United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.F., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Southeastern, PA, Employer 

__________________________________________ 

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Docket No. 17-0288 

Issued: May 23, 2017 

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 21, 2016 appellant, through counsel, filed a timely appeal from an 

October 13, 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 over the merits of this case. 

ISSUE 

The issue is whether OWCP properly rescinded its acceptance of appellant’s claim for 

post-traumatic stress disorder (PTSD) as causally related to a July 11, 2012 employment injury. 

 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

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

On July 24, 2012 appellant, then a 59-year-old business solutions specialist, filed a 

traumatic injury claim (Form CA-1) alleging that on July 11, 2012 he injured his back, shoulder, 

and knee taking a laptop out of his vehicle. He stopped work on July 11, 2012 and did not 

return. OWCP accepted the claim for a partial thickness tear of the infraspinatus tendon of the 

right shoulder, moderate tendinosis of the long head of the right biceps tendon, lumbosacral 

sprain, and a left knee contusion.3 It paid compensation for total disability from August 26, 2012 

until June 28, 2013. 

Dr. Vincent J. Morello, a clinical psychologist, performed psychological testing on 

December 14, 2013. He noted that appellant received counseling from a social worker through 

the Employee Assistance Program (EAP) at work in April 2012 after his supervisor failed to give 

him credit for a large sale and required him to commute daily to Philadelphia, PA. Appellant’s 

symptoms had decreased until the July 2012 work accident. Dr. Morello reviewed the medical 

records and conducted psychological testing, noting that appellant had an extremely high score 

for traumatic stress. He indicated that the July 2012 injury caused multiple stressors, including 

pain from the injury. Dr. Morello related, “At this time, [appellant] shows clear symptoms of 

[PTSD]. He ruminates on and is mentally preoccupied with his current physically debilitating 

condition and displays considerable anger toward his former employer for various perceived 

injustices.” Dr. Morello advised that many factors may have contributed to the PTSD, but that 

the July 2012 injury “played the key role initiating a series of events that, combined, added to the 

severity of the disorder.” He opined that appellant was disabled from employment. 

On December 27, 2013 appellant, through counsel, requested expansion of his claim to 

include a psychiatric condition. In a January 17, 2014 response, OWCP noted that it had not 

received claims for compensation (Forms CA-7) since July 2013 and explained the medical 

evidence required to establish a consequential condition.4

 

On December 4, 2014 OWCP informed appellant that it had expanded acceptance of his 

claim to include PTSD. 

OWCP, on January 12, 2015, referred appellant to Dr. Irving S. Wiesner, a Boardcertified internist and psychiatrist, for a second opinion evaluation regarding whether appellant 

had sustained an emotional condition causally related to factors of employment set forth in the 

statement of accepted facts (SOAF). The SOAF provided the history of the July 11, 2012 work 

injury and noted the accepted conditions. 

In a report dated February 9, 2015, Dr. Wiesner discussed the history of the July 11, 2012 

employment injury and provided findings on examination. He diagnosed dysthymic disorder, 

 3

 On September 13, 2012 OWCP had denied appellant’s claim as the medical evidence was insufficient to 

establish a diagnosed condition causally related to the accepted work incident. In a decision dated April 15, 2013, 

however, an OWCP hearing representative reversed the September 13, 2012 decision. 

4

 By letter dated August 7, 2014, OWCP advised that it was not able to expand the claim as appellant had not 

submitted evidence from a licensed psychologist. In a response dated September 26, 2014, Dr. Morello noted that 

he was a licensed clinical psychologist. 
3

generalized anxiety disorder, adjustment disorder with anxiety and depression, attention deficit 

disorder, and a mixed personality disorder with marked anger and denial. Dr. Wiesner related, 

“It is my medical opinion that [appellant] is suffering from a severe personality disorder that has 

long preceded what has happened. [Appellant] has been discontent with his work at the 

[employing establishment] from the very beginning. His degree of anger is far beyond rational.” 

He questioned the PTSD diagnosis given that it required a traumatic event that threatened death 

or significant injury to the self or others. Dr. Wiesner observed, “This does not at all seem to fit 

[appellant’s] clinical presentation or his history, in that the most significant part of his disability 

is his intense anger as to how the [employing establishment] has been treating him. In my 

medical opinion, this is not the grounds for diagnosis of [PTSD].” Dr. Wiesner opined that 

employment did not cause appellant’s emotional condition, but that his condition was aggravated 

“by his perceived mistreatment.” 

OWCP, by letter dated March 20, 2015, notified appellant of its proposed rescission of 

the accepted condition of PTSD and his entitlement to benefits due to that condition. It advised 

him that Dr. Morello’s opinion was speculative in nature and that it had therefore referred him 

for a second opinion examination. OWCP informed appellant that a conflict existed between his 

attending physician and Dr. Wiesner regarding whether he had PTSD. It further noted that it had 

not established as factual his allegations regarding his treatment by the employing establishment. 

OWCP, on March 27, 2015, paid appellant compensation for total disability from 

June 29, 2013 to January 11, 2014.5

In an April 27, 2015 letter, Dr. Morello disagreed with OWCP’s finding that his 

December 14, 2013 report was speculative. He explained how he reached the diagnosis of PTSD 

based on test results, his evaluation, history, and a review of the record. 

On April 7, 2015 OWCP referred appellant to Dr. Gladys Fenichel, a Board-certified 

psychiatrist, for an impartial medical examination. In a report dated June 30, 2015, Dr. Fenichel 

noted that OWCP proposed rescinding its acceptance of PTSD. She reviewed the SOAF and the 

medical evidence of record. Following an evaluation, Dr. Fenichel diagnosed persistent 

depressive disorder, a generalized anxiety disorder, and a mixed personality disorder with intense 

anger. She opined that appellant did not have PTSD causally related to events from the SOAF, 

noting that he did not fulfil the necessary criteria of exposure to “actual threatened death, serious 

injury, or sexual violence....” Dr. Fenichel found that he did not have “an emotional/psychiatric 

condition that affects his ability to function in everyday activities.” She advised that appellant’s 

mood was “consistent with the condition of a personality disorder. He does not have a disabling 

condition of depression or anxiety. If he chooses to do so, [he] has the capacity to give or take 

supervision, cooperate with others, and work under deadlines.... [Appellant] did not experience 

an event in the workplace that would prevent him from returning to work from a psychiatric 

perspective.” 

 5

 On April 27, 2015 Dr. Joseph A. Calamia, an osteopath, advised that he had treated appellant for 25 years and 

that he had a minimal psychiatric history until his injury. He discussed his difficulties obtaining workers’ 

compensation. 
4

By decision dated July 2, 2015, OWCP rescinded acceptance of appellant’s claim for 

PTSD effective that date. It found that Dr. Fenichel’s opinion represented the special weight of 

the evidence and established that he did not have a psychiatric condition due to an employment 

factor as set forth in the SOAF. 

Appellant, through counsel, on July 10, 2015 requested a telephone hearing. At the 

telephone hearing, held on February 29, 2016, he described his injury and related that he had not 

worked since July 11, 2012. 

By decision dated April 4, 2016, an OWCP hearing representative affirmed the July 2, 

2015 decision. He found that the weight of the evidence supported OWCP’s rescission of its 

acceptance of PTSD as due to the July 11, 2012 employment injury. 

On July 27, 2016 appellant, through counsel, requested reconsideration. He submitted 

the results of an April 11 and 18, 2016 psychological evaluation by Dr. Erica Avello, a 

psychologist. Dr. Avello opined that appellant’s test results showed recurrent, severe major 

depressive disorder with moderate-to-severe anxiety distress and other specified personality 

disorder. She found that his depressive disorder resulted from “vocational events, physical 

injuries and subsequent frustrations in dealing with related details.” Dr. Avello noted that 

appellant related that he received disability but not compensation “for the damages he sustained” 

after his injury. He asserted that he did “not qualify for a diagnosis of PTSD.” 

By decision dated October 13, 2016, OWCP denied modification of its April 4, 2016 

decision. It found that Dr. Avello determined that appellant did not have PTSD. Dr. Avello 

further did not explain what aspect of the work injury caused emotional distress. 

On appeal counsel generally asserts that the evidence is insufficient to support a 

rescission. 

LEGAL PRECEDENT 

Section 8128 of FECA provides that the Secretary of Labor may review an award for or 

against payment of compensation at any time on her own motion or application.6

 The Board has 

upheld OWCP’s authority to set aside or modify a prior decision and issue a new decision under 

section 8128 of FECA.7

 The power to annul an award, however, is not an arbitrary one and an 

award for compensation can only be set aside in the manner provided by the compensation 

statute.8

Workers’ compensation authorities generally recognize that compensation awards may be 

corrected, in the discretion of the compensation agency and in conformity with statutory 

provision, where there is good cause for so doing, such as mistake or fraud.9

 It is well 

 6

 5 U.S.C. § 8128; see also M.E., 58 ECAB 694 (2007). 

7 John W. Graves, 52 ECAB 160 (2000). 

8 See 20 C.F.R. § 10.610; Cary S. Brenner, 55 ECAB 739 (2004); Stephen N. Elliott, 53 ECAB 659 (2002). 

9 L.C., 58 ECAB 493 (2007). 
5

established that, once OWCP accepts the claim, it has the burden of justifying the termination or 

modification of compensation benefits.10 Its burden of justifying termination or modification of 

compensation holds true where it later decides that it has erroneously accepted a claim of 

compensation. In establishing that its prior acceptance was erroneous, OWCP is required to 

provide a clear explanation of its rationale for rescission.11

ANALYSIS 

OWCP accepted that on July 11, 2012 appellant sustained a partial thickness tear of the 

infraspinatus tendon of the right shoulder, moderate tendinosis of the right biceps tendon, 

lumbosacral sprain, and a left knee contusion. In a report dated December 14, 2013, 

Dr. Morello, an attending physician, diagnosed PTSD due in part to the July 2012 employment 

injury. On December 4, 2014 OWCP expanded acceptance of the claim to include PTSD. 

On February 9, 2015 Dr. Wiesner, an OWCP referral physician, opined that appellant had 

a preexisting personality disorder. He noted that a diagnosis of PTSD required the threat of 

death or physical injury to the self or others, which varied from appellant’s history. Dr. Wiesner 

opined that appellant did not have PTSD and that his employment did not cause his emotional 

condition. 

OWCP determined that a conflict arose between Dr. Morello and Dr. Wiesner regarding 

whether appellant had PTSD. It referred him to Dr. Fenichel for an impartial medical 

examination. Based upon her report, OWCP rescinded its acceptance of employment-related 

PTSD. 

The Board finds that OWCP provided sufficient rationale to justify the rescission of 

acceptance of appellant’s claim for PTSD.12 Where there exists a conflict of medical opinion 

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 upon a proper 

factual background, is entitled to special weight.13

In a June 30, 2015 report, Dr. Fenichel reviewed appellant’s history and the medical 

reports of record and the findings upon her evaluation. She diagnosed depressive disorder, a 

generalized anxiety disorder, and a mixed personality disorder with significant anger. 

Dr. Fenichel determined that appellant did not have PTSD due to events set forth in the SOAF as 

he did not meet the exposure criteria of threatened death, serious injury, or sexual violence. She 

opined that he did not have employment-related PTSD or any emotional condition causing 

disability from employment. The Board finds that Dr. Fenichel accurately summarized the 

relevant medical evidence, provided detailed findings on examination, and reached conclusions 

 10 Andrew Wolfgang-Masters, 56 ECAB 411 (2005). 

11 See Amelia S. Jefferson, 57 ECAB 183 (2005); Delphia Y. Jackson, 55 ECAB 373 (2004). 

12 See R.H., Docket No. 08-1961 (issued April 17, 2009). 

13 David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003). 
6

about appellant’s condition which comported with her findings.14 Her opinion, which is wellrationalized and based upon a proper factual and medical background, is entitled to the special 

weight of the evidence and establishes that appellant does not have PTSD due to his accepted 

work injury.15

In a report dated April 18, 2016, Dr. Avello interpreted psychological testing as showing 

recurrent, severe major depressive disorder with moderate to severe anxiety distress and other 

specified personality disorder. She attributed appellant’s depressive disorder to physical injuries, 

vocational issues, and frustration dealing with the events. Dr. Avello opined that he did not have 

PTSD, and thus her opinion supports the rescission of acceptance of this condition. 

On appeal counsel maintains that the evidence of record was insufficient to support a 

rescission. However, OWCP provided a clear explanation of its rationale for rescission in 

determining that Dr. Fenichel’s opinion as impartial medical examiner represented the special 

weight of the evidence.16 The Board, consequently, finds that it met its burden of proof in 

rescinding acceptance of PTSD. 

CONCLUSION 

The Board finds that OWCP properly rescinded its acceptance of appellant’s claim for 

PTSD as causally related to a July 11, 2012 employment injury. 

 14 Manuel Gill, 52 ECAB 282 (2001). 

15 See supra note 12. 

16 See K.H., Docket No. 13-1723 (issued June 17, 2014); Amelia S. Jefferson, supra note 11. 
7

ORDER 

IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: May 23, 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