United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
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__________________________________________ )
B.R., Appellant

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

Docket No. 06-2100
Issued: August 7, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge

JURISDICTION
On September 13, 2006 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs dated April 6 and May 26, 2006 which terminated his
wage-loss compensation and an August 2, 2006 decision which denied his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
wage-loss compensation effective April 4, 2006 on the grounds that he was no longer disabled
from work; (2) whether appellant established that he had any continuing employment-related
disability after April 6, 2006; and (3) whether the Office properly refused to reopen appellant’s
claim for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has been before the Board on two prior occasions. By decision dated
January 6, 2000, the Board found that the Office improperly failed to reopen appellant’s case for

a merit review.1 Following the Board’s remand, in a February 4, 2000 decision, the Office found
that the record was sufficient to establish that appellant was entitled to wage-loss compensation
for total disability beginning December 19, 1996.2 In a June 1, 2001 decision, the Office found
that appellant had not established clear evidence of error regarding the February 4, 2000
decision.3
A functional capacity evaluation completed on February 10 and 11, 2005 advised that
appellant was capable of performing medium work with lifting of no more than 50 pounds and
frequently lifting up to 25 pounds. He should have the opportunity to sit, stand and walk as
needed, and a work conditioning program was recommended. On June 15, 2005 appellant filed
an appeal with the Board. In a work capacity evaluation dated July 25, 2005, appellant’s
attending orthopedic surgeon, Dr. Abraham Abdo, advised that maximum medical improvement
had been reached and that appellant was capable of performing his usual job with no restrictions.
By order dated January 17, 2006, the Board dismissed the appeal on the grounds that the
record did not contain a final decision over which it had jurisdiction.4 The law and the facts of
the previous Board decisions and orders are incorporated herein by reference.
On March 6, 2006 the Office informed appellant that it proposed to terminate his wageloss compensation on the grounds that Dr. Abdo found that he was no longer disabled from
work.5 Appellant disagreed with the proposed termination. By decision dated April 6, 2006, the
Office terminated appellant’s wage-loss compensation, effective April 4, 2006. On April 18,
2006 appellant requested reconsideration and submitted medical evidence previously of record.
He also submitted a report dated April 19, 2006 in which Dr. Frank Sifuentes, Board-certified in
family medicine, noted appellant’s complaint of right knee pain. Examination of the right knee
demonstrated crepitus and decreased range of motion on flexion and extension. Dr. Sifuentes
diagnosed right knee pain, status post meniscal and anterior cruciate ligament (ACL) repair,
osteoarthritis and hypertension. He referred appellant to Dr. Doan Khac Nguyen, a Boardcertified orthopedic surgeon. In a report dated April 19, 2006, Dr. Nguyen noted the history of
injury, past medical treatment and appellant’s complaints. Examination of the right knee
demonstrated mild valgus alignment and mild effusion with no vascular impairment or
patellofemoral crepitus. Dr. Nguyen diagnosed arthritis of the lateral compartment of the knee.
By decision dated May 26, 2006, the Office reviewed the reports from Dr. Sifuentes and
Dr. Doan and denied modification of the April 6, 2006 decision. In a letter dated June 2, 2006,
1

Docket No. 98-336 (issued January 6, 2000).

2

On April 4, 1988 appellant, then a 31-year-old aircraft mechanic, sustained an employment-related internal
derangement of the right knee. He stopped work on September 27, 1988, returned briefly in 1989 and was placed on
the periodic rolls. In 1994 he was referred for vocational rehabilitation and was retrained as an automobile
mechanic technician.
3

Appellant was seeking compensation from June 23, 1996, when a wage-earning capacity decision was put in
place, and the resumption of total disability compensation on December 19, 1996.
4

Docket No. 05-1385 (issued January 17, 2006).

5

The Office advised that he was still entitled to medical benefits.

2

appellant requested reconsideration and submitted a June 6, 2006 report in which Dr. Abdo
advised that “the work capacity evaluation that was filled out on July 25, 2005 is for tune-up
mechanic, which the job descriptions are attached. I have not done a wage-earning capacity for
an aircraft mechanic.” Appellant also submitted a Texas workers’ compensation form dated
April 19, 2006 in which Dr. Nguyen provided work injury diagnoses of right meniscal tear, right
knee arthritis and old disruption of the ACL on the right. He advised that appellant could return
to work without restrictions. By decision dated August 2, 2006, the Office denied appellant’s
reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. The Office may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.6 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.7
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
compensation on effective April 4, 2006. In a July 25, 2005 work capacity evaluation,
appellant’s attending orthopedic surgeon, Dr. Abdo, advised that maximum medical
improvement had been reached and that appellant was capable of performing his usual job with
no restrictions. The medical evidence of record at that time therefore established that the Office
met its burden of proof to terminate appellant’s wage-loss compensation on April 6, 2006.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s wage-loss compensation on
April 6, 2006, the burden shifted to him to establish that he had any continuing disability
causally related to his accepted injuries.8 To establish a causal relationship between the
condition, as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.9 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.10 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
6

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

7

Id.

8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

9

Jennifer Atkerson, 55 ECAB 317 (2004).

10

Id.

3

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.11
Under the Federal Employees’ Compensation Act, 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. Disability is thus not synonymous with physical impairment, which may or
may not result in an 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 that term is used in the
Act.12 Furthermore, whether a particular injury causes an employee to be disabled for
employment and the duration of that disability are medical issues which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.13
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with his April 18,
2006 reconsideration request to establish that he continued to be disabled from the accepted knee
condition after April 4, 2006. The May 26, 2006 Office decision must therefore be affirmed.
With his April 18, 2006 reconsideration request appellant submitted evidence previously of
record, and the Board has long held that evidence that repeats or duplicates evidence already in
the case record has no evidentiary value.14 Appellant also submitted reports dated April 19, 2006
in which Drs. Sifuentes and Nguyen noted his complaint of knee pain, made examination
findings and diagnosed arthritis of the knee. Neither physician, however, provided an opinion
regarding appellant’s ability to work. The Board will not require the Office to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed.15 The Office therefore properly found in its
May 26, 2006 decision that appellant had not submitted the necessary rationalized medical
evidence to substantiate that any claimed disability on or after April 4, 2006 was causally related
to the April 4, 1988 employment injury.16
LEGAL PRECEDENT -- -ISSUE 3
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for or against compensation, either under its own authority or on
11

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

12

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

13

Tammy L. Medley, 55 ECAB 182 (2003).

14

See Arlesa Gibbs, 53 ECAB 204 (2001).

15

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

16

See Mary A. Ceglia, 55 ECAB 626 (2004).

4

application by a claimant.17 Section 10.606(b)(2) of Office regulations provides that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.18 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.19 Evidence or argument that repeats or duplicates evidence
previously of record has no evidentiary value and does not constitute a basis for reopening a
case.20 Likewise, evidence that does not address the particular issue involved does not constitute
a basis for reopening a case.21
ANALYSIS -- ISSUE 3
The Board finds that the Office improperly denied appellant’s June 2, 2006 request for
review. In support of this reconsideration request, appellant submitted a report dated June 6,
2006 in which Dr. Abdo advised that the work capacity evaluation he filled out on July 25, 2005
was for the position of tune-up mechanic and not for his date-of-injury job of aircraft mechanic.
As this report is relevant to the merit issue of whether appellant continued to be disabled from
his usual job of aircraft mechanic such that he was entitled to wage-loss compensation based on
total disability, the Board finds it relevant and pertinent new evidence not previously considered
by the Office. The case will therefore be remanded to the Office for a decision on the merits of
appellant’s claim. On remand, the Office should consider this report, together with the
previously submitted evidence of record, to determine if appellant has established that he is
entitled to continuing disability compensation for his accepted conditions.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective April 4, 2006 and that appellant failed to meet his burden of
proof to establish that he had any disability after April 4, 2006 causally related to his accepted
conditions. The Board, however, finds that the Office improperly denied appellant’s request for
a merit review pursuant to section 8128(a) of the Act.

17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.606(b)(2).

19

20 C.F.R. § 10.608(b).

20

Helen E. Paglinawan, 51 ECAB 591 (2000).

21

Joseph A. Brown, Jr., supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 26 and April 6, 2006 be affirmed. The decision dated
August 2, 2006 is vacated and the case remanded to the Office for proceedings consistent with
this decision of the Board.
Issued: August 7, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Nashville, TN, Employer
__________________________________________

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

Docket No. 12-388
Issued: June 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 14, 2011 appellant filed a timely appeal from a November 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
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 met her burden of proof to establish that she sustained an
injury on May 23, 2011 in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2011 appellant, then a 57-year-old nurse, filed a claim for traumatic
injury, alleging that she fainted from overheating at work on May 23, 2011 and developed a
lower back injury one week later.
By letter dated October 4, 2011, OWCP advised appellant of the requisite evidence to
establish her claim. Appellant was asked to provide further information regarding the time and
place of the incident. She was also asked to submit a medical report that included dates of
examination and treatment, history and date of injury, detailed description of findings, results of
tests, diagnosis and a physician’s opinion as to how the reported incident caused or aggravated
her medical condition.
Appellant submitted a medical note dated September 27, 2011 from Dr. Clark Ray, a
Board-certified internist, who evaluated appellant on May 31, 2011 for syncope and back pain.
Appellant also submitted several statements which described the circumstances of her
claim. A Veterans Health Administration incident report dated September 21, 2011 related that
on May 23, 2011 appellant felt faint and was transported to triage after her legs failed due to heat
in the operating room. This report characterized the injury as “heat-related stroke/stress” and
noted that appellant visited her personal physician approximately one week later due to
debilitating back pain. In a statement dated October 17, 2011, Sandra Valentino, a coworker,
reported that appellant passed out on May 23, 2011. She assisted appellant before she was taken
to the emergency room. In a supplemental statement dated October 17, 2011, appellant
described the May 23, 2011 incident. She noted that she was a circulating nurse on a cardiac
case in an operating room. The stress level in the room was high because the patient was having
some difficulties and the room temperature needed to be hot, per the request of the surgeon.
Appellant felt extremely hot as if she was going to pass out. She laid down on the floor with
staff standing over her. Appellant also noted that glucose testing performed that day was normal,
and she had no prior history of fainting. On May 29, 2011 when she tried to get out of bed, she
felt back pain for which she was treated on May 31, 2011.
By decision dated November 10, 2011, OWCP denied appellant’s claim finding that the
medical evidence was insufficient to establish that appellant had sustained an injury causally
related to the May 23, 2011 incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden to establish the essential
elements of her claim including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed, 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.3
2

5 U.S.C. §§ 8101-8193.

3

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. 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.4 The employee must also submit evidence, in the form
of medical evidence, to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
opinion on 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, 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 compensable employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that appellant fainted on May 23, 2011 due to heat in the hospital
operating room. The Board finds that appellant has not met her burden of proof to establish that
she had sustained a back condition as a result of this incident.
The only medical evidence appellant submitted in support of her claim was the
September 27, 2011 note from Dr. Ray. While Dr. Ray indicated that he had evaluated appellant
on May 31, 2011 for syncope and back pain, he did not state any history of the May 23, 2011
incident, provide a firm diagnosis of appellant’s condition or offer any medical rationale
explaining the cause of her medical condition.7
To establish that an injury was sustained as a result of a work-related incident, appellant
must submit medical evidence which provides a firm diagnosis based upon a complete factual
and medical background and which explains the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8 OWCP notified
appellant in its October 4, 2011 letter to submit a medical report from an attending physician that
provided medical rationale explaining the nature of the relationship between any diagnosed
condition and the accepted incident at work. Appellant failed to submit sufficient medical
evidence that meets this requirement. She has failed to establish the medical component of her
claim.
Appellant submitted evidence regarding the circumstances of the May 23, 2011 incident.
This evidence is not medical evidence sufficient to establish that she sustained an injury on
4

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

5

T.H., 59 ECAB 388 (2008); John J. Carlone, 41 ECAB 354, 356-57 (1989).

6

D.G., 59 ECAB 734 (2008); G.T., 59 ECAB 447 (2008); I.J., 59 ECAB 408 (2008).

7

The Board has held that pain is generally considered a symptom, not a firm medical diagnosis. Robert Broome,
55 ECAB 339, 342, (2004).
8

I.J., supra note 6; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

May 23, 2011. Appellant’s lay opinion is not relevant to the medical issue in this case, which
can only be resolved through the submission of a probative medical opinion from a physician.9
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 failed to establish that she sustained an injury at work on
May 23, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 10, 2011 is affirmed.
Issued: June 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Gloria J. McPherson, 51 ECAB 441 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
REGIONAL BENEFIT OFFICE, Chicago, IL,
Employer
__________________________________________

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

Docket No. 17-0982
Issued: July 9, 2018

Case Submitted on the Record

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

JURISDICTION
On April 4, 2017 appellant filed a timely appeal from a March 7, 2017 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 appellant has met his burden of proof to establish a traumatic injury
causally related to the accepted March 31, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its March 7, 2017 decision.
The Board is limited to the evidence that was in the case record at the time of OWCP’s final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 22, 2016 appellant, then a 69-year-old claims assistant, filed a traumatic injury
claim (Form CA-1) alleging that on March 31, 2016 he sustained an injury to his right upper
extremity with symptoms of pain, stiffness, and numbness as a result of typing. He stopped
work on April 1, 2016 and returned to work on April 11, 2016. A supervisor checked a box
indicating that appellant did not injure himself in the performance of duty, explaining that she
was out of the office that day and did not know there was an injury.
By letter dated March 28, 2016, Dr. Gregory Winstead, Board-certified in family
medicine, noted that appellant was under his care from April 1 through 8, 2016, and could return
to his full duties as of April 11, 2016.3
On April 8, 2016 Dr. William Swedler, a Board-certified internist, noted that he had seen
appellant on that date for arthritis of the wrists and a flare-up of symptoms of carpal tunnel
syndrome. He recommended that appellant be assigned to duties not involving typing for 60
days.
In a disability certificate dated April 12, 2016, Dr. Aleksandr Goldvekht, Board-certified
in physical medicine and rehabilitation, recommended that appellant be released to limited duty
with restrictions of no lifting, carrying, pushing, or pulling with the right hand, no walking,
standing, or sitting for more than 30 continuous minutes at a time, and no typing with the right
hand. He recommended that these restrictions last from April 12 through May 10, 2016.
On June 3, 2016 Dr. Swedler noted that appellant was seen for arthritis of the wrists and a
flare-up of right carpal tunnel syndrome for his unit arthritis. He recommended that appellant be
assigned to duties that entails no typing for 90 days.
By letter dated July 22, 2016, Dr. Swedler noted that he had seen appellant on that day
for evaluation of carpal tunnel syndrome in appellant’s right wrist. He recommended that, due to
his worsening condition, appellant would be unable to perform his duties for a minimum of 90
days, as it would exacerbate his symptoms.
On July 25, 2016 appellant filed a notice of recurrence (Form CA-2a) alleging that his
injury of March 31, 2016 had recurred on July 11, 2016. He did not stop work. Appellant
explained that while he had been limited to non-typing duties, he performed filing and mail room
duties, including lifting and moving files, as well as packages. He stated that the condition had
never ceased and that he had continued to work light duty continuously. A supervisor noted that
the recurrence was not reported, and that appellant had continued to type and use his computer
despite his medical provider’s restrictions. The supervisor further noted that appellant’s access
to computers had been suspended to prevent further injury.
By letter dated September 7, 2016, OWCP informed appellant that he had not submitted
sufficient evidence to support his claim. It noted that appellant had not submitted sufficient
evidence to establish how the claimed injury resulted in his diagnosed carpal tunnel syndrome.
3

Dr. Winstead referred to April 1, 2016 as “today” in this letter.

2

OWCP requested that appellant submit a narrative medical report from his attending physician,
including the physician’s opinion, supported by a medical explanation, as to how the claimed
work incident caused or aggravated his diagnosed conditions.
By letter dated September 2, 2016, Dr. Swedler noted that he had seen appellant on that
day for evaluation of his right wrist carpal tunnel syndrome and osteoarthritis in the left wrist.
He noted that appellant’s conditions had caused him permanent disability and were severely
worsened by his job as a claims assistant. Dr. Swedler observed, “The disability is a
consequence of his job which he can no longer perform due to the carpal tunnel causing severe
pain and numbness to three of his fingers and his inability to do repetitive movements with his
right hand [and] wrist.”
On September 20, 2016 Dr. Swedler noted that he had treated appellant for carpal tunnel
syndrome of the right wrist between April 29 and September 2, 2016. He observed that appellant
had pain, numbness, and a tingling sensation in his right elbow, wrist, and hand, involving his
right thumb, index finger, middle finger, and lateral hand. Evaluation on April 15, 2016 found
diminished monofilament sensation to light touch on the right hand in the median nerve
distribution, along with reduced active range of motion on flexion and extension, and reduced
hand strength. An x-ray study from February 3, 2012 demonstrated severe loss of radial carpal
joint space with large cysts in the scaphoid bones and reduced intercarpal joint spaces.
Dr. Swedler further noted degenerative arthritic changes, perhaps from prior trauma. He
concluded that, “[Appellant’s] carpal tunnel pain is made worse by his duties as a claims
assistant with the repetitive motion typing entails.”
In occupational therapy notes dated April 8, 2016, Dr. Swedler examined appellant for
complaints of paresthesias of the right arm and first three digits of his right hand over the past six
months. He noted that appellant worked in a job involving typing at the employing
establishment, which appellant stated aggravated his parasthesias. On examination Dr. Swedler
noted moderate swelling over the medial side of the right wrist accompanied by pain. He
diagnosed appellant with carpal tunnel syndrome and gout. Dr. Swedler administrated an
injection to the right wrist. On April 15, 2016 he examined appellant for complaints of dorsal
wrist pain and weakness/parasthesias throughout median nerve distribution of the right hand.
Dr. Swedler noted that appellant’s work involved data entry and typing for most of his workday.
On physical examination he noted diminished light touch sensation of fingers of the right hand
and diminished active range of motion on flexion and extension, along with diminished hand
strength. Dr. Swedler recommended occupational therapy. The progress notes documented
appellant’s follow-up appointments regarding the progress of his physical therapy on April 22
and 29, 2016.
In a follow-up visit on May 13, 2016, Dr. Swedler noted that appellant’s range of motion,
hand pain, and hand strength had improved after four occupational therapy sessions. He noted
that appellant admitted to lifting heavy dumbbells despite a therapist’s recommendation to
replace them with other exercises, and stated that occupational therapy was no longer warranted.
On May 27, 2016 Dr. Swedler noted that appellant experienced pain with hyperextension of the
right wrist, due to a ganglion cyst, though symptoms of his right wrist’s carpal tunnel syndrome
had improved.

3

On July 22, 2016 appellant visited Dr. Srinaivasu Yerneni with complaints of discomfort
in his right wrist, noting that he had been moved to the mail room of the employing
establishment due to his disability from typing, which had caused greater discomfort in his
wrist.4 On examination Dr. Yerneni noted limited flexion and extension of the right wrist with
full strength and sensation.
By decision dated March 7, 2017, OWCP denied appellant’s claim. It found that he had
not submitted sufficient medical evidence to establish a causal relationship between his
diagnosed conditions and the employment incident of March 31, 2016. OWCP noted that
Dr. Swedler’s report of September 20, 2017 was considered equivocal without a more in-depth
explanation in light of appellant’s known arthritic changes and possible prior trauma to his right
wrist.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether “fact of injury” has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. 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. An employee may establish that the employment incident occurred, as alleged,
but fail to show that his or her condition relates to the employment incident.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
4

Dr. Yerneni’s Board certification in a medical specialty could not be confirmed.

5

Supra note 1.

6

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
7

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

9
Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).

4

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a causal
relationship between the March 31, 2016 incident and his claimed right wrist conditions.
On March 28, 2016 Dr. Winstead noted that appellant was under his care from April 1
through 8, 2016. On April 8, 2016 Dr. Swedler noted that he had seen appellant on that date for
arthritis of the wrists and a flare-up of symptoms of carpal tunnel syndrome. In a disability
certificate dated April 12, 2016, Dr. Goldvekht recommended that appellant be released to
limited duty with restrictions.
On June 3, 2016 Dr. Swedler noted that appellant was seen for arthritis of the wrists and a
flare-up of right carpal tunnel syndrome for his unit arthritis. By letter dated July 22, 2016, he
noted that he had seen appellant on that day for evaluation of carpal tunnel syndrome in
appellant’s right wrist. In occupational therapy notes dated April 8, 2016, Dr. Swedler examined
appellant for complains of paresthesias of the right arm and first three digits of his right hand
over the past six months. On April 15, 2016 he examined appellant for complaints of dorsal
wrist pain and weakness/parasthesias throughout median nerve distribution of the right hand. In
a follow-up visit on May 13, 2016, Dr. Swedler noted that appellant’s range of motion, hand
pain, and hand strength had improved after four occupational therapy sessions. On May 27,
2016 he noted that appellant experienced pain with hyperextension of the right wrist, due to a
ganglion cyst, though symptoms of his right wrist’s carpal tunnel syndrome had improved.
On July 22, 2016 appellant visited Dr. Yerneni with complaints of discomfort in his right
wrist, noting that he had been moved to the mail room of the employing establishment due to his
disability from typing, which had caused greater discomfort in his wrist.
On September 2, 2016 Dr. Swedler noted that he had seen appellant on that day for
evaluation of his right wrist carpal tunnel syndrome and osteoarthritis in the left wrist. He noted
that his conditions had caused him permanent disability and were severely worsened by his job
as a claims assistant. Dr. Swedler opined that appellant’s conditions were a consequence of his
job. On September 20, 2016 he noted that he had treated appellant for carpal tunnel syndrome of
the right wrist between April 29 and September 2, 2016. Dr. Swedler observed that appellant
had pain, numbness, and a tingling sensation in his right elbow, wrist, and hand, involving his
right thumb, index finger, middle finger, and lateral hand. Evaluation on April 15, 2016 found
diminished monofilament sensation to light touch on the right hand in the median nerve
10

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

11

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

distribution, along with reduced active range of motion on flexion and extension, and reduced
hand strength. An x-ray study from February 3, 2012 demonstrated severe loss of radial carpal
joint space with large cysts in the scaphoid bones and reduced intercarpal joint spaces.
Dr. Swedler further noted degenerative arthritic changes, perhaps from prior trauma, and stated
that appellant’s duties at work had exacerbated his symptoms. His September 2 and 20, 2016
reports regarding appellant’s right hand conditions do not contain medical rationale explaining
how the specific incident of March 31, 2016 physiologically caused appellant’s specific
condition.12
None of the medical reports submitted for consideration in this claim contained an
opinion on the cause of appellant’s conditions. Medical evidence offering no opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.13 As such, these reports, lacking any opinion on the cause of appellant’s conditions,
are insufficient to establish appellant’s claim.
Other medical evidence of record, including work restriction notes and diagnostic testing,
are of limited probative value as they do not specifically address whether appellant’s conditions
are attributable to his accepted work incident.14
The issue of a causal relationship between appellant’s claimed conditions and a workrelated incident is a medical question that must be established by probative medical opinion from
a physician.15 The Board finds that none of the medical evidence appellant submitted constitutes
rationalized medical evidence sufficient to establish causal relationship between the work
incident and his diagnosed conditions.16 Accordingly, the Board finds that appellant failed to
meet his 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 his burden of proof to establish a traumatic
injury causally related to the accepted March 31, 2016 employment incident.

12

See A.D., Docket No. 17-1136 (issued November 9, 2017).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
14

See K.W., 59 ECAB 271 (2007); A.D., id.; Linda I. Sprague, 48 ECAB 386 (1997) (finding that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship). See also D.J., Docket No. 17-0364 (issued April 13, 2018).
15

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

16

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

6

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.T., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS INSTALLATIONS EAST,
Camp Lejeune, NC, Employer
__________________________________________

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

Docket No. 19-0140
Issued: May 23, 2019

Case Submitted on the Record

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

JURISDICTION
On October 24, 2018 appellant filed a timely appeal from a May 8, 2018 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 8, 2018 decision, OWCP received additional evidence and appellant
submitted evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is
limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her lumbar and
hip conditions were causally related to the accepted September 20, 2017 employment incident.
FACTUAL HISTORY
On October 20, 2017 appellant, then a 51-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that, on September 20, 2017, she sustained a back injury when
she lifted tires of all sizes out of a truck and rolled them to a contractor’s trailer while in the
performance of duty.
By development letter dated October 23, 2017, OWCP advised appellant of the
deficiencies of her claim and requested additional medical evidence. It afforded her 30 days to
submit the necessary evidence.
In a report dated October 5, 2017, Dr. Raymond Bradley, a Board-certified orthopedic
surgeon, diagnosed sciatica, lumbar intervertebral disc degeneration, and right hip trochanteric
bursitis based on lumbar spine and sacrum x-rays. He ordered injections for appellant’s lumbar
spine and right hip.
An unsigned report dated October 12, 2017, received by OWCP on October 30, 2017,
generated by Sean Carroll, a physician assistant, diagnosed lumbar intervertebral disc degeneration
based on lumbar spine x-rays.
By decision dated November 29, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish that her diagnosed
conditions were causally related to the accepted September 20, 2017 employment incident.
On December 12, 2017 appellant requested a review of the written record by an OWCP
hearing representative.
In a magnetic resonance imaging (MRI) scan report dated December 4, 2017, Dr. James C.
Lorentzen, a Board-certified diagnostic radiologist, indicated impressions of asymmetric rightsided disc bulge at L4-5 resulting in moderate right lateral recess stenosis and impingement of the
right L5 nerve root.
In a letter dated January 11, 2018, Dr. Mark C. Held, a Board-certified neurosurgeon,
indicated that while lifting a tire appellant experienced an acute onset of pain. Based on the MRI
scan of her lumbar spine, he diagnosed right-sided paracentral disc protrusion at L4-5, minus the
right L5 nerve root. Dr. Held recommended appellant undergo L4-5 lumbar discectomy. In a
letter dated February 22, 2018, he indicated that she could return to work with restrictions.
By decision dated May 8, 2018, a hearing representative affirmed OWCP’s November 29,
2017 decision, finding that appellant had not established that her diagnosed medical conditions
were causally related to the accepted September 20, 2017 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.6 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.7
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed lumbar and hip conditions were causally related to the accepted September 20, 2017
employment incident.
Appellant submitted a report dated October 5, 2017 from Dr. Bradley who diagnosed
sciatica, lumbar intervertebral disc degeneration, and right hip trochanteric bursitis based on
lumbar spine and sacrum x-rays. However, Dr. Bradley did not opine as to the cause of appellant’s
conditions. Similarly, OWCP received a letter dated January 11, 2018 from Dr. Held who
diagnosed right-sided paracentral disc protrusion at L4-5, minus the right L5 nerve root. Dr. Held
also noted that while lifting a tire appellant experienced an acute onset of pain.9 Medical evidence
that does not offer an opinion regarding the cause of the employee’s condition is of no probative
3

Supra note 1.

4

J.P., Docket No. 18-1165 (issued January 15, 2019); see Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva,
55 ECAB 179 (2003).
5

C.P., Docket No. 18-1645 (issued March 8, 2019); see Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117
(2005); Ellen L. Noble, 55 ECAB 530 (2004).
6

G.N., Docket No. 18-0403 (issued September 13, 2018); see Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

K.V., Docket No. 18-0723 (issued November 9, 2018); see Leslie C. Moore, 52 ECAB 132 (2000); Gary L.
Fowler, 45 ECAB 365 (1994).
8

J.P., supra note 4; Dennis M. Mascarenas, 49 ECAB 215 (1997).

9
The Board has held that pain is a symptom and not a diagnosed medical condition. See W.M., Docket No. 19-0013
(issued April 1, 2019).

3

value on the issue of causal relationship.10 A medical opinion should reflect a correct history and
offer a medically sound explanation by the physician of how the specific employment incident
physiologically caused or aggravated the diagnosed condition.11 As these reports were deficient
in this regard, the reports are of limited probative value.12
Appellant also submitted a report dated October 12, 2017 from a physician assistant. He
diagnosed lumbar intervertebral disc degeneration based on lumbar spine x-rays. However, the
Board has held that medical reports from physician assistants are of no probative value as a
physician assistant is not considered a physician as defined under FECA and therefore is not
competent to provide a medical opinion.13 Thus, this report is of no probative value.
Dr. Lorentzen’s diagnostic test report dated December 4, 2017 diagnosed asymmetric
right-sided disc bulge at L4-5 resulting in moderate right lateral recess stenosis and impingement
of the right L5 nerve root. The Board has held that reports of diagnostic tests lack probative value
as they do not provide an opinion on causal relationship between the accepted employment
incident and a diagnosed condition.14 Therefore, this report is insufficient to meet appellant’s
burden of proof.
As appellant has not submitted sufficient medical evidence setting forth a rationalized
opinion on the issue of causal relationship, she has not met her burden of proof to establish that
her back condition was causally related to the accepted September 20, 2017 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her lumbar
and hip conditions were causally related to the accepted September 20, 2017 employment incident.

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

R.K., Docket No. 17-0151 (issued December 12, 2018); J.M., Docket No. 17-1002 (issued August 22, 2017).

12

See supra note 10.

13

T.H., Docket No. 18-1736 (issued March 13, 2019); see 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); 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). S.J., Docket No. 17-0783, n.2 (issued April 9, 2018) (nurse practitioners are not considered physicians
under FECA).
14
E.S., Docket No. 18-1750 (issued March 11, 2019); see D.H., Docket No. 17-1146 (issued October 20, 2017);
S.G., Docket No. 17-1054 (issued September 14, 2017); E.V., Docket No. 17-0417 (issued September 13, 2017).

4

ORDER
IT IS HEREBY ORDERED THAT the May 8, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 23, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, HOPE MILLS
POST OFFICE, Hope Mills, NC, Employer
__________________________________________

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

Docket No. 08-2238
Issued: July 2, 2009

Case Submitted on the Record

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

JURISDICTION
Appellant filed a timely appeal with the Board on August 12, 2008 of the February 6 and
May 20, 2008 decisions of the Office of Workers’ Compensation Programs denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant established that he sustained bilateral carpal tunnel
syndrome in the performance of duty.

FACTUAL HISTORY
On November 20, 2007 appellant, then a 36-year-old city carrier, filed an occupational
disease claim (Form CA-2) for bilateral carpal tunnel syndrome sustained on or before
October 30, 2007 in the performance of duty. He attributed his condition to casing and carrying
mail.
In a December 10, 2007 letter, the Office advised appellant of the type of medical and
factual evidence needed to establish his claim. It emphasized the importance of submitting a
rationalized report from appellant’s attending physician explaining how and why work factors
would cause the claimed condition. Appellant did not submit additional evidence.
By decision dated February 6, 2008, the Office denied the claim on the grounds that
causal relationship was not established as appellant failed to submit any medical evidence.
In an April 1, 2008 letter, appellant requested reconsideration. He submitted medical
evidence.
In November 29, 2006 and April 23, 2007 reports, Dr. Rene M. Kotzen, an attending
Board-certified neurosurgeon, noted appellant’s history of an occupational neck injury in 2004
with subsequent numbness in both hands. He diagnosed possible carpal tunnel syndrome versus
the effects of the neck injury.
Dr. Stephen Kouba, an attending Board-certified neurosurgeon, performed a left carpal
tunnel release on January 22, 2008 and a right carpal tunnel release on March 11, 2008. In a
February 6, 2008 report, he stated that he did “not have an exact answer” whether appellant’s
“job may have directly caused or aggravated carpal tunnel.” Dr. Kouba opined that it was
“possible that competitive use can trigger or can develop a carpal tunnel syndrome … [i]t is
bilateral.”
By decision dated May 20, 2008, the Office denied modification, finding that the medical
evidence was insufficiently rationalized to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

2

elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion 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 medial 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.4
ANALYSIS
Appellant claimed that he sustained bilateral carpal tunnel syndrome due to work factors
occurring on or before October 30, 2007. He submitted medical reports from Dr. Kotzen, an
attending Board-certified neurosurgeon, who diagnosed possible carpal tunnel syndrome versus
the sequelae of a 2004 neck injury. The equivocal nature of Dr. Kotzen’s opinion reduces its
probative value.5 Dr. Kouba, an attending Board-certified neurosurgeon, stated that it was
“possible that competitive use can trigger or develop carpal tunnel syndrome.” However, he did
not explain how or why appellant’s job duties would cause carpal tunnel syndrome. Dr. Kouba’s
opinion is insufficiently rationalized to establish causal relationship.6
The Board notes that appellant was advised by December 10, 2007 letter of the necessity
of submitting medical evidence explaining how and why work factors would cause or contribute
to the claimed carpal tunnel syndrome. Appellant did not submit such evidence. Therefore, he
failed to meet his burden of proof in establishing causal relationship.

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Solomon Polen, 51 ECAB 341 (2000).

5

T. M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

6

Deborah L. Beatty, 54 ECAB 340 (2003) (medical reports not containing rationale on causal relationship are
entitled to little probative value).

3

CONCLUSION
The Board finds that appellant has not established that he sustained bilateral carpal tunnel
syndrome in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 20 and February 6, 2008 are affirmed.
Issued: July 2, 2009
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 15-440
Issued: April 14, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 15, 2014 appellant timely appealed the June 19, 2014 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied reconsideration.1 The
latest merit decision was issued on May 1, 2013, which is more than 180 days prior to the filing
of the current appeal. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the June 19, 2014
nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s April 25, 2014 request for
reconsideration pursuant to section 8128(a).
1

The Clerk of the Appellate Boards received the appeal on December 24, 2014, which is more than 180 days
after OWCP’s June 19, 2014 decision. However, the current appeal is considered timely based on its December 15,
2014 postmark date. See 20 C.F.R. § 501.3(f)(1) (2014).
2

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
On March 14, 2012 appellant, then a 32-year-old police officer, filed an occupational
disease claim (Form CA-2) for neurological and respiratory disorders, which he attributed to
exposure to chemical agent resistant coating (CARC).3 The alleged CARC paint exposure began
in October 2007. At the time, appellant was a general equipment mechanical helper temporarily
assigned to Building 499. He claimed to have worked around CARC paint for several weeks
before receiving personal protective equipment (PPE). Appellant indicated that he first became
aware of his illness on October 17, 2007. But it was not until October 14, 2011 that he first
realized his illness was caused or aggravated by his employment. Appellant stated that his
symptoms were present shortly after working around CARC paint in 2007. In 2008, he worked
approximately six weeks as a sandblaster before assuming his current duties as a police officer.
OWCP initially denied the claim on the basis that appellant did not establish fact of
injury. In its April 23, 2012 decision, it found that appellant had not factually established his
claimed occupational exposure. OWCP also found that the medical evidence did not contain a
diagnosis related to appellant’s claimed occupational exposure.
By decision dated August 1, 2012, the Branch of Hearings and Review set aside OWCP’s
April 23, 2012 denial. The hearing representative remanded the case for further development
regarding the issue of whether appellant timely filed his claim.
In an August 31, 2012 sworn statement, appellant indicated that he advised his
supervisors around late November or early December 2007 that he was having breathing
problems and sores/rashes on his lower leg while working in Building 499. According to him,
his supervisors advised him they would place his health concerns in his file.
In a November 15, 2012 decision, OWCP denied appellant’s claim because he had not
filed in a timely manner. The Branch of Hearings and Review affirmed OWCP’s decision on
May 1, 2013. The hearing representative found that the employing establishment did not have
reasonable notice of an on-the-job injury, noting that appellant’s employer “states unequivocally
that [he] did not tell them about the exposure....” Additionally, the hearing representative found
that appellant believed at the time that his 2007 health problems were work related.
Consequently, the hearing representative found that appellant’s March 2012 CA-2 form was
untimely because he had not filed within three years of his claimed exposure.
In April 2014, appellant submitted a packet of documents to OWCP that included
employee medical records from January 2008 and a March 26, 2014 letter from the Office of
Personnel Management (OPM) advising appellant that he had been approved for disability
retirement. OPM found appellant was disabled due to dementia secondary to CARC.
Appellant’s employee health records from January 22, 2008 noted that he had been painting the
past three months and did not know how long he would be loaned out. The treatment records
also noted a history of allergies and asthma, as well as headache, dizziness, and light-headedness.
Appellant was identified as a loan painter and there was a notation of prior respirator use at
work.
3

Other claimed conditions included skin problems, a liver condition, decreased testosterone, and an eye problem.

2

On June 6, 2014 appellant telephoned OWCP regarding the status of the 25 plus pages of
documents he submitted in April 2014. OWCP acknowledged having received the documents on
April 29, 2014, but explained there was no clear indication of appellant’s intent with respect to
reconsideration.
It further explained the appeal rights associated with the hearing
representative’s May 1, 2013 decision. That same afternoon, appellant faxed a handwritten note
requesting reconsideration, which he dated April 25, 2014. OWCP’s June 6, 2014 telephone call
notes (Form CA-110) acknowledged receipt of appellant’s April 25, 2014 request for
reconsideration.
In a June 19, 2014 decision, OWCP denied appellant’s April 25, 2014 request for
reconsideration. The claims examiner noted that appellant requested reconsideration, but
presented no new evidence or argument. She reiterated that “No additional evidence was
received....”
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.6 A timely application for reconsideration, including all supporting documents,
must set forth arguments and contain evidence that either: (i) shows that OWCP erroneously
applied or interpreted a specific point of law; (ii) advances a relevant legal argument not
previously considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not
previously considered by OWCP.7 When a timely application for reconsideration does not meet
at least one of the above-noted requirements, OWCP will deny the request for reconsideration
without reopening the case for a review on the merits.8
ANALYSIS
Appellant argued that he submitted new evidence to OWCP in April 2014, which it failed
to consider in its June 19, 2014 decision. He also noted that his then-supervisor, David F.

4

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

20 C.F.R. § 10.607.

6

20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). 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.
7

Id. at § 10.606(b)(2).

8

Id. at §§ 10.607(b), 10.608(b).

3

McCluskey, has not provided a statement on the record regarding whether appellant previously
reported his 2007 health concerns.
The Board agrees and finds that the case is not in posture for decision. Because Board
decisions are final with regard to the subject matter appealed, it is crucial that OWCP address all
relevant evidence received prior to the issuance of its final decision.9 In this instance, OWCP
failed to consider the 25 plus pages of documents appellant submitted on or about
April 25, 2014. OWCP’s June 19, 2014 decision incorrectly indicated that that “No additional
evidence was received....” The June 6, 2014 CA-110 notes clearly reflect appellant’s intent, as
well as OWCP’s understanding that the packet of documents received on April 29, 2014 were
associated with appellant’s request for reconsideration. In light of OWCP’s failure to address all
relevant evidence before it at the time, the case shall be remanded for a proper review of the
evidence and issuance of an appropriate final decision.10
CONCLUSION
The case is not in posture for decision.

9

Id. at § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990). Whether OWCP receives relevant evidence
on the date of the decision or several days prior, such evidence must be considered. Willard McKennon, 51 ECAB
145 (1999).
10

Although the case was previously remanded for further development, it is noteworthy that OWCP did not send
appellant’s August 31, 2012 sworn statement to the employing establishment for comment. To date, appellant’s
then-supervisor, Mr. McCluskey, has not been asked whether appellant specifically advised him of his health
concerns in 2007-08. Appellant bears the burden of establishing entitlement under FECA; however, OWCP shares
responsibility in the development of the evidence. Richard F. Williams, 55 ECAB 343, 346 (2004). Once OWCP
undertakes development of the record it must do a complete job in procuring evidence that resolves the relevant
issue(s) in the case. Id.

4

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: April 14, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1270
Issued: July 2, 2009

Case Submitted on the Record

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

JURISDICTION
On April 1, 2008 appellant filed a timely appeal from decisions of the Office of Workers’
Compensation Programs dated February 1, 4 and 29 and March 13, 2008, finding that he had
sustained consequential injuries and was not entitled to additional wage-loss compensation
concurrent with the period of a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant’s left knee and back strain conditions were
consequential to his accepted right knee injury; and (2) whether appellant is entitled to receive
compensation for wage loss concurrently with a lump-sum schedule award payment.
FACTUAL HISTORY
On December 19, 2003 appellant, then a 55-year-old rural carrier, sustained injury to his
right arm and leg when he slipped on ice in the performance of duty. The Office accepted his
claim for right shoulder and right thigh strains, a torn meniscus of the right knee and a right

shoulder rotator cuff tear.1 On February 3, 2005 appellant was placed on the periodic rolls in
receipt of wage-loss compensation.
On October 18, 2005 appellant received schedule awards for 22 percent impairment of
the right arm and 24 percent impairment of the right leg. The period of the awards ran from
August 16, 2005 to April 6, 2008. On October 24, 2005 appellant requested that his schedule
awards be paid in a lump sum. In a letter dated November 3, 2005, the Office advised appellant
that a lump-sum payment would represent full and final compensation for the period of the
award and that additional wage-loss benefits could be reinstated at a later date for temporary
disability. On November 7, 2005 appellant signed an agreement, accepting the lump-sum
payment with the understanding that no further monetary compensation would be paid during the
period of the award.2 The Office issued appellant’s lump-sum payment on November 15, 2005.3
On August 7, 2006 appellant was treated by Dr. Douglas G. Norquist, a Board-certified
orthopedic surgeon. He related that appellant sustained injury to his right knee in a fall two years
prior for which arthroscopy was performed. He also listed a prior lateral meniscectomy
performed in 1999. Dr. Norquist noted that appellant stood at work to case mail, favoring his
right side and had developed back and left leg pain. He recommended right knee replacement
arthroplasty which was performed on October 23, 2006. Following surgery, appellant was
placed in physical therapy. On January 22, 2007 appellant’s continuing complaint of low back
and left leg pain was noted. Appellant attributed his complaints to an abnormal gait and focusing
on his right knee condition. A physician’s assistant in Dr. Norquist’s office noted that she
addressed abnormal gait patterns with appellant.
On February 5, 2007 appellant filed an occupational disease claim asserting that lifting
activities in his federal employment had aggravated the degenerative disc disease of his low
back. He also alleged a left knee strain as he favored his injured right knee and placed extra
weight on his left leg.4
By report dated March 15, 2007, Dr. Judith A. Heusner, a specialist in physical medicine
and rehabilitation, provided a disability retirement evaluation. She obtained a history that
appellant initially injured his right knee at work in 1999 and was treated for a torn meniscus. He
subsequently returned to work as a rural letter carrier but exacerbated his right knee in the
December 19, 2003 fall. As it became intolerable for appellant to bear his weight on the right
leg, a total knee replacement surgery was performed. Thereafter, appellant continued to favor

1

The record reflects that appellant underwent a prior meniscectomy of his right knee in 1999.

2

Appellant agreed to accept $74,644.78 in compensation for the commuted value of further installment payments
under the schedule award payable from October 30, 2005 to April 6, 2008. The agreement noted that payment
represented full and final settlement of the schedule award in connection with his December 19, 2003 employment
injury and that no further monetary compensation benefits would be extended for the duration of the award.
3

On October 23, 2006 appellant underwent surgery for a total right knee replacement. The record indicates that
appellant elected to receive retirement benefits under the Federal Employees’ Retirement System.
4

This claim was given File No. xxxxxx658.

2

his right knee due to pain, which caused increasing chronic low back pain and a left knee
condition.
In a March 20, 2007 decision, the Office denied appellant’s claim finding that the
medical evidence was not sufficient to establish that his low back or left knee conditions were
due to his federal employment or accepted injury.
Appellant requested an oral hearing on March 21, 2007 which was held on June 25, 2007.
Additional treatment notes from Dr. Norquist described appellant’s postsurgical treatment for a
possible infection underneath his tibial component.
By decision dated September 7, 2007, an Office hearing representative directed the
Office to combine appellant’s right knee claim with his left knee and back claims and refer him
for a second opinion examination.
On September 21, 2007 the Office referred appellant to Dr. George R. Harper, a Boardcertified orthopedic surgeon. In a report dated October 8, 2007, Dr. Harper reviewed appellant’s
history of injury and medical treatment. He noted that appellant had undergone several surgical
procedures for his right knee and right shoulder, most recently surgery on September 5, 2007 for
removal of an infected total right knee replacement and antibiotic treatment. Dr. Harper set forth
findings on examination of appellant’s lumbar spine and lower extremities. He advised that
appellant had preexisting spondylolysis at the lumbosacral level with a very slight
spondylolisthesis and degenerative changes. Dr. Harper opined that appellant’s back condition
was congenital and that any aggravation of the low back by the right knee injury was temporary
and resolved within two to three months. He stated that there was no causal relationship between
appellant’s ongoing low back condition and his work as a rural letter carrier. Dr. Harper stated
that the preexisting spondylolysis had progressed in a normal manner. He addressed the ongoing
problem with appellant’s right knee and complications following surgical replacement, noting
that it was not fixed or stable and was being treated appropriately for infection. Dr. Harper
stated that appellant’s left knee condition could have been aggravated by the right knee
difficulties but that no surgical intervention could be considered until the right knee infection
cleared up.
The Office requested that Dr. Harper provide a supplemental report further addressing the
relationship of appellant’s left knee condition and the accepted right knee injury. On
November 27, 2007 Dr. Harper noted that, after the October 23, 2006 right knee replacement,
appellant was diagnosed with an infection and at the time of his physical examination the total
knee replacement had been removed. During this extended period, increased stress was placed
on the left knee which accelerated any degenerative changes due to extra weight bearing.
Dr. Harper examined appellant again on January 8, 2008 and obtained a magnetic resonance
imaging (MRI) scan of the left knee on January 7, 2008. He diagnosed tri-compartment
osteoarthritis with probable tear of the lateral meniscus. Dr. Harper stated, “With regard to the
left lower extremity difficulty, this patient clearly had some preexisting degenerative arthritis
that has been worsened by the difficulty with his right lower extremity.” He characterized the
aggravation to the left knee as permanent, noting that the right knee condition effectively
doubled the stress on the left knee. Dr. Harper reiterated that appellant’s low back condition had
not been worsened by the right knee injury.

3

On January 22, 2008 the Office advised appellant that his left leg claim was accepted for
a lateral meniscus tear. However, his back condition claim was still under development. In a
February 1, 2008 decision, the Office informed appellant that his left knee meniscal tear was
accepted as consequential to his right knee injury. The claims examiner noted that she had
deleted the left knee code from appellant’s left knee occupational disease claim and combined it
into his accepted right knee claim. The Office advised appellant to submit all medical bills and
inquiries under the right knee injury claim number. He filed a claim for wage-loss compensation
from October 19, 2006 to January 25, 2008 under his left knee occupational disease claim
number.
By decision dated February 4, 2008, the Office denied appellant’s claim for wage-loss
compensation on the grounds that he had received a lump-sum schedule award based on his right
knee injury and was not eligible for concurrent wage-loss compensation benefits due to his
consequential left knee condition. It noted that the lump-sum payment was for the period
through April 6, 2008 and that wage-loss compensation could not be paid as it would constitute a
dual benefit. The Office advised appellant that the decision did not preclude payment of
compensation for a different time period.
In a letter dated February 4, 2008, appellant questioned the Office’s February 1, 2008
acceptance letter. He contended that the schedule award lump-sum agreement did not allow for
inclusion of additional body parts and pertained only to his right shoulder and right leg injuries.
Appellant again requested wage-loss compensation based on his accepted left knee condition.
As to appellant’s low back condition, the Office found a conflict in medical opinion
between Dr. Norquist, for appellant, and Dr. Harper, the second opinion specialist. It referred
him to Dr. Donald D. Hubbard, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a February 15, 2008 report, Dr. Hubbard provided a detailed factual and
medical history and findings on physical examination. Diagnostic testing revealed a grade one
anterolisthesis, L5 on S1, with multilevel degenerative disc disease. Dr. Hubbard diagnosed low
back pain secondary to repetitive sprain/strain injury with left lower extremity sciatica. He
stated that the primary connection of appellant’s low back pain complaints and work was
provided by his history of work activities performed and the onset of symptoms without a
specific injury. He further stated, “The medical connection between the lower back diagnosis
and the claimant’s right leg is again provided by [appellant’s] history of necessity to avoid full
activity with the right lower extremity which in turn required him to rely on other body parts to
compensate for the impairment including the lower back. Such physical compensation would
legitimately be thought to place additional stress on the lower back.”
On February 29, 2008 the Office accepted appellant’s lumbar strain condition as a
consequence of the December 19, 2003 right knee injury. He was advised to submit any medical
bills and compensation claims under the right knee claim number.
By decision dated March 13, 2008, the Office reviewed appellant’s claim for
compensation based on his left knee condition and found that he was not entitled to receive
compensation under a schedule award and wage loss for disability for work concurrently.

4

LEGAL PRECEDENT -- ISSUE 1
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.5 The subsequent injury is compensable if it is the direct and
natural result of a compensable primary injury. With respect to consequential injuries, the Board
has noted that, where an injury is sustained as a consequence of an impairment residual to an
employment injury, the new or second injury, even if nonemployment related, is deemed because
of the chain of causation to arise out of and in the course of employment and is compensable.6
As held by the Board in Charles R. Hollowell,7 if the result of the second incident could not have
developed without the presence of damage from the primary employment-related incident, that
primary incident is not exonerated. Liability under the Federal Employees’ Compensation Act
continues so long as the disability is in any part caused by the employment-related incident.8
Once the Office accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a meniscal tear of his left knee on
January 22, 2008 under his occupational disease claim. In a February 1, 2008 decision, the
Office found that appellant’s left knee meniscus tear was consequential to his right knee injury
based on the reports from Dr. Harper, a Board-certified orthopedic surgeon and second opinion
physician, and Dr. Heusner. In so doing, the Office modified the basis for its acceptance of
appellant’s claim. The Board finds that the medical and factual evidence of record supports the
Office’s determination that appellant’s left knee and low back conditions are a consequence of
his accepted right knee injury.
The physicians of record are in agreement that appellant bore more weight on his left leg
due to the injury to his right knee and that this contributed to an aggravation of the degenerative
changes in his left knee and torn meniscus. The treatment records of Dr. Norquist clearly
indicate that, following acceptance of the 2003 right knee injury, appellant underwent surgical
procedures for a partial medial meniscectomy and culminating in a total knee replacement in
2006 that was not successful due to infection. Additional right knee surgery was performed in

5

Debra L. Dillworth, 57 ECAB 516, 519 (2006).

6

Kathy A. Kelley, 55 ECAB 206 (2004). See also Anthony S. Wax, 7 ECAB 330 (1954).

7

8 ECAB 352 (1955).

8

Id. at 355-56.

9

As a general principle of workers’ compensation law, the party initiating processes to accomplish a modification
of an award of compensation has the burden of showing the correctness of the proposed modification. See Fred
Foster, 1 ECAB 127 (1948).

5

2007.10 Dr. Norquist addressed appellant’s complaint of increasing weakness and pain in the left
leg. He attributed the significant left knee weakness to the fact that appellant compensated by
placing additional weight bearing on the left leg, favoring his right leg.
On March 15, 2007 Dr. Heusner conducted a disability retirement evaluation, noting that
appellant initially injured his right knee on February 17, 1999 and was treated for a torn
meniscus. He returned to work as a rural letter carrier but experienced increasing pain in the
right leg, exacerbated by the fall on December 19, 2003. She noted that it became intolerable for
appellant to bear weight on his right leg and a total knee replacement surgery was performed in
2006. However, due to persistent right knee pain, appellant favored his right lower extremity
which caused increasing chronic low back pain and a left knee condition. In turn, Dr. Harper
agreed that appellant had preexisting degenerative arthritis of the left lower extremity which was
permanently aggravated and made worse by his right knee injury and the inability to bear weight
on that leg.
Appellant contends that the Office modified the basis for acceptance of his claim only
after he sought wage-loss compensation under the left leg occupational disease claim. The
Board finds that the weight of medical opinion supports the Office’s determination to modify the
basis on which appellant’s claim was accepted. As noted, the physicians agree that appellant’s
left knee condition developed as a consequence of the accepted injury to his right knee. The
progression of his right knee injury and multiple surgeries and infection had a direct impact on
both his gait and ability to bear weight resulting in the aggravation of the degenerative disease of
his left leg and meniscus tear.
The weight of medical opinion also supports that appellant’s low back condition was
consequential to his right knee injury. A conflict in medical opinion arose between Dr. Norquist,
his attending physician, and Dr. Harper, an Office referral physician. Dr. Norquist advised that
in favoring his right knee, appellant developed an abnormal gait which aggravated the
degenerative disease of his low back. Dr. Harper, however, opined that appellant’s right knee
injury and medical treatment did not cause or aggravate appellant’s preexisting degenerative disc
disease. He attributed appellant’s back condition to the natural progression of the disease
process. Dr. Hubbard, the impartial medical specialist, provided a thorough review of the
medical records and presented findings on examination of the lumbar spine. He noted that
appellant attributed his complaints of low back pain, by history, to work activities and not to any
specific traumatic injury. He stated: “The medical connection between the lower back diagnosis
and the claimant’s right leg is again provided by [appellant’s] history of necessity to avoid full
activity with the right lower extremity which in turn required him to rely on other body parts to
compensate for the impairment including the lower back. Such physical compensation would
legitimately be thought to place additional stress on the lower back.” Based on the report of the

10

Surgery which is performed as a result of an employment injury and which causes further impairment
constitutes a consequential injury. Bonnie D. Jefferson, 34 ECAB 1426 (1983). See also Melody Friery, 48 ECAB
525 (1997).

6

impartial medical specialist, the Board finds that the Office properly accepted appellant’s low
back condition as a consequence of his right knee injury.11
LEGAL PRECEDENT -- ISSUE 2
Section 10.422(b) of the Office’s regulations provides the Office with discretion to make
a lump-sum payment to an employee entitled to a schedule award under section 8107 when such
a payment is in the employee’s best interest.12 In turn, section 8116(a) of the Act provides that
an employee who receives a lump sum in commutation of installment payments until the
expiration of the period during which such payments continue, may not receive salary, pay or
other remuneration of any type from the United States.13 It is a well-established principle that a
claimant is not entitled to dual workers’ compensation benefits for the same injury.14 A claimant
may not concurrently receive compensation under a schedule award and wage-loss compensation
for disability.15
ANALYSIS -- ISSUE 2
On December 19, 2003 appellant sustained injury to his right knee and right shoulder.
He received schedule awards for permanent impairment to his right leg and right arm on
October 18, 2005, the period of the awards to run from August 16, 2005 to April 6, 2008.
Appellant subsequently requested payment in the form of a lump sum. On November 3, 2005
the Office advised appellant that the lump-sum payment would constitute full and final
compensation under the awards and that no further monetary compensation would be paid during
the period of the awards. Appellant agreed to the lump sum on November 7, 2005 and received
$74,644.78 in compensation for the commuted value of further installment payments. The
record on appeal indicates that, during the period of his schedule awards, appellant was in receipt
of retirement benefits from the Office of Personnel Management.16
Appellant subsequently submitted a claim for wage-loss compensation for the period
October 19, 2006 to January 25, 2008 under the left knee occupational disease claim number.
However, the period claimed is covered under the schedule award lump-sum agreement entered
with the Office on November 7, 2005. Such award of benefits is prohibited as a dual benefit for
11

The Board has held that, where a case is referred to an impartial medical specialist for the purpose of resolving
a conflict in medical evidence, the opinion of such specialist is given special weight when sufficiently wellrationalized and based upon a proper factual background. See Jaja K. Asaramo, 55 ECAB 200 (2004).
12

20 C.F.R. § 10.422(b).

13

5 U.S.C. § 8116(a); see Dale Mackleprang, 55 ECAB 174 (2003).

14

James A. Earle, 51 ECAB 567, 568 (2000).

15

Id.

16

Section 8116(a) does not impair the right of a retired federal employee from receiving compensation for a
schedule award under section 8107. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits,
Chapter 2.1000.6(b) (February 1995). See also Richard A. Mattson, Docket No. 06-264 (issued March 17, 2006);
Thaddeus J. Spevack, 53 ECAB 474 (2002).

7

the same injury. It is well established under section 8116(a) that appellant may not receive
compensation under a schedule award concurrently with wage-loss compensation benefits arising
from his right knee injury.17 The Office advised appellant that he could file for wage-loss
compensation following the expiration of the schedule award.
CONCLUSION
The Board finds that appellant sustained consequential conditions to his left knee and low
back as a result of his accepted right knee injury. Moreover, appellant is not entitled to wageloss compensation based on his consequential left knee condition concurrent with the period of
payment under a lump-sum schedule award for his right leg impairment.
ORDER
IT IS HEREBY ORDERED THAT the March 13 and February 29, 4 and 1, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: July 2, 2009
Washington, DC

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

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

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

17

See Dale Mackelprang, supra note 13.

8