United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

R.B., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

San Juan, PR, Employer 

__________________________________________ 

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Docket No. 16-0175 

Issued: April 5, 2016 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 3, 2015 appellant, through counsel, filed a timely appeal from a July 8, 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 has met his burden of proof to establish an emotional 

condition in the performance of duty. 

FACTUAL HISTORY 

This case has previously been before the Board. The facts and law of the case as set forth 

in the Board’s prior decision and order are incorporated herein by reference. 

 1

 5 U.S.C. § 8101 et seq. 
2

On March 25, 2010 appellant, then a 42-year-old letter carrier, filed a traumatic injury 

claim (Form CA-1) asserting that he sustained an emotional condition and unspecified physical 

injuries when he leaned far back in his postal vehicle. By decision dated May 19, 2010, OWCP 

denied his claim as fact of injury had not been established. It found that appellant had not 

explained how he was injured. 

Appellant requested a review of the written record. He submitted a November 17, 2010 

statement explaining that, on March 12, 2010, while delivering mail, a car stopped in front of his 

postal vehicle and the occupants exchanged gunfire with a second car near appellant’s vehicle. 

When a bullet shattered appellant’s driver’s side window of the postal vehicle, appellant thrust 

himself backward in his seat to avoid the gunfire. Glass from the shattered window struck his 

face and body. Appellant put his vehicle in reverse and almost crashed into a fence, injuring his 

head, neck, back, left shoulder, and legs. He submitted police reports confirming the March 12, 

2010 shooting incident. 

Appellant submitted a March 12, 2010 emergency room report, noting his presence at a 

shooting while at work that day. Appellant’s supervisor accompanied appellant to the hospital. 

A Dr. Medina noted that the right side window of appellant’s postal vehicle was shot out, and 

that shards of glass sprayed appellant’s face and body. Dr. Medina diagnosed an emotional 

reaction and prescribed medication. 

Dr. Luis E. Faura Clavell, an attending physiatrist, provided March 19 and May 31, 2010 

reports diagnosing a left shoulder injury, acute cervicodorsal and lumbosacral muscle sprains, 

and an aggravation and exacerbation of preexisting cervical and lumbosacral radiculopathy. He 

held appellant off work through June 19, 2010 and prescribed medication. 

Dr. Reinaldo E. Kianes, an attending psychiatrist, held appellant off work from May 31 to 

June 17, 2010 due to an emotional condition. On October 25, 2010 he diagnosed post-traumatic 

stress disorder and generalized anxiety disorder. Dr. Kianes noted that, prior to the March 12, 

2010 incident, he had treated appellant since 1997 for post-traumatic stress disorder and 

generalized anxiety disorder. In a November 1, 2010 note, he noted that appellant had been 

disabled for work since September 27, 2010 as the March 12, 2010 incident worsened his 

emotional condition. 

In a March 31, 2010 note, Dr. Felipe Fontanez Sullivan, an attending orthopedic surgeon, 

held appellant off work from March 31 to May 31, 2010. Appellant returned to work 

intermittently from mid-May through September 27, 2010, again stopped work and did not 

return.2

 He submitted March 31, April 29, and June 24, 2010 appointment slips. 

By decision dated May 1, 2012, OWCP accepted that the March 12, 2010 shooting 

incident occurred at the time, place, and in the manner alleged, but denied the claim as causal 

relationship was not established. It found that the medical evidence of record did not explain 

how and why the March 12, 2010 shooting would have caused the claimed emotional condition 

and physical injuries. 

 2

 On January 11, 2011 appellant claimed a recurrence of total disability commencing September 27, 2010. As the 

claim was not accepted, OWCP did not conduct separate development of the recurrence claim. 
3

In a May 8, 2012 letter, counsel requested a telephonic hearing which was held on 

August 6, 2012. He submitted an August 20, 2012 report from Dr. Kianes, noting that appellant 

presented on March 29, 2010 and described the March 12, 2010 shooting incident where 

occupants of two cars adjacent to his postal vehicle exchanged gunfire, shattering appellant’s 

driver’s side window. Appellant complained of “sleep disturbances, nightmares, anxiousness, 

body, and neck pain.” With treatment and medication, he was able to return to work from 

May 27 to September 27, 2010, when he again stopped work due to increased symptoms. 

Appellant had a psychiatric hospitalization in September 2011 and was granted social security 

disability benefits in 2011. On examination, Dr. Kianes noted anxious mood, pressured speech, 

restless leg movements, and irritability. He diagnosed post-traumatic stress disorder with 

depressive features, aggravated by the March 12, 2010 workplace incident. Dr. Kianes opined 

that appellant was totally and permanently disabled from gainful employment. 

By decision dated and finalized on September 26, 2012, an OWCP hearing representative 

denied appellant’s claim as causal relationship was not established. He found that Dr. Kianes did 

not explain how and why the shooting incident would have caused or aggravated appellant’s 

post-traumatic stress disorder. Appellant then appealed to the Board. 

By decision and order issued February 3, 2014,3

 the Board affirmed OWCP’s 

September 26, 2012 decision denying appellant’s claims for physical and emotional conditions 

related to the March 12, 2010 shooting incident. The Board found that the medical evidence did 

not contain a sufficient explanation of causal relationship to meet appellant’s burden of proof for 

either the physical or emotional claims. 

In a May 14, 2014 letter, appellant’s counsel4 requested reconsideration. He asserted that 

a new March 9, 2014 report from Dr. Fernando Cabrera, Jr., an attending Board-certified 

psychiatrist who followed appellant after Dr. Kianes retired, was sufficient to meet appellant’s 

burden of proof in establishing an occupational psychiatric condition. Dr. Cabrera provided a 

history of post-traumatic stress disorder and generalized anxiety disorder beginning in 1997, 

treated by Dr. Kianes. He noted the March 12, 2010 shooting incident and appellant’s 

subsequent treatment. Dr. Cabrera diagnosed chronic post-traumatic stress disorder in partial 

remission, rule out recurrent major depressive disorder in partial remission, and rule out panic 

disorder. He opined that appellant was functioning well until the March 12, 2010 shooting 

aggravated his preexisting emotional condition. Dr. Kianes took him off work in 

September 2010 as the incident exacerbated his emotional and physical conditions. Dr. Cabrera 

found that appellant remained disabled for work. 

By decision dated July 11, 2014, OWCP denied modification, finding that Dr. Cabrera’s 

report was insufficient to establish the claimed causal relationship between the March 12, 2010 

incident and a psychiatric condition. It found that Dr. Cabrera did not explain the medical 

reasons why the shooting would cause or aggravate the diagnosed post-traumatic stress disorder. 

 3

 Docket No. 13-0126 (issued February 3, 2014). 

4

 As of May 14, 2014, appellant was represented by Alan J. Shapiro, Esq. 
4

In an April 8, 2015 letter, counsel requested reconsideration, asserting that the medical 

record established that the March 12, 2010 shooting incident caused or aggravated post-traumatic 

stress disorder. He submitted additional evidence. 

Dr. Cabrera provided a December 29, 2014 report noting that he first evaluated appellant 

on March 11, 2014. Appellant described chronic anxiety, intrusive thoughts, feelings of paranoia 

when near postal workers, depression, disorientation, flashbacks, and frequent nightmares about 

the March 12, 2010 shooting. He remained on several psychiatric medications. Dr. Cabrera 

opined that appellant’s clinical presentation met all diagnostic criteria for post-traumatic stress 

disorder as set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual 

of Mental Disorders IV-R. He explained that appellant met the first element, “exposure to actual 

or threatened death” when on March 12, 2010, “two cars started to shoot at [appellant’s] working 

vehicle. A bullet impacted [appellant’s] driver side door, shattering the window glass.” 

Appellant also met the diagnostic criteria of intrusive thoughts, distressing recurrent memories of 

the incident, dissociative reactions, prolonged distress to cues resembling aspects of the trauma, 

and persistent avoidance of such stimuli.” This incident caused emotional disturbance, anxiety, 

palpitations, irritability, restlessness, nightmares, and feelings of paranoia triggered by postal 

employees. Appellant also exhibited the chronic anxiety and depression associated with 

post-traumatic stress disorder. Dr. Cabrera emphasized that photographs of appellant’s postal 

vehicle with the window shot out, appellant’s clinical presentation, and his treatment record were 

entirely consistent with post-traumatic stress disorder directly caused by the March 12, 2010 

shooting. 

By decision dated July 8, 2015, OWCP denied modification as the medical evidence of 

record was insufficient to establish causal relationship. It found that Dr. Cabrera’s latest report 

did not explain how and why the March 12, 2010 shooting would have caused or aggravated a 

psychiatric condition. OWCP also found that he provided an inaccurate history of injury, as he 

noted that the occupants of two vehicles shot at appellant’s vehicle, whereas in prior accounts the 

occupants of the two vehicles shot at each other. 

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 of FECA; that the claim was filed within the applicable 

time limitation; that an injury was sustained while in the performance of duty as alleged; and that 

any disability and/or specific condition for which compensation is claimed are causally related to 

the employment injury.5

 These are the essential elements of each and every compensation claim 

regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6

In Lillian Cutler,

7

 the Board noted that workers’ compensation law is not applicable to 

each and every injury or illness that is somehow related to an employee’s employment. Where 

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

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

7

 28 ECAB 125 (1976). 
5

disability results from an employee’s reaction to his or her regular or specially assigned duties or 

to a requirement imposed by the employment, the disability comes within the coverage of 

FECA.8

 The Board case precedent demonstrates that the only requirements of employment 

which will bring a claim within the scope of coverage under FECA are those that relate to the 

duties the employee is hired to perform.9 To establish entitlement to benefits, a claimant must 

establish a factual basis for the claim by supporting the allegations with probative and reliable 

evidence.10 

When working conditions are alleged as factors in causing emotional disability, OWCP, 

as part of its adjudicatory function, must make findings of fact regarding which working 

conditions are deemed compensable factors of employment and are to be considered by a 

physician when providing an opinion on causal relationship.11 If a claimant implicates a factor 

of employment, OWCP should then determine whether the evidence of record substantiates that 

factor. When the matter asserted is a compensable factor of employment and the evidence of 

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of 

the medical evidence.12

ANALYSIS 

OWCP accepted that on March 12, 2010 a stray bullet shattered the driver’s side window 

of appellant’s delivery vehicle during a gunfight between the occupants of two cars adjacent to 

his vehicle. Appellant claimed that this incident caused an emotional condition. OWCP denied 

the claim, finding that the medical evidence was insufficient to establish causal relationship. 

In support of his claim, appellant submitted reports from Dr. Kianes, an attending 

psychiatrist, who treated appellant beginning in 1997 for generalized anxiety disorder and posttraumatic stress disorder. Dr. Kianes opined that the March 12, 2010 incident aggravated 

preexisting post-traumatic stress disorder, permanently disabling him from work. 

Appellant was then treated by Dr. Cabrera, a Board-certified psychiatrist. Dr. Cabrera 

noted appellant’s treatment for post-traumatic stress disorder and generalized anxiety disorder 

prior to the March 12, 2010 shooting. He opined that appellant’s history and clinical 

presentation met all diagnostic criteria for post-traumatic stress disorder. Dr. Cabrera explained 

that appellant was exposed to actual or threatened death during the shooting, particularly when 

his driver’s side window was shot out. Appellant experienced the remaining criteria of 

post-traumatic stress, including intrusive thoughts, distressing recurrent memories of the 

incident, dissociative reactions, paranoia, and distress when exposed to postal employees, 

persistent avoidance of triggering stimuli, anxiety, and nightmares. Dr. Cabrera emphasized that 

 8 Supra note 1; Id. 

9 L.R., Docket No. 14-302 (issued June 6, 2014). 

10 Ruthie M. Evans, 41 ECAB 416 (1990). 

11 See Norma L. Blank, 43 ECAB 384 (1992). 

12 Marlon Vera, 54 ECAB 834 (2003). 
6

appellant’s history and presentation were entirely consistent with post-traumatic stress disorder 

directly caused by the March 12, 2010 shooting. 

The Board finds that, while Dr. Cabrera’s opinion is not sufficiently rationalized13 to 

meet appellant’s burden of proof to establish his claim, there are no opposing medical opinions 

of record. The Board further finds that the minor variation in Dr. Cabrera’s description of who 

was shooting at whom does not in any way diminish the probative value of his opinion. The 

medical record is therefore of sufficient quality to require further development of the case by 

OWCP.14 OWCP has not undertaken further development of the medical record, such as 

referring the record to an OWCP medical adviser or referring appellant for a second opinion 

examination. In view of the above evidence, the Board finds that OWCP should have referred 

the matter to an appropriate medical specialist to determine whether appellant sustained an 

emotional condition due to the March 12, 2010 shooting. 

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested 

arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP 

shares responsibility in the development of the evidence. It has the obligation to see that justice 

is done.15 The case must therefore be remanded to OWCP for preparation of a statement of 

accepted facts concerning the March 12, 2010 incident and referral of the matter to an 

appropriate medical specialist, consistent with OWCP’s procedures, to determine whether 

appellant sustained or exacerbated an emotional condition resulting from the March 12, 2010 

shooting. Following this and any other development deemed necessary, OWCP shall issue an 

appropriate decision in the case. 

On appeal, counsel contends that the medical and factual record is more than sufficient to 

establish that appellant “found himself an unwilling participant in a gunfight,” that his vehicle 

was struck by a bullet, and that this incident caused post-traumatic stress disorder. He argues 

that OWCP has adopted an adversarial posture in the case, placing “an unreasonably high burden 

of proof upon [appellant] in requiring [him] to establish causal relationship beyond all reasonable 

doubt.” As set forth above, the case will be remanded to OWCP for additional development on 

the issue of causal relationship. 

CONCLUSION 

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

 13 See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are 

entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001). 

14 John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978). 

15 Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB 

852 (1988). 
7

ORDER 

IT IS HEREBY ORDERED THAT the July 8, 2015 decision of the Office of Workers’ 

Compensation Programs is set aside and the case remanded for additional development 

consistent with this decision and order. 

Issued: April 5, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board