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

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

Docket No. 16-1468
Issued: December 7, 2016

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 July 6, 2016 appellant filed a timely appeal from a June 2, 2016 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 sustained a recurrence of disability on April 11, 2016
causally related to her accepted employment injury.
FACTUAL HISTORY
On November 24, 2009 appellant, then a 49-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained spondylolisthesis, a spinal
fracture, lumbar strain, and spondylolysis causally related to factors of her federal employment.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for cervical sprain, lumbar sprain, and a permanent aggravation of
congenital abnormalities of the spine at L5-S1.
Appellant worked limited duty from July 29, 2010, when she stopped work. She returned
to modified work for six hours per day beginning September 17, 2010. OWCP paid appellant
compensation for two hours per day based on an informal wage-earning capacity determination
until August 2012, when she returned to full-time modified employment.
On April 12, 2016 appellant telephoned OWCP and advised that she had experienced
sudden back pain while at home watching television. She sought treatment in a hospital
emergency room after having problems with respiration.
In a report dated April 11, 2016 and amended April 12, 2016, Dr. Vincent Balardi,
Board-certified in emergency medicine, obtained a history of appellant having “upper back pain,
worse with movement since last night while sitting on a couch.” On examination he found
paraspinal muscle spasm of the lumbosacral and thoracic spine. Dr. Balardi diagnosed
musculoskeletal back pain and strain.
Dr. Balardi, in a work release note dated April 16, 2016, found that appellant could
resume her usual employment. The work release note contains a handwritten note indicating that
she had a “gas bubble in [her] back” causing breathing difficulty.
On April 19, 2016 appellant filed a recurrence of disability claim (Form CA-2a) alleging
that on April 11, 2016 she sustained disability from work due to her accepted employment
injury. She stopped work on April 11, 2016 and returned to work on April 18, 2016.
By letter dated April 27, 2016, OWCP advised appellant of the definition of a recurrence
of disability and requested that she submit additional factual and medical information, including
a detailed report from her attending physician addressing the relationship between her current
disability and her accepted work injury. It noted that the medical evidence submitted identified
her condition as a gas bubble in her back.
In a May 3, 2016 response, appellant related that she initially believed that she might
have had gas, but subsequently realized that her pain was from her back condition.2 The
symptoms were like those she experienced from her accepted work injury. In another letter
dated May 3, 2016, appellant related that her supervisor wrote in her notes that appellant had a
gas bubble.
In a chart note dated May 4, 2016, Dr. Suk Chun Lee, who specializes in family practice,
discussed appellant’s history of pain in her trapezius and middle back beginning April 10, 2016
and her treatment in the emergency room on April 11, 2016. He noted that she returned to work
on April 18, 2016. Dr. Lee diagnosed recurrent trapezius strain and upper back pain.

2

Appellant telephoned OWCP on May 3, 2016 and related that she was not diagnosed with a gas bubble and that
her attending physician would no longer provide her with treatment.

2

By decision dated June 2, 2016, OWCP denied appellant’s claim for a recurrence of a
medical condition. It determined that the medical evidence was insufficient to show that she
required treatment due to a worsening of her accepted injury.
LEGAL PRECEDENT
Where an employee, who is disabled from the job he or she held when injured due to
employment-related residuals, returns to a light-duty position or the medical evidence establishes
that the employee can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of total disability.
As part of this burden, the employee must show a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the light-duty job requirements.3
OWCP regulations provide that 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
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.4 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to her work-related injury or illness is withdrawn, (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties, or a reduction-inforce) or when the physical requirements of such an assignment are altered so that they exceed
her established physical limitations.5
ANALYSIS
OWCP accepted that appellant sustained cervical sprain, lumbar sprain, and a permanent
aggravation of congenital spinal abnormalities at L5-S1 due to factors of her federal
employment. In August 2012, appellant returned to full-time modified employment. On
April 19, 2016 she filed a recurrence of disability claim (Form CA-2a) alleging that she was
unable to work from April 11 to 18, 2016 due to her accepted employment injury.
Initially, the Board notes that OWCP identified the issue as to whether appellant
sustained a recurrence of a medical condition rather than a recurrence of disability. Appellant
claimed, however, that she was disabled from April 11 to 18, 2016, and thus the issue is whether
she was unable to work during this period as a result of her employment injury.
Appellant has not alleged a change in the nature and extent of her modified job
requirements. Instead, she attributed her recurrence of disability to a change in the nature and
extent of her employment-related conditions. Appellant must provide medical evidence
establishing that she experienced increased disability due to a worsening of her accepted
3

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
4

20 C.F.R. § 10.5(x).

5

Id.

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conditions of cervical and lumbar sprain and a permanent aggravation of congenital
abnormalities at L5-S1.6
The Board finds that appellant has failed to submit sufficient medical evidence to
establish disability from April 11 to 18, 2016 due to her accepted work injury. In a report dated
April 11, 2016 and amended April 12, 2016, Dr. Balardi noted that appellant experienced pain in
her upper back when she was sitting on a couch the previous evening. He diagnosed back pain
and strain. Dr. Balardi, however, did not address the cause of the diagnosed conditions. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship.7 On April 16, 2016 Dr. Balardi
released appellant to resume her usual employment. As he did not relate any condition or
disability to her accepted employment injury, his report is insufficient to meet her burden of
proof.8
Dr. Lee, on May 4, 2016, advised that appellant experienced trapezius and middle back
pain on April 10, 2016. He diagnosed recurrent upper back pain and trapezius strain. Dr. Lee
did not address causation and thus his report is also of little probative value.9 OWCP has not
accepted an upper back or trapezius strain as employment related and Dr. Lee did not address
whether such condition was due to the accepted work injury. Where appellant claims that a
condition not accepted by OWCP was due to her employment injury, she must establish that the
condition is causally related to the employment injury through the submission of rationalized
medical evidence.10
The Board finds that appellant failed to establish disability beginning April 11, 2016.
Consequently, appellant failed to meet her 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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability on April 11,
2016 causally related to her accepted employment injury.

6

See Jackie D. West, supra note 3.

7

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

8

See A.D., 58 ECAB 124 (2006).

9

Id.

10

See Jaja K. Asaramo, 55 ECAB 200 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the June 2, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 7, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Kingsport, TN, Employer
__________________________________________

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Appearances:
Elizabeth L. McConnell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-844
Issued: September 19, 2012

Case Submitted on the Record

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

JURISDICTION
On March 6, 2012 appellant, through his attorney, filed a timely appeal from a
February 8, 2012 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 overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of $11,489.17 for the
period December 18, 2007 to July 2, 2011 because he received compensation at the augmented
rate when he had no dependents; (2) whether he was at fault in the creation of the overpayment
and thus not entitled to waiver; and (3) whether OWCP properly found that it would recover the
overpayment by deducting $400.00 a month from appellant’s continuing compensation benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 28, 2002 appellant, then a 44-year-old heavy mobile equipment repairer,
filed an occupational disease claim alleging that he sustained an emotional condition causally
related to factors of his federal employment. He listed his wife as a dependent on the claim
form. OWCP accepted the claim for mixed disorders as a reaction to stress, major depressive
disorder and neurotic disorder.2 Appellant stopped work on October 28, 2002. OWCP paid him
compensation beginning February 23, 2003 based on the augmented rate of three-fourths of his
monthly pay as he had a dependent.
On February 4, 2008 appellant informed OWCP that he was divorced and needed to
change his insurance. On February 11, 2008 OWCP requested that he submit a copy of his
divorce decree. On May 19, 2008 appellant submitted a disclosure of coverage for insurance
indicating that he was divorced, effective December 18, 2007.
In a Form EN1032 signed June 17, 2008, appellant indicated that he had no dependents.
On November 3, 2008 he informed OWCP by telephone that he was divorced as of
December 2007. OWCP again requested that he provide a copy of the divorce decree. On
November 28, 2008 appellant submitted a judgment of absolute divorce effective
December 18, 2007. On EN1032 forms signed June 5, 2009 and June 12, 2010, he listed no
dependents.
OWCP continued to pay appellant at the augmented rate until July 3, 2011. By letter
dated July 15, 2011, it advised him of its preliminary determination that he received an
overpayment of $11,489.17 because he received augmented compensation from December 18,
2007 to July 2, 2011 even though he had no dependents. OWCP calculated the overpayment by
subtracting the amount that it should have paid appellant at the 66 2/3 percent rate for claimants
without dependents, $93,067.40, from the augmented rate actually paid of $106,321.00. It
further found that it overdeducted benefits at the augmented rate of $1,764.43 and subtracted this
amount as well to find an overpayment of $11,489.17. OWCP further advised him of its
preliminary determination that he was at fault in the creation of the overpayment. It requested
that appellant complete the enclosed overpayment recovery questionnaire and submit supporting
financial documents. Additionally, OWCP notified him that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence or
a prerecoupment hearing.
On August 2, 2011 appellant requested a prerecoupument hearing by teleconference. He
alleged that the overpayment was not his fault as he had reported his change in dependent status
to OWCP by telephone and by submitting his divorce decree. Appellant submitted an
overpayment recovery questionnaire listing monthly income as $3,278.86 and expenses as

2

By decision dated December 29, 2003, OWCP denied appellant’s schedule award claim after finding that an
award was not payable under FECA for an impairment of the brain or a psychiatric condition. By decision dated
July 21, 2005, a hearing representative vacated the December 29, 2003 decision and remanded the case for OWCP
to determine whether he sustained an erectile impairment due to his accepted work injury. On September 9, 2005
OWCP denied appellant’s schedule award claim as the evidence did not establish a ratable penile impairment.

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$2,283.18. He additionally listed a checking account balance of $8,391.70, a savings account
balance of $6,635.00 and a balance in his Thrift Savings Plan (TSP) of $26,738.89.
At the telephonic prerecoupment hearing, held on November 15, 2011, appellant related
that he sent his divorce decree to OWCP and noted that OWCP had changed his health benefits.
He knew that his benefits would be reduced without dependents but asserted that he failed to
notice that OWCP had not changed his compensation. In December 2008, a claims examiner
told appellant that she was reducing his compensation and he believed that the situation was
resolved. He stopped opening his direct deposit slips. Appellant asserted that he was unable to
repay the overpayment due to catastrophic medical bills from a chainsaw accident. His attorney
argued that he had depression and anxiety and thus should not be considered to have normal
awareness. The hearing representative requested that appellant submit financial documentation
supporting his monthly income and expenses.
Following the hearing, appellant submitted a statement dated December 1, 2011 listing
monthly expenses of $3,605.51 and monthly income of $3,278.86. He indicated that he had
$11,292.00 in checking and savings accounts and $26,892.12 in his TSP. Appellant included
expenses of $960.00 a month for his mortgage, $1,000.00 per month on a VISA card, $311.32
per month for medical insurance, $39.00 per month for life insurance, $280.00 for cigarettes,
$625.00 for groceries, $165.00 for cable and Internet, $120.00 for telephone, $230.00 for vehicle
expenses, $105.00 for clothing and laundry, $40.00 for haircuts, $350.68 for insurance, $416.66
for medical expenses and $75.00 for medicine. He submitted a credit card statement showing
various charges. The credit card required a minimum payment of $11.00 in October 2011 and
$25.00 in November 2011.
By decision dated February 8, 2012, an OWCP hearing representative finalized OWCP’s
preliminary finding that appellant received an overpayment from December 18, 2007 to July 2,
2011 of $11,489.17 because it paid him compensation at the augmented rate when he had no
dependents. She further found that he was at fault in creating the overpayment as he knew or
should have known that the compensation he received was incorrect. The hearing representative
reviewed appellant’s income, expenses and assets and determined that he had not submitted
sufficient financial evidence to support all expenses. She further noted that he had originally
completed an overpayment questionnaire indicating monthly expenses of $2,283.18, but later
changed the monthly expenses to $3,605.51 without adequate documentation. The hearing
representative found that OWCP should recover the overpayment by deducting $400.00 a month
from his continuing compensation.
On appeal appellant’s attorney argues that he was not at fault in creating the overpayment
as he submitted a copy of his divorce decree to OWCP and as a claims examiner informed him
that she was correcting his benefits. She notes that he received payments due to a mental
condition and that he needed his income to pay his living expenses.

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LEGAL PRECEDENT -- ISSUE 1
FECA3 provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.4 If the
disability is total, the United States shall pay the employee during the disability monthly
compensation equal to 66 2/3 percent of his monthly pay, which is known as his basic
compensation for total disability.5 Where the employee has one or more dependents as defined
by FECA, he or she is entitled to have his or her basic compensation augmented at the rate of 8
1/3 percent, for a total of 75 percent of monthly pay.6 If a claimant receives augmented
compensation during a period where he has no eligible dependents, the difference between the
compensation he was entitled to receive at the two-thirds compensation rate and the augmented
compensation received at the three-quarters rate constitutes an overpayment of compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $11,489.17 for the period December 18, 2007 to July 2, 2011. Appellant advised OWCP that
he was divorced from his wife, his only claimed dependent, effective December 18, 2007.
OWCP, however, paid him compensation at the augmented rate of 75 percent of his monthly pay
until July 3, 2011. It should have paid him at the basic rate of 66 2/3 percent of his monthly pay
as he had no qualifying dependents. Accordingly, appellant received an overpayment of
compensation.
OWCP paid appellant $106,321.00 at the augmented rate from December 18, 2007 to
July 2, 2011. From this amount it subtracted the overdeductions that it took for this period at the
three-quarters or 75 percent rate, $1,764.43 and the amount that it should have paid him at the
66 2/3 percent basic rate, $93,067.40, to find an overpayment of $11,489.17. Appellant
consequently received an overpayment of $11,489.17, the difference between the compensation
to which he was entitled at the two-thirds rate and the augmented compensation he received at
the three-quarters rate.8
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA9 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
3

Supra note 1.

4

Id. at § 8102(a).

5

Id. at § 8105(a).

6

Id. at § 8110(b).

7

Diana L. Booth, 52 ECAB 370 (2001).

8

Id.

9

5 U.S.C. § 8129(b).

4

and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of OWCP’s implementing regulations10
provide that, in determining whether a claimant is at fault, it will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”11
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because he
accepted a payment which he knew or should have known to be incorrect. In order for it to
establish that he was at fault in creating the overpayment of compensation, it must show that, at
the time he received the compensation in question, he knew or should have known that the
payment was incorrect.12 With respect to whether an individual is with fault, section 10.433(b)
of OWCP’s regulations provide that whether or not OWCP determines that an individual was
with fault with respect to the creation of the overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the complexity of the
circumstances and the individual’s capacity to realize that he or she is being overpaid.13
The Board finds that appellant was at fault in creating the overpayment from
December 18, 2007 to July 2, 2011. Appellant advised OWCP on February 4, 2008 that he no
longer had a dependent. He completed EN1032 forms on June 15, 2006, June 6, 2007, June 17,
2008, June 5, 2009 and June 12, 2010 which provided him with the definition of a dependent and
explained that he was not entitled to receive compensation at the augmented rate if he did not
have dependents. Appellant did not claim dependents on the EN1032 forms beginning
June 17, 2008.14 By signing the EN1032 forms, he had notice that he was not entitled to
compensation at the augmented rate if he did not have a dependent. Appellant thus knew or
should have known that the compensation he received after December 18, 2007, the date of his
divorce, was incorrect.

10

20 C.F.R. § 10.433.

11

Id.

12

Franklin L. Bryan, 56 ECAB 310 (2005).

13

20 C.F.R. § 10.433(b); F.A., Docket No. 08-1519 (issued December 18, 2008); see also Otha J. Brown, 56
ECAB 228 (2004) (each recipient of compensation benefits is responsible for taking all reasonable measure to
ensure that payments he or she receives from OWCP are proper).
14

The forms cover the 15 months prior to signature.

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On appeal appellant’s attorney noted that appellant had a mental condition for which he
received compensation. While the record supports that he has a psychiatric condition, there is no
evidence showing that his condition is such that he is unable to manage his financial affairs.
Further, appellant acknowledged that he knew that his compensation would be reduced following
his divorce.
Counsel also argues that appellant was without fault in creating the overpayment as he
advised OWCP of his divorce and as it told him that it was adjusting his compensation. Even if
an overpayment resulted from negligence by OWCP, however, this does not excuse a claimant
from accepting payments that the claimant knew or should have been expected to know was
incorrect.15 As appellant is not without fault in the creation of the overpayment, he is not eligible
for waiver of recovery of the overpayment. OWCP is required by law to recover the
overpayment.16
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.17 Section
10.441(a) of the regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [OWCP] the amount of the overpayment
as soon as the error is discovered or his or her attention is called to same. If no
refund is made, [OWCP] shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”18
ANALYSIS -- ISSUE 3
The hearing representative determined that OWCP should withhold $400.00 per month
from appellant’s continuing compensation until it recovered the overpayment. She considered
that he initially listed expenses of $2,283.18 and income of $3,278.86, a difference of $995.68.
After the hearing, appellant submitted a statement detailing expenses of $3,605.51 and income of
$3,278.86. He did not, however, sufficiently document the claimed expenses. An overpaid
individual is responsible for providing information about income, expenses and assets as
specified by OWCP.19 Appellant further listed assets of $11,292.00 in checking and savings
accounts and $26,892.12 in his TSP. The Board finds that OWCP gave due regard to his
15

Danny E. Haley, 56 ECAB 393 (2005).

16

No waiver of recovery of an overpayment is possible if the claimant is at fault in creating the overpayment.
L.J., 59 ECAB 264 (2007).
17

Lorenzo Rodriguez, 51 ECAB 295 (2000).

18

20 C.F.R. § 10.441(a).

19

Id. at § 10.441(a); see Steven R. Cofrancesco, 57 ECAB 62 (2006).

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financial circumstances in determining the rate of repayment in this case and, thus, did not abuse
its discretion under the standard noted above in determining that repayment of the overpayment
could be accomplished by withholding $400.00 every four weeks from appellant’s
compensation.
On appeal appellant’s attorney argues that he requires all of his income for his living
expenses. As discussed, however, he did not submit adequate documentation supporting his
claimed expenses.
CONCLUSION
The Board finds that appellant received an overpayment of $11,489.17 for the period
December 18, 2007 to July 2, 2011 because he received compensation at the augmented rate
when he had no dependents. The Board further finds that he was at fault in the creation of the
overpayment and thus not entitled to waiver of recovery and that OWCP properly found that it
would recover the overpayment by deducting $400.00 a month from his continuing
compensation benefits.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Sheridan, WY, Employer
__________________________________________

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

Docket No. 13-504
Issued: April 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 2, 2013 appellant filed a timely appeal from an August 15, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on April 3, 2012.
FACTUAL HISTORY
On April 4, 2012 appellant, then a 51-year-old pharmacy technician, filed a traumatic
injury claim (Form CA-1) alleging that on April 3, 2012 she sustained low back and leg pain and
1

5 U.S.C. § 8101 et seq.

numbness in the left foot when she was pushing a medication cart full of medication and supplies
up an incline. Two witness statements dated April 4, 2012 were provided which stated that she
complained of back pain after pushing a cart at work. Appellant notified her supervisor on
April 3, 2012.
By letter dated April 16, 2012, the employing establishment controverted the claim
stating that appellant failed to establish causal relationship.
In an April 10, 2012 medical report, Dr. Susan K. Roberts, Board-certified in family
medicine, reported that she began treating appellant on April 10, 2012 for a work-related back
injury which occurred on April 3, 2012. She diagnosed sciatica and muscle spasms and
restricted appellant from lifting, pushing or pulling objects over 20 pounds.
In an April 11, 2012 diagnostic report, Dr. Jason M. White, a Board-certified diagnostic
radiologist, reported that an x-ray of the thoracic spine revealed mild disc space narrowing and
spondylosis at T11-12 and T12-L1 with no fracture. An x-ray of the lumbar spine revealed
multilevel disc space narrowing with spondylosis without fracture. Dr. White noted a history of
injured back when pushing cart, pain.
In an April 18, 2012 medical report, Dr. Roberts reported that appellant experienced the
onset of pain after pushing a cart weighing 50 to 75 pounds. She noted that x-rays revealed
degenerative disc disease, T11-12 and showed no evidence of serious injury. Dr. Roberts stated
that appellant’s musculoskeletal back pain and sciatica were improving and recommended
continued work restrictions. In a May 2, 2012 medical report, she reported that appellant had
fully healed, reached maximum improvement and could return to regular duty without
restrictions.
By letter dated May 22, 2012, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a June 3, 2012 narrative statement, appellant reported that she informed her coworkers
and supervisor on April 3, 2012 when she initially began to experience low back pain. The
following day she also felt tingling in her left leg and foot. Appellant sought treatment with
Dr. Roberts on April 10, 2012 and had trouble working due to the pain in her neck and back.
She stated that she had no prior back injuries or back problems until April 3, 2012.
In support of her claim, appellant resubmitted medical evidence already of record and an
April 10, 2012 chart note from Dr. Roberts which repeated her diagnosis of sciatica and muscle
spasms. She also submitted a June 4, 2012 witness statement from Jollene Hallcroft, a coworker,
who reported that appellant could not make deliveries because her back was out.
By decision dated August 15, 2012, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that she sustained an injury. It found that the incident
occurred as alleged; however, the evidence failed to provide a firm medical diagnosis which
could be reasonably attributed to the accepted employment incident. OWCP further noted that
the medical evidence submitted contained a diagnosis of “pain” which is a symptom and not a
diagnosed medical condition.
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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition 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 on a traumatic injury or occupational disease.3
In order to determine whether 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.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. 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
OWCP accepted that the April 3, 2012 incident occurred as alleged. It denied appellant’s
claim on the grounds that it lacked sufficient medical evidence to support that the alleged
condition was medically related to the April 3, 2012 employment incident. The Board finds that

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

Elaine Pendleton, supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

3

she did not submit sufficient medical evidence to support that she sustained a back injury
causally related to the April 3, 2012 employment incident.7
In an April 11, 2012 diagnostic report, Dr. White reported that an x-ray of the thoracic
spine revealed mild disc space narrowing and spondylosis at T11-12 and T12-L1. An x-ray of
the lumbar spine revealed multilevel disc space narrowing with spondylosis. In medical reports
dated April 10 to May 2, 2012, Dr. Roberts diagnosed sciatica, muscle spasms, musculoskeletal
back pain and degenerative disc disease at T11-12.
In its August 15, 2012 decision, OWCP found insufficient evidence to establish a firm
medical diagnosis of appellant’s condition. The Board finds, however, that, contrary to the
OWCP finding, the medical evidence of record establishes a sufficient diagnosis of sciatica,
muscle spasms, degenerative disc disease, mild disc space narrowing, spondylosis at T11-12 and
T12-L1 and multilevel disc space narrowing of the lumbar spine with spondylosis. Dr. White
provided a diagnosis of mild disc space narrowing, spondylosis at T11-12 and T12-L1 and
multilevel disc space narrowing with spondylosis based on x-rays of the lumbar and thoracic
spine. Upon physical examination and review of diagnostic test results, Dr. Roberts established
a sufficient diagnosis of sciatica, muscle spasms and degenerative disc disease. Her diagnosis of
musculoskeletal back pain is a symptom, however, and not a compensable medical diagnosis.8
Given that appellant has established a diagnosed condition, the question becomes whether the
April 3, 2012 incident caused her back injury. Thus, appellant must submit rationalized medical
evidence to establish that her diagnosed medical conditions are causally related to the accepted
April 3, 2012 employment incident.
In medical reports dated April 10 to May 2, 2012, Dr. Roberts reported that she began
treating appellant for a work-related back injury which occurred on April 3, 2012 after she
experienced the onset of back pain from pushing a cart weighing 50 to 75 pounds. She
diagnosed sciatica, muscle spasms, musculoskeletal back pain and noted that x-rays revealed
degenerative disc disease at T11-12. Dr. Roberts provided appellant with work restrictions and
stated that she could return to regular duty and was fully healed as of May 2, 2012.
While Dr. Roberts’ reports establish a diagnosis, they are not rationalized as to the issue
of causal relation. In her reports, she noted that appellant sustained a work-related injury on
April 3, 2012 when she was pushing a cart weighing 50 to 75 pounds. Though Dr. Roberts
diagnosed appellant’s injury, she failed to provide an opinion on causal relationship. She did not
provide details regarding appellant’s medical history or comment on any potential preexisting
back conditions. Dr. Roberts merely recounted the incident as described by appellant, did not
determine that her condition was work related and did not offer a rationalized opinion on the
issue of causal relationship.9 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
7

See Robert Broome, 55 ECAB 339 (2004).

8

Id.

9

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

4

relationship.10 The opinion of a physician supporting causal relationship must rest on a complete
factual and medical background supported by affirmative evidence, address the specific factual
and medical evidence of record and provide medical rationale explaining the relationship
between the diagnosed condition and the established incident or factor of employment.11
Dr. Roberts’ reports do not meet that standard and are insufficient to meet appellant’s burden of
proof.12
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s injuries and the April 3, 2010 employment incident. While
Dr. White noted a history of back injury when pushing a cart, his diagnostic report fails to state
any opinion on causal relationship.13 Thus, the additional medical reports are of limited
probative value.
On appeal, appellant provided extensive detail regarding her back injury and the pain she
experienced. Her recitation of the facts does not support her allegation that the April 3, 2012
employment incident caused her injury.14 Nor do the statements by appellant’s coworkers
confirm allegations of back pain. An award of compensation may not be based on surmise,
conjecture or speculation.15 To establish a firm medical diagnosis and causal relationship,
appellant must submit a physician’s report in which the physician reviews those factors of
employment alleged to have caused her condition and, taking these factors into consideration, as
well as findings upon examination and her medical history, explain how these employment
factors caused or aggravated any diagnosed condition and present medical rationale in support of
his opinion.16 Thus, she has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a back injury on April 3, 2012 in the performance of duty.

10

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

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

Supra note 10.

13

Supra note 10.

14

Paul Foster, 56 ECAB 1943 (2004); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

15

D.D., 57 ECAB 734 (2006).

16

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the August 15, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 25, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Seattle, WA Employer
__________________________________________

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

Docket No. 10-1098
Issued: November 8, 2010

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 March 8, 2010 appellant filed a timely appeal from an October 14, 2009 merit
decision of the Office of Workers’ Compensation Programs and a January 22, 2010 nonmerit
decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
and nonmerits of this case.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
December 19, 2008; and (2) whether the Office properly denied appellant’s reconsideration
request without further merit review under 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On August 4, 2009 appellant, then a 53-year-old survey clerk, filed a claim for traumatic
injury alleging that, on December 19, 2008, she sustained a back and neck strain as a result of
preparing heavy boxes of survey materials for mailing.1
Appellant submitted medical reports to the record on September 14, 2009, documenting
that she had sustained a number of back injuries since 1976, which did not occur in the course of
her federal employment.
The initial evidence addressing appellant’s medical condition after December 19, 2008
was a January 22, 2009 report, which diagnosed lumbar strain. It was prepared by a registered
nurse. Appellant also submitted progress notes from a physician’s assistant, Sergey Kukhotsky,
which noted her complaints of back pain. These progress notes were dated from April 14 to
July 7, 2009.
In a report dated May 13, 2009, Dr. Marvin Jay Hoffert, a Board-certified neurologist,
noted that appellant had an 11-year history of back pain. He stated that she had been an
administrative assistant at Boeing but had stopped working 12 years ago because of her
“disability.” Dr. Hoffert noted that previous magnetic resonance imaging (MRI) scan
evaluations had shown a disc protrusion at C6-7 and disc bulging at L5-S1 but that her current
physical examination was “nonphysiologic.” He recommended repeat MRI scans of the cervical
and lumbar spine.
Medical records were received from the Providence Physician Group dated
July 16, 2009.2 They note that appellant was seen that day for back pain after waking up that
morning. A January 22, 2009 fall at work was also referenced.
In a progress note dated July 31, 2009, Physician’s Assistant Lisa Galbreath noted that
appellant had been seen for low back pain.
By decision dated October 14, 2009, the Office denied appellant’s claim. It found that
appellant had established the employment factor of preparing survey materials on December 19,
2008; however, the medical evidence did not provide a diagnosed condition causally related to
this employment factor.
On December 9, 2009 appellant requested reconsideration and submitted two medical
reports dated April 3, 2009 relating to epigastric pain.
By decision dated January 22, 2010, the Office denied appellant’s request for
reconsideration.

1

In a supplemental statement dated August 3, 2009, appellant explained other incidents of December 8 and 29,
2008, as well as January 19 and 21, 2009 during which she experienced back pain.
2

The signature is illegible.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing that he or she sustained an injury while in the performance of duty.4 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally,
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury and generally this can be established only by
medical evidence.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be 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. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant was preparing boxes of survey materials for mailing
on December 19, 2008; however, the Board finds that she has not established an injury resulting
from this accepted factor of employment based on the medical evidence of record.
In a May 13, 2009 report, Dr. Hoffert did not provide a history of appellant’s
December 19, 2008 incident or any acknowledgement of her federal employment duties. His
report did not present an accurate history of the incident alleged. Dr. Hoffert presented only a
provisional diagnosis of cervical disc protrusion at C6-7 and disc bulge of L5-S1, based upon
previous MRI scan workups of unknown date. He noted that appellant’s physical examination
resulted in nonphysiologic findings. The medical evidence of record therefore does not
substantiate a current medical diagnosis pertaining to her lumbar or cervical spine. Further, the
Board finds that Dr. Hoffert offered no medical opinion causally relating any diagnosed
condition to the accepted employment factor. Dr. Hoffert’s report does not present a rationalized
medical opinion on the conditions claimed.

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

Appellant also submitted reports from physicians’ assistants and a registered nurse.
5 U.S.C. § 8101(2) of the Act provides that the term physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law. As nurses and physicians’ assistants are not
physicians as defined by the Act, their opinions regarding diagnosis and causal relationship are
of no probative medical value.7
Appellant did not submit sufficient medical evidence to meet her burden of proof. The
Board finds that the Office properly denied the claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,8
the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) submit
relevant and pertinent new evidence not previously considered by the Office.9 If a claimant fails
to meet one of the above standards, the Office will deny the application for reconsideration
without reopening the case for merit review.10
ANALYSIS -- ISSUE 2
In support of her request for reconsideration, appellant submitted two medical reports
pertaining to epigastric pain following possible food poisoning in April 2009. These reports are
not relevant and have no bearing on appellant’s claimed lumbar or cervical injury of
December 19, 2008.11 Appellant’s reconsideration request did not meet the standard for merit
review.
The Board finds that the Office properly denied appellant’s request for merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty on December 19, 2008. The Board also finds that the Office properly
denied appellant’s request for reconsideration.

7

See Roy L. Humphrey, 57 ECAB 238 (2005).

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606.

10

Id. at § 10.608 (b).

11

Evidence that does not address the particular issue involved does not constitute a basis for reopening a case.
See Freddie Mosley, 54 ECAB 255 (2002).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 22, 2010 and October 14, 2009 are affirmed.
Issued: November 8, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF TREASURY, INTERNAL
REVENUE SERVICE, Fresco, CA, Employer
__________________________________________

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

Docket No. 15-1293
Issued: November 2, 2015

Case Submitted on the Record

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

JURISDICTION
On May 21, 2015 appellant, through counsel, filed a timely appeal from a November 24,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because
more than 180 days elapsed between the last relevant OWCP merit decision dated June 12, 2013
to the filing of this appeal, the Board lacks jurisdiction to review the merits of this case.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review this nonmerit decision.
ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 6, 2012 appellant, then a 51-year-old customer service representative
(CSR), filed a traumatic injury claim (Form CA-1) alleging that on November 16, 2012 she
attempted to sit down on her chair, stepped on the chair wheel and slipped, hitting her left
hand/wrist on the edge of the desk. She alleged that her left hand/wrist was fractured. The
employing establishment contended that appellant informed a supervisor on November 20, 2012
of a scheduled doctor’s appointment on November 26, 2012, but did not mention a
November 16, 2012 injury. Appropriate development followed.
By decision dated January 29, 2013, OWCP denied the claim finding that fact of injury
was not established. It explained that the factual component was not satisfied.
On March 14, 2013 OWCP received appellant’s request for reconsideration along with
medical evidence. It received a number of medical reports from Dr. Robert M. Mochizuki, a
Board-certified orthopedic surgeon, dated November 26, 2012. In the November 26, 2012
report, Dr. Mochizuki related that appellant had been involved in a motor vehicle accident on
July 3, 2012, at that time her left wrist was caught in a door handle and she developed
ecchymosis and swelling around the dorsum of the left wrist and thumb, with complaints of
persistent pain and aching of the thumb and dorsum of her wrist as well as diminished sensation
of the tips of the digits. In an amendment to this report, he related that she had called and stated
that she had forgotten that she had injured her left wrist at work on November 16, 2012 when she
fell and hit her left wrist on a desk. After reviewing x-rays of appellant’s left wrist
Dr. Mochizuki diagnosed possible intra-articular fracture of the left distal radius, possible
intra-articular tear of the scapholunate ligament, possible carpel tunnel syndrome of the left
upper extremity, and possible de Quervain’s tenosynovitis. In an attending physician’s report
dated January 14, 2013, he indicated by check mark that appellant had injured her left wrist at
work on November 16, 2013.
By decision dated June 12, 2013, OWCP affirmed the denial of the claim. It modified the
prior decision to reflect fact of injury was established, but denied the claim on the basis causal
relationship was not established. OWCP noted the evidence established that appellant had
injured her left wrist in a July 3, 2012 motor vehicle accident and it was unknown if the current
left wrist condition was due to the motor vehicle accident or whether it was related to the
November 16, 2012 employment incident.
On July 15, 2013 OWCP received appellant’s July 11, 2013 request for reconsideration.
Appellant resubmitted Dr. Mochizuki’s January 14, 2013 form report. By decision dated
October 3, 2013, OWCP denied the request for reconsideration as the evidence was insufficient
to warrant a merit review.
On August 26, 2014 OWCP received appellant’s August 1, 2013 request for
reconsideration. In an undated letter, also received August 26, 2014, appellant advised that she
was submitting additional medical evidence which supported her claim.
OWCP received a duplicate copy of a January 14, 2013 attending physician’s report
(Form CA-20) from appellant’s physician, which was reviewed in the previous decision, and a

2

Form CA-2 (occupational disease claim) dated July 15, 2013. In the July 15, 2013 claim form,
appellant explained that she had a preexisting right hand injury due to a March 25, 2010 injury.
She also alleged that she continued working and injured her left wrist at work on
November 16, 2012. Appellant’s supervisor noted on this claim form that appellant had stopped
work on January 25, 2013.
In an August 1, 2013 report, Dr. Kathleen Baron, a Board-certified family practitioner,
noted that appellant had indicated that on November 16, 2012 she fractured her left wrist after
she slipped at work. She indicated that she was not the primary treating physician for that claim.
Dr. Baron indicated that appellant originally injured her right hand March 25, 2010, which was
an accepted claim for which she was the primary treating physician. She presented findings on
examination and diagnosed right wrist strain and right shoulder strain, for which she opined that
appellant, was totally disabled.
By decision dated November 24, 2014, OWCP denied her reconsideration request
because it was untimely filed and did not present clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.2
OWCP’s regulations state that it will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth section 10.607 of OWCP regulations, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.3 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.5

2

20 C.F.R. § 10.607(a).

3

Id. at § 10.607(b); Cresenciano Martinez, 51 ECAB 322 (2000).

4

See Alberta Dukes, 56 ECAB 247 (2005).

5

Robert G. Burns, 57 ECAB 657 (2006).

3

OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.6 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.7
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
June 12, 2013. Appellant’s request for reconsideration was received on August 26, 2014, more
than one year after the June 12, 2013 merit decision. Therefore, it was untimely filed.
Consequently, appellant must establish clear evidence of error by OWCP in denying her request
for a merit review of her claim.
The Board finds that appellant has not established clear evidence of error in OWCP’s
June 12, 2013 decision. OWCP denied appellant’s claim because she had not established causal
relationship between her left wrist condition and the November 16, 2012 employment incident.
Appellant requested reconsideration on the belief that the medical evidence established such
causal relationship. The issue of causal relationship is a medical issue, one that must be
addressed by rationalized medical opinion evidence.8 Appellant’s belief is irrelevant.
With respect to the medial evidence submitted with the application for reconsideration,
appellant has not established clear evidence of error by OWCP. The copy of the January 14,
2013 attending physician’s report (Form CA-20) was reviewed in the previous decision and
found insufficient to establish causal relationship. The Form CA-2 dated July 16, 2013 along
with Dr. Baron’s August 1, 2013 report pertain to a different injury or claim are insufficient on
its face to establish clear evidence of error in the denial of her alleged November 16, 2012 left
wrist injury.
The evidence and arguments submitted on reconsideration do not raise a substantial
question as to the correctness of OWCP’s decision in its denial of appellant’s claim.
Consequently, OWCP properly found that the untimely reconsideration request did not establish
clear evidence of error.
On appeal, counsel argues that OWCP’s decision is contrary to fact and law. However,
for the reasons set forth above, appellant did not meet her burden of proof to establish that her
untimely reconsideration request presented clear evidence of error in OWCP’s June 12, 2013
merit decision. The Board affirms OWCP’s November 24, 2014 decision.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
7

Nancy Marcano, 50 ECAB 110 (1998).

8

Mary J. Briggs, 37 ECAB 578 (1986).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 2, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Bellmawr, NJ,
Employer
__________________________________________

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

Docket No. 18-0209
Issued: October 4, 2018

Case Submitted on the Record

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

JURISDICTION
On November 7, 2017 appellant, through counsel, filed a timely appeal from an August 4,
2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder or
cervical condition causally related to the accepted June 2, 2014 employment incident.

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.

FACTUAL HISTORY
On June 6, 2014 appellant, then a 51-year-old maintenance support clerk, filed a traumatic
injury claim (Form CA-1) alleging that, while at work on June 2, 2014, she sustained right shoulder
pain when putting ink supplies away in the stockroom. She stopped work on June 6, 2014.
In support of her claim, appellant submitted a disability note dated June 11, 2014 from
Dr. Mitesh Patel, Board-certified in family medicine and sports medicine, who diagnosed a right
shoulder injury. Dr. Patel indicated that appellant was totally disabled from work through June 11,
2014 and that she could work light duty from June 11 to July 11, 2014. Appellant also submitted
a June 11, 2014 form report from Dr. Patel diagnosing right rotator cuff tendinitis/bursitis.
On June 6, 2014 the employing establishment issued appellant a properly completed
authorization for examination (Form CA-16) which indicated that she was authorized to seek
medical treatment for her right shoulder from the June 2, 2014 employment incident. An
accompanying unsigned June 11, 2014 attending physician’s report noted that she developed pain
after putting away boxes of ink. Appellant was first treated on June 11, 2014 with findings of a
history of right shoulder acromioclavicular degenerative joint disease. The diagnosis noted on the
form was right rotator cuff tendinitis. A box marked “yes” was checked, indicating that the
diagnosed condition was caused or aggravated by the employment activity.
In another June 11, 2014 report, Dr. Patel diagnosed right rotator cuff tendon tendinitis
with right shoulder subacromial bursitis. Appellant’s physical examination revealed no
tenderness, positive impingement sign and Speed’s, full active elevation, and pain with Jobe’s
testing. Diagnostic tests were reviewed and showed congruent glenohumeral joint, mild-tomoderate right acromioclavicular joint degeneration, and no loose bodies or fracture.
On September 23, 2015 appellant filed a recurrence of disability claim (Form CA-2a)
alleging a recurrence of her June 2, 2014 injury on August 2, 2015. She related that her right
shoulder pain had worsened and the pain had spread to her neck and arm.
By development letter dated October 1, 2015, OWCP advised appellant that additional
factual and medical evidence was necessary to establish her claim. It noted that her claim initially
appeared to be a minor injury that resulted in minimal or no lost time from work and that the claim
was administratively handled to allow a limited amount of medical payments. However,
appellant’s claim was being reopened as she had filed a claim for a recurrence of disability. OWCP
informed appellant of the type of medical evidence needed to establish her claim and requested
that she submit the necessary evidence within 30 days.
By decision dated November 2, 2015, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the injury occurred as alleged, as she had failed
to provide a statement regarding how the alleged work incident occurred.
On October 21, 2015 appellant was seen by Dr. Patel for recurrent right shoulder pain.
Dr. Patel noted that appellant was treated the previous year for her right shoulder injury and that
she responded to treatment. Appellant returned as she developed right shoulder pain at work in
August 2015 without any explicit injury. Dr. Patel provided physical examination findings and
reviewed x-rays, which were unchanged from his prior report. Diagnoses included severe right
shoulder pain, right shoulder bursitis, and right rotator cuff capsule sprain.
2

In October 29, 2015 notes, Dr. Patel related that appellant injured her right shoulder while
at work in August 2015. He reviewed an October 29, 2015 magnetic resonance imaging (MRI)
scan, which showed subscapularis bursitis and no rotator cuff tear. Dr. Patel diagnosed right
shoulder bursitis.
In notes dated November 24, 2015, Dr. Patel diagnosed right shoulder bursitis and
subacromial bursitis, cervical displacement, cervical radiculopathy, and cervical radiculitis. He
noted that appellant injured her right shoulder at work in August 2015. A review of appellant’s
right shoulder MRI scan revealed bursitis. Dr. Patel observed: a pain response on right shoulder
elevation; positive impingement sign; a pain response to O’Brien’s, Speed’s, and Jobe’s testing;
some internal and external rotation weakness; positive right Spurling’s maneuver; and pain with
cervical flexion and extension.
In a November 24, 2015 form, Dr. Patel related that appellant was reinjured on
June 2, 2014. He diagnosed right shoulder pain and possible cervical radiculitis. Dr. Patel
checked a box marked “yes” to the question of whether the diagnosed condition was causally
related to the injury.
On November 30, 2015 Dr. Patel diagnosed cervical radiculopathy. He related that
appellant had a work-related June 2014 right shoulder injury, and that treatment for the June 2014
right shoulder condition was successful. Appellant related that her current complaints felt different
from the June 2014 injury. Dr. Patel reviewed a November 25, 2015 MRI scan which showed
significant central C4-5 cervical spondylosis and severe bilateral foraminal stenosis. A physical
examination revealed limited right shoulder abduction, decreased cervical range of motion, a
positive right Spurling’s test, bilateral cervical spasms, and a negative bilateral Hoffmann’s test.
In a December 14, 2015 report, Dr. Michael W. Molter, an examining Board-certified
physiatrist, diagnosed right shoulder pain and cervical radiculopathy. He noted that appellant had
a history of cervical radiculopathy and possible cervical spine plaque. A physical examination
revealed decreased right shoulder and cervical range of motion and positive right Spurling’s
testing.
Dr. Patel, in a December 24, 2015 form, again related that June 2, 2014 was the date of
appellant’s injury. He diagnosed right shoulder bursitis and checked a box marked “yes”
indicating that the diagnosed condition was causally related to the injury.
In notes dated December 24, 2015, Dr. Patel diagnosed right shoulder bursitis with cervical
radiculitis. He related that appellant had injured her right shoulder at work in June 2014 when she
was putting a wood angle on a hard shelf. Dr. Patel noted that she was diagnosed with bursitis due
to the 2014 injury and her pain resolved with conservative treatment until the pain returned in
August 2015. He observed pain on right shoulder elevation and internal and external rotation, and
pain with O’Brien’s, Speed’s, and Jobe’s testing.
On January 18, 2016 Dr. Patel diagnosed cervical radiculitis. He diagnosed right shoulder
bursitis on the February 4, 2016 form and cervical stenosis and frozen right shoulder on a
February 10, 2016 form, and right cervical radiculopathy due to frozen shoulder on the
February 22, 2016 form. The diagnosis on his February 23, 2016 form was cervical radiculitis and
adhesive capsule.

3

In a February 1, 2016 report, Dr. Michael W. Molter, an examining Board-certified
physiatrist, noted appellant’s history of injury. A physical examination revealed decreased right
shoulder range of motion, cervical spasm, decreased L4-5 range of motion, and positive Spurling’s
testing. Based on these findings, Dr. Molter diagnosed right shoulder bursitis, cervical
radiculopathy, and right shoulder pain. He advised that appellant was to remain off work.
On February 10, 2016 appellant was seen by Alan S. Hilibrand, a Board-certified
orthopedic surgeon, who diagnosed cervicalgia, right shoulder pain, and cervical spinal stenosis
and provided examination findings.
In reports dated February 22, 2016, Dr. Luke S. Austin, an examining Board-certified
orthopedic surgeon, noted that appellant was seen for her right shoulder complaints. Appellant
had related to him that she injured her shoulder at work in 2014 while lifting heavy boxes of ink,
was treated for her injury, and had returned to work. In August 2015, she stated that she had
increased pain, which was not due to a new injury. A review of a February 2, 2016 MRI scan
showed shoulder bursitis.
On February 23, 2016 appellant was seen for a follow-up visit by Dr. Molter. Examination
findings and injury history were unchanged from his February 1, 2016 report. Dr. Molter
diagnosed right shoulder adhesive capsulitis, right shoulder pain, cervical stenosis, right shoulder
bursitis, and cervical radiculopathy. He advised that appellant was to remain off work.
On February 24, 2016 OWCP received a January 12, 2016 electromyography (EMG) study
which reported abnormal findings with evidence of mild right medial entrapment neuropathy and
mild carpal tunnel syndrome.
Dr. Molter, in an April 13, 2016 report, diagnosed cervical stenosis and cervical
radiculopathy. There was no change in either the injury history or examination findings.
Dr. Molter reviewed an EMG study, which was positive for radiculopathy. He attributed
appellant’s condition to her June 2014 work injury.
In a form dated April 27, 2016, Dr. Hilibrand noted a June 2, 2014 injury date, diagnosed
cervical radiculopathy, and checked a box marked “yes” indicating that the diagnosed condition
was causally related to the date of injury. He recommended anterior cervical fusion surgery
pending authorization.
On May 16, 2016 appellant was seen by Dr. Patel for a follow up regarding her right
shoulder. Examination and injury history findings were unchanged. Diagnoses included right
shoulder adhesive capsulitis and cervical radiculopathy. In a May 16, 2016 form, Dr. Patel
reported an injury date of June 2, 2014, a diagnosis of right frozen shoulder, and checked a box
marked “yes” indicating causal relationship between the diagnosed condition and the June 2014
work injury.
On June 9, 2016 OWCP received a March 22, 2016 EMG study which related findings of
cervical radiculopathy.
On July 7, 2016 OWCP received a form from Dr. Anthony Dibona, a Board-certified
family medicine physician, dated April 13, 2016. Dr. Dibona noted an injury date of June 2, 2014,

4

a diagnosis of cervical radiculopathy and cervical stenosis. He checked a box marked “yes”
indicating that the diagnosed condition was causally related to the history of injury.
In a July 6, 2016 report, Dr. Molter diagnosed cervical stenosis and cervical radiculopathy.
The report was duplicative of his prior reports.
In a letter dated October 5, 2016, appellant, through counsel, requested reconsideration.
On October 19, November 16, and December 14, 2016 and January 11, 2017 appellant was
seen by Dr. Molter who reiterated findings and diagnoses from his prior reports.
OWCP received forms dated July 6, October 19, November 16, and December 24, 2016
from Dr. Dibona diagnosing cervical radiculopathy. Dr. Dibona noted June 2, 2014 as the date of
injury and checked the box marked “yes” indicating causal relationship.
In an October 24, 2016 report, Dr. Molter opined that appellant’s significant cervical
radicular symptoms were due to her work injury and that her symptoms were the result of an
aggravation of her cervical degenerative disc disease. In support of causation, Dr. Molter noted
that appellant was asymptomatic prior the injury and the progression of symptoms subsequent to
the injury established causal relationship to the work injury.
By decision dated January 18, 2017, OWCP modified its prior decision to find that the
evidence of record was sufficient to establish that the June 2, 2014 employment incident occurred
as alleged. However, the claim remained denied as OWCP found that the medical evidence of
record was insufficient to establish causal relationship between the diagnosed condition and the
accepted employment incident.
In a report dated February 8, 2017, Dr. Molter reiterated diagnoses and findings from prior
reports. Diagnoses included cervical radiculopathy and spinal stenosis and right shoulder adhesive
capsulitis.
Dr. Dibona, in February 4 and May 8, 2017 forms noted an injury date of June 2, 2014, a
diagnosis of cervical radiculopathy, and indicated by checking a box marked “yes” a causal
relationship between the diagnosed condition and the accepted employment incident.
OWCP received a March 3, 2017 report from Dr. Molter which was unchanged from his
prior reports.
In a March 16, 2017 report, Dr. Molter wrote that appellant had a known history of cervical
radiculopathy due to cervical disc herniation and was developing right shoulder adhesive
capsulitis. He noted that prior to her work injury there were no underlying preexisting conditions.
Dr. Molter opined that appellant sustained a disc herniation due to her work injury which resulted
in her cervical and shoulder symptoms.
In a letter received by OWCP on May 10, 2017 appellant, through counsel, requested
reconsideration.
In a June 5, July 3, and August 1, 2017 forms, Dr. Dibona noted an injury date of June 2,
2014, a diagnosis of cervical radiculopathy and stenosis and right shoulder adhesive capsulitis, and
he checked the box marked “yes” indicating causal relationship.
5

By decision dated August 4, 2017, OWCP denied modification of its prior decision. It
found that appellant had not met her burden of proof to establish causal relationship as the medical
evidence of record did not include a rationalized opinion explaining how the right shoulder
condition was caused or aggravated by the accepted June 2, 2014 incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific conditions for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the accepted
employment incident.10 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment event identified by the employee.11

3

5 U.S.C. § 8101 et seq.

4

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

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

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

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10

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

11

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

6

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
or cervical injury causally related to the accepted June 2, 2014 employment incident.
The record contains reports from June 11, 2014 to May 16, 2016 from Dr. Patel diagnosing
various conditions, including right rotator cuff tendinitis/bursitis, right shoulder subacromial
bursitis, severe right shoulder pain, right rotator cuff capsule sprain, frozen right shoulder, cervical
radiculitis, and cervical stenosis. In these form reports he checked boxes marked “yes” indicating
that the diagnosed conditions were caused or aggravated by the injury date noted on these forms.
The Board has held that a report that addresses causal relationship with a checkmark, without
medical rationale explaining how the employment incident caused or aggravated the diagnosed
condition, is of diminished probative value and insufficient to establish causal relationship.12
In reports submitted in October and November 2015, Dr. Patel related that appellant had
responded well to medical treatment of her right shoulder in 2014, but in August 2015 she
developed worsening right shoulder complaints without explicit injury. However, these reports
did not offer any opinion regarding the cause of the diagnosed condition. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship. Thus, these reports from Dr. Patel
are of limited probative value and insufficient to meet appellant’s burden of proof.13
Appellant also submitted reports for the period February 1, 2016 to March 3, 2017 from
Dr. Molter. Dr. Molter diagnosed right shoulder bursitis, and cervical radiculopathy. Similarly in
reports dated February 10 and April 27, 2016, Dr. Hilibrand diagnosed cervicalgia, right shoulder
pain, and cervical stenosis. However, these reports did not offer any opinion regarding the cause
of the diagnosed condition. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.14 Thus, these reports from Dr. Hilibrand and Dr. Molter are of limited
probative value and insufficient to meet appellant’s burden of proof.15
Appellant submitted an October 24, 2016 report by Dr. Molter diagnosing significant
radicular symptoms which he attributed to her work injury. Dr. Molter explained that her cervical
degenerative disc disease had been aggravated by the employment incident as she was
asymptomatic prior to the injury. The Board has held that an opinion that a condition is causally
related because the employee was asymptomatic prior to the injury is insufficient, without
adequate rationale, to establish causal relationship. Dr. Molter failed to provide sufficient medical
rationale explaining how appellant’s cervical degenerative disc disease had been caused or

12

See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006); Deborah L.
Beatty, 54 ECAB 340 (2003).
13

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

14

Id.

15

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25,
2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).

7

aggravated by the June 2, 2014 work incident.16 Therefore, his report is insufficient to establish
appellant’s claim.
Appellant continued to submit form reports from Dr. Dibona and Dr. Hilibrand; however,
these reports are also of diminished probative value. Dr. Dibona, in forms covering the period
April 13, 2016 to August 1, 2017, diagnosed cervical radiculopathy, cervical stenosis, and right
shoulder adhesive capsulitis, and by checking a box marked “yes” indicated causal relationship
between the diagnosed conditions and the accepted employment incident. On an April 27, 2016
form, Dr. Hilibrand diagnosed cervical radiculopathy and checked the box marked “yes” to the
question of whether the diagnosed conditions were causally related to the June 2, 2014
employment incident. As discussed above, a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the employment incident caused a
diagnosed condition, is of diminished probative value and insufficient to establish causal
relationship.17
The remaining medical evidence of record is also insufficient to establish appellant’s claim.
Dr. Austin’s February 22, 2016 note interpreting diagnostic studies pertaining to the right shoulder
and cervical spine offer no opinion regarding causal relationship. As noted above, the Board has
held that medical evidence is of limited probative value when it fails to provide an opinion on the
causal relationship between appellant’s employment duties and the diagnosed conditions.18 As
such, this evidence is insufficient to meet her burden of proof.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.19 In this case, the Board finds that none of the medical evidence
appellant submitted constitutes rationalized medical evidence sufficient to establish causal
relationship between the accepted work incident and her diagnosed conditions.20 Without
explaining how, physiologically, appellant’s accepted employment incident caused or contributed
to her diagnosed right shoulder and cervical conditions, the medical evidence of record is of limited
probative value.21 Accordingly, the Board finds that appellant has not met her burden of proof.

16

K.P., Docket No. 17-1145 (issued November 15, 2017); T.M., Docket No. 08-0975 (issued February 6, 2009);
Michael S. Mina, 57 ECAB 379 (2006).
17

See supra note 12.

18

Supra note 14.

19

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

20

See T.C., Docket No. 16-0586 (issued August 9, 2016); Patricia J. Bolleter, 40 ECAB 373 (1988).

21

See D.P., Docket No. 16-1358 (issued December 19, 2016).

8

On appeal counsel contends that the evidence submitted is sufficient to establish
appellant’s claim. However, as explained above, appellant has not submitted sufficiently
rationalized medical evidence to support her allegation that she sustained an injury causally related
to the accepted June 2, 2014 employment incident. As such she has not met her burden of proof.22
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
or cervical condition causally related to the accepted June 2, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 4, 2017 is affirmed.
Issued: October 4, 2018
Washington, DC

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

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

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

22

The Board notes that the employing establishment executed a Form CA-16 June 6, 2014 authorizing medical
treatment. The Board has held that where an employing establishment properly executes a Form CA-16, which
authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a
contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment
regardless of the action taken on the claim. Although OWCP denied appellant’s claim for an injury, it did not address
whether she is entitled to reimbursement of medical expenses pursuant to the Form CA-16. L.D., Docket No. 16-1289
(issued December 8, 2016).

9