United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1060
Issued: March 11, 2022

Case Submitted on the Record

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

JURISDICTION
On July 5, 2021 appellant filed a timely appeal from a February 2, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the Board’s Rules
of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In support of appellant’s
oral argument request, she asserted that oral argument should be granted because the evidence of record was sufficient
to establish that she was totally disabled from work due to her accepted employment-related condition. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish disability from work
for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
FACTUAL HISTORY
On April 27, 2020 appellant, then a 60-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on March 23, 2020 she contracted COVID-19 while in the performance of
duty. She stopped work on the date of injury and has not returned. On July 20, 2020 OWCP
accepted the claim for COVID-19.
OWCP received hospital records dated April 2 through July 13, 2020, which indicated that
appellant was admitted to the intensive care unit (ICU) on April 2, 2020 and treated for acute
hypoxic respiratory failure and acute renal failure due to COVID-19. The hospital records also
addressed her subsequent physical and occupational therapy.
In a June 22, 2020 letter, Dr. Anna-Carson Rimer Uhelski, an internist, advised appellant
that she should not return to work while she was recovering in the hospital. She also advised that
appellant could be in the hospital through 2020 with a possible return -to-work date of
January 1, 2021.
Dr. Robert S. Mayer, Board-certified in physical medicine and rehabilitation, indicated in
a letter dated July 15, 2020 that appellant could benefit from a home health aide six to eight hours
per day over the next one to two months to assist her with the performance of activities of daily
living (ADLs).
In an undated response to a questionnaire, appellant noted her symptoms and/or conditions
of COVID-19, organ failure of the kidney, lungs, and heart, pneumonia in both lungs, high fever,
coughing, and bacterial infections. She also noted that she was on a ventilator and an
extracorporeal membrane oxygenation bypass portable machine for her lungs and heart and on
dialysis for her kidneys. Additionally, appellant took blood pressure medication, underwent a
tracheostomy, was incubated, and received blood transfusions. She indicated that her conditions
were caused by her employment. Appellant further indicated that she was disabled from work for
the period March 25 through December 31, 2020 due to her conditions.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the issuance of the February 2, 2021 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

2

On December 15 and 16, 2020 appellant filed claims for compensation (Form CA-7) for
disability from work for the period November 13 through December 11, 2020.
OWCP, in a December 18, 2020 development letter, informed appellant of the deficiencies
of her wage-loss compensation claim. It advised her of the type of medical evidence needed and
afforded her 30 days to respond.
Appellant filed additional CA-7 forms for disability from work through January 30, 2021.
OWCP received additional medical evidence. In a progress note dated August 4, 2020,
Dr. Daniel R. A. Sova, a physiatrist, noted appellant’s history of injury and medical treatment. He
discussed examination findings. Dr. Sova provided assessments that included no signs of anxiety,
depression, or post-traumatic stress disorder (PTSD). He also noted a history of hypoxic
respiratory failure, noting that a tracheostmy tube had been removed, acute renal failure, noting
that appellant remained off dialysis, right and left upper extremity catheter-associated thrombosis,
atrial fibrillation with rapid ventricular response (RVR), klebsiella pneumonia for which she had
finished a course of treatment, Coagulase-negative staphylococci (CoNS) bacteremia, and that
there was a concern for seizure for which she took medication. Dr. Sova noted that she denied any
current COVID-19-related symptoms. He also noted that appellant received home physical and
occupation therapy treatment and treatment from a speech language pathologist. Appellant
reported that she was making progress with her physical function and endurance.
Dr. Ashral Fawzy, a pulmonologist, noted, in an August 12, 2020 progress note, that
appellant was treated for COVID-19-related symptoms of shortness of breath and voice
hoarseness, and screened for depression. He reported physical examination findings and
diagnostic and laboratory test results. Dr. Fawzy provided assessments of dyspnea, hoarse voice,
deep vein thromobosis (DVT), no significant depression or anxiety , 50 percent physical function,
and adequate cognitive function and no symptoms of memory loss. In a November 11, 2020
progress note, he concluded that, cognitively, appellant performed poorly with respect to her
memory, processing speed, and verbal ﬂuency. Dr. Fawzy noted that appellant denied problems
with mood, anxiety, trauma, or functional decline. He indicated that her scores suggested that she
may beneﬁt from a full neuropsychological examination given her pattern of cognitive deﬁcits.
In a September 4, 2020 report, Dr. Robert A. Wise, Board-certified in internal medicine
and pulmonology, noted that he performed a pulmonary function test, which demonstrated
moderate restrictive ventilatory defect, severe gas transfer defect, and variable extrathoracic
obstruction.
In a report of even date, Dr. Nathaniel Shalom and Dr. Stefan Zimmerman, both Boardcertified in diagnostic radiology, performed a computerized tomography (CT) scan of appellant’s
chest. Dr. Shalom and Dr. Zimmerman provided an impression of peripheral reticulations, ground
glass opacities, and consolidative opacities, which were compatible with the sequela of COVID19 infection; ground glass that could represent mild residual inﬂammation, areas of reticulation
and a cystic change compatible with mild ﬁbrosis, either secondary to COVID -19 infection or
preexisting; and additional multiple subcentimeter lymph nodes compatible with reactive change.
These physicians also provided: impressions of coronary artery calciﬁcations; dilatation of the
main pulmonary artery, which may be seen in the setting of pulmonary hypertension; incidental

3

thyroid nodule measuring greater than or equal to 1.5 centimeters in a patient with age greater than
or equal to 35, recommendation for an evaluation with a thyroid ultrasound on a nonemergent
basis; postsurgical changes of sleeve gastrectomy; and findings suggestive of a small intralobar
pulmonary sequestration in the inferomedial right lower lobe.
In a September 21, 2020 diagnostic report, Dr. Eva K. Ritzal, a Board-certified neurologist,
conducted electroencephalogram (EEG) testing, finding that it was normal with no epileptiform
discharges or lateralizing signs. She noted that this did not rule ou t the presence of a seizure
disorder.
An October 7, 2020 progress note signed by Dr. George T. Kannarkat, a Board-certified
internist, and Dr. Brett M. Morrison, a Board-certified neurologist, indicated that appellant was
evaluated for seizures. Appellant’s history of injury and medical treatment, physical examination
findings and diagnostic test results were provided. Dr. Kannarkat and Dr. Morrison noted that
appellant was recently very critically ill and that she had made a remarkable recovery. She had a
seizure while critically ill and brain imaging was notable for subcortical T2 flair hyper intensities
(non-speciﬁc, but may be chronic ischemic with superimposed changes in setting of critical illness)
and diffuse micro hemorrhages (likely from extracorporeal membrane oxygenation). An EEG,
which was performed while appellant was an inpatient, was diffusely slow, but there was no clear
focality. Dr. Kannarkat and Dr. Morrison indicated that they would use an EEG to risk stratify
given that she had some underlying structural etiology that could predispose her to seizure
although seizure was only in the setting of her critical illness. As appellant was on anticoagulation
for atrial fibrillation, a seizure in this setting could theoretically put her at risk for intracerebral
hemorrhage so this will be weighed in a risk benefit analysis of continuing automated external
defibrillators. Additionally, she had signs of proximal weakness in the right upper extremity and
bilateral lower extremities, and bilateral foot drop, left greater than right. Appellant also had
sensory loss and weakness in the left distal tibial distribution. There was no Tinel’s sign over the
tarsal tunnel. Dr. Kannarkat and Dr. Morrison related that if this continued to improve there was
no need for evaluation as this was the likely sequela of her prolonged critical illness, compression
from positioning, and multiple venous thrombotic events.
In an October 8, 2020 progress note, Dr. Lee M. Akst, a Board-certified otolaryngologist,
reported appellant’s history of injury and medical treatment. He discussed examination findings
and provided an assessment of posterior glottic diastasis after prolonged intubation and
tracheostomy secondary to COVID-19. In a report of even date, Dr. Grace Snow, an
otolaryngologist, performed a transnasal videostrobolaryngoscopy to treat appellant’s dysphonia.
In a progress note dated November 10, 2020, Dr. Sima Rozati, Board-certified in internal
medicine and dermatology, provided findings on physical examination of appellant and diagnosed
acne vulgaris, primary, hair loss, seborrheic dermatitis of the scalp, and post-inﬂammatory
hyperpigmentation.
In a November 23, 2020 progress note, Dr. Nelson Maniscalco, a podiatrist, indicated that
appellant presented with complaints of persistent left foot numbness. He reported findings on
physical, neurological, and dermatologic examination. Dr. Maniscalco diagnosed left lower limb
mononeuropathy and neuropathic left foot pain, gait abnormality, and history of COVID-19.

4

Dr. Sova, in an additional progress note dated December 1, 2020, reiterated his prior
assessments of no signs of anxiety, depression, or PTSD, and he noted that appellant had been
scheduled for an evaluation of her cognitive status. He noted that appellant had a history of
hypoxic respiratory failure, right and left upper extremity catheter-associated thrombosis, atrial
fibrillation with RVR, concern for seizures, and left foot numb ness and intermittent pain in the
first and fifth toes.
In a December 10, 2020 progress note, Dr. Zachary D. Berger, a Board-certified internist,
diagnosed stage 3 chronic kidney disease, dyspnea on exertion, voice hoarseness, unspecified type
of atrial fibrillation, history of DVT in adulthood, chronic anticoagulation, and left foot
neuropathic pain.
A December 23, 2020 progress note from Dr. Vasanth Sathiyakumar, a cardiologist,
reported appellant’s history of injury and medical treatment. He discussed examination and
reviewed laboratory test results. Dr. Sathiyakumar provided an assessment of essential
hypertension, hyperlipdima, and obstructive sleep apnea.
Progress notes dated November 3 and 18, and December 15 and 29, 2020 from Kristine M.
Pietsch, a certified speech language pathologist, provided an assessment that appellant presented
with severe dysphonia secondary to posterior glottic diastasis that negatively impacted
communication. Dr. Pietsch advised that appellant’s prognosis was fair.
OWCP also received clinic treatment, and progress notes dated September 30, 2020
through January 8, 2021 signed by Caroline C. Griffin, a registered occupational therapist,
Casey A. Houlihan, Allison Nogi, and Julia L. Falkenklous, physical therapists, and Blakeney T.
Patterson, an occupational therapist.
By decision dated February 2, 2021, OWCP denied appellant’s claim for disability. It
found that the medical evidence of record was insufficient to establish disability from work during
the claimed period due to the accepted employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled

4

Supra note 2.

5

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989). See also FECA Bulletin No. 20-05 (issued March 31, 2020) entitled Federal Employees
Contracting COVID-19 in Performance of Duty, which provides in pertinent part: “DISABILITY: FECA pays
compensation for partial or total disability of an employee resulting from injury in the performance of duty. Just as
with other conditions/claims, disability is claimed by the filing of a CA-7, Claim for Compensation, with the
employing agency and requires an incapacity because of an employment-related injury to earn wages.”

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from work as a result of the accepted employment injury.6 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.7
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.8 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.9
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.10 The opinion of the physician must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021 causally related to her accepted
March 23, 2020 employment injury.
In support of her claim for compensation, appellant submitted a June 22, 2020 opinion from
Dr. Uhelski. Dr. Uhelski found that appellant could not work while she was recovering in the
hospital and that she could be in the hospital through 2020. She advised that appellant could
possibly return to work on January 1, 2021. Dr. Uhelski’s opinion regarding appellant’s disability
status was speculative in nature. The Board has held that medical opinions that are equivocal or
speculative in nature are of diminished probative value. 12 Thus, the Board finds that Dr. Uhelski’s
June 22, 2020 opinion is insufficient to establish appellant’s disability claim.
The progress reports dated August 4 through December 23, 2020 from Drs. Sova, Fawzy,
Kannarkat, Morrison, Rozati, Maniscalco, Berger, Akst, Snow, Wise, and Sathiyakumar addressed
appellant’s diagnosed conditions, including COVID-19, and her medical treatment. However,
6

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
7

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

8

Id. at § 10.5(f); see, e.g., G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

9

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

10

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

11

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
12

See M.L., Docket No. 20-1682 (issued June 24, 2021).

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these reports did not offer an opinion addressing whether appellant was totally disabled from work
during the claimed period due to the accepted injury. As such, the Board finds that this medical
evidence is of no probative value and insufficient to establish appellant’s disability claim. 13
Appellant also submitted a September 4, 2020 chest CT scan report and a September 21,
2020 EEG report. The Board has held, however, that diagnostic studies, standing alone, lack
probative value on the issue of causal relationship as they do not address whether the accepted
employment injury resulted in appellant’s period of disability on specific dates. 14
Progress notes from the speech language pathologists and physical and occupational
therapists were also received. Speech pathologists, physical therapists, and occupational therapists
are not considered physicians as defined under FECA. 15 As such, this evidence is also of no
probative value and insufficient to establish the claim.
As noted, for each period of disability claimed, the employee has the burden of proof to
establish that he or she was disabled from work during the claimed period due to the accepted
employment injury. 16 As appellant has not submitted rationalized medical opinion evidence
sufficient to establish employment-related disability during the period November 13, 2020 through
January 30, 2021due to her accepted employment injury, the Board finds that she has not met her
burden of proof to establish her claim.
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.

13

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value. See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018).
14

D.M., Docket No. 20-0548 (issued November 25, 2020); O.C., Docket No. 20-0514 (issued October 8, 2020);
R.J., Docket No. 19-0179 (issued May 26, 2020).
Section 8101(2) of FECA provides that the term physician includes “surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law.” 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay
individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion
under FECA); see also S.S., Docket No. 18-0081 (issued August 22, 2018); P.Y., Docket No. 16-1324 (issued July 24,
2017) (a speech pathologist is not considered a physician under FECA); F.H., supra note 5; R.L., Docket No. 19-0440
(issued July 8, 2019) (a physical therapist is not considered a physician under FECA); S.J., Docket No. 20-1061 (issued
December 22, 2020); J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not
considered a physician under FECA).
15

16

Supra note 6.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability from
work for the period November 13, 2020 through January 30, 2021, causally related to her accepted
March 23, 2020 employment injury.17
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2022
Washington, DC

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

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

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

17

The Board notes that OWCP has not adjudicated appellant’s claims for compensation for subsequent periods of
disability causally related to her accepted employment injury.

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

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

Docket No. 14-1713
Issued: January 7, 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 4, 2014 appellant, through her attorney, filed a timely appeal from a May 9,
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 the claim.
ISSUE
The issue is whether appellant established a recurrence of total disability beginning
May 7, 2013 causally related to her January 22, 2011 employment injury.
FACTUAL HISTORY
On January 26, 2011 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim alleging that she fell in the performance of duty. OWCP accepted the claim for a right
knee strain and medial meniscus tear. It also accepted claims for recurrences of disability on
1

5 U.S.C. § 8101 et seq.

December 1, 2011 and August 20, 2012 due to OWCP-approved surgery.2 Appellant returned to
full-duty work on February 19, 2013 and worked in that capacity until she stopped work on
May 7, 2013. On May 21, 2013 she filed a claim for a recurrence of disability.
Evidence received with the claim included: right knee radiographs dated April 5, 2013;
an April 15, 2013 note from Dr. Scott Miller, a Board-certified orthopedic surgeon, releasing
appellant from his care; a September 6, 2011 magnetic resonance imaging (MRI) scan of the
right knee; and home health certification and plan of care dated August 24 and September 5,
2012 from Dr. Miller.
A radiology report dated April 5, 2013 was submitted from Dr. Dennis Balgowan, a
Board-certified diagnostic radiologist, which related that x-rays performed of appellant’s right
knee showed no significant interval change. While postoperative changes were seen in the
medial compartment with medial compartment arthroplasty, no hardware fracture or abnormal
lucency was seen. Mild patellofemoral degenerative change and minimal lateral compartment
degenerative changes were noted, along with possible dystrophic calcification.
Medical documentation from Dr. Laura Ross, an osteopath and a Board-certified
orthopedic surgeon, were also received.3 In an April 9, 2013 letter, Dr. Ross referred appellant
to Rothman Institute for total knee arthroplasty. In an April 9, 2013 report, she noted the history
of the January 22, 2011 work injury, appellant’s subsequent knee surgeries and current
symptoms. X-rays revealed further degenerative changes in the lateral compartment of the right
knee which appeared to be an uneven medial prosthesis. An impression of failed right medial
knee arthroplasty and right trochanteric bursitis of the hip was provided. Dr. Ross recommended
a revision of her unicompartmental arthroplasty to a total knee arthroplasty. In a May 8, 2013
duty status report, she diagnosed internal derangement due to the January 22, 2011 work injury
and noted restrictions. In a May 7, 2013 note, Dr. Ross advised that appellant could return to
limited-duty work on May 7, 2013 which restrictions with involved no pushing/pulling, no
climbing stairs, no repetitive motion, standing for no more than two hours, and lifting no more
than five pounds of weight.
On May 8, 2013 appellant wrote to the postmaster relating that she had received a letter
stating that she would be returning to the annex as a carrier effective May 18, 2013. She stated
that she was still on limited duty and she questioned what reasonable accommodations would be
provided to her.
Patricia Teehan, supervisor, distribution operations, advised appellant on May 23, 2013
that the employing establishment had no work available due to the severity of her restrictions.
Appellant was further advised however that she still had a responsibility as an employee of the
United States Postal Service to be in regular attendance.

2

On December 1, 2011 appellant underwent a right knee diagnostic arthroscopy, partial medial meniscectomy,
chondroplasty of the medial femoral condyle as well as the patella, limited synovectomy, and debridement of the
inner rime of the lateral meniscus. On August 21, 2012 she underwent a right medial knee replacement.
3

On April 18, 2013 appellant requested a change in physicians from Dr. Miller to Dr. Ross.

2

By letter dated July 31, 2013, OWCP informed appellant that the evidence received was
insufficient to establish a return or increase of disability due to a change/worsening of her
accepted work-related conditions. It determined that none of the medical evidence indicated why
or how her condition worsened without an intervening injury or new exposure to the work
environment. OWCP further noted the medical evidence failed to explain how the diagnosed
failed right medial knee arthroplasty and right trochanteric bursitis of the hip were related to the
January 22, 2011 work injury, or to explain how she could no longer perform the duties she was
performing when she stopped working. It requested that appellant provide, within 30 days, a
narrative statement from her physician containing a medical explanation as to how her disability
was due to the original injury and demonstrated that the accepted condition is materially
worsened/changed, without intervening cause, to the point that she was totally disabled.
Appellant provided her August 8, 2013 response to OWCP’s questions along with a
July 29, 2013 note from Dr. Ross referring her for a consult at Rothman Institute and additional
CA-7 claims for compensation.
By decision dated September 4, 2013, OWCP denied the claimed recurrence as the
evidence did not indicate why or how her condition had worsened nor did it provide a description
of the work duties she could no longer perform as of the date of the recurrence.
On September 13, 2013 appellant requested an oral hearing, which was held on
February 18, 2014. She testified that she returned to work as a mail handler and that her work
restrictions were accommodated. But, after the May 2013 work restrictions from Dr. Ross,
appellant was told by the employing establishment there was no work within her restrictions.
She eventually saw Dr. Gwo-Chin Lee, a Board-certified orthopedic surgeon, and had a total
knee replacement on October 22, 2013.
Additional evidence received included requests for authorization, diagnostic reports, and
medical evidence pertaining to the October 22, 2013 right total knee revision for the failed
unicondylar knee replacement.
In a January 16, 2014 report, Dr. Lee provided a statement as to the reason for
performing the October 22, 2013 revision surgery, converting her right unicompartmental knee
replacement to a total knee replacement. He stated that the initial unicompartmental knee
replacement performed in August 2012 had not improved appellant’s knee pain due to arthritis in
both the lateral and patellofemoral joint compartments of the knee as well as an unstable
unicompartmental arthroplasty, which was performed as a result of a job-related injury. To
relieve the pain of arthritis in the other joint spaces, it was deemed medically necessary to
convert appellant’s unicompartmental knee replacement to a full knee replacement, fully treating
her arthritis.
By decision dated May 9, 2014, an OWCP hearing representative affirmed the
September 4, 2013 decision.4

4

See supra note 2. OWCP subsequently authorized the October 22, 2013 surgery and approved the claim for
recurrence of disability effective October 22, 2013.

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LEGAL PRECEDENT
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.5
The term disability as used in FECA means the incapacity because of an employment
injury to earn the wages that the employee was receiving at the time of injury.6 For each period
of disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.7 Whether a particular injury caused an
employee disability for employment is a medical issue which must be resolved by competent
medical evidence.8 The Board will not require OWCP to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow an employee to self-certify their
disability and entitlement to compensation.9
ANALYSIS
OWCP accepted that appellant sustained a right knee strain and medial meniscus tear and
paid compensation benefits, including authorization for two knee surgeries on December 1, 2011
and August 21, 2012.10 Appellant returned to full-duty work on February 19, 2013, following
the accepted August 21, 2012 knee surgery and was working full duty when she stopped work on
May 7, 2013. She subsequently filed a recurrence claim for the May 7, 2013 work stoppage.
OWCP denied the claim.
The evidence of record does not provide a reasoned opinion to support the claim that
appellant sustained a spontaneous change in her medical condition on or about May 7, 2013,
causing disability due to the January 22, 2011 accepted work injury.
The radiology report dated April 5, 2013 from Dr. Balgowan showed no significant
interval change of appellant’s right knee. Postoperative changes were seen in the medial
compartment with medial compartment arthroplasty, but with no hardware fracture or abnormal
lucency was seen. Mild patellofemoral degenerative change and minimal lateral compartment
degenerative changes were noted, along with possible dystrophic calcification. This report
primarily notes degenerative changes, and does not substantiate a worsening of the accepted
conditions warranting total disability.
5

20 C.F.R. § 10.5(x).

6

Paul E. Thams, 56 ECAB 503 (2005).

7

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

8

G.T., 59 ECAB 447 (2008); Gary J. Watling, 52 ECAB 278 (2001).

9

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

See supra note 2. These surgeries were accompanied with periods of disability.

4

In her April 9, 2013 treatment note, Dr. Ross noted that appellant’s symptoms regarding
her right knee and, based on her examination, found that appellant had a failed right medial knee
arthroplasty. She recommended a total revision and also diagnosed right trochanteric bursitis of
the hip. This report preceded appellant’s recurrence claim, and Dr. Ross did not address
appellant’s work status or mention any disability appellant may have had as a result of the failed
right medial knee arthroplasty or how it related to the original work injury.
In her May 7, 2013 note, Dr. Ross indicated that appellant could work limited duty with
restrictions on prolonged walking; however, her note provided no reasoned medical opinion to
establish that appellant’s condition had worsened without an intervening cause to now require
new work restrictions.
Appellant stopped work on May 7, 2013 allegedly because the employing establishment
did not have available work within Dr. Ross’ restrictions. However the record substantiates that
appellant was informed on May 23, 2013, not May 7, 2013, that there was no work available
within appellant’s restrictions. In this May 23, 2013 letter, the supervisor of distribution
operation noted that appellant was still expected to be regular in attendance. Furthermore,
appellant’s letter dated May 8, 2013 substantiates that appellant had been informed that she was
to report to the annex as a carrier effective May 18, 2013. The record thus indicates that
appellant did not receive pay after May 7, 2013 because she was not available for work by
choice, even following notice of her required attendance.
In his January 16, 2014 report, Dr. Lee provided a reason for appellant’s total knee
replacement. However, he did not address appellant’s disability status in May 2013 or provide
any medical rationale as to whether there had been a material change in her medical condition
requiring new work restrictions back on May 7, 2013. Dr. Lee’s report is insufficient to establish
appellant’s claim for recurrence from May 2013.
The other evidence pertaining to appellant’s prior surgeries or her October 22, 2013
surgery does not address whether appellant had a material change in her condition in
May 2013.11
On appeal, counsel contends that appellant has provided prima facie evidence to establish
that she suffered an overall worsening of her right knee condition leading to a recurrence of
disability and that she was placed off work because the employing establishment could not
provide work within her restrictions. As explained above, there is no probative medical opinion
evidence to establish that she had a material change in her medical condition that caused
disability beginning May 7, 2013 or that the employing establishment had no work for appellant
due to her accepted conditions.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

11

See supra note 2.

5

CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability on or after
May 7, 2013 causally related to her January 22, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 9, 2014 is affirmed.
Issued: January 7, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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

Docket No. 13-2084
Issued: April 25, 2014

Case Submitted on the Record

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

JURISDICTION
On September 11, 2013 appellant, through counsel, filed a timely appeal from a June 17,
2013 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 established an injury in the performance of duty on
July 3, 2007.
FACTUAL HISTORY
On July 31, 2007 appellant, then a 55-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained an injury in the performance of duty on
July 3, 2007. He stated on the claim form that he was lifting and pulling letter trays in a
1

5 U.S.C. § 8101 et seq.

repetitive motion, and he described the injury as spasms in the neck and back, right side. The
reverse of the claim form indicated that appellant had been off work intermittently since
July 3, 2007. The record contains a limited-duty job offer accepted by appellant on
August 6, 2007.
With respect to medical evidence, Dr. Zafer Termanini, a Board-certified orthopedic
surgeon, diagnosed sciatica in a July 12, 2007 note. He indicated that appellant was disabled
from July 8 to 16, 2007.
By decision dated September 7, 2007, OWCP denied the claim for compensation. It
found that the factual basis for the claim was “unclear or unknown” and the medical evidence
was insufficient to establish the claim.
On September 17, 2007 appellant submitted a September 4, 2007 report from Dr. Marc
Fillipone, a Board-certified physiatrist, who provided a history and results on examination.
Dr. Fillipone diagnosed lumbosacral radiculitis, cervical radiculitis and internal derangement of
the right shoulder. He opined that appellant’s conditions were the result of “repetitive stress
while working for the [employing establishment].”
On December 3, 2007 appellant submitted an October 26, 2007 report from Dr. Fillipone,
who again provided a history of July 3, 2007 incident and reviewed the medical history.
Dr. Fillipone diagnosed cervical radiculopathy and lumbar radiculitis. He opined that the above
conditions were “directly and solely the result of the injuries sustained by the patient on [July 3,
2007] while working for the [employing establishment].”
OWCP received a request for reconsideration on September 9, 2008. In a letter dated
November 3, 2008, appellant’s representative requested that OWCP delay a decision on the
reconsideration request, as medical evidence regarding emergency room treatment on July 5,
2007 had been requested.
No further action in the case occurred until appellant’s new representative submitted a
March 20, 2013 letter, noting the request for reconsideration and the reports from Dr. Fillipone
dated September 4 and October 26, 2007.
In a decision dated June 17, 2013, OWCP stated that it was modifying the prior decision
to reflect that the basis for denial was not a factual element, but instead the requirement of
medical evidence on the issue of causal relationship. It discussed the September 4, 2007 report
from Dr. Fillipone, without discussing the content of the October 26, 2007 report.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that he or she
sustained an injury while in the performance of duty.2 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
2

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

2

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.3
ANALYSIS
In the present case, appellant has claimed a traumatic injury on July 3, 2007 when he was
lifting and pulling letter trays. Although the initial decision stated that the factual basis of the
claim was “unclear or unknown,” he identified the job duties he performed on July 3, 2007 and
there was no contrary evidence. The June 17, 2013 decision accepted that an incident occurred
as alleged, and therefore the issue was whether the medical evidence was sufficient to establish
the claim.
In this regard appellant submitted reports from Dr. Fillipone following the September 7,
2007 OWCP decision. The September 4, 2007 report, which was discussed by OWCP in its
June 17, 2013 decision, provided a complete history but referred to “repetitive stress” in federal
employment as the cause of injuries that included lumbosacral radiculitis, cervical radiculitis and
internal derangement of the right shoulder. This reference to repetitive stress activities did not
explain how the particular activities appellant stated that he performed on July 3, 2007 would
have caused the diagnosed conditions.
Appellant also submitted an October 26, 2007 report from Dr. Fillipone. OWCP did not
review this report in its June 17, 2013 decision. It is well established that, since the Board’s
jurisdiction of a case is limited to reviewing the evidence which was before OWCP at the time of
its final decision, it is necessary that OWCP review all evidence submitted by a claimant and
received by OWCP prior to issuance of its final decision.4 As the Board’s decisions are final as
to the subject matter appealed, it is critical that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed
by OWCP.5
The case will be remanded to OWCP to properly review the relevant evidence of record.
After such further development as OWCP deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds the case is not in posture for decision.

3

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

4

William A. Couch, 41 ECAB 548 (1990).

5

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: April 25, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Indianapolis, IN,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-1215
Issued: February 20, 2020

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 May 6, 2019 appellant filed a timely appeal from a February 27, 2019 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-1215.1
On May 18, 2017 appellant, then a 66-year-old mail handler equipment operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained an occupational disease due to
factors of his federal employment including repetitive pushing, pulling, and lifting hooks to stage
and dispatch mail. He indicated that he first became aware of his condition and related it to his
federal employment on May 2, 2017. Appellant stopped work on May 17, 2017 and returned on
May 18, 2017.

1

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

By decision dated September 28, 2017, OWCP denied appellant’s occupational disease
claim finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of his federal employment.
On November 1, 2017 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review. By decision dated February 16, 2018,
an OWCP hearing representative affirmed the September 28, 2017 decision.
On December 14, 2018 appellant requested reconsideration and subsequently provided
additional evidence.
By decision dated February 27, 2019, OWCP denied appellant’s December 14, 2018
request for reconsideration, finding that it was untimely filed and failed to demonstrate clear
evidence of error.
The Board has duly considered the matter and notes that appellant’s December 14, 2018
request constitutes a timely request for reconsideration. Section 10.607(a) of OWCP’s
implementing regulations provides that a request for reconsideration must be received by OWCP
within one year of the date of the decision for which review is sought.2 Because appellant’s request
was received on December 14, 2018, which was within one year of OWCP’s February 16, 2018
hearing decision, the Board finds that it was timely filed. The clear evidence of error standard
utilized by OWCP in its February 27, 2019 decision is appropriate only for untimely
reconsideration requests.3 Therefore, the Board will set aside OWCP’s February 27, 2019 decision
and remand the case for an appropriate final decision on appellant’s timely request for
reconsideration.

2
20 C.F.R. § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016).
3

See 20 C.F.R. § 10.607(b).

2

IT IS HEREBY ORDERED THAT the February 27, 2019 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: February 20, 2020
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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
SYRACUSE VETERANS MEDICAL CENTER,
Syracuse, NY, Employer
__________________________________________

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

Docket No. 07-1373
Issued: November 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 21, 2006 terminating her compensation
benefits and a nonmerit decision dated April 5, 2007 denying reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective April 21, 2006; and (2) whether the
Office properly denied further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTS
On February 15, 2005 appellant, then a 42-year-old nursing assistant, filed an
occupational disease claim alleging that lifting activity caused or aggravated her bilateral carpal

tunnel conditions. She first realized her condition on July 20, 1999. The Office accepted
appellant’s claim for intervertebral cervical disc disorder with myelopathy, cervical region and
unspecified disorder of bursae and tenderness in the right shoulder region. It advised that the
claimed carpal tunnel condition was not accepted as the medical reports of record failed to show
any positive evidence of carpal tunnel syndrome.1 Appellant received medical and compensation
benefits for total disability from May 15 through October 30, 2005. On October 31, 2005 she
returned to work on a limited-duty, full-time basis.
In an October 27, 2006 report, Dr. Carri A. Jones, a Board-certified physiatrist and
treating physician, noted that appellant had bilateral hand dysesthesias, bilateral wrist pain,
bilateral shoulder pain and neck pain. Dr. Wayne A. Eckhardt, a Board-certified orthopedic
surgeon, whom appellant was seeing for shoulder pain, had advised that appellant had bilateral
shoulder tendinitis and kept her off work. Dr. Jones reported that appellant’s September 2, 2005
magnetic resonance imaging (MRI) scan of the right shoulder and arthrogram, as well as an MRI
scan of the cervical spine, were normal. She provided an impression of upper extremity
dysesthesias; mild right carpal tunnel syndrome, minimal left carpal tunnel syndrome, based on
electrodiagnostic studies March 2005; questionable mild facet synovitis cervical spine and a
questionable possible early finding of lupus or inflammatory process. Based on the negative
results of the MRI scans for the right shoulder and cervical spine, Dr. Jones found no evidence of
an ongoing orthopedic problem. She recommended that appellant see her primary care provider
for further work-up for possible early findings of lupus or another global inflammatory process
and that appellant continue treatment with Dr. Eckhardt for her bilateral shoulder tendinitis. In a
November 1, 2005 letter, Dr. Jones advised that, given the normal findings on the MRI scan of
the right shoulder with an arthrogram and MRI scan of the cervical spine, there was no
orthopedic reason for appellant’s continued pain to both upper extremities and neck. She noted
that appellant should undergone consultation with a neurologist and/or rheumatologist for early
findings of lupus and/or global inflammatory process.
In a November 15, 2005 report, Dr. Eckhardt noted that appellant continued to complain
of pain in the right shoulder, but that the MRI scan of the shoulder showed nothing. He advised
that electrical studies of the right arm also showed nothing in terms of nerve compression,
problems from the cervical spine or the peripheral nerves. Dr. Eckhardt advised that he did not
know what was going on with appellant’s shoulder condition and agreed with the
recommendation that appellant see either a rheumatologist or a neurologist. He noted that
appellant continued to insist that her shoulder condition was related to her work.
By notice dated March 15, 2006, the Office proposed termination of appellant’s wageloss and medical benefits. The Office noted that both Dr. Jones and Dr. Eckhardt had examined
her and could not identify objective medical evidence to support her subjective complaints of
pain or identify any continuing residuals or disability in connection with the accepted claim.
Therefore, it found that the weight of the medical evidence demonstrated that appellant no longer
had any disability or residuals due to her accepted work-related condition.

1

It further noted that appellant’s other medical conditions of record were also not accepted.

2

In a March 22, 2006 letter, appellant disagreed with the Office’s proposed termination of
her compensation benefits. She argued that Drs. Jones and Eckhardt merely ruled out an
orthopedic diagnosis but did not preclude that she might have a rheumatalogical or neurological
condition. Appellant noted that her doctors continued to prescribe medications and that she had
an appointment with a neurologist scheduled on April 24, 2006.
In a March 25, 2006 report, Dr. Louise A. Prince, Board-certified in emergency
medicine, noted that appellant was seen in the emergency room for bilateral arm pain. She noted
that appellant had a long-standing history of muscular skeletal pain with a negative work-up on
repeat occasions and was not currently using any pain medication. Dr. Prince reported
examination findings and indicated that appellant met approximately 98 percent of the diagnostic
criteria for fibromyalgia, as well as multiple other chronic complaints associated with
fibromyalgia. Appellant also admitted to some depression and anxiety in regard to her longstanding condition. Treatment options for her primary care physician were discussed.
By decision dated April 21, 2006, the Office terminated appellant’s compensation
benefits effective that date. The Office found that the weight of the medical evidence rested with
the medical opinions of Dr. Jones and Dr. Eckhardt and established that appellant no longer had
any disability or residuals of her injury-related medical conditions.
Appellant’s request for reconsideration of the Office’s decision was received by the
Office on March 2, 2007. In a February 6, 2007 clinical neurophysiology report, Dr. Deborah
Bradshaw, a Board-certified neurologist, evaluated appellant for carpal tunnel syndrome. She
indicated that diagnostic study demonstrated mild bilateral median neuropathies at the wrist with
slight worsening on the right since June 2006 and a slight worsening on the left since 2005.
Dr. Bradshaw stated that the mild delayed ulnar distal latencies raised the possibility of a
polyneuropathy and felt that a further investigation for a referral for study of the lower
extremities may be helpful given appellant’s family history of diabetes mellitus.
In a February 13, 2007 duty status report, Dr. Kristen M. Graves, a Board-certified
internist, advised that appellant developed wrist pain at work. She diagnosed carpal tunnel
syndrome and opined that it was causally related to appellant’s work injury. Dr. Graves noted
that appellant had other disabling conditions, such as fibromyalgia. She opined that appellant
was not able to perform her regular duties as a nursing assistant as her wrist pain limits the
ability to perform her usual activities.
By decision dated April 5, 2007, the Office denied appellant’s reconsideration request
finding that she did not provide relevant and pertinent evidence not previously considered by the
Office.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without

2

Elaine Sneed, 56 ECAB ___ (Docket No. 04-2039, issued March 7, 2005).

3

establishing that disability has ceased or that it is no longer related to the employment injury.3
The right to medical benefits for an accepted condition is not limited to the period of entitlement
for disability. To terminate authorization for medical treatment, the Office must establish that
appellant no longer has residuals of an employment-related condition which would require
further medical treatment.4
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for intervertebral cervical disc disorder with
myelopathy, cervical region; and unspecified disorder of bursae and tenderness in the right
shoulder region. The Office terminated compensation benefits on the basis that the weight of the
medical evidence established that the work-related accepted conditions had resolved. The Office
relied upon the evaluations of Dr. Jones and Dr. Eckhardt as the basis for concluding that the
accepted conditions had resolved.
Dr. Jones, appellant’s treating physician, found no orthopedic reason for appellant’s
continued pain to both upper extremities and neck as normal findings were indicated on the
September 2, 2005 MRI scan of the right shoulder with arthrogram and the September 2, 2005
MRI scan of the cervical spine. Dr. Eckhardt, appellant’s treating physician for her bilateral
shoulder pain, advised that the MRI scan of the right shoulder and electrical studies of the right
upper extremity were normal and not indicative of any problems. Both physicians indicated that
appellant would benefit from a referral to either a rheumatologist or a neurologist to further
investigate her complaints of pain.
The Board finds that the Office properly relied on the opinions of Dr. Jones and
Dr. Eckhardt to terminate appellant’s wage-loss and medical benefits for the accepted workrelated conditions. The physicians established that appellant had no orthopedic or neurological
abnormalities and, thus, no ongoing conditions associated with her accepted injuries of
intervertebral cervical disc disorder with myelopathy, cervical region; and unspecified disorder
of bursae and tenderness in the right shoulder region. The Board finds that the opinions of
Dr. Jones and Dr. Eckhardt represent the weight of the medical opinion evidence as they had
conducted physical examinations of appellant, reviewed a comprehensive medical history and
analyzed objective evidence which presented normal findings. Because there was no objective
evidence that appellant had any remaining disability or residuals from her accepted employment
injuries, the Office properly terminated her compensation for wage-loss and medical benefits.
The Board also finds that Dr. Prince’s opinion is insufficient to overcome the weight of
or cause a conflict with the medical evidence. Dr. Prince noted that appellant had a longstanding history of muscular skeletal pain with negative work-ups on repeat occasions. She
provided an assessment of fibromyalgia. The Board notes that the Office has not accepted
fibromyalgia as related to the employment injury. Appellant has the burden of proof to establish

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

4

James F. Weikel, 54 ECAB 690 (2003).

4

causal relationship to her employment, which she has not met.5 In this regard, Dr. Prince did not
provide any rationalized evidence that appellant’s fibromyalgia condition was causally related to
her accepted employment injuries or her work duties. Thus, her medical opinion is not sufficient
to overcome the weight of the medical evidence.
Although appellant argued that she was still undergoing medical treatment for her neck
and shoulder conditions as Dr. Jones and Dr. Eckhardt had prescribed medications for her and
she had an appointment with a neurologist scheduled, her argument is irrelevant as the medical
evidence of record indicates that her employment-related condition is no longer disabling and her
continued pain may be the result of conditions other than her accepted employment-related
conditions.6
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,7 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations, which provides that a
claimant may obtain review of the merits of the claim by either: (1) showing that the Office
erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) constituting relevant and pertinent new
evidence not previously considered by the Office.8 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS -- ISSUE 2
Appellant’s request for reconsideration neither alleged, nor demonstrated that the Office
erroneously applied or interpreted a specific point of law. Additionally, she did not advance a
relevant legal argument not previously considered by the Office. Consequently, appellant was
not entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).10

5

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by the Office was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).
6

On appeal, appellant argues that she originally filed her claim for carpal tunnel syndrome and the Office never
evaluated her EMG reports which showed she had carpal tunnel syndrome. The Board notes that, as the Office did
not develop this aspect of appellant’s claim, this issue is not properly before the Board. 20 C.F.R. § 501.2(c).
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(2).

9

20 C.F.R. § 10.608(b).

10

20 C.F.R. § 10.606(b)(2)(i) and (ii).

5

With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted a November 6, 2007 report from
Dr. Bradshaw, noting objective evidence of carpal tunnel syndrome, and a February 13, 2007
report from Dr. Graves, in which the physician opined that appellant’s carpal tunnel condition
was causally related to appellant’s work as a nursing assistant. This medical evidence, while
new, is not relevant to the issue of whether the Office properly terminated appellant’s
compensation benefits in the instant claim. Neither report discusses whether appellant has any
disability or medical residuals from her accepted conditions of intervertebral cervical disc
disorder with myelopathy, cervical region and/or unspecified disorder of bursae and tenderness
in the right shoulder region. Evidence that does not address the particular issue involved does
not constitute a basis for reopening a case.11 Consequently, appellant is not entitled to a review
of the merits of her claim based on the third above-noted requirement under section
10.606(b)(2).12
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did she submit
relevant and pertinent evidence not previously considered by the Office.13 Accordingly, the
Board finds that the Office properly determined that appellant was not entitled to a merit
review.14
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
April 21, 2006 on the grounds that she no longer had any disability causally related to her
employment-related injury. The Board further finds that the Office properly refused to reopen
appellant’s case for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

11

Kevin M. Fatzer, 51 ECAB 407 (2000). As the Office had not accepted as work-related any conditions other
than the above accepted ones, appellant may file a new claim with the Office pertaining to her carpal tunnel
condition. See supra note 6.
12

20 C.F.R. § 10.606(b)(2)(iii).

13

20 C.F.R. § 10.606(b).

14

See James E. Norris, 52 ECAB 93 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the April 5, 2007 and April 21, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 16, 2007
Washington, DC

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

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

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

7


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

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

Docket No. 13-1554
Issued: December 4, 2013

Case Submitted on the Record

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

JURISDICTION
On June 18, 2013 appellant, through his attorney, filed a timely appeal from a March 11,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed
a schedule award decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a two percent permanent impairment
of the left lower extremity for which he received a schedule award.
FACTUAL HISTORY
On December 29, 2003 appellant, then a 58-year-old expeditor, sustained an aggravation
of left knee bakers cyst and a left medial meniscus tear in the performance of duty. He filed a
schedule award claim on October 10, 2008.
1

5 U.S.C. § 8101 et seq.

On June 12, 2008 Dr. Nicholas Diamond, a doctor of osteopathic medicine, performed an
independent medical evaluation and calculated 30 percent impairment of the lower left extremity
according to the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
On December 17, 2008 a district medical adviser (DMA) confirmed an impairment rating
of 30 percent of the left lower extremity and noted the date of maximum medical improvement
(MMI) as June 12, 2008.
On June 12, 2009 and January 11, 2010, OWCP requested that Dr. Diamond provide a
new impairment rating in accordance with the sixth edition of the A.M.A., Guides.2
Dr. Diamond did not respond.
Appellant was referred to Dr. Stanley Askin, a Board-certified orthopedic surgeon, for a
second opinion examination to determine the extent of permanent partial impairment according
to the sixth edition of the A.M.A., Guides. In a June 1, 2010 report, Dr. Askin reported that he
could not assign a permanent impairment rating because appellant had not reached MMI.
On August 16, 2010 the case was reviewed by Dr. Henry J. Magliato, a DMA, who
disagreed with Dr. Askin and noted that permanent impairment had been reached.
On February 2, 2011 appellant was evaluated by Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for a referee examination in order to resolve the conflict between Dr. Askin
and Dr. Magliato. Dr. Stark reported that MMI had been reached on June 12, 2008 and
calculated two percent partial permanent impairment of the lower left extremity.
On January 22, 2012 Dr. Stark’s referee report and the case file was reviewed by
Dr. Andrew A. Merola, a DMA, who determined that MMI had been reached on February 1,
2011 and that appellant had a two percent permanent impairment of the left lower extremity.
By decision dated October 11, 2012, OWCP granted appellant a schedule award claim for
two percent permanent impairment of the left lower extremity. The date of maximum medical
improvement was noted as February 1, 2011. The award covered a period of 5.76 weeks from
February 1 to March 13, 2011.
On November 26, 2012 appellant, through counsel, requested reconsideration of the
October 11, 2012 decision.
In support of his request, appellant submitted an updated November 16, 2010 report from
Dr. Diamond. Using the sixth edition of the A.M.A., Guides, Dr. Diamond calculated a three
percent impairment to the left lower extremity and noted the MMI date as June 12, 2008.3
2

A.M.A., Guides (2009). On March 15, 2009 the Director exercised authority to advise that as of May 1, 2009
all schedule award decisions of OWCP should reflect use of the sixth edition of the A.M.A., Guides. The applicable
date of the sixth edition is as of the schedule award decision reached. It is not determined by either the date of MMI
or when the claim for such award was filed.
3

Table 16-3, 509, Table 16-6, 516, Table 16-7, 517 and Table 16-8, 519.

2

The case file was referred to Dr. Magliato for review and a determination on the date of
MMI and percentage of permanent partial impairment. In a December 26, 2012 report,
Dr. Magliato agreed with Dr. Diamond’s finding of three percent permanent impairment of the
left lower extremity and an MMI date of June 12, 2008.
On February 13, 2013 OWCP requested clarification of the DMA’s report.
In a February 19, 2013 report, Dr. Magliato reported that Dr. Askin’s June 1, 2010 report
was of no value because he opined that MMI had not been reached. He noted that Dr. Stark’s
second opinion was more current than Dr. Diamond’s and agreed with Dr. Stark’s calculation of
two percent permanent impairment of the left lower extremity. Dr. Magliato further stated that
MMI would have been reached on February 1, 2011, the date of Dr. Stark’s examination.
On February 25, 2013 appellant, through counsel, submitted an addendum report from
Dr. Diamond dated January 28, 2013.
In his January 28, 2013 report, Dr. Diamond reported that review of appellant’s
January 2, 2013 x-ray films revealed severe joint space narrowing in the left knee which was
subject to a class 2 primary left knee joint arthritis rating. Thus, he calculated 22 percent
permanent impairment of the left lower extremity and an MMI of June 12, 2008.4
By decision dated March 11, 2013, OWCP affirmed the October 11, 2012 decision
finding that appellant was entitled to an award of no more than two percent permanent
impairment of the left lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.5 However, FECA 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
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the CDX,
which is then adjusted by grade modifiers based on Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS). The net adjustment formula is GMFH 4

Id. at Table 16-3, 511.

5

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

6

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

3

CDX + GMPE - CDX + GMCS - CDX. Evaluators are directed to provide reasons for their
impairment rating choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.7
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant filed a claim for a schedule award on October 10, 2008. By decision dated
October 11, 2012, OWCP granted a schedule award for two percent permanent impairment
according to the sixth edition of the A.M.A., Guides. Appellant requested an appeal of OWCP’s
decision and on March 11, 2013, OWCP affirmed the October 11, 2012 decision finding that he
was entitled to an award of no more than two percent permanent impairment of the left lower
extremity. The decision indicated that appellant’s schedule award was based on review of
Dr. Diamond’s June 12, 2008 report, Dr. Askin’s June 1, 2010 report, Dr. Stark’s February 1,
2011 report, Dr. Merola’s January 22, 2012 report and Dr. Magliato’s February 19, 2013 report.
Under cover letter dated February 25, 2013, counsel submitted a January 28, 2013
addendum report from Dr. Diamond providing a new impairment rating of the left lower
extremity based on more recent diagnostic tests. Dr. Diamond provided findings and
calculations to explain how appellant reached 22 percent permanent impairment of the left lower
extremity. OWCP received his impairment rating on March 8, 2013, prior to the March 11, 2013
schedule award decision. Despite the timely submission of Dr. Diamond’s report, OWCP’s
March 11, 2013 decision did not specifically reference this evidence.8 OWCP’s schedule award
impairment rating was based on Dr. Magliato’s February 19, 2013 DMA report, who failed to
review Dr. Diamond’s January 28, 2013 report, the most recent report from a treating physician
addressing permanent impairment.9 Thus, the Board finds that OWCP, in its March 11, 2013
decision, did not review Dr. Diamond’s January 28, 2013 medical report which was received
prior to the issuance of the March 11, 2013 decision.
As the Board’s decisions are final as to the subject matter appealed, it is crucial that all
evidence relevant to the subject matter of the claim which was properly submitted to OWCP
prior to the time of issuance of its final decision be reviewed and addressed by OWCP.10 In this
instance, OWCP failed to consider relevant medical evidence it received prior to the issuance of
the March 11, 2013 schedule award. Whether OWCP receives relevant evidence on the date of
the decision or several days prior, such evidence must be considered.11 As OWCP failed to

7

R.V., Docket No. 10-1827 (issued April 1, 2011).

8

R.I., Docket No. 11-1086 (issued November 25, 2011).

9

M.F., Docket No. 13-417 (issued April 25, 2013).

10

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB
439 (1994).
11

Willard McKennon, 51 ECAB 145 (1999).

4

address all relevant evidence before it at the time of its decision, the case is remanded for a
proper review of the evidence and issuance of an appropriate de novo final decision.
On remand, OWCP shall have its DMA evaluate Dr. Diamond’s January 28, 2013 report
as well as provide a detailed and rationalized opinion concerning the extent of appellant’s
impairment in accordance with the A.M.A., Guides. After conducting such further development
as may be necessary, it shall render an appropriate decision on appellant’s entitlement to an
additional award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2013 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision of the Board.
Issued: December 4, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Moreno Valley, CA, Employer
__________________________________________

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Appearances:
Thomas Martin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-822
Issued: December 7, 2010

Case Submitted on the Record

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

JURISDICTION
On February 1, 2010 appellant, through counsel, filed a timely appeal from a
December 1, 2009 decision of the Office of Workers’ Compensation Programs concerning the
denial of her low back claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a low back condition in
the performance of duty, causally related to factors of her federal employment.
FACTUAL HISTORY
On January 29, 2008 appellant, then a 59-year-old mail carrier, filed an occupational
disease claim alleging that her low back condition with pain radiating into her legs was due to
her letter carrying duties including casing and delivering mail. She indicated that she first
became aware of this condition on November 30, 2006, but was not aware of its relationship to
her employment duties until September 24, 2007.

In support of her claim, appellant submitted an October 22, 2007 report from Dr. John B.
Dorsey, a treating Board-certified orthopedic surgeon, who diagnosed anxiety disorder,
depression and chronic pain syndrome secondary to degenerative disc disease and lumbar facet
disease. A physical examination revealed palpable paralumbar muscle spasms, normal cervical
range of motion and reduced lumbosacral range of motion. Dr. Dorsey noted that a review of a
magnetic resonance imaging (MRI) scan revealed severe L5-S1 facet hypertrophy, moderate
L4-5 hypertrophy and L1-2 disc protrusion. He concluded that appellant was totally disabled
due to her chronic pain condition which he attributed to her work activities. In support of this
conclusion, Dr. Dorsey stated that appellant sustained an initial injury in May 2003 while
changing a tire on a work vehicle,1 which was followed by continuing trauma from her work
duties.
By letter dated March 4, 2008, the Office informed appellant that the evidence of record
was insufficient to support her occupational disease claim. It advised her as to the medical and
factual evidence to submit and gave 30 days to provide the requested information. No evidence
was received.
By decision dated April 8, 2008, the Office denied appellant’s claim on the grounds that
she failed to establish fact of injury.
In a letter dated April 17, 2008, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on August 27, 2008. At the hearing appellant
testified and submitted evidence.
In a July 10, 2008 report, Dr. Dorsey noted appellant’s back pain began in 2003
following the changing of a tire on a postal vehicle. He stated that he first examined appellant on
October 22, 2007, which was when he diagnosed chronic pain syndrome due to degenerative disc
disease and lumbar facet disease. Dr. Dorsey concluded that as a result of this condition
appellant was totally disabled from performing her work duties. He also concluded that her
lumbar facet and degenerative disc disease had been aggravated by her work duties. The work
duties identified by Dr. Dorsey as factors of aggravation included repeated bending, heavy lifting
twisting, stooping, reaching, turning, going up inclines, the May 2003 changing the tire on a
work vehicle, driving over unpaved roads and getting into and out of a vehicle. Dr. Dorsey noted
that appellant had no prior preexisting low back conditions so that her current low back
conditions were due to her returning to work on June 18, 2007.
By decision dated November 18, 2008, the Office hearing representative affirmed as
modified the denial of appellant’s claim. She modified the denial to reflect that appellant failed
to submit medical evidence establishing that her back condition was causally related to her
employment.
On August 12, 2009 appellant’s counsel requested reconsideration and evidence
supportive of her request. In a July 16, 2009 report, Dr. Dorsey diagnosed degenerative disc
1

Appellant had previously filed two claims for low back conditions which the Office had denied for lack of
sufficient medical evidence to establish the causal relationship between appellant’s work duties and the injury.
Office file numbers xxxxxx353 and xxxxxx459.

2

disease with facet arthropathy, anxiety and depression. Appellant’s back pain began in 2003
following the incident detailed in his prior report. Dr. Dorsey concluded that her degenerative
disc disease had been caused in part by the May 2003 work incident and her repetitive work
activities of bending, heavy lifting twisting, stooping, reaching, turning, going up inclines, the
May 2003 changing the tire on a work vehicle, driving over unpaved roads and getting into and
out of a vehicle. He noted that appellant had no prior or preexisting back condition before the
May 2003 changing a tire on a work vehicle. As a result of her back pain, appellant stopped
work in August 2007 as a result of her disabling back condition. In concluding, Dr. Dorsey
opined that appellant’s work activities aggravated her lower back condition to the point that she
is now totally disabled.
The Office subsequently received additional medical reports from Dr. James J. Park, a
treating family practitioner. In a March 7, 2007 report, Dr. Park diagnosed lumbar facet joint
syndrome which has caused chronic back pain and lower extremity radiculopathy. He noted that
this condition has been present since May 2003 and appellant suffers from constant pain which is
aggravated by walking or standing. On July 24, 2007 Dr. Park reported treating appellant for
chronic sciatica and spondyloarthropathy.
In a February 15, 2008 report, Dr. Park reported that an October 2007 MRI scan showed
mild to moderately severe L5-S1 degenerative facet changes, a narrowing of L1-2 and a milder
L1-2 posterior bulging of the annulus. He noted that he first saw appellant in September 2006 at
which time he diagnosed lumbar facet joint pain. In concluding, Dr. Park opined that appellant
was disabled from performing her usual duties as a postal carrier due her pain.
By decision December 1, 2009, the Office denied modification. It noted that the Office
accepted fact of injury but denied the claim due to insufficient medical evidence of causal
relationship between the injury and her employment factors.
LEGAL PRECEDENT
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,
continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.3
2

Donald W. Wenzel, 56 ECAB 390 (2005); William Taylor, 50 ECAB 234 (1999); see also 20 C.F.R. § 10.5(q).

3

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

3

Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.4 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.5 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
conditions and the specific employment factors identified by the employee.6
ANALYSIS
The Office denied appellant’s claim on the grounds that the medical evidence of record
was insufficient to establish a causal relationship between her back condition and the
employment factors she identified. The issue on appeal is whether the medical evidence of
record is sufficient to establish that her back condition was caused or aggravated by her
employment.
The Board finds that the medical evidence of record generally supports that appellant
sustained a work-related injury.
Although an employee who claims benefits under the Federal Employees’
Compensation Act has the burden of establishing the essential elements of his claim, it is well
established that proceedings under the Act are not adversarial in nature and, while the
claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.7
In his reports dated July 10 and November 18, 2008 and August 12, 2009, Dr. Dorsey
diagnosed degenerative disc disease with facet arthropathy, anxiety and depression. He
consistently attributed these conditions to her repetitive work activities which he listed as
bending, heavy lifting, twisting, stooping, reaching, turning, going up inclines, the May 2003
changing the tire on a work vehicle, driving over unpaved roads and getting into and out of a
vehicle. Dr. Dorsey’s description of appellant’s duties is not disputed by the employing
establishment and his opinion on how such duties caused or aggravated her lower back condition
is otherwise uncontradicted by any substantial medical or factual evidence of record. While his
reports do not offer a fully rationalized opinion or fully describe the mechanism of injury, he
provided consistent opinions, based on examination findings and an accurate description of
appellant’s employment factors, to support appellant’s claim of an employment-related low back
condition.

4

David Apgar, 57 ECAB 137 (2005).

5

G.G., 58 ECAB 389 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

6

J.M., 58 ECAB 303 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

4

Appellant also submitted reports from Dr. Park to establish her claim. Dr. Park
diagnosed lumbar facet joint syndrome which has caused chronic back pain and lower extremity
radiculopathy. He related in a March 7, 2007 report that appellant’s back condition and constant
pain was aggravated by walking or standing. In his February 15, 2008 report, Dr. Park related
that an October 2007 MRI scan showed mild to moderately severe L5-S1 degenerative facet
changes, a narrowing of L1-2 and a milder L1-2 posterior bulging of the annulus. He concluded
that appellant was disabled from performing her usual duties as a postal carrier due her pain.
The Board finds that the reports from Dr. Park are insufficient to establish appellant’s claim.
Nonetheless, the reports are consistent with Dr. Dorsey’s reports and are supportive of
appellant’s allegation that she suffered a low back condition as a result of her employment. The
fact that appellant’s previous claims were not accepted by the Office does not preclude or
prejudice any later claim supported by sufficient medical evidence. On remand the Office shall
obtain a rationalized opinion from an appropriate physician as to whether appellant’s current
condition is caused by or aggravated by the employment factors.
On appeal appellant’s counsel contends that Dr. Dorsey provides an unequivocal opinion
establishing that her lower back condition was employment related and, thus, her claim should be
accepted by the Office. While Dr. Dorsey’s reports are not sufficient to establish appellant’s
claim, they do provide sufficient rationale to warrant further development by the Office as to
whether she developed or aggravated a low back condition as a result of her employment duties.
CONCLUSION
The Board finds that this case is not in posture for decision.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 1, 2009 is set aside and the case is remanded for
further development consistent with this decision.
Issued: December 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, CARRIER ANNEX,
Santa Rosa, CA, Employer
__________________________________________

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

Docket No. 07-1677
Issued: December 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from a March 30, 2007 decision of the
Office of Workers’ Compensation Programs’ hearing representative affirming an August 7, 2006
decision denying his claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this recurrence case.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of his
medical condition beginning March 2, 2006.
FACTUAL HISTORY
On December 22, 1988 appellant, then a 30-year-old letter carrier, filed a traumatic injury
claim alleging that on December 21, 1988 he sustained an acute muscle strain as a result of a
school bus pulling out in front of his postal vehicle.1 The Office accepted the claim for cervical
1

This was assigned file number 13-877377.

and lumbar strain and placed appellant on the periodic rolls for temporary total disability by
letter dated August 1, 1990. Appellant returned to work with restrictions on October 21, 1991.
On November 5, 1998 appellant filed an occupational disease claim alleging that on
October 20, 1998 he first realized that his thoracic and neck problems were employment related.2
He first became aware of his condition on December 21, 1988. The Office accepted the claim
for thoracic sprain. Appellant was placed on modified work effective October 26, 1998.
On April 27, 2006 appellant filed a claim for a recurrence of disability beginning
March 2, 2006 due to his accepted employment injuries. On the back of the form, the employing
establishment noted that appellant did not stop working.
On June 13, 2006 appellant submitted additional information in the form of an attachment
to CA-2a recurrence claim form. He noted that on March 2, 2006 he “was really overcome with
discomfort” after sorting and helping to pull mail and that “all the symptoms and muscle spasms
were there.” He related that he had sustained bilateral shoulder injuries, neck and back
problems, elbow problems, foot problems and high blood pressure since the date of the original
injury and the claimed recurrence date.3
In an April 11, 2006 duty status report (Form CA-17), a physician checked that appellant
was able to work part time or “the same hours as before.”4
By decision dated August 7, 2006, the Office denied appellant’s claim for a recurrence of
disability beginning March 2, 2006 due to his December 21, 1988 employment injury.5 The
Office advised appellant that he had the “option to file a new traumatic injury claim.”
On August 17, 2006 appellant requested an oral hearing before an Office hearing
representative, which was held on February 15, 2007. The Office received an updated April 11,

2

This was assigned file number 14-338430. The Office combined file numbers 14-338430 and 13-877377 on
August 25, 2000 with the latter claim number as the master file number. On the nonfatal summary the Office noted
it had accepted a left shoulder strain under file number 14-320455 and a right thoracic syrinx and right synovitis
under file number 14-328416.
3

The record contains evidence that appellant filed 16 claims during the period May 20, 1985 through
July 1, 2005.
4

The signature of the physician on the form is illegible.

5

In an August 4, 2006 memorandum to file, the Office stated that “it was agreed” that his CA-2a will be treated
as a traumatic injury as appellant has alleged he injured his low back and neck on March 2, 2006 while pulling mail.
It noted that a new claim number would be assigned and “this submitted CA-2a will not be further developed.” The
Board has jurisdiction to consider and decide appeals from the final decision of the Office in any case arising under
the Federal Employees’ Compensation Act. There shall be no appeal with respect to any interlocutory (interim or
temporary) matter disposed of by the Office during the pendency of a case. 20 C.F.R. § 501.2(c). See also
Jennifer A. Guillary, 57 ECAB ___ (Docket No. 06-208, issued March 13, 2005); Scott R. Walsh, 56 ECAB ___
(Docket No. 04-1962, issued February 18, 2005); Gloria Swanson, 43 ECAB 161 (1991). This aspect of the case is
not currently before the Board.

2

2006 duty status report.6 The physician indicated that the thoracic spine was the area affected
and checked that appellant was capable of working part time with restrictions.
By decision dated March 30, 2007, the Office hearing representative affirmed the denial
of appellant’s recurrence claim.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as 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.7 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.8
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 of record
establishes that he can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such light duty. As part of his burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty job requirements.9
While the medical opinion of a physician supporting causal relationship does not have to
reduce the cause or etiology of a disease or condition to an absolute certainty, neither can such an
opinion be speculative or equivocal. The opinion of a physician supporting causal relationship
must be one of reasonable medical certainty that the condition for which compensation is
claimed is causally related to federal employment and that such a relationship must be supported
with affirmative evidence, explained by medical rationale and be based on a complete and
accurate medical and factual background of the claimant.10 Medical conclusions unsupported by
medical rationale are of diminished probative value and are insufficient to establish causal
relation.
ANALYSIS
The Office accepted that appellant sustained cervical, thoracic and lumbar strains as a
result of a December 21, 1988 traumatic injury claim and following an October 20, 1998
6

The signature of the physician on the form is illegible.

7

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3 (May 1997); Donald T.
Pippin, 54 ECAB 631 (2003).
9

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

10

Conard Hightower, 54 ECAB 796 (2003).

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occupational disease claim. Appellant filed a claim for a recurrence of disability beginning
March 2, 2006 due to his accepted employment injuries. The Board finds that he has not
submitted sufficient medical evidence to establish that he was disabled from work due to
residuals of his accepted strains. Appellant contends that he requires further medical treatment
for his continuing employment-related condition.
The Board notes the lack of rationalized medical evidence supporting causal relationship
between appellant’s back condition and work factors on and after March 2, 2006. The evidence
submitted by appellant consists of two duty status reports dated April 11, 2006 with illegible
signatures. Both duty status reports indicated that appellant was capable of working part time.
These reports do not address appellant’s recurrence claim beginning March 2, 2006 and are not
relevant to the issue at hand. The record is devoid of any medical evidence which addresses a
worsening of the accepted conditions or explains the need for medical treatment as of March 2,
2006 due to residuals of the accepted strains. Appellant has submitted insufficient medical
evidence to establish the claimed recurrence of disability commencing March 2, 2006.
The Board finds that appellant has not submitted the necessary detailed medical opinion
evidence complete with objective physical findings to support a change in the nature and extent
of his injury-related condition.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability beginning
March 2, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 30, 2007 is affirmed.
Issued: December 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4