United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
HOSPITAL, Fort Jackson, SC, Employer
__________________________________________

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

Docket No. 08-481
Issued: July 18, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 8, 2006. The record also contains a
February 23, 2007 Office decision denying merit review. 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 has established a period of disability from
February 13 to March 3, 2006 and commencing September 4, 2006; and (2) whether the Office
properly denied appellant’s application for reconsideration pursuant to 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606(b)(2).
FACTUAL HISTORY
On March 20, 2006 appellant, then a 45-year-old licensed practical nurse, filed a claim
alleging that she sustained injuries causally related to a November 29, 2005 employment
incident. She stated that a canister of bodily fluids exploded and she became afraid of working

with bodily fluids. Appellant described the nature of the injuries as stress, anxiousness, chest
pain and insomnia.
In a report dated February 28, 2006, Dr. Bhavesh Amin, a family practitioner, stated that
appellant was treated for symptoms of chest pain. He provided a history that in November 2005
a suction canister had exploded and appellant was anxious when she had to work in the lab.
Dr. Bhavesh diagnosed chest pain and situational stress reaction. Appellant also submitted
reports from Todd Hanson, a family therapist, diagnosing adjustment disorder and post-traumatic
stress disorder (PTSD). On September 27, 2006 the Office accepted adjustment disorder and
PTSD. Appellant was advised to claim periods of disability by filing appropriate CA-7s (claim
for compensation).
On October 18, 2006 appellant filed a (Form CA-7) for the periods February 13 to 17 and
February 21 to March 3, 2006. She also filed a Form CA-7 for a period commencing
September 4, 2006. A memorandum of telephone call dated October 12, 2006 indicated that
appellant had stopped working on September 1, 2006.
By decision dated December 8, 2006, the Office denied the claim for compensation from
February 13 to March 13, 2006 and from September 4, 2006 to the present. The Office found
that the medical evidence was insufficient to establish the claimed periods of disability.
In a letter dated January 4, 2007, appellant requested reconsideration. She stated that she
resigned “because of harassment, mistreatment, abuse, denying of my right as an employee,
threatened constantly.” Appellant submitted additional reports from the family therapist.
By decision dated February 23, 2007, the Office determined that appellant’s application
for reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 Whether a particular injury causes an employee to be disabled for work and the duration
of that disability, are medical issues that must be proved by a preponderance of the reliable,
probative and substantial medical evidence.3 The factors which enter in such an evaluation
include the opportunity for and thoroughness of examination, the accuracy and completeness of
the physician’s knowledge of the facts and medical history, the care of the analysis manifested
and the medical rationale expressed is support of the physician’s opinion.4

1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

4

Gary R. Sieber, 46 ECAB 215 (1994).

2

ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition causally related to a
November 29, 2005 incident involving a canister of fluids that exploded. The Office accepted
the claim for adjustment disorder and PTSD. It is appellant’s burden of proof to establish any
claimed periods of disability for work. She claimed the periods February 13 to 17 and
February 21 to March 3, 20065 and a continuing disability as of September 4, 2006.
With respect to medical evidence, the record does not contain a rationalized medical
opinion on disability for work during the periods claimed causally related to the employment
injuries. Dr. Amin does not provide a complete history, discuss the accepted conditions of PTSD
or adjustment disorder or offer a rationalized medical opinion on disability for work for the
periods claimed. The evidence from Mr. Hanson, a family therapist, is not competent medical
evidence as he is not a physician under the Act.6
Appellant did not submit probative evidence establishing an employment-related disability
from February 13 to 17 and February 21 to March 3, 2006 or commencing September 4, 2006.
The Board finds that she did not meet her burden of proof and the Office properly denied
compensation for wage loss for the claimed periods.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.7 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”8
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.9

5

While the Office referred to the period February 13 to March 13, 2006, the actual period claimed was
February 13 to 17 and February 21 to March 3, 2006.
6

See Joe L. Wilkerson, 47 ECAB 604 (1996). 5 U.S.C. § 8101(2) provides that a physician includes, “surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of
their practice as defined by state law.”
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.605 (1999).

9

Id. at § 10.606(b)(2).

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A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and reviewed on its merits. Where the request is
timely but fails to meet at least one of these standards, the Office will deny the application for
reconsideration without reopening the case for a review on the merits.10
ANALYSIS -- ISSUE 2
On reconsideration, appellant alleged that she was subject to harassment, abuse and
threats. This is not relevant to her claim in this case, which was based on a specific employment
incident involving a canister of bodily fluids. If appellant is alleging new employment factors
then she must make an appropriate claim for compensation and submit relevant evidence. The
underlying merit issue in this case is a medical issue regarding disability for specific periods
casually related to the accepted employment injuries. Appellant did not submit any new and
relevant medical evidence. As noted above, a family therapist is not a physician under the Act
and therefore his reports are not competent medical evidence.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit
relevant and pertinent evidence not previously considered by the Office. Since she did not meet
any of the requirements of 20 C.F.R. § 10.606(b)(2), the Office properly refused to reopen the
claim for review of the merits.
CONCLUSION
Appellant did not establish an employment-related disability from February 13 to 17,
February 21 to March 3, 2006 or commencing September 4, 2006. The application for
reconsideration did not meet the requirements of 20 C.F.R. § 10.606(b)(2) and the Office properly
denied merit review of the claim.

10

Id. at § 10.608.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 23, 2007 and December 8, 2006 are affirmed.
Issued: July 18, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
I.J., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
SUPPLY CENTER, Richmond, VA, Employer
__________________________________________

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

Docket No. 07-2362
Issued: March 11, 2008

Case Submitted on the Record

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

JURISDICTION
On September 18, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated March 22 and August 13, 2007 terminating her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 23, 2007; and (2) whether appellant met her burden of
proof to establish that she had any continued disability or medical condition after March 23,
2007 causally related to her employment injury.
FACTUAL HISTORY
On June 14, 2001 appellant, then a 52-year-old contract specialist, filed an occupational
disease claim alleging that she experienced an aggravation of a preexisting eye condition due to

conditions of her employment. The Office accepted the claim for aggravation of iritis in the
right eye; recurrent iridocyclitis and subscapular polar cataract.
On September 22, 2003 appellant’s treating physician, Dr. Alan Chandler, a Boardcertified ophthalmologist, opined that appellant was totally disabled due to her ongoing ocular
condition. Appellant stopped working on that date and began receiving compensation benefits
for temporary total disability. On August 20, 2004 Dr. Chandler indicated that appellant
remained disabled due to her work-related condition, as there was no treatment capable of fully
controlling her eye disorder.
The Office referred appellant to Dr. Peter H. Goldmann, an ophthalmologist, for a second
opinion evaluation. In a report dated March 18, 2005, he concluded that appellant had nearly
normal visual acuity and well-controlled iridocyclitis that would cause little or no restriction on
her ability to work. Dr. Goldmann opined that her underlying Reiter’s disease was not caused or
aggravated by visual activities, work related or otherwise. He concluded that appellant did not
have a work-related disability.
In a report dated August 22, 2005, Dr. Chandler indicated that appellant experienced
three to four flare-ups of uveitis per year, in one or both eyes, each of which rendered her
incapacitated from visual work for three to four months. He opined that she should be
considered fully disabled. Dr. Chandler notes reflected that appellant had suffered a flare-up of
uveitis on March 18, 2005 and that she had been treated for severe dry eye on July 20 and
August 22, 2005.
The Office determined that a conflict arose between the opinions of Drs. Goldmann and
Chandler as to whether appellant had a work-related disability. The Office referred her, together
with a statement of accepted facts and the medical record, to Dr. Richard W. Jacey, a Boardcertified ophthalmologist, for an impartial medical examination. In a report dated January 26,
2006, Dr. Jacey stated that appellant suffered from intermittent iritis, which would be recurrent
throughout her lifetime. On examination, he found visual acuity, with correction, to be 20/30
right eye (OD) and 20/25 left eye (OS). A slip lamp examination revealed pigmentary deposits
on the anterior lens capsule and endothelial. The intraocular pressure was normal and there was
no anterior chamber activity. A view of the fundus revealed an optic nerve that had a cup to disc
ratio of 4 OD, 4.5 OS. Dr. Jacey found no lesions on the retina. He opined that appellant’s
condition was being treated successfully with steroid drops. Dr. Jacey noted that, when her iritis
was active, appellant would have difficulty performing accurate visual tasks.
Appellant submitted a report dated February 12, 2006 from Dr. Chandler, who diagnosed
chronic uveitis and cataracts in both eyes. Dr. Chandler stated that “the underlying medical
condition leading to uveitis most likely is Reiter’s syndrome.” He noted that appellant’s
condition was present prior to her employment; was currently active; and was not expected to
resolve. Dr. Chandler opined that, because appellant was unable to read or perform computer
work for more than five minutes per hour without a worsening of her condition, she was disabled
from any type of work involving vision, including reading and computer work on a part-time
basis.

2

On March 24, 2006 the Office issued a notice of proposed termination of compensation
benefits, based on Dr. Jacey’s January 26, 2006 report. On June 5, 2006 it finalized its proposal,
terminating compensation for wage loss effective July 9, 2006.
On June 22, 2006 appellant requested review of the written record. On December 4,
2006 an Office hearing representative found that the Office had failed to meet its burden of proof
to terminate appellant’s compensation. Stating that Dr. Jacey’s opinion was not sufficiently
rationalized or detailed to be accorded special weight, the representative reversed the June 5,
2006 decision, and remanded the case for further medical development.
On January 31, 2007 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Jason Chiapetta, a Board-certified ophthalmologist, for an
impartial medical examination. Dr. Chiapetta reviewed the entire record and performed a
thorough examination of appellant. In a report dated February 16, 2007, he opined that appellant
was not disabled as a result of her accepted conditions. Dr. Chiapetta found that her visual
acuity with proper correction measured 20/20 in both eyes, and that she had a clear anterior
segment, with no evidence of active iritis or uveitis. He also found no evidence of residual
damage from her recent flare-ups. Noting that appellant might be unable to read or perform
computer work and might experience pain during the initial treatment of future flare-ups,
Dr. Chiapetta opined that appellant’s condition was not aggravated by computer work and
recommended no work restrictions.
By decision dated March 22, 2007, the Office terminated appellant’s monetary
compensation benefits, effective March 23, 2007, based on Dr. Chiapetta’s referee report.
On April 20, 2007 appellant requested review of the written record. In a narrative
statement, appellant expressed her concern that future computer work would aggravate her eye
condition.
Appellant submitted copies of medical reports documenting treatment for her eye
condition. On February 12, 1981 Dr. C. Titus, a treating physician, stated that he had been
treating appellant since age 26 for recurrent episodes of anterior uveitis. Reports from
Dr. Robert S. Weinberg, a Board-certified ophthalmologist, for the period February 17, 1982
through September 28, 1995, reflect his treatment of appellant’s underlying iritis, secondary to
Reiter’s syndrome. Reports from Dr. John Yook, a Board-certified ophthalmologist, dated
October 27, 1994 through May 22, 2001, reflect that appellant was seen for ocular inflammation
and was advised to avoid computer-concentrated work. The record contains reports from
April 8, 1986 through January 2, 2001 from Dr. Herbert Wiesinger, a Board-certified
ophthalmologist, who indicated that he had treated appellant for uveitis since 1974, and
recommended that appellant be reassigned to work that was not computer oriented.
Appellant submitted copies of notes from Dr. Chandler for the period May 21, 2001
through March 27, 2007, which documented treatment for her ocular condition. In a narrative
report dated April 7, 2006, Dr. Chandler objected to the Office’s notice of proposed termination,
reiterating his opinion that appellant’s condition was aggravated by computer work. On May 8,
2006 Dr. Chandler again opined that appellant was disabled from work requiring visual tasks.

3

He predicted that, if appellant returned to vision-related work, her flare-ups of uveitis would
become more frequent and severe, directly leading to a worsening of her overall condition and
risking visual loss. Largely illegible notes, dated March 27, 2007, reflect that appellant was seen
as a “[follow-up] to iritis.” Dr. Chandler’s assessment includes the term “iritis flare-up.”
By decision dated August 13, 2007, the Office hearing representative affirmed the
March 22, 2007 decision. The weight of medical evidence rested with Dr. Chiapetta’s
February 16, 2007 report, which confirmed that appellant was not totally disabled and had no
residuals as a result of her accepted work condition. The representative modified the March 22,
2007 decision to reflect that the Office had not met its burden to terminate compensation in its
June 5, 2006 decision and that appellant was entitled to retroactive compensation benefits from
July 9, 2006 through March 22, 2007.
LEGAL PRECEDENT – ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.2 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.3 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.4
Section 8123(a) provides in pertinent part: “If there is a disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”5 In situations where
there are opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.6
ANALYSIS -- ISSUE 1
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for her accepted eye conditions effective March 23, 2007.
1

Paul L. Stewart, 54 ECAB 824 (2003).

2

Elsie L. Price, 54 ECAB 734 (2003).

3

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

4

Wiley Richey, 49 ECAB 166 (1997); Furman G. Peake, supra note 3.

5

5 U.S.C. § 8123(a).

6

See Roger Dingess, 47 ECAB 123 (1995); Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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The Office properly determined that a conflict existed in the medical opinion evidence as
to whether appellant had any disability due to her accepted condition. Appellant’s treating
physician, Dr. Chandler, opined that she was disabled due to her accepted eye condition and that
there was no treatment capable of fully controlling her disorder. The Office’s second opinion
physician opined that appellant was not disabled. Dr. Goldmann found that she had nearly
normal visual acuity and well-controlled iridocyclitis that would cause little or no restrictions on
her ability to work. He opined that her underlying Reiter’s disease was not caused or aggravated
by visual activities, work related or otherwise.
The Office initially referred appellant to Dr. Jacey for an impartial medical examination.
In his brief January 26, 2006 report, he opined that appellant’s condition was being treated
successfully with steroid drops. Dr. Jacey noted that appellant suffered from intermittent iritis,
which would be recurrent throughout her lifetime. Although he provided findings on
examination, he did not provide a clear, rationalized opinion that appellant was no longer
disabled as a result of her accepted condition. Accordingly, in his December 4, 2006 decision,
the Office hearing representative found that Dr. Jacey’s opinion was not sufficiently rationalized
or detailed to be accorded special weight, and properly reversed the Office’s June 5, 2006
decision terminating appellant’s benefits and remanded the case for further medical
development.
On remand, the Office referred appellant to Dr. Chiapetta for an impartial medical
examination. He reviewed the entire record and statement of accepted facts, and performed a
thorough examination of appellant. In his February 16, 2007 report, Dr. Chiapetta opined that
appellant was not disabled as a result of her accepted conditions. He found that her visual acuity
with proper correction measured 20/20 in both eyes, and that she had a clear anterior segment,
with no evidence of active iritis or uveitis. Dr. Chiapetta also found no evidence of residual
damage from her recent flare-ups. Noting that appellant might be unable to read or perform
computer work, and might experience pain during the initial treatment of future flare-ups, he
opined that appellant’s condition was not aggravated by computer work and recommended no
work restrictions.
The Board finds that the Office properly relied on Dr. Chiapetta’s February 16, 2007
report in determining that appellant was not disabled as a result of her accepted employment
injury. His opinion is sufficiently well rationalized and based upon a proper factual background.
Dr. Chiapetta not only examined appellant thoroughly, but also reviewed all medical records. He
reported accurate medical and employment histories. The Office properly accorded special
weight to the impartial medical specialist’s findings.7
Appellant did not submit any rationalized medical evidence to overcome the weight of
Dr. Chiapetta’s opinion or to create a new conflict. She submitted numerous reports from her
treating physician, Dr. Chandler, who was on one side of the conflict. Reports from a physician
who was on one side of a medical conflict that an impartial specialist resolved, are generally
insufficient to overcome the weight accorded to the report of the impartial medical examiner, or

7

Bryan O. Crane, 56 ECAB 713 (2005).

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to create a new conflict.8 Dr. Chandler summarily stated that appellant’s condition was
aggravated by computer work. However, he did not explain physiologically how the condition
was affected by work-related computer activities, particularly in light of the fact that appellant
had not been exposed to work factors since 2003. He opined that, because appellant was unable
to read or perform computer work for more than five minutes per hour without a worsening of
her condition, she was completely disabled from any type of work involving vision. He
predicted that, if she returned to vision-related work, her flare-ups of uveitis would become more
frequent and severe, directly leading to a worsening of her overall condition and risking visual
loss. However, the Board has held that fear of future injury is not compensable.9 Dr. Chandler’s
concern that appellant may experience flare-ups of her condition in the future, does not establish
that appellant is currently disabled. Moreover, he did not address Dr. Chiapetta’s opinion that
appellant’s condition was not aggravated by computer work. For all of these reasons,
Dr. Chandler’s reports are of diminished probative value.
The remaining medical evidence submitted by appellant is also of diminished probative
value. The reports written by Drs. Titus, Weinberg, Yook and Wiesinger between 1981 and
2001 do not address appellant’s ability to work in 2007 and are, therefore, irrelevant. As the
weight of the medical evidence establishes that appellant was no longer disabled as a result of
her accepted eye condition, the Office properly terminated her compensation benefits.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.10 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.
The medical evidence required to establish a causal relationship is 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
appellant’s diagnosed condition and the implicated employment factors.11 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.12

8

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

9

See Calvin E. King, 51 ECAB 394 (2000).

10

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
11

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

12

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS -- ISSUE 2
The only medical evidence of record dated subsequent to the termination of appellant’s
benefits on March 23, 2007 consists of a report of an interval examination and a prescription
from Dr. Chandler, both dated March 27, 2007. Neither document provided an opinion as to
whether appellant was disabled, or whether her current condition was causally related to the
accepted eye condition. Therefore, they are of diminished probative value.13
Once the Office determined that termination of benefits was warranted, the burden
shifted to appellant to establish that she had an employment-related disability that continued after
the termination. The Board finds that appellant has failed to establish a prima facie case, in that
she has not provided any rationalized medical opinion evidence establishing that she is currently
disabled as a result of her accepted eye condition. Therefore, appellant has failed to meet her
burden of proof.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective March 23, 2007. The Board further finds that appellant failed to
meet her burden of proof to establish that she had any employment-related disability after
March 23, 2007 causally related to her accepted eye condition.

13

Ellen L. Noble, 55 ECAB 530 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 13 and March 22, 2007 are affirmed.
Issued: March 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Palm Beach, FL,
Employer
__________________________________________

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

Docket No. 21-0498
Issued: January 11, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 16, 2021 appellant, through counsel, filed a timely appeal from a
December 14, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case. 3
ISSUE
The issue is whether appellant has met her burden of proof to establish modification of the
July 28, 2017 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On August 16, 2006 appellant, then a 49-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 9, 2006 she experienced left shoulder
and neck pain after pulling bags onto a carousel while in the performance of duty. She stopped
work on August 16, 2006 and returned to work with restrictions on June 8, 2008. OWCP accepted
the claim for left shoulder sprain, cervical sprain, displacement of a cervical intervertebral disc
without myelopathy C3-6, bulging discs C2-T1, and brachial neuritis or radiculitis. It paid
appellant wage-loss compensation on the periodic rolls from October 1, 2006 to June 7, 2008, on
the supplemental rolls from June 8, 2008 to June 30, 2012, and again on the periodic rolls as of
July 1, 2012.
On September 4, 2013 OWCP referred appellant for vocational rehabilitation services.
Appellant completed training in computer skills as of April 22, 2014, with viable job goals of
customer service representative and receptionist, positions listed in the Department of Labor’s
Dictionary of Occupational Titles (DOT) bearing DOT No. #239.362-014 and No. #237.367-038,
respectively. The vocational rehabilitation counselor provided job placement assistance beginning
June 2014.5
A magnetic resonance imaging (MRI) scan of the cervical spine obtained on March 14,
2014 compared to a prior study from April 11, 2012, demonstrated a disc bulge at C2-3 with right2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the December 14, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

Docket No. 18-1197 (issued April 30, 2020).

5

In a letter dated August 6, 2014, OWCP requested that Dr. Craig Lichtblau, a physician Board-certified in physical
medicine and rehabilitation, clarify whether appellant was able to perform the duties of a customer service
representative or receptionist. On August 28, 2014 Dr. Lichtblau confirmed that appellant was able to work as a
receptionist, appointment clerk, and information clerk within her medical restrictions of performing occasional
fingering/typing for eight hours a day in a sedentary position.

2

sided facet spurring and subchondral cyst in the right facet joint, as well as a new right posterior
annular tear since the prior study; posterior disc herniation with spurring, anterior cord
impingement, and central stenosis at C3-4, similar to prior study; posterior disc herniation with
spur eccentric to the right at C4-5, similar to prior study; posterior disc herniation with extrusion
and anterior cord impingement at C5-6, similar to prior study; posterior disc herniation with spur
slightly eccentric to the left at C6-7, similar to prior study; a disc bulge at C7-T1, similar to prior
study; and posterior disc herniation eccentric to the right with right anterior cord impingement at
T2-3.
On July 21, 2016 OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated August 24, 2016,
Dr. Lotman advised that, due to her cervical and left shoulder pathology, she was unable to return
to her date-of-injury position as a transportation security screener. In an attached work capacity
evaluation (Form OWCP-5c) report, he indicated that appellant had work restrictions of no
reaching above the shoulder, climbing, or bending/stooping, as well as no pushing, pulling, or
lifting more than two hours per day of up to 20 pounds.
On February 15, 2017 the vocational rehabilitation counselor completed a job classification
(Form CA-66) for the position of customer complaint clerk. The position required occasional
reaching, handling, and fingering. In a vocational rehabilitation memorandum dated February 16,
2017, OWCP’s vocational rehabilitation specialist noted that the positions of customer complaint
clerk, appointment clerk, receptionist, and other similar full-time sedentary jobs remained both
vocationally suitable and were in sufficient numbers that they were reasonably available in her
local area.
In a letter dated June 14, 2017, OWCP notified appellant of its proposed reduction in her
wage-loss compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised that the medical
evidence of record established that she was only partially disabled. OWCP found that the position
of customer complaint clerk was medically and vocationally consistent with appellant’s medical
limitations, skills and work experience. It determined that she was capable of earning wages at
the rate of $398.40 per week as a customer complaint clerk and that the po sition was reasonably
available within her commuting area. OWCP provided an attachment detailing the application of
the Shadrick formula.6 It afforded appellant 30 days to submit evidence and argument if she chose
to contest the proposed action.
In a report dated June 29, 2017, Dr. Lichtblau advised that appellant could perform lightduty employment alternating sitting and standing as needed, avoiding repetitive bending, kneeling,
squatting, crawling, climbing, running, and jumping. Appellant was to refrain from reaching
overhead frequently.
By decision dated July 28, 2017, OWCP reduced appellant’s compensation effective
July 29, 2017 based on her capacity to earn wages as a customer complaint clerk at the rate of
$398.40 per week. It found that the evidence of record demonstrated that she was vocationally
and physically capable of working as a customer complaint clerk.
6

Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

3

On August 16, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
On November 28, 2017 OWCP authorized arthroscopic left shoulder surgery. On
November 30, 2017 Dr. Ryan Simovitch, a Board-certified orthopedic surgeon, performed a left
shoulder rotator cuff repair, subacromial decompression with acromioplasty, and debridement.
The hearing was held on January 5, 2018. During the hearing, counsel argued that
appellant’s recent surgery qualified as changed circumstances warranting a modification of the
LWEC determination of July 28, 2017 while she recovered from surgery. The hearing
representative noted that there was no medical evidence of record addressing the period of
disability related to the surgery. She held the case file open 30 days for submission of add itional
evidence.
In a report dated January 22, 2018, Dr. Simovitch advised that appellant had undergone
shoulder surgery nine weeks earlier. He noted that she complained of continuing pain radiating
into her neck. Dr. Simovitch discussed appropriate use of a sling and the necessary period of
postoperative convalescence. Appellant also submitted operative reports and reports prior to her
surgery on November 30, 2017.
By decision dated February 7, 2018, the hearing representative affirmed the July 28, 2017
LWEC determination, finding that both the medical and vocational evidence supported that
appellant had the ability to perform the position of customer complaint clerk.7
In a report dated February 8, 2018, Dr. Lichtblau noted that, due to appellant’s recent
surgery, extreme pain, and limited range of motion, she should refrain from participating in any
type of repetitive activity and should work at the sedentary level.
On March 2, 2018 appellant, through counsel, requested reconsideration of the February 7,
2018 decision. With the request, she submitted surgical records related to her procedure on
November 30, 2017, including the previously-submitted operative report of that date, as well as
documents relating to surgical orders and authorization by OWCP that were previously of record.
Appellant also submitted numerous reports from physical therapists.
In a report dated March 12, 2018, Dr. Simovitch noted that appellant had been attending
physical therapy. On examination, he found well-healed incisions with supple range of motion.
Dr. Simovitch advised that appellant had slowly improved. He recommend ed that she return to
Dr. Lichtblau for pain management.
By decision dated April 16, 2018, OWCP denied modification of its February 7, 2018
decision. An MRI scan of the cervical spine obtained on June 6, 2018 compared to a prior study
from March 14, 2014, demonstrated a disc bulge at C2-3, noted on prior study; posterior disc
7

The hearing representative noted that counsel had contended during the hearing that modification of the LWEC
determination should be considered in view of her left shoulder surgery. She fou nd, however, that the relevant issue
was whether appellant had established a recurrence of disability due to her surgery rather than modification of the
LWEC determination. The hearing representative instructed OWCP to develop the issue of whether she had
experienced a period of disability subsequent to her surgery.

4

herniation with spurring with central stenosis at C3-4, noted on prior study; posterior disc
herniation with spurring eccentric to the right at C4-5, noted on prior study; posterior disc
herniation with spurring and anterior cord impingement at C5-6, noted as similar to prior study;
left posterior disc herniation with spurring with central stenosis at C6 -7, noted on prior study; a
disc bulge at C7-T1, noted as similar to prior study; and questionable anterior cord impingement
at C3-4, not as well-appreciated on the current study as on the prior study.
In a report dated June 20, 2018, Dr. Simovitch diagnosed cervical stenosis with cervical
radiculopathy and recurrent vertigo. On physical examination of the left shoulder, he observed
limited range of motion and strength. Dr. Simovitch opined that appellant was unable to return to
work without restrictions and advised that she had limited capacity to use the arms even at
sedentary capacity at waist height.
A December 13, 2018 electromyography (EMG) and nerve conduction velocity (NCV)
study report demonstrated normal findings.
In a functional capacity evaluation (FCE) dated January 9, 2019, Dr. Lichtblau diagnosed
(1) a history of cervical and thoracic myofascial pain syndromes; (2) left shoulder sprain;
(3) subjective complaints of upper extremity radicular pain; (4) history of C2-3, C6-7, and C7-T1
bulging discs and C3-4, C4-5, and C5-6 disc herniations; (5) history of C4-5 and C5-6 spondylosis
and C4-5 disc space narrowing; (6) history of a C3-4 posterior disc herniation with central stenosis
and worsening with a new annular tear since the prior study as indicated by the April 11, 2012
MRI scan; (7) history of C2-3 disc bulge with a new annular tear as indicated by the March 14,
2014 MRI scan; (8) history of biceps tendinopathy with chronic partial tearing and tenosynovitis
with a type II/III anterior capsular insertional tear with acromioclavicular (AC) joint spurring in
the subacromial and subdeltoid region with supraspinatus and infraspinatus tendinopathy and a
subchondral cyst in the humeral head and bone contusion/stress reaction to the greater tuberosity
and humeral neck; (9) a history of thin supraspinatus tendon with partial articular and bursal
surface tears with a probable full-thickness tear at the insertion of the tendon of the humeral head
with a small partial interstitial tear of the infraspinatus tendon; and acute functional decline
secondary to chronic pain and depression secondary to numbers one through nine. Dr. Lichtblau
attributed the diagnoses numbered one through four as secondary to injuries sustained in a workrelated incident on August 9, 2006. He noted that there was close correlation between appellant’s
subjective complaints of pain, extremely limited flexibility, general decreased endurance, general
weakness, extremity weakness, fatigue, and her functional ability. Dr. Lichtblau opined that she
did not have the functional capacity to work four hours per day on an uninterrupted basis at that
time and that she should be in a setting that allowed her to take breaks to change positions for
positional comfort at will. He opined that appellant’s work restrictions should include occasional
bending, climbing protected heights, repetitive motions of the elbows, pushing, and pulling;
avoiding repetitive bending, twisting, kneeling, squatting, crawling, climbing unprotected heights,
repetitive reaching overhead, running, and jumping; and no bending at the waist while keeping her
hips and knees extended. Dr. Lichtblau found that her residual physical functioning strength level
from the floor-to-shoulders position was less than sedentary. He noted that appellant suffered from
acute, intermittent exacerbations of chronic pain and discomfort and opined that she would be
unable to maintain gainful employment in the competitive open labor market or in a sheltered
environment with a benevolent employer secondary to acute intermittent exacerbations of chronic
pain.

5

In a letter dated July 9, 2019, Dr. Lichtblau advised that appellant could work within the
limitations set forth in the January 9, 2019 FCE. He noted that he had previously reported that,
pursuant to her August 29, 2012 FCE findings, she had the functional capacity to work eight hours
a day with restrictions. However, based on appellant’s January 9, 2019 FCE, appellant did not
have the functional capacity to work four hours a day. Dr. Lichtblau opined that her physical
functioning strength level was less then sedentary position; however, he continued to recommend
a return to work in a sedentary position, with restrictions. He indicated that appellant’s present
level of disability was a direct result of her work-related conditions.
In a report dated January 3, 2020, Dr. Simovitch examined appellant’s left shoulder for
complaints of increased pain. He related her physical examination findings and recommended a
left reverse total shoulder arthroplasty.
Appellant, through counsel, filed a timely appeal to the Board. By decision dated April 30,
2020, the Board set aside the April 16, 2018 decision and remanded the case for further
proceedings. The Board found that, as appellant had submitted evidence that she may have
sustained increased disability due to left shoulder surgery, OWCP was req uired to evaluate the
evidence to determine if modification of the LWEC determination was warranted.
By decision dated July 6, 2020, OWCP denied modification.
In an attending physician’s report (Form CA-20) dated July 3, 2020, Dr. Lichtblau
diagnosed cervical herniation at C3-4, C4-5, and C5-6 and left rotator cuff tear. He indicated that
these conditions were caused or aggravated by the August 9, 2006 work-related incident by
checking a box. Dr. Lichtblau noted that appellant had been disabled for many years and that a
return to work was not expected.
On July 16, 2020 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
October 15, 2020. The hearing representative held the case record open for 30 days for submission
of additional evidence.
In a progress report dated October 21, 2020, Dr. Lichtblau rendered the same diagnoses as
in his January 9, 2019 FCE. Appellant complained of increased left shoulder and neck pain. On
physical examination, Dr. Lichtblau noted tenderness to light palpation along her cervical
paraspinal musculature with palpable muscle spasms and limited active range of motion of the
cervical spine. He maintained appellant’s work status/activity level as recommended in the FCE.
In a progress report dated November 24, 2020, appellant noted no significant overall changes in
her neck, left shoulder, and mid-back pain, with good days and bad days depending on her activity
level.
By decision dated December 14, 2020, the hearing representative affirmed OWCP’s July 6,
2020 decision, finding that appellant had not met her burden of proof to establish modification of
the July 28, 2017 LWEC determination.

6

LEGAL PRECEDENT
Once OWCP accepts a claim it has the burden of proof to justify termination
or modification of compensation benefits. 8 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed based on his or her
LWEC.9 An employee’s actual earnings generally best reflect his or her wage-earning capacity. 10
Absent evidence that actual earnings do not fairly and reasonably represent the employee’s wageearning capacity, such earnings must be accepted as representative of the individual’s wageearning capacity. 11 But if actual earnings do not fairly and reasonably represent the employee’s
wage-earning capacity or the employee has no actual earnings, then wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances that may affect wage-earning capacity
in his or her disabled condition. 12
Compensation payments are based on the wage-earning capacity determination, and it
remains undisturbed until properly modified. 13 Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated, or the original determination was, in fact,
erroneous.14 OWCP’s procedures provide that, “[i]f a formal [LWEC]” decision has been issued,
the rating should be left in place unless the claimant requests resumption of compensation for total
wage loss. In this instance the CE [claims examiner] will need to evaluate the request according
to the customary criteria for modifying a formal [LWEC].”15 The burden of proof is on the party
attempting to show a modification of the wage-earning capacity determination. 16

8

L.M., Docket No. 20-1038 (issued March 10, 2021); James B. Christenson, 47 ECAB 775, 778 (1996); Wilson L.
Clow, Jr., 44 ECAB 157 (1992).
9

5 U.S.C. § 8115(a); 20 C.F.R. §§ 10.402, 10.403.

10

See L.M., supra note 8; Hayden C. Ross, 55 ECAB 455, 460 (2004).

11

Id.

12

5 U.S.C. § 8115(a).

13

See M.F., Docket No. 18-0323 (issued June 25, 2019).

14

J.A., Docket No. 17-0236 (issued July 17, 2018); Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick,
45 ECAB 211 (1993).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.812.9(a)
(June 2013); D.T., Docket No. 18-0174 (issued August 23, 2019); J.B., Docket No. 17-0817 (issued April 26, 2018);
Harley Sims, Jr., 56 ECAB 320 (2005).
16

O.H., Docket No. 17-0255 (issued January 23, 2018); Selden H. Swartz, 55 ECAB 272, 278 (2004).

7

ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has not alleged that the July 28, 2017 LWEC determination was in error or that
she was vocationally rehabilitated. Instead, she has alleged that the July 28, 2017 LWEC
determination should be modified due to a change in the nature and extent of her injury-related
conditions.
On November 30, 2017 appellant underwent OWCP-authorized left shoulder rotator cuff
repair, subacromial decompression with acromioplasty, and debridement. In a rep ort dated
February 8, 2018, Dr. Lichtblau noted that, due to appellant’s recent OWCP-authorized surgery,
extreme pain, and limited range of motion, she should refrain from participating in any type of
repetitive activity and should work at the sedentary level. In a report dated June 20, 2018,
Dr. Simovitch opined that appellant was unable to return to work without restrictions and advised
that she had limited capacity to use the arms even at sedentary capacity at waist height. In an FCE
dated January 9, 2019, Dr. Lichtblau attributed, among other diagnoses, accepted cervical disc
herniations and disc bulges to injuries sustained in the accepted work-related incident of
August 9, 2006. He opined that appellant did not have the functional capacity to work four hours
per day on an uninterrupted basis at that time and that she should be in a setting that allowed her
to take breaks to change positions for positional comfort at will. Dr. Lichtblau opined that her
work restrictions should be updated. He stated that appellant’s residual physical functioning
strength level from the floor-to-shoulders position was less than sedentary. Dr. Lichtblau opined
that she would be unable to maintain gainful employment in the competitive open labor market.
In a letter dated July 9, 2019, he advised that appellant could work within the limitations set forth
in the January 9, 2019 FCE and opined that she was able to return to work in a sedentary position,
stating that her present level of disability was a direct result of her work-related conditions.
Dr. Lichtblau continued to maintain her work status as in line with the January 9, 2019 FCE. In a
report dated January 3, 2020, Dr. Simovitch recommended a left reverse total shoulder
arthroplasty.
The Board finds that Drs. Lichtblau and Simovitch have provided opinions that appellant’s
current condition and disability is causally related to her accepted employment injury. It has been
accepted that, once the work-connected character of any condition is established, the subsequent
progression of that condition remains compensable so long as the worsening is not shown to have
been produced by an independent nonindustrial cause.17 The Board further notes that
Dr. Lichtblau attributed appellant’s sedentary work restriction in part to her November 30, 2017
OWCP-approved left shoulder surgery. 18 While Drs. Lichtblau and Simovitch reports are
insufficient to meet her burden of proof to establish that the July 28, 2017 LWEC determination
17

See Foy E. Thomas, Docket No. 01-0500 (issued May 17, 2002). See also Dennis J. Lasanen, 41 ECAB 933
(1990) (where the Board remanded the case for a determination of whether appellant’s recurrence of disability was a
further medical complication flowing from the employment injury or whether it was caused by an independent
intervening cause).
18

See L.V., Docket No. 17-1260 (issued August 1, 2018); S.C., Docket No. 16-1073 (issued July 13, 2017); N.H.,
Docket No. 08-1503 (issued April 13, 2009); Gary F. Voet, Docket No. 98-1175 (issued May 23, 2000). Compare
C.W., Docket No. 07-1816 (issued January 16, 2009).

8

should be modified due to a change in the nature and extent of her injury-related conditions, they
are sufficiently supportive of causal relationship between her current conditions and disability,
OWCP-approved treatment of her accepted conditions, and the accepted August 9, 2006 incident
to require OWCP to further develop the medical evidence.19
It is well established that, proceedings under FECA are not adversarial in nature and that
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. It has an obligation to see that justice is done. 20
On remand, OWCP should provide a statement of facts and refer appellant, together with the
complete case record and questions to be answered, to a specialist in the appropriate field of
medicine for a detailed opinion on any change in the nature and extent of her injury -related
condition and injury-related disability such that the July 28, 2017 LWEC determination should be
modified. After this and such other development as OWCP deems necessary, it should issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

19

See S.C., N.H., id.; E.J., Docket No. 09-1481 (issued February 19, 2010); Virginia Richard (Lionel F. Richard),
53 ECAB 430 (2002); Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).
20

John J. Carlone, id.

9

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: January 11, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1134
Issued: September 19, 2017

Case Submitted on the Record

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

JURISDICTION
On May 2, 2017 appellant, through counsel, filed a timely appeal from a December 12,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 12, 2016 decision, appellant submitted new evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury
causally related to the accepted April 30, 2015 employment incident.
FACTUAL HISTORY
On May 14, 2015 appellant, then a 37-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that on April 30, 2015 she sustained lower back pain when she
helped a patient lift his legs back into bed after he had been sitting in a chair. She did not stop
work.
In a May 11, 2016 report, Dr. Ronnie D. Shade, a treating Board-certified orthopedic
surgeon, reported that appellant was first seen on May 11, 2016 for a work injury that occurred
on April 30, 2015. Appellant had explained that she felt sharp spasms in her back and neck
while lifting a patient’s legs to help him return to bed. Dr. Shade provided examination findings
and reviewed diagnostic tests. Physical findings included decreased cervical bilateral rotation,
suprascapular tenderness, normal left motor examination, decreased right motor examination,
negative Tinel’s sign, normal cervical sensation, bilateral iliolumbar tenderness, bilateral
spinolumbar spasms, normal lumbar motor examination, decreased right sensation deficits,
negative straight leg raises, and normal left sensation. Dr. Shade diagnosed cervical and lumbar
ligament sprains, right upper extremity cervical radiculopathy, and right lower extremity lumbar
radiculitis.
Dr. Shade reported in a letter dated May 12, 2016, that appellant was first seen on
May 11, 2016. He provided physical examination findings. Dr. Shade noted that appellant was
performing her usual duties when she injured herself on April 30, 2015 when she “went under a
sink after a patient pushed her.” A physical examination revealed decreased cervical bilateral
rotation, suprascapular tenderness, normal left motor examination, decreased right motor
examination, negative Tinel’s sign, normal cervical sensation, bilateral iliolumbar tenderness,
bilateral spinolumbar spasms, normal lumbar motor examination, decreased right sensation
deficits, negative straight leg raises, and normal left sensation. Dr. Shade found normal C2-6
cervical lordosis, right lumbar scoliosis, severe spondylitis, and normal lumbar lordosis on
review of x-ray interpretations. He diagnosed cervical and lumbar ligament sprains, right upper
extremity cervical radiculopathy, and right lower extremity lumbar radiculitis.
In an October 17, 2016 report, Dr. Shade diagnosed cervical, thoracic, and lumbar
ligament sprains, right upper extremity cervical radiculopathy, right lower extremity lumbar
radiculitis, L3-4, 4-5 lumbar herniated nucleus pulposus, and mild L4-5 lumbar stenosis. Review
of magnetic resonance imaging (MRI) scans of the cervical and lumbar spines revealed C6-7
minimal spondylosis, mild L4-5 spinal stenosis, right L4 and L5 nerve roots encroachment on
exiting, and L3-4, 4-5 disc extrusion. Dr. Shade related that there was no change in appellant’s
physical examination findings.
On October 17, 2016 appellant filed a claim for a recurrence of medical treatment only
due to the April 30, 2015 employment incident. She noted the date of recurrence as
April 29, 2016.

2

In a letter dated November 10, 2016, OWCP informed appellant that the merits of her
original claim had not been adjudicated as her injury initially appeared to be minor and there was
minimal or no lost time from work. It advised her that the claim was reopened for a review on
the merits based on her filing of a recurrence claim. Next, OWCP advised appellant of the
medical and factual evidence required to support her claim. Appellant was afforded 30 days to
provide the requested evidence.
OWCP received several documents on December 12, 2016.
In an undated narrative statement, appellant explained that her original injury occurred on
April 30, 2015 while she was assisting a patient with dressing and getting into bed. At that time
she felt a sharp pain in her back and right hip. Appellant noted that she thereafter transferred
from the employing establishment in Decatur, Georgia, to Dallas, Texas, where she still worked
as a medical support assistant in the emergency department. She explained that on April 29,
2016 she was performing her normal duties, while sitting at her workstation, when she felt neck,
back, right leg, and right arm pain. Appellant related that a week later she was still in pain, and
that is when she first sought treatment with Dr. Shade. She also described problems with her
right wrist which arose on July 4, 2016.
OWCP received a witness statement, dated December 4, 2016, from a coworker, S.W. A
position description and a photograph of a printer were also received into the record.
Dr. Shade, in a December 5, 2016 report, noted details surrounding the April 30, 2015
incident. He explained that the repeated flexion and extension of appellant’s neck due to her job
duties caused her neck spasms and chronic pain. Dr. Shade then noted the principles of
causation as defined by mechanistic or biomechanical studies, cohort study, crossover or
interventional studies, and heuristic model for causation. He opined that appellant’s cervical and
lumbar conditions should be accepted by OWCP as the lumbar injury was post-traumatic while
the cervical condition was occupational and had been aggravated by the traumatic injury.
By decision dated December 12, 2016, OWCP denied appellant’s claim. It found that the
evidence of record established that the April 30, 2015 incident occurred as alleged, but denied
the claim as the medical evidence of record failed to establish that the diagnosed conditions were
causally related to the accepted employment incident. The claims examiner noted that on
November 10, 2016 appellant had been advised that further medical evidence was necessary to
establish the claim, but the only evidence received was her personal statement.
LEGAL PRECEDENT
It is well established that OWCP shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as OWCP considers necessary with respect to
the claim.4 Since the Board’s jurisdiction in a case is limited to reviewing that evidence which
was before OWCP at the time of its final decision, it is necessary that OWCP review all evidence
submitted by a claimant and received by OWCP prior to the issuance of its final decision. As the
4

See Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126.

3

Board’s decisions are final as to the subject matter appealed, it is crucial that all evidence
relevant to that subject matter, which was properly submitted to OWCP prior to the issuance of
the final decision, be addressed by OWCP.5
ANALYSIS
Appellant alleged that she injured her back and right hip as a result of an April 30, 2015
work incident. By decision dated December 12, 2016, OWCP accepted that the April 30, 2015
incident occurred as alleged, but denied her claim because the medical evidence of record was
insufficient to establish a medical diagnosis causally related to the accepted incident.
The Board finds that the case is not in posture for decision.
Following OWCP’s November 10, 2016 letter to appellant requesting additional
evidence, she submitted responsive factual and medical evidence. This additional evidence was
received by OWCP on December 12, 2016. In its December 12, 2016 decision, OWCP denied
appellant’s claim noting that following the November 10, 2016 development letter it had only
received her personal response, but no medical evidence. It did not note receipt or consideration
of Dr. Shade’s December 5, 2016 report, or the other documents submitted on
December 12, 2016.
The Board finds that OWCP, in its December 12, 2016 decision, did not review all of the
evidence submitted on December 12, 2016, including the new report from Dr. Shade, prior to
issuance of its final decision.6 For this reason, the case will be remanded to OWCP to consider
all of the evidence submitted at the time of the December 12, 2016 decision. Following such
further development as OWCP deems necessary, it shall issue an appropriate merit decision on
the claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

5

S.P., Docket No. 16-0253 (issued March 23, 2016); William A. Couch, 41 ECAB 548 (1990).

6

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 12, 2016 is set aside and this case is remanded for
further proceedings consistent with this decision of the Board.
Issued: September 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 15-1876
Issued: January 29, 2016

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 September 14, 2015 appellant filed a timely appeal from an August 11, 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 his burden of proof to establish an injury causally
related to factors of his federal employment.
FACTUAL HISTORY
On May 18, 2015 appellant, then a 52-year-old supervisor, filed an occupational disease
claim (Form CA-2) alleging that he sustained arthritis of both knees in the performance of duty.

1

5 U.S.C. § 8101 et seq.

He indicated that he first became aware of the injury and its relation to his work on
March 9, 2015. Appellant did not stop work.
In a May 19, 2015 statement accompanying his claim, appellant indicated that he was a
supervisor who had been working on concrete floors for 17 years. He advised that he was filing
a claim for aggravation of arthritis of both knees. Appellant noted that he had a prior claim,
number xxxxxx409, for a left knee injury.2 He stated that arthritis set in after he had surgery.
Appellant related that he had to walk 10 hours a day, six days a week in the plant and that over
time the walking and standing on the concrete had taken a toll on his knees causing him to
develop arthritis of both knees.
By letters dated May 21, 2015, OWCP informed appellant and the employing
establishment of the type of evidence needed to support his claim and requested that he submit
such evidence within 30 days. It particularly requested that he have his physician provide an
opinion, supported by a medical explanation, as to how work activities caused or aggravated his
claimed condition.
In a January 30, 2015 report, Dr. Kevin B. Cleveland, an orthopedic surgeon, noted that
appellant was seen for follow up of the left knee and he had stated in the last few days he had
significant pain. He provided results on examination and reported crepitus with range of motion
of the knee and full extension and flexion with small trace effusion. Dr. Cleveland diagnosed
left knee osteoarthritis. He completed a return to work note advising full duty on
February 2, 2015.
In a May 14, 2015 x-ray of the right knee, Dr. Justin Robert Newman, a Board-certified
diagnostic radiologist, diagnosed increased degenerative changes in all three knee compartments
compared to previous examination from 1999 with no acute finding.
On May 20, 2015 Dr. Cleveland advised that appellant could return to work, full duty
with no restrictions.
In a June 1, 2015 report, Dr. Michael A. Alday, Board-certified in preventive medicine,
noted that appellant worked as a manager at the employing establishment and had sustained an
aggravation of a preexisting condition as a result of walking and standing on hard floors for the
past 17 years and working 10 hours per day, six days a week. He related that appellant did not
remember any particular acute event that occurred on March 9, 2015. Dr. Alday indicated that
appellant had an original injury in 2012 when he sustained a left knee injury from a work-related
occurrence and eventually had a left knee arthroscopy to repair both medial and lateral meniscal
tears in August 2012. He advised that appellant had a good result and, after 17 physical therapy
visits, returned to full duties.
Dr. Alday indicated that appellant had reported working as a manager since 2005. He
noted appellant’s job duties entailed walking, standing, and going up and down flights of stairs
(at least three flights of stairs, four or five times per hour) along with occasional lifting of boxes
and sorting mail, but primarily his role was of manager of the center. Dr. Alday reported that
2

Claim number xxxxxx409 is not before the Board in the present appeal.

2

appellant had increasing pain since 2012 and received a series of Cortisone injections with the
last one on January 30, 2015. He also noted that appellant had a medial collateral ligament
repair from a significant trauma while in the Army in 1984. While this was surgically repaired,
appellant has had increasing difficulty with arthritis due to that injury. He was receiving a 40
percent disability from the Department of Veterans Affairs (VA) to the left knee for that injury.
Dr. Alday diagnosed osteoarthritis of the left leg and post tear of the meniscus of the left
knee. He noted that appellant complained of significant aggravation of his preexisting medical
conditions due to walking and standing on hard floors for the past 17 years and working 10-hour
days, six days a week. Dr. Alday related that the 2012 injury had been successfully treated. He
opined that it was his professional opinion that appellant’s primary condition remained the
osteoarthritis that was a result of his significant trauma while in the Army. Dr. Alday
recommended that appellant follow up with the VA regarding his continued service-connected
arthritic condition, which appeared to be worsening with time. He noted that appellant’s
impairment rating remained unchanged. Dr. Alday recommended returning to full duty with no
restrictions.
OWCP also received a position description, April 10, 2015 notes from a physician
assistant, and a statement from Charlie Payne, a manager of distribution operations. Mr. Payne
indicated that appellant’s statements were correct to the best of his knowledge and the employing
establishment concurred with the allegations. He explained that appellant’s duties included
walking the aisle to ensure that the mail was being processed and dispatched as well as climbing
on the sorter to monitor his employees. Additionally, Mr. Payne advised that appellant had to
walk, stand, bend, and climb stairs seven hours a day.
By decision dated August 11, 2015, OWCP denied appellant’s claim. It found that the
medical evidence failed to establish his current medical condition was causally related to his
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To 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) a factual
3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

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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, generally, is 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 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.5
ANALYSIS
Appellant alleged that he developed arthritis of both knees as part of his duties and
activities as a supervisor. The evidence supports that he worked on concrete floors and climbed
stairs as part his supervisory duties. However, the Board finds that appellant submitted
insufficient medical evidence to establish that his worsening medical condition was caused or
aggravated by these employment activities or any other specific factors of his federal
employment.
Dr. Alday reported that appellant had sustained an aggravation of his preexisting left knee
condition as a result of walking and standing on hard floors for the past 17 years. He described
appellant’s job duties and explained that appellant had increasing pain since 2012 and had
received a series of Cortisone injections. Dr. Alday also noted that appellant had 40 percent
disability from the VA to the left knee. He diagnosed osteoarthritis of the left leg and status post
tear of the meniscus of the left knee. Dr. Alday related appellant’s assertions that appellant
believed that his work duties aggravated his preexisting medical condition. However, he opined
that the primary condition remained the osteoarthritis that was a result of appellant’s significant
trauma while in the Army and he recommended that appellant follow up with the VA regarding
his continued service-connected arthritic condition. This opinion is insufficient to establish
appellant’s claim as Dr. Alday attributes appellant’s condition to his military service injury and
does not attribute the condition to his work duties for the employing establishment. Dr. Alday
acknowledged appellant’s contentions that his work duties aggravated his condition, but
Dr. Alday did not confirm those contentions. Medical evidence that does not offer an opinion in
support of the alleged cause of an employee’s condition is of limited probative value on the issue
of causal relationship.6 A medical opinion in support of causation is especially needed in this
case as the record reflects that appellant sustained a previous left knee condition and has a VA
disability and continuing VA treatment. For these reasons, the medical opinion of Dr. Alday is

5

Id.

6

See B.T., Docket No. 13-138 (issued March 20, 2013).

4

insufficient to establish a causal relationship between appellant’s work duties and his current
knee condition.
OWCP also received a January 30, 2015 report from Dr. Cleveland, who diagnosed left
knee osteoarthritis. Dr. Cleveland completed return to work notes advising a full-duty work
status on February 2, 2015. He also completed a May 20, 2015 return to work note advising a
return to full duty with no restrictions. However, these reports are of limited probative value on
the relevant issue as they fail to contain a medical diagnosis attributed to the restrictions and they
do not contain an opinion on causal relationship.7 OWCP also received a May 14, 2015 x-ray
report for the right knee. However, this evidence is also of limited probative value as it does not
address whether the work activities caused or aggravated a diagnosed condition. For these
reasons, these medical reports are insufficient to establish a causal relationship between
appellant’s duties and his current knee condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.8
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
There is insufficient medical evidence explaining how appellant’s employment duties
caused or aggravated a medical condition involving his knees and therefore the Board finds that
he has not met his burden of proof to establish that he sustained a medical condition causally
related to factors of his employment.
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 an injury
causally related to factors of his federal employment.

7

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that 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).
8

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

9

Id.

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ORDER
IT IS HEREBY ORDERED THAT the August 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2016
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
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Bend, WA, Employer
__________________________________________

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

Docket No. 14-275
Issued: June 13, 2014

Case Submitted on the Record

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

JURISDICTION
On November 20, 2013 appellant filed a timely appeal from the October 8 and
November 1, 2013 merit decisions of the Office of Workers’ Compensation Programs (OWCP),
which terminated her 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation; and
(2) whether appellant met her burden to establish that she has residuals of the accepted medical
condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 12, 2011 appellant, a 57-year-old rural carrier associate, sustained a
traumatic injury in the performance of duty when she slipped and fell down steps during a
residential delivery. OWCP accepted her claim for lumbar strain and right L4 radiculopathy.
Appellant received compensation for temporary total disability on the periodic rolls.
Dr. Thomas B. Curtis, the attending Board-certified physiatrist, first saw appellant on
November 22, 2011. He noted the history of an acute injury superimposed on chronic low back
pain. Dr. Curtis described the mechanism of injury, her complaints and his findings on
examination. He diagnosed a new lumbar strain, industrial and objective signs of right L4
radiculopathy.
On January 10, 2012 appellant did not indicate an L4 distribution of pain. Dr. Curtis
found that earlier signs of L4 radicular symptoms were subsiding. By January 30, 2012
appellant was reporting that her pain did not radiate into her legs.
On March 28, 2012 Dr. Curtis found that appellant’s physical examination showed a
possible facet arthralgia or perhaps sacroiliac pain. “There might be stress phenomenon or a
crack, possibly herniated dis[c]. Symptoms have earlier behaved like discogenic etiology.”
Appellant had no objective signs of radiculopathy.
An imaging study on April 25, 2012 showed mild central canal stenosis at L4-5, worse
compared to 2005 and multilevel degenerative changes. There was generalized disc bulging at
L4-5, as well as ligamentum flavum and facet degenerative joint disease, but no discrete disc
herniation or significant foraminal canal narrowing.
On May 17, 2012 Dr. Curtis advised that appellant’s radicular pain had resolved. He
continued follow up for lumbar degenerative disc disease.
On February 14, 2013 appellant complained that her pain became worse during the prior
two months. She had bilateral leg pain that she believed was sciatica. Appellant felt it in the
posterior thighs and calves but not in the feet. Straight leg raising was positive bilaterally,
although she was vague in her description. Dr. Curtis noted that appellant did not show a clearly
delineated radicular distribution.
On February 23, 2013 appellant reported that her pain worsened about one month earlier.
It did not radiate into her legs or farther than her buttocks bilaterally. Appellant had no sensation
deficits.
On July 16, 2013 appellant indicated pain over the lumbar spine, bilateral gluteal regions
and bilateral posterior thighs.
Dr. Aleksander Curcin, a Board-certified orthopedic surgeon and second opinion
physician, examined appellant on August 16, 2013. He noted the history of injury. Appellant
related that she had a preexisting back injury, and the fall simply worsened her localizing
mechanical back pain. She reported that she was 80 percent improved and overall felt good.
Appellant had low back pain with prolonged sitting or excessive lifting. She occasionally had
2

lower extremity symptoms in a nonradicular fashion. Appellant described prolonged driving as
an activity that produced some pain radiating into her legs.
Dr. Curcin reviewed appellant’s medical record. A chart note from June 18, 2013
indicated that her back pain started in 2004. Appellant had many evaluations and procedures.
She was diagnosed with chronic low back pain.
Dr. Curcin related his findings on physical examination, which were objectively normal.
Palpation, percussion and axial loading did not produce any of her symptoms. Appellant could
touch her toes, giving her 95 degrees of flexion, 20 degrees of extension and 20 degrees of lateral
flexion. Extension of the lumbar spine was the most painful plane of motion. Straight leg
raising was benign. Motor strength was full. Sensory responses to light touch were intact and
symmetrical. Reflexes were 1+ patellar and Achilles bilaterally.
Dr. Curcin diagnosed appellant’s current lumbar condition as chronic low back pain.
Asked to list all lumbar spine conditions and their diagnostic codes related to the November 12,
2011 fall, he noted that the diagnostic code for the condition related to the November 12, 2011
fall was 847.2, lumbar sprain/strain.
Dr. Curcin found that appellant no longer had residuals of the November 12, 2011 injury,
as that injury produced a lumbar sprain/strain and contusion, which would have been expected to
resolve in a 10- to 12-week period of time. Appellant had no physical limitations or need for
medical treatment resulting from the November 12, 2011 work injury.
In a report dated October 1, 2013, Dr. Curtis noted that appellant had chronic pain.
Appellant had lumbar degenerative disc disease with low back pain. Dr. Curtis described her
complaints.
He acknowledged OWCP’s proposal to terminate compensation for the
November 12, 2011 work injury. Dr. Curtis stated that he did not have the opportunity to read
Dr. Curcin’s report. “The first thing I did today was counsel her that her compensation for time
loss will end.” Appellant indicated that she would like a graduated return to work but was vague
in suggesting how it could be done. Dr. Curtis noted that it made sense for her to return to light
duty, for which he had submitted numerous activity prescription forms, but appellant advised
that the employing establishment would not work with her. He released her to full duty with no
lifting over 30 pounds.
In a decision dated October 8, 2013, OWCP terminated appellant’s compensation. It
found that the weight of the medical evidence, was represented by the opinion of Dr. Curcin and
established that she no longer had residuals of her November 12, 2011 injury.
Appellant requested reconsideration. She submitted the October 7, 2013 report of
Dr. Curtis who reviewed Dr. Curcin’s second opinion evaluation. Dr. Curtis noted that
Dr. Curcin prescribed no limitation on lifting, carrying, pushing or pulling and therefore signed a
markedly incomplete document. “[Dr. Curcin] was unaware of what he was signing.”
Dr. Curtis thought he and Dr. Curcin probably saw things similarly, but there were points
of difference. On a more probable than not basis, there had been some progression of
degeneration caused by this particular fall “and therefore there are residuals, even if they are
difficult objectively to measure.” Also, Dr. Curtis believed that appellant’s physical condition
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had atrophied because she had been unable to return to work predominantly because the
employing establishment would not work with her.
Dr. Curtis found that appellant was physically incapable of safely working a mail carrier
position, which required lifting and carrying as much as 70 pounds between zero and three hours
per day. He explained that he had a markedly different opinion from Dr. Curcin on whether
appellant needed medical treatment or rehabilitation.
In a decision dated November 1, 2013, OWCP reviewed the merits of appellant’s claim
and denied modification of the October 8, 2013 decision. It found that Dr. Curtis noted a
multilevel degenerative change with significant loss of anterior vertebral column height at L1-2,
but did not discuss the accepted medical conditions. “[Dr. Curtis] has provided no objective
findings to support a continuing work-related condition preventing you from performing your
position you held at time of injury.”
On appeal, appellant contends that she cannot work full unlimited duty. “I still suffer the
residuals of my accepted condition which require restrictions.”
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.3 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a traumatic injury in the performance of duty
when she slipped and fell down some steps on November 12, 2011. It accepted her claim for
lumbar strain and right L4 radiculopathy. Appellant had objective signs of the latter when she
first saw her physiatrist, Dr. Curtis, on November 22, 2011. By January 2012, she was not
indicating an L4 distribution of pain and it was not radiating into her legs. By the end of
March 2012, appellant no longer had objective signs of radiculopathy. Dr. Curtis observed on
May 17, 2012 that her radicular pain had resolved.
Based on this evidence, the Board finds that OWCP met its burden to terminate
compensation for the accepted condition of right L4 radiculopathy. Appellant was no longer
showing objective signs of the accepted condition, and the attending physician considered her

2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

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radicular pain to have resolved. The Board will therefore affirm OWCP’s October 8, 2013
decision on the issue of right L4 radiculopathy.
Approximately a year after her radiculopathy subsided, appellant complained of bilateral
leg pain in her posterior thighs and calves. Dr. Curtis found that she did not show a clearly
delineated radicular distribution of pain. Dr. Curcin, the second opinion orthopedic surgeon, also
noted that appellant occasionally had lower extremity symptoms in a nonradicular fashion.
Whatever caused these late-appearing complaints, appellant has the burden to establish whether
they are causally related to the November 12, 2011 work incident.
As for the accepted condition of lumbar strain, Dr. Curtis reported that appellant’s
November 12, 2011 work injury was superimposed on preexisting chronic low back pain. He
initially diagnosed a new lumbar strain. In March 2012, Dr. Curtis noted that appellant’s
physical examination showed a possible facet arthralgia or perhaps sacroiliac pain. He
considered the possibility of a stress phenomenon or crack, possibly a herniated disc. An
imaging study in April 2012 showed mild central canal stenosis at L4-5 and multilevel
degenerative changes. Dr. Curtis followed up with appellant for lumbar degenerative disc
disease. There was no longer any mention of an injury-related lumbar strain or continuing soft
tissue injury.
When appellant saw Dr. Curcin in August 2012, she reported that she was 80 percent
improved and felt good. After objectively normal findings on physical examination, it was his
opinion that appellant no longer suffered from the November 12, 2011 lumbar strain. Dr. Curcin
explained that such a condition would be expected to resolve in 10 to 12 weeks. This is
consistent with appellant’s medical record and with her most recent physical examination. The
Board finds that the weight of the medical evidence rests with Dr. Curcin on the issue of the
accepted lumbar strain. The Board finds that OWCP met its burden to justify the termination of
compensation for that particular medical condition. Accordingly, the Board will affirm OWCP’s
October 8, 2013 decision.
When OWCP issued its October 8, 2013 decision terminating appellant’s compensation
for the accepted medical conditions, there was no conflict between Dr. Curtis and Dr. Curcin.
Dr. Curtis had earlier found appellant’s radicular pain to have resolved, and he did not state that
she continued to suffer from a two-year-old soft tissue injury. The weight of the medical
evidence established that the accepted medical conditions had resolved.
LEGAL PRECEDENT -- ISSUE 2
Where OWCP meets its burden to justify the termination of compensation benefits, the
burden is on the claimant to establish that any subsequent disability is causally related to the
accepted employment injury.5

5

Maurice E. King, 6 ECAB 35 (1953); Wentworth M. Murray, 7 ECAB 570 (1955) (after a termination of
compensation payments, warranted on the basis of the medical evidence, the burden shifts to the claimant to show
by the weight of the reliable, probative and substantial evidence that, for the period for which he claims
compensation, he had a disability causally related to the employment resulting in a loss of wage-earning capacity).

5

A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of her claim by the weight of the evidence,6 including that she sustained an injury in the
performance of duty and that any specific condition or disability for work for which she claims
compensation is causally related to that employment injury.7
It is not sufficient for the claimant to establish merely that she has disability for work.
She must establish that her disability is causally related to the accepted employment injury.
FECA provides compensation only for as long as there exists a proven physical or related
impairment attributable to the injury. The claimant must submit a rationalized medical opinion
that supports a causal connection between her current disabling condition and the employment
injury. The medical opinion must be based on a complete factual and medical background with
an accurate history of the employment injury, and must explain from a medical perspective how
the current disabling condition is related to the injury.8
ANALYSIS -- ISSUE 2
After terminating compensation for the lumbar strain and right L4 radiculopathy
appellant sustained on November 12, 2011, OWCP received an October 7, 2013 report from
Dr. Curtis who had reviewed Dr. Curcin’s evaluation and expressed some points of difference.
Dr. Curtis did not conclude that appellant continued to suffer from the accepted medical
conditions.
Dr. Curtis believed it was more probable than not that the November 12, 2011 work
injury had caused some progression of appellant’s degenerative condition: “therefore there are
residuals, even if they are difficult objectively to measure.” The Board notes that OWCP did not
accept appellant’s claim for a degenerative condition. Appellant has the burden to establish
whether any such condition is causally related to the November 12, 2011 work injury.
Dr. Curtis’ opinion is generally supportive of causal relationship, but of diminished
probative weight because he did not support his opinion with sound medical reasoning.9 He did
not point to any evidence in the medical record confirming that the incident had caused a
material change in appellant’s preexisting condition, and he did not otherwise explain how he
came to his conclusion to a reasonable medical certainty. In the absence of convincing medical
rationale, the Board finds Dr. Curtis’ opinion speculative and insufficient to discharge
appellant’s burden of proof.10
6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

7

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

John A. Ceresoli, Sr., 40 ECAB 305 (1988).

9

Medical conclusions unsupported by rationale are of little probative value. Ceferino L. Gonzales, 32 ECAB 1591
(1981); George Randolph Taylor, 6 ECAB 968 (1954).
10

See Philip J. Deroo, 39 ECAB 1294 (1988) (although the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty,
neither can such opinion be speculative or equivocal).

6

The Board finds that appellant has not met her burden to establish that she continues to
suffer residuals of the November 12, 2011 work incident. The Board will therefore affirm
OWCP’s November 1, 2013 decision.
Appellant argues on appeal that she cannot work full unlimited duty, and that may be so.
The question for determination, however, is whether this disability was the result of the
November 12, 2011 work injury or the natural progression of her chronic preexisting condition.
Appellant asserts that she still suffers residuals of her accepted condition, which require
restrictions, but the issue is a medical one that must be addressed with a well-rationalized
medical opinion.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation for lumbar
strain and right L4 radiculopathy. The Board also finds that appellant has not met her burden to
establish that she continues to suffer residuals of her November 12, 2011 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 1 and October 8, 2013 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 13, 2014
Washington, DC

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

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

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

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