United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

C.S., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

DWIGHT D. EISENHOWER VA MEDICAL 

CENTER, Leavenworth, KS, Employer

__________________________________________

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Docket No. 21-0363

Issued: August 30, 2021

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 8, 2021 appellant filed a timely appeal from an October 22, 2020 merit decision 

of the Office of Workers’ Compensation Programs (OWCP) and a December 10, 2020 nonmerit 

decision. 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 OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective September 21, 2020; and (2) whether OWCP 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that appellant submitted additional evidence to OWCP following the December 10, 2020 

decision. 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

properly denied appellant’s request for reconsideration of the merits of her claim pursuant to 

5 U.S.C. § 8128(a).

FACTUAL HISTORY

On October 12, 2017 appellant, then a 59-year-old medical administration officer, filed an 

occupational disease claim (Form CA-2) alleging that on or before April 20, 2007 she sustained 

an emotional condition caused by a hostile work environment due to factors of her federal 

employment. She stopped work on October 2, 2017. In an October 5, 2017 statement, appellant

alleged a pattern of hostility, retaliation, and discrimination by managers that continued from 

April 2007 through October 2, 2017. She also alleged that, during periods of recuperation from a 

nonoccupational condition, managers assigned portions of her duties to other employees, and 

excluded her from important workplace communication. 

In support of her claim, appellant submitted an October 23, 2017 report by Dr. Stephen 

Samuelson, a Board-certified psychiatrist and neurologist, who treated her for depression 

beginning on April 20, 2007. Dr. Samuelson noted that appellant had been treated by other 

providers for preexisting depression commencing in 1993. He related appellant’s account of 

managerial harassment and discrimination from 2007 onward, with incidents of supervisors yelling 

at her and ridiculing her beginning in mid-2014. Appellant had filed an Equal Employment 

Opportunity (EEO) claim on October 1, 2014. Dr. Samuelson opined that managerial harassment 

and discrimination, beginning in April 2007, destabilized appellant’s preexisting depression, 

causing a progressive mental decline since 2012 with depression, severe anxiety, and paranoia. 

He noted that appellant’s condition required ongoing treatment and additional medications that 

would not have been necessary, but for her work-related stressors.

3

In a December 20, 2017 statement, the employing establishment controverted the claim. It 

generally denied appellant’s allegations of harassment and retaliation. The employing 

establishment indicated that appellant had been assigned as a greeter in October 2017 based on 

work limitations for several occupational and nonoccupational conditions that prevented her from 

continuing in her date-of-injury job.

By decision dated December 22, 2017, OWCP denied appellant’s claim, finding that she 

had not established fact of injury as the evidence of record did not support that the identified 

workplace events occurred as alleged. It concluded, therefore, that the requirements had not been 

met to establish an injury as defined by FECA.

On February 27, 2018 appellant requested reconsideration. She submitted e-mails to and 

from her supervisors dated from May 2011 through August 2015 regarding leave requests, a prior 

compensation claim, communication policies, and a performance appraisal. Appellant alleged a 

pattern of harassment and discrimination by supervisors J.A., L.N., and J.M., including denial of 

multiple promotions in favor of younger coworkers, and exclusion from informational meetings. 

She also provided EEO documents alleging that managers gave coworker J.A. assignments needed 

to be preselected for a position that appellant felt should be hers due to expertise and seniority. 

 

3 Appellant retired from the employing establishment on November 30, 2017.
3

By decision dated October 25, 2019, OWCP denied modification of its December 22, 2017

decision. 

On December 26, 2019 appellant requested reconsideration. She submitted additional 

factual and medical evidence.

Appellant submitted a September 30, 2019 EEO judgment and November 13, 2019 final 

order, finding that the employing establishment discriminated against her based on her race and 

age when, on July 25, 2014, Manager J.A. informed her that she had not been accepted for the 

Medical Administration Officer/Business Office Manager position.

In a statement of accepted facts (SOAF) dated June 22, 2020, OWCP accepted, as 

compensable, that the employing establishment had discriminated against appellant based on her 

race and age. It found that the remainder of appellant’s allegations had not been established as 

factual.

In a July 1, 2020 letter, OWCP requested that Dr. Samuelson review the SOAF and provide 

an opinion as to whether the accepted discrimination caused or contributed to the claimed 

emotional condition. 

On September 21, 2020 OWCP obtained a second opinion on the causal relationship of 

appellant’s emotional condition from Dr. Sanford Edward Pomerantz, a Board-certified 

psychiatrist and neurologist. Dr. Pomerantz reviewed medical records and the SOAF, and 

conducted a telephonic examination. He obtained a subjective Beck depression score of 30, 

indicating moderate depression, which did not fully correlate with the lack of objective dysfunction 

on examination. Dr. Pomerantz opined that work factors “may have” caused a temporary 

aggravation of major depressive disorder that was currently resolved, although appellant required 

continued medication for depression. He released appellant to full, unrestricted duty. 

By decision dated October 22, 2020, OWCP vacated its October 25, 2019 decision and 

accepted a temporary aggravation of preexisting major depressive disorder, resolved as of 

September 21, 2020, based on Dr. Pomerantz’ opinion as the weight of the medical evidence. 

By decision of same date, OWCP formally accepted a temporary aggravation of preexisting 

major depressive disorder, recurrent, moderate.

On December 8, 2020 appellant requested reconsideration. In statements dated 

December 8 and 9, 2020, she contended that her emotional condition remained active and disabling 

and that she required additional treatment. Appellant could not claim reimbursement for copays 

or prescriptions as OWCP had closed the claim. She emphasized that Dr. Samuelson would not 

release the report OWCP had requested without payment, and that his opinion was crucial to her 

claim.

4

 

 

4 Appellant also presented these arguments in an undated note imaged into the case record on October 23, 2020. 
4

By decision dated December 10, 2020, OWCP denied appellant’s reconsideration request

of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim, it has the burden of justifying termination or modification of 

compensation benefits.5 After it has determined that an employee has disability causally related 

to his or her federal employment, OWCP may not terminate compensation without establishing 

that the disability has ceased or that it is no longer related to the employment.6

Where OWCP has accepted a resolved aggravation of a preexisting emotional condition, 

the date by which the condition resolved must be established by probative medical evidence.7 

FECA provides that, if there is a 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 the examination.8 The implementing regulations provide 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 or impartial examination and OWCP 

will select a physician who is qualified in the appropriate specialty and who has no prior connection 

with the case.9

ANALYSIS -- ISSUE 1

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective September 21, 2020. OWCP accepted 

that appellant sustained a temporary aggravation of preexisting major depressive disorder that 

resolved no later than September 21, 2020, the date of Dr. Pomerantz’ second opinion report. The 

Board finds, however, that this finding was improper as there was an outstanding conflict of 

medical opinion between Dr. Pomerantz and Dr. Samuelson, the attending psychiatrist.10

Dr. Pomerantz indicated that the accepted discrimination “may have” caused a temporary 

aggravation of preexisting depression that had resolved no later than September 21, 2020. While 

he noted that appellant would require ongoing medication management, he did not provide medical 

rationale distinguishing appellant’s preexisting depression from the accepted emotional 

 

5 A.M., Docket No. 18-1243 (issued October 7, 2019); Gewin C. Hawkins, 52 ECAB 242, 243 (2001); Alice J. 

Tysinger, 51 ECAB 638, 645 (2000).

6 Mary A. Lowe, 52 ECAB 223, 224 (2001).

7

J.C., Docket No. 13-1200 (issued November 1, 2013); Daniel A. Davis, 39 ECAB 151 (1987).

8 5 U.S.C. § 8123(a).

9 20 C.F.R. § 10.321.

10 Daniel A. Davis, supra note 7.
5

condition.11 In contrast, Dr. Samuelson, in his November 25, 2017 report, opined that a pattern of 

managerial harassment and discrimination from April 2007 through mid-2014 destabilized 

preexisting depression, precipitating a progressive mental decline that required ongoing treatment 

and additional medications.

As such, the Board finds that a conflict of medical opinion remains relative to this issue. 

OWCP should have resolved the conflict of medical opinion evidence before terminating 

compensation.12 As it failed to resolve the conflict of medical opinion evidence, the Board finds 

that it failed to meet its burden of proof to terminate appellant’s wage-loss compensation and 

medical benefits. 

CONCLUSION

The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s 

wage-loss compensation and medical benefits, effective September 21, 2020.

13

 

 

11 D.R., Docket No. 15-1185 (issued October 8, 2015).

12 K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued June 4, 2018).

13 In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.
6

ORDER

IT IS HEREBY ORDERED THAT the December 10 and October 22, 2020 decisions of 

the Office of Workers’ Compensation Programs are reversed.

Issued: August 30, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board