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

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Appearances:
Edward Larvadain, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2253
Issued: August 12, 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 August 31, 20091 appellant’s counsel filed a timely appeal from a March 5, 2009
merit decision of the Office of Workers’ Compensation Programs denying her 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 claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of total
disability on and after August 20, 2008 causally related to her accepted September 14, 2006
employment injury. On appeal appellant contends that the medical evidence supports that she is
totally disabled and entitled to wage-loss compensation.

1

The timeliness of the appeal was determined by the postmark on the envelope in which the appeal was mailed to
the Board. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On September 4, 2006 appellant, then a 43-year-old nursing assistant, filed a traumatic
injury claim alleging that on that date she injured her mid to upper back while repositioning a
patient. The Office accepted the claim for thoracic and lumbar back sprains.
On March 15, 2007 the employing establishment offered and appellant accepted the lightduty position of program support clerk based on the restrictions noted in a February 16, 2007
functional capacity evaluation.2
On September 8, 2008 appellant filed a claim for wage-loss compensation (Form CA-7)
beginning September 2, 2008. She submitted a September 8, 2008 disability note from
Dr. Robert K. Rush, a treating physician Board-certified in family and occupational medicine, in
support of her wage-loss compensation claim. Dr. Rush requested that appellant be excused
from work beginning September 2, 2008 in support of her wage-loss compensation claim.
By letter dated September 15, 2008, the Office noted receipt of appellant’s claim for
wage-loss compensation, which it determined was a claim for a recurrence of total disability. It
requested additional information from appellant in support of her recurrence claim. The Office
requested a statement from appellant explaining if her light-duty assignment had changed such
that she could no longer perform the duties because it no longer met the restrictions set by her
physician. It also requested a medical opinion from appellant’s treating physician supporting her
claim that a worsening in the work-related condition had occurred.
Subsequent to the September 15, 2008 Office letter, appellant submitted additional claims
for wage-loss compensation beginning August 20, 2008.
On September 22, 2008 Dr. Rush diagnosed myofascial pain syndrome, chronic pain
syndrome with depression and C6-7 cervical disc disease. He attributed appellant’s chronic pain
syndrome to work aggravation and requested she be excused from work. Dr. Rush noted that the
diagnoses myofascial pain, chronic pain with depression and C6-7 cervical disc disease were
complications from her September 4, 2006 employment injury that needed to be addressed.
In an October 8, 2008 progress note, Dr. Bradley J. Bartholomew, a treating Boardcertified neurological surgeon, diagnosed C3-4 disc bulge with impingement, C4-5 disc bulge,
C6-7 disc herniation with stenosis and multilevel degenerative change and left paracentral bulge
at C5-6 and C6-7. A physical examination revealed normal lower and upper extremity strength,
decreased left arm and leg sensory, tenderness on neck examination and almost no range of
motion on back examination with bilateral paravertebral tenderness.
On an October 31, 2008 duty status report, Dr. Bartholomew indicated that appellant was
totally disabled. He noted the injury date of September 4, 2006 and diagnoses of lumbar,
cervical and thoracic sprains.

2

The work restrictions included no bending/stooping, reaching above the shoulder and pushing and pulling and
no lifting more than 10 pounds.

2

In an October 31, 2008 disability note, Dr. Rajinder Verma, a treating Board-certified
family practitioner, requested that appellant be excused from work for the period October 31 to
December 1, 2008.
On November 5, 2008 the Office received an August 26, 2008 disability note from
Dr. Rush requesting that appellant be excused from work for the period August 25 to
September 2, 2008.
In a December 1, 2008 attending physician’s form, Dr. Bartholomew diagnosed chronic
cervical and lumbar pain and checked “yes” to the question of whether it was employment
related. He noted August 20, 2008 as the date appellant’s total disability began.
In a December 1, 2008 disability note, Dr. Verma stated that appellant was disabled from
working for the period December 1, 2008 to January 5, 2009.
By decision dated December 9, 2008, the Office denied her recurrence claim.
On December 15, 2008 appellant requested reconsideration and submitted a September 4,
2008 report by Dr. Rush who diagnosed chronic pain syndrome, myofascial pain syndrome,
depression and C6-7 cervical disc disease which he checked “yes” to being employment related.
Dr. Rush noted August 26 to October 20, 2008 as the period of total disability.
In a December 30, 2008 progress note, Dr. Bartholomew reported appellant’s status
following bilateral facet blocks given on December 17, 2008. He noted that appellant continued
to have low back pain complaints going into her left lower extremity to her toes. Appellant also
presented neck complaints and related having more cervical posterior headaches. A physical
examination revealed normal upper and lower extremities strength, decreased arm and leg
sensation and negative straight leg testing.
By decision dated March 5, 2009, the Office denied modification of the December 9,
2008 decision.3
LEGAL PRECEDENT
A person seeking benefits under the Federal Employee’s Compensation Act4 has the
burden of establishing the essential elements of her claim. 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 A person who claims a
3

The Board notes that, following the March 5, 2009 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); M.B., 60 ECAB ___ (Docket No.
09-176, issued September 23, 2009); J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. §§ 8101-8193.

5

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

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recurrence of disability due to an accepted employment-related injury has the burden of
establishing by the weight of the substantial, reliable and probative evidence that the disability
for which she claims compensation is causally related to the accepted injury. This burden of
proof requires that an employee furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with sound medical
reasoning.6 Where no such rationale is present, medical evidence is of diminished probative
value.7
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty.8 As part of this burden, the employee must
show either a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.9 To establish a change in the nature and extent
of the injury-related condition, there must be probative medical evidence of record. The
evidence must include a medical opinion, based on a complete and accurate factual and medical
history and supported by sound medical reasoning, that the disabling condition is causally related
to employment factors.10
ANALYSIS
The Office accepted appellant’s claim for thoracic and lumbar back sprains sustained on
September 4, 2006. The issue is whether appellant established that she sustained a recurrence of
disability on August 20, 2008 causally related to her September 4, 2006 employment injury.
On appeal appellant does not contend that there was a change in the nature and extent of
her light-duty requirements. Instead she contends that the reports by her physicians along with
the objective tests and clinical findings support her contention that she is totally disabled and,
thus, entitled to wage-loss compensation. As appellant is not alleging a change in the nature and
6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Sandra D. Pruitt, 57 ECAB 126 (2005).

7

See Cecelia M. Corley, 56 ECAB 662 (2005); Ronald C. Hand, 49 ECAB 113 (1957).

8

C.S., 60 ECAB ___ (Docket No. 08-2218, issued August 7, 2009); Richard A. Neidert, 57 ECAB 474 (2006).

9

K.C., 60 ECAB ___ (Docket No. 08-2222, issued July 23, 2009); Albert C. Brown, 52 ECAB 152, 154-55
(2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R. § 10.5(x) provides, “Recurrence of disability means
an inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition
which had resulted from a previous injury or illness without an intervening injury or new exposure to the work
environment that caused the illness.” This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance of
job duties or a reduction-in-force), or when the physical requirements of such an assignment are altered so that they
exceed his or her established physical limitations.
10

Mary A. Ceglia, 55 ECAB 626 (2004); Maurissa Mack, 50 ECAB 498 (1999).

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extent of her light-duty job requirements, she must establish that she experienced a change in the
nature and extent of her injury-related condition which disabled her from performing her lightduty job.11 The Board finds that she has not met her burden of proof.
In support of her claim, appellant submitted medical evidence from her treating
physicians, Drs. Bartholomew, Rush and Verma. In disability notes dated August 26 and
September 8, 2008 Dr. Rush placed appellant off work beginning August 26, 2008. In his
September 22, 2008 report, he provided diagnoses of myofascial pain syndrome, chronic pain
syndrome with depression and C6-7 cervical disc disease. Dr. Rush indicated that appellant was
totally disabled as a result of her chronic pain, which he attributed to aggravation by her
employment. Although he noted that she had pain syndrome, chronic pain syndrome with
depression and C6-7 cervical disc disease, these conditions have not been accepted by the
Office.12 In addition, Dr. Rush’s disability notes and report are of diminished probative value
because he has not provided any supporting rationale explaining how her condition was a result
of her accepted employment injury. The Board has held opinions unsupported by rationale are
entitled to little probative value.13 The physician also fails to describe how these conditions
prevented appellant from working her light-duty position.14
The record also contains disability notes dated October 31 and December 1, 2008
disability note from Dr. Verma, requested appellant be excused from work for the period
October 31, 2008 to January 5, 2009. These notes are of diminished probative medical value as
Dr. Verma did not provide any opinion on the cause of the diagnosed conditions or explain how
they were related to appellant’s September 14, 2006 employment injury.15
Appellant also submitted reports from Dr. Bartholomew who diagnosed C3-4 disc bulge
with impingement, C4-5 disc bulge, C6-7 disc herniation with stenosis and multilevel
degenerative change and left paracentral bulge at C5-6 and C6-7 and concluded she was totally
disabled. However, as noted above the Office has not accepted appellant’s claim for C3-4 disc
bulge with impingement, C4-5 disc bulge, C6-7 disc herniation with stenosis and multilevel
degenerative change and left paracentral bulge at C5-6 and C6-7.16 Dr. Bartholomew’s
October 31, 2008 duty status report is insufficient to support appellant’s claim of total disability
as he provided no rationale explaining his conclusion. The Board has held opinions unsupported
11

See C.S., 60 ECAB ___ (Docket No. 08-2218, issued August 7, 2009); Cecelia M. Corley, 56 ECAB 662
(2005); Theresa L. Andrews, 55 ECAB 719 (2004).
12

Charles W. Downey, 54 ECAB 421 (2003); Alice J. Tysinger, 51 ECAB 638 (2000) (for conditions not
accepted by the Office as being employment related, it is the employee’s burden to provide rationalized medical
evidence sufficient to establish causal relation, not the Office’s burden to disprove such relationship).
13

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Roma A. Mortenson-Kindschi, 57 ECAB
418 (2006).
14

See Donald T. Pippin, 54 ECAB 631 (2003).

15

See A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008); Robert Broome, 55 ECAB 339
(2004); Michael E. Smith, 50 ECAB 313 (1999) (medical opinion, which does not offer any opinion regarding the
cause of an employee s condition, is of limited probative value).
16

Supra note 12.

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by rationale are entitled to little probative value.17 Similarly, Dr. Bartholomew’s December 1,
2008 attending physician form report is also insufficient to support her claim of disability. In
this report, he noted that appellant became totally disabled on August 20, 2008 due to chronic
cervical and lumbar pain. Dr. Bartholomew checked “yes” to the question of whether it was
employment related. The Board has held that, without further explanation or rationale, a
checked box is not sufficient to establish causation.18 Dr. Bartholomew’s December 30, 2008
progress note is also insufficient to establish a causal relationship between her claimed
recurrence of total disability and the accepted employment injuries of thoracic and lumbar back
sprains. He noted appellant’s low back and neck pain complaints and provided physical
findings. However, there is no opinion on the cause of the diagnosed conditions or explanation
as to how they were related to appellant’s September 14, 2006 employment injury.19
Dr. Bartholomew also failed to describe how these conditions prevented appellant from working
her light-duty position.20
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability on and after August 20, 2008 causally related to her accepted September 14, 2006
employment injury.

17

Supra note 13.

18

See Sedi L. Graham, 57 ECAB 494 (2006); Calvin E. King, Jr., 51 ECAB 394 (2000).

19

Supra note 15.

20

Supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 5, 2009 is affirmed.
Issued: August 12, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coconut Creek, FL, Employer
__________________________________________

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Appearances:
Russell J. Brown, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1187
Issued: February 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 11, 2016 appellant, through her representative, filed a timely appeal from a
January 4, 2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days have elapsed since the last merit decision dated December 4, 2014 to the
date of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks 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 OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
On appeal appellant requests that the Board restore her benefits. She contends that
OWCP should not have denied merit review as her request for reconsideration was timely filed.
Appellant discusses residuals from the injury.
FACTUAL HISTORY
On May 8, 2006 appellant, then a 50-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she suffered injury to her left shoulder and upper arm
while unloading her vehicle. She stopped work on May 9, 2006. Appellant’s claim was
accepted for left shoulder strain and synovitis of the left shoulder, and later for candidiasis of
mouth and recurrent major depressive disorder. Compensation benefits were paid on the
supplemental and periodic rolls from June 26, 2006 through December 13, 2014.
OWCP continued to receive medical evidence pertaining to treatment of appellant’s
accepted conditions, and which discussed her disability status.
In a May 6, 2013 report, Dr. Paul I. Meli, a Board-certified orthopedic surgeon, noted
that appellant was status post left shoulder arthroscopy and had significant degenerative
osteoarthritis of her left shoulder. He also noted that, at this point, she was clearly at maximum
medical improvement and had an impairment rating of zero percent. Dr. Meli reported that
appellant was not a candidate for a shoulder replacement in view of her young age. He
completed a work capacity evaluation and found that she was able to work eight hours a day with
a limitation of pushing/pulling/lifting no more than one pound with the left arm.
On June 19, 2014 the employing establishment offered appellant a position as a modified
rural carrier. The physical duties limited pushing/pulling/lifting of containers of packages and
parcels weighing 0 to 20 pounds with right arm only intermittently. On June 21, 2014 appellant
refused the job offer, contending that her first employment injury of February 18, 1997 injury
was “directly responsible for entire scope of my negative physicalities.”
On October 30, 2014 OWCP informed appellant that it had determined that the duties and
physical requirements of the position of modified rural carrier with the employing establishment
were in accordance with medical limitations provided by Dr. Meli that pushing, pulling, and
lifting be limited to one pound with the left arm. It noted that it had been advised that appellant
failed to report to this position. Appellant was advised that she had 30 days to accept the
position or provide reasons for not accepting the positon. OWCP did not receive further
evidence or argument from appellant.
By decision dated December 4, 2014, OWCP terminated appellant’s entitlement to
compensation for wage loss and schedule award benefits effective December 14, 2014 due to her
refusal to accept suitable work.

2

Appellant requested reconsideration of the December 4, 2014 decision on
December 10, 2015. She alleged that the employment offer was based solely on her left shoulder
injury, but that her right arm was no better than her left arm because of a previous employment
injury, OWCP file number xxxxxx089, which had caused a cervical condition affecting both
arms. She contended that her injuries were debilitating. Appellant stated that she needed
surgery. She noted that her cervical condition was chronic and caused spasms of her neck, both
shoulders, arms, hands and fingers. Appellant requested that her benefits be restored and surgery
approved.
In support of her request for reconsideration, appellant submitted a September 11, 2000
report from Dr. Ross Schwarz, a Board-certified internist, which discussed appellant’s prior
employment injuries. She also submitted the results of November 5, 2007 and November 19,
2014 magnetic resonance imaging (MRI) scans of the cervical spine taken by Dr. Siddharth
Pandya, a Board-certified radiologist. In the November 19, 2014 MRI scan report, Dr. Pandya
found degenerative changes with posterior disc osteophyte complexes and facet arthropathy
creating foraminal stenosis. He also noted at C5-6 the prominent posterior disc osteophyte
complex is paracentral to the left approximating the cord and bilateral foraminal stenosis.
Finally, appellant submitted reports by Dr. Roberto C. Heros, a Board-certified neurosurgeon,
dated April 20, 2015. Dr. Heros listed appellant’s primary diagnosis as neck pain, and also noted
cervical spondylosis and cervical radiculopathy.
By decision dated January 4, 2016, OWCP denied appellant’s request for a merit review,
noting that the evidence she had submitted was cumulative. It noted that it had received the
cervical MRI scan dated November 19, 2014 and Dr. Heros’ report, but that this evidence was
cumulative because Dr. Meli’s report dated May 28, 2013 supported that “sensory dermatomes
from C4-T1 are completely within normal limits with two point sensory discrimination. Motor
strength is 5/5 and bilateral symmetry.”
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.5 OWCP will consider an untimely request for reconsideration only if the request
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision.6 The

3

This section provides in pertinent part: [the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607 (2014).

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For decisions issued on or after June 1, 1987 through August 28, 2011, the request for reconsideration must be
mailed to OWCP within one year of OWCP’s decision for which review is sought.
6

20 C.F.R. § 10.607(b).

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request must establish, on its face, that such decision was erroneous.7 Where a request is
untimely filed and fails to demonstrate clear evidence of error, OWCP will deny the request for
reconsideration without reopening the case for a review on the merits.8
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.9
ANALYSIS
On December 4, 2014 after considering the medical evidence of record, OWCP
terminated appellant’s compensation benefits as it determined that she refused an offer of
suitable employment. As noted above, the Board does not have jurisdiction to review this
decision. Accordingly, the Board is limited to review of the nonmerit decision denying
reconsideration issued on January 4, 2016.
The Board finds that this case is not in posture for decision. As noted, the last merit
decision in this case is OWCP’s December 4, 2014 decision terminating appellant’s wage-loss
and schedule award compensation benefits effective December 14, 2014. OWCP received
appellant’s reconsideration request on December 10, 2015. Accordingly appellant’s request for
reconsideration was untimely filed because more than one year had elapsed between the last
OWCP merit decision issued on December 4, 2014 and the date OWCP received appellant’s
reconsideration request.10 OWCP applied the wrong standard in determining whether further
merit review was warranted under 20 C.F.R. § 10.608. Accordingly, the case must be remanded
to OWCP for proper adjudication of appellant’s untimely request for reconsideration.11
CONCLUSION
The Board finds that this case is not in posture for decision.

7

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue that was decided
by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise, and explicit and it
must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43 ECAB 227 (1991). It is not
enough to merely show that the evidence could be construed to produce a contrary conclusion. Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to shift the weight of the evidence in favor of the claimant and raise a substantial question
as to the correctness of OWCP’s decision. Thankamma Mathews, 44 ECAB 765, 770 (1993).
8

20 C.F.R. § 10.608(b).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016);
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (IFECS). Id. at Chapter 2.1602.4b.
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

11

See E.B., Docket No. 16-0746 (issued June 1, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 4, 2016 is set aside and the case is remanded to OWCP
for further proceedings consistent with this opinion.
Issued: February 7, 2017
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 12-1284
Issued: December 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 29, 2012 appellant filed a timely appeal of a January 17, 2012 schedule award
decision of the Office of Workers’ Compensation Programs1 (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 schedule award case.
ISSUE
The issue is whether appellant has more than 11 percent impairment to the right upper
extremity and 11 percent impairment to the right lower extremity, for which she received
schedule awards.

1

Appellant indicated that she was appealing a January 20, 2012 decision. The Board notes, however, that the
case record does not contain an adverse decision issued by OWCP on that date.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 17, 2006 appellant, then a 50-year-old letter carrier,
sustained multiple lacerations to the right and left legs, a puncture wound to the right leg, foot
and wrist, a right thigh large ecchymosis (contusion/bruise), post-traumatic neuromas of the
sensory branch of the ulnar nerve on the lateral dorsum of the right foot and causalgia of the
bilateral legs and right wrist as a result of being bitten by a dog while she delivered mail at
work.3
On October 26, 2009 appellant filed a claim for a schedule award.
By letter dated November 4, 2009, OWCP requested Dr. Durga Yalamanchili, an
attending internist, to determine the extent of appellant’s employment-related permanent
impairment based on the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Yalamanchili was afforded 30 days
to submit the requested evidence. He did not respond.
By letter dated August 23, 2011, OWCP referred appellant, together with the case record
and a statement of accepted facts, to Dr. Michael E. Holda, a Board-certified orthopedic surgeon,
for a second opinion. In a September 7, 2011 medical report, Dr. Holda noted appellant’s
complaints of pain in the right leg, wrist and upper extremity. Appellant rated her right leg pain
as a 6 and her right wrist pain as a 5 on a scale of 1 to 10. Dr. Holda obtained a history of the
April 17, 2006 employment injuries and her medical treatment, family, social and employment
background. He reviewed the medical record and statement of accepted facts. Dr. Holda
reported essentially normal findings on physical examination with exceptions. Appellant
ambulated slowly favoring her right leg. She had swelling and restricted motion with pain and
tenderness to superficial palpation of the right foot. The right foot was cooler than the left foot
and it had discoloration. Appellant had restricted motion of the right elbow and wrist with pain.
She also had tenderness to superficial palpation and swelling of the right wrist. The right hand
was cooler than the left hand and it apparently had discoloration. Dr. Holda diagnosed reflex
sympathetic dystrophy of the right upper and lower extremities.
Dr. Holda advised that appellant had reached maximum medical improvement. He found
that, under Table 15-24 of the sixth edition of the A.M.A., Guides, she had complex regional
pain syndrome (CRPS) of the right upper extremity. Referring to Table 15-25, objective
diagnostic criteria for CRPS, appellant met multiple objective diagnostic criteria such as skin
discoloration, coolness of the skin in the right wrist area, mild edema, atrophy and stiffness
which resulted in five points. Dr. Holda assessed an adjustment of three for Functional History
(GMFH) and an adjustment of two each for physical and Clinical Study (GMCS) examinations.
Applying his findings to Table 15-26, he concluded that appellant was in class 1 with a default
grade of D for CRPS which resulted in 11 percent impairment of the right upper extremity.
Regarding the right lower extremity, Dr. Holda determined that appellant met the standard of
Table 16-3 under diagnostic criteria for CRPS based on her hyperalgesia and coolness of the
3

Prior to the instant claim, appellant was involved in a motor vehicle accident and filed a claim under OWCP File
No. xxxxxx163. OWCP accepted her claim for right ankle sprain. On November 2, 2010 appellant retired on
disability from the employing establishment.

2

skin, edema and trophic changes. Under Table 16-14, he determined that these clinical signs
resulted in five points. Applying his finding to Table 16-15, CRPS of the lower extremities,
Dr. Holda determined that appellant was in class 1 with a default grade of D. He assessed an
adjustment of 3 for functional history and an adjustment of 2 each for physical examination and
clinical studies examinations, resulting in an 11 percent impairment of the right lower extremity.
On October 24, 2011 OWCP’s medical adviser, reviewed the medical record as well as
Dr. Holda’s report. Regarding the right lower extremity, he determined that appellant had a class
1 CRPS diagnosis with a default impairment of seven percent under the CRPS Grid (Table 1615) on page 541 of the sixth edition of the A.M.A., Guides. The class 1 diagnosis was selected
because appellant met four of the diagnostic criteria listed in Table 16-13. The medical adviser
assessed a grade 1 modifier for functional history for an antalgic limp. He stated that
Dr. Holda’s assessment of a grade 3 modifier for functional history was not substantiated based
on his finding that appellant ambulated slowly favoring her right leg, but did use a gait aid. The
medical adviser assessed a grade 2 modifier for physical examination for moderate palpatory
findings and a grade 2 modifier for clinical study which confirmed moderate pathology. He
averaged the above modifiers which resulted in a value of 2 to adjust the impairment class. The
medical adviser then applied the grade modifiers to the net adjustment formula for a net
adjustment of two, which resulted in a class 2 impairment with a default grade of D which
represented 11 percent impairment of the right lower extremity.
Regarding the right upper extremity, OWCP’s medical adviser determined that appellant
had a class 1 CRPS diagnosis with a default impairment of seven percent under the CRPS Grid
on page 541. The class 1 diagnosis was selected because she met four of the diagnostic criteria
listed in Table 16-13. The medical adviser assessed a grade 3 modifier for functional history for
pain at rest, a grade 2 modifier for physical examination for moderate palpatory findings and a
grade 2 modifier for clinical study for confirmed moderate pathology. He averaged the above
modifiers which resulted in a value of 2 to adjust the impairment class. The medical adviser then
applied grade modifiers to the net adjustment formula for a net adjustment of two, which resulted
in a class 2 impairment with a default grade of D which represented 11 percent impairment of the
right lower extremity. He stated that although the exact date of maximum medical improvement
was difficult to determine, it was reasonable that appellant reached maximum medical
improvement on April 17, 2007, one year after her injury.
On November 16, 2011 OWCP requested that Dr. Holda provide whether appellant’s
claim should be expanded to include CRPS of the right upper and lower extremities. If so,
Dr. Holda was requested to determine whether the 11 percent impairment ratings for the right
upper and lower extremity were still appropriate.
In a November 23, 2011 report, Dr. Holda stated that appellant’s case already included
the diagnosis of CRPS, another term for causalgia, which was part of the statement of accepted
facts. His previous impairment ratings included the CRPS diagnosis and, therefore, remained the
same.
In a January 17, 2012 decision, OWCP granted appellant a schedule award for 11 percent
impairment to the right upper extremity and 11 percent impairment to the right lower extremity
based on the opinions of Dr. Holda and OWCP’s medical adviser.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 For decisions issued after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued after May 1, 2009, the sixth edition will be used.9
In addressing upper and lower extremity impairments, the sixth edition requires
identification of the impairment class for the diagnosed condition, which is then adjusted by
grade modifiers based on functional history, physical examination and clinical study. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
proving rationale for the percentage of impairment specified.11
ANALYSIS
OWCP accepted appellant’s claim for multiple lacerations to the right and left legs, a
puncture wound to the right leg, foot and wrist, a right thigh large ecchymosis (contusion/bruise),
post-traumatic neuromas of the sensory branch of the ulnar nerve on the lateral dorsum of the
right foot and causalgia of the bilateral legs. On January 17, 2012 appellant received a schedule
award for 11 percent impairment to the right upper extremity and 11 percent impairment to the
right lower extremity. The Board finds that she did not meet her burden of proof to establish that
she sustained greater impairment.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Ausbon N. Johnson, 50 ECAB 304 (1999).

7

Supra note 4.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2010).

9

Id. at Chapter 3.700, Exhibit 1 (January 2010).

10

A.M.A., Guides 411, 521.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).

4

Appellant has failed to submit any evidence by a treating physician finding greater
impairment to the right upper or lower extremities related to the accepted conditions. Both
Dr. Holda, an OWCP referral physician, and OWCP’s medical adviser, rated 11 percent
impairment to the right upper extremity and 11 percent impairment to the right lower extremity
due to her accepted conditions.
Dr. Holda determined that appellant had a class 1 impairment with a default grade of D.
He assessed an adjustment of 3 for functional history and an adjustment of 2 each for physical
and clinical study examinations, resulting in 11 percent impairment of the right lower extremity.
The file was then properly routed to OWCP’s medical adviser, for an opinion concerning
the nature or percentage of permanent impairment in accordance with the A.M.A., Guides.12 On
October 24, 2011 he utilized Dr. Holda’s findings, referenced the sixth edition of the A.M.A.,
Guides and concurred with his opinion that appellant had 11 percent impairment to the right
upper extremity and 11 percent impairment to the right lower extremity. The medical adviser
noted that while Dr. Holda used a grade 3 modifier for functional history he used a grade 1
modifier for an antalgic limp. He assessed a grade 2 modifier for physical examination for
moderate palpatory findings and a grade 2 modifier for clinical studies. Applying the net
adjustment formula resulted in a modifier of 2 resulting in a class 2 impairment with a grade D
default value still represented 11 percent impairment of the right lower extremity. The Board
finds that the medical evidence of record establishes that appellant has no more than 11 percent
impairment to the right upper extremity and 11 percent impairment to the right lower extremity.
On appeal, counsel contended that OWCP’s decision is contrary to fact and law. As
stated, the weight of the medical evidence does not establish that appellant sustained more than
11 percent impairment each to the right upper and lower extremities, for which she received
schedule awards. There is no other medical evidence of record addressing the extent of
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than 11 percent
impairment to the right upper extremity and 11 percent impairment to the right lower extremity,
for which she received schedule awards.

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


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

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Docket No. 14-392
Issued: May 13, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
On December 9, 2013 appellant filed a timely appeal from a November 25, 20131 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning an
overpayment of compensation. The Board assigned Docket No. 14-392.
In a November 25, 2013 decision, OWCP found that appellant received an overpayment
of compensation in the amount of $735.82 from August 14 through 24, 2013 because he
continued to receive total disability compensation after his return to work. It further found that,
although he was without fault in the creation of the overpayment, waiver of recovery of the
overpayment was not warranted.2 OWCP stated, “The reasons for this decision are explained in
1

Appellant indicated that he was appealing an October 7, 2013 decision. The Board notes, however, that the
record does not contain a final decision issued on October 7, 2013. An October 7, 2013 preliminary determination
that appellant was without fault in the creation of an overpayment of compensation is of record thereby
demonstrating that the case was in an interlocutory posture as of that date and did not constitute a final adverse
OWCP decision issued under the Federal Employees’ Compensation Act.
See 20 C.F.R.
§§ 501.2(c)(2) and 501.3(a).
2

The Board notes that OWCP also determined that appellant was at fault in the creation of the overpayment
because “You knowingly accepted a job offer (signed by you) while in receipt of temporary total compensation for
the period of August 14 to 24, 2013 and returned to work on August 14, 2013; this is considered a dual benefit....”

the enclosed memorandum.” However, the attached memorandum did not contain any
explanation for why it denied waiver of recovery of the overpayment.
The Board has duly considered the matter and finds that the record does not contain a
complete copy of OWCP’s November 25, 2013 decision. As such, the Board cannot review
OWCP’s basis for denying waiver of recovery of the overpayment. The Board finds, therefore,
that this case is not in posture for decision as the record before it is incomplete and would not
permit an informed adjudication of the case by the Board. The case must therefore be remanded
to OWCP for reconstruction and proper assemblage of the record, to be followed by a de novo
decision on the merits of the claim to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 25, 2013 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: May 13, 2014
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crown Point, IN, Employer
__________________________________________
Appearances:
Joseph E. Allman, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0598
Issued: September 17, 2020

Case Submitted on the Record

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

On January 24, 2019 appellant, through counsel, filed a timely appeal from a December 14,
2018 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 19-0598.
This case has previously been before the Board.2 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On May 13, 2015 appellant, then a 55-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained left shoulder, upper arm, back, and neck
sprain/strains and thoracic back pain due to her employment duties.

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

Docket No. 16-1614 (issued September 21, 2017).

By decision dated August 12, 2015, OWCP denied the claim, finding that the evidence of
record was insufficient to establish the factual portion of her claim. On September 8, 2015
appellant requested an oral hearing before a hearing representative of OWCP’s Branch of Hearings
and Review. A telephonic hearing was held on December 18, 2015. In a February 9, 2016
decision, an OWCP hearing representative affirmed the August 12, 2015 decision. Appellant,
through counsel, subsequently appealed to the Board.
By decision dated September 21, 2017, the Board affirmed the February 9, 2016 OWCP
decision, finding that appellant had not met her burden of proof to sufficiently identify employment
activities alleged to have caused or contributed to her left shoulder condition.
On December 7, 2018 OWCP received a September 19, 2018 reconsideration request from
counsel.3 OWCP’s procedures provide that timeliness is determined by the date that the request
was received by OWCP (the received date in iFECS).4 If the request for reconsideration has a
document received date greater than one year, the request must be considered untimely.5
By decision dated December 14, 2018, OWCP applied the standard applicable to a timely
request for reconsideration and denied appellant’s request for reconsideration pursuant to 5 U.S.C.
§ 8128(a).6 As the last merit decision issued in this case was a September 21, 2017 Board decision,
her request for reconsideration which was received into iFECS on December 7, 2018 was untimely.
As appellant’s request for reconsideration was untimely filed, OWCP erroneously reviewed her
request for reconsideration using the standard for timely reconsideration requests.7
The Board will, consequently, remand the case for application of the proper standard, to be
followed by the issuance of an appropriate decision. Accordingly,

3

This is the received date as indicated in the Integrated Federal Employees’ Compensation System (iFECS).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016);
S.J., Docket No. 17-1835 (issued December 19, 2018).
5

F.A., Docket No. 19-0321 (issued July 5, 2019); R.Y., Docket No. 16-1301 (issued December 15, 2016); T.E.,
Docket No. 16-0574 (issued August 18, 2016).
6

OWCP noted the receipt date for the reconsideration request as September 19, 2018.

7
G.B., Docket No. 17-1298 (issued January 25, 2018); L.D., Docket No. 15-0865 (issued October 6, 2015); H.L.,
Docket No. 13-2077 (issued March 20, 2014).

2

IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: September 17, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

3


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

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

Docket No. 12-1532
Issued: February 7, 2013

Case Submitted on the Record

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

JURISDICTION
On July 9, 2012 appellant, through her attorney, filed a timely appeal of the May 1, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying disability
compensation. 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 that she had any disability causally related
to her accepted aggravation of bilateral traumatic thoracic outlet syndrome.
On appeal, appellant’s attorney contends that OWCP’s May 1, 2012 decision should be
reversed on the grounds that the termination of appellant’s compensation benefits did not
consider the medical opinion of Dr. Dean L. Carlson, an orthopedic surgeon and an impartial
medical specialist, who found that she had thoracic outlet syndrome and resultant continuing
disability due to the accepted January 10, 2001 employment incident.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with regard to the termination of
appellant’s compensation benefits.2 In a May 4, 2007 decision, the Board affirmed OWCP’s
January 24, 2005 termination of appellant’s wage-loss compensation and medical benefits
effective January 25, 2005 on the grounds that she no longer had any residuals or disability
causally related to her January 10, 2001 employment-related contusions of the left hip and
bilateral knees, cervical and lumbar strains and right knee meniscus tear. The Board also found
that appellant did not establish any continuing employment-related residuals or disability after
January 25, 2005. The facts as set forth in the Board’s decision are incorporated by reference.3
On February 2, 2009 appellant submitted medical reports dated November 18, 2008 from
Dr. David O. Weiss, an attending Board-certified orthopedic surgeon, which addressed her back
pain, physical limitations and permanent impairment to her bilateral upper and lower extremities.
In reports dated September 9, 2010 and October 18, 2011, Dr. Carlson advised that
appellant had bilateral traumatic thoracic outlet syndrome due to the April 15, 2001 employment
incident and aggravated by the January 10, 2001 employment incident.4 He determined that
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment she had 3 percent impairment to the right upper extremity, 24 percent
impairment to the left upper extremity and 1 percent impairment to the right lower extremity.
Dr. Carlson concluded that appellant reached maximum medical improvement on
September 9, 2010.
In a January 18, 2012 decision, OWCP accepted appellant’s claim for aggravation of
bilateral traumatic thoracic outlet syndrome.
By letter dated January 27, 2012, appellant, through her attorney, requested that OWCP
reopen her claim for merit reconsideration under 5 U.S.C. § 8128(a). Counsel noted that
OWCP’s January 25, 2005 termination decision was based on a May 27, 2004 report of
Dr. Robert Dennis, a Board-certified orthopedic surgeon and an impartial medical specialist,
which found that appellant had thoracic outlet syndrome, but concluded that the diagnosed
condition was not causally related to either the April 15, 2000 or January 10, 2001 employment
2

Docket No. 06-1640 (issued May 4, 2007).

3

Under File No. xxxxxx163 OWCP accepted that on January 10, 2001 appellant, then a 34-year-old part-time
flexible city carrier, sustained contusions of the left hip and bilateral knees, cervical and lumbar strains and a right
knee meniscus tear as a result of a motor vehicle accident which occurred in the performance of duty. It authorized
right knee arthroscopic surgery which she underwent on December 27, 2001. On July 7, 2003 and April 6, 2006
OWCP accepted that appellant sustained a recurrence of disability on May 24, and 29, 2001, respectively, causally
related to her January 10, 2001 employment injuries. Under a prior claim assigned File No. xxxxxx523, it accepted
that on April 15, 2000 appellant sustained neck and lumbar strains due to a motor vehicle accident. These claims
have been consolidated, with File No. xxxxxx523 serving as the master file.
4

The Board notes that Dr. Carlson was selected as an impartial medical specialist to resolve a conflict in medical
opinion between Dr. Weiss and Dr. David Rubinfeld, a Board-certified orthopedic surgeon and an OWCP referral
physician, as to whether appellant had any permanent impairment causally related to her accepted employment
injuries.

2

injuries.5 He further noted Dr. Carlson’s opinion that appellant had thoracic outlet syndrome due
to the January 10, 2001 employment incident and contended that the termination decision should
be reversed because it was based on an erroneous factual and medical background. Counsel
requested that OWCP retroactively authorize the left first rib resection appellant underwent on
March 12, 2004 to treat her accepted left thoracic outlet syndrome.
Appellant submitted a November 23, 2011 report from a physician whose signature is
illegible which indicated that she had post-traumatic thoracic outlet syndrome and listed her
physical restrictions.
In a February 15, 2012 work capacity evaluation, Dr. Stuart Hochron, a Board-certified
internist, advised that appellant was unable to perform her regular work duties, but she could
work eight hours per day with permanent restrictions secondary to her thoracic outlet syndrome.
In a May 1, 2012 decision, OWCP reopened appellant’s claim under section 8128(a) of
FECA and denied her request for disability compensation. It found that there was no evidence
establishing that the January 24, 2005 termination decision was made in error with regard to the
originally accepted employment injuries. OWCP further found that no medical evidence
submitted subsequent to the issuance of the termination decision established any disability
causally related to the accepted thoracic outlet syndrome. It, however, found that appellant was
entitled to medical benefits for this accepted condition only and retroactively authorized her
March 12, 2004 left rib resection procedure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.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 causes an
employee to become disabled for work and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.8 The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific diagnosis of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.9

5

The Board notes that Dr. Rubinfield opined in a February 12, 2004 report that appellant’s thoracic outlet
syndrome was not due to the accepted January 10, 2001 employment incident or disabling.
6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
7

See Amelia S. Jefferson, supra note 6; see also David H. Goss, 32 ECAB 24 (1980).

8

See Edward H. Horton, 41 ECAB 301 (1989).

9

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

3

The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.10 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable 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
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.12 Disability is not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as the term is used in FECA.13
ANALYSIS
OWCP initially accepted appellant’s claim for contusions of the left hip and bilateral
knees, cervical and lumbar strains and a right knee meniscus tear. On January 24, 2005 it
terminated her wage-loss compensation and medical benefits effective January 25, 2005 on the
grounds that she no longer had any residuals or disability causally related to these accepted
conditions. OWCP subsequently accepted appellant’s claim for aggravation of bilateral
traumatic thoracic outlet syndrome. Appellant claimed compensation for disability, contending
that OWCP’s January 24, 2005 termination decision was improper as it was based on an
erroneous factual and medical background with regard to this accepted condition.14 On May 1,
2012 OWCP denied her claim for disability. Appellant has the burden of establishing by the
weight of the substantial, reliable and probative evidence, a causal relationship between her
claimed disability and the accepted conditions.15 The Board finds that she did not submit
sufficient medical evidence to establish the claimed disability due to her accepted aggravation of
bilateral traumatic thoracic outlet syndrome.
Dr. Weiss’ November 18, 2008 reports addressed appellant’s back pain, physical
limitations and permanent impairment to her bilateral upper and lower extremities.
Dr. Hochron’s February 15, 2012 work capacity evaluation found that, although appellant could
not perform her regular work duties, she could work eight hours per day with permanent
restrictions secondary to her accepted thoracic outlet syndrome. Neither physician provided a
10

See Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 464 (2005).

12

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

13

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

14

The Board notes that the issue of disability causally related to the accepted employment-related contusions of
the left hip and bilateral knees, cervical and lumbar strains and a right knee meniscus tear has already been
addressed in the Board’s prior May 4, 2007 decision in this case. Supra note 2.
15

Alfredo Rodriguez, 47 ECAB 437 (1996).

4

rationalized medical opinion addressing appellant’s disability for work due to the accepted
thoracic condition. The Board has held that a physician’s opinion, which does not address causal
relationship, is of diminished probative value.16 The Board finds, therefore, that the reports of
Drs. Weiss and Hochron are insufficient to establish appellant’s burden of proof.
The November 23, 2011 report which contained an illegible signature lacks probative
medical value as the author cannot be identified as a physician.17
Appellant has failed to submit rationalized medical evidence establishing that her claimed
disability resulted from residuals of her accepted employment-related thoracic condition.
Appellant’s attorney contended before OWCP and on appeal that OWCP’s termination
decision should be reversed on the grounds that it did not consider Dr. Carlson’s opinion that she
had employment-related thoracic outlet syndrome and resultant continuing disability. While
Dr. Carlson’s report found that appellant’s thoracic condition was causally related to the
accepted April 15, 2001 employment incident and aggravated by the January 10, 2001
employment incident, this evidence was not before OWCP at the time it issued its final
termination decision. The evidence at that time, as represented by the opinions of Drs. Dennis
and Rubinfeld established that appellant did not sustain thoracic outlet syndrome due to the
April 15, 2000 and January 10, 2001 employment injuries. Moreover, Dr. Carlson only
addressed the extent of appellant’s permanent impairment under the A.M.A., Guides. He did not
provide a medical opinion addressing her disability due to the accepted thoracic condition.18 The
Board finds that appellant has failed to establish that she sustained any disability causally related
to the accepted employment-related thoracic outlet syndrome.
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 failed to establish that she had any disability causally
related to her accepted aggravation of bilateral traumatic thoracic outlet syndrome.

16

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
17

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

18

A.D., supra note 16.

5

ORDER
IT IS HEREBY ORDERED THAT the May 1, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 7, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-1804
Issued: March 16, 2016

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 August 31, 2015 appellant, through counsel, filed a timely appeal from a March 17,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability commencing April 24, 2013, causally related to her September 14, 2004 employment
injury.
On appeal, counsel contends that OWCP should have: (1) expanded the class of accepted
conditions to include all conditions outlined in the medical evidence; and (2) found that the
recurrence of appellant’s total disability of April 24, 2013 was compensable pursuant to FECA.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 19, 2004 appellant, a 57-year-old customs and border protection officer, filed
a traumatic injury claim (Form CA-1) alleging that she sustained a lower back injury on
September 14, 2004 as a result of lifting boxes and pulling containers in the performance of duty.
She did not initially stop work. OWCP accepted the claim for lumbar radiculitis. It later
accepted that appellant sustained a recurrence of disability on December 28, 2004 due to her
employment condition.
Appellant received appropriate wage-loss compensation from
January 22, 2005 until she returned to full-time limited duty on December 5, 2005.2
Appellant continued receiving treatment for her accepted condition and sought
authorization for additional treatment. In January 2007, OWCP referred her to Dr. Robert Israel,
a Board-certified orthopedic surgeon, for a second opinion evaluation to determine the nature
and extent of her employment-related condition. In his January 9, 2007 report, Dr. Israel
reviewed appellant’s medical history and a statement of accepted facts, and provided the findings
of a physical examination. He found that her lordotic curve was normal, there were no spasms or
tenderness present over the paraspinal musculature on palpation, and sitting Lasègue’s testing
was bilaterally negative. Muscle strength of both lower extremities was graded at 5/5 and there
was no atrophy present in the muscles of appellant’s lower extremities. Dr. Israel concluded that
appellant’s lumbar radiculitis had resolved. He opined that she had no disability as a result of
her employment injury and released her to full duty without restrictions.3
In a March 14, 2007 letter, OWCP advised the employing establishment that appellant
was capable of returning to full-time, full-duty work and she returned to her date-of-injury
position.
On February 22, 2010 appellant filed a claim for a schedule award (Form CA-7). In a
May 13, 2011 decision, OWCP granted a schedule award for nine percent permanent impairment
of the left lower extremity. The award ran for 25.92 weeks for the period December 10, 2009 to
June 9, 2010.
On May 10, 2013 appellant filed a recurrence (Form CA-2a). She stated that 18 months
after she returned to work she was reassigned to Building 77 as she was no longer able to work
as a customs officer. Appellant noted that she would lose three to five days of work a month due
to her lumbar injury and could never accrue any leave. She alleged that over the past six weeks
her symptoms of pain in her lower back and legs had been chronic and in the past two weeks she
had experienced loss of bowel control. The employing establishment stated that appellant
stopped work on April 24, 2013 at 8:00 a.m. and that her pay stopped on April 25, 2013.
2

Appellant’s treating physician, Dr. Mark Kostin, an internist, advised that appellant could work with restrictions
of “no side arm,” no overtime or working more than five consecutive days, lifting up to 15 pounds, sitting for four
hours, and standing for four hours.
3

OWCP subsequently found that Dr. Israel’s opinion created a conflict with the opinion of Dr. Kostin. In a
June 7, 2007 report, Dr. Michael Gerling, a Board-certified orthopedic surgeon and impartial specialist, diagnosed a
herniated nucleus pulposus with resolved radiculopathy. He opined that the disc herniation was not compensable
and that appellant could work full time with restrictions on lifting no more than 20 pounds. OWCP did not
terminate appellant’s benefits at that time.

2

Appellant submitted reports dated May 2 and 9, 2013 from Dr. R.C. Krishna, a Boardcertified neurologist, who diagnosed lumbar radiculopathy and opined that she sustained an
exacerbation of lower back pain. Dr. Krishna noted that appellant suffered a recurrence of her
lower back pain initially caused by a work accident sustained on September 14, 2004. He
concluded that appellant was totally disabled from work and her prognosis was guarded.
Appellant also submitted physical therapy notes.
In a June 21, 2013 letter, OWCP advised appellant of the deficiencies of her recurrence
claim. It requested additional evidence in support of the claim and afforded her 30 days to
respond to its inquiries.
In a July 22, 2013 narrative statement, appellant indicated that in February 2013 she
noticed that her symptoms from her lower back were no longer bad just a day or two. She stated
that she was in pain and experienced discomfort daily. Appellant indicated that she underwent a
magnetic resonance imaging (MRI) scan on March 14, 2013 and saw Dr. Krishna for an
emergency appointment on April 23, 2013. The employing establishment confirmed that
appellant’s last day of work was April 23, 2013 and that her pay status stopped on
April 25, 2013.
Appellant submitted a February 12, 2013 electromyography (EMG) study which revealed
evidence of chronic left C5-6 cervical radiculopathy, and February 14, 2013 EMG and nerve
conduction velocity (NCV) studies which revealed evidence of a suggestive right L5-S1
radiculopathy. She further submitted MRI scans of the cervical and lumbar spine dated
February 28, 2013, which showed multilevel degenerative disc disease at every level of the
cervical spine and circumferential disc bulges with mild midline disc herniations at L2-5.
In reports dated June 11 and 17, 2013, Dr. Kostin, an internist, noted that appellant
suffered with lower back pain due to her September 14, 2004 employment injury and had an
exacerbation of her lower back pain, which became worse since February 2013. He diagnosed
sciatica, thoracic or lumbosacral neuritis or radiculitis, lumbago, and displacement of
intervertebral disc without myelopathy. Dr. Kostin advised that appellant required continued
physical therapy treatments.
On July 5, 2013 Dr. Demetrios Mikelis, an internist and physiatrist, diagnosed cervical
and lumbar sprain with herniated nucleus pulposus (HNP).
In reports dated June 27 and July 11, 2013, Dr. Krishna diagnosed neuropathy and
lumbosacral radiculopathy and opined that appellant was unable to work because of her
disabilities. In a second July 11, 2013 report, he asserted that she was his patient with a
diagnosis of cervical and lumbar radiculopathy who recently had an exacerbation of lower back
pain and neck pain. Dr. Krishna reported that appellant had EMG and NCV studies of the upper
and lower extremities which revealed chronic cervical and lumbar radiculopathy. He found that
her clinical features suggested underlying cervical and lumbar disc pathology resulting in
radiculopathy. Dr. Krishna opined that appellant needed to be home to rehabilitate herself to go
back to work and should continue physical therapy. He concluded that based on her history and
physical examination there was a “reasonable degree of medical certainty” that her physical
injuries were causally related to the September 14, 2004 employment injury.

3

By decision dated August 9, 2013, OWCP denied appellant’s recurrence claim, finding
that the medical evidence of record was insufficient to establish that she sustained a recurrence
of disability commencing April 24, 2013, causally related to her September 14, 2004
employment injury.4
On July 14, 2014 appellant’s counsel requested reconsideration. Appellant submitted a
December 19, 2013 MRI scan of the thoracic spine which showed mild compression deformity
of T11 and circumferential disc bulge with mild midline disc herniation at T10-11. She also
submitted a March 31, 2014 report from Dr. Krishna who reiterated his diagnoses and opinions.
In reports dated August 8, 2013 through April 4, 2014, Dr. Sebastian Lattuga, a Boardcertified orthopedic surgeon, diagnosed cervical sprain, cervical HNP with myelopathy, lumbar
spine strain, and herniated lumbar intervertebral disc. He reported that appellant sustained an
injury on September 14, 2004 and complained of low back pain with radiation into both right and
left lower extremities, as well as loss of bowel control since February 2013. On February 7,
2014 Dr. Lattuga noted that in 2013 she experienced increasing pain over several months to the
point that she was unable to work on April 25, 2013, and her pain steadily increased for several
months due to repetitive lifting and bending at work.
On July 5, 2013 Dr. Mikelis diagnosed cervical sprain, cervical HNP with myelopathy,
lumbar spine strain, and herniated lumbar intervertebral disc. He reported that appellant
sustained an injury on September 14, 2004 and complained of low back pain with radiation into
both right and left lower extremities, as well as loss of bowel control since February 2013.
In reports dated August 18, 2013 through January 30, 2014, Dr. Keyvan Jahanbakhsh, an
interventional pain medicine specialist and anesthesiologist, diagnosed displacement of lumbar
disc without myelopathy, lumbosacral neuritis, and lumbago. He noted that appellant “suffered
from lower back pain for the past 10 years which suddenly worsened about 11 months [ago].”
Dr. Jahanbakhsh indicated that her initial pain started at work while lifting heavy boxes and
began again at work, gradually developing secondary to repetitive movements. Appellant
reported increased bowel urgency, but did not report a loss of control in either her bowel or
bladder function. On November 21, 2013 Dr. Jahanbakhsh reported that her pain was constant,
but could suddenly worsen. Appellant complained that her pain radiated across her lower back
and into the right posterior aspect of her thigh and was exacerbated when sitting and standing for
extended periods of time or when performing any type of physical activity.
By decision dated March 17, 2015, OWCP denied modification of its prior decision.
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
4

On March 14, 2014 appellant filed a claim for wage-loss compensation (Form CA-7) for the period April 24 to
May 25, 2013. In a March 20, 2014 letter, OWCP advised appellant that the claim was not payable as her
recurrence claim had been denied.

4

caused the illness.5 This term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties, or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6
When an employee, who is disabled from the job he or she had when injured on account
of employment-related residuals, returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that she cannot perform such limited-duty work. As part of this
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 limited-duty job requirements.7 This burden includes
the necessity of furnishing evidence from a qualified physician who concludes, on the basis of a
complete and accurate factual and medical history, that the disabling condition is causally related
to the employment injury. The medical evidence must demonstrate that the claimed recurrence
was caused, precipitated, accelerated, or aggravated by the accepted injury.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 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 factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability commencing April 24, 2013, causally related to her
September 14, 2004 employment injury.
OWCP accepted that appellant sustained lumbar radiculitis on September 14, 2004 as a
result of lifting and pulling at work. Appellant returned to full-time, limited-duty work based on
a January 9, 2007 second opinion report from Dr. Israel finding that her lumbar radiculitis had
5

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

6

Id.

7

See A.M., Docket No. 09-1895 (issued April 23, 2010). See also Joseph D. Duncan, 54 ECAB 471, 472 (2003);
Terry R. Hedman, 38 ECAB 222, 227 (1986).
8

See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (January 2013).
9

See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

See I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

5

resolved without residuals. She stopped work on April 24, 2013 and on May 10, 2013 she filed a
recurrence. The Board finds that the evidence submitted by appellant lacks adequate rationale to
establish a causal connection between the alleged recurrence of disability and the accepted
employment injury. Thus, appellant did not meet her burden of proof to establish a claim for a
recurrence.
In his reports, Dr. Jahanbakhsh, diagnosed displacement of lumbar disc without
myelopathy, lumbosacral neuritis, and lumbago and reported that appellant’s pain was constant
but could suddenly worsen. He noted that she had “suffered from lower back pain for the past 10
years which suddenly worsened about 11 months [ago],” secondary to repetitive movements.
Dr. Jahanbakhsh failed to provide a rationalized opinion explaining how factors of appellant’s
federal employment, such as repetitive movements, caused or aggravated her lumbar conditions.
He noted that her condition occurred while she was at work, but such generalized statements do
not establish causal relationship because they merely repeat her allegations and are unsupported
by adequate medical rationale explaining how her physical activity at work actually caused or
aggravated the diagnosed condition.11 The Board finds that Dr. Jahanbakhsh failed to provide
sufficient medical rationale explaining how appellant’s symptoms beginning on April 24, 2013
were causally related to the September 14, 2004 employment injury. Thus, the Board finds that
this evidence insufficient to establish that she sustained a recurrence of disability.
In his reports, Dr. Krishna diagnosed neuropathy, cervical radiculopathy, and lumbar
radiculopathy. He opined that appellant had a recurrence of her lower back pain due to a work
accident sustained on September 14, 2004 and was totally disabled for work. Dr. Krishna
concluded that based on her history and physical examination there was a “reasonable degree of
medical certainty” that appellant’s physical injuries were causally related to the September 14,
2004 employment injury. The Board finds that Dr. Krishna failed to provide sufficient medical
rationale explaining how appellant’s symptoms beginning on April 24, 2013 were causally
related to the September 14, 2004 employment injury. Thus, the Board finds that his reports are
insufficient to establish that she sustained a recurrence of disability.
In his reports, Dr. Kostin noted that appellant suffered from lower back pain due to her
September 14, 2004 employment injury and had an exacerbation of her lower back pain, which
became worse since February 2013. He diagnosed sciatica, thoracic or lumbosacral neuritis or
radiculitis, lumbago, and displacement of intervertebral disc without myelopathy. The Board
finds that Dr. Kostin failed to provide sufficient medical rationale to explain how appellant’s
symptoms beginning on April 24, 2013 were causally related to the September 14, 2004
employment injury. Thus, the Board finds that this evidence insufficient to establish her claim.
In their reports, Drs. Mikelis and Lattuga diagnosed cervical sprain, cervical HNP with
myelopathy, lumbar spine strain, and herniated lumbar intervertebral disc. These reports are
insufficient to establish appellant’s claim. They failed to provide sufficient medical rationale
explaining how her symptoms beginning on April 24, 2013 were causally related to the
September 14, 2004 employment injury and why they were so debilitating as to preclude her
from working. Moreover, OWCP has not accepted a cervical condition in this case and, as such,
11

See K.W., Docket No. 10-98 (issued September 10, 2010).

6

appellant has the burden of proof to establish causal relationship.12 For the aforementioned
reasons, she has not done so. Therefore, this medical evidence is insufficient to establish her
claim for a recurrence of disability.
Other medical reports of are of limited probative medical value as they do not specifically
address whether appellant’s disability beginning April 24, 2013 was attributable to her accepted
work injury.13 Appellant also submitted physical therapy records. However, records from a
physical therapist do not constitute competent medical evidence because a physical therapist is
not considered a “physician” as defined under FECA.14
On appeal, counsel contends that OWCP should have: (1) expanded the class of accepted
conditions to include all conditions outlined in the medical evidence; and (2) found that the
recurrence of appellant’s total disability of April 24, 2013 was compensable pursuant to FECA.
The Board finds that the evidence submitted by appellant lacks adequate rationale to establish a
causal connection between the alleged recurrence of disability and the accepted September 14,
2004 employment injury. Appellant has failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability commencing April 24, 2013, causally related to her September 14, 2004
employment injury.

12

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, she bears the burden of proof to establish that the condition
is causally related to the employment injury).
13

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
14

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).

7

ORDER
IT IS HEREBY ORDERED THAT the March 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2016
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

8