United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Spokane, WA,
Employer
__________________________________________

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

Docket No. 10-110
Issued: July 20, 2010

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 October 14, 2009 appellant filed a timely appeal from the April 23, 2009 merit
decision of the Office of Workers’ Compensation Programs, which found that he had the
capacity to earn wages as a receptionist. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to reflect a
capacity to earn wages in the constructed position of receptionist.
FACTUAL HISTORY
On the prior appeal,1 the Board found that the Office properly reduced appellant’s
compensation from June 15, 2003 to May 5, 2004 to reflect what would probably have been his
1

Docket No. 04-2182 (issued August 19, 2005).

wage-earning capacity had he properly completed his data clerk training program. The facts of
this case as set forth in the Board’s prior decision are hereby incorporated by reference.2
On October 16, 2006 Dr. John Merrill-Steskal, appellant’s Board-certified family
physician, completed a work capacity evaluation stating that he could work eight hours a day but
“needs to be sedentary.” He specified appellant’s work restrictions.
On July 30, 2008 an Office rehabilitation counselor determined that appellant was able to
perform the job of receptionist, a sedentary position that could be alternated with standing and
walking and one that typically provided some training on the job. She noted that appellant
possessed the skills to work as a receptionist, as he had received three months’ training in the
Work Systems Program through the Mid-Columbia Council of Governments on July 18, 2008.
The rehabilitation counselor noted that appellant received training in keyboarding, telephone/call
center operation, reception, office planning, cashiering, filing, 10-key internet use and Microsoft
Word software. Further, appellant had an Associates degree in math and science and completed
a one-year certificate program as an electronics technician.
The Office rehabilitation counselor conducted a labor market survey and found that the
position of receptionist was performed in such numbers as to be reasonably available to appellant
within his commuting area. Obtaining wage survey data from the Oregon Labor Market
Information System, she determined that the entry-level wage for receptionists within appellant’s
commuting area was $9.84 per hour, or $393.60 per week.
On November 28, 2008 the Office provided Dr. Merrill-Steskal with the physical
requirements of the receptionist position and asked whether it was medically suitable for
appellant’s work restrictions. Dr. Merrill-Steskal replied “yes.” On December 11, 2008 he saw
appellant for follow-up and discussed the matter with him: “Discussed that I agree that he can be
receptionist work [sic] and suspect he can do more than that.”
An updated labor market survey on February 15, 2009 slightly modified the entry-level
wage for receptionist to $9.82 per hour, or $392.80 per week.
On March 12, 2009 the Office notified appellant that it proposed to reduce his
compensation for wage loss due to his accepted injury. It found that the factual and medical
evidence established that he was no longer totally disabled for work but was instead partially
disabled and had the capacity to earn wages as a receptionist at the rate of $392.80 per week.
On March 26, 2009 appellant wrote “to rebut your whole idea.” He related
disagreements he had with the Office and the employer dating back to 1993, including the
reduction in his compensation for not cooperating with vocational rehabilitation services.
Appellant noted that he was previously turned down for all the receptionist jobs he interviewed
2

On June 10, 1988 appellant, then a 47-year-old electrician, sustained injuries in a motor vehicle accident. The
Office accepted his claim for scalp laceration and compression fracture of the T12 vertebra, though a magnetic
resonance imaging scan showed that the defect was wedging related to juvenile osteochondrosis rather than a
fracture. In 1992 appellant filed an occupational disease claim relating to his left hip. The Office accepted that
claim for strains, herniated discs at L4-5 and L5-S1, lumbar disc displacement and thoracic disc displacement.
Appellant stopped work on May 23, 1995 and received compensation for total disability.

2

for because of his age and the fact that he had back problems and was not bilingual. He believed
he was discriminated against and should have his 1997 job returned.
In a decision dated April 23, 2009, the Office reduced appellant’s compensation under
5 U.S.C. § 8115 to reflect his capacity to earn wages as a receptionist.
On appeal, appellant reiterated the arguments raised on March 26, 2009. He expressed
concern over the unemployment rate and competition from kids just out of school. Appellant
was seen at a Veterans Administration (VA) hospital spine clinic on September 24, 2009 and was
told that he had a problem with his lower back and would have to have a magnetic resonance
imaging scan and physical therapy.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act provides that in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by his actual earnings, if his actual earnings fairly and reasonably represent his wageearning capacity. If the actual earnings of the employee do not fairly and reasonably represent
his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity
as appears reasonable under the circumstances is determined with due regard to the nature of his
injury, the degree of physical impairment, his usual employment, his age, his qualifications for
other employment, the availability of suitable employment, and other factors or circumstances
which may affect his wage-earning capacity in his disabled condition.3
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4
When the Office makes a medical determination of partial disability and of the specific
work restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist
for selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles
or otherwise available in the open labor market, that fits the employee’s capabilities in light of
his physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service. Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
ANALYSIS
Following appellant’s employment injury, the Office paid compensation for total
disability. The October 16, 2006 work capacity evaluation completed by Dr. Merrill-Steskal,
3

5 U.S.C. § 8115(a).

4

Harold S. McGough, 36 ECAB 332 (1984).

5

Hattie Drummond, 39 ECAB 904 (1988); see Albert C. Shadrick, 5 ECAB 376 (1953).

3

appellant’s family physician, advised that he could work eight hours a day at a sedentary job.
After the Office received evidence that appellant was no longer totally disabled for work, it
obtained his specific work restrictions. The Office rehabilitation counselor selected a position
available in the open labor market that fit appellant’s capabilities in light of his physical
limitations, education, age and prior experience. Based on the medically determinable residuals
of the accepted employment injury and taking into consideration all significant preexisting
impairments and pertinent nonmedical factors, the rehabilitation counselor found that appellant
was able to perform the job of receptionist. She confirmed that such work was reasonably
available to appellant within his commuting area, and she confirmed an entry-level wage of
$392.80 per week. The Office’s rehabilitation counselor is an expert in such matters, so the
vocational suitability of the receptionist position is established.6
Moreover, Dr. Merrill-Steskal approved the medical suitability of the receptionist
position. The Office provided him with the physical limitations of the position, and he declared
that appellant was capable of performing receptionist work and volunteered that he suspected he
could do “more than that.” There is no contemporaneous medical evidence to the contrary. The
medical suitability of the receptionist position is established by appellant’s attending physician.
The Board finds that the Office followed standardized procedures and gave due regard to
relevant factors in determining appellant’s wage-earning capacity as appears reasonable under
the circumstances. The evidence establishes that appellant’s employment injury no longer totally
disables him for work. Appellant is capable of earning entry-level wages as a receptionist. The
Board finds that the Office met its burden to reduce his monetary compensation and will affirm
the Office’s April 23, 2009 decision.
On appeal, appellant listed several disagreements with how his case was handled through
the years, but these matters have no bearing on the Office’s April 23, 2009 finding that he has the
capacity to earn wages as a receptionist. It makes no difference whether a physical capacity
evaluation in 1994 was never approved or whether he dropped out of school when his mother
became ill. The circumstances of appellant’s failure to complete his data clerk training program
are immaterial, except to show that the Office turned to a constructed position when placement
efforts did not succeed.
Appellant’s reference to the unemployment rate and competition from kids just out of
school goes to the issue of availability.7 The rehabilitation counselor, again an expert in the
field, conducted a targeted labor market survey within appellant’s commuting area. The fact that
appellant was unsuccessful in obtaining a receptionist position does not mean the position is not
being performed in sufficient numbers within his commuting area to be considered unavailable.8
Appellant’s appointment at the VA hospital spine clinic on September 24, 2009 is immaterial to
whether the Office properly reduced his compensation for total disability on April 23, 2009.

6

See Lawrence D. Price, 54 ECAB 590 (2003).

7

See Kenneth Tappen, 49 ECAB 334 (1998).

8

See Marilyn J. Carter, 49 ECAB 661 (1998).

4

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation to reflect his
capacity to earn wages in the constructed position of receptionist.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 2010
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
__________________________________________
M.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
POLICE SECTION, Long Beach, CA, Employer
__________________________________________

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

Docket No. 13-541
Issued: June 14, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant filed an appeal of a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated November 16, 2012 denying his claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) 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 has established that he sustained an injury in the
performance of duty on October 6, 1991 or September 9, 1998 causally related to his
employment.
FACTUAL HISTORY
This case has previously been before the Board. In a June 4, 2010 decision, the Board
affirmed a May 5, 2009 OWCP decision that appellant failed to establish that he sustained an
1

5 U.S.C. §§ 8101-8193.

injury in the performance of duty on September 9, 1998, as alleged.2 The Board found that the
medical evidence of record was insufficient to establish that the accepted employment incident
caused a diagnosed medical condition.3 The law and facts of the previous Board decision are
incorporated herein by reference.
In letters dated November 16, 2009 and August 30, 2010, appellant requested
reconsideration. In his November 16, 2009 letter, he outlined numerous injuries he alleged that
were either sustained at work or preexisting conditions, which were aggravated by the twisting
and straining of his back while performing his duties as a police officer. Appellant stated that he
was involved in a work-related automobile accident on October 6, 1991 where he sustained
upper/neck and low back injuries. On September 9, 1998 he injured his back while at work,
which accelerated his preexisting back conditions and caused problems with his right arm. At
that time appellant was treated by a registered nurse and underwent physical therapy. He stated
that he was put on permanent stationary disability on December 23, 2002, he retired on disability
on January 30, 2003 and was put on social security disability on September 14, 2003. Appellant
argued that his medical condition is the accumulation of multiple injuries he sustained working
as a police officer from 1991 through 2003. He referenced several x-rays and magnetic
resonance imaging (MRI) scans pertaining to his spine and nerves, which he indicated showed
continued acceleration of his work-related injuries.
In an August 30, 2010 report, Dr. Neeraj Gupta, a Board-certified internist, noted that
appellant injured his back just below the left scapula on November 18, 1966 while in military
service. Appellant also suffered a cervical neck sprain after a motor vehicle accident while
working for the employing establishment. Cervical spine x-ray series performed on October 17,
1991 were consistent with C5-6 and C6-7 disc narrowing and spondylosis and physical therapy
progress notes indicated persistent back pain and decreased range of motion of right upper
extremity. During his military service in 1966, appellant was diagnosed with cervical
spondylosis, cervical degenerative disc disease, lumbar spondylosis and lumbar degenerative
disc disease. Dr. Gupta stated on September 9, 1998 that appellant had sat on a chair which gave
way causing him to fall backward, striking his back and head. An MRI scan of the lumbar spine
on September 16, 2003 was consistent with degenerative disc disease of L4-5 and L5-S1.
Dr. Gupta opined that appellant’s current low back condition was most likely caused by or a
result of his military service. He explained that ever since appellant’s original injury in 1966,
while on active duty, he has experienced problems with his lower back, with reaggravation
during his tenure as a police officer for the employing establishment from 1991 to 2003, when he
was placed on disability retirement.
By decision dated December 6, 2010, OWPC denied modification of its prior decision.

2

Docket No. 09-2023 (issued June 4, 2010).

3

OWCP accepted that on September 9, 1998 appellant fell when a chair collapsed under him.

2

On July 23, 2011 appellant requested reconsideration.4 He stated that he was submitting
a February 1, 2011 Doctors Medical Statement of Facts along with his May 27, 2011 letter titled
“My Current Medical Conditions Due to On the Job Injuries.” In his May 27, 2011 letter,
appellant advised that his degenerative disc disease was caused by repeated traumatic on-the-job
injuries to his back; the degenerative disc disease caused his cervical spondylosis and he has
various problems in his lower extremities and right upper extremity. He also advised that he has
erectile dysfunction, pain and functional impairment brought about by his medical conditions.
Copies of evidence previously of record, which included physical therapy reports, diagnostic
studies and medical evidence, was submitted along with new evidence.
In a February 11, 2011 report, Dr. Arnold Kim, a Board-certified family practitioner,
reported that appellant served in the Army from 1965 to 1971. Appellant reported initially
injuring his back while lifting and being diagnosed with lumbar and sacral disc degeneration and
arthritis since November 18, 1996. He indicated that he went to the emergency room for
reinjuring his back and neck after a fall from a chair at the employing establishment on
September 9, 1998 with residuals of back and neck pain. Dr. Kim noted examination findings
and diagnosed lumbar and sacral spine disc degeneration and arthritis with intervertebral disc
syndrome (IVDS) involving bilateral sciatic nerves and complications of erectile dysfunction.
Based on his review of medical record and examination, he provided an opinion regarding
appellant’s functional impairment caused by the established diagnoses and opined that
appellant’s degree of disability could only be stated in terms of intermittent versus constant pain.
Dr. Kim further stated that, without resorting to mere speculation, he could not provide an
opinion regarding the IVDS. He also noted that appellant’s preemployment physical
examination should have disqualified him from employment if his back had been consistently
disabling.
By decision dated May 23, 2012, OWCP denied modification of its December 6, 2010
decision. It noted that none of the evidence appellant submitted could be considered
contemporaneous medical evidence to support a medical diagnosis contemporaneous to the
September 9, 1998 work injury.
On August 15, 2012 appellant requested reconsideration. He indicated in an August 15,
2012 letter that he had included information pertaining to his 1991 work-related motor vehicle
accident along with new evidence. Appellant also requested, in an August 14, 2012 letter, that
all evidence from his job injuries from 1991 through 2003 be reviewed, including his 1991
work-related motor vehicle accident and his 1998 work-related fall. He reiterated that he left his
job and he was placed on social security disability due to being totally disabled as a result of his
on-the-job injuries.
Appellant submitted 88 pages of documents along with an August 19, 2012 congressional
inquiry to the Honorable Darrell Issa. This included: statements from appellant dated
December 20, 2008, November 16, 2009, May 23 and 27, 2011 and July 27, 2012; a duplicative
copy of the September 9, 1998 Form CA-1, a September 9, 1998 Form CA-2 signed by
appellant; a September 9, 1998 report of accident; and several radiological and MRI scan reports,
4

In a July 20, 2011 Order Dismissing Appeal, the Board granted appellant’s request to withdraw the appeal
docketed as appeal number 11-569. Docket No. 11-569 (issued July 20, 2011).

3

many duplicative, dated October 17, 1991, September 9, 1998, September 16, 2003,
September 18 and October 8, 2008 and August 8, 2009. A September 29, 2008 document
summarizes a history of appellant’s injuries.
In a January 21, 2003 report, Dr. Donald Lee, a Board-certified internist, opined that
appellant had degenerative disc disease at L5 through S1 and cervical spondylosis. He provided
permanent medical restrictions regarding lifting over 5 pounds, pushing/pulling greater than
5 pounds or any prolonged bending, walking or standing.
An April 29, 2003 report of Dr. Steven E. Gerson, a Board-certified internist, noted that
appellant presented with back pain since 1991 following a car accident. He further noted that
appellant had x-rays and several MRI scans, which show a progression from mild to severe
disease with disc problems and arthritis. Dr. Gerson provided examination findings and an
impression of ongoing lumbar radiculopathy, mild osteoarthritis of left knee and gait with mild
to moderate limp without ataxia or instability. He opined appellant could work six hours in an
eight-hour workday with restrictions.
In an August 13, 2009 report, Dr. Gupta reported that appellant was diagnosed with
lumbar spine degenerative disc disease since November 18, 1966 and the condition was due to
injury while serving on active duty. He indicated that the condition was subsequently
reaggravated several times while serving for the VA Police Department from 1991 to 2003.
Dr. Gupta noted work injuries on October 6, 1991 and September 9, 1994 and that appellant was
placed on permanent stationary disability on December 23, 2002 and social security on
September 14, 2003. He diagnosed lumbar spine degenerative disc disease. Dr. Gupta opined
that appellant’s current low back condition is most likely the cause of his military service. He
further opined that appellant’s original injury in 1966 while on active duty was greatly
exacerbated during his tenure as a VA Police Officer from 1991 to 2003, when he was placed on
disability retirement.
Dr. Kaleem Uddin, a neurologist, noted, in a May 29, 2012 report, the following history:
appellant injured his back in the military in 1966; and while on duty as a federal law enforcement
officer, he had a car accident in 1991. The physician who evaluated appellant at that time was of
the opinion that his back injury was exacerbated and accelerated by the car accident. In 1998,
while on the job, appellant was sitting in a chair and fell, hitting the back of his head. As a result
of those injuries, he was put on disability in 2003. Examination findings were presented and an
assessment of spinal stenosis at L2 and L3 and bilateral sacroilitis and/or facet joint pain was
provided.
Also submitted were copies of notes, many duplicative, signed by a registered nurse
dated October 13 and 17, 1991 and September 9, 1998 and notes signed by a physical therapist
dated October 17, 21 and 25, 1991.
By decision dated November 16, 2012, OWCP denied modification of its prior decisions.
It found that appellant had not provided additional medical evidence, which diagnosed any
medical condition which could be connected to the September 9, 1998 work injury. OWCP
further found that there were no diagnosed conditions which could be associated with the workrelated motor vehicle accident of October 6, 1991.

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5

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within applicable time limitation;
that an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.7
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.8
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place and in the manner
alleged.9
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.10 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.11 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.12 Simple exposure to a workplace
hazard does not constitute a work-related injury entitling an employee to medical treatment
under FECA.13

5

5 U.S.C §§ 8101-8193.

6

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

7

See Irene St. John, 50 ECAB 521 (1999); Michael I. Smith, 50 ECAB 313 (1999); Elaine Pendleton, id.

8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

9

Linda S. Jackson, 49 ECAB 486 (1998).

10

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
11

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

12

Charles E. Evans, 48 ECAB 692 (1997).

13

20 C.F.R. § 10.303(a).

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ANALYSIS
The record supports and OWCP accepted that the October 6, 1991 and September 9, 1998
employment incidents occurred as alleged. The Board finds, however, that the medical evidence
of record is insufficient to establish that the accepted employment incidents caused a diagnosed
medical condition.
The medical records contemporaneous to the October 6, 1991 and September 9, 1998
employment incidents indicate that appellant was seen by a registered nurse and underwent
physical therapy. However, it is well established that medical opinion evidence must be from a
physician. A registered nurse14 and a physical therapist15 are not physicians under FECA;
therefore, their opinion is of no probative value.
Likewise, the diagnostic testing
contemporaneous to and after the employment incidents are of little probative value as they do
not contain any physician’s opinion attributing a diagnosed condition to either the accepted
October 6, 1991 or the September 9, 1998 employment incidents.
There is also no other medical evidence of record to establish that appellant sustained an
injury caused or aggravated by either the October 6, 1991 or September 9, 1998 incidents.
Dr. Lee diagnosed several conditions and opined that appellant had permanent medical
restrictions. He failed to provide a history of the October 6, 1991 work incident or indicate
whether appellant’s diagnosed conditions were caused or aggravated by an employment activity.
The Board finds that Dr. Lee’s report is insufficient to establish appellant’s claim.
Dr. Gerson noted the 1991 car accident, provided an impression of ongoing
radiculopathy, mild osteoarthritis of left knee and gait with mild to moderate limp. He opined
that appellant could work 6 hours in an 8-hour workday with restrictions. However, Dr. Gerson
did not offer an opinion addressing the causal relationship between the diagnosed conditions and
the accepted October 6, 1991 employment incident.16 The Board finds that the opinion of
Dr. Gerson is insufficient to establish appellant’s claim.
Dr. Gupta noted the history of injuries appellant sustained and opined that appellant’s
current low back condition was most likely caused by or a result of his military service. He
further opined that appellant’s low back conditions were reaggravated during his tenure as a
police officer for the employing establishment from 1991 to 2003, when he was placed on
disability retirement. However, Dr. Gupta did not address in either report how the accepted
14

See also Joseph N. Fassi, 42 ECAB 231 (1991) (medical evidence signed only by a registered nurse or nurse
practitioner is generally not probative evidence).
15

5 U.S.C. § 8101(2) which defines physician as including surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
Vickey C. Randall, 51 ECAB 357, 360 (2000); Arnold A. Alley, 44 ECAB 912, 921 (1993); Merton J. Sills,
39 ECAB 572, 575 (1988).
16

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB
200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

7

employment incidents caused or aggravated the diagnosed medical conditions or how any events
that occurred may have been connected to the diagnosed conditions as the cause.17 As he failed
to address the causal relationship between appellant’s condition and the accepted incidents, the
Board finds that this evidence is of diminished probative value in establishing the claim.
Dr. Kim noted the September 9, 1998 work incident as part of appellant’s history and
diagnosed lumbar and sacral spine disc degeneration and arthritis with IVDS involving bilateral
sciatic nerves and complications of erectile dysfunction. While he provided an opinion regarding
appellant’s functional impairment, he did not offer an opinion addressing the causal relationship
between the diagnosed conditions and the accepted September 9, 1998 employment incident.18
The Board finds that the opinion of Dr. Kim is insufficient to establish appellant’s claim.
Dr. Uddin reported the history of both employment incidents and provided an assessment
of spinal stenosis at L2 and L3 and bilateral sacroilitis and/or facet joint pain. However, he did
not offer an opinion addressing the causal relationship between the diagnosed conditions and the
accepted employment incidents.19 The Board finds that the opinion of Dr. Uddin is insufficient
to establish appellant’s claim.
The other medical evidence provided by appellant fails to provide a diagnosis of any
condition which could be connected to the accepted employment incidents. There is no recent
medical evidence supporting that either the 1991 or the 1998 work injury caused a degenerative
condition.
Appellant expressed his belief that his current conditions resulted from his work duties as
a police officer and his various accidents. However, the Board has held that the mere fact that a
condition manifests itself during a period of employment does not raise an inference that there is
a causal relationship between the two.20 Neither the fact that the condition became apparent
during a period of employment nor the belief that the condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.21 Causal
relationship must be substantiated by reasoned medical opinion evidence, which it is appellant’s
responsibility to submit. Appellant failed to submit sufficient medical evidence to rectify the
deficiencies in his claim.
Therefore, the Board finds that appellant failed to provide sufficient medical evidence to
establish that he sustained an injury resulting from either the October 6, 1991 or the September 9,
1998 employment incident. Thus, appellant failed to meet his burden of proof.

17

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

18

Supra note 16.

19

Id.

20

See Joe T. Williams, 44 ECAB 518, 521 (1993).

21

Id.

8

CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 16, 2012 is affirmed.
Issued: June 14, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


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

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

Docket No. 10-2373
Issued: July 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 27, 2010 appellant filed a timely appeal from the July 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied continuation
of pay. The Board also has jurisdiction to review OWCP’s September 1, 2010 nonmerit decision
denying appellant’s request for a hearing. Pursuant to the Federal Employees’ Compensation
Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUES
The issues are: (1) whether OWCP properly denied continuation of pay; and (2) whether
OWCP properly denied appellant’s request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2010 appellant, a 50-year-old rural carrier, filed a traumatic injury claim
alleging that she tore tendons in her left index finger on March 25, 2010 when she hit her left
hand on the door of a car. She claimed continuation of pay. Appellant stopped work on
March 25, 2010 and did not return. OWCP accepted her claim for rupture of the extensor tendon
of the left index finger.
In a July 16, 2010 decision, OWCP denied continuation of pay, finding that appellant did
not report the injury on a form approved by OWCP within 30 days of the injury.
On August 18, 2010 appellant requested an oral hearing before an OWCP hearing
representative. Her request was postmarked August 20, 2010.
In a decision dated September 1, 2010, OWCP denied appellant’s request for a hearing.
OWCP found that her request was untimely, so she was not entitled to a hearing as a matter of
right. OWCP, in its discretion, considered appellant’s request and determined that she could
address the issue in her case equally well by requesting reconsideration.
On appeal, appellant explained that she notified her supervisor of the injury on the day
that it happened. She submitted a September 17, 2010 statement from her supervisor, who
explained that appellant notified him of the injury on the morning of March 25, 2010.
LEGAL PRECEDENT -- ISSUE 1
Section 8118(a) of FECA2 provides continuation of pay, not to exceed 45 days, to an
employee “who has filed a claim with his immediate superior on a form approved by the
Secretary of Labor” within 30 days of the injury.3
The Board has held that section 8122(d)(3), which allows OWCP to excuse failure to
comply with the time limitation provision for filing a claim for compensation because of
“exceptional circumstances,” is not applicable to section 8118(a), which sets forth the filing
requirements for continuation of pay. There is, accordingly, no provision in FECA for excusing
an employee’s failure to file a claim for continuation of pay within 30 days of the employment
injury.4
ANALYSIS -- ISSUE 1
Appellant sustained a traumatic injury in the performance of duty on March 25, 2010.
The record establishes that she did not file a claim for continuation of pay within 30 days, or by
April 26, 2010. The record instead shows that she filed a claim for continuation of pay on
June 2, 2010, more than a month after the 30-day period for filing such a claim had expired.
2

5 U.S.C. § 8118.

3

George A. Harrell, 29 ECAB 338 (1978).

4

William E. Ostertag, 33 ECAB 1925, 1932 (1982).

2

Because the record does not show that appellant filed a claim for continuation of pay
within 30 days of her March 25, 2010 employment injury, she is not entitled to continuation of
pay. This is so regardless of circumstance or whether she provided her supervisor with notice of
injury on March 25 2010.5
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”6
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.7 OWCP has
discretion, however, to grant or deny a request that is made after this 30-day period.8 In such a
case, it will determine whether a discretionary hearing should be granted or, if not, will so advise
the claimant with reasons.9
ANALYSIS -- ISSUE 2
Because appellant made her August 20, 2010 request for a hearing more than 30 days
after OWCP’s July 16, 2010 decision denying continuation of pay, she is not entitled to a hearing
as a matter of right. OWCP considered the matter and, exercising its discretion, correctly
advised appellant that she could pursue the issue equally well through the reconsideration
process, as detailed in the appeal rights attached to its July 16, 2010 decision. As appellant may
address the continuation of pay issue by pursuing an alternative avenue of appeal, the Board
finds that OWCP properly denied her untimely request for a hearing.10
5

OWCP misleadingly denied continuation of pay for failure to provide notice of injury within 30 days. It should
have worded its decision to deny continuation of pay for failure to file a claim within 30 days. Laura L. Harrison,
52 ECAB 515 at n.3 (2001) (explaining that, when an injured employee makes no claim within 30 days, she is not
entitled to continuation of pay, notwithstanding prompt notice of injury).
6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.616(a).

8

Herbert C. Holley, 33 ECAB 140 (1981).

9

Rudolph Bermann, 26 ECAB 354 (1975).

10

The Board has held that the denial of a hearing on these grounds is a proper exercise of the Office’s discretion.
E.g., Jeff Micono, 39 ECAB 617 (1988).

3

CONCLUSION
The Board finds that OWCP properly denied continuation of pay. Appellant did not file a
claim for continuation of pay within 30 days of her injury. The Board also finds that OWCP
properly denied her request for a hearing. Appellant did not make her request within 30 days of
OWCP’s July 16, 2010 decision, and OWCP determined that she could pursue the issue in her
case through reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the September 1 and July 16, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Newark, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1945
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On July 21, 2010 appellant filed an application for review of a decision of the Office of
Workers’ Compensation Programs dated March 29, 2010. The appeal was docketed as No.
10-1945.
Appellant, a 55-year-old supervisor, sustained an injury to his right knee in the
performance of duty on September 15, 2003. He filed a claim for benefits on September 22,
2003, which the Office accepted for right knee sprain/strain.
By letter dated September 4, 2008, appellant’s attorney requested a schedule award based
on a partial loss of use of appellant’s right lower extremity. Counsel attached a June 12, 2008
report from Dr. David O. Weiss, an osteopath, who found that appellant had a 15 percent
impairment of the right lower extremity pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment (fifth edition) (A.M.A., Guides).
By letter dated January 26, 2009, Dr. Morton Slutsky, Board-certified in plastic surgery
and an Office medical adviser, reviewed Dr. Weiss’ report and found that appellant had a five
percent impairment of the right lower extremity pursuant to the fifth edition of the A.M.A.,
Guides. In reports dated February 12 and 25, 2009, Dr. Weiss and Dr. Slutsky reiterated their
respective impairment ratings.

The Office found that there was a conflict in the medical evidence regarding the degree
of impairment stemming from appellant’s accepted right knee condition. It referred appellant to
Dr. Robert Dennis, Board-certified in orthopedic surgery, for a referee medical examination. In
an October 5, 2009 report, Dr. Dennis found that appellant had a seven percent permanent
impairment of the right lower extremity rating in conformance with the updated, sixth edition of
the A.M.A., Guides, which became effective as of May 1, 2009.1
In a December 17, 2009 report, an Office medical adviser concurred with Dr. Dennis’
seven percent impairment rating. He did not discuss or explain why he agreed with Dr. Dennis’
findings and conclusions.
By decision dated January 6, 2010, the Office granted appellant a schedule award for a
seven percent permanent impairment of the right lower extremity for the period January 21 to
October 30, 2007, for a total of 40.32 weeks of compensation. It reviewed the medical evidence,
including Dr. Dennis’ impartial medical report, but did not discuss his findings or indicate why it
relied on his opinion.
On January 14, 2010 appellant’s attorney requested a review of the written record.
By decision dated March 29, 2010, an Office hearing representative affirmed the
January 6, 2010 decision. The hearing representative stated that Dr. Dennis’s seven percent
impairment rating represented the weight of the medical evidence because his October 5, 2010
report contained the only impairment evaluation of record rendered in conformance with the
updated sixth edition of the A.M.A., Guides. He did not discuss or analyze Dr. Dennis’ findings
or indicate whether he properly applied the relevant tables of the A.M.A., Guides.
Section 20 C.F.R. § 10.126 requires the Office to issue a decision containing findings of
fact and a statement of reasons.2 The Office erred in its January 6 and March 29, 2010 decisions
by failing to support its reliance on Dr. Dennis’ October 5, 2010 report by discussing or
analyzing whether his findings and conclusions were proper and based on the appropriate tables
and figures of the sixth edition of the A.M.A., Guides. The hearing representative’s March 29,
2010 decision is additionally flawed because the only reason provided for relying on Dr. Dennis’
opinion was that it was the only impairment rating rendered in conformance with the sixth
edition of the A.M.A., Guides.
The Board finds that the Office failed to give proper consideration to the medical
evidence of record in this case. Accordingly, the case will be set aside and remanded for
consideration of the medical evidence pursuant to the standards set out in section 8128(a) and
section 20 C.F.R. § 10.126. After such further development as the Office deems necessary, it
should issue an appropriate decision to protect appellant’s appeal rights.

1

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
2

20 C.F.R. § 10.126.

2

IT IS HEREBY ORDERED THAT that the March 29, 2010 decision be set aside and
remanded for consideration of the merits of appellant’s claim.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTH TEXAS HCS-AUDIE MURPHY,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 10-314
Issued: September 2, 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 November 13, 2009 appellant filed a timely appeal of the August 21, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for total
disability. Pursuant to 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 was disabled from March 17 to June 25, 2009 due to her
employment injury.
On appeal appellant contends that she is entitled to wage-loss compensation for the
claimed period when she was out of work due to her employment injury. She argues that her
disability was due to her ongoing pain.

FACTUAL HISTORY
On January 29, 2009 appellant, then a 60-year-old certified nurse assistant, filed a
traumatic injury claim alleging that she experienced severe pain in her right wrist and arm that
day when a patient grabbed her arm as she tried to prevent him from falling and pulling out a
tube. The Office accepted her claim for contusion of the right wrist and advised that medical
evidence establishing employment-related disability was required to support any claims for wage
loss.
On February 25, 2009 appellant returned to restricted-duty work. She filed claims for
wage-loss compensation for the period March 17 through June 25, 2009.
By letters dated March 27 and May 6, 2009, the Office advised appellant about the
deficiencies in her claim. It requested that she provide additional medical evidence to support
her disability for the claimed period.
Appellant submitted medical evidence from Dr. David Griffith, an attending chiropractor.
In an undated Texas workers’ compensation work status report, Dr. Griffith advised that
appellant sustained injuries to her elbow, forearm and wrist. He listed her physical restrictions
and advised that she was unable to work from March 17 to April 3, 2009. In progress notes
dated April 28 through May 22, 2009, Dr. Griffith indicated that appellant underwent physical
therapy to treat her right wrist pain. In prescriptions dated June 8 to July 20, 2009, he ordered
therapeutic products to treat appellant’s synovitis, tenosynovitis and recurrent joint dislocation.
In reports dated April 16 to June 25, 2009, Dr. A.R.S. Prasad, an attending internist,
obtained a history of appellant’s January 29, 2009 employment injury, medical treatment and
social background. He listed essentially normal findings on physical examination and diagnosed
right thumb tenosynovitis and internal derangement syndrome and disruption of the triangular
fibrocartilage of the right wrist area with tenosynovitis of extensor carpi ulnaris. Dr. Prasad
placed appellant off work pending a surgical evaluation regarding her right hand since she was
right-handed and was required to perform heavy lifting and move patients. In progress notes
dated April 20 through July 23, 2009, he addressed appellant’s physical therapy for her right
wrist pain. In a June 8, 2009 report, Dr. Prasad addressed her allergic reaction to Vicodin. In
reports dated June 25 and July 9 and 23, 2009, he released appellant to return to work with
restrictions.1
In an April 3, 2009 report, Dr. Ronald W. Saunders, a chiropractor, stated that appellant
was under his care regarding her work-related right hand, wrist and forearm injuries. He opined
that she was off work until April 19, 2009 due to severe pain, swelling and dysfunction.
In a report and progress note dated May 20, 2009, Dr. Mario A. Bustamante, a Boardcertified orthopedic surgeon, obtained a history of appellant’s January 29, 2009 employment
injury, medical treatment and social background. He listed his findings on physical examination
and diagnostic testing. Dr. Bustamante diagnosed triangular fibrocartilage and first dorsal
compartment sprains and carpometacarpal (CMC) and metacarpophalangeal (MCP) joint arthritis
1

On June 30, 2009 appellant accepted the employing establishment’s job offer for restricted-duty work.

2

with a sprain of the right thumb. He advised that appellant would be off work until
May 31, 2009. Appellant could return to regular-duty work on June 1, 2009. Also on May 20,
2009 Dr. Bustamante prescribed a volar splint. On May 26, 2009 he referred appellant to
physical/occupational therapy to treat her right wrist and hand sprains and strains.
On August 3, 2009 the Office received a June 25, 2009 progress note from Rosalinda
Garza-Harris, a licensed clinical social worker as the same medical facility as Dr. Prasad, which
addressed appellant’s physical therapy.
By decision dated August 21, 2009, the Office denied appellant’s claim for compensation
for the period March 17 through June 25, 2009. It found the evidence to be insufficient to
establish that she was totally disabled during the claimed period due to her accepted condition.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.2 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.3 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.4 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.5 The Board will not require the Office to pay
compensation for total disability in the absence of medical evidence directly addressing the
specific dates of disability for which compensation is claimed. To do so would essentially allow
an employee to self-certify her disability and entitlement to compensation.6
ANALYSIS
The Office accepted that appellant sustained a contusion of the right wrist in the
performance of duty on January 29, 2009. Appellant claimed compensation for disability from
March 17 to June 25, 2009, due to the accepted condition. On August 21, 2009 the Office found
that she was not disabled for work during the claimed period. Appellant has the burden of
establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between her claimed disability and the accepted condition.7
2

See Prince E. Wallace, 52 ECAB 357 (2001).

3

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

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Manuel Garcia, 37 ECAB 767 (1986).

6

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Alfredo Rodriguez, 47 ECAB 437 (1996).

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The Board finds that Dr. Griffith’s and Dr. Saunders’s reports which found that appellant
was disabled from work from March 17 to April 19, 2009 are insufficient to establish her claim.
The term physician under section 8101(2) of the Act includes chiropractors only to the extent
that their reimbursable services are limited to treatment consisting of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist.8 Neither, Dr. Griffith nor
Dr. Saunders diagnosed a spinal subluxation based on x-ray. Therefore, their reports are of no
probative medical value.9
Dr. Prasad stated that appellant could return to work with restrictions as of June 25, 2009.
Although he indicated that she was disabled for work, he did not address how her disability was
due to the accepted right wrist contusion. Dr. Prasad did not explain the basis for appellant’s
disability commencing April 16, 2009. As noted, it is her burden to establish her disability by
the submission of probative medical evidence. Dr. Prasad’s progress notes only generally
addressed the physical therapy appellant underwent for the treatment of her right wrist pain. His
June 8, 2009 report addressed appellant’s reaction to pain medication. This evidence does not
address how her disability for the claimed period was caused by her accepted condition. The
Board finds that Dr. Prasad did not submit sufficient medical opinion to establish that appellant’s
total disability for the claimed period was due to her accepted condition.
Dr. Bustamante’s May 20, 2009 reports stated that appellant had triangular fibrocartilage
and first dorsal compartment sprains and CMC and MCP joint arthritis with a sprain of the right
thumb. He stated that she was disabled for work until May 31, 2009 and that she could return to
regular-duty work as of June 1, 2009; however, he did not address whether her disability was
causally related to the accepted employment injury. On May 20, 2009 Dr. Bustamante
prescribed a volar splint. On May 26, 2009 he referred appellant to physical/occupational
therapy for her right wrist and hand sprains and strains. This evidence does not address how her
disability for the claimed period was caused by her accepted condition. The Board finds that the
evidence from Dr. Bustamante is insufficient to establish appellant’s claim.
The progress note from Ms. Garza-Harris is of no probative value as a social worker is
not included in the definition of “physician” under the Act.10 The Board finds that this progress
note is insufficient to establish appellant’s claim.
The Board finds that there is insufficient medical opinion to establish that appellant was
totally disabled from March 17 to June 25, 2009 due to residuals of her accepted contusion of the
right wrist. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
March 17 through June 25, 2009 due to her employment injury.
8

5 U.S.C. § 8101(2).

9

See Michelle Salazar, 54 ECAB 523 (2003).

10

See 5 U.S.C. § 8101(2); see also Phillip L. Barnes, 55 ECAB 426 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the August 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HONOLULU VETERANS MEDICAL CENTER,
Honolulu, HI, Employer
__________________________________________

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

Docket No. 18-1217
Issued: May 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 29, 2018 appellant filed a timely appeal from a December 21, 2017 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on
appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first
time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 20, 2017 appellant, then a 53-year-old health system specialist, filed an
occupational disease claim (Form CA-2) alleging that she sustained an emotional condition due to
working in a hostile environment. She alleged: that her coworkers harassed, tormented, and
bullied her; that she had to go through mediation sessions; and that management did not care.
Appellant first became aware of her claimed condition and its relationship to her federal
employment on August 24, 2016. She did not stop work. No evidence was received with the
claim.
In a development letter dated August 18, 2017, OWCP informed appellant that the medical
and factual evidence submitted was insufficient to support her claim and advised her of the type
of evidence needed. It asked her to provide a medical opinion from an attending psychiatrist or
clinical psychologist with a detailed description of findings and symptoms, results of all
psychological testing, diagnosis and clinical course of treatment followed, and a physician’s
opinion supported by a medical explanation regarding the cause of her emotional condition.
OWCP afforded appellant 30 days to submit the necessary evidence.
By separate letter dated August 18, 2017, OWCP requested that the employing
establishment provide additional information concerning appellant’s claim.
In a September 9, 2017 statement, appellant alleged that she had been forced to work in a
hostile work environment for the past two years. She noted that management was aware that she
sought mental health services in March 2016 and was aware of the hostile work environment later
in August 2016. Appellant alleged that management did not care that her vertigo episodes were
triggered by work stress or that she worked in a hostile environment as she did an outstanding job
on her joint commission inspections. She noted that she had filed a grievance in August 2016 due
to the hostile work environment.
With regard to the hostile work environment, appellant indicated that “A,” the team leader,
often gossiped about her.3 In April 2015, the team leader started to have a grudge against her,
when she was going through a situation with her husband which overflowed into the work
environment. Appellant alleged that the team leader told both her and Coworker “B” that they
should be careful as her husband thought that they were introducing her to men. She alleged that
her office was moved for safety reasons concerning the team leader’s husband.
Appellant alleged that she suffered stress and hostility from her coworkers. She explained
that she had notified leadership in August 2016 that her coworkers had formed an alliance against
her and were behaving unprofessionally towards her. Appellant alleged that her coworkers
demeaned her work and assignments at mediation sessions, isolated her from work conversations,
3

Appellant only included the first names of individuals in her statement.

2

were unprofessional, lied to her face and attacked her with harsh words, sabotaged her work,
demeaned her work ethic, and made big deals about her old mistakes. She also alleged that, during
this time, her work processes had changed and she was given a lot of extra work with short
deadlines.
Appellant alleged that the team leader tried to sabotage her work in June 2017 when she
gave her a file to work on one day before a presentation and had purposely left a nurse
practitioner’s name off the monthly renewal listing, the “go to” list for providers. She alleged that
the team leader had deleted the nurse practitioner’s name on the monthly renewal listing to try and
cover for “I,” a coworker, not realizing that it could be traced. Appellant alleged that management
downplayed the incident because it was the team leader.
Appellant indicated that the employing establishment held approximately six mediation
sessions, which started in September 2016, to address interpersonal conflicts affecting work. She
alleged that the mediation sessions made matters worse with her coworkers.
Appellant made several allegations related to an increase in workload. She alleged that her
workload changed and was heavier from August 8, 2017 when the team leader went on a twomonth leave. Appellant noted that she had intentionally left work unfinished which she had to
complete because of the “time sensitiveness” nature of the tasks. She indicated that this stress,
along with the hostility, affected her mental and physical health. Appellant indicated that she
taught herself some of the GS-11 tasks, which were out of scope of her duties and on other GS-11
tasks she received assistance from Human Resources and other medical staff coordinators from
other states. She alleged that the team leader would not teach her some medical staff coordinator
tasks. During this time frame, appellant indicated that an inspection occurred and that she was
also training a new employee, B.R. She indicated that she taught B.R. several tasks, such as
confirm and scan in peer references, employment histories, verify information for the provider,
etc. Appellant alleged that she came to work before and stayed after her normal work hours to
keep the department flowing smoothly.
Appellant alleged that, while she received the highest monetary award with her
December 2015 performance evaluation, she did not receive the team leader’s pay although she
had done much of her work. She also felt that her December 2015 performance evaluation should
have been rated higher as she had run the office (a GS-11) position while the team leader was out.
Appellant indicated that she had filed a grievance from the December 2015 performance
evaluation.
Appellant submitted numerous progress notes from registered nurses and licensed practical
nurses from the employing establishment for the period April to June 2017 and March 28, 2017
reports from the Women Health Clinic.
In an April 18, 2017 progress note, Amy Winebarger, a licensed clinical social worker,
diagnosed anxiety disorder.
In psychotherapy progress notes dated April 27 and May 17, 2017, Una Starr, a licensed
mental health counselor, diagnosed appellant with adjustment disorder. Dr. George Rhoades, a

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clinical psychologist, cosigned an undated progress notes summary, which did not contain a
medical diagnosis.
In an August 30, 2017 letter, Dr. Mary L. Li, a Board-certified internist, noted that
appellant had shared with her the last year of her work experiences and that she had increased
stress from her working relationships with her coworkers. She also noted that they had discussed
her stress affecting her mental health. Dr. Li further noted that appellant was seen on August 22,
2017 for vertigo. She recommended that appellant continue counseling.
By decision dated December 21, 2017, OWCP denied appellant’s claim for an emotional
condition. It found that she had not established any compensable employment factors.4 OWCP
also found that the evidence of record did not contain a medical diagnosis in connection with the
claimed incidents. Thus, it concluded that appellant had not sustained an injury as defined under
FECA.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying employment factors or incidents alleged to have caused or
contributed to his or her condition; (2) medical evidence establishing that he or she has an
emotional or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.5
A prima facie emotional condition claim cannot be established without first submitting evidence
of a diagnosed medical condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an illness
has some connection with the employment but, nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned duties or to a requirement imposed by the employment,
the disability comes within the coverage of FECA.8 On the other hand, the disability is not covered
OWCP identified 52 allegations from appellant’s September 9, 2017 statement. Allegations were made in
relations to appellant’s leadership team, stress/hostility in the workplace, retaliation, acts of sabotage, unfair treatment
and hostility, incidents pertaining to Coworker “A’s” husband, mediation sessions, increase in workload, performance
evaluation, and grievance filing/EEO complaint. OWCP found that appellant had not provided a factual basis to
support her claim as most of her allegations were vague and general without supporting evidence or specific examples.
It further found that many of the statements provided had no probative value as they were general in nature or
considered hearsay.
4

5

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
6

S.C., Docket No. 16-0293 (issued May 10, 2016); M.M., Docket No. 09-1347 (issued December 18, 2009);
A.C., Docket No. 08-1453 (issued November 18, 2008) (finding that as there was no medical evidence diagnosing an
emotional condition, appellant failed to establish a prima facie claim).
7

See S.K., supra note 5; L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

8

See S.K., supra note 5; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

where it results from such factors as an employee’s fear of a reduction-in-force or his or her
frustration from not being permitted to work in a particular environment or to hold a particular
position.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
The Board has explained that without a medical diagnosis, an employee has not presented
prima facie evidence of an emotional condition.10
With regards to her emotional condition claim, the Board notes that both Ms. Winebarger,
a licensed clinical social worker, and Ms. Starr, a licensed mental health counselor, had diagnosed
appellant with adjustment disorder. However, social workers and mental health counselors are not
considered physicians as defined under FECA. Therefore, their opinions are of no probative
medical value.11
While Dr. Rhoades cosigned a summary of progress notes from Ms. Starr, this summary
did not provide any medical diagnoses. A report from a medical professional cosigned by a
physician may be considered to be probative medical evidence.12 However, Dr. Rhoades did not
cosign any of the psychotherapy notes from Ms. Starr and the nature and content of his summary
report makes it clear that he had not interviewed, examined, evaluated nor tested appellant, but
merely cosigned a completed letter after the fact. This fact diminishes the probative value of the
report.13
Additionally, while Dr. Li mentioned that appellant had reported work-related stress, and
vertigo14 she did not provide a firm diagnosis. The Board accordingly finds that, as appellant has
submitted no medical evidence diagnosing an emotional condition, she has failed to establish the
first element of her emotional condition claim.15 Without a medical diagnosis, appellant has not

9

See S.K., supra note 5; Gregorio E. Conde, 52 ECAB 410 (2001).

10

Supra note 6.

11
See R.W., Docket No. 17-1542 (issued February 1, 2018); S.S., Docket No. 13-1919 (issued May 16, 2014); see
also R.E., Docket No. 16-0615 (issued October 3, 2016); L.C., Docket No. 08-2271 (issued August 6, 2009); 5 U.S.C.
§ 8101(2) provides as follows: physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
12
See generally E.S., Docket No. 17-1598 (issued November 8, 2018); Melvin Marie Williams, Docket No. 011868 (issued May 6, 2002).
13

See Richelle J. Drum, Docket No. 99-2355 (issued December 13, 2000).

14

Douglas M. Corbin, Docket No. 04-0833 (issued June 22, 2004); Norma M. Tabani, 98-1822 (issued March 22,
2000) (vertigo noted as a symptom).
15

Supra note 6.

5

presented prima facie evidence of an emotional condition. Due to this deficiency, the Board will
affirm the denial of her claim.16
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 has not met her burden of proof to establish an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 2019
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

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

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

16

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Jamaica, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-375
Issued: May 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 4, 2013 appellant, through her attorney, filed a timely appeal from an
October 1, 2013 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 OWCP properly reduced appellant’s compensation pursuant to 5
U.S.C. § 8113(b) for failure to continue vocational rehabilitation without good cause.
FACTUAL HISTORY
On April 11, 1994 appellant, then a 38-year-old import specialist, filed a traumatic injury
claim (Form CA-1) alleging that on March 28, 1994 she sustained injuries while lifting heavy
1

5 U.S.C. § 8101 et seq.

stereo equipment in the performance of duty. She underwent a cervical discectomy with C5-6
and C6-7 fusion on May 10, 1994. OWCP accepted the claim for cervical herniated disc at C5-6
and C6-7. Appellant stopped working and received compensation for total disability on the
periodic compensation rolls.
In a report dated April 27, 2012, the attending physician, Dr. Susan Aull, a Boardcertified physiatrist, provided results on examination. The diagnoses included probable recurrent
cervical herniated nucleus pulposus above and below the area of stabilization vs instability,
cervical radiculopathy right C6-7, cervical degenerative joint disease, myofascial pain syndrome
of the cervical paravertebrals, shoulder girdle and interscapular musculature. Dr. Aull stated that
appellant was disabled due to limited range of motion of the cervical spine with radiculopathy
and appellant should also avoid lifting.
OWCP referred appellant to Dr. Jonathan Black, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a report dated May 1, 2012, Dr. Black provided a history and
results on examination. He opined that the accepted cervical herniated discs had resolved, but
appellant continued to have employment-related residuals, noting that appellant had signs of
ongoing cervical radiculopathy with C7 nerve involvement. Dr. Black opined that appellant
could not work as an import specialist due to lifting restrictions, although appellant could work
in a limited capacity for eight hours per day. He indicated on a work capacity evaluation form
(OWCP-5) that appellant was limited to 10 pounds lifting at three hours per day.
On May 8, 2012 OWCP accepted a right cervical radiculopathy with C7 nerve
involvement.2 An OWCP rehabilitation specialist determined that vocational rehabilitation was
appropriate in view of Dr. Black’s medical report. Appellant was referred to a vocational
rehabilitation counselor to develop a rehabilitation plan.
The record indicates that the vocational rehabilitation counselor met with appellant at her
home on June 18, 2012 and appellant underwent a vocational evaluation on July 2, 2012. In a
report dated July 11, 2012, the vocational rehabilitation counselor indicated that the
rehabilitation plan was to enroll appellant in a customer assistance technology program, a 15week program that prepared students for positions such as a receptionist. The vocational
rehabilitation counselor prepared a CA-66 job classification form for the position of
Receptionist, Department of Labor’s Dictionary of Occupational Titles, DOT No. 237.367-038.
The position was described as sedentary with occasional lifting of 10 pounds, at weekly wages of
$400.00 based on state employment information.
In a report dated August 15, 2012, the vocational rehabilitation counselor indicated that
appellant had reported that she would not register for the technology program based on her
physician’s opinion. By letter dated August 17, 2012, OWCP advised appellant of the provisions
of 5 U.S.C. § 8113(b). It stated that appellant was directed to undergo the technology program
and if she had reasons for not participating, she should submit evidence within 30 days.

2

OWCP terminated compensation for the accepted herniated cervical discs by decision dated July 17, 2012. That
decision is not before the Board on this appeal. Appellant did appeal an October 7, 2013 nonmerit decision in this
regard, which is adjudicated under a separate appeal.

2

On August 24, 2012 appellant submitted an August 14, 2012 report from Dr. Aull, who
indicated that appellant was seen on August 7, 2012 and provided results on examination.
Dr. Aull stated in an addendum dated August 14, 2012, “Can [appellant] medically and,
physically attend such [a] course? No, as the patient cannot be seated with neck flexed for any
period of time without exacerbating her symptoms of pain, spasm of the neck and intermittent
pain and numbness in the arms.” He further stated that attendance at a class for six hours per day
would cause increased pain in appellant’s neck, headaches, muscle spasms of the neck and
shoulder girdle and may cause neurologic symptom worsening in her arm. Dr. Aull concluded
that appellant’s “ADL’s [activities of daily living] are impairment due to limited ROM [range of
motion] of her neck due to injury and prior fusion from that injury. She is limited in movement,
position, [and] what she is able to lift and carry. The patient is unable to take a 450[-]hour
course, 30 hours per week for 15 weeks.”
By decision dated September 25, 2012, OWCP found that appellant had failed, without
good cause, to continue participation in vocational rehabilitation. It found that Dr. Aull’s report
was not sufficiently rationalized. OWCP stated that it was reducing appellant’s compensation
based on the ability to earn $400.00 per week as a receptionist, until she participated in
vocational rehabilitation.
In a letter dated June 29, 2013, appellant requested reconsideration. She argued that
OWCP had improperly reduced compensation under 5 U.S.C. § 8113(b). Appellant submitted a
July 15, 2013 report from Dr. John Moor, a Board-certified orthopedic surgeon, who provided a
history and results on examination.
By decision dated October 1, 2013, OWCP denied modification. It found the evidence
was insufficient to warrant modification.
LEGAL PRECEDENT
FECA provides that the Secretary of Labor may direct a permanently disabled individual
whose disability is compensable to undergo vocational rehabilitation.3 According to 5 U.S.C.
§ 8113(b), if an individual without good cause fails to apply for an undergo vocational
rehabilitation when so directed under 5 U.S.C. § 8104, OWCP may, after finding that in the
absence of the failure the wage-earning capacity of the individual would probably have
substantially increased, reduce prospectively the monetary compensation of the individual. The
reduction of compensation is performed in accordance with what would probably have been his
wage-earning capacity in the absence of the failure, until the individual in good faith complies
with the direction to undergo vocational rehabilitation. It is OWCP’s burden of proof with
respect to any reduction of compensation, including the reduction of compensation pursuant to 5
U.S.C. § 8113(b).4

3

5 U.S.C. § 8104(a).

4

See R.C., Docket No. 10-1845 (issued April 6, 2011).

3

ANALYSIS
In the present case, OWCP directed appellant to undergo vocational rehabilitation after
receiving a May 1, 2012 report from the second opinion physician, Dr. Black. The rehabilitation
plan developed required appellant to attend a 15-week course in customer assistance technology,
with a goal to return appellant to work as a receptionist or similar position. Appellant did not
attend the program and the issue is whether appellant’s failure to attend was “without good
cause.” If she did not continue vocational rehabilitation without good cause, then the issue is
whether OWCP properly reduced compensation based on wage-earning capacity of $400.00 per
week in a receptionist position.
The May 1, 2012 report from Dr. Black provided that appellant could work with a 10pound lifting restriction at three hours per day. No restrictions were provided for sitting or
standing. This report would support a finding that appellant was physically capable of attending
the proposed training program and was also in accord with the rehabilitation plan of returning
her to a sedentary position such as receptionist. On the other hand, she submitted an April 14,
2012 report from attending physician, Dr. Aull, who provided a conflicting opinion. Dr. Aull
opined that appellant had restrictions with respect to sitting and specifically opined that she could
not perform the training program. This opinion would also clearly impact the determination that
a sedentary position as receptionist would represent appellant’s wage-earning capacity if she
completed the training course.
Both the opinions of Dr. Black and Dr. Aull were unequivocal and based on an accurate
factual background. It is well established that, when there are opposing medical reports, of
virtually equal probative value, between an attending physician and a second opinion physician,
5 U.S.C. § 8123(a) requires that OWCP refer the case to a referee physician to resolve the
conflict.5 OWCP had a responsibility to resolve the issues regarding appellant’s specific
physical restrictions to properly adjudicate the claim.
The Board notes that OWCP did not acknowledge that it has the burden of proof to
reduce compensation. Since there was an unresolved conflict as to whether appellant was
physically capable of performing the proposed customer assistance technology program, OWCP
cannot be found to have met its burden in this case.6
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to reduce appellant’s
compensation pursuant to 5 U.S.C. § 8113(b).

5

William C. Bush, 40 ECAB 1064 (1989).

6

See L.C., Docket No. 12-972 (issued November 9, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2013 is reversed.
Issued: May 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
A.D., Appellant
and
DEPARTMENT OF THE INTERIOR,
BUREAU OF INDIAN AFFAIRS,
Browning, MT, Employer
__________________________________________

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Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1603
Issued: December 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 19, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ nonmerit decision dated February 19, 2008 and a September 19, 2007 decision
denying the merits of the claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merit and nonmerit decisions in this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a traumatic injury in the performance of duty on July 28, 2006; and (2) whether the
Branch of Hearings and Review properly found that appellant abandoned his request for a
hearing.
FACTUAL HISTORY
On June 29, 2007 appellant, a 52-year-old police officer for the Blackfeet Reservation
filed a CA-1 form, traumatic injury claim and claim for continuation of pay/compensation,

alleging that, on July 28, 2006, in performance of his federal employment, he suffered an injury
in the form of heat stroke, profuse sweating, headache, vomiting, fatigue, muscle cramps and
chills. Evidence submitted to substantiate this claim consisted of a police phone/radio log and
medical reports. The Blackfeet Police log indicated that appellant began his shift on the day in
question at 2:00 p.m., that he notified the dispatcher that he was “out at the shelter” at 4:28 p.m.,
and that he was “at the ER” at 4:39 p.m. Records from the Blackfeet Community Hospital
included a nursing assessment which indicated that appellant was admitted to the hospital on
July 28, 2006 after complaining of “feeling crummy” with slight nausea and diarrhea. The
discharge summary dated July 30, 2006 indicated that appellant was discharged following
treatment for dehydration and uncontrolled diabetes.1
By letter dated August 8, 2007, the Office advised appellant that the evidence submitted
was insufficient to support his claim as he had not described a work incident which caused his
claimed injury of heat stroke. Appellant was also advised that the medical reports he had
submitted did not discuss any work-related incidents causing an injury. He was advised that the
record would be held open for 30 days for submission of further evidence.
Responding to the Office’s letter, appellant submitted a letter dated June 19, 2007 from
Dr. Dale M. Peterson, a neurologist with the Billings Clinic, pertaining to his current treatment.
By decision dated September 19, 2007, the Office denied appellant’s claim on the
grounds that the evidence was insufficient to establish that appellant had sustained an injury as
defined by the Federal Employees’ Compensation Act.
On October 2, 2007 appellant requested an oral hearing before the Branch of Hearings
and Review. The Office granted appellant’s request and notified appellant on December 18,
2007 that a telephonic hearing date had been scheduled for January 28, 2008. Appellant failed
to appear at the telephonic hearing.
By decision dated February 19, 2008, the Branch of Hearings and Review found that
appellant failed to appear at the scheduled telephonic hearing. The hearing representative found
that he had not contacted the Office prior to or subsequent to the scheduled hearing to explain his
failure to appear. Therefore, because of his unexplained failure to appear at the scheduled
hearing, the Branch of Hearings and Review deemed appellant to have abandoned his request for
a hearing.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Act has the burden of establishing the essential
elements of their claim including: the individual is an employee of the United States within the
meaning of the Act; the claim was filed within the applicable time limitation of the Act; an injury
was sustained in the performance of duty as alleged; and, that any disability and/or specific

1

The hospital records were signed by a physician, whose signature is illegible, and by a registered nurse.

2

condition for which compensation is claimed are causally related to the employment injury.
These are the essential elements of each and every compensation claim.2
When an employee claims that he sustained a traumatic injury in the performance of
duty, he must submit sufficient evidence to establish that he experienced a specific event,
incident or exposure occurring at the time, place and in the manner alleged.3 He must also
establish with rationalized medical evidence that such event, incident or exposure caused an
injury.4
ANALYSIS -- ISSUE 1
In the present case, appellant alleged that he sustained heat stroke at work on
July 28, 2006. The Office denied appellant’s claim on the grounds that he had not established
that he sustained a work-related traumatic injury. While the record establishes that appellant
was on duty as a police officer on July 28, 2006, that he began his shift at 2:00 p.m. and that he
went to the Blackfeet Hospital emergency room at 4:39 p.m. with a complaint of “feeling
crummy,” he did not provide the necessary description of his work activities on the day in
question to prima facie establish that the incident or exposure occurred as alleged. Appellant
did not describe for the Office his work activities during the shift, the temperatures he was
exposed to, or any explanation of how he would have sustained a heat stroke during his work
shift.
Appellant submitted records from Blackfeet Hospital; this evidence provides a discharge
diagnosis of dehydration and uncontrolled diabetes but does not address any specific history.
Furthermore these medical records do not describe, with detailed rationale, the relationship
between the alleged dehydration and an employment-related incident.5 These records therefore
do not establish that appellant sustained an injury, as alleged on July 28, 2006.
Additionally, appellant submitted a letter dated June 19, 2007 from Dr. Dale M. Peterson.
This letter diagnoses appellant, a year following the alleged injury, with anxiety and visual field
loss attributable to a small stroke, not heat stroke, and therefore bears no rational relationship to
appellant’s claim. Accordingly, the Board finds that appellant has not established a prima facie
claim of traumatic injury in the performance of duty on June 28, 2006.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

The Office’s regulations define traumatic injury at 20 C.F.R. § 10.5(ee) as “… a condition of the body caused by
a specific event or incident, or series of events or incidents, within a single workday or shift. 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 the body affected.”
4

See E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Arthur C. Hamer, 1 ECAB 62 (1947).

5

Health care providers, such as nurses, are not physicians under the Act. Thus, their opinions on causal
relationship do not constitute rationalized medical opinion. 5 U.S.C. § 8101(2); see also Jerre R. Rinehart, 45
ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

3

LEGAL PRECEDENT -- ISSUE 2
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.6 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.7 The Office has the burden of
proving that it mailed to appellant and his representative a notice of a scheduled hearing.8
The authority governing abandonment of hearings rests with the Office’s procedure
manual. Chapter 2.1601.6(e) of the procedure manual, dated January 1999, provides as follows:
“e. Abandonment of Hearing Requests.
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the DO [district Office].
“(2) However, in any case where a request for postponement has been received,
regardless of any failure to appear for the hearing, H&R should advise the
claimant that such a request has the effect of converting the format from an oral
hearing to a review of the written record.”
This course of action is correct even if H&R can advise the claimant far enough in
advance of the hearing that the request is not approved and that the claimant is, therefore,
expected to attend the hearing and the claimant does not attend.9

6

20 C.F.R. § 10.616(a).

7

20 C.F.R. § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant
and the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a)
(January 1999).
8

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(a) (January 1999).

4

ANALYSIS
The Office issued a decision on September 19, 2007 denying the claim. Appellant
requested a hearing before an Office hearing representative regarding this matter on October 2,
2007, and it was scheduled for January 28, 2008.
The record shows that the Office mailed appropriate notice to appellant at his last known
address. Furthermore, the record shows: appellant did not request postponement; he failed to
appear at the scheduled hearing; and, he failed to provide any notification for such failure within
10 days of the scheduled date of the hearing. As this meets the conditions for abandonment
specified in the Office procedure manual, the Office properly found that appellant abandoned his
request for an oral hearing before an Office hearing representative.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury on July 28, 2006 and that the Branch of Hearings and Review
properly concluded that appellant abandoned his request for a telephonic oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2008 and September 19, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5