United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.C., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

OFFICE OF GENERAL COUNSEL, 

Houston, TX, Employer

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Docket No. 17-1294

Issued: December 20, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 24, 2017 appellant filed a timely appeal from a December 1, 2016 merit decision 

and a May 11, 2017 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1(FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUES

The issues are: (1) whether appellant has met her burden of proof to establish an 

occupational disease causally related to accepted factors of her federal employment; and

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure

provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the 

time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 

20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on 

appeal. Id.
2

(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her

claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY

On September 8, 2016 appellant, then a 46-year-old staff attorney, filed an occupational 

disease claim (Form CA-2), alleging that she developed high blood pressure, headaches, panic 

attacks, chronic neck and back pain, anxiety, and depression as a result of management increasing

her case load and responsibilities and placing her on a performance improvement plan (PIP). She

noted that she first became aware of her claimed condition on January 19, 1998 and realized its 

relationship to her federal employment in June 2016. J.R., appellant’s supervisor, noted that 

during that time, appellant remained fully employed. He noted that her reasonable accommodation 

was not as presented by appellant. 

Appellant submitted a chronological description of employment factors that caused her 

conditions. She noted that she worked as a litigator. In 2014 appellant requested reassignment to 

a nonlitigation position due to health problems, but the request was denied. Instead, she was 

granted a reasonable accommodation to assist her with her case load including being allowed to 

work from home full time, being assigned no more than 20 cases, suspension of her responsibility 

to train facility employees and interns, and limitation of her cases to only the Houston metropolitan 

area. Appellant indicated that the accommodations were honored until September 2015 when the 

employing establishment was realigned and the supervision of her duties was assigned to J.R. She 

indicated that, at that time, her case load gradually increased while cases from Dallas, TX; San 

Antonio, TX; Nebraska; and Wyoming were assigned to her. Appellant’s travel expectations 

resumed, and her requirement to serve as “attorney of the week” increased. She indicated that J.R. 

placed her on a PIP for failing to meet case management standards, specifically the time 

management requirements, and she was required to meet with him weekly to discuss her 

performance. Prior to her scheduled PIP meetings on August 9, 22, and 31, 2016, appellant

experienced shallow breathing, uncontrollable shaking, elevated blood pressure, light headedness, 

and headaches. She asserted that since being placed on the PIP, and with her increased case load,

her blood pressure has frequently spiked. Appellant indicated that she was frequently badgered 

and excessively micromanaged by J.R. She indicated that as a result her injury efficiency, 

productivity, and effectiveness has been hindered and it became increasingly difficult to sustain

her responsibilities. 

In a September 14, 2016 statement regarding a description of employment factors that 

caused her illness, appellant noted that her history was significant for a motor vehicle accident in 

1998 in which she sustained injuries to her head, neck, shoulders, and back. She was diagnosed 

with post-traumatic stress disorder, chronic pain, depression, anxiety, temporal mandibular joint 

syndrome, three bulging discs, and headaches. Appellant underwent three surgeries and took eight 

months off work. In 2002 she reached maximum medical improvement. Appellant reported being 

asymptomatic for 11 years when her condition was aggravated by work-related stress in 2013 and 

she took a five-month leave of absence in 2014. She reported no other personal stressors.

On September 14, 2016 the employing establishment disputed appellant’s allegations. It 

asserted that she misstated the details of the reasonable accommodation in 2014, specifically, the 

employing establishment denied her request to limit the number of cases assigned to 20 and her 
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request to geographically restrict her case assignment to the Houston metropolitan area. The 

employing establishment advised that appellant’s case load was at times close to 20 cases because 

the overall workload decreased, but as the workload increased appellant’s workload increased 

proportionally to her coworkers above 20 cases. It indicated that she was assigned, but rejected 

work from clients located in Nebraska and Wyoming. The employing establishment noted that 

appellant was placed on a three-week rotation as “attorney of the week” for questions arising from 

its Houston, TX facility. It asserted that she refused to discuss any of her cases with J.R. despite 

being on a PIP, and she refused to keep her notes in the electronic case tracking system. The 

employing establishment noted that since July 14, 2016 appellant had been on a PIP, a period of 

increased scrutiny designed to help an employee improve performance, and denied badgering or 

micromanaging her. It further advised that she had not exhibited any disabling conditions caused 

by an on-the-job injury. 

By development letter dated October 6, 2016, OWCP requested that appellant submit 

additional evidence in support of her claim, specifically a comprehensive medical report from her 

treating physician which included a reasoned explanation as to how the specific work factors or 

incidents identified by appellant had caused her claimed injury. It further requested that appellant 

answer a questionnaire to substantiate the factual allegations of her claim. OWCP requested that 

the employing establishment comment on the accuracy of all statements. It afforded appellant 30 

days to submit the requested evidence. No evidence was submitted.

In a memorandum dated October 26, 2016, J.R. disputed appellant’s allegations and 

asserted that the employing establishment was not aware of an on-the-job injury sustained by 

appellant. He submitted a position description for a general attorney.

In a November 5, 2016 letter, appellant responded to OWCP’s questionnaire. She 

requested an extension to file her physician’s report. Appellant indicated that due to technical 

difficulties with her computer system, Dr. Pauline Clansy, would not be able to provide a report 

within the employing establishment’s 30-day deadline, but would submit it on or before 

November 18, 2016. Appellant reiterated her allegations against the employing establishment 

previously noted. She noted no previous similar conditions.

By decision dated December 1, 2016, OWCP found that the injury occurred as described,

but denied appellant’s claim because she failed to submit medical evidence containing a medical 

diagnoses in connection with the injury or events. It pointed out that the medical evidence must 

establish that a diagnosed medical condition is causally related to the employment factors.

On February 15, 2017 appellant requested reconsideration and indicated that she submitted 

new and relevant evidence to support her request. She noted contacting OWCP on November 5, 

2016 and advised that updated and relevant documentation to sustain her claim was delayed, but 

forthcoming, but that she would submit her completed questionnaire timely. Appellant asserted 

that she submitted the required information to sustain her claim on November 5, 2016. She 

referenced medical documentation from Dr. Clansy which provided a medical diagnosis that 

correlated the injury or events that exacerbated her condition. However, this document was not 

included in appellant’s submission. Appellant asserted that she established “fact of injury” as a 

medical condition was previously diagnosed in connection with the claimed events and work 

factors. She asserted that based on the information provided the new evidence confirmed the 
4

required parameters to determine the validity of this claim. Appellant submitted a chronological 

description of employment factors that caused her illness, her November 5, 2016 correspondence 

and response to OWCP’s questionnaire, and a page from OWCP’s decision dated December 1, 

2016, all previously of record. She also submitted an e-mail from J.S. dated November 10, 2016 

who denied her request for reassignment to a nonlitigation position. J.S. indicated that human 

resources conducted a search for a suitable position and could not find one. Appellant also 

referenced a clinical and mental examination from Charis Psychological Associates; however, this 

document was not submitted with her reconsideration request. 

In an April 4, 2017 letter, appellant submitted a supplemental list of her treating physicians. 

By decision dated May 11, 2017, OWCP denied appellant’s February 15, 2017 request for 

reconsideration, finding that the evidence submitted was insufficient to warrant merit review.

LEGAL PRECEDENT -- ISSUE 1

An employee seeking benefits under FECA3 has the burden of proof to establish the 

essential elements of his or her claim by the weight of the reliable, probative, and substantial 

evidence, including that an injury was sustained in the performance of duty as alleged, and that 

any specific condition or disability claimed is causally related to the employment injury.

4

 These 

are the essential elements of each and every compensation claim regardless of whether the claim 

is predicated upon a traumatic injury or an occupational disease.5

Whether an employee actually sustained an injury in the performance of duty begins with 

an analysis of whether fact of injury has been established.6 To establish fact of injury in an 

occupational disease claim, an employee must submit: (1) a factual statement identifying 

employment factors alleged to have caused or contributed to the presence or occurrence of the 

disease or condition; (2) medical evidence establishing the presence or existence of the disease or 

condition for which compensation is claimed; and (3) medical evidence establishing that the 

diagnosed condition is causally related to the employment factors identified by the employee.7

The medical evidence required to establish 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 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 

 

3 Supra note 1.

4

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

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

6 S.P., 59 ECAB 184, 188 (2007).

7 R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).
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nature of the relationship between the diagnosed condition and the specific employment factors 

identified by the claimant.8

ANALYSIS -- ISSUE 1

The Board finds that appellant has not met her burden of proof to establish an occupational 

disease causally related to the accepted factors of her federal employment. By development letter 

dated October 6, 2016, OWCP requested that appellant submit additional evidence in support of 

her claim, specifically a comprehensive medical report from her treating physician which included 

a reasoned explanation as to how the specific work factors or incidents identified by appellant had 

caused her claimed injury. However, no medical evidence was submitted prior to OWCP’s 

December 1, 2016 decision.

As noted, appellant’s burden of proof includes the submission of rationalized medical 

opinion evidence, based on a complete factual and medical background, establishing causal 

relationship between the employment and the diagnosed condition.9 The record contains no 

medical evidence. Because appellant has not submitted reasoned medical evidence explaining 

how and why her diagnosed conditions were employment-related, she has not met her burden of 

proof.

Appellant may submit new evidence or argument with a written request for reconsideration 

to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. 

§§ 10.605 through 10.607. 

LEGAL PRECEDENT -- ISSUE 2

Under section 8128(a) of FECA,10 OWCP has the discretion to reopen a case for review on 

the merits. It must exercise this discretion in accordance with the guidelines set forth in section 

10.606(b)(3) of the implementing federal regulations, which provides that a claimant may obtain 

review of the merits of his or her written application for reconsideration, including all supporting 

documents, sets forth arguments and contain evidence which:

“(i) Shows that OWCP erroneously applied or interpreted a specific point of law; 

or

“(ii) Advances a relevant legal argument not previously considered by OWCP; or

“(iii) Constitutes relevant and pertinent new evidence not previously considered by 

OWCP.”

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8 Solomon Polen, 51 ECAB 341 (2000).

9 Supra note 7.

10 5 U.S.C. § 8128(a).

11 20 C.F.R. § 10.606(b)(3).
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Section 10.608(b) provides that any application for review of the merits of the claim which 

does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP 

without review of the merits of the claim.12

ANALYSIS -- ISSUE 2

The Board finds that OWCP properly denied appellant’s request for reconsideration of the 

merits of her claim. In her request for reconsideration, appellant did not show that OWCP 

erroneously applied or interpreted a specific point of law. In a statement dated February 6, 2017, 

she requested reconsideration and indicated that she submitted new relevant evidence to sustain 

her request. Appellant noted contacting OWCP on November 5, 2016 and advised that updated 

and relevant documentation to sustain her claim was delayed, but forthcoming, but that she would 

submit her completed questionnaire timely. She asserted that she submitted the required 

information to sustain her claim on November 5, 2016. Appellant referenced medical 

documentation from Dr. Clansy which provided a medical diagnosis that correlated the injury or 

events that exacerbated her condition. She asserted that she established “fact of injury” as a 

medical condition was previously diagnosed in connection with the claimed events and work 

factors. These assertions are duplicative of arguments previously made by appellant. Furthermore, 

these assertions do not show a legal error by OWCP or a new and relevant legal argument. The 

Board has held that evidence or argument that repeats or duplicates evidence previously of record 

has no evidentiary value and does not constitute a basis for reopening a case.13

In support of her request, appellant submitted a chronological description of employment 

factors that caused her illness, her November 5, 2016 correspondence and response to OWCP’s 

questionnaire, and a page from OWCP’s decision dated December 1, 2016. However, this 

evidence is duplicative of evidence previously submitted and considered by OWCP. Evidence that 

repeats or duplicates evidence already in the case record has no evidentiary value and does not 

constitute a basis for reopening a case.14 Therefore, this report is insufficient to require OWCP to 

reopen the claim for a merit review. 

The underlying issue in this case is whether appellant developed high blood pressure, 

headaches, panic attacks, chronic neck and back pain, anxiety, and depression as a result of 

management increasing her case load and responsibilities and placing her on a performance 

improvement plan. That is a medical issue which must be addressed by relevant new medical 

evidence.15 However, appellant did not submit any new and relevant medical evidence in support 

of her claim.

With respect to the third requirement, submitting relevant and pertinent new evidence not 

previously considered by OWCP, appellant submitted an e-mail from J.S. dated November 10, 

 

12 Id. at § 10.608(b).

13 C.N., Docket No. 08-1569 (issued December 9, 2008).

14 See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35 

ECAB 1090, 1093-94 (1984).

15 Id.; see also Bobbie F. Cowart, 55 ECAB 746 (2004).
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2016 who denied her request for reassignment to a nonlitigation position. She also submitted a

April 4, 2017 supplemental list of her treating physicians. While this evidence is new to the record, 

these documents are not relevant because the underlying issue is medical in nature.16 Evidence 

that does not address the particular issue involved does not constitute a basis for reopening a case.17 

OWCP denied the claim because appellant failed to submit any medical evidence containing a 

medical diagnoses in connection with the injury or events. Submission of these documents are not 

relevant to the underlying medical issue. Therefore, this new evidence is insufficient to warrant 

reopening the case for a merit review. 

The Board accordingly finds that appellant did not meet any of the requirements of 

20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted 

a specific point of law, advance a relevant legal argument not previously considered by OWCP, or 

submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. 

§ 10.608, OWCP properly denied merit review. 

CONCLUSION

The Board finds that appellant has not met her burden of proof to establish an occupational 

disease causally related to the accepted factors of her federal employment. The Board further finds 

that OWCP properly denied appellant’s request for reconsideration of the merits of her claim 

pursuant to 5 U.S.C. § 8128(a). 

 

16 See W.D., Docket No. 09-0658 (issued October 22, 2009) (causal relationship is a medical issue).

17 C.N., supra note 13.
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ORDER

IT IS HEREBY ORDERED THAT the May 11, 2017 and December 1, 2016 decisions 

of the Office of Workers’ Compensation Programs are affirmed.

Issued: December 20, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board