was disabled from working for the period July 13 to
20, 2009.
By letter dated August 11, 2009, the Office informed appellant that the evidence was
insufficient to support his recurrence claim and advised him as to the type of medical and factual
evidence required to establish his claim.
Following the Office’s letter, an August 5, 2009 report from Dr. James H. Rutherford, a
second opinion Board-certified orthopedic surgeon, was received. Dr. Rutherford noted that
appellant’s claim was accepted for aggravation of severe facet arthrosis. A physical examination
of the back revealed 60 degrees flexion, 10 degrees extension and 15 degrees lateral flexion and
intact lower extremity sensory examination. An electromyograph for the left lower extremity
was normal. Using the sixth edition of the A.M.A., Guides, Dr. Rutherford concluded that
2

Docket No. 07-1245 (issued September 21, 2007).

3

On April 22, 2005 appellant, then a 53-year-old letter carrier, filed an occupational disease claim alleging that
his severe facet arthrosis had been aggravated by his employment. The Office accepted the claim for aggravation of
preexisting severe facet arthrosis at L5-S1. Appellant accepted a modified-job position in compliance with medical
restrictions on December 28, 2005.

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appellant had no ratable permanent impairment of his lower extremities due to his accepted
aggravation of severe facet arthrosis. He also opined that appellant continued to suffer from
residuals of the accepted employment condition.
On September 10, 2009 an Office medical adviser reviewed Dr. Rutherford’s report and
agreed with his conclusion that appellant had no ratable lower extremity impairment due to his
accepted employment injury.
By decision dated September 22, 2009, the Office denied appellant’s claim for a schedule
award.
In a September 23, 2009 decision, the Office denied appellant’s recurrence claim for the
period July 11 to 20, 2009.
In letters dated September 25 and 29, 2009, counsel requested a hearing before an Office
hearing representative on the denial of appellant’s schedule award and recurrence claim, which
was held on January 6, 2010.
By decisions dated March 26, 2010, an Office hearing representative affirmed the
September 22, 2009 decision denying appellant’s schedule award claim and the September 23,
2009 decision denying his recurrence claim for the period July 11 to 20, 2009.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 Effective May 1, 2009, the Office adopted
the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.8 As neither the Act nor its regulations provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

Thomas J. Engelhart, 50 ECAB 319 (1999); S.K., Docket No. 08-848 (issued January 26, 2009).

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whole, no claimant is entitled to such a schedule award.9 The Board notes that section
8101(19) specifically excludes the back from the definition of organ.10 However, a claimant may
be entitled to a schedule award for permanent impairment to an upper or lower extremity even
though the cause of the impairment originated in the neck, shoulders or spine.11
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an aggravation of severe facet arthrosis at
L5-S1 as a result of his federal employment. Having filed a schedule award claim, appellant
carries the burden of proof to establish that this medical condition caused a permanent physical
impairment to his upper or lower extremities. Appellant can receive no schedule award for any
impairment to his back unless its origin is an impairment affecting the upper or lower
extremities.
Dr. Dunnan, a Board-certified family practitioner, reported decreased back range of
motion and noted maximum medical improvement was reached in 2006. He provided no
opinion as to whether appellant had a ratable permanent impairment of the lower extremities.
Dr. Rutherford, the second opinion orthopedic surgeon, found no ratable permanent impairment
of the lower extremities. An Office medical adviser reviewed Dr. Rutherford’s report and
concurred with his opinion that there was no ratable lower extremity impairment.
Without a well-reasoned medical opinion explaining how the 2005 aggravation of severe
facet arthrosis at L5-S1 caused permanent physical impairment of appellant’s upper or lower
limbs under the sixth edition of the A.M.A., Guides, the evidence is insufficient to support his
schedule award claim. The Board finds that he has not met his burden of proof. The Board will
therefore affirm the Office hearing representative’s March 26, 2010 decision.
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which has resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.12 If the disability results from new exposure to work factors, the legal
chain of causation from the accepted injury is broken and an appropriate new claim should be
filed.13

9

See D.N., 59 ECAB 576 (2008); Jay K. Tomokiyo, 51 ECAB 361 (2000)

10

5 U.S.C. § 8101(19).

11

J.Q. 59 ECAB 366 (2008); Thomas J. Engelhart, supra note 8.

12

20 C.F.R. § 10.5(x); Hubert Jones, Jr., 57 ECAB 467 (2006). See also A.M., Docket No. 09-1895 (issued
April 23, 2010);
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Cecelia M.
Corley, 56 ECAB 662 (2005); Donald T. Pippin, 54 ECAB 631 (2003); K.C., Docket No. 08-2222 (issued July 23,
2009).

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When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that light duty can be performed, the employee has the burden to establish by the weight of
reliable, probative and substantial evidence a recurrence of total disability.14 As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the light-duty requirements.15 In order
to establish that his claimed recurrence of the condition was caused by the accepted injury,
medical evidence of bridging symptoms between his present condition and the accepted injury
must support the physician’s conclusion of a causal relationship.16 While the opinion of a
physician supporting causal relationship need not be one of absolute medical certainty, the
opinion must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.17
For conditions not accepted by the Office as being employment related, it is the
employee’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not the Office’s burden to disprove such relationship.18
ANALYSIS -- ISSUE 2
As noted above the Office accepted that appellant sustained an aggravation of severe
facet arthrosis at L5-S1 as a result of his federal employment. Appellant filed a recurrence claim
for the period July 11 to 20, 2009. The Board finds that he has not provided sufficient medical
reports, based on objective findings, which establish that there has been a change in the nature
and extent of his condition such that he can no longer perform his light-duty job and also has
provided no evidence to establish that there has been a change in the nature and extent of his
light-duty job requirements commencing July 11, 2009.
Appellant has not contended that there was a change in the nature and extent of his
permanent light-duty position. He has asserted that he sustained a worsening of his condition
and submitted a July 15, 2009 Form CA-20 report from Dr. Deshpande, an examining Boardcertified physiatrist, who diagnosed low back pain and myalgia and indicated dates of disability.
Dr. Deshpande’s report is insufficient to support disability for this period as he does not attribute
appellant’s disability to his accepted employment injury. Medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the
issue of causal relationship.19 Further, Dr. Deshpande provided no findings on examination in
14

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y).
15

Terry R. Hedman, 38 ECAB 222 (1986).

16

Ricky S. Storms, 52 ECAB 349 (2001).

17

Id.

18

Alice J. Tysinger, 51 ECAB 638 (2000).

19

Willie M. Miller, 53 ECAB 697 (2002).

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his report. Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled from work.20
Appellant was advised by an August 11, 2009 letter of the medical and factual evidence
to establish his claim for recurrence of disability. However, he did not submit such evidence.
The Board finds that appellant submitted insufficient evidence to meet his burden of proof in
establishing the claimed recurrence of disability for the period July 11 to 20, 2009.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained permanent impairment as a result of his accepted employment injury. The Board
further finds that he has not met his burden of proof in establishing that he sustained a recurrence
of disability for the period July 11 to 20, 2009 causally related to his accepted employmentrelated aggravation of severe facet arthrosis at L5-S1.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2010 is affirmed.
Issued: April 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

20

Laurie S. Swanson, 53 ECAB 517 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2