United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Chester, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1047
Issued: October 25, 2016

Case Submitted on the Record

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

JURISDICTION
On April 22, 2016 appellant filed a timely appeal from a December 9, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective March 23, 2015 as she had no further
disability or need for medical treatment due to her November 10, 2005 employment injury;
(2) whether she met her burden of proof to establish that she had continuing employment-related
disability subsequent to March 23, 2015; and (3) whether appellant sustained a traumatic brain
injury and/or postconcussion syndrome causally related to her November 10, 2005 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 21, 2005 appellant, then a 37-year-old postmaster, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2005 she sustained multiple injuries after she
fell down stairs. She stopped work on November 11, 2005 and did not return. OWCP accepted
the claim for a closed fracture of the nasal bone, vertigo, a broken tooth, a laceration of the liver,
an open lip wound, a left black eye, and a lesion of the ulnar nerve (complex regional pain
syndrome) of the right hand. It paid appellant compensation for total disability beginning
February 19, 2006.
Appellant was admitted to the hospital following her injury from November 10
to 17, 2005. In a November 17, 2005 discharge summary, Dr. Jay A. Yelon, an osteopath, noted
that appellant fell down a flight of 10 to 14 stairs and that a witness indicated that she lost
consciousness or was unresponsive for an unknown duration. He noted that appellant
experienced vertigo and headaches at the hospital. A magnetic resonance imaging (MRI) scan of
the brain dated November 15, 2005 was normal. Dr. Yelon diagnosed a fall, liver laceration, oral
trauma, and benign positional vertigo.
Dr. Yelon, on January 9, 2006, advised that he had treated appellant at the hospital on
November 10, 2005 after she fell down a flight of stairs sustaining a grade III liver injury, facial
fractures, dental fractures, and a mild traumatic brain injury. He found that she was permanently
disabled and referred her to a “neuropsychologist for her postconcussive syndrome.”
In a report dated November 10, 2006, Dr. Andrew Decker, a Board-certified neurologist
and OWCP referral physician, diagnosed complex regional pain syndrome of the right hand,
postconcussion syndrome with “postconcussion headaches and problems with memory and
attention as well as altered personality,” postconcussion vertigo, insomnia, difficulties with depth
perception, small disc herniations at C3-4, and annual tears at L4-5 and L5-S1. He attributed the
diagnosed conditions to the November 10, 2005 employment injury and found that appellant was
totally disabled.
On March 3, 2008 Dr. Decker reevaluated appellant at the request of OWCP. He
diagnosed complex regional pain syndrome, postconcussion syndrome including headaches and
difficulty with memory and attention, postconcussion vertigo, insomnia, and continued neck and
back pain due to her November 10, 2005 work injury. Dr. Decker opined that appellant had
reached maximum medical improvement and was permanently disabled.
Appellant continued to receive treatment following her injury. An October 16, 2009 MRI
scan of the brain showed a focal cystic cavitation and a small amount of gliosis unchanged since
a prior study. A November 17, 2013 computerized tomography (CT) scan of the brain showed
no abnormality. A December 18, 2013 MRI scan study of the brain showed no abnormal
decreased white matter but indicated that 70 percent of mild traumatic brain injuries did not
show decreased white matter. The study further found “[a]nterior corpus callosal focal
encephalomalacia and gliosis, possibly posttraumatic in nature.”
On January 16, 2014 Dr. Robert J. Friedman, an attending Board-certified neurologist,
diagnosed a history of a mild traumatic brain injury, post-traumatic headaches with some

2

features of migraines, and a sleep disturbance. He noted that a brain MRI scan study showed “a
small cystic area in the anterior corpus callosum,” but was otherwise normal. Dr. Friedman
recommended Botox injections to treat the headaches. In a March 19, 2014 status report, he
noted that the Botox injections did not provide relief. On October 1, 2014 Dr. Friedman
discussed appellant’s continued “intractable headaches” that were not helped with Botox
injections. He indicated that he should rule out a traumatic brain injury and diagnosed posttraumatic headaches with features of a migraine, chronic migraine, and sleep disturbance.
The Office of Inspector General (OIG) with the employing establishment conducted an
investigation from July 29 to December 6, 2014. In an investigative report dated December 10,
2014, an investigator related that appellant performed physical activities during this time without
evidence of pain, including “bending, reaching, lifting, and driving.” The investigator related,
“Specifically, [appellant] was videotaped shopping, visiting a country club on several occasions,
going to a horse stable, participating in leisure activities, and carrying a large Christmas tree.”
OWCP, in a memorandum to the file, described the contents of photographic and video
evidence obtained by the OIG’s office. It noted that the video showed appellant driving her car,
carrying bags from a supermarket, pumping gas, and loading and unloading a Christmas tree.
On January 5, 2015 OWCP referred appellant to Dr. Melvin Grossman, a Board-certified
neurologist, for a second opinion examination. In its referral letter to appellant, it advised her
that it was sending surveillance video and photographs to the physician.
In a report dated January 21, 2015, Dr. Grossman reviewed the history of injury and the
medical record. On examination he found no postural dizziness with movement of the head and
neck, no antalgia, tenderness of the right neck but full motion, a negative straight leg raise, and
blunted sensation to vibration of the right knee. Dr. Grossman advised that appellant had no
evidence of a cervical or lumbar condition based on the neurological examination. He opined
that the November 17, 2001 CT scan of the brain and December 8, 2013 MRI scan study of the
brain were normal and that a July 2014 electromyogram/nerve conduction velocity (EMG/NCV)
study showed possible left ulnar neuropathy. Dr. Grossman determined that the surveillance
video showed that appellant had no difficulties using her arms, hands, legs, and feet or with
balance, but noted that she had not complained of cervical or lumbar difficulties on examination.
He asserted that the surveillance video would neither “include or disclude the possibility of
migraines or vertigo.” Dr. Grossman indicated that appellant’s current complaints of vertigo and
headaches were subjective in nature and had “not resolved based on the information at hand.”
He diagnosed chronic daily headaches and vertigo without objective correlation and noted that
she only occasionally took medication for her headaches. Dr. Grossman opined that appellant
could work as a postmaster or in another sedentary or light-duty capacity, but that he was “not
certain if that would trigger headaches or vertigo if some of the vertigo has been postural.” He
recommended vocational rehabilitation to see if activity caused either headaches or vertigo and
an evaluation by an otolaryngologist with further objective testing to confirm whether she
experienced vertigo. Dr. Grossman found no work restrictions based on the normal neurological
examination. He concluded, “The migraine headaches are extremely subjective as is vertigo and
it [is] very hard to come to any further statements in terms of the lack of objectivity.” In a work
restriction evaluation dated January 21, 2015, Dr. Grossman found that appellant could perform

3

her usual position and provided limitations of no twisting, bending/stooping, or climbing, and no
lifting more than 10 to 20 pounds.
OWCP notified appellant on February 9, 2015 of its proposed termination of her wageloss and medical benefits as she had no residuals of her accepted employment injury.
In a report dated February 18, 2015, Dr. Friedman related that appellant “has posttraumatic headaches that are a direct result of her November 10, 2005 work injury. Appellant
has a postconcussion syndrome/mild traumatic brain injury that is related to that injury. She may
have depression that needs to be treated.” Dr. Friedman opined that appellant was unable to
return to her usual employment.
Dr. Janet Tamai, an osteopath, evaluated appellant on March 2, 2015 for headaches,
nausea, arm pain, and vertigo. She obtained a history of her experiencing “multiple medical and
neurological problems that resulted from a fall down a flight of stairs at her workplace in
November 2005.” Dr. Tamai noted that appellant had a history of syncope and reviewed her
complaints of severe headaches, light sensitivity, a painful right arm and hand, vertigo, and
migraines treated with medication. On examination she found sensitivity to cold on the right
side and 4/5 muscle strength of the right hand. Dr. Tamai diagnosed a traumatic brain injury,
concussion syndrome, panic attacks, complex regional pain syndrome of the right upper
extremity, migraines, insomnia, and vertigo of central origin. She reviewed the December 18,
2013 brain MRI scan study and its finding of post-traumatic anterior corpus callosal focal
encephalomalacia and gliosis. Dr. Tamai attributed appellant’s condition to her accepted
employment injury and advised that she was totally disabled from employment.
Appellant, on March 9, 2015, challenged the proposed termination of her compensation.
She noted that she had consistently sought medical treatment subsequent to her fall in
November 2005.
In a March 23, 2015 decision, OWCP terminated appellant’s wage-loss and medical
benefits effective that date. It found that Dr. Grossman’s report represented the weight of the
evidence and established that she had no further disability or residuals of her accepted conditions
arising from the November 10, 2005 work injury. OWCP also indicated that reports from
appellant’s physicians did not establish any other injury-related conditions.
On May 1, 2015 Dr. Stephanie Renfrow, a clinical psychologist, discussed the difficulties
with appellant’s emotions and cognition subsequent to a November 10, 2005 fall. She reviewed
appellant’s history of a fall down a flight of stairs on November 10, 2005 and subsequent
hospitalization, noting that appellant relearned walking, talking, and driving over the course of
several months. Dr. Renfrow indicated that appellant and her husband divorced and her daughter
had adjustment issues as a result of appellant’s impairment from her brain injury. Following
testing, she opined that appellant “most likely suffers from mild neurocognitive impairment
resulting from a head injury accrued as a result of her accident on November 10, 2005.…”
Dr. Renfrow diagnosed a mild neurocognitive disorder due to a traumatic brain injury and
recurrent, severe major depressive disorder with anxious distress.

4

On May 29, 2015 OWCP noted that appellant had requested a copy of the surveillance
video. It provided her with a copy on June 10, 2015.
Dr. Tamai, in an August 6, 2015 report, discussed appellant’s history of falling down a
flight of concrete stairs on November 10, 2005, resulting in hospitalization due to a lacerated
liver, facial and dental fractures, and a mild traumatic brain injury. Following her injury
appellant could not walk due to vertigo. Dr. Tamai related that brain MRI scan studies in
October 2009 and December 2013 were abnormal. She reviewed the surveillance and found that
it did “not indicate any physical activities which [appellant] has claimed she cannot perform and
does not indicate [she] has misrepresented her medical conditions.” Dr. Tamai further opined
that the video evidence was irrelevant to appellant’s psychological disability. She advised, “The
differential movement of the skull and the brain when [appellant’s] head struck the concrete
stairs resulted in direct brain injury due to diffuse axonal shearing and contusion.” Dr. Tamai
related:
“Traumatic brain injury occurs when an external mechanical force causes brain
dysfunction. [Appellant] sustained a closed head injury when she fell down the
stairs at work; the violent blow to her head striking the concrete stairs caused a
traumatic brain injury. This is what caused a loss of consciousness for several
hours. [Appellant’s] traumatic brain injury was diagnosed immediately after the
fall during her hospitalization.
“Brain injuries do not heal like other injuries. Secondary neurological damage
does not all occur immediately at the moment of impact but evolves afterward.
Recovery is a functional recovery, based on mechanisms that remain uncertain
and no two brain injuries are alike.”
Dr. Tamai advised that appellant developed white matter lesions, encephalomalacia, and
gliosis as demonstrated on MRI scan studies due to her November 11, 2005 injury. She noted
that encephalomalacia and gliosis caused brain damage and that symptoms “include lack of
coordination, vertigo, and headache.” Dr. Tamai further diagnosed postconcussion syndrome
causing symptoms that included headaches, lack of concentration, a sleep disorder, and vertigo
due to the November 10, 2005 employment injury. She noted that appellant received a diagnosis
of vertigo “immediately after the fall during her hospitalization.” Dr. Tamai additionally
diagnosed post-traumatic headaches, syncope, and major depressive disorder as a result of her
November 2005 fall. She concluded:
“[Appellant] suffered a diffuse axonal injury as a result of the fall on
November 10, 2005. The injury is a result of the brain moving back and forth in
the skull as a result of acceleration and deceleration. When acceleration or
deceleration causes the brain to move within the skull, axons, the parts of the
nerve cells that allow neurons to send messages between them are disrupted. As
tissue slides over tissue, a shearing injury occurs.”
Dr. Tamai advised that losing consciousness was the primary symptom of a diffuse axonal
injury. She opined that appellant was unable to work as a postmaster.

5

On September 21, 2015 appellant requested reconsideration. In a September 14, 2015
statement, she argued that OWCP posed leading questions to Dr. Grossman when it asked if it
was more medically probable that her ongoing symptoms were due to the accepted conditions or
the progression of a preexisting problem. Appellant also contended that OWCP submitted the
surveillance video to Dr. Grossman without informing her until its termination decision or
providing her with a copy of the investigative report and video. She noted that the copy she
received upon request did not indicate whether it was edited. Appellant contended that
Dr. Grossman found that she still had residuals of her vertigo and did not address her ulnar nerve
lesion. She asserted that his report was equivocal and not reasoned. Appellant argued that she
submitted sufficient evidence to outweigh his opinion.
By decision dated December 9, 2015, OWCP denied modification of its March 23, 2015
decision. It found that Dr. Renfrow’s report was not rationalized and referred to problems with
family members. OWCP further found that neither Dr. Renfrow nor Dr. Tamai explained how
the surveillance video confirmed a lack of difficulty with cognition.
On appeal appellant questions OWCP’s finding that the report from Dr. Renfrow was of
little probative value and that her emotional condition resulted from family difficulties. She
maintains that the opinion of Dr. Tamai is entitled to more weight than the opinion of
Dr. Grossman, who conducted a cursory examination. Appellant also notes that, contrary to
Dr. Grossman’s finding, she took multiple medications for migraines over the years.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a closed fracture of the nasal bone, vertigo, a
broken tooth, a laceration of the liver, an open lip wound, a left black eye, and a lesion of the
ulnar nerve, or complex regional pain syndrome, of the right hand as a result of a fall down stairs
2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

5

Id.

6

on November 10, 2005. She stopped work on November 10, 2005 and received compensation
from OWCP. In a decision dated March 23, 2015, OWCP terminated appellant’s compensation
effective that date after finding that the opinion of Dr. Grossman, who provided a second opinion
examination, established that she had no further disability or residuals arising from the
November 10, 2005 employment injury.
The Board finds that Dr. Grossman’s opinion is insufficient to support the termination of
either appellant’s wage-loss compensation or authorization for medical benefits. In his report
dated January 21, 2015, Dr. Grossman found no evidence of a cervical or lumbar condition based
on the neurological examination and that the surveillance video established that she had no
difficulty using her hands, arms, legs, and feet. He found no objective evidence supporting
appellant’s complaints of headaches and vertigo. Dr. Grossman diagnosed chronic daily
headaches and vertigo without objective support. He further indicated that appellant’s headaches
and vertigo had “not resolved based on the information at hand” and that the surveillance video
neither proved nor disproved “the possibility of migraines or vertigo.” Dr. Grossman advised
that she could work in her usual employment or other sedentary or light duty, but opined that
such activity might trigger either the headaches or vertigo. He recommended an evaluation by an
otolaryngologist and objective testing to further investigate the vertigo and a referral for
vocational rehabilitation to see if activity resulted in headaches or vertigo. Dr. Grossman’s
report is internally inconsistent as he found that appellant had no objective evidence of an
accepted condition but further determined that work activity might trigger the accepted condition
of vertigo. Additionally, he recommended further diagnostic testing to corroborate the vertigo.
Dr. Grossman’s opinion regarding whether appellant had any continuing disability or need for
medical treatment due to her November 10, 2005 employment injury is thus equivocal in nature
and not of a sufficient degree of medical certainty to support a termination of compensation.6
OWCP did not ask Dr. Grossman to clarify his report.
The remaining evidence received by OWCP prior to its March 23, 2015 termination is
insufficient to meet its burden of proof. Instead, the evidence supports that appellant had
residuals from her work injury. Dr. Friedman, in a report dated February 18, 2015, found that
appellant was unable to return to work as a result of her November 10, 2005 employment injury.
On March 2, 2015 Dr. Tamai diagnosed multiple conditions, including vertigo and complex
regional pain syndrome of the right upper extremity as a result of appellant’s work injury. She
opined that appellant was totally disabled.7 The Board, consequently, finds that OWCP failed to
meet its burden of proof to terminate appellant’s wage-loss compensation and authorization for
medical treatment.8

6

See A.H., Docket No. 15-0557 (issued May 8, 2015); P.B., Docket No. 13-0636 (issued November 14, 2013).

7

As appellant’s argument that she was unaware of the surveillance video until OWCP’s termination of her
compensation, the Board notes OWCP disclosed the existence of the video in its January 5, 2015 letter referring her
to Dr. Grossman. There is no evidence of wrongdoing on the part of OWCP with regard to the video. See N.M.,
Docket No. 15-1553 (issued March 2, 2016); R.B., Docket No. 15-0420 (issued August 10, 2015).
8

In view of the Board’s disposition of the termination of appellant’s compensation, the issue of whether she has
established that she had continuing employment-related disability subsequent to March 23, 2015 issue 2, is moot.

7

LEGAL PRECEDENT -- ISSUE 3
Appellant bears the burden of proof to establish that a condition not accepted or approved
by OWCP is causally related to an employment injury.9 Causal relationship is a medical issue,
and the medical evidence generally required to establish causal relationship is rationalized
medical opinion evidence.10 The opinion of the physician must be based on a complete factual
and medical background of the claimant,11 must be one of reasonable medical certainty12
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.13
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.14 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.15
ANALYSIS -- ISSUE 3
Appellant received treatment in the hospital following her November 10, 2005 fall from
Dr. Yelon. On January 9, 2006 Dr. Yelon diagnosed a grade III liver injury, facial fractures,
dental fractures, and a mild traumatic brain injury. He further found that she had vertigo
“presumably secondary to her traumatic brain injury.” Dr. Yelon attributed the conditions to
appellant’s November 10, 2005 work injury and advised that she was permanently disabled from
employment. OWCP accepted appellant’s claim for a closed fracture of the nasal bone, vertigo,
a broken tooth, a laceration of the liver, an open lip wound, a left black eye, and a lesion of the
ulnar nerve of the right hand.
The Board finds that the case is not in posture for decision regarding whether appellant’s
claim should be expanded to include a traumatic brain injury or postconcussion syndrome.
Appellant submitted medical evidence from Dr. Friedman, Dr. Renfrow, and Dr. Tamai
supporting that she sustained additional conditions due to her work injury. The evidence from
OWCP’s physician, Dr. Decker, also supports additional work-related conditions. In reports
dated November 10, 2006 and March 3, 2008, Dr. Decker found that appellant sustained, in
addition to the accepted conditions, postconcussion syndrome causing headaches and difficulty
with attention and memory.

9

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

10

John J. Montoya, 54 ECAB 306 (2003).

11

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

12

Supra note 10.

13

Judy C. Rogers, 54 ECAB 693 (2003).

14

Jimmy A. Hammons, 51 ECAB 219 (1999).

15

20 C.F.R. § 10.121.

8

Dr. Friedman, on February 18, 2015, diagnosed post-traumatic headaches and
postconcussion syndrome/mild traumatic brain injury due to her November 10, 2005 injury. In a
report dated March 2, 2015, Dr. Tamai diagnosed a traumatic brain injury, concussion syndrome,
panic attacks, migraines, insomnia, as well as vertigo and complex regional pain syndrome of the
right upper extremity. She advised that a December 18, 2013 MRI scan study of appellant’s
brain showed post-traumatic changes. Dr. Tamai attributed the diagnosed conditions to the work
injury.
Dr. Renfrow, on May 1, 2015, performed psychological testing and found a probable
mild neurocognitive impairment from the November 10, 2005 head injury. She also diagnosed
major depressive disorder with anxiety.
On August 6, 2015 Dr. Tamai discussed appellant’s history of falling down concrete
stairs on November 10, 2005 and subsequent hospitalization. She advised that the October 2009
and December 2013 brain MRI scan studies showed abnormal white matter lesions,
encephalomalacia, and gliosis. Dr. Tamai reviewed the surveillance video and found that it did
not show any misrepresentation of a medical condition. She explained the mechanism by which
appellant striking her head on the stairs caused diffuse axonal shearing and contusion and a
“direct brain injury.” Dr. Tamai noted that appellant’s traumatic brain injury was diagnosed
immediately after her fall and that she experienced vertigo while in the hospital for her fall. She
also diagnosed postconcussion syndrome causing headaches, reduced concentration, a sleep
disorder, and vertigo as a result of the November 10, 2005 work injury.
As noted, proceedings under FECA are not adversarial in nature and while appellant has
the burden of establishing entitlement to compensation, OWCP shares responsibility in the
development of the evidence to see that justice is done.16 Dr. Tamai, Dr. Renfrow, and
Dr. Friedman diagnosed additional conditions resulting from the November 10, 2005 work
injury, including headaches, problems with cognition, a traumatic brain injury, and
postconcussion syndrome. Although their reports are insufficiently rationalized to meet
appellant’s burden of proof, they stand uncontroverted in the record and raise an inference of
causal relationship sufficient to require further development by OWCP.17 Accordingly, the
Board finds that the case must be remanded to OWCP. On remand, it should further develop the
medical record to determine whether appellant sustained additional conditions causally related to
her accepted employment injury. Following this and such further development as OWCP deems
necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits effective March 23, 2015 as she had no further disability or need for
medical treatment due to her November 10, 2005 employment injury. The Board further finds
that the case is not in posture for decision regarding whether she sustained a traumatic brain

16

Phillip L. Barnes, 55 ECAB 426 (2004).

17

Id.; see also C.V., Docket No. 14-1940 (issued May 26, 2015).

9

injury and/or postconcussion syndrome causally related to her November 10, 2005 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT December 9, 2015 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Estate of M.S., deceased, Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
BRONX VETERANS MEDICAL CENTER,
Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1913
Issued: February 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 23, 2013 the employee filed a timely appeal from a March 7, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration.
Because more than 180 days elapsed from the most recent merit decision dated August 4, 2011
to the filing of this appeal and pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the
case.2

1
2

5 U.S.C. § 8101 et seq.

An appeal of final adverse OWCP decisions issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied the employee’s request for further merit
review of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 19, 2004 the employee, then a 53-year-old nurse, filed a traumatic injury
claim alleging that on that day she injured herself after a slip and fall on a wet floor. OWCP
accepted the conditions of a lumbosacral sprain; left shoulder strain; right hip strain; and right
hand sprain and paid benefits. By decision dated January 21, 2011, it reduced the employee’s
compensation benefits to zero based on her ability to earn wages in a selected position as a nurse
consultant. Determinative weight was accorded to the opinion of Dr. Martin Barschi, a Boardcertified orthopedic surgeon, serving as the impartial medical examiner.
Appellant’s former counsel, Alan Shapiro, Esquire, requested a telephonic hearing, which
was held on May 10, 2011. By decision dated August 4, 2011, an OWCP hearing representative
affirmed the January 21, 2011 wage-earning capacity decision. The hearing representative found
that Dr. Barschi took into account work restrictions due to all of appellant’s diagnoses at the time
of his examination, including the nonwork-related preexisting right shoulder condition and the
low back condition that was aggravated by the work injury. Dr. Barschi found that appellant’s
other conditions had resolved. OWCP’s hearing representative noted that any subsequently
acquired conditions unrelated to the accepted injury were not considered and were properly
excluded from the wage-earning capacity determination. He also found that the reports from
Dr. Deborah Eisen, a Board-certified family practitioner and appellant’s treating physician, dated
March 15, 2011, December 2010 and a similar undated report, which opined that the claim
should be expanded to include several other medical conditions related to the work injury, were
insufficient to overcome the weight of Dr. Barschi’s impartial opinion or to create a new conflict
in medical opinion.
On September 28, 2011 Mr. Shapiro requested reconsideration, citing the decision of
M.V., Docket 10-1642 (issued June 15, 2011).3 No new evidence was submitted.
By decision dated January 11, 2012, OWCP denied reconsideration on the grounds that
the employee’s September 28, 2011 request did not provide new, relevant evidence or legal
argument.
In a July 26, 2012 letter, received by OWCP on July 27, 2012, the employee’s current
counsel, Thomas S. Harkins, Esq., requested reconsideration.4 He argued the loss of wageearning capacity decision was improper as OWCP had not accepted as compensable all injuries
and conditions the employee had sustained as a result of the work injury and that she was not
medically capable of performing the duties of the selected nurse consultant position. In support
3

Mr. Shapiro did not discuss this cited Board decision or explain how it was applicable to the employee’s case.

4

On February 10, 2012 the employee authorized Mr. Harkins, to serve as her counsel of record. She died on
February 23, 2012.

2

of his assertion, Mr. Harkins submitted an undated report from Dr. Eisen previously of record
along with medical reports dated May 14, 2005 through March 15, 2011, also previously of
record.
Counsel asserted in letters dated December 8, 2012 and February 12, 2013 that OWCP
received his reconsideration request on July 27, 2012 and failed to timely issue a decision within
90 days pursuant to its procedures.
By decision dated March 7, 2013, OWCP denied reconsideration. It stated that while
counsel properly noted that its procedures require decisions on reconsideration be provided
within 90 days of receipt, appellant’s appeal rights were not jeopardized by the delay.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,5
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
When reviewing an OWCP decision denying a merit review, the function of the Board is
to determine whether OWCP properly applied the standards set forth at section 10.606(b)(2) to
the claimant’s application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
By decision dated August 4, 2011, an OWCP hearing representative affirmed a
January 21, 2011 wage-earning capacity decision finding that the employee was medically
capable of performing the selected position of nurse consultant. By decision dated January 11,
2012, OWCP denied review of the merits of the employee’s reconsideration request, as there had
been no new relevant evidence submitted.
In his July 26, 2012 reconsideration request, counsel alleged that OWCP failed to issue
the January 11, 2012 decision within 90 days of the previous request for reconsideration. The
Board notes however that appellant’s rights to seek further review were not prejudiced by this
delay. The last merit review in this case was conducted by OWCP on August 4, 2011. A request
5

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(1)-(2).

7

Id. at § 10.607(a).

8

Annette Louise, 54 ECAB 783 (2003).

3

for reconsideration was filed on September 28, 2011. A nonmerit review was conducted on
January 11, 2012. By the time the employee’s counsel requested reconsideration on July 26,
2012, the Board no longer had jurisdiction to review the August 4, 2011 merit decision. He
could however pursue modification of the wage-earning capacity determination at any time, by
requesting that OWCP review new evidence or argument in support of a modification request.9
The employee’s counsel did not otherwise contend that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted.
Counsel also did not advance a new and relevant legal argument. He contended that the
employee had other medical conditions, besides those accepted by OWCP, which were causally
related to the work injury and which were not taken into account in the wage-earning capacity
decision. This argument was previously set forth and addressed by OWCP in its January 11,
2012 decision. In support of his argument, counsel submitted medical evidence previously of
record. The Board has held that the submission of evidence which is duplicative or cumulative
in nature is insufficient to warrant reopening a claim for merit review.10
The Board accordingly finds that the employee did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). The employee did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP or constitute relevant and pertinent evidence not previously considered. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law. For the
reasons set forth above, his contention lacks merit. Furthermore, as noted, the Board lacks
jurisdiction to review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied the employee’s request to reopen her case
for further review of the merits under 5 U.S.C. § 8128(a).

9

See N.V., Docket No. 13-1533 (issued December 18, 2013).

10

Denis M. Dupor, 51 ECAB 482 (2000).

4

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Andover, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0100
Issued: June 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 10, 2019 appellant filed a timely appeal from an April 19, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical spine
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 54-year-old sales services/distribution associate,
filed an occupational disease claim (Form CA-2) alleging that she sustained a chronic cervical
strain and a bulging disc in her neck due to factors of her federal employment. She noted that she
1

5 U.S.C. § 8101 et seq.

first became aware of her condition and realized that it was caused or aggravated by her federal
employment on September 22, 2017. Appellant explained that the physical demands on her upper
body and neck were due to the overexertion and repetitive motions of bending, reaching, and lifting
hampers to remove large volumes of mail and to perform hundreds of deliveries daily while in the
performance of duty. She also asserted that she had no prior symptoms until she was placed into
her current position on September 18, 2017. Appellant did not stop work.
In a February 6, 2018 statement, appellant related that she was reassigned to a new position
consisting of both distribution and retail window duties. She described the work she performed
from September 18 to 23, 2017 and explained that she began to experience fatigue, distortion,
slight immobility of her neck, and pain in her neck and head. Appellant underwent an x-ray and
magnetic resonance imaging (MRI) scan and was referred to physical therapy by her doctor. As
of February 6, 2018, she asserted that she still experienced headaches and stiffness.
In a February 28, 2018 statement, L.S., appellant’s postmaster, referred to an alleged
October 1, 2017 Facebook post by appellant in which she stated that her neck pain from eight years
prior was aggravated after work on September 18, 2017. She noted that appellant worked three
and a half days before she claimed her neck injuries. L.S. also referenced the fact that appellant
lived on acreage with horses and surmised that appellant must lift hay bales to feed her horses and
perform other physical activities to maintain her residence and horses.
Appellant provided a position description of her duties as a sales services/distribution
associate.
In a development letter dated March 8, 2018, OWCP advised appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion to provide further details regarding the
activities she performed outside of her federal employment, including the physical activity
required to take care of her horses. OWCP also requested a narrative medical report from
appellant’s treating physician, containing a detailed description of findings and diagnoses,
explaining how her work activities caused, contributed to, or aggravated her medical conditions.
In a separate development letter of even date, it requested that the employing establishment provide
additional information regarding appellant’s occupational disease claim, including comments from
a knowledgeable supervisor regarding the accuracy of appellant’s statements, and a copy of
appellant’s position description noting the physical requirements of her position. OWCP afforded
both parties 30 days to respond.
In a September 25, 2017 medical report, Dr. Stephen Lemons, Board-certified in family
medicine, examined appellant after experiencing neck pain and stiffness for the past three days.
Appellant denied any previous injuries and informed Dr. Lemons that she was performing more
lifting at work. In a diagnostic report of even date, Dr. Thomas Cox, a Board-certified radiologist,
performed an x-ray of appellant’s cervical spine and found straightening and reversing of the
cervical lordosis. Based on the x-ray and his examination, Dr. Lemons diagnosed neck stiffness
and cervical disc disease.

2

In a September 28, 2017 medical report, Dr. Lemons saw appellant for a follow-up
appointment and noted that an injection helped with her neck stiffness for approximately 12 hours.
He diagnosed chronic neck pain, anxiety, and depression and referred her to physical therapy.
In an October 16, 2017 diagnostic report, Dr. Darren Orme, a Board-certified radiologist,
performed an MRI scan of appellant’s cervical spine. Upon examination, he found multilevel
cervical spondylosis and noted the presence of a mild spinal canal, as well as moderate foraminal
narrowing at C5-C6 and C6-C7. Dr. Orme also noted straightening and reversal of the cervical
lordosis. In an October 17, 2017 medical report, Dr. Lemons discussed the results of appellant’s
MRI scan with her and noted that she believed that she was about 50 percent better as a result of
attending physical therapy. He diagnosed cervical spinal stenosis, foraminal stenosis of the
cervical region, a cervical strain, and degenerative arthritis of the cervical spine.
In an October 20, 2017 letter, Dr. Lemons diagnosed spinal stenosis, bilateral foraminal
stenosis, cervical degenerative disc disease, and chronic cervical strain. He recommended that she
be placed on permanent light duty and indicated that he was referring appellant to physical therapy
three times per week.
In an October 30, 2017 medical report, appellant informed Dr. Lemons that she felt
between 50 and 75 percent improved at times with physical therapy. Dr. Lemons diagnosed
cervical spinal stenosis, foraminal stenosis of the cervical region, degenerative arthritis of the
cervical spine, and a history of phlebitis. He recommended that appellant return to work with
restrictions and support socks.
In a November 23, 2017 medical report, Dr. Lemons reported that appellant was currently
working four hours per day. Appellant explained that she was tired and stiff when she gets home,
but is doing well with stretches and exercises.
In a January 25, 2018 medical report, Dr. Lemons recorded that appellant was now working
six hours per day and noted that she was still experiencing pain in her neck, shoulders, and head.
He provided a diagnosis of cervical disc disease and a cervical strain and opined that appellant
would benefit from physical therapy.
Appellant submitted multiple light-duty restriction requests dated from October 30, 2017
to February 26, 2018 in which Dr. Lemons requested that she be placed on light-duty restrictions
from November 13, 2017 to August 26, 2018.
In a February 27, 2018 letter, Dr. Lemons opined that, when appellant started her new
position on September 18, 2017, she aggravated her neck. He provided that he had seen her
multiple times since then to provide treatment for her neck pain.
In a March 20, 2018 letter, Dr. Lemons reported appellant’s history of neck pain after
beginning her new position on September 18, 2017. He opined that the repetitive motions and
physical exertions required by that position caused a decrease in active tolerance, endurance
deficits, pain limiting functions, range of motion, and strength deficits. Dr. Lemons reviewed
pictures of appellant’s work facility and noted that she had worked for the post office since 1984
and did not have any neck problems until she began her new position. He also referenced
appellant’s x-rays and MRI scans to support his findings.
3

Appellant submitted multiple physical therapy notes dated from October 2, 2017 to
March 21, 2018 in which Molly Roepke, a physical therapist, provided updates of treatment
relating to her neck pain.
In response to OWCP’s development questionnaire, appellant submitted a March 22, 2018
statement in which she detailed the requirements of her new position, including pushing large mail
containers and hampers, bending over to retrieve mail, and loading other equipment and mail
numerous times a day. She described her extracurricular activities, including discontinued yoga
and painting classes, as well as walking, family activities, and caring for her horse. Appellant
asserted that she had never fallen off her horse and had not ridden it in approximately two years.
Her involvement with the horse consisted of approximately 30 minutes of brushing and feeding it
one-pound cans of grain. Bales of hay were delivered by an outside service. In a separate
statement dated March 23, 2018, appellant’s postmaster submitted a description of appellant’s
duties as well as her duties prior to September 18, 2017.
In an April 10, 2018 letter, Dr. Lemons provided a history of appellant’s work beginning
September 18, 2017, as well as his treatment of appellant for her neck pain. He opined that the
increased activity, repetitive motions, and physical exertion, which included lifting, pushing,
pulling, bending, and stooping caused appellant’s neck problems.
In a May 17, 2018 letter, an OWCP claims examiner requested that Dr. Lemons provide a
response diagnosing a specific cervical condition and explain how appellant’s work activities
caused, contributed, or aggravated her condition. She also requested that Dr. Lemons distinguish
between the effects of appellant’s federal work and the natural progression of any preexisting or
underlying cervical conditions. The claims examiner requested a response within 30 days.
By decision dated June 18, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that her diagnosed condition was
causally related to the accepted factors of her federal employment. It explained that she failed to
submit a physician’s opinion as to how her employment activities caused, contributed to, or
aggravated her cervical conditions.
On July 10, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on November 5, 2018. Appellant detailed her history of
employment duties and neck pain she experienced in relation to her duties and asserted that her
new position required her to perform more heavy labor. She provided testimony regarding the
history of treatment for her neck pain beginning in September 2017. The hearing representative
advised appellant of the medical evidence necessary in order to approve her claim and held the
case record open for 30 days for the submission of additional evidence.
OWCP subsequently received a November 2, 2018 medical report, wherein Dr. Aly
Gadalla, Board-certified in internal medicine, provided a history of appellant’s complaints of neck
pain and numbness in her arms due to her employment duties and referenced her treatment related
to her complaints. On evaluation she opined that appellant’s actions of repeatedly lifting and
delivering heavy boxes over time caused her cervical disc to shift and pinch the adjacent nerve to

4

the spine. Dr. Gadalla recommended that appellant would need pain management for her
aggravated cervical disc degeneration and aggravated cervical radiculopathy. On review of
appellant’s medical records she diagnosed cervical disc disease, cervical strain, bilateral foraminal
stenosis, and cervical spondylosis. Dr. Gadalla explained that, even though cervical disc
degeneration can be caused over time by aging, trauma and overuse can significantly increase the
level of damage to the cervical spine. She reasoned that the repetitive job duties appellant
performed from September 18 to 22, 2017 were the exact type of overuse that cause damage to an
already compromised cervical spine.
By decision dated January 7, 2019, the hearing representative vacated the June 18, 2018
decision and instructed OWCP to prepare a statement of accepted facts (SOAF) and refer appellant
to a second opinion orthopedic specialist to determine whether she developed a cervical spine
condition in any way causally related to the accepted employment factors.
On January 30, 2019 OWCP referred appellant to Dr. Michael Johnson, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine the nature and extent of her
alleged employment-related conditions.
In his March 28, 2019 report, Dr. Johnson reviewed the SOAF, history of injury, and the
medical evidence of record. He noted appellant’s diagnoses of cervical spine multilevel
degenerative disc disease, spondylosis, bulging discs, osteophytes, and stenosis and opined that
the findings found on the imaging studies were representative of the natural aging process and not
associated with acute events. Dr. Johnson reasoned that because there was no specific injury, any
opinion on aggravation due to injury or work environment was not objectively supported. He
referenced medical literature which provided that cumulative lifting, pushing, and pulling were
weakly associated with neck and shoulder pain. Dr. Johnson concluded that, based on his
evaluation and medical research, appellant’s job requirements would not cause or aggravate her
degenerative neck condition.
By decision dated April 19, 2019, OWCP denied appellant’s claim.
Dr. Johnson’s second opinion carried the weight of the medical evidence.

It found that

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

2
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

5

to the employment injury.3 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.7 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.8
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.9 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or a DMA, OWCP shall appoint a third
physician to make an examination.10 When there exist opposing medical reports of virtually equal
weight and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.11

3

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
6

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

7

M.V., Docket No. 18-0884 (issued December 28, 2018).

8

Id.; Victor J. Woodhams, supra note 5.

9

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019); V.G., 59 ECAB 635 (2008).

6

ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP referred appellant to Dr. Johnson for a second opinion evaluation and, in his
March 28, 2019 medical report, he opined that appellant’s cervical conditions were the result of
the natural aging process and not associated with any acute work events. Dr. Johnson explained
that medical literature provides that cumulative lifting, pushing, and pulling were weakly
associated with neck and shoulder pain and that the medical evidence and diagnostic studies of
record were suggestive of the natural aging process and not an aggravation of her condition. He
concluded that, based on his evaluation and medical research, appellant’s job requirements would
not cause or aggravate her degenerative neck conditions.
In her November 2, 2018 medical report, Dr. Gadalla opined that appellant’s actions of
repeatedly lifting and delivering heavy boxes over time caused her cervical disc to shift and pinch
the adjacent nerve to the spine. She explained that, even though cervical disc degeneration can be
caused over time by aging, trauma and overuse can significantly increase the level of damage to
the cervical spine. Dr. Gadalla reasoned that the repetitive job duties appellant performed from
September 18 to 22, 2017 were the exact type of overuse that cause damage to an already
compromised cervical spine. Further, in Dr. Lemons’ March 20, 2018 letter, he reported
appellant’s history of treatment for her neck pain and opined that the repetitive motions and
physical exertions she performed at work caused a decrease in active tolerance, endurance deficits,
pain limiting functions, range of motion, and strength deficits. He referenced appellant’s
diagnostic studies that supported his diagnoses of cervical spinal stenosis, foraminal stenosis of
the cervical region, and degenerative arthritis of the cervical spine.
The Board finds that a conflict in medical opinion has been created between appellant’s
attending physicians and that of the second opinion physician regarding whether appellant’s
preexisting cervical condition was aggravated by factors of her federal employment.12 Section
8123 of FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the employee’s physician, OWCP shall appoint a third
physician who shall make an examination.13
As there remains an unresolved conflict in medical opinion regarding whether appellant’s
diagnosed cervical conditions are causally related to, or a consequence of, the accepted
employment factors the case shall be remanded to OWCP for creation of an updated SOAF and
referral to an appropriate specialist to obtain an impartial medical opinion regarding whether
appellant sustained a cervical condition causally related to the accepted factors of her federal
employment. Following this and any other further development as deemed necessary, OWCP shall
issue a de novo decision.

12

See S.M., Docket No. 19-0397 (issued August 7, 2019).

13

Supra note 12.

7

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: June 2, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 07-1751
Issued: June 6, 2008

Oral Argument April 8, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 19, 2006 and April 17, 2007 merit decisions regarding his
claims for a recurrence of disability and a new occupational disease. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a recurrence of total disability on or after May 20, 1999 due to his November 1, 1994,
October 17, 1996 or February 17, 1997 employment injuries; and (2) whether appellant met his
burden of proof to establish that he sustained an occupational disease in the performance of duty
which caused total disability on or after May 20, 1999.
FACTUAL HISTORY
On August 11, 2000 appellant, then a 35-year-old modified mail handler, filed a claim
alleging that he sustained an occupational disease of his low back which caused total disability
beginning May 20, 1999. The Office had previously accepted that appellant sustained a lumbar

sprain on November 1, 1994, lumbar and cervical strains on October 17, 1996 and a lumbar
strain on February 17, 1997. In a decision dated January 28, 1999, the Office terminated
appellant’s compensation on the grounds that he refused an offer of suitable work.
Appellant also filed a claim alleging that he sustained a recurrence of total disability on
or after May 20, 1999 due to his November 1, 1994, October 17, 1996 and February 17, 1997
employment injuries. Appellant submitted several reports of Dr. Neil Spiegel, an attending
Board-certified physical medicine and rehabilitation physician, who generally indicated that
appellant’s work stoppage beginning May 20, 1999 was work related.
In a September 19, 2006 decision, the Office denied appellant’s recurrence of disability
and occupational disease claims on the grounds that he did not submit sufficient medical
evidence in support thereof.
Appellant requested a telephone hearing with an Office hearing representative. He
submitted an August 10, 2000 report of Dr. Spiegel, who stated that appellant’s deteriorating
condition on May 20, 1999 was due to an employment-related back condition. Appellant also
submitted several chiropractor reports.
In an April 17, 2007 decision, the Office hearing representative affirmed the Office’s
September 19, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”1 The Board has held that section 8106(c) of the Act
serves as a bar to receipt of further compensation under section 8107 of the Act for a period of
disability arising from the accepted employment injury. This includes cases where a claimant
who has had compensation terminated under 5 U.S.C. § 8106(c)(2) claims later periods of
disability for conditions that were accepted prior to the termination.2
ANALYSIS -- ISSUE 1
Appellant claimed that he sustained a recurrence of total disability on or after May 20,
1999 due to his November 1, 1994, October 17, 1996 and February 17, 1997 employment
injuries. However, since these claims were accepted prior to the termination of his compensation
for refusal of suitable work, his recurrence of disability claim is barred.3

1

5 U.S.C. § 8106(c)(2).

2

See Ronald M. Jones, 52 ECAB 190 (2000).

3

See supra notes 1 and 2 and accompanying text.

2

LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under the Act 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 the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
and that any disability and specific condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS -- ISSUE 2
The Board notes that there is no provision of the Act barring appellant’s occupational
disease claim as it arose after the termination of compensation for refusal of suitable work. The
Board notes, however, that appellant did not submit sufficient medical evidence to establish that
he sustained an occupational disease in the performance of duty which caused total disability on
or after May 20, 1999.
In support of his occupational disease claim, appellant submitted several reports of
Dr. Spiegel, an attending Board-certified physical medicine and rehabilitation physician.
Dr. Spiegel generally indicated that appellant’s work stoppage beginning May 20, 1999 was
work related. However, these reports are of limited probative value on the relevant issue of the
present case because they lack sufficient medical rationale. Appellant also submitted several

4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

3

chiropractor reports, but these reports do not constitute medical evidence because the
chiropractor did not diagnose a spinal subluxation as demonstrated by x-rays.7
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of total disability on or after May 20, 1999 due to his November 1, 1994,
October 17, 1996 or February 17, 1997 employment injury. The Board further finds that
appellant did not meet his burden of proof to establish that he sustained an occupational disease
in the performance of duty which caused total disability on or after May 20, 1999.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 17, 2007 and September 19, 2006 decisions are affirmed.
Issued: June 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Under section 8101(2) of the Act, chiropractors are only considered physicians, and their reports considered
medical evidence, to the extent that they treat spinal subluxations as demonstrated by x-ray to exist. 5 U.S.C.
§ 8101(2). See Jack B. Wood, 40 ECAB 95, 109 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0132
Issued: April 7, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 25, 2016 appellant filed a timely appeal from a May 25, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated December 28, 2015 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that on appeal appellant submitted new evidence. The Board’s jurisdiction is limited to the
review of evidence which was before OWP at the time it issued its final decision. Therefore, the Board is unable to
review this evidence on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 20, 2014 appellant, then a 43-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that same date he sustained a knee and back injury. He
reported that he was descending a ramp with a hamper and attempted to keep the hamper from
tipping over. Appellant sought treatment on the date of injury. On the reverse side of the form
the employing establishment controverted the claim.
On December 20, 2014 Dr. Jack Feldsher, a Board-certified osteopathic physician with
Irwindale Industrial Clinic, diagnosed thoracolumbar strain and left knee strain. Appellant was
released to work immediately with no work restrictions.
By letter dated December 30, 2014, OWCP informed appellant that the evidence of
record was insufficient to support his claim. It informed him that the employing establishment
had challenged the merits of the claim and that further factual information was necessary.
OWCP provided appellant with a questionnaire, and requested additional factual and medical
evidence. Appellant was afforded 30 days to submit the additional evidence.
In support of his claim, appellant submitted medical reports and duty status reports (Form
CA-17) dated December 20, 2014 through January 20, 2015. He did not submit answers to the
OWCP questionnaire regarding the requested factual information.
On January 27, 2015 a special agent with the employing establishment’s Office of
Inspector General (OIG) submitted an investigation report for the period December 30, 2014
through January 27, 2015 with supporting documentation. The investigation concluded that
appellant did not report that he had an injury when it occurred, but waited approximately three
hours to report the injury. When interviewed by OIG, appellant related that he did not think the
injury he suffered was serious enough to file a Form CA-1. Appellant reported that on the day of
injury, he was treated at a clinic and released to full duty yet did not return to work. The report
noted that appellant refused to provide a sworn statement to OIG. Further investigation revealed
a video recording from the employing establishment’s security camera on the date of appellant’s
injury. It showed appellant talking with coworkers and T.G., supervisor of customer service. In
the video, appellant was carrying a gallon of water and walking without assistance. Following
his conversation with T.G., he was transported to the clinic. Numerous witness interviews were
conducted. OIG reported that many of these witnesses indicated that appellant let the hamper go
and it tipped over, but that they did not see him fall or injure himself. T.G. stated that she did not
think appellant sustained an injury because he informed her he let the hamper go so that he
would not get injured.
By decision dated February 12, 2015, OWCP denied appellant’s claim finding that the
evidence failed to establish that the incident occurred as alleged. It noted that appellant had
failed to establish fact of injury because, although the hamper full of mail tipped over, there was
no evidence that he was injured in the process. Witness statements contradicted his allegation.
On March 9, 2015 appellant requested an oral hearing before an OWCP hearing
representative.

2

At the October 14, 2015 hearing, appellant explained that he was pushing the hamper
down the ramp when he hit a pothole on a ramp and the hamper turned over. He tried to hold the
hamper back but it was too heavy so he let it go. Appellant noted that the hamper weighed about
200 pounds. After the hamper tipped over, his coworkers helped him pick up the mail and
position the hamper upright. Appellant reported that he went on to deliver his route but did not
develop pain until later that day. He stated that he immediately reported the incident to his
supervisor but did not tell her he was injured until later that day when he began to experience
pain. Appellant sought medical treatment on the date of injury and was diagnosed with a back
and knee sprain. Although he was released to return to work, appellant stated that he was not
feeling well and went home. Appellant reported that his condition continued to worsen over the
weekend and after seeking treatment with his primary physician on the following Monday, he
was diagnosed with a torn meniscus and back sprain. He testified that he had no prior back or
knee injuries. Appellant explained that, at the base of the ramp, his wheel got caught in the
pothole, causing the hamper to tip over. He stated that he was still under medical care and was
working four hours per day. The record was held open for 30 days.
In support of his claim, appellant submitted medical reports and duty status reports (Form
CA-17) dated December 20, 2014 through October 22, 2015 documenting his medical treatment.
He also submitted a copy of his February 23, 2015 response to the 87 questions posed by OIG
detailing the circumstances surrounding the employment incident.
A union grievance was submitted noting that appellant was issued a 14-day suspension
for unacceptable conduct/misrepresenting his medical condition. The union representative
disputed the suspension and argued that appellant’s allegations correlated with the facts and
circumstances surrounding the case. He identified violations made by the employing
establishment and requested the suspension be rescinded and expunged due to lack of evidence
and overwhelming contradictions.
A March 20, 2015 shop steward statement was also submitted noting violations by the
employing establishment and OIG in handling appellant’s claim. He too recommended the
suspension be expunged due to lack of evidence and the overwhelming contradiction to
management’s claims.
In an April 2, 2015 witness statement, J.M., a fellow coworker, reported that he witnessed
the employment incident when appellant was coming down the ramp area and struggled to
maintain control of his gurney. He lost control of the hamper and it completely flipped over at
the bottom of the ramp. J.M. reported that he and two other carriers helped appellant collect the
mail off the floor. He noticed appellant grabbing his back and wincing in pain, stating that at no
time did appellant attempt to help retrieve the scattered mail.
In an April 2, 2015 witness statement, E.D., a fellow coworker, reported that he
witnessed appellant trying to hold up his hamper while it was falling over. He went to help
appellant pick up the mail. E.D. did not see him bend over to pick up any mail and noticed him
grabbing his sides and hips.
By letter dated November 24, 2015, the employing establishment noted review of the
hearing transcript and argued that appellant’s testimony was contradictory to his responses

3

following the injury. It continued to controvert the claim and noted that appellant was issued a
disciplinary action for falsely reporting an injury based on the OIG investigation.
By decision dated December 28, 2015, OWCP’s hearing representative affirmed the
February 12, 2015 decision finding that the evidence failed to establish that the incident occurred
as alleged. The hearing representative noted that, due to conflicting factual evidence and several
discrepancies surrounding the alleged event, the evidence was insufficient to establish the factual
portion of the claim.
On February 1, 2016 appellant requested reconsideration of the December 28, 2015
decision. He stated that he was resubmitting his physician’s initial orthopedic consultation and
evaluation report. In support of his claim, appellant submitted numerous medical reports
previously of record.
By decision dated May 25, 2016, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions nor included relevant and pertinent new
evidence establishing fact of injury.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3 Section 10.608(b) of OWCP regulations
provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.4
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his application for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, and he did not advance a new and relevant legal argument not
previously considered. He continued to allege that his injury was employment related, however,
he presented no point or law or no new legal argument as to why the evidence of record
established that the incident occurred as alleged. Consequently, appellant is not entitled to a

3

D.K., 59 ECAB 141 (2007).

4

K.H., 59 ECAB 495 (2008).

4

review of the merits of his claim based on the first and second above-noted requirements under
section 10.606(b)(3).5
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered by OWCP. The underlying issue on appeal involved fact of injury;
whether the incident occurred at the time, place, and in the manner alleged within the
performance of duty. Appellant’s reconsideration request does not provide greater detail
pertaining to whether the incident occurred in the manner alleged. Rather, he resubmitted
medical reports previously of record. The Board notes that this evidence was previously
submitted and considered. Material which is duplicative of that already contained in the case
record does not constitute a basis for reopening a case.6
A claimant may obtain a merit review of an OWCP decision by submitting relevant and
pertinent new evidence. In this case, appellant failed to submit any relevant and pertinent new
evidence addressing that the December 20, 2014 employment incident occurred as alleged.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.606(b)(3).

6

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the May 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 7, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James L. Cook, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-233
Issued: April 6, 2007

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 November 3, 2006 appellant filed a timely appeal from an August 7, 2006 decision of
the Office of Workers’ Compensation Programs, denying her claim for an emotional condition.
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’s claimed emotional condition was causally related to a
compensable factor of her federal employment.
FACTUAL HISTORY
On September 1, 2004 appellant, then a 53-year-old review clerk, filed an occupational
disease claim alleging that she developed an emotional condition beginning August 1, 2003 due
to sexual harassment from her immediate supervisor, Norman Jarvis. She alleged that Mr. Jarvis
made sexual advances toward her which included serenading her with songs. Appellant alleged
that on August 1, 2003 he followed her and asked for her home telephone number several times.

On August 11, 2004 Mr. Jarvis yelled at her in the break room to “stop licking your lips.” He
sometimes approached her from behind and sang love songs. On one occasion when appellant
walked to the restroom, Mr. Jarvis made a sucking sound with his mouth, asked if she needed
him to go to the restroom with her and said, “You know what I could do for you.” Appellant
threatened to report the incidents but he did not stop. Mr. Jarvis became hostile when she did not
respond to his advances. Appellant spoke to her second level supervisor, Buddy Giles.
In a September 4, 2004 report, Mr. Giles stated that he had investigated appellant’s
allegations of sexual harassment by Mr. Jarvis but found no witnesses to verify her allegations.
On October 22, 2004 the Office asked appellant to provide additional evidence to include
a detailed description of incidents or conditions that contributed to her emotional condition, with
specific information such as relevant dates, locations, employees involved and what occurred.
On November 10, 2004 Dr. Shawn Stussy, an attending family practitioner, stated that
appellant had been harassed at work for an extended period of time. Appellant developed
anxiety and depression. She was being treated by a psychologist.1
By decision dated March 4, 2005, the Office denied appellant’s claim on the grounds that
the evidence did not establish that she was sexually harassed by her supervisor.
Appellant requested an oral hearing that was held on May 24, 2006. She testified that
Mr. Jarvis had asked her to have sex with him. Appellant responded by going into his office,
slamming the door and asking what his problem was. She informed Mr. Giles of the problem.
On one occasion appellant was walking to the restroom when Mr. Jarvis asked if she wanted him
to go with her. Mr. Jarvis made a “slurping” sound. Appellant confronted him several times in
private and threatened to call the police. On August 1, 2003 she left work to undergo surgery.
Mr. Jarvis asked for her home telephone number five times on the evening before she stopped
work and also asked if she wanted his number. Appellant told him that he did not need her
telephone number and she did not need his because the employing establishment knew how long
she would be on leave. When she returned from her surgery, he went to her office door and
stared at her. Once, when appellant was talking to Michael Bursey, Mr. Jarvis screamed at her.
Mr. Jarvis sang songs about appellant being his “shoop shoop woman.”2 On August 11, 2004 he
told her, in front of another employee, to stop licking her lips.
Appellant submitted additional evidence at the hearing. In an August 12, 2004 statement,
Virginia White stated that she told appellant that Mr. Jarvis might be attracted to her but did not
know how to express himself. Ms. White thought that appellant might be attracted to Mr. Jarvis
and suggested that she invite him to her house for dinner where they might become “intimate.”
She indicated that appellant and Mr. Jarvis joked with each other on several occasions. In a
January 17, 2006 statement, Eloise Neighbors stated that Mr. Jarvis sometimes called appellant’s
1

Appellant also submitted reports from a licensed clinical social worker. However, the Board notes that the
reports of a social worker do not constitute competent medical evidence as a social worker is not a “physician” as
defined by 5 U.S.C. § 8101(2). Phillip L. Barnes, 55 ECAB 426 (2004).
2

Appellant explained that this term meant a woman used for sexual pleasure.

2

name and asked why she was looking at him. Mr. Jarvis spoke to her in a “rude” and “rough”
manner.3 He sometimes yelled at her to work faster or move to a different location. On one
occasion Ms. Neighbors and appellant were discussing candy they enjoyed as children such as
“Sugar Daddy” candy and Mr. Jarvis stated that he had been a “sugar daddy” with a Cadillac at
one time.4 On May 24, 2006 Mr. Bursey stated that he witnessed hostile and abusive treatment
of appellant by Mr. Jarvis but provided no specific examples. On one occasion appellant told
Mr. Bursey that Mr. Jarvis was verbally harassing her. Mr. Bursey grabbed Mr. Jarvis by the
arm and told him to leave her alone. He asked her why Mr. Jarvis harassed her and she just
shrugged her shoulders.5 Mr. Jarvis sometimes yelled at appellant from across the room to give
her instructions. Appellant also submitted an additional medical report from Dr. Stussy in which
he stated that appellant was harassed at work and developed anxiety.
Appellant submitted a copy of an April 26, 2006 Equal Employment Opportunity (EEO)
decision.6 In that decision, the administrative law judge found that she failed to establish a prima
facie case of discrimination7 or sexual harassment against Mr. Jarvis.8
By decision dated August 7, 2006, an Office hearing representative affirmed the March 4,
2005 denial of appellant’s claim but modified the decision to reflect that appellant failed to
establish any compensable work factors.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
an employee must submit the following: (1) medical evidence establishing that she has an
3

Ms. Neighbors did not provide specific examples of what Mr. Jarvis said to appellant.

4

Ms. Neighbors testified at the EEO hearing that she and appellant laughed about Mr. Jarvis’s sugar daddy
comment and went back to their conversation. She never heard him yell at anyone else but acknowledged that he
had a habit of speaking loudly. Ms. Neighbors testified that she heard Mr. Jarvis sing but she did not remember him
singing to appellant.
5

Mr. Bursey testified at the EEO hearing that Mr. Jarvis sometimes yelled at appellant to get back to work.
However, he never witnessed Mr. Jarvis say or do anything of a sexual nature concerning appellant.
6

Appellant’s allegations in her EEO complaint were the same as in her compensation claim.

7

In her EEO claim, appellant alleged discrimination on the basis of race, religion, gender and age.

8

At the EEO hearing, Mr. Jarvis testified that appellant often walked around and talked to other employees
instead of working. He frequently had to tell her to get back to work. Mr. Jarvis stated that he followed all
employees, not just appellant, to ensure that work was done. He denied appellant’s allegations of harassment.
Specifically, Mr. Jarvis denied singing to her, asking for her telephone number or asking to go to the restroom with
her. He denied that appellant ever went to his office, slammed the door and asked what his problem was. Mr. Jarvis
sometimes sang songs at work but no songs were directed at appellant. He denied ever telling appellant to “stop
licking her lips.” Mr. Jarvis was reassigned for three weeks while the employing establishment investigated
appellant’s allegations. He returned after the investigation was concluded with no finding that he had sexually
harassed appellant. Mr. Giles testified that an investigation into appellant’s allegations of sexual harassment by
Mr. Jarvis was performed. The conclusion was that no sexual harassment occurred. Witnesses stated that Mr. Jarvis
sang songs but not to anyone in particular. No employee heard Mr. Jarvis ask for appellant’s telephone number. If
Mr. Jarvis saw any employee talking, not just appellant, he asked the employee to get back to work.

3

emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.9
The Board has held that workers’ compensation law does not apply to each and every
injury or illness that is somehow related to an employee’s employment. There are situations
where an injury or an illness has some connection with employment but nevertheless does not
come within the concept or coverage of workers’ compensation. Where the medical evidence
establishes that the disability results from an employee’s emotional reaction to her regular or
specially assigned employment duties or to a requirement imposed by the employing
establishment, the disability comes within coverage of the Federal Employees’ Compensation
Act. The same result is reached when the emotional disability resulted from the employee’s
emotional reaction to the nature of her work or her fear and anxiety regarding her ability to carry
out her work duties.10
By contrast, there are disabilities having some kind of causal connection with the
employment that are not covered under workers’ compensation law because they are not found to
have arisen out of the employment, such as when disability results from an employee’s fear of a
reduction-in-force or frustration from not being permitted to work in a particular environment or
to hold a particular position.11
The Office, as part of its adjudicatory function, must make findings of fact regarding
which working conditions are deemed compensable work factors of employment, which may be
considered by a physician when providing an opinion on causal relationship and which are not
deemed compensable factors of employment and may not be considered.12 As a rule, allegations
alone by a claimant are insufficient to establish a factual basis for an emotional condition claim;
the claim must be supported by probative evidence.13
ANALYSIS
Appellant alleged that Mr. Jarvis sexually harassed her. To the extent that disputes and
incidents alleged as constituting harassment and discrimination by supervisors and coworkers are
established as occurring and arising from appellant’s performance of her regular duties, these
However, for harassment and
could constitute a compensable employment factor.14
discrimination to give rise to a compensable disability under the Act, there must be evidence that
9

Pamela D. Casey, 57 ECAB ___ (Docket No. 05-1768, issued December 13, 2005); George C. Clark, 56 ECAB
___ (Docket No. 04-1573, issued November 30, 2004).
10

Id.; see also Lillian Cutler, 28 ECAB 125 (1976).

11

Id.

12

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

13

See Charles E. McAndrews, 55 ECAB 711 (2004).

14

See Cyndia R. Harrill, 55 ECAB 522 (2004).

4

harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable under the Act. Appellant’s burden of proof cannot be
discharged with allegations alone. She must support her charges with probative and reliable
evidence.15
The Board finds that only one of the incidents described by appellant is factual. On one
occasion Mr. Jarvis told her and Ms. Neighbors that he was once a “sugar daddy” and drove a
Cadillac. Mr. Jarvis did not explain what he meant by the term “sugar daddy.” His comment
was in response to hearing appellant and Ms. Neighbors mention Sugar Daddy candy.
Ms. Neighbors testified at the EEO hearing that she and appellant laughed about Mr. Jarvis’s
sugar daddy comment and went back to their conversation. In view of the context, the comment
made by Mr. Jarvis does not constitute sexual harassment. This allegation is not deemed a
compensable factor of employment.
The Board finds that the evidence of record does not establish that the remaining
allegations by appellant are factual. Appellant alleged that Mr. Jarvis serenaded her with songs;
asked for her telephone number several times on August 1, 2003 and asked if she wanted his
number; on August 11, 2004 Mr. Jarvis yelled at her and told her to stop licking her lips; that
Mr. Jarvis once made a sucking sound with his mouth and asked what he could do for her when
she was going to the restroom.
Ms. White stated that she told appellant that Mr. Jarvis might be attracted to her but did
not know how to express himself. She thought that appellant might be attracted to Mr. Jarvis and
suggested that appellant invite him to her house for dinner where they might become intimate.
Ms. White indicated that appellant and Mr. Jarvis joked with each other on several occasions.
She has not described any incidents that support appellant’s allegations that Mr. Jarvis sexually
harassed her. Ms. Neighbors stated that Mr. Jarvis sometimes called appellant’s name and asked
why she was looking at him. Mr. Jarvis spoke to her in a rude manner but she provided no
specific examples of what Mr. Jarvis said to appellant. He sometimes yelled at her to work faster
or move to a different location. Ms. Neighbors testified that Mr. Jarvis spoke loudly all the time.
She testified that she heard Mr. Jarvis sing but she did not remember him singing to appellant.
Ms. Neighbors indicated that Mr. Jarvis was rude to appellant but provided no specific examples.
She did not provide any statements establishing that Mr. Jarvis sexually harassed or
discriminated against appellant. Mr. Bursey stated that he witnessed hostile and abusive
treatment of appellant by Mr. Jarvis but he did not provide specific details of incidents that he
personally witnessed. On one occasion appellant told him that she was upset because Mr. Jarvis
was verbally harassing her. Mr. Bursey grabbed Mr. Jarvis by the arm and told him to leave her
alone. He asked her why Mr. Jarvis harassed her and she just shrugged her shoulders and did not
explain. Mr. Jarvis sometimes yelled at appellant from across the room to give her instructions
or tell her to get back to work. However, Mr. Bursey stated that he never witnessed Mr. Jarvis
say or do anything of a sexual nature concerning appellant. The witness statements of these
employees are too general to establish harassment. Therefore, these statements do not establish a
compensable employment factor in this regard.

15

Id.

5

At the EEO hearing, Mr. Jarvis testified that appellant often walked around and talked to
other employees instead of working. He frequently had to tell her to get back to work.
Mr. Jarvis stated that he followed all employees, not just appellant, to ensure that work was done.
He denied appellant’s allegations of harassment. Specifically, Mr. Jarvis denied singing to her,
asking for her telephone number or asking to go to the restroom with her. He sometimes sang
songs at work but no songs were directed at appellant. Mr. Jarvis denied ever telling appellant to
“stop licking her lips.” He stated that he was reassigned for three weeks while the employing
establishment investigated appellant’s allegations. Mr. Jarvis returned after the investigation was
concluded with no finding that he had sexually harassed her.
Mr. Giles stated that he had investigated appellant’s allegations of sexual harassment by
Mr. Jarvis but found no witnesses to verify her allegations. Witnesses stated that Mr. Jarvis sang
songs but not to anyone in particular. No employee heard Mr. Jarvis ask for appellant’s
telephone number. If Mr. Jarvis saw any employee talking, not just appellant, he asked the
employee to get back to work. The conclusion of the investigation was that no sexual
harassment occurred.
Appellant submitted a copy of an EEO decision concerning her allegations of
discrimination and sexual harassment. The Board has held that grievances and EEO complaints,
by themselves, do not establish wrongdoing by an employing establishment.16 In the EEO
decision in this case, the administrative law judge found that appellant failed to establish that
Mr. Jarvis sexually harassed or discriminated against appellant. There is no EEO decision or
settlement agreement of record containing findings of error or abuse by employing establishment
personnel. Consequently, appellant’s EEO materials are not sufficient to establish a
compensable factor of her employment.
Unsubstantiated allegations concerning the employer are not accepted as factual.17
Appellant has failed to establish a factual basis for these allegations. Her allegations are not
supported by specific, substantive, reliable or probative factual evidence of record. As there is
insufficient evidence to establish these allegations as factual, they cannot be considered as
possible compensable employment factors. The Board finds that there is insufficient evidence to
establish harassment or discrimination by Mr. Jarvis in his treatment of appellant. Therefore,
appellant has failed to establish a compensable employment factor in this regard. Appellant
failed to establish that her emotional condition was causally related to a compensable factor of
employment. Therefore, the Office properly denied her claim.
CONCLUSION
The Board finds that appellant failed to establish that her emotional condition was
causally related to a compensable factor of employment.18
16

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

17

Cyndia R. Harrill, supra note 14.

18

Unless appellant alleges a compensable factor of employment substantiated by the record, it is unnecessary to
address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002); Garry M. Carlo, 47 ECAB
299 (1996).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 7, 2006 is affirmed.
Issued: April 6, 2007
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

7