United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Atlanta, GA, Employer 

__________________________________________ 

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Docket No. 14-576 

Issued: May 22, 2014 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On January 14, 2014 appellant filed a timely appeal from an August 19, 2013 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1

 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. 

ISSUE 

The issue is whether appellant was disabled after August 17, 2007 due to her accepted 

emotional condition. 

 1

 OWCP stated in its August 19, 2013 decision that it did not review the merits of appellant’s claim as the medical 

evidence submitted was cumulative. However, as it weighed the medical evidence submitted, the Board finds that it 

conducted a merit review of the case. 

2

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. By decision dated March 19, 2007, the 

Board set aside OWCP decisions denying appellant’s emotional condition claim.3

 The Board 

determined that she had established as a compensable work factor that she experienced stress 

responding to a telephone call during the course of employment. It remanded the case for 

OWCP to evaluate the medical evidence. By decision dated November 25, 2011, the Board set 

aside a January 7, 2011 nonmerit decision denying appellant’s request for reconsideration under 

5 U.S.C. § 8128.4 The Board noted that, based on the opinion of Dr. Brian Teliho, a Boardcertified psychiatrist, who provided a second opinion examination, OWCP accepted that she 

sustained a temporary aggravation of major depressive disorder and panic disorder that resolved 

by August 17, 2007.5

 On reconsideration appellant argued that Dr. R. Michael Prudent, a 

Board-certified psychiatrist and OWCP referral physician, found that she had continued 

disability due to her accepted employment injury.6

 The Board determined that her argument was 

relevant as it directly addressed the pertinent issue of whether she had further disability after 

August 23, 2007. The Board remanded the case for OWCP to review the merits of appellant’s 

claim. The facts and circumstances as set forth in the prior decisions are hereby incorporated by 

reference. 

By decision dated December 29, 2011, OWCP denied modification of its January 22, 

2010 decision. It found that the August 17, 2007 second opinion examination by Dr. Teliho 

constituted the weight of the evidence and established that the accepted condition of a temporary 

aggravation of major depression and aggravation of panic disorder had ceased. OWCP noted 

that Dr. Prudent found that appellant continued to have major depression and panic attacks but 

determined that she had not experienced a permanent aggravation of her condition. 

 

 3

 Docket No. 07-36 (issued March 19, 2007). On September 6, 2005 appellant, then a 51-year-old monitor/bulk 

mail technician, filed a traumatic injury claim alleging that she sustained an emotional condition on May 18, 2005. 

She stopped work on June 6, 2005. 

4

 Docket No. 11-1090 (issued November 25, 2011). 

5

 In a report dated August 17, 2007, Dr. Teliho diagnosed moderate major depressive disorder and panic disorder 

aggravated by the events in May 2005 set forth in the statement of accepted facts. He opined that the aggravation of 

her preexisting depression and anxiety had resolved. 

6

 In a report dated November 2, 2009, Dr. Prudent discussed the May 18, 2005 work incident where appellant 

worked as a monitor and received a telephone call from an attorney requesting an escort to the parking lot. He 

diagnosed chronic major depressive disorder and panic disorder. Dr. Prudent indicated that appellant had 

experienced anxiety, panic attacks, insomnia, depression and tearfulness following the May 2005 incident. He 

stated, “however, it is unclear that any particularly traumatic event occurred on that evening, but that her preexisting 

anxiety disorder was triggered by her fears of being alone at the security desk and feeling vulnerable.... Again, 

there are not many objective findings related to that incident other than to say that [the] incident apparently has 

triggered preexisting anxiety and those anxieties have continued to be problematic for the last four years.” 
3

On June 4, 2012 appellant requested reconsideration. She submitted an April 12, 2012 

report from Dr. Steven Marrinson, a licensed clinical psychologist, who related: 

“[Appellant] continues to experience symptoms of hypervigilance, panic, 

nightmares and recurrent memories associated with work stress on May 18, 2005 

which triggered extreme panic. These symptoms continue to aggravate and 

sustain her current major depressive disorder. In my professional opinion these 

symptoms are directly related to the extreme panic which was triggered by work 

stress on May 18, 2005, and are unrelated to any previous, nonwork-related 

trauma.” 

Dr. Marrinson opined that appellant was disabled from employment. He further asserted 

that his opinion was consistent with that of Dr. Prudent, who found that appellant had continued 

to experience panic and hypervigilance due to the May 18, 2005 incident. 

In a decision dated July 30, 2012, OWCP denied modification of its December 29, 2011 

decision. 

On July 26, 2013 appellant, through her representative, requested reconsideration based 

on the submission of supporting medical evidence. She resubmitted the April 12, 2012 report 

from Dr. Marrinson. 

In a report dated June 7, 2013, Dr. Todd M. Antin, a Board-certified psychiatrist, 

discussed appellant’s history of experiencing a panic attack on May 18, 2005 after receiving a 

telephone call while monitoring closed circuit television.7

 He diagnosed moderate, recurrent 

major depressive disorder and anxiety disorder. Dr. Antin noted that she had a history of 

depression beginning in 1982. Appellant experienced a recurrence of depression in 1992 after 

harassment at work and an exacerbation at work on May 18, 2005. Dr. Antin opined that she 

continued to experience symptoms of depression and anxiety. He stated that “concluding that 

[appellant’s] current diagnoses are directly and solely related to the incident of May 18, 2005 is 

extraordinarily difficult. [Appellant] remains aggravated and obsessed with that incident from 

eight years ago and cannot let go of it. This constant reliving of that incident continues to bother 

and plague her.” Dr. Antin found that appellant was disabled by her psychiatric conditions and 

recommended continued treatment. He asserted, “It is difficult to state with any certainty that 

her current diagnoses are solely related to her May 18, 2005 incident as there have been many 

stressors and setbacks in [her] life since that time. It is more likely that the reasons for the 

persistence of her illnesses are multivariable.” 

By decision dated August 19, 2013, OWCP denied modification of its prior merit 

decision.8

 

 7

 On July 5, 2013 Dr. Seeme V. Ahmad, a Board-certified psychiatrist, diagnosed recurrent major depressive 

disorder and panic disorder. He stated, “She continues to suffer from recurrent memories of the incident which she 

alleges occurred at her work in May of 2005.” Dr. Ahmad found that the 2005 incident might be aggravating her 

preexisting depression and anxiety. 

8

 As previously noted OWCP indicated that it was issuing a nonmerit decision but weighed the medical evidence 

submitted by appellant. Consequently, it conducted a merit review of the case. 
4

On appeal appellant argues that OWCP misinterpreted Dr. Prudent’s report. She further 

asserts that Dr. Antin did not have to find that her condition arose solely due to her May 18, 2005 

injury for it to be compensable. Appellant contends that the record contains a conflict in medical 

opinion. She alleges that OWCP asked a leading question of Dr. Teliho when it asked whether 

her condition was due to a 2003 attack by her supervisor rather than the May 18, 2005 incident 

where she received a telephone call. Appellant maintains that OWCP failed to review witness 

statement that she was unsafe at her workstation. 

LEGAL PRECEDENT 

Causal relationship is a medical issue, and the medical evidence generally required to 

establish causal relationship is rationalized medical opinion evidence.9 The opinion of the 

physician must be based on a complete factual and medical background of the claimant,10 must 

be one of reasonable medical certainty11 explaining the nature of the relationship between the 

diagnosed condition and the specific employment factors identified by the claimant.12

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.13 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.

14

ANALYSIS 

On prior appeal, the Board determined that appellant had established a compensable work 

factor when she responded to a telephone call on May 18, 2005 from an attorney requesting an 

escort to the parking lot. After developing the medical evidence, OWCP accepted that appellant 

sustained a temporary aggravation of major depressive disorder and panic disorder that resolved 

no later than August 17, 2007. The issue is whether she has established that she had continuing 

employment-related disability after August 17, 2007. 

The Board finds that this case is not in posture for decision due to a conflict in medical 

opinion. In a report dated August 16, 2007, Dr. Teliho, an OWCP referral physician, found that 

the May 2005 compensable work factor aggravated appellant’s major depressive disorder and 

 9 John J. Montoya, 54 ECAB 306 (2003). 

10 Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001). 

11 Supra note 9. 

12 Judy C. Rogers, 54 ECAB 693 (2003). 

13 5 U.S.C. § 8123(a). 

14 20 C.F.R. § 10.321. 
5

panic disorder. He asserted that the aggravation had resolved by August 17, 2007. In a report 

dated April 12, 2012, Dr. Marrinson, an attending clinical psychologist, diagnosed major 

depressive disorder with symptoms of panic, nightmares and hypervigilance. He attributed the 

diagnosed condition and resulting symptoms to the May 18, 2005 compensable work incident. 

Dr. Marrinson opined that appellant was disabled from employment. 

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.15 The Board finds that there is an unresolved 

conflict of opinion between appellant’s attending clinical psychologist, Dr. Marrinson and 

Dr. Teliho, an OWCP referral physician, regarding whether she had any continuing disability due 

to her accepted employment injury after August 17, 2007. The case will therefore be remanded 

for OWCP to refer appellant to an impartial medical examination for resolution of the conflict. 

Following any necessary further development, OWCP shall issue a de novo decision. 

On appeal appellant contends that OWCP asked a leading question of Dr. Teliho when it 

requested that he address whether her disability was due to a 2003 work incident or the 2005 

compensable employment factor. The Board has defined a leading question as one which 

suggests or implies an answer to the question posed.16 The question posed to Dr. Teliho, did not 

suggest an answer and thus his report does not need to be excluded from the record.17

Appellant argues that OWCP failed to consider that the opinion of Dr. Prudent supported 

her claim. In view of the Board’s finding of a conflict in medical opinion, it is not necessary to 

address this contention. 

Appellant also contends that Dr. Antin’s opinion supports her claim as it is not necessary 

that he find that her condition was due solely due to employment for it to be compensable. 

OWCP, in its August 19, 2013 decision, found that Dr. Antin’s opinion did not support that her 

condition persisted as he found the causes “multivariable.” While a condition is compensable if 

it is due in whole or in part to employment, Dr. Antin did not specifically opine that she had 

continued disability due to her work injury and thus his opinion is insufficient to meet her burden 

of proof or to create a conflict with Dr. Teliho. 

CONCLUSION 

The Board finds that the case is not in posture for decision. 

 15 5 U.S.C. § 8123(a). 

16 See Carl D. Johnson, 46 ECAB 804 (1995); S.H., Docket No. 12-1666 (issued March 18, 2013). 

17 See J.T., Docket No. 13-452 (issued May 29, 2013). 
6

ORDER 

IT IS HEREBY ORDERED THAT the August 19, 2013 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further proceedings 

consistent with this decision of the Board. 

Issued: May 22, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board