United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colorado Springs, CO, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-874
Issued: August 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 4, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 22, 2007 and January 11, 2008 denying her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty causally related to factors of her federal employment.
FACTUAL HISTORY
On January 28, 2007 appellant, then a 48-year-old clerk, filed a Form CA-2, occupational
disease claim, alleging an emotional condition due to an aggravation of preexisting chronic pain

from a work injury and to a hostile work environment.1 She alleged that chronic pain and
constant harassment aggravated her depression, noting a preexisting bipolar disorder and chronic
pain from accepted employment injuries. Appellant stated that at 1:30 a.m. on December 6,
2006 she had a confrontation with Jim Odle, her immediate supervisor, regarding her permanent
work restrictions. Mr. Odle brought her a CA-17 form but that, since she had submitted both a
CA-17 and OWCP-5 form, the prior July, she was not required to submit another. Appellant
became angry, ripped up the CA-17 and threw it away but Mr. Odle took it from the trash and
left the work area. As Mr. Odle was leaving, she asked to see a union steward and experienced
an anxiety attack. Appellant left the work floor and went to the union office. Mr. Odle was there
and began yelling at her to leave because she did not have permission to be there. Appellant
yelled back at him to leave her alone and Chuck Bader, the union steward, came between the two
of them. Mr. Odle left and Mr. Bader received a telephone call to bring appellant to the medical
director’s office (MDO). Appellant then went to her work area to get her inhaler. When she
arrived at the MDO’s office, she asked Janet Williams, the MDO, to take her to the hospital but
was told that, if she felt she needed to leave, she could fill out a leave slip. Appellant left the
MDO’s office, returned to the union office, and finished her shift, leaving at 6:30 a.m. However,
as she was driving home, she realized she could not drive and called someone to pick her up and
take her home. Appellant did not go to the hospital. She filed a grievance regarding the
December 8, 2006 incident. In a form report dated August 14, 2001, Dr. Jeff Harazin, a
psychiatrist, advised that appellant had a service-connected chronic condition and required
medication daily with psychotherapy during flare-ups. On September 19, 2001 Dr. Robert T.
Pero, Board-certified in occupational and preventive medicine, diagnosed work-related cervical
strain, myofascial pain and headaches, and primarily nonwork-related depression. He provided
permanent work restrictions. In Office form reports dated July 14, 2006, Dr. Jack L. Rook, a
Board-certified physiatrist, advised that appellant could work eight hours a day, five days a week
with “indefinite” work restrictions. On December 18, 2006 he advised that appellant continued
to complain of severe neck and low back pain and had a severe panic disorder which was
aggravated by chronic pain and stressors in the workplace. In a January 11, 2007 report,
Roxann L. Crouse, a licensed social worker, advised that appellant could not work from
January 9 to 15, 2007.
By letters dated February 16, 2007, the Office informed appellant of the evidence needed
to support her claim and asked that the employing establishment respond to her allegations. The
employing establishment controverted the claim and submitted a December 28, 2006 statement
from Odessa Lazard. Appellant accompanied Mr. Odle on December 8, 2006 when he gave
appellant the CA-17 form, noting that appellant told him she did not need to submit the form.
She snatched it from him, tore it up and threw it in the trash. Mr. Odle retrieved the form and
told appellant he would show it to the MDO. Appellant replied, using profanity, stating that she
did not care. Ms. Lazard stated that Mr. Odle did not raise his voice when talking with appellant.
In a February 8, 2007 letter, Kenneth A. DeHate, western area manager of human resources,
informed appellant that employees were required to keep their CA-17 on them while at work and
1

Under Office file number 120194010, the Office accepted a work-related cervical strain, myalgia, headaches and
lumbago, and under file number 122014754, work-related lumbar degenerative arthritis, herniated disc at L2-3, and
spinal stenosis at L4-5. These claims were doubled on November 28, 2006, with the former becoming the master.
The instant claim was adjudicated by the Office under file number 122042936.

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that requiring medical updates every 30 days was standard practice until maximum medical
improvement had been reached.
In a May 23, 2007 report, Carol Shelby-Hackels, a nurse practitioner, advised that
appellant could not work secondary to a military-connected disability.
In a statement dated June 15, 2007, Mr. Bader noted that, on December 6, 2006, appellant
asked to see a union steward before she came to the union office but her request was not
authorized. He noted that Mr. Odle was already there when appellant arrived. Mr. Bader noted
that appellant reported that she came to the union office because she felt threatened by a hostile
environment Mr. Odle had created. At the union office, Mr. Odle became angry and began
yelling. Appellant also became upset and began yelling. Mr. Bader stepped between them to
avoid further escalation. He stated no one yelled during the later meeting but that Ms. Williams
had a cold demeanor and would not take appellant to the hospital, even though she was visibly
upset and had trouble breathing.
In e-mails dated June 11 to 13, 2007, Ms. Williams advised that during the meeting on
December 6, 2006 she informed appellant that she should stop crying and act appropriately
because no one was being rude or yelling at her. Appellant did not inform her that she was
having trouble breathing but only stated that she felt stressed and wanted to go to the hospital.
Ms. Williams informed appellant that she could complete a leave slip and go to the hospital. She
concluded that appellant was no longer crying or acting out at that point. Mr. Odle advised that
as he was talking with Mr. Bader because appellant had torn up the CA-17 and was using
profanity. After appellant’s unauthorized entry to the union office, he told her to leave.
Mr. Odle stated that she refused to leave, would not listen to him, and began unpleasant shouting.
He acknowledged that he raised his voice. Mr. Odle then called Ms. Williams who asked that
they report to her office. In a June 18, 2007 statement, Jim Damm, health and resource
management specialist, responded to appellant’s allegations. He noted that she had two claims
for physical injuries, and was at maximum medical improvement as to only one claim.
Mr. Damm advised that although Ms. Williams authorized leave on December 6, 2006 appellant
completed her tour.
By decision dated June 22, 2007, the Office denied the claim on the grounds that
appellant did not establish that she sustained an emotional condition in the performance of duty.
On July 2, 2007 appellant requested a hearing and submitted a July 19, 2007 report in which
Ms. Crouse advised that appellant could not work.
At the November 5, 2007 hearing, Mr. Bader again described the events of
December 6, 2006. Appellant testified that she experienced chronic pain and headaches from her
accepted lumbar and cervical conditions. She described the December 6, 2006 incident,
contending that she was unfairly treated by Mr. Odle because she had permanent restrictions and
being asked to complete the work restriction form caused an anxiety attack. Appellant felt
physically threatened by Mr. Odle while in Mr. Bader’s office. She completed her shift at 6:30
a.m. but could not drive all the way home and was picked up by her boyfriend. Appellant
worked intermittently after the incident and had not worked at all since April 10, 2007. Her
attorney noted that all of appellant’s claims were related.

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Subsequent to the hearing, the employing establishment submitted Mr. Odle’s responses
to the hearing testimony. Mr. Odle stated that both appellant and Mr. Bader did not listen to him
the night of December 6, 2006 and the atmosphere became heated, noting that everybody in the
room was equally loud. Mr. Damm advised that appellant was not told that she had to have a
CA-17 with her at all times but merely that she needed to update it. He noted that, in
nonemergency situations, a supervisor was not authorized to accompany an employee to a
medical facility. Mr. Damm stated that all limited-duty employees were required to update their
medicals every 30 days, or if at maximum medical improvement, then annually. Moreover
employees were not to leave the workroom floor to go to the union without permission.
Mr. Damm advised that appellant’s grievances were denied. By decision dated January 11,
2008, an Office hearing representative affirmed the June 22, 2007 decision.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.5 When an employee experiences
emotional stress in carrying out his employment duties, and the medical evidence establishes that
the disability resulted from his emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from his emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of his work.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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 and which working conditions are not deemed

2

Ronald K. Jablanski, 56 ECAB 616 (2005).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Robert W. Johns, 51 ECAB 137 (1999).

6

Lillian Cutler, supra note 3.

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factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.8
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.9 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.10
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition causally related to factors of her federal employment. Initially,
the Board notes that appellant did not attribute her emotional condition to the performance of her
regular or specially assigned duties. Rather, she contended that she had been harassed and
subjected to a hostile work environment by her supervisors. An employee’s complaints about
the manner in which supervisors perform supervisory duties or the manner in which supervisors
exercise supervisory discretion fall, as a rule, outside the scope of coverage provided by the Act.
This principle recognizes that a supervisor must be allowed to perform his duties and that
employees will at times dislike actions taken.12
As to the incident of December 6, 2008, that began at approximately 1:30 a.m., verbal
altercations and difficult relationships with supervisors, when sufficiently detailed by the

7

See Dennis J. Balogh, 52 ECAB 232 (2001).

8

Id.

9

Charles D. Edwards, 55 ECAB 258 (2004).

10

Kim Nguyen, 53 ECAB 127 (2001).

11

James E. Norris, 52 ECAB 93 (2000); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
12

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

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claimant and supported by the record, may constitute compensable factors of employment.13 The
mere fact that a supervisor or employee may raise his voice during the course of a conversation,
however, does not warrant a finding of verbal abuse.14 The Board finds that it was a reasonable
exercise of supervisory discretion for Mr. Odle to ask appellant to submit a CA-17 form updating
her medical restrictions. The record supports that appellant was at maximum medical
improvement for only one of her claims and that the employing establishment could ask for
updated medicals every 30 days.
Thereafter, appellant tore up the CA-17, threw it in the trash and cursed at Mr. Odle.
While the evidence shows that all parties raised their voices while in the union office, it was
again reasonable for Mr. Odle to discuss appellant’s behavior with the union. Moreover,
appellant had not been given permission to leave her workstation to go to the union office. She
has not presented evidence to establish administrative error or abuse in the request that she
update her medical restrictions or in the meeting at the union office.15
The Board also finds that it was reasonable for Ms. Williams to hold a meeting in her
office and that her denial of appellant’s request to be taken to the hospital was not abusive.
Mr. Damm noted that, for nonemergency conditions, a supervisor was not to leave the employing
establishment. By her testimony, appellant returned to work and finished her tour and did not
leave until 6:30 a.m. There is no affirmative evidence of record to establish that the events of
December 6, 2008 rose to the level of verbal abuse or otherwise came within the coverage of the
Act. Appellant’s reaction is considered self-generated and not a compensable factor of
employment.16
As to appellant’s contention that she was harassed and worked in a hostile environment,
in evaluating claims for workers’ compensation under the Act, the term “harassment” is
synonymous, as generally defined, with a persistent disturbance, torment or persecution, i.e.,
mistreatment by coemployees or workers.17 To the extent that appellant is alleging harassment
or retaliation by her supervisor or other employing establishment personnel, for harassment or
discrimination to give rise to a compensable disability, there must be evidence that establishes
that the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable.18 Other than the December 6, 2006 incident,
appellant simply made general allegations regarding harassment but did not submit any evidence
to substantiate her claim. As the record lacks probative evidence supporting that she was
harassed by the employing establishment, the Board finds that appellant has not established a

13

David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

Joe M. Hagewood, 56 ECAB 479 (2005).

15

See Linda J. Edwards-Delgado, supra note 12.

16

Id.

17

Ronald K. Jablanski, supra note 2.

18

James E. Norris, supra note 11.

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compensable employment factor with respect to the claimed harassment.19 She therefore did not
establish that she sustained an emotional condition in the performance of duty as alleged.20
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.21
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 11, 2008 be affirmed.
Issued: August 26, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

19

Id.

20

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).
21

The Board notes that appellant’s claim that her emotional condition is caused by her accepted physical injuries,
the claim should be developed as a consequential injury under Office file number 120194010. The Board also notes
that appellant submitted evidence to the Office subsequent to the January 11, 2008 Office decision. The Board
cannot consider this evidence, however, as its review of the case is limited to the evidence of record that was before
the Office at the time of its final decision. 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, San Bernardino, CA,
Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 06-1625
Issued: March 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2006 appellant filed a timely appeal from the May 19 and June 30, 2006 merit
decisions of the Office of Workers’ Compensation Programs, which denied her claim of
recurrence. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the
merits of appellant’s claim of recurrence.
ISSUE
The issue is whether appellant sustained a recurrence of disability on or about
February 15, 2005 as a result of her April 12, 1998 employment injury.
FACTUAL HISTORY
On the prior appeal,1 the Board noted that appellant, a 44-year-old legal assistant, injured
her right thumb in the performance of duty. She filed a claim alleging a torn ligament in her
1

Docket No. 03-221 (issued April 10, 2003).

right thumb, which she first noticed on April 12, 1998.2 The Office accepted her claim for
aggravation of osteoarthritis in the metacarpophalangeal joint of the right thumb and authorized
an arthrodesis of the right thumb with bone graft.3 The Office paid benefits, including a schedule
award for a 17 percent permanent impairment of the right upper extremity. The Board set aside
the Office’s November 29, 2001 schedule award and remanded the case for further development.
The facts of this case as set forth in the Board’s prior decision are hereby incorporated by
reference.4
Appellant returned to work with restrictions. On March 13, 2006 she filed a claim
alleging a recurrence of disability. Appellant stopped work on February 15, 2005 but received
regular wages from the employing establishment until March 28, 2005.
Dr. Charles S. Lane, the attending orthopedic surgeon, reported on March 4, 2005 that
appellant continued to be permanent and stationary. He noted that her job had changed since he
last saw her on December 12, 2003: “[Appellant] states that over the last year she had been
working for a different judge which involved increased lifting of larger files, more than two
inches and heavier than 10 pounds. After she works up the file she types.” Dr. Lane found that
appellant was able to work, although her subjective complaints were insidiously increasing.
On April 17, 2005 Dr. Stuart H. Kuschner, an orthopedic surgeon and associate of
Dr. Lane, reported that appellant was involved in a nonindustrial car accident on March 25, 2005
and was evaluated for whiplash. He noted that she was terminated from the employing
establishment on March 28, 2005 and was currently working as a pari-mutuel clerk at a racetrack
four nights and about 26 hours a week. Appellant stated that her right elbow pain improved after
she stopped working two jobs, that is, after she was terminated from the employing
establishment. Dr. Kuschner found that appellant was capable of performing her usual and
customary occupation.
On October 24, 2005 Dr. Lane reported: “The patient relates that she stopped working at
the [employing establishment] in February in regards to a ‘proposal to remove’ her from her job
by her supervisor whom she states has not been accommodating her work restrictions, after she
had made complaints about him.” He noted that appellant switched to night duty in the last week
and began to notice increased symptoms over the weekend. Dr. Lane found that appellant could
not perform the same job “since accommodating her restrictions has not been met.” He noted
that appellant had trouble lifting and handling files, which increased her pain. Dr. Lane modified
2

She described her occupation as legal assistant/pari-mutuel clerk: “At my part-time job at the Southern
California Race tracks as a pari-mutuel clerk, I work at a machine which is necessary to hit the total button after
each customer and/or transaction. A few weeks ago I found it very painful at work and I noticed that I hit the total
button with my thumb.”
3

OWCP File No. 13-1163260.

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After further development, the Office issued a decision on October 14, 2003 denying additional schedule
compensation. The Office found that appellant had a 17 percent permanent impairment of the right upper extremity
due to the accepted thumb condition, for which she previously received a schedule award. Appellant sustained
another injury in the performance of duty on June 13, 2001, which the Office accepted for right shoulder tendinitis,
right rotator cuff syndrome and right lateral epicondylitis. OWCP File No. 13-2031790. That case is not before the
Board on the present appeal, which seeks review of the Office’s decision to deny her claim of recurrence.

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her restrictions and concluded: “Since these accommodations cannot be made, the patient
appears to be temporarily totally disabled to pursue her usual and customary occupation.”
Dr. Kuschner also saw appellant on October 24, 2005. He reported findings consistent
with mild lateral epicondylitis and stated: “I would not expect mild lateral epicondylitis to
preclude her from work.” Appellant showed him several pictures, which she stated documented
the files she was required to lift at work. Dr. Kuschner reported as follows:
“I have not reviewed a job analysis for her previous work at the [employing
establishment], but it is my understanding that said work was secretarial in nature.
The exact weight of the files she was required to lift is not clear. Based upon
information currently available to me and in the absence of an opportunity to
review any sort of job description for her position at the [employing
establishment], I believe that [appellant] is capable of performing her previous
work as a senior case technician at the [employing establishment].”
On December 23, 2005 appellant filed a claim for compensation for wage loss beginning
March 28, 2005. She told Dr. Lane on April 14, 2006 that the modified work described in his
October 24, 2005 report was not offered her. “Consequently,” he reported, “she could not meet
the demands of her occupation and her employment was terminated.”
On April 5, 2006 Dr. Janet B. Langsdon, a family care physician, reviewed her care of
appellant. She reported that appellant complained on May 12, 2005 that she was unable to do
her job as a senior case technician. Appellant advised that this was partly because of mental
illness, but also because she was not able to carry greater than two-inch files and lifting: “She
felt this was secondary to preexisting left carpal tunnel syndrome and whiplash injury from her
motor vehicle accident on March 25, 2005.” Dr. Langsdon noted appellant’s perspective on
disability:
“Prior to coming to the Kaiser Permanente system, [appellant] had in February of
1999 a right thumb metacarpophalangeal joint fusion secondary to a torn
ligament. Because of this she tended to use her left hand and wrist excessively in
order to protect her right thumb. [Appellant] felt that all of these things were
contributing to why she could not work at the [employing establishment]. She
continued to work … as a pari-mutuel clerk at the racetrack.”
Appellant informed Dr. Langsdon that when she was fired she was told that she was
unapproachable due to her mental illness. Dr. Langsdon indicated that she gave appellant an offwork order from March 6 to April 30, 2006. She felt that appellant would likely not be able to
work.
In memorandum dated January 26, 2004, the employing establishment responded to the
allegation that it did not accommodate appellant’s restrictions:
“I believe that we have and continue to accommodate her as well as the
restrictions. The supervisors and lead continue to pull and carry the heavy cases
for her. Cases that are assigned to her for work-up are no larger than two inches
or heavier than five pounds. We will continue to abide by these restrictions.”
3

In a decision dated May 19, 2006, the Office denied appellant’s claim of recurrence. The
Office found that the medical evidence did not establish an objective worsening of her accepted
right thumb condition and did not establish that she sustained a recurrence of her April 12, 1998
work-related condition without intervening cause.
Appellant requested reconsideration. She noted the circumstances of her termination:
“I reported to Dr. Charles Lane on August 8, 2003 that my supervisor was not
accommodating his work restrictions. It went on until they removed me for being
rude to my supervisor. The case is pending in U.S. Court at this time because I
have always denied the allegations. My supervisor had to make up a story so that
he wouldn’t have to accommodate the doctor’s restrictions.”
Appellant submitted a June 5, 2006 report from Dr. Lane setting out her current work
restrictions. On June 11, 2006 she again requested reconsideration. Appellant argued that she
was wrongfully terminated: “Management did’nt want to comply with Dr. Lane’s work
restrictions. My condition was not stable at the time I was terminated and I believe I am entitled
to benefits.”
In a decision dated June 30, 2006, the Office reviewed the merits of appellant’s claim and
denied modification of its prior decision. The Office found that the medical evidence did not
establish that she sustained a recurrence of disability causally related to her original injury.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that she cannot perform such light duty. As part of her 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 light-duty job requirements.5
ANALYSIS
Appellant filed a claim for compensation alleging that she sustained a recurrence of
disability on or about February 15, 2005. She therefore has the burden of proof to establish a
change in the nature and extent of her accepted right thumb condition or a change in the nature and
extent of her light-duty job requirements.
The medical opinion evidence does not support appellant’s claim. Dr. Lane, the
attending orthopedic surgeon, followed appellant for her right thumb injury. He reported on
March 4, 2005 that she was able to work. Dr. Lane reported this less than three weeks after
appellant stopped work. He cleared her to work even though appellant alleged that her job over

5

Terry R. Hedman, 38 ECAB 222 (1986).

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the last year entailed increased lifting of larger files, files that were more than two inches thick
and heavier than 10 pounds.
On April 17, 2005 Dr. Kuschner, the orthopedic surgeon, who followed appellant for her
June 13, 2001 shoulder and elbow injury, also reported that appellant was capable of performing
her usual and customary occupation. This was 20 days after appellant was terminated from the
employing establishment. The medical opinion evidence contemporaneous to appellant’s
claimed recurrence of disability does not support that she was disabled for work, much less that
she was disabled due to a change in the nature and extent of her accepted right thumb condition or
a change in the nature and extent of her light-duty job requirements.
On October 24, 2005 Dr. Lane reported that appellant appeared to be temporarily totally
disabled to pursue her usual and customary occupation because her supervisor did not
accommodate her work restrictions. The opinion is equivocal and the employing establishment
denied appellant’s allegation. The supervisors and lead continued to pull and carry the heavy
cases for appellant and the cases assigned to her for work-up were no larger than two inches or
heavier than five pounds. The alleged failure to accommodate is unsubstantiated. When
appellant informed Dr. Lane on March 4, 2005 that her job had changed and that she was lifting
larger files, files that were more than two inches thick and that weighed more than 10 pounds, he
nonetheless reported that she was able to work. Dr. Lane did not explain why he gave a different
opinion eight months later. Because he relied on a questionable history and did not explain his
change of opinion, his October 24, 2005 report that appellant appeared temporarily totally
disabled is of diminished probative value.6
Dr. Kuschner, who also saw appellant on October 24, 2005, reported that she was capable
of performing her previous work as a senior case technician. He discounted photographs of work
files, as the weight of the files was not clear. Instead, Dr. Kuschner looked to the sedentary
nature of her position and the information available to him and cleared appellant for work. This
does not support appellant’s claim.
On April 14, 2006 Dr. Lane stated that the employing establishment terminated appellant
because she could not meet the demands of her occupation. This is again an unsubstantiated
history. There is no evidence that the employing establishment terminated appellant because
residuals of her accepted right thumb injury were such that she could no longer perform her
restricted duties. Indeed, appellant stated in her request for reconsideration that she was removed
“for being rude to my supervisor.” It is immaterial whether, as she reported, the employing
establishment did not later offer her another position consistent with her restrictions. Appellant’s
claim is that she sustained a recurrence of disability on or about February 15, 2005.
In her April 5, 2006 report, Dr. Langsdon, the family care physician, offered no opinion
on whether appellant sustained a recurrence of disability on or about February 15, 2005. She
reported appellant’s feelings on the matter. Dr. Langsdon noted an off-work order from March 6
to April 30, 2006, but she did not say whether it was for a worsening of the accepted right thumb
6

See James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because
the history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(addressing factors that bear on the probative value of medical opinions).

5

condition or a change in the light-duty job requirements or something else, such as her mental
state.
The Board will affirm the Office decisions denying appellant’s claim of recurrence.
Appellant submitted no probative medical opinion soundly explaining how her disability on or
about February 15, 2005 was due to a change in the nature and extent of her accepted right thumb
condition, nor has she established that her disability was due to a change in the nature and extent of
her light-duty job requirements.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a recurrence of disability on or about February 15, 2005. The contemporaneous
medical opinion evidence does not support that she was disabled for work. Later medical
opinion evidence supporting disability appears to rely on the unsubstantiated history appellant
provided and is not well rationalized. The weight of the evidence fails to establish a recurrence
of disability.
ORDER
IT IS HEREBY ORDERED THAT the June 30 and May 19, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 14, 2007
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Long Beach, CA, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-664
Issued: October 14, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 11, 2010 appellant, through her attorney, filed a timely appeal of a
November 4, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied continuation of pay. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant’s March 11, 2008 employment injury was properly
designated as an occupational disease, thereby precluding entitlement to continuation of pay.
FACTUAL HISTORY
On March 11, 2008 appellant, then a 54-year-old revenue officer, filed a traumatic injury
claim (Form CA-1) alleging that she experienced numbness and tingling in her left shoulder and
arm, severe pain in the left arm and a headache. She was unsure of the cause, but surmised that
it was “maybe stress related.” Appellant identified March 11, 2008 as the date of injury.

After consulting with the employing establishment’s onsite medical personnel, appellant
was transported by ambulance to St. Mary Medical Center Emergency Department. She was
diagnosed with acute cephalgia with left arm pain, weakness and numbness.1 Differential
diagnoses included transient ischemic attack and complex migraines.2 Appellant was later
transferred to Los Alamitos Medical Center where she remained until March 13, 2008. While
hospitalized appellant was seen by Dr. Omid Omidvar, a Board-certified neurologist, who
diagnosed possible to probable hemiplegic migraine resulting in transient left-sided weakness.
Appellant had reportedly been having headaches the last two to three weeks. Dr. Omidvar also
noted the presence of hyperthyroidism and a B12 vitamin deficiency, which he explained may
exacerbate hemiplegic migraine. There was also evidence of anemia.
In a March 24, 2008 attending physician’s report (Form CA-20), Dr. Hélène Saad, a
family practitioner, diagnosed hemiplegic migraine and hypertension. She identified March 11,
2008 as the date of injury. The reported history of injury was that appellant had been under
stress at work to meet deadlines. Dr. Saad noted that appellant arrived at work around 7:00 a.m.
on March 11, 2008 and was carrying heavy computer equipment when she experienced a severe
headache and left arm numbness. She had reportedly gone to work that day despite having a
headache.
In a March 26, 2008 statement, appellant described the March 11, 2008 incident. She
stated that she was outside walking to her office building pulling her computer and case cart with
her left hand when it fell due to the weight of the cart. This reportedly triggered a sudden sharp
pain in her head and her left arm became completely numb as she struggled to lift her cart with
both hands. Appellant stated that severe left arm numbness prevented her from lifting the heavy
cart. She reportedly stood there for a moment struggling to regain her composure. Appellant
was eventually able to lift her cart and continue into the building.
The Office denied the claim on April 24, 2008 because appellant failed to establish a
causal relationship between her claimed condition and her employment. It also denied
modification by decision dated June 30, 2008.
On September 12, 2008 appellant requested reconsideration and she submitted additional
medical evidence. She also submitted an unsigned occupational disease claim (Form CA-2) with
a March 11, 2008 date of injury. Appellant argued that her manager had incorrectly filed a
CA-1. She explained that the March 11, 2008 incident occurred while she was carrying her
computer cart, “not” because she was carrying the cart. On the CA-2 appellant explained that
following a series of stressful work events she had an episode at work where she experienced
blurry vision, severe headache and numbness on the left side of her body and weakness to her
left arm to the point that she was unable to hold her computer cart in her left hand. The
September 12, 2008 request for reconsideration provided detailed information about what
appellant characterized as the pressures of her job and its “unnecessary and unreasonable
demands” that reportedly took a toll on her mental and physical condition. Appellant recalled
1

Appellant had a similar incident of left upper extremity numbness and weakness in November 1997.

2

The emergency room treatment records noted a prior history of migraines. Appellant’s history of migraines
reportedly dated back more than 30 years. She also had a prior history of panic attacks.

2

that in the weeks preceding the March 11, 2008 incident she had been under physical and mental
pressure from management to meet some priority deadline reports. She stated, inter alia, that she
had been working long hours to get caught up on her caseload and to meet various deadlines.
Appellant had been on a “rigid field schedule” and management reportedly placed exhausting
and strenuous goals on revenue officers.
Dr. Vera M. Bell, a clinical psychologist, examined appellant on December 9, 2008 and
diagnosed major depression, single episode and generalized anxiety disorder. In her
December 12, 2008 report, Dr. Bell stated that appellant experienced several stressful incidents
at work and she became overwhelmed with the responsibilities that were placed on her.3
In a December 18, 2008 statement of accepted facts (SOAF), the Office noted that as a
revenue officer appellant was responsible for an inventory of cases which required initial contact,
follow-up actions, field work and case decisions. It accepted that prior to the March 11, 2008
incident where appellant fell ill at work, she was on a rigid field schedule for priority cases to
make first contact. She was also working long hours and attempting to meet various deadlines.
The Office also accepted that appellant’s revenue officer position was a stressful job, with many
responsibilities, demands and daily deadlines. Additionally, appellant was evaluated on the
quality of her work. As part of her case management activities, she received and reviewed daily
e-mails about her workload and her productivity goals. Lastly, the Office accepted that, because
of appellant’s 120-day detail to a GS-11 position, she experienced some workload management
problems due to the quantity of the work she was assigned.
In a report dated January 22, 2009, Dr. Stephan Simonian, a Board-certified psychiatrist
and Office referral physician, diagnosed generalized anxiety disorder, depressive disorder and
somatization disorder. Appellant’s employment exposure reportedly aggravated a preexisting
condition. Dr. Simonian attributed her current condition to the “accumulation of stressful
situations” outlined in the SOAF.
On February 19, 2009 the Office accepted appellant’s claim for temporary aggravation of
somatization disorder, generalized anxiety disorder and a migraine condition (ICD-9 Code
300.81, 300.02 and 346.8, respectively). Appellant received continuation of pay from March 12
through April 25, 2008. The Office paid her wage-loss compensation from April 26, 2008
through March 22, 2009. Appellant returned to work on March 23, 2009.
In a decision dated April 6, 2009, the Office determined that appellant’s claim was an
occupational disease claim rather than a traumatic injury and, therefore, the Form CA-1 she
originally filed was converted to a Form CA-2. The result was that appellant was not entitled to
continuation of pay (COP).
On June 8, 2009 appellant requested reconsideration. By decision dated November 4,
2009, the Office denied modification of the April 6, 2009 decision.

3

Dr. Bell’s history of injury essentially mimicked the information appellant provided the Office in her
September 12, 2008 request for reconsideration.

3

LEGAL PRECEDENT
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.4 A traumatic injury means a condition of the
body caused by a specific event or incident or a series of events or incidents, within a single
workday or shift.5 Such condition must be caused by external force, including stress or strain,
which is identifiable as to time and place of occurrence and member or function of body.6
For most employees who sustain a traumatic injury, the Federal Employees’
Compensation Act provides that the employer must continue the employee’s regular pay during
any periods of resulting disability, up to a maximum of 45 calendar days.7 This is called COP.
The employer, not the Office, is responsible for providing COP.8 Unlike wage-loss benefits,
COP is subject to taxes and all other payroll deductions that are made from an employee’s
regular income.9 To be eligible for COP, a person must have a “traumatic injury,” as defined
under 20 C.F.R. § 10.5(ee), which is job related and the cause of the disability and/or the cause
of the lost time due to the need for medical examination and treatment.10 Additionally, a person
must file Form CA-1 within 30 days of the date of the injury and begin losing time from work
due to the traumatic injury within 45 days of the injury.11 An employer is not required to pay
COP when, inter alia, the disability was not caused by a traumatic injury.12
ANALYSIS
The Board finds that the March 11, 2008 employment injury was properly designated as
an occupational disease, thereby precluding entitlement to COP. When appellant requested
reconsideration on September 12, 2008 she argued that the March 11, 2008 Form CA-1 had been
filed in error. Rather than attributing her condition to a single event or series of events occurring
on March 11, 2008, she claimed that the “pressures of my job,” “unreasonable demands” and
trying to meet those demands contributed to her deteriorating health. The pressures reportedly
mounted during the months and weeks preceding the March 11, 2008 incident when appellant
experienced a severe headache and left upper extremity pain, numbness and weakness. She
stated that she recalled “weeks before the incident” when she was “under physical and mental
4

20 C.F.R. § 10.5(q) (2009).

5

Id. at § 10.5(ee).

6

Id.

7

5 U.S.C. § 8118(a), (b) (2006); 20 C.F.R. § 10.200(a).

8

Id. However, the Office has the exclusive authority to determine questions of entitlement and all other issues
relating to COP. Id. at § 10.200(b).
9

Id.

10

Id. at § 10.205(a).

11

Id.

12

Id. at § 10.220(a).

4

pressure from management to meet some priority deadline reports.” The Form CA-2 that
accompanied appellant’s September 12, 2008 request for reconsideration noted that a “series of
stressful work events caused [her] to have an episode at work....”
Based on appellant’s September 12, 2008 representations, the Office accepted that she
was on a rigid field schedule for priority cases to make first contact. Appellant was also working
long hours and attempting to meet various deadlines and her revenue officer position was
stressful, with many responsibilities, demands and daily deadlines. The Office also accepted that
as part of appellant’s case management activities, she received and reviewed daily e-mails about
her workload and her productivity goals. Additionally, because of a 120-day detail to a GS-11
position, appellant experienced some workload management problems due to the quantity of
work assigned. Lastly, the Office accepted that she was evaluated on the quality of her work.
The mere fact that appellant fell sick at work on March 11, 2008 does not establish that
her accepted conditions were due to employment factors occurring that particular day. None of
the above-noted accepted employment factors are specific to March 11, 2008. The credible
medical evidence does not attribute appellant’s diagnosed psychiatric conditions and/or her
migraines to a specific employment-related event occurring on March 11, 2008. As such, the
Office properly determined that appellant’s claim was more appropriately classified as an
occupational disease rather than a traumatic injury, as initially filed. However, as appellant’s
claimed disability during the 45-day period beginning March 12, 2008 was not caused by a
traumatic injury, she is not entitled to COP.13
CONCLUSION
The Office properly characterized appellant’s March 11, 2008 employment injury as an
occupational disease. Consequently, appellant is not entitled to COP.

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the November 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2010
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Minneapolis, MN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-671
Issued: October 24, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 30, 2013 appellant filed an application for review of a December 4, 2012
decision of the Office of Workers’ Compensation Programs (OWCP), file number xxxxxx121,
which affirmed a May 3, 2012 decision denying appellant’s claim for a schedule award.1 The
appeal was docketed as No. 13-671.
In the December 4, 2012 decision, an OWCP hearing representative noted that appellant
had a prior claim for a low back injury in 1974, requiring a lumbar laminectomy at L4-5, which
was referenced by his treating physician Dr. Mark T. Wheaton, in a March 11, 2008 impairment
rating.2 The hearing representative noted that appellant testified that OWCP and the medical
adviser did not consider his “preexisting injury with the U.S. Bureau of Mines on September 15,
1975” which was accepted for a lumbar injury and in which appellant underwent two lumbar
1

Appellant tripped on carpet on June 16, 2011 as he was walking out of his office. OWCP accepted the claim for
lumbar radiculopathy and later expanded the claim to include depressive disorder. On June 14, 2007, appellant filed
a claim for a schedule award.
2

In an oral hearing transcript dated September 18, 2012, appellant advised that on September 15, 1975 he
sustained a work-related back injury, case file number xxxxxx791. He indicated that he subsequently underwent
two back surgeries in the 1970’s and 1980’s.

surgeries, in case file number xxxxxx791,3 in determining his entitlement to a schedule award.
The hearing representative further noted that “the [statement of accepted facts] did not list all
physicians and did not specifically list his preexisting injury in 1975 while employed by the
Bureau of Mines….” Appellant asserted that this condition should have been included in the
statement of accepted facts provided to the second opinion physician and the referee physician
prior to a schedule award determination.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, case file number xxxxxx121, involves appellant’s claim
for a schedule award for his lower extremities for the accepted lumbar radiculopathy. In that
claim appellant was denied a schedule award. In the December 4, 2012 decision, the hearing
representative noted reviewing evidence and findings made in case file number xxxxxx791. The
evidence also indicates that case file number xxxxxx791 may have evidence germane to the
schedule award determination for the lower extremities in file number xxxxxx121.
Pursuant to its procedures, OWCP has determined that cases should be combined where
correct adjudication depends on cross-referencing between files. In the instant appeal, it appears
that, for a full and fair adjudication, OWCP claims pertaining to appellant’s lower extremity
conditions should be combined pursuant to OWCP procedures.4 This will allow OWCP to
consider all relevant claim files in developing appellant’s claim. Moreover, to consider
appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case
and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an
outcome.5
The case will be remanded to OWCP to combine case file numbers xxxxxx121 and
xxxxxx791. Following this and such other development as deemed necessary, OWCP shall issue
an appropriate merit decision on appellant’s claim.

3

The medical records, factual information and OWCP decisions in this claim, case file number xxxxxx791, are
not in the record before the Board.
4

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
5

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the December 4, 2012 decision be set aside and the
matter remanded to OWCP for further proceedings consistent with this order of the Board.
Issued: October 24, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
DEPARTMENT OF THE AIR FORCE, TRAVIS
AIR FORCE BASE, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1520
Issued: February 3, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 13, 2013 appellant filed a timely appeal of decisions of the Office of Workers’
Compensation Programs (OWCP) dated April 17 and June 5, 2013 denying his request for
reconsideration as untimely and insufficient to establish clear evidence of error. The Board
docketed the appeal as No. 13-1520.
The Board has duly considered this matter and finds that the case is not in posture for
decision. OWCP accepted appellant’s occupational disease claim for left hand and wrist
tenosynovitis and chronic cervical strain. By decision dated June 23, 2010, OWCP denied
appellant’s claim for a schedule award as the evidence was insufficient to establish that he
sustained a permanent impairment to a scheduled member, which was affirmed on November 10,
2010 by an OWCP hearing representative.
Additional medical evidence from Dr. John Parkerson, Board-certified in occupational
medicine, was received by OWCP along with a December 6, 2010 request for reconsideration.
By merit decision of April 13, 2011, OWCP denied appellant’s request for an increased schedule
award.
On February 21, 2012 appellant submitted a CA-7 form requesting a schedule award,
along with a September 13, 2011 impairment rating by Dr. Olumuyiwa A. Paul, an examining
Board-certified orthopedic surgeon, which utilized the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). He was

advised by OWCP that he could not file another schedule award once it had been denied; but
would have to follow the appeal rights in the previous April 13, 2011 denial.
Appellant, by letter received on September 26, 2012, filed a request for reconsideration of
the April 13, 2011 decision. By decision dated December 13, 2012, the request for
reconsideration was denied without consideration of the merits, finding that appellant’s request
raised no substantive legal questions nor included new or relevant evidence. Appellant was
advised that an appeal to the Board was the only recourse.
Appellant filed a request for reconsideration of the December 13, 2012 decision and
again submitted a copy of Dr. Paul’s September 13, 2011 impairment rating. By decision dated
April 17, 2013 OWCP denied appellant’s request for reconsideration as untimely filed and
insufficient to establish clear evidence of error.
In a letter dated April 21, 2013, appellant requested reconsideration and again
resubmitted the September 13, 2011 impairment rating. He argued that this medical report
showed upper extremity impairment as a result of his spinal condition. Thus, appellant argued
that this evidence was pertinent new evidence warranting a merit review of his schedule award
claim.
By decision dated June 5, 2013, appellant was informed that his only right of appeal was
to this Board and that he had no right of reconsideration with OWCP.
The Board has held that where a claimant submits medical evidence regarding a
permanent impairment at a date subsequent to a prior schedule award decision, he is entitled to a
merit decision on the medical evidence.1 Appellant presented new evidence from Dr. Paul in
support of his schedule award claim. Moreover, this evidence addressed the pertinent issue
regarding whether appellant has permanent impairment pursuant to the A.M.A., Guides.
Although appellant stated that he sought reconsideration, it is evident that he was not seeking
reconsideration, but was seeking a schedule award based on new medical evidence.

1

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228
(2007) (where it was evident that the claimant was seeking a schedule award based on new and current medical
evidence, OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an
application for reconsideration).

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 5 and April 17, 2013 are set aside and the case is remanded
for further proceedings consistent with this opinion of the Board.
Issued: February 3, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlottesville, VA, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 16-0024
Issued: February 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 7, 2015 appellant filed a timely appeal from a July 30, 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 met her burden of proof to establish a recurrence of
disability on May 29, 2015, caused by a January 23, 2015 employment injury.
FACTUAL HISTORY
On January 24, 2015 appellant, then a 40-year-old letter carrier, filed a traumatic injury
claim (Form CA-1), alleging that on January 23, 2015 she slipped on steps and fell while

1

5 U.S.C. § 8101 et seq.

delivering mail, injuring her back and shoulders. She did not stop work and began modified
duty.
In reports dated January 24, 2015, Dr. Shelly Dawson, a family physician, noted
appellant’s complaint that she injured her back and shoulder when she fell down steps. She
indicated that x-rays of the left scapula and thoracic spine demonstrated no acute pathology and
described physical examination findings. Dr. Dawson diagnosed sprain/strain of the thoracic and
lumbar spine, and contusions of the back and shoulder. She advised that appellant could resume
modified duty, but could not carry a mailbag and had physical restrictions of no heavy lifting,
pushing, or pulling; no reaching overhead or rotating left shoulder; and that bending and
stooping were limited. On January 30, 2015 Dr. Dawson noted that appellant had continued
spasms and tenderness of the left shoulder and advised that she could perform sedentary work
only. On February 6, 2015 she reported that appellant’s physical examination was normal and
that she was released to full duty with no restrictions.
On June 3, 2015 appellant filed a recurrence of disability claim (Form CA-2a) beginning
on May 29, 2015. She claimed that following the January 23, 2015 injury, she continued to have
occasional flare-ups with a stiff neck and pain in her shoulder and arm, and that on May 26, 2015
the pain worsened. The employing establishment reported that, since the January 23, 2015
incident, appellant had performed only office duties.
In reports dated May 29, 2015, Candyce Dunn, a nurse practitioner, noted that appellant’s
left upper back, neck, and shoulder pain had increased over the past three days. Physical
examination demonstrated upper back muscle spasms and full but painful range of motion of the
left neck and left shoulder. Ms. Dunn diagnosed thoracic back strain. On a form report she
indicated that appellant had no restrictions and also advised that appellant was unable to work
with an anticipated return to duty on June 4, 2015.
On June 3, 2015 Dr. Dawson noted appellant’s complaint of pain and sensitivity in the
left shoulder area. She described tenderness to palpation in the left scapula. Dr. Dawson
diagnosed shoulder sprain/strain, provided a restriction on no heavy lifting, and recommended
evaluation by a specialist.
In a June 23, 2015 decision, OWCP notified appellant that her claim had initially been
administratively handled to allow payment of limited medical expenses and was not formally
adjudicated but that, since she had filed a recurrence claim, it was reopened for formal
adjudication. It accepted bilateral contusion of back, bilateral contusion of shoulder, and
bilateral sprain of back.
In a letter also dated June 23, 2015, OWCP informed appellant of the evidence needed to
adjudicate the recurrence claim.
In a July 18, 2015 statement, appellant noted that on May 26, 2015, during the workday,
she had a burning and tingling sensation in her left shoulder and arm, and as the week
progressed, pain and sensitivity increased. She maintained that she believed the new pain and
sensitivity were due to the original injury because it was in the same area. Appellant related that,
following the claimed May 29, 2015 recurrence, she had returned to modified duty on June 16,

2

2015 and that on July 17, 2015, while casing mail, turned her neck and it immediately became
painful and stiff.
Appellant submitted additional medical evidence, including a June 2, 2015 report, from
Kristine G. Shannon, a nurse practitioner. Ms. Shannon noted the history of injury with
intermittent flare-ups and appellant’s current complaint of left arm pain that had begun a week
earlier, with left arm numbness and weakness in the left hand. Neck range of motion was normal
with muscular tenderness. Tenderness was present in the left rhomboid region and left upper
arm. Ms. Shannon diagnosed neck pain.
On June 12, 2015 Dr. Adam L. Shimer, a Board-certified orthopedic surgeon, noted a
history that appellant had fallen down stairs, and initially her posterior neck, scapula, and left
shoulder were painful. He described her complaint of neck pain that radiated into the elbow and
left scapula. Dr. Shimer advised that cervical spine x-ray showed mild-to-moderate spondylosis
at multiple levels, and that physical examination was positive for triceps weakness on the left.2
Differential diagnosis was C7 radiculopathy, scapular dyskinesia, and muscle strain. He
recommended a magnetic resonance imaging (MRI) scan of the cervical spine. On June 12,
2015 Dr. Abdurrahman Kandil, a resident physician in orthopedics, advised that appellant could
return to work with a lifting restriction of 15 pounds.
On June 13, 2015 Dr. Dawson reported that appellant’s left shoulder pain was improving.
Tenderness was noted on palpation of the scapula, posterior shoulder, and upper back with upper
back spasms. Dr. Dawson diagnosed cervical radiculopathy and shoulder pain and advised that
appellant could return to modified duty that day with a lifting restriction of 15 pounds and a
pushing/pulling restriction of 30 pounds. She was not to carry a mailbag. Dr. Dawson advised
that appellant could return to full duty on July 13, 2015.
A June 29, 2015 cervical spine MRI scan demonstrated small posterior disc osteophyte
complexes at C5-6 and C6-7 and a left paracentral/foraminal protrusion at C5-6 causing
moderate left neural foraminal stenosis that likely contacted the exiting left C6 nerve root.
On June 30, 2015 Dr. Shimer advised that appellant’s neck pain had improved with
continued left arm subjective weakness and pain. He noted his review of the cervical MRI scan
and found strength differences barely perceptible in comparing the upper extremities.
Dr. Shimer opined that he believed appellant’s symptoms were related to a left-sided C5-6 disc
protrusion which was, more likely than not, a result of her work-related fall. He noted, “I base
that opinion on the fact that she has been seen for these symptoms since that time and those
symptoms correspond to the disc herniation seen on MRI [scan],” noting current symptoms of
radicular arm pain and mild weakness. Dr. Shimer reported slight weakness of elbow flexion
and wrist extension, and parasthesias in the C6 dermatome. He concluded that appellant was
able to perform all work duties.
By decision dated July 30, 2015, OWCP denied appellant’s recurrence claim, finding that
the medical evidence was insufficient to establish that her current condition and disability was
caused by the January 23, 2015 accepted employment injury.
2

The x-ray report is found in the record.

3

LEGAL PRECEDENT
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 which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative, and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.5
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden to establish that the disability is related to the accepted injury.
This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.6
ANALYSIS
The Board finds that appellant has not established a recurrence of disability on May 29,
2015 causally related to the accepted bilateral contusion of back, bilateral contusion of shoulder,
and bilateral sprain of back.
Following the January 23, 2015 employment injury, appellant did not stop work and
began modified duty. In medical reports dated January 24 and 30, 2015, Dr. Dawson noted
appellant’s complaint of back and left shoulder tenderness and pain. She mentioned no neck
pathology. On February 6, 2015 Dr. Dawson advised that appellant’s physical examination was
normal and she could return to full duty without restriction. The employing establishment,
however, indicated that appellant only performed office duties following the employment injury.

3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id.

5

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
6

S.S., 59 ECAB 315 (2008).

4

Appellant did not seek medical care between February 6 and May 29, 2015 when she was
seen by Ms. Dunn, a nurse practitioner. The report of Ms. Dunn on May 29, 2015 and the
June 2, 2015 report of Ms. Shannon, also a nurse practitioner, do not constitute medical evidence
under FECA as a nurse practitioner is not considered a physician as defined in section 8102(2) of
FECA.7 Section 8101(2) provides that “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope
of their practice as defined by State law.8
As noted above, appellant’s burden requires that she furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and who supports that
conclusion with sound medical reasoning.9 Where no such rationale is present, the medical
evidence is of diminished probative value.10
After the claimed May 29, 2015 recurrence, on June 3, 2015 Dr. Dawson merely
restricted appellant to no heavy lifting. On June 13, 2015 she advised that appellant could return
to modified duty that day with a lifting restriction of 15 pounds and a pushing/pulling restriction
of 30 pounds. Appellant was not to carry a mailbag. Dr. Dawson advised that appellant could
return to full duty on July 13, 2015. She did not reflect familiarity with appellant’s job duties
and did not relate the recommended restrictions to the January 23, 2015 employment injury.
Similarly, on June 12, 2015 Dr. Kandil merely advised that appellant could return to work with a
lifting restriction of 15 pounds. He provided no further explanation. These reports are,
therefore, insufficient to establish that appellant sustained a recurrence of disability on
May 29, 2015.
Likewise, Dr. Shimer’s reports are insufficient to establish a recurrence of disability on
May 29, 2015. In reports dated June 12 and 30, 2015, he discussed appellant’s cervical condition
including MRI scan findings. While Dr. Shimer advised that he believed appellant’s symptoms
were related to a left-sided C5-6 disc protrusion which was, more likely than not, a result of her
work-related fall, a disc protrusion has not been accepted as caused by the January 23, 2015
employment injury.11 Dr. Shimer exhibited no knowledge of appellant’s modified duties.
Moreover, he advised on June 30, 2015 that she could perform all job duties.

7

Paul Foster, 56 ECAB 208 (2004).

8

5 U.S.C. § 8102(2); see R.M., 59 ECAB 690 (2008).

9

Supra note 6.

10

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

11

As noted, in her reports dated January 24 to February 6, 2015, Dr. Dawson mentioned no neck pathology.
Appellant did not mention neck problems until she filed the recurrence claim on June 3, 2015 when she first stated
that, following the January 23, 2015 employment injury, she occasionally had flare-ups with a stiff neck and
shoulder and arm pain.

5

Appellant failed to submit sufficient medical evidence to establish a recurrence of
disability on May 29, 2015 causally related to the January 23, 2015 employment injury.12
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 appellant failed to meet her burden of proof to establish a recurrence
of disability on May 29, 2015, caused by a January 23, 2015 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2016
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

12

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
GALLERY OF ART, Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-2221
Issued: March 19, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 31, 2007 appellant filed a timely appeal from a March 1, 2007 merit decision
of the Office of Workers’ Compensation Programs that granted him a schedule award for
41 percent binaural hearing loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than 41 percent binaural hearing loss, for which
he received a schedule award.
FACTUAL HISTORY
On August 19, 2005 appellant, then a 55-year-old engineer, filed an occupational disease
claim stating that he developed binaural hearing loss in the performance of duty. He stated that
he worked inside a chiller plant within the employing establishment and that he noticed that he
was becoming unable to hear certain things over a period of time. Appellant first related his
hearing loss to his employment on September 29, 2003. He did not stop work. Appellant

provided personnel forms and audiograms establishing that he worked for the employing
establishment since 1980 and was exposed to noise from various sources.
On January 6, 2006 the Office referred appellant to Dr. Mohammed Zafar Iqbal, a Boardcertified otolaryngologist, for a second opinion examination to determine whether he had a
hearing loss causally related to his employment.
Dr. Iqbal examined appellant and prepared a report on January 20, 2006. He noted that
appellant had no other factors which may have contributed to his hearing loss. Dr. Iqbal found a
ratable binaural sensorineural hearing loss that was causally related to appellant’s employment
and diagnosed bilateral sensorineural hearing loss and tinnitus. An audiogram performed on
Dr. Iqbal’s behalf showed the decibel loss at frequencies of 500, 1,000, 2,000 and 3,000 cycles
per second (cps). The audiogram reflected the following decibel losses: 40, 55, 50 and 55 for
the right ear and 55, 50, 45 and 45 for the left ear. Dr. Iqbal concluded that appellant had
37.5 percent monaural hearing loss in the right ear and 36 percent monaural hearing loss in the
left ear. He calculated that appellant had 36.25 percent total binaural hearing loss. Dr. Iqbal
added an additional 5 percent impairment for tinnitus and concluded that appellant had a total
ratable binaural hearing impairment of 41.25 percent.
On April 19, 2006 appellant claimed a schedule award.
On December 5, 2006 the Office accepted appellant’s claim for binaural sensorineural
hearing loss and tinnitus.
In a January 13, 2007 memorandum, an Office medical adviser reviewed Dr. Iqbal’s
report and impairment rating. He applied Dr. Iqbal’s audiometric measurements and calculated
that appellant had 37.5 percent monaural hearing loss in the right ear and 35.625 percent
monaural hearing loss in the left ear, for a total of 35.9 percent binaural hearing loss. The
medical adviser added 5 percent impairment for tinnitus and calculated that appellant had a total
ratable impairment of 40.9 percent binaural hearing loss.
By decision dated March 1, 2007, the Office granted appellant a schedule award for
41 percent binaural hearing loss.1

1

Appellant requested reconsideration and a review of the written record. The Office received appellant’s undated
reconsideration request on August 8, 2007 and his undated request for a review of the written record on
August 13, 2007. As noted, on August 31, 2007 appellant filed his appeal with the Board. On September 6, 2007
the Office denied his request for a review of the written record. Because the Board had jurisdiction over the appeal
as of August 31, 2007, the Office’s September 6, 2007 decision is null and void. See Arlonia B. Taylor, 44 ECAB
591 (1993).

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use of schedule members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.9 The Board has concurred in the Office’s
adoption of this standard for evaluating hearing loss.10
ANALYSIS
The Office medical adviser applied the Office’s standard procedures, detailed above, to
the April 25, 2006 audiogram performed on Dr. Iqbal’s behalf. Appellant’s April 25, 2006
audiogram recorded frequency levels at the 500, 1,000, 2,000 and 3,000 cps levels and recorded
decibel losses of 40, 55, 50 and 55 respectively for the right ear. The total decibel loss in the
right ear is 200 decibels. When divided by 4, the result is an average hearing loss of 50 decibels.
The average loss of 50 decibels is reduced by the “fence” of 25 decibels to equal 25 decibels,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (2002).

4

Id.

5

A.M.A., Guides at 250 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

10

Donald E. Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

3

which when multiplied by the established factor of 1.5, results in a 37.5 percent monaural
hearing loss for the right ear.
Testing for the left ear at the frequencies of 500, 1,000, 2,000 and 3,000 cps revealed
decibel losses of 55, 50, 45 and 45 decibels respectively, for a total decibel loss of 195 decibels.
When divided by 4, the result is an average hearing loss of 48.75 decibels. The average loss of
48.75 decibels is reduced by the “fence” of 25 decibels, to equal 23.75 decibels, which when
multiplied by the established factor of 1.5, results in a 35.625 percent monaural hearing loss for
the left ear.
The 35.625 percent monaural hearing loss for the left ear, when multiplied by 5 (as it is
the lesser loss), yielded a product of 178.125. The 178.125 was then added to the 37.5 percent
monaural hearing loss for the right ear to obtain a total of 215.625. The 215.625 was then
divided by 6, in order to calculate a binaural hearing loss of 35.9375 percent. The Office
medical examiner rounded the 35.9375 percent to 36 percent binaural hearing loss. He then
added 5 percent impairment for tinnitus, recommending that the Office grant appellant’s
schedule award request for 41 percent permanent binaural hearing loss. The Board notes that
Dr. Iqbal, when performing the Office’s recommended calculations, improperly rounded
appellant’s monaural hearing loss for the left ear up to 36 percent, which slightly altered his
calculation from that of the Office medical adviser.11
The Board finds that the Office medical adviser applied the proper standards to the
findings stated in Dr. Iqbal’s January 20, 2006 report and accompanying audiogram. The result
is 41 percent binaural hearing loss. Accordingly, the evidence of record does not establish that
appellant has more than 41 percent binaural hearing loss.12
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
had more than 41 percent binaural hearing loss, for which he received a schedule award.

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(2)(b)
(March 2005) (percentages should not be rounded until the final percent for award purposes is obtained).
12

On appeal to the Board, appellant submitted new evidence. As the Office did not consider this evidence in
reaching a final decision, the Board may not review the evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-1054
Issued: March 30, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 6, 2021 appellant filed a timely appeal from a January 7, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-1054.
This case has previously been before the Board. 1 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 15, 2015 appellant, then a 57-year-old customer care agent, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome due to
factors of her federal employment, including an increase of work activities. She asserted that she
first became aware of her claimed condition on February 7, 2000 and first realized its relation to

1

Docket No. 19-0925 (issued September 25, 2019).

her federal employment on March 28, 2015. Appellant stopped work on March 17, 2015. OWCP
assigned OWCP File No. xxxxxx503. 2
Appellant submitted a series of medical reports in support of the present claim, including
a June 4, 2015 report from Dr. Sophia Grias-Radwanski, a Board-certified physiatrist. Dr. GriasRadwanski diagnosed bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and neck
pain with radiculopathy symptoms.
After extensive development of the medical evidence, OWCP found a conflict in the
medical opinion evidence between Dr. Grias-Radwanski and Dr. Allen L. Babcock, a Boardcertified orthopedic surgeon serving as an OWCP referral physician, regarding whether appellant
sustained a new occupational injury due to employment factors. After additional development of
the medical evidence,3 it referred appellant for an impartial medical examination with
Dr. Clifford M. Buchman, an osteopath and Board-certified orthopedic surgeon, who produced a
July 25, 2018 report.
By decision dated August 23, 2018, OWCP denied appellant’s claim for a new
employment-related occupational condition, finding that the special weight of the medical opinion
evidence rested with the well-rationalized opinion of Dr. Buchman, the impartial medical
specialist.
By decision dated March 8, 2019, OWCP’s hearing representative affirmed OWCP’s
August 23, 2018 decision.
Appellant appealed to the Board and, by decision dated September 25, 2019,4 the Board
affirmed OWCP’s March 8, 2019 decision.
In a letter dated September 21, 2020 and entered into the Integrated Federal Employees’
Compensation System (iFECS) on September 28, 2020, appellant requested reconsideration of her

2
Appellant has a prior claim OWCP File No. xxxxxx427, for which she filed an occupational disease claim (Form
CA-2) in January 2003. In March 2003 OWCP accepted the claim for bilateral carpal tunnel syndrome. Appellant
filed a notice of recurrence (Form CA-2a) in October 2008 alleging a recurrence of disability due to the accepted
bilateral carpal tunnel syndrome condition. OWCP converted appellant’s recurrence claim to a claim for a new
occupational injury, and assigned OWCP File No. xxxxxx340. In May 2009, it accepted that claim for aggravation
of bilateral carpal tunnel syndrome. OWCP administratively combined OWCP File Nos. xxxxxx427, xxxxxx340, and
xxxxxx503, with OWCP File No. xxxxxx427 designated as the master file.
3

Prior to the referral to Dr. Buchman, OWCP referred appellant to three other impartial medical specialists, but it
found deficiencies in their evaluations, which required the referral to Dr. Buchman.
4

Supra note 1.

2

claim. On September 28, 2020 OWCP received a February 17, 2020 report from Dr. GriasRadwanski who provided an extensive discussion of appellant’s work duties and opined that she
had sustained several new occupational conditions due to these duties. 5
By decision dated October 19, 2020, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. In reaching
this decision, it did not discuss any evidence submitted by appellant in connection with her
reconsideration request.
In an October 28, 2020 letter, appellant argued that she filed a timely reconsideration
request in that a postal record demonstrated that, on September 25, 2020, OWCP had received her
reconsideration request letter, dated September 21, 2020. She submitted a U.S. Postal Service
tracking document that indicated a package was delivered on September 25, 2020 to an address in
London, Kentucky.
In a September 21, 2020 letter received by OWCP on November 4, 2020, appellant argued
that she had submitted sufficient medical evidence to establish several new employment-related
occupational conditions. She indicated that she had submitted additional medical evidence,
including a new report of Dr. Grias-Radwanski.
In an October 28, 2020 letter received by OWCP on the same date, appellant again argued
that she filed a timely reconsideration request on September 25, 2020.
By decision dated January 7, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that she had, in fact, filed a timely
reconsideration request, but determined that she had not submitted evidence or argument entitling
her to merit review. OWCP asserted that appellant had not submitted any new medical evidence
in connection with her reconsideration request.
The Board finds that this case is not in posture for decision with respect to whether
appellant sustained a new employment-related occupational condition.
FECA provides that OWCP shall determine and make ﬁndings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as OWCP considers necessary with respect to the claim.6 Since
the Board’s jurisdiction of a case is limited to reviewing the evidence which is before OWCP at the
time of its final decision, 7 it is necessary that OWCP review all evidence submitted by a claimant
and received by OWCP prior to issuance of its final decision. As the Board’s decisions are final as

5

Appellant also submitted a May 15, 2018 report from Dr. Peter E. Metropoulos, an attending osteopath and Boardcertified occupational medicine specialist, and a March 3, 2020 report from Dr. Mitchell Pollak, a Board-certified
orthopedic surgeon. The reports had previously been submitted and considered by OWCP.
6

5 U.S.C. § 8124(a)(2).

7

20 C.F.R. § 501.2(c).

3

to the subject matter appealed, 8 it is crucial that all evidence relevant to that subject matter which
was properly submitted to OWCP prior to the time of issuance of its final decision be addressed by
OWCP.9
In the present case, OWCP did not review evidence received p rior to the issuance of its
January 7, 2021 decision, i.e., a February 17, 2020 report of Dr. Grias-Radwanksi. The Board,
therefore, must set aside this decision of OWCP and remand the case so that OWCP may fully
consider the evidence that was properly submitted by appellant prior to the issuance of the January 7,
2021 decision. Following this and such other further development it deems necessary, OWCP shall
issue an appropriate decision regarding appellant’s occupational disease claim.
IT IS HEREBY ORDERED THAT the January 7, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 30, 2022
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8

Id. at § 501.6(d).

9

T.B., Docket No. 19-1841 (issued July 7, 2020); E.P., Docket No. 14-0278 (issued February 26, 2014). See also
William A. Couch, 41 ECAB 548, 553 (1990).

4