United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

J.S., claiming as personal representative of the 

estate of D.S., Appellant

and

DEPARTMENT OF THE NAVY, 

PORTSMOUTH NAVAL SHIPYARD, 

Portsmouth, NH, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

)

Docket No. 17-0326

Issued: February 13, 2018

Appearances: Case Submitted on the Record

Bradley M. Lown, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On November 29, 2016 appellant, through counsel, filed a timely appeal from an 

October 24, 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.

 

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

ISSUES

The issues are: (1) whether appellant has met his burden of proof to establish that the 

employee had sustained a recurrence of disability commencing on July 12, 2012 causally related 

to the accepted June 5, 2008 employment injury; and (2) whether appellant has met his burden of 

proof to establish that the employee sustained an emotional condition as a consequence of the 

accepted June 5, 2008 employment injury.

On appeal counsel contends that the employee developed depression as a consequence of 

his accepted employment injury. 

FACTUAL HISTORY

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

in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth 

below.

On June 16, 2008 the employee, then a 38-year-old police officer, filed a traumatic injury 

claim (Form CA-1) alleging that, on June 5, 2008, he sustained right hip and lateral thigh 

cutaneous femoral nerve syndrome as a result of his gun belt compressing the nerves in his right 

hip while getting in and out of a patrol car and ascending and descending stairs at work. He 

stopped work on June 10, 2008 and returned to limited duty on June 23, 2008. 

By decision dated November 21, 2008, OWCP denied the employee’s claim as the 

medical evidence of record was insufficient to establish that the diagnosed medical condition 

was causally related to the accepted employment incident. On July 22, 2009 an OWCP hearing 

representative affirmed this decision. By decision dated June 21, 2010, the Board set aside the

July 22, 2009 decision and remanded the case to OWCP to further develop the medical 

evidence.3 Following further development of the medical evidence, on October 17, 2011, 

OWCP accepted the employee’s claim for right-sided lumbosacral intervertebral disc 

impingement. 

On January 8, 2013 the employee filed a recurrence claim (Form CA-2a) alleging a 

recurrence of disability on July 1, 2009 due to his accepted June 5, 2008 employment injury. He 

stopped work on July 12, 2012. In an accompanying undated statement, the employee noted

that, after his original right hip injury, he returned to restricted duty.4 He related that he was 

unable to perform certain jobs while working within his restrictions. The employee became 

depressed as a result of the way he was treated at work and due to his pain and limitations. He

indicated that his depression was so bad that he was placed off work by Dr. M. David Lauter, an 

attending Board-certified family practitioner.

 

3 Docket No. 09-2107 (issued June 21, 2010), denying petition for recon., Docket No. 09-2107 (issued 

November 16, 2010).

4 The record indicates that, following the June 5, 2008 employment injury, appellant returned to a temporary 

limited-duty position as a traffic administrator, 10 hours a day, four days a week with restrictions.
3

OWCP received several medical records from Dr. Lauter. In treatment notes dated 

August 16, 2007 to December 28, 2012, Dr. Lauter addressed the employee’s back and hip pain 

and depression. He advised that his condition was static and no further recovery or remission 

was expected. Dr. Lauter listed the employee’s physical limitations which were in effect 

indefinitely.

5 On November 21, 2008 and June 6, 2012 he found that the employee had neuralgia 

paraesthetic based on his history of chronic trauma/pressure to the area and distribution of pain 

consistent with his history. Dr. Lauter related that the onset of this condition occurred

June 5, 2008. He reiterated that no further recovery or remission was expected. In July 24 and 

September 11, 2009 prescriptions, Dr. Lauter limited the employee to working no more than 10 

hours a day, four days a week due to neuralgia parathestica and other medical issues. On

July 29, 2011 he noted that in 2008 the employee had a chronic injury to his right hip and thigh 

from his gun belt. Dr. Lauter indicated that the employee had been working 40 hours a week as 

a traffic administrator for two years, despite having pain that perhaps had worsened. He advised 

that slow deterioration was likely. Dr. Lauter further advised that the employee could continue 

to work 40 hours a week within restrictions. He noted that he was on medication for depression. 

In an August 22, 2012 note, Dr. Lauter reported that the employee had continued depression for 

which he took medication. He advised that his condition was due to issues related to work and 

his injury. Dr. Lauter related that the employee was unable to work.6 On January 15, 2013 he

again noted that the employee suffered from depression. Dr. Lauter related that he believed that 

this condition was probably directly related to his injury, disability, and how he was treated at

work. He indicated that his prognosis was poor and addressed the employee’s treatment plan. 

In September 17, 2008 to August 4, 2010 reports, Dr. William S. Sutherland, a Boardcertified orthopedic surgeon, noted the employee’s right groin and hip symptoms. He reported 

findings and provided an impression of an unusual nerve type syndrome involving anterior thigh 

and groin symptoms that appeared neurologic in nature and may be related to the employee’s 

previous hernia pathology and surgery or may also be an unusual meralgia paresthetica.

Dr. Sutherland noted that the employee was performing light-duty work. 

By letter dated March 13, 2013, counsel asserted that the employee had depression which

his physicians confirmed was related to his accepted injury and resultant disability. He noted 

that the employee was terminated from the employing establishment effective January 25, 2013 

due to his medical inability to perform his full range of duties. Counsel claimed that his medical 

inability was caused before July 2012, by his accepted injury. He requested wage-loss

compensation benefits as of January 25, 2013.

 

5

In an August 31, 2007 note, Dr. Lauter noted that on May 11, 2007 appellant had a left inguinal hernia and was 

off work for three weeks. The record contains May 12 to September 27, 2007 reports from Dr. Peter K. Carter, a 

Board-certified surgeon, who diagnosed left inguinal hernia and noted surgically repairing this condition. He 

subsequently released the appellant to return to full normal activity.

6 A February 15, 2012 lumbar spine magnetic resonance imaging (MRI) scan report noted no significant disc 

bulge or herniation. There was some borderline mild central stenosis at L3-4 and L4- 5, likely in part due to some 

congenital shortening of the pedicles. Also noted was right neural foraminal narrowing at L3-4, borderline mild 

narrowing bilaterally at L4-5, and facet joint arthrosis with some reactive marrow edema in the right facet at Ll-2.
4

In a May 23, 2013 letter, OWCP advised the employee of the deficiencies of his 

recurrence claim and requested that he submit additional medical and factual evidence. The 

employee was afforded 30 days to provide additional evidence in support of his claim.

On June 12, 2013 the employee reiterated that he was unable to perform restricted-duty 

work after his original right hip injury due to depression, pain, and restrictions. He maintained 

that he had no preexisting depression or emotional problems. OWCP also received a

February 15, 2013 medical marijuana program certification signed by Dr. Patrick Mulcahy, a 

Board-certified family practitioner. Dr. Mulcahy certified the employee’s participation in the 

program through August 13, 2013.

By decision dated July 11, 2013, OWCP denied the employee’s claim for a recurrence of 

disability. It also found that the evidence of record was insufficient to establish that his 

emotional condition was a consequence of his accepted June 5, 2008 employment injury.

In a September 13, 2013 letter, counsel requested reconsideration. He submitted a 

September 4, 2013 report from Dr. Craig E. Stenslie, a clinical psychologist. Dr. Stenslie 

reviewed the employee’s medical and employment records and personal history. He interviewed 

the employee and reported a Beck Depression Inventory score of 47. This score indicated a 

severe and quite significant level of clinical depression with a high level of vegetative signs and 

symptoms. Dr. Stenslie related that the data was indicative of moderate-to-severe major 

depression with a single lengthy and essentially unbroken episode caused by the 2008 right hip 

work injury as noted in prior medical records that he reviewed. These records clearly indicated

that the employee was under stress and depressed due to his concern about loss of work and 

difficulty coping with the pain of injury, perceived negative treatment and lack of 

accommodation at work, and his physical limitations which were secondary to his 2008 injury. 

Based on testing, the employee’s mental status, content of his thinking, and his emotional state in 

an extended interview on August 2013, Dr. Stenslie advised that the employee showed multiple 

signs of clinical depression, including low mood, a sense of hopelessness and helplessness, 

vague suicidal ideation, low energy, low interest in activities previously enjoyed and 

accomplished, social isolation, and irritability. He opined that his depression stemmed directly 

from his 2008 hip injury and subsequent pain and loss of physical function, including problems 

with dressing himself; limitations in lifting, walking, and any type of vigorous physical activity;

and ultimately loss of ability for gainful employment. 

Dr. Stenslie related that the employee had no previous history of depression and there 

was no reason to believe the employee would have developed depression or had a propensity to 

develop depression absent some type of catastrophic life event or circumstances such as the 

significant 2008 physical work injury and his subsequent loss of ability for physical activity and 

gainful employment. The employee’s depression was also exacerbated by his difficulties in his 

relationship with his daughter. However, Dr. Stenslie maintained that there was no evidence 

historically to suggest that his depression was caused by difficulties with his daughter or his 

divorce, including difficulties with his ex-wife. He pointed out that the employee had worked at 

the employing establishment without significant depression after his divorce and while raising 

his daughter as a divorced parent. Dr. Stenslie opined that the employee’s difficulties with his 

daughter and any exacerbation of his depression regarding these difficulties with her almost 

undoubtedly stemmed from his deteriorating physical, mental, and emotional status over the past 
5

year and a half or so and his stated embarrassment regarding his deteriorated status. He related 

that the employee required ongoing treatment.

The employee died on February 4, 2014 due to a stroke. On February 18, 2014 counsel

appealed OWCP’s July 11, 2013 decision to the Board.7 By order dated June 3, 2014, the Board 

dismissed the appeal.

8

By decision dated June 4, 2014, OWCP denied modification of its July 11, 2013 decision. 

It found that Dr. Stenslie did not provide a rationalized medical opinion sufficient to establish

causal relationship between the employee’s emotional condition and the accepted June 5, 2008 

employment injury. 

By letter dated August 7, 2014, received by OWCP on March 27, 2015, counsel 

requested reconsideration and submitted an additional report from Dr. Stenslie. In a July 23, 

2014 addendum, Dr. Stenslie related that he sought to provide a specific and rationalized opinion 

on causal relationship. He again reviewed prior findings noted in the medical record regarding 

the employee’s emotional condition. Dr. Stenslie reiterated his prior finding that there was no 

evidence that the employee was depressed before 2008, including secondary to his divorce or 

previous injury which led to him ending a potential career as a professional golfer. He noted 

that, until 2008, the employee maintained gainful employment, an active lifestyle, a copacetic 

relationship with his ex-wife, and an ongoing relationship with his daughter. The employee 

indicated that being police officer was very important to him and that he felt he was quite 

talented for the job. Dr. Stenslie opined that the historical and psychological evidence indicated

that his work had become intrinsic to his identity and sense of value, as having been the one 

thing he was good at and the source of financial stability for himself and his family and positive 

feelings about himself. He further opined that the causal connection between the employee’s 

depression and what the employee referred to as high levels of stress in his life ran directly from 

his physical injury to his depression in his inability to continue with employment in law 

enforcement. Dr. Stenslie related that in his opinion, the evidence was clear that he was not 

depressed about family relationships, noting that his troubled relationship with his daughter 

occurred much later and well after his 2008 work injury. He advised that other factors such as,

loss of recreational activities and disappointment with how the employee was treated at work,

were decidedly secondary to the main cause of his depression, which was his physical injury that 

precluded work in law enforcement.

On August 10, 2016 OWCP requested that the employing establishment submit 

information regarding the employee’s employment and treatment in its health unit. In response, 

it received medical and employment records, which included a January 25, 2013 Notification of 

Personnel Action (Form SF-50B) indicating that the employee was removed from the employing 

establishment effective that day due to his medical inability to perform the full range of his work 

duties. 

 

7

In a subsequent letter dated April 2, 2014, counsel withdrew the appeal before the Board. He stated that he 

wished to seek reconsideration before OWCP. 

8 Order Dismissing Appeal, Docket No. 14-0445 (issued June 3, 2014).
6

By decision dated October 24, 2016, OWCP denied modification of its June 4, 2014 

decision. It found that the employee had not established a recurrence of total disability 

commencing on July 12, 2012 and that Dr. Stenslie’s July 23, 2014 addendum was insufficient to 

establish that the employee’s emotional condition was caused by a compensable employment 

factor.

LEGAL PRECEDENT -- ISSUE 1

A recurrence of disability means an inability to work after an employee has returned to 

work, caused by a spontaneous change in a medical condition resulting from a previous injury or 

illness without an intervening cause or a new exposure to the work environment that caused the 

illness. It can also mean an inability to work that takes place when a light-duty assignment made 

specifically to accommodate an employee’s physical limitations due to his or her work-related 

injury or illness is withdrawn or when the physical requirements of such an assignment are 

altered so that they exceed his or her established physical limitations.9

When an employee who is disabled from the job he or she held when injured on account 

of employment-related residuals returns to a limited-duty position or the medical evidence of 

record establishes that he or she can perform the limited-duty position, the employee has the 

burden of proof to establish, by the weight of the reliable, probative, and substantial evidence, a 

recurrence of total disability and an inability to perform such limited-duty work. As part of this 

burden, the employee must show a change in the nature and extent of the injury-related condition 

or a change in the nature and extent of the limited-duty job requirements.10 To establish a 

change in the nature and extent of the injury-related condition, there must be a probative medical 

opinion, based on a complete and accurate factual and medical history as well as supported by 

sound medical reasoning, that the disabling condition is causally related to employment factors.11 

In the absence of rationale, the medical evidence is of diminished probative value.12 While the 

opinion of a physician supporting causal relationship need not be one of absolute medical 

certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a 

reasonable degree of medical certainty.13

ANALYSIS -- ISSUE 1

The Board finds that the employee has failed to establish a recurrence of total disability 

commencing on July 12, 2012 causally related to the accepted employment injury.

 

9

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is 

withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See 

also Richard A. Neidert, 57 ECAB 474 (2006).

10 A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

11 Mary A. Ceglia, 55 ECAB 626, 629 (2004).

12 Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

13 Ricky S. Storms, 52 ECAB 349 (2001).
7

OWCP accepted that the employee sustained right-sided lumbosacral intervertebral disc 

impingement in the performance of duty. As of July 12, 2012, the employee was performing 

limited-duty work, 10 hours a day, 4 days a week with restrictions. He claimed disability 

compensation commencing on July 12, 2012, stating that he was depressed due to his treatment

at work and his inability to perform his work duties due to pain and limitations. 

The Board finds that the employee has not submitted sufficient medical opinion evidence 

to establish his claimed period of disability. Dr. Lauter’s January 15, 2013 report found that the 

employee suffered from depression. He related that he believed the employee’s condition was 

“probably” directly related to his injury, disability, and treatment at work. Dr. Lauter’s 

August 22, 2012 notes found that the employee had continued depression for which he took 

medication. He advised that the employee was unable to work. Dr. Lauter opined that his 

condition was due to issues related to work and his injury. The Board notes that OWCP did not 

accept depression or any other emotional condition as causally related to the employee’s 

employment.14 Furthermore, Dr. Lauter’s opinion on causal relationship is speculative in nature

and insufficiently rationalized. The Board has held that medical opinions which are speculative 

or equivocal are of diminished probative value.15 Furthermore, a mere conclusion without the 

necessary rationale explaining how work activities could result in the diagnosed condition is 

insufficient to meet the employee’s burden of proof.16 Dr. Lauter’s opinion is of limited 

probative value as it does not contain any medical rationale explaining how the accepted rightsided lumbosacral intervertebral disc impingement caused or contributed to the claimed 

disability beginning July 12, 2012.

Other reports from Dr. Lauter either predate the alleged recurrence of disability or fail to 

offer an opinion addressing whether the employee’s diagnosed emotional condition was caused 

by the accepted June 5, 2008 employment injury. The Board has held 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.17 The Board finds that Dr. Lauter’s reports 

are insufficient to meet the employee’s burden of proof.

Dr. Stenslie’s reports attribute the employee’s disability to an emotional condition. As 

noted, OWCP has not accepted an emotional condition. Dr. Stenslie did not otherwise provide a 

rationalized opinion explaining how the accepted condition caused or contributed to the claimed 

 

14 See T.M., Docket No. 08-975 (issued February 6, 2009) (when a claimant claims that a condition not accepted 

or approved by OWCP was due to an employment injury, the claimant bears the burden of proof to establish that the 

condition is causally related to the employment injury through the submission of rationalized medical evidence). 

15 See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the 

condition is probably related, most likely related, or could be related are speculative and diminish the probative 

value of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or 

equivocal are of diminished probative value).

16 See D.P., Docket No. 17-0148 (issued May 18, 2017); Beverly A. Spencer, 55 ECAB 501 (2004).

17 C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 

58 ECAB 149 (2006).
8

recurrence of disability beginning July 12, 2012. Thus, his reports are of diminished probative 

value.18

The other medical evidence submitted, which primarily includes diagnostic studies, is of 

limited probative value as it does not specifically address whether the employee’s recurrence of 

disability beginning July 12, 2012 was causally related to the accepted right-sided lumbosacral 

intervertebral disc impingement.19

The Board, therefore, finds that appellant has not met his burden of proof.

LEGAL PRECEDENT -- ISSUE 2

Once the primary injury is causally connected with the employment, Larson20 notes that, 

when the question is whether compensability should be extended to a subsequent injury or 

aggravation related in some way to the primary injury, the rules that come into play are 

essentially based upon the concepts of direct and natural results and of the claimant’s own 

conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether 

an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct 

and natural result of a compensable primary injury.21

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.22

Causal relationship is a medical issue and the medical evidence required to establish 

causal relationship is rationalized medical evidence.23 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 employee.24 Neither the mere fact that a disease or condition manifests itself during a period 

 

18 See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981) (medical 

reports without adequate rationale on causal relationship are of diminished probative value and do not meet an 

employee’s burden of proof).

19 See supra note 17.

20 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014).

21 Melissa M. Frederickson, 50 ECAB 170 (1998).

22Charles W. Downey, 54 ECAB 421 (2003).

23 Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

24 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).
9

of employment nor the belief that the disease or condition was caused or aggravated by 

employment factors or incidents is sufficient to establish causal relationship.25

ANALYSIS -- ISSUE 2

The Board finds that the employee has not met his burden of proof to establish an 

emotional condition as a consequence of his accepted employment injury. 

Dr. Lauter’s January 15, 2013 report found that the employee suffered from depression. 

He related that he believed the employee’s condition was “probably” directly related to his 

injury, disability, and treatment at work. Dr. Lauter’s August 22, 2012 notes found that the 

employee was depressed and unable to work. He opined that this condition was due to issues 

related to work and the employee’s injury. The Board finds, however, that Dr. Lauter’s opinion 

on causal relationship is speculative in nature and insufficiently rationalized. The Board has held 

that medical opinions which are speculative or equivocal are of diminished probative value.26 

Furthermore, a mere conclusion without the necessary rationale explaining how work activities 

could result in the diagnosed condition is insufficient to meet the employee’s burden of proof.27 

Dr. Lauter does not provide medical rationale explaining how the accepted June 5, 2008 

employment injury caused or contributed to the diagnosed emotional condition.28 Other reports 

from Dr. Lauter are of limited probative value as they do not specifically provide an opinion on 

the causal relationship between the employee’s depression and the accepted June 5, 2008 

employment injury.29 For these reasons, the Board finds that Dr. Lauter’s reports are insufficient 

to meet the employee’s burden of proof.

Dr. Stenslie’s September 4, 2013 and July 23, 2014 reports found that the employee had 

depression causally related to the accepted June 5, 2008 employment injury and his subsequent 

loss of ability to perform physical activity and loss of gainful employment. He maintained that

the employee had no previous history of depression and, thus there was no reason to believe that 

the employee had a propensity to develop depression absent a catastrophic life event or 

circumstances, such as the 2008 work injury. A medical opinion, however, that a condition is 

causally related to an employment injury because the employee was asymptomatic before the 

injury, but symptomatic after it is insufficient, without supporting rationale, to establish causal 

relationship.30 Dr. Stenslie did not adequately explain how the accepted employment injury 

 

25 Dennis M. Mascarenas, 49 ECAB 215 (1997).

26 See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the 

condition is probably related, most likely related, or could be related are speculative and diminish the probative 

value of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or 

equivocal are of diminished probative value).

27 See D.P., Docket No. 17-0148 (issued May 18, 2017); Beverly A. Spencer, 55 ECAB 501 (2004). 

28 D.P., id.; S.H., Docket No. 16-1227 (issued February 9, 2017).

29 See supra note 17.

30 John F. Glynn, 53 ECAB 562 (2002).
10

caused or contributed to the employee’s emotional condition and resultant disability.31 

Additionally, rationale is needed in view of Dr. Stenslie’s initial opinion provided in his 

September 4, 2013 report that the employee’s condition was also exacerbated by his relationship 

with his daughter. Dr. Stenslie also indicated that the employee may have had stress in his 

relationship with his ex-wife and in the loss of a potential career as a professional golfer due to a 

previous injury. While his July 23, 2014 addendum reiterated that the employee’s depression 

was not the result of other stressors in the employee’s life, the reasoning for this opinion was 

essentially that the employee was not depressed before the June 5, 2008 work injury. As noted, a 

temporal relationship alone will not suffice for purposes of establishing causal relationship.32 

Dr. Stenslie did not provide a fully rationalized opinion explaining why the diagnosed emotional 

condition was caused or aggravated by the 2008 work injury and why it was not solely 

attributable to nonwork factors. 

The other remaining medical evidence of record, which primarily consists of diagnostic 

studies, is also of diminished probative value as it does not address why the employee’s 

emotional condition was attributable to the accepted June 5, 2008 lumbar injury.33 

For these reasons, appellant has not established that the employee sustained an emotional 

condition as a consequence of his June 5, 2008 work injury.

On appeal counsel contends that the employee developed depression as a consequence of 

his accepted employment injury. The Board finds that the weight of the medical evidence does 

not establish that the employee sustained an emotional condition causally related to the accepted 

June 5, 2008 work injury.

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 the employee has not met his burden of proof to establish a 

recurrence of disability commencing on July 12, 2012 causally related to his accepted 

employment injury. The employee also did not meet his burden of proof to establish an 

emotional condition as a consequence of his accepted employment injury.

 

31 See supra note 14; Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not 

accepted or approved by OWCP was due to an employment injury, he bears the burden of proof to establish that the 

condition is causally related to the employment injury).

32 See supra note 30 and accompanying text.

33 Supra note 17.
11

ORDER

IT IS HEREBY ORDERED THAT the October 24, 2016 decision of the Office of 

Workers’ Compensation Programs is affirmed.

Issued: February 13, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board