United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 10-743
Issued: November 2, 2010

Case Submitted on the Record

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

JURISDICTION
On January 25, 2010 appellant filed an appeal from a November 5, 2009 decision of the
Office of Workers’ Compensation Programs. 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 the Office properly denied appellant’s request for authorization for
purchase of a home Jacuzzi.
On appeal, appellant’s attorney asserts that the decision is contrary to fact and law.
FACTUAL HISTORY
On November 13, 2003 appellant, then a 34-year-old accounting technician, filed a
traumatic injury claim, alleging that she injured her left hand that day when it was caught in a
door. She returned to light duty on November 24, 2003 and began working part time in
January 2004. Appellant stopped work on September 6, 2004 and did not return. The Office

accepted multiple employment-related conditions and she was placed on the periodic
compensation rolls.1
In 2006 appellant moved to Georgia and came under the care of Dr. Stephanie J. Smith,
Board-certified in anesthesiology and pain medicine, and Dr. Kela Y. Henry, Board-certified in
family medicine. On January 15, 2009 Dr. Smith noted that sitting in a hot bath improved
appellant’s left shoulder pain and advised that a Jacuzzi would help alleviate muscle spasms by
soaking in warm water. He provided a prescription for a Jacuzzi.
In a March 4, 2009 letter, the Office advised appellant of the medical evidence needed to
support her request for a hot tub. Appellant was asked to submit a description of specific goals
expected, the specific equipment needed, and of alternative treatment that might achieve the
same results. She was to provide quotes from two potential vendors. In response, appellant
submitted the January 15, 2009 Jacuzzi prescription from Dr. Smith for therapy three times a
week for left upper extremity reflex sympathetic dystrophy and a quote for two models of a
home Jacuzzi spa.
In a decision dated May 6, 2009, the Office denied appellant’s request on the grounds
that the medical evidence failed to establish that a Jacuzzi was necessary or appropriate for
effective treatment of her work-related RSD.
The Office referred appellant to Dr. David A. Olson, a Board-certified neurologist, for a
second opinion evaluation. In a May 11, 2009 report, Dr. Olson reviewed the medical record and
listed appellant’s complaints. He provided physical examination findings and diagnosed
weakness and pain. Dr. Olson advised that appellant had no residuals or neurological
impairment due to the accepted employment injury and that all conditions accepted as due to the
November 13, 2003 injury had resolved. He found no objective evidence of RSD and advised
that appellant had no restrictions as a result of the employment injury.
On June 5, 2009 appellant requested a hearing. In a June 17, 2009 treatment note,
Dr. Henry stated that appellant noticed that being in a Jacuzzi with warm water relieved her
upper neck and left shoulder pain. In a June 27, 2009 report, he advised:
“[Appellant] needs an indoor Jacuzzi with heated massage jets and ergonomically
correct seating. She needs this piece of equipment because she has chronic pain
from reflex sympathetic dystrophy, and the hydrotherapy provided by the Jacuzzi
relieves the pain. Specifically, the heated water dilates blood vessels which bring
increased oxygenated blood flow to the painful and damaged muscles and tissue.
I expect her to use the Jacuzzi daily until she recovers from the RSD. However, I
must state here that since I am not a pain specialist, I do not know with certainty if
or when [she] will recover. The goal of this treatment, other than pain relief,
would be to hopefully help the patient to require less narcotic pain medication or

1

The accepted conditions were contusion of left hand, crush injury of the left hand except fingers, reflex
sympathetic dystrophy (RSD) of the left upper extremity, right carpal tunnel syndrome, bilateral tenosynovitis of
hand and wrist, and major depression, single episode, moderate.

2

other invasive treatments. I do not know of any alternative treatments that would
provide the same result.”
Appellant repeated the request on July 29, 2009 and added that she additionally needed a neck
pillow with heat and a percussion massager with heat.2
At the September 28, 2009 hearing, the hearing representative advised appellant of the
evidence needed to support her request. Appellant was given 30 days to respond.
In a November 5, 2009 decision, the Office hearing representative affirmed the denial of
authorization for a Jacuzzi hot tub. He noted that Dr. Olson found that appellant no longer
suffered from RSD, the condition the Jacuzzi was prescribed to treat, and affirmed the May 6,
2009 decision.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act3 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances, and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.4 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.5
Section 10.310(a) of the implementing regulations provide that the employee is entitled
to receive all medical services, appliances or supplies which a qualified physician prescribes or
recommends and which the Office considers necessary to treat the work-related injury.6 Office
procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
the Office finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.7

2

Appellant also submitted additional reports from Dr. Smith, Dr. Henry and Dr. Erik T. Shaw, a Board-certified
physiatrist. The record also contains second opinion evaluations by Dr. Amy E. Bullens-Borrow, a Board-certified
orthopedic surgeon, and Dr. Peter Ash, a Board-certified psychiatrist, dated August 12 and October 23, 2009
respectively. These reports are not probative to this claim as they did not discuss the need for a hot tub.
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

20 C.F.R. § 10.310(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(5)
(October 1995).

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In interpreting section 8103(a) of the Act, the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time. The
Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.8 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were
incurred for treatment of the effects of an employment-related injury by submitting rationalized
medical evidence that supports such a connection and demonstrates that the treatment is
necessary and reasonable.9 Proof of causal relationship must include supporting rationalized
medical evidence.10
ANALYSIS
The Office accepted that appellant sustained multiple conditions including RSD.11
Appellant requested authorization to purchase a Jacuzzi spa. The Office denied the request,
finding that she did not submit sufficient medical evidence to authorize the purchase.
The Board finds that the Office did not abuse its discretion in denying appellant’s request
to purchase a Jacuzzi. Dr. Smith advised that appellant reported that sitting in a hot bath
improved her pain and that soaking in a Jacuzzi would help alleviate muscle spasm. She
provided a prescription for the Jacuzzi but did not address how use of a hot tub was likely to
cure, give relief, reduce the degree of period of disability, or aid in lessening the amount of
compensation.12 Dr. Smith’s reports are insufficient to establish that treatment with a Jacuzzi
was necessary and reasonable.13 While Dr. Henry provided some explanation, stating that
hydrotherapy would help relieve the pain from appellant’s RSD condition by increasing blood
flow, she did not provide an explanation as to how the Jacuzzi would cure, reduce the period of
disability, or aid in lessening the amount of monthly compensation. She did not explain why
appellant’s RSD condition required medical treatment that could only be accommodated by the
purchase of this specific piece of equipment. Dr. Henry did not address why relief could not be
obtained adequately by soaking in a hot bath. The Board finds that Dr. Henry’s opinion is
insufficient to establish that the requested Jacuzzi was medically necessitated for treatment of the
diagnosed RSD. Moreover, Dr. Olson who provided a second opinion evaluation for the Office
advised that appellant did not have a RSD condition.
For these reasons, the Office did not abuse its discretion in denying appellant’s request to
authorize the purchase of a Jacuzzi spa. The Office explained that the medical evidence
8

R.L., 60 ECAB ___ (Docket No. 08-855, issued October 6, 2008).

9

See Debra S. King, 44 ECAB 203 (1992).

10

M.B., 58 ECAB 588 (2007).

11

Supra note 1.

12

Supra note 5.

13

Debra S. King, supra note 9.

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submitted provided insufficient explanation for the necessity of the item. The Board finds that
the Office properly denied authorization for its purchase.14
CONCLUSION
The Board finds that the Office properly denied appellant’s request for authorization for
purchase of a home Jacuzzi.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 2, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

D.K., 59 ECAB 141 (2007).

5


United States Department of Labor
Employees Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF THE ARMY, PICATINNY
ARSENAL, Picatinny, NJ, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1218
Issued: October 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 28, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated June 26, 2006 and March 23, 2007. Under 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 an injury in the
performance of duty on December 17, 2003.
FACTUAL HISTORY
This is the second appeal before the Board. On February 11, 2004 appellant, a 52-yearold systems accountant filed a claim alleging that she sustained a bruise on her left upper arm,
tingling and numbness in her left arm and pain and stiffness in her neck when she inexplicably fell
in a hallway at work on December 17, 2003.

By decision dated July 22, 2004, the Office denied appellant’s claim finding that she failed
to submit sufficient evidence to establish that her injury occurred in the performance of duty. In
a March 14, 2005 decision,1 the Board reversed the Office’s decision. The Board found that
there was insufficient evidence to establish that a personal, nonoccupational pathology caused
appellant to fall on December 17, 2003. The Board, therefore, found that appellant’s fall on
December 17, 2003 remained unexplained and was, therefore, compensable. It remanded to the
Office for a determination of the nature and extent of any condition and/or disability causally
related to the December 17, 2003 fall. The complete facts of this case are set forth in the Board’s
March 14, 2005 decision and are herein incorporated by reference.
Dr. Joseph D. Paz, an osteopath, submitted reports dated February 16, 2004, May 4
and 16, 2005. In his February 16, 2004 report, he related that appellant was at work on
December 17, 2003 when she sustained a slip and fall accident, landing on her left side. Dr. Paz
stated:
“[Appellant] states that she developed neck pain and left upper extremity pain.
She was evaluated by [a] physician and sent to an orthopedist. [Appellant] states
that she had x-rays of her left upper extremity which revealed no fractures. At
this time she is awaiting a cervical magnetic resonance imaging [MRI] [scan]
approval.
[Appellant] also admits that she developed left knee pain
approximately one to two weeks ago. She admits [that] she has been on and off
of work since January 9, 2004 due to her neck and upper extremity pain.
[Appellant’s] low back pain is the same as it has been in the past. She states that
the Vicodin ES prescribed by her primary care physician does allow her to
function on a daily basis; however, does not take the pain totally away.
[Appellant] admits [that] she has good and bad days. [She] states [that] she had
no neck pain prior to this injury.
“On physical exam[ination] of [appellant’s] lumbar spine, [she] has limited range
of motion, most obvious in extension. She has bilateral paravertebral tenderness
as well as bilateral S1 tenderness to palpation. Straight leg raises are at 90
degrees bilaterally with equivocal low back pain.
“On exam[ination] of [appellant’s] upper extremities, muscle strength if 5/5
Patrick’s and Maitland’s are positive bilaterally. Strength of her lower extremities
is normal. Deep tendon reflexes are equal and symmetric.
“On physical exam[ination] of her cervical spine, [appellant] has full range of
motion with discomfort noted. She has tenderness in the bilateral paracervical
areas that extends laterally on both sides to the shoulders. There is no specific
spasm noted, bilaterally. Sharp/dull discrimination is normal. Deep tendon
reflexes are equal and symmetric.

1

Docket No. 05-145 (issued March 14, 2005).

2

Dr. Paz diagnosed low back pain, failed spinal surgery syndrome, lumbar facet
arthropathy, bilateral sacroiliac pain, lumbar degenerative disc disease, neck pain and left upper
extremity pain. He concluded:
“Currently, [appellant] will continue with her evaluation of her injury involving
the neck and upper extremity with [her physician] and the orthopedist. I advised
her that[,] if there is anything from a pain management standpoint that she wishes
done, she should inquire with her current treating physician and we would be
more than happy to evaluate this problem further.
In his May 4, 2005 report, Dr. Paz reviewed the medical history and stated findings of
limited cervical range of motion on extension and rotation, spasm in the left trapezius muscle and
bilateral paravertebral tenderness. He advised that appellant had positive Phalens and Tinnels
signs on the left, reflexes 1+ equal and symmetric, 5/5 strength bilaterally and sharp/dull
discrimination with normal limits. Dr. Paz diagnosed cervical facet syndrome, cervicalgia,
cervical dystonia, cervical herniated nucleus pulposus, left carpal tunnel syndrome and cervical
degenerative disc disease. On May 16, 2005 Dr. Paz administered a posterior cervical facet
steroid block at the C4-T1 joints on the right and on the left. He described the procedure and
stated findings on examination.
By decision dated June 7, 2005, the Office denied appellant’s claim finding that she failed
to submit sufficient medical evidence to establish that she sustained an injury in the performance
of duty on December 17, 2003.
By letter dated May 9, 2006, appellant’s attorney requested a review of the written
record. She did not submit additional medical evidence.
By decision dated June 26, 2006, an Office hearing representative affirmed the July 5,
2005 decision.
In a report dated January 25, 2006, (received by the Office on July 3, 2006), Dr. Paz
stated: “Since her last visit, [appellant] has developed acute worsening of her low back pain and
her neck pain. Pertaining to her low back pain, she has pain across her lumbar spine with no
lower extremity radiation. Appellant’s neck pain shows left-sided neck pain radiating into the
right shoulder and not upper extremity radiation.
“On exam[ination] today, [appellant’s] lumbar range of motion is limited on
extension. She has bilateral sacroiliac joint tenderness. Patrick’s and Maitland’s
are positive bilaterally. Straight leg raising is positive for low back pain. There is
bilateral paravertebral tenderness noted.
“On exam[ination] of [appellant’s] cervical spine, she has decreased rotation and
extension. She has left paravertebral tenderness and spasm of the left trapezius
muscle.”

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Dr. Paz diagnosed bilateral sacroiliac joint pain, lumbar facet syndrome, lumbar
degenerative disc disease, cervical dystonia with mild torticollis, cervical facet syndrome and
cervical degenerative disc disease.
In a report dated July 11, 2006, Dr. Paz reviewed the history of treatment, stated findings
on examination and stated:
“Although [appellant] underwent cervical fusion she was doing extremely well
and was able to function normally until her slip and fall accident December 2003.
Since this slip and fall she has required multiple medical treatments for her neck
with interventional procedures and none have afforded her any long term benefit.
It is now solely for control of acute flare ups of [appellant’s] pain. The
subsequent MRI [scan] in 2004[,] after [her] slip and fall showed a new central
disc herniation at C6-7 and a new left paracentral disc herniation at T1-2 which
were not present on previous MRI [scans] prior to the fall.
“I believe within a reasonable degree of medical certainty that [appellant] has and
will continue to have significant neck pain from the slip and fall occurring at work
in December 2003. She will require pain medicine and cervical injections in the
form of steroid injections and possibly future Botox injections along with physical
therapy, muscle relaxants and anti-inflammatories since her pain and treatment
will be ongoing and chronic.”
By letter dated December 26, 2006, appellant’s attorney requested reconsideration. By
decision dated March 23, 2007, the Office denied appellant’s request for modification.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
2

5 U.S.C. § 8101-8193.

3

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

4

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

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experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
In this case, it is uncontested that appellant experienced the employment incident at the
time, place and in the manner alleged. However, the question of whether an employment
incident caused a personal injury generally can be established by medical evidence.8 Appellant
has not submitted rationalized, probative medical evidence to establish that the employment
incident on December 17, 2003 caused a personal injury and resultant disability.
In this regard, the Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
In this case, appellant submitted reports from Dr. Paz who stated findings on examination
and indicated that she had pain in her neck, left upper extremity, low back and left knee which
has kept her out of work since January 9, 2004. Dr. Paz noted that appellant had no neck pain
prior to the December 17, 2003 injury with limited range of motion in the lumbar and cervical
spine on extension and rotation, spasm in the left trapezius muscle and bilateral paravertebral
tenderness. He stated that she had normal strength in her lower and upper extremities. Dr. Paz
made the following diagnoses: (1) low back pain; (2) failed spinal surgery syndrome; (3) lumbar
5

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

6

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

7

Id.

8

John J. Carlone, supra note 5.

9

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

10

Id.

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facet arthropathy; (4) bilateral sacroiliac pain; (5) lumbar degenerative disc disease; (6) neck
pain and left upper extremity pain; (7) cervical facet syndrome; (8) cervicalgia; (9) cervical
dystonia (10) cervical herniated nucleus pulposus; and (11) cervical degenerative disc disease.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts of the
case, the medical history provided, the care of analysis manifested and the medical rationale
expressed in support of stated conclusions.11 Although Dr. Paz did present several diagnoses of
appellant’s condition, he did not sufficiently explain whether these conditions were caused by the
December 17, 2003 employment injury. There is no indication in the record, therefore, that these
conditions were work related. As appellant failed to submit any probative medical evidence
establishing that she sustained an injury in the performance of duty on December 17, 2003, the
Office properly denied her claim for compensation in its June 5, 2005 and June 26, 2006
decisions.
Following the June 26, 2006 decision, appellant requested reconsideration and submitted
January 25 and July 11, 2006 reports from Dr. Paz who indicated that she had experienced
worsening of her low back and neck pain. Dr. Paz reiterated that appellant had limited lumbar
range of motion on extension in addition to bilateral sacroiliac joint tenderness and bilateral
paravertebral tenderness. He found that appellant had decreased rotation and extension of her
cervical spine and left paravertebral tenderness and spasm of the left trapezius muscle. Dr. Paz
diagnosed bilateral sacroiliac joint pain, lumbar facet syndrome lumbar degenerative disc
disease, cervical dystonia with mild torticollis, cervical facet syndrome and cervical degenerative
disc disease. Contradicting his previous statements that appellant had not had any neck
complaints prior to the December 2003 fall, Dr. Paz noted that she had previously undergone a
cervical fusion, but that a 2004 MRI scan showed a new central disc herniation at C6-7 and a
new left paracentral disc herniation at T1-2, which were not present on previous MRI scans prior
to her December 17, 2003 fall. Dr. Paz concluded that appellant would continue to experience
significant neck pain from the slip and fall occurring at work in December 2003.
Although Dr. Paz’s January 25 and July 11, 2006 reports presented various diagnoses of
knee, low back and cervical conditions, he did not provide a rationalized, probative medical
opinion indicating how these conditions were causally related to the December 17, 2003 fall. He
indicated that appellant experienced pain and discomfort in her lower back, neck and left knee
due to the December 17, 2003 slip and fall; however, he did not provide a medical opinion which
sufficiently described or explained the medical process through which the December 17, 2003
work incident caused an injury. As appellant has failed to submit any probative medical
evidence establishing that she sustained an injury in the performance of duty, the Office properly
denied her claim for compensation. The Board, therefore, affirms the March 23, 2007 decision.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained an injury in the performance of duty on December 17, 2003.
11

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

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ORDER
IT IS HEREBY ORDERED THAT the March 23, 2007 and June 26, 2006 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: October 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Orlando, FL, Employer
__________________________________________

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

Docket No. 16-0779
Issued: January 5, 2017

Case Submitted on the Record

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

JURISDICTION
On March 7, 2016 appellant filed a timely appeal from a February 4, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective February 7, 2016 as she was no longer totally disabled from
work due to her December 18, 2000 employment injury.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the February 4, 2016 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57
ECAB 126 (2005).

FACTUAL HISTORY
OWCP accepted that on December 18, 2000 appellant, then a 34-year-old program
support assistant, strained her lower back when she lifted a box with patient records in the
performance of duty. Appellant stopped work and returned to sedentary duty on April 21, 2001.
OWCP accepted her claim for displacement of lumbar intervertebral disc without myelopathy
and lumbosacral joint sprain.
On September 20, 2001 appellant filed a recurrence of disability claim (Form CA-2a)
alleging that she continued to experience constant pain since the original injury. She requested
wage-loss compensation for intermittent periods of disability. OWCP accepted appellant’s
recurrence claim and paid compensation for intermittent periods of disability.
Appellant continued to receive medical treatment and was authorized by OWCP to
undergo lumbar decompression and fusion surgery. On February 17, 2003 she stopped work
while awaiting surgery and received wage-loss compensation benefits. On May 7, 2003 OWCP
placed appellant on the periodic rolls.
On May 20, 2003 appellant underwent surgery for bilateral laminectomy, bilateral lateral
fusion, and bilateral screw rod instrumentation at L5-S1 by Dr. Michael J. Broom, a Boardcertified orthopedic surgeon.
Dr. Broom continued to treat appellant and indicated in a June 11, 2003 follow-up
examination note that her back pain and leg symptoms had markedly improved. He reported that
x-ray examinations revealed good implant position with fusion mass visible bilaterally. In a
February 6, 2004 office note, Dr. Broom related that appellant continued to show improvement
with physical therapy. Upon examination, he reported negative straight leg raise testing
bilaterally. Dr. Broom authorized appellant to return to work with restrictions of no repetitive
twisting, no bending or lifting over 20 pounds, no prolonged walking or standing, and frequent
breaks from prolonged sitting.
On March 22, 2004 appellant returned to full-time modified duty as a program support
assistant.
By decision dated September 20, 2004, OWCP reduced appellant’s compensation based
on her actual wages as a program support assistant. It found that she had demonstrated her
ability to perform the duties of her job for at least 60 days and that her actual wages met or
exceeded the current wages of her date-of-injury job.
Appellant continued to receive medical treatment. On November 9, 2005 she underwent
a magnetic resonance imaging (MRI) scan examination of the lumbar spine by Dr. Mark J.
Timken, a Board-certified diagnostic radiologist. Dr. Timken related appellant’s complaints of
increasing low back pain and noted that she had a history of lumbar surgery in 2003 and of a slip
and fall at work in August 2005. He indicated that she had no significant central spinal canal
stenosis and was status postlaminectomy and fusion at L5-S1.
Effective May 29, 2006 appellant was terminated from employment with the employing
establishment due to excessive absences and failure to properly request leave.
2

Appellant filed various claims for wage-loss compensation (Form CA-7) for the periods
April 25 to May 22, 2006; May 30 to July 10, 2006; and May 8 to July 26, 2006. These claims
were denied and she filed various requests for reconsideration to OWCP.
On October 17, 2008 OWCP issued a decision reopening appellant’s claim for wage-loss
compensation for the period August 3, 2005 to February 15, 2008 because it did not follow
appropriate procedures in the development of her claim. In a decision dated June 25, 2009, it
accepted a recurrence of disability beginning August 3, 2005. OWCP paid wage-loss
compensation benefits and placed appellant on the periodic rolls. Appellant continued to receive
medical treatment.
On December 17, 2010 OWCP referred appellant to Dr. Donald Mauldin, a Boardcertified orthopedic surgeon, to determine whether she continued to be disabled from work. In
an April 11, 2011 report, Dr. Mauldin provided an accurate history of the December 18, 2000
employment injury and reviewed appellant’s medical treatment. He conducted an examination
and noted no objective abnormalities. Dr. Mauldin diagnosed status post lumbar strain, status
post lumbar decompression and fusion at L5-S1, and failed back surgery syndrome with chronic
pain. He reported that the effects of the work injury would not cease as appellant would always
have some subjective complaints of pain as a failed back surgery syndrome. Dr. Mauldin opined
that she would be capable of returning to a sedentary-type work activity based on her physical
examination and prior MRI scan findings. He recommended sedentary-type work activity with
restrictions from repetitive bending or lifting and prolonged standing or walking in excess of 10
to 15 minutes. In a May 2, 2011 supplemental report, Dr. Mauldin clarified that appellant would
need a change of position from seated activity on an every two-hour basis if that was available.
OWCP referred appellant for vocational rehabilitation and was informed that her
restrictions would not qualify for a rehabilitation program.3
Appellant continued to receive medical treatment and receive wage-loss and medical
compensation benefits.
In order to determine appellant’s current ability to work, on September 23, 2015 OWCP
referred her and the case record, to Dr. James E. Butler, III, a Board-certified orthopedic
surgeon, for another second opinion examination to determine whether she continued to suffer
residuals of her December 18, 2000 employment injury.
Dr. Butler examined appellant and in an October 19, 2015 report he accurately described
the December 18, 2000 employment injury and discussed the medical records that he reviewed.
He mentioned that she underwent lumbar surgery on May 20, 2003 and that the most recent MRI
scan of the lumbar spine on November 9, 2005 revealed status postlaminectomy and fusion with
no significant central spinal canal stenosis. Dr. Butler related appellant’s current complaints of
pain in the neck, lower back, mid back, upper back, upper extremities, and lower extremities and
3

On May 25, 2011 Teresa Collins, a vocational rehabilitation specialist, reviewed appellant’s case for possible
referral. She noted that appellant was restricted to walking, standing, and bending for 15 minutes per workday and a
10- to 15-minute break every hour. Ms. Collins advised that at the time appellant’s case did not qualify for
vocational rehabilitation as her work restrictions were not feasible for the program.

3

associated numbness and tingling in her hands and toes. Appellant indicated that her pain was
intermittent in nature and worsened with bending, sitting, pulling, pushing, reaching, standing,
sitting, and walking. Upon examination, Dr. Butler observed tenderness at L4 through sacrum
bilaterally upon palpation of the lumbar spine. He reported that Kernig/Brudzinski and sitting
root tests were negative bilaterally. Patrick/Faber tests were positive bilaterally and straight leg
raise testing was 90 degrees bilaterally. Dr. Butler further described that appellant’s lumbar
range of motion appeared to be decreased with full effort secondary to pain. Examination of the
lower extremities revealed normal strength and sensation testing. Dr. Butler diagnosed status
post L5-S1 laminectomy and fusion and bilateral facet arthrosis with sacroiliac dysfunction.
In response to OWCP’s questions, Dr. Butler described appellant’s objective residuals of
the lower lumbar spine as SI joint tenderness, decreased range of motion, and positive
Patrick/Faber test producing SI joint pain bilaterally. He further explained that, although she had
residuals from her work injury, it was not sufficiently disabling to prevent her from performing
her usual duties as a program support assistant as described in the statement of accepted facts.
Dr. Butler pointed out that appellant’s usual duties did not require heavy lifting, repetitive
twisting or bending, or prolonged standing and walking. He concluded that she had reached
maximum medical improvement and had no restrictions to perform the duties of a program
support assistant.4
Dr. David Martincheck, a pain medicine specialist, treated appellant and in an October 9,
2015 report he related that she continued to have bilateral leg pain following a work-related
injury. He reviewed her history and conducted an examination. Dr. Martincheck observed no
clubbing, cyanosis, edema, or deformity of the extremities with normal full range of motion of
all joints. He diagnosed worsened sciatica and chronic pain syndrome.
On December 30, 2015 OWCP issued a notice of proposed termination of appellant’s
wage-loss compensation because she was no longer disabled from work due to her accepted
work injury. It determined that the weight of medical evidence rested on the October 19, 2015
second opinion report of Dr. Butler. Appellant was afforded 30 days in which to submit
additional evidence or argument.
In a letter dated January 25, 2016, appellant responded to OWCP’s proposal to terminate
her wage-loss compensation benefits and expressed her disagreement with Dr. Butler’s second
opinion examination. She noted that he told her to follow a completely different treatment plan
than what she had received and that he recommended a current MRI scan examination, which
she never received. Appellant also alleged that OWCP’s proposal letter contained a false
accusation that she wished to clarify about her history. She stated that she was not terminated
from her position, but that the employing establishment had refused to allow her to medically
retire until a Federal Administrative Law Judge in Georgia ruled in her favor.
Appellant provided a May 23, 2009 notice from the Office of Personnel Management
informing her of a social security award overpayment and a November 12, 2010 form, which
indicated that she elected to receive FECA benefits.
4

In an attached work capacity form, Dr. Butler indicated that appellant could work without restrictions.

4

Appellant also submitted a May 1, 2009 report by Dr. John T. Legowik, a Board-certified
pathologist, which was previously of record. Dr. Legowik noted that he had treated her since
December 22, 2005 for back pain following a “December 20, 2000” work injury. He discussed
his medical treatment and examination findings. Dr. Legowik opined that appellant was unable
to perform many activities of daily living that required bending, stooping, sitting, standing,
pushing, and pulling for an extended period of time and doing anything on a repetitive basis. He
explained that her lumbar condition had certainly progressed and reported that she could not
perform any work activities on a continuous basis.
By decision dated February 4, 2016, OWCP terminated appellant’s wage-loss
compensation benefits, effective February 7, 2016. It noted that the weight of the medical
evidence rested with the well-rationalized October 19, 2015 second opinion report of Dr. Butler,
which demonstrated that she was no longer disabled from work as a result of the December 18,
2000 work injury. Appellant’s claim remained open for medical treatment.
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.5 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.6
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.7
ANALYSIS
OWCP accepted that on December 18, 2000 appellant strained her lower back when she
lifted a box with patient records at work. Her claim was accepted for displacement of lumbar
intervertebral disc without myelopathy and lumbosacral joint sprain. On May 20, 2003 appellant
underwent lumbar laminectomy and fusion. She was on and off work and received wage-loss
compensation and medical benefits. In an October 19, 2015 second opinion report, Dr. Butler
opined that appellant continued to suffer residuals of her accepted lumbar injury, but was able to
return to her date-of-injury position as a program support specialist. OWCP determined that his
opinion constituted the weight of the evidence and thereafter terminated appellant’s entitlement
to wage-loss compensation benefits.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits because the medical evidence of record does not establish that
she was no longer disabled from work as a result of her December 18, 2000 employment injury.
OWCP terminated appellant’s wage-loss compensation benefits based on the October 19,
2015 report of Dr. Butler, the second opinion examiner. The Board finds, however, that OWCP
5

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

6

Charles E. Minniss, 40 ECAB 708, 716 (1989).

7

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

improperly accorded the weight of medical evidence to his second opinion report. Dr. Butler
reviewed appellant’s history and described his physical examination findings. He noted
objective residuals of the lower lumbar spine as SI joint tenderness, decreased range of motion,
and positive Patrick/Faber test producing SI joint pain bilaterally. Dr. Butler further explained
that although appellant had residuals from her work injury, they were not sufficiently disabling
to prevent her from performing her usual duties as a program support assistant as described in the
statement of accepted facts. He pointed out that appellant’s usual duties did not require heavy
lifting, repetitive twisting or bending, or prolonged standing and walking. Dr. Butler concluded
that appellant had no restrictions to perform the duties of a program support assistant.
Although Dr. Butler determined that appellant was able to return to her date-of-injury
position, the Board finds that he did not adequately explain how appellant was no longer disabled
from work. He did not provide any medical rationale or explanation for how appellant still had
residuals of her accepted lumbar injury, but was now able to return to work. The Board has held
that medical evidence that states a conclusion but does not offer any rationalized medical
explanation is of limited probative value.8 A well-rationalized medical opinion is especially
needed in this case when the record reveals that on May 25, 2011 a vocational rehabilitation
specialist determined that appellant’s work restrictions were not feasible for her to be referred to
vocational rehabilitation. Dr. Butler does not offer any medical explanation for how appellant’s
work-related condition had now improved to the extent that she was able to return to work even
though her work restrictions prevented her from participating in vocational rehabilitation in the
past. On the contrary, his opinion appears to be based solely on the description of a program
support assistant’s duties as detailed in the statement of accepted facts. Dr. Butler, however,
overlooked the fact that appellant’s initial injury resulted from lifting a box of patients’ records
in the performance of duty. He did not provide any medical reasoning, or otherwise detailed
analysis, to support his conclusory statements about appellant’s ability to perform the duties of a
program support assistant.9 Because Dr. Butler does not support his opinion with medical
rationale, his report is insufficient to justify termination of appellant’s wage-loss compensation
benefits.
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling. Rather, the weight of such evidence is determined by its reliability, its
probative value, and its convincing quality.10 The factors that comprise the evaluation of
medical opinion evidence include the opportunity for and thoroughness of examination, the
accuracy or completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.11 In this case, the Board finds that Dr. Butler’s opinion is lacking. Accordingly, his
opinion has diminished probative value and is not entitled to the weight of medical evidence
sufficient to justify termination of appellant’s wage-loss compensation. The Board, therefore,

8

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

9

See A.R., Docket No. 12-443 (issued October 9, 2012).

10

See Nicolette R. Kelstrom, 54 ECAB 570 (2003).

11

See M.D., 59 ECAB 211 (2007).

6

will reverse OWCP’s termination and will remand the case for a proper reinstatement of wageloss compensation benefits.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective February 7, 2016.
ORDER
IT IS HEREBY ORDERED THAT the February 4, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 5, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Severna Park, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0730
Issued: October 2, 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 February 4, 2014 appellant, through counsel, filed a timely appeal from a
November 7, 2014 merit decision of the Office of Workers’ Compensation (OWCP) Programs.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to justify termination of
appellant’s compensation benefits for his accepted injury effective December 12, 2013; and
(2) whether appellant established continuing disability or residuals of his accepted conditions
after December 12, 2013.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 27, 2012 appellant, then a 36-year-old letter carrier, injured his back while
moving bags of mail. OWCP accepted his claim for lumbar sprain. Appellant stopped work on
August 27, 2012 and did not return.
Appellant submitted an October 5, 2010 magnetic resonance imaging (MRI) scan of the
lumbar spine which revealed grade 1 anterolisthesis with bilateral spondylolysis, severe
biforaminal narrowing at L5-S1, degenerative changes, disc protrusions at L2 through L5, and
facet arthropathy. A October 26, 2012 lumbar MRI scan showed stable grade 1 anterolisthesis of
L5 due to bilateral spondylolysis, severe bilateral foraminal narrowing at L5, stable mild bilateral
foraminal, moderate left lateral recess narrowing at L2-3, annular spondylotic disc bulge, and
small focal left paracentral disc protrusion. Appellant was treated by Dr. John Barry, a
Board-certified orthopedic surgeon, from October 8, 2012 to February 25, 2013, for low back
pain. Dr. Barry reported 10 years of episodic lumbosacral back pain with no prior injury. He
diagnosed lumbar disc degeneration, lumbosacral radiculopathy, and lumbosacral spondylosis.
On February 25, 2013 Dr. Barry advised that conservative treatment failed and he recommended
a laminectomy.
On March 8, 2013 OWCP referred appellant’s case record to its medical adviser for an
opinion of whether his condition should be expanded and whether the spinal fusion was needed
due to the work injury. On March 24, 2013 the medical adviser noted that the October 5, 2010
MRI scan was about two years before the work injury and, at the time, appellant had both back
pain as well as right leg radicular pain. An MRI scan was repeated two years later and there
were no changes noted between the 2010 and the 2012 MRI scan studies. The medical adviser
opined that based upon these facts, he did not find that surgery was indicated as a result of the
August 27, 2012 injury. He opined that the lumbar sprain was resolved and the ongoing
complaints were due to the preexisting history of significant back and leg pain.
Appellant came under the treatment of Dr. Timothy F. Witham, a Board-certified
neurosurgeon, on April 24, 2013. He reported initially injuring his back at home in 2010.
Appellant noted that on August 12, 2012, while lifting and moving mail bundles, he felt a sharp
and acute back pain. Dr. Witham diagnosed spondylolisthesis with intractable and worsening
back pain, radiculopathy, and instability. He recommended a L5-S1 decompression and
discectomy. Dr. Witham noted that appellant continued with residuals of the work injury and he
believed the proposed surgery was medically necessary due to instability and radiculopathy. An
April 29, 2013 duty status report diagnosed lumbar spondylosis and noted that appellant was
totally disabled. A May 6, 2013 lumbar MRI scan revealed bilateral spondylolysis with grade 1
anterior spondylolisthesis of the L5 vertebra, no significant canal narrowing at L5-S1, moderateto-severe foraminal narrowing bilaterally, compression of the exiting L5 nerve roots, mild
degenerative changes at L2-5, and a small left herniation at L2-3.
On June 10, 2013 OWCP referred appellant to Dr. Stuart J. Gordon, a Board-certified
orthopedic surgeon, to determine if the accepted condition had resolved. In a July 1, 2013 report,
Dr. Gordon indicated that he reviewed the records provided and examined appellant. He advised
that appellant had an “extensive” lumbar history going back to a 2003 injury sustained when
loading a truck and another event in 2010 when he was cutting his toenails. Dr. Gordon noted

2

findings on examination of full range of motion in the cervical and thoracic spine, pain in the
lumbar spine, negative straight-leg raise test bilaterally, and intact motor and sensory reflexes.
He diagnosed preexisting long history of back pain, low-grade spondylolisthesis, preexisting
degenerative disease of the lumbar spine and spondylolisthesis unrelated to the work injury,
increased back pain on August 27, 2012, aggravation of preexisting condition, pelvic obliquity
with right leg shorter than left, and possible spondylitic stenosis at L2-3. Dr. Gordon opined that
the proposed surgery was not related to the August 27, 2012 work injury, but rather it was related
to long-standing, preexisting lumbar disease which was previously treated and documented by
the October 5, 2010 MRI scan. He noted other contributing factors of nonindustrial preexisting
limb-length discrepancy, multilevel degenerative disease, and preexisting spondylolisthesis. In a
July 1, 2013 work capacity evaluation, Dr. Gordon noted that appellant could return to work with
restrictions.
On July 18, 2013 OWCP requested Dr. Gordon clarify his opinion. In a supplemental
report dated July 22, 2013, Dr. Gordon advised appellant’s current complaints were the
progression of preexisting underlying degenerative disease and spondylolisthesis of the lumbar
spine. He noted that the postinjury MRI scan revealed no significant change in the anatomic
alignment of the spine and there was no objective evidence of an aggravation beyond the
subjective reporting. Dr. Gordon opined that the permanent restrictions were based on
appellant’s preexisting conditions and not the event of August 27, 2012.
Appellant submitted a July 30, 2013 report from Dr. Witham who noted his opinions
were in conflict with Dr. Gordon. Dr. Witham opined that objective data showed that appellant’s
condition was exacerbated following his injury in August 2012. He further noted that imaging
showed objective instability at the L5-S1 segment after the injury in 2012 that warranted
approval of surgery.
OWCP found that a conflict of medical opinion existed between Dr. Witham, who found
appellant had ongoing work-related residuals including the need for L5-S1 surgery, and
Dr. Gordon, who opined that appellant’s accepted condition had resolved and that appellant’s
residuals and the proposed surgery were related to preexisting disease.
To resolve the medical conflict, on September 12, 2013, OWCP referred appellant to
Dr. Edward R. Cohen, a Board-certified orthopedic surgeon. In an October 3, 2013 report,
Dr. Cohen noted reviewing the record, including the history of appellant’s work injury, and
examining him. He noted appellant’s history was significant for an episode of low back pain
while loading a truck at work in 2001 or 2002 and in 2010 when he bent over to clip his nails.
Examination of the back revealed no visible or palpable muscle spasm, mild restriction in
flexion, moderate restriction in extension, no point tenderness or dysmetria, negative straight leg
raising test bilaterally, and no localized sensory loss or weakness. Dr. Cohen diagnosed resolved
back sprain, preexisting multilevel degenerative disc disease, and unrelated symptomatic grade 1
spondylosis at L5-S1. He concluded that appellant reached maximum medical improvement as it
related to the work injury. Dr. Cohen opined that appellant sustained a simple sprain which
resolved and his ongoing back complaints were causally related to long-standing degenerative
lumbar disc disease, arthritis, and grade 1 spondylolisthesis. He further opined that the ongoing
disability was caused by the chronic degenerative disc disease and arthritis mentioned above.
Dr. Cohen noted the surgery recommended was reasonable and necessary, but not causally

3

related to the work injury. Rather, he opined that the proposed surgery was due to the longstanding degenerative lumbar disc disease, arthritis, and spondylosis. Dr. Cohen noted that
appellant did not require further evaluation, treatment, or restrictions as it related to the work
injury. In an OWCP-5 form, he noted that appellant was unable to work due to degenerative and
congenital spinal disease, but the restrictions were due to his nonwork-related condition.
Dr. Cohen noted that appellant reached maximum improvement with regard to the August 27,
2012 work injury.
On November 1, 2013 OWCP proposed to terminate all benefits finding that Dr. Cohen’s
report established no continuing residuals of his work-related lumbar sprain.
On November 19, 2013 appellant, through counsel, disagreed with the proposed
termination and asserted that his condition worsened as a direct result of the accident on
August 27, 2012. He submitted reports from Dr. Witham dated July 25 and August 14, 2013
who noted that appellant had clear cut instability and spondylolisthesis that was symptomatic at
the L5-S1 segment. Dr. Witham noted that, after the August 2012 injury, his diagnosed
spondylosis and symptoms were more severe. He opined that appellant’s preexisting condition
was exacerbated by the August 12, 2012 injury and caused instability at the L5-S1 segment
requiring surgical intervention. Appellant submitted a November 26, 2013 report from a
physician assistant who diagnosed sciatica due to lumbar disc displacement, thoracic or lumbar
radiculitis, chronic pain syndrome, spinal stenosis of the lumbar region, and acquired
spondylolisthesis.
In a decision dated December 12, 2013, OWCP terminated appellant’s medical and
wage-loss compensation benefits effective the same day finding that the medical evidence
established that he had no continuing residuals of his accepted conditions.
On December 23, 2013 counsel requested an oral hearing which was held on
August 18, 2014. Appellant submitted physical therapy notes from March 5 to 19, 2013. Also
submitted was a December 31, 2013 report from Dr. Robert Rankin, a Board-certified orthopedic
surgeon, who treated appellant for back, leg, and muscle pain. Dr. Rankin diagnosed thoracic
and lumbar radiculitis, sciatica due to displacement of lumbar disc, spinal stenosis of lumbar
region, acquired spondylolisthesis, and chronic pain syndrome. A January 18, 2014 duty status
report from Dr. Witham diagnosed exacerbation of spondylolisthesis and noted that appellant
could not return to work. On April 17, 2014 Dr. Witham noted that due to appellant’s intractable
mechanical low back pain, new onset of radiculopathy, and new L5-S1 instability after his
August 27, 2012 injury, he recommended L5-S1 decompression and fusion. He opined to a
reasonable degree of medical certainty that the August 27, 2012 back injury appellant sustained
at work was a substantial factor contributing to his spinal condition and required surgery. A
May 13, 2014 MRI scan of the lumbar spine revealed bilateral spondylosis of L5, bilateral
foraminal narrowing compounded by right foraminal disc protrusion resulting in flattening of the
L5 nerve roots, subacute compression deformity of the endplate at L3, and moderate L2-3
paracentral disc protrusion.
In a decision dated November 7, 2014, the hearing representative affirmed the
December 12, 2013 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.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, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.4
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.5
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for lumbar sprain. It found that a conflict in medical
opinion existed between Dr. Witham, appellant’s physician who indicated that appellant had
disabling residuals of her work injuries and required L5-S1 surgery causally related to the
August 27, 2012 work injury, and Dr. Gordon, an OWCP referral physician who opined that
appellant’s accepted condition had resolved and that continuing residuals, disability, and the
need for surgery were attributable only to his preexisting conditions. Consequently, OWCP
referred appellant to Dr. Cohen to resolve the conflict.
The Board finds that the opinion of Dr. Cohen is sufficiently well rationalized and based
upon a proper factual background such that it is entitled to special weight to establish that the
disabling residuals of appellant’s work-related conditions have ceased.6
In an October 3, 2013 report, Dr. Cohen reviewed appellant’s history, noted findings and
determined that appellant had no objective complaints or findings from the accepted conditions.
He noted appellant’s history was significant for an episode of low back pain while loading a
truck at work in 2001 or 2002. Dr. Cohen noted an essentially normal examination with no point
tenderness or dysmetria, negative straight leg raises bilaterally, and no localized sensory loss or
weakness. He diagnosed a resolved back sprain, preexisting and unrelated multilevel
degenerative changes, and grade 1 spondylosis at L5-S1. Dr. Cohen opined that appellant
sustained a simple sprain which resolved and his ongoing back complaints were the result of
2

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

3

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

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

5 U.S.C. § 8123(a). See Guiseppe Aversa, 55 ECAB 164 (2003).

6

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a). Where there exists a conflict of medical opinion
and the case is referred to an impartial specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, is entitled to special weight.

5

chronic long-standing degenerative lumbar disc disease, arthritis, and grade 1 spondylolisthesis.
He noted appellant’s ongoing disability was caused by the chronic degenerative disc disease and
arthritis. Dr. Cohen opined that the recommended surgery was the result of long-standing
degenerative lumbar disc disease, arthritis, and spondylosis and not causally related to the work
injury. He indicated that appellant did not require further evaluation, treatment, or restrictions as
it related to the above work injury. In an OWCP-5 form, Dr. Cohen opined that appellant was
unable to work due to degenerative and congenital spinal disease and any restrictions were due to
his nonwork-related condition.
The Board finds that Dr. Cohen had full knowledge of the relevant facts and evaluated
the course of appellant’s condition. Dr. Cohen is a specialist in the appropriate field. He did not
indicate that there was a work-related reason for disability or treatment. Dr. Cohen’s opinion, as
set forth in his report of October 3, 2013, is found to be probative evidence and reliable. The
Board finds that his opinion constitutes the weight of the medical evidence and is sufficient to
justify OWCP’s termination of wage-loss and medical benefits for the accepted conditions.
Subsequent to Dr. Cohen’s report, appellant submitted reports from Dr. Witham dated
July 25 to August 14, 2013 which noted that appellant had clear cut instability and
spondylolisthesis that was symptomatic at the L5-S1 segment. Dr. Witham noted that appellant
had spondylosis which was more severe following the August 2012 injury. He opined that the
preexisting condition was exacerbated by the August 12, 2012 injury and caused instability at the
L5-S1 segment requiring surgery. However, Dr. Witham did not specifically address how any
continuing condition or medical restrictions were causally related to the accepted August 27,
2012 employment injury. The Board has found that vague and unrationalized medical opinions
on causal relationship have little probative value.7 It is noted that Dr. Witham had been on one
side of the conflict resolved by Dr. Gordon and his reports are similar to his prior reports and are
insufficient to overcome that of Dr. Cohen or to create a new medical conflict.8
On appeal, appellant, through counsel, argues that Dr. Cohen’s report was vague, and
insufficient to be the weight of the evidence in terminating appellant’s benefits. He specifically
asserted that Dr. Cohen’s report did not adequately detail the physical findings and was based on
an inaccurate factual history. Appellant asserted that he provided abundant medical evidence to
show his residuals from the work injury and the necessary low back surgery. The Board finds
that the October 3, 2013 report from Dr. Cohen provided adequate findings on examination. The
report specifically noted that appellant’s back revealed no visible or palpable muscle spasm, no
point tenderness or dysmetria, negative straight leg raising and no localized sensory loss or
weakness. Dr. Cohen found no clinical findings of residuals or disability causally related to the
accepted back sprain. He explained that appellant’s ongoing back complaints and disability were
causally related to long-standing degenerative lumbar disc disease, arthritis and grade 1
spondylolisthesis. Dr. Cohen noted the recommended surgery was reasonable and necessary but
7

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Cohen’s reports do not contain new findings or rationale
upon which a new conflict might be based.

6

not causally related to the work injury. He found that proposed surgery was necessary because
of long-standing degenerative lumbar disc disease, arthritis, and spondylosis. The reports from
Drs. Witham and Rankin, do not explain how any continuing disability was causally related to
the accepted employment injury.
Appellant submitted a November 26, 2013 report from a physician assistant. However,
the Board has held that treatment notes signed by a physician assistant are not considered
probative medical evidence as these providers are not a physician under FECA.9
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to him to establish continuing disability causally related to his accepted
employment injury.10 To establish causal relationship between the claimed disability and the
employment injury, appellant must submit rationalized medical opinion evidence based on a
complete factual and medical background supporting such a causal relationship.11
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that he has any continuing residuals of
his work-related lumbar subluxation, lumbosacral strain/sprain, and left sacroiliac sprain and
expanded his claim to include left S1 sacroiliitis, on or after December 12, 2013.
After the termination of benefits on December 12, 2013, appellant submitted a
January 18, 2014 duty status report from Dr. Witham who diagnosed exacerbation of
spondylolisthesis and noted that appellant could not return to work. Similarly, in an April 17,
2014 report, Dr. Witham opined that to a reasonable degree of medical certainty the August 27,
2012 injury was a substantial factor in contributing to appellant’s spinal condition. However, his
opinion on causal relationship is similar to his previous opinions on this matter. Submitting a
report from a physician who was on one side of a medical conflict that an impartial specialist
resolved is, generally, insufficient to overcome the weight accorded to the report of the impartial
medical examiner or to create a new conflict.12
Appellant submitted a December 31, 2013 report from Dr. Rankin who treated him for
back, leg, and muscle pain. However, Dr. Rankin neither noted a history of injury or the
employment factors believed to have caused or contributed to appellant’s condition.13
9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

11

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

12

Jaja K. Asaramo, 55 ECAB 200 (2004); see also supra note 8.

13

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

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Additionally, he failed to provide a specific or a rationalized opinion regarding the causal
relationship between appellant’s thoracic and lumbar radiculitis, sciatic, spinal stenosis, acquired
spondylolisthesis, and chronic pain syndrome and the factors of employment believed to have
caused or contributed to such condition.14
Appellant also submitted physical therapy notes. The Board has held that treatment notes
signed by a physical therapist are not considered medical evidence as these providers are not
considered a physician under FECA.15 Additionally, appellant submitted a May 13, 2014 MRI
scan of the lumbar spine. However, this evidence is of limited probative value as it was not
accompanied by a physician’s explanation regarding how any medical condition was due to his
August 27, 2012 work injury.
Consequently, appellant did not establish that he has any employment-related condition
or disability after December 12, 2013.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
December 12, 2013.

14

See Jimmie H. Duckett, supra note 7.

15

See David P. Sawchuk, supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 7, 2014 is affirmed.
Issued: October 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

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as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his 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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at 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 D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

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ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ANN ARBOR VA MEDICAL CENTER,
Ann Arbor, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0997
Issued: November 20, 2020

Case Submitted on the Record

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

On April 10, 2020 appellant filed a timely appeal from a March 10, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Board
assigned Docket No. 20-1009.
On December 27, 2018 appellant, then a 53-year-old inventory management specialist,
filed an occupational disease claim (Form CA-2) alleging that she developed carpal tunnel
syndrome in her right hand due factors of her federal employment, including daily computer
keying, constant repetitive pulling and pushing of large heavy carts, and lifting heavy trays. She
noted that she first became aware of her condition and its relation to her federal employment on
November 19, 2018. OWCP assigned the present claim OWCP File No. xxxxxx206.
On December 4, 2018 appellant filed a notice of recurrence (Form CA-2a) under OWCP
File No. xxxxxx661, alleging a need for additional medical care beginning November 19, 2018
due to her accepted May 4, 2016 employment injury. She noted that since returning to work she
was performing her regular job without restrictions. Appellant asserted that she believed her
current condition was related to her original 2016 right shoulder injury based on a subsequent
medical examination performed by her doctor and the fact that it involved the same body part. She

did not stop work and noted that she had been placed on light-duty restrictions of no pushing or
lifting more than 10 pounds effective November 26, 2018.
In a January 16, and 23, 2019 development letters, OWCP advised appellant of the
deficiencies of her claim. It requested additional factual and medical evidence from her, and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
By decision dated May 19, 2019, OWCP denied appellant’s occupational disease claim in
OWCP File No. xxxxxx206, finding that the alleged employment factors had not occurred as
described. It determined that based on the description of the circumstances that prompted the filing
of the Form CA-2 in OWCP File No. xxxxx661, appellant was claiming a new occupational
disease under the current OWCP File No. xxxxxx206.1
Appellant filed an additional occupational disease claim (Form CA-2) under xxxxxx206
on September 6, 2019 and alleged that she had developed tendinitis of the right rotator cuff due to
factors of her federal employment, including picking up heavy pans and moving them to a cart and
then pushing the cart throughout her department. She noted that she had previously filed a
recurrence claim for this condition under OWCP File No. xxxxxx661.
In a September 13, 2019 letter, OWCP found that appellant had filed two separate Form
CA-2s for the same injury. It informed her that both her right wrist and right shoulder conditions
were considered under the December 27, 2018 Form CA-2 under the current OWCP File No.
xxxxxx206.
On September 18, 2019 appellant requested reconsideration and provided additional
evidence.
By decision dated December 18, 2019, OWCP modified its prior decision, finding that she
had established a factual basis for her occupational disease claim, but the claim remained denied
as the medical evidence of record contained no opinion from a physician, establishing causal
relationship between the diagnosed bilateral carpal tunnel syndrome and right shoulder injury and
the implicated work duties.
On February 21, 2020 appellant again requested reconsideration. By decision dated
March 10, 2020, OWCP denied modification of the December 18, 2019 decision.
The Board, having duly considered the matter, finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication depends on cross-referencing between files and when two or more injuries
occur to the same part of the body.2 As the instant claim under OWCP File No. xxxxxx206 and
the claim under OWCP File No. xxxxxx661 both involve injuries to appellant’s right shoulder,

1

On April 24, 2019 appellant requested reconsideration. By decision dated May 20, 2019, OWCP declined to
reopen her claim for consideration of the merits in accordance with 5 U.S.C. § 8128(a).
2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

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these claims must be administratively combined for a full and fair adjudication.3 This will allow
OWCP to consider all relevant claim files and accompanying evidence in developing appellant’s
current occupational disease claim.
Accordingly, the Board will remand the case to OWCP to administratively combine OWCP
File No. xxxxxx661 and OWCP File No. xxxxxx206. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo merit decision.
IT IS HEREBY ORDERED THAT the March 10, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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S.D., Docket No. 19-0590 (issued August 28, 2020).

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