United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Stewart, GA, Employer
__________________________________________

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

Docket No. 13-498
Issued: April 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 24, 2012 appellant filed a timely appeal from a December 14, 2012 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 appellant sustained a ratable employment-related hearing loss
that would entitle him to a schedule award; and (2) whether OWCP properly exercised its
discretion in denying hearing aids.
FACTUAL HISTORY
On August 29, 2012 appellant, then a 62-year-old insulator supervisor, filed an
occupational disease claim alleging that he developed bilateral hearing loss as a result of
1

5 U.S.C. § 8101 et seq.

exposure to noisy equipment such as trenchers, trucks, tile remover equipment, excavators and
other heavy equipment in the performance of duty. He first became aware of his hearing loss
and of its relationship to his employment on September 26, 2011. Appellant notified his
supervisor on August 29, 2012.
By letter dated September 7, 2012, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history, when he related his hearing loss to conditions of
employment and all nonoccupational exposure to noise. OWCP also requested that he provide
medical documentation pertaining to any prior treatment he received for ear or hearing problems.
It requested that the employing establishment provide noise survey reports for each site where
appellant worked, the sources and period of noise exposure for each location, whether he wore
ear protection and copies of all medical examinations pertaining to hearing or ear problems,
including preemployment examinations and audiograms.
On September 12, 2012 appellant completed OWCP’s hearing loss questionnaire. He
checked “yes” that he was exposed to severe noise in the military and that he was also exposed to
noise through duck hunting. Appellant provided his employment history. From 1968 to 1970 he
was in the military and was exposed to noise from explosions, aircraft engines and generators.
From May 1970 to November 1981 appellant worked in the private sector as a food distributor,
lineman and truck driver. As a lineman, he was exposed to noise from line and bucket trucks,
chainsaws and generators and did not use hearing protection. From November 1981 to 1996
appellant worked for the employing establishment as an electrician for 40 hours a week. He was
exposed to noise from line and bucket trucks, chain saws and generators and did not use hearing
protection. From 1996 to September 2012 appellant worked for the employing establishment as
a maintenance branch chief and insulator supervisor for 40 hours a week. He was exposed to
noise from heavy equipment, big pumps, vacuums, trucks, track and back hoes, plumbing
equipment, diesel generators and saws. Appellant wore hearing protection. In a September 20,
2012 telephone conference, OWCP verified the information appellant provided in support of his
hearing loss with the employing establishment.
In handwritten health records dated from August 8, 1990 to July 1, 1993, Linda S. Smith,
an occupational therapist, noted that appellant worked as an electric shop foreman and was
exposed to hazardous noise.
Appellant provided employment audiogram records beginning December 1983. A
September 28, 2011 audiogram revealed the following decibel (dBA) losses at 500, 1,000, 2,000
and 3,000 hertz (Hz): 10, 5, 20 and 55 for the left ear and 15, 10, 25 and 40 for the right ear.
Appellant retired from federal service effective September 30, 2012.
OWCP referred appellant, along with a statement of accepted facts, to Dr. Thomas
Crews, a Board-certified otolaryngologist, for a second-opinion evaluation. In a November 5,
2012 report, he reviewed the statement of accepted facts and addressed appellant’s federal work
duties and the types of employment-related noise exposure he experienced. Dr. Crews noted that
appellant had no history of vertigo, ear operations, ear pain or chronic ear infections. Upon
examination, he observed clear external canal, drum and middle ear. An audiogram completed

2

that day revealed the following dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 20, 10, 25, and
45 dBA for the right ear and 15, 10, 20 and 55 dBA for the left ear. Dr. Crews reported that the
hearing test showed bilateral symmetrical moderately severe high-frequency sensorineural
hearing loss worse at 4,000 Hz, which was indicative of noise-induced hearing loss. He opined
that in the absence of any mitigating factors, appellant has had a progressive hearing loss since
1983. Dr. Crews explained that in light of appellant’s long history of federal employment with
exposure to loud noise and the fact that he had relatively normal hearing in 1983, it was his
opinion that appellant had moderate-to-severe high-frequency bilateral sensorineural hearing loss
secondary to his federal civilian employment. He recommended annual hearing tests,
participation in a hearing conservation program and a trial of binaural amplification.
OWCP referred the case file along with Dr. Crews’ report to a district medical adviser to
determine the extent of appellant’s permanent partial impairment and date of maximum medical
improvement (MMI).
In a December 12, 2012 report, the medical adviser determined that, in accordance with
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides), appellant had zero percent bilateral sensorinueral hearing loss.
He did not authorize hearing aids. The date of maximum medical improvement was noted as
November 5, 2012, the date of appellant’s last audiology testing.
In a decision dated December 14, 2012, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss due to employment-related noise exposure. It further found that
appellant’s hearing loss was not severe enough to be considered ratable and thus, was entitled to
a zero percent schedule award. Hearing aids were not authorized.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides (6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and
the Board has concurred in such adoption.3
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles a second, the
losses at each frequency are added up and averaged. Then, the fence of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in

2

5 U.S.C. §§ 8101-8193.

3

R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000); see also 20 C.F.R. § 10.404.

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the ability to hear everyday speech under everyday conditions.4 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss. The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss. The Board has concurred in OWCP’s adoption
of this standard for evaluating hearing loss.5 The Board has also noted OWCP’s policy to round
the calculated percentage of impairment to the nearest whole number.6
ANALYSIS -- ISSUE 1
Appellant filed a claim for hearing loss and was referred to Dr. Crews for a second
opinion examination. In a November 5, 2012 second opinion report, Dr. Crews diagnosed
bilateral sensorinueral hearing loss as a result of his employment. After reviewing Dr. Crews’
second opinion report and a November 5, 2012 audiogram, an OWCP medical adviser applied
OWCP’s standardized procedures to the results. Testing at frequency levels of 500, 1,000, 2,000
and 3,000 Hz revealed decibel losses at 20, 10, 25 and 45 for the right ear and 15, 10, 20 and 55
for the left ear. The total decibel loss was 100 for both ears, which resulted in an average of 25
dBA. Because this average is not above the fence of 25 dBA, appellant is deemed to have no
impairment in his ability to hear everyday sounds under everyday listening conditions.7 This
does not mean that he has no hearing loss. Rather, the extent of degree of loss is not sufficient to
show a practical impairment in hearing according to the A.M.A., Guides. The A.M.A., Guides
set a threshold for impairment and appellant’s employment-related hearing loss did not reach that
threshold.
The Board finds that OWCP properly accepted appellant’s claim for binaural hearing loss
and properly determined that the hearing loss was not severe enough to be considered ratable.
Accordingly, appellant was not entitled to a schedule award.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.8 OWCP must therefore exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in FECA.9
4

See A.M.A., Guides 250.

5

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

6

Robert E. Cullison, 55 ECAB 570 (2004); J.H., Docket No. 08-2432 (issued June 15, 2009). See Federal
(FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b) (2) (b) (September 2010).
7

See L.F., Docket No. 10-2115 (issued June 3, 2011).

8

5 U.S.C. § 8103 (a); see Joshua A. Holmes, 42 ECAB 231 (1990).

9

Id.

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Following medical evaluation of a claim, if the hearing loss is determined to be nonratable for
schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists.10
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying authorization of
hearing aids. While Dr. Crews noted in his November 5, 2012 report that appellant might benefit
from a trial of binaural amplification, he did not explicitly state that appellant required hearing
aids. Based upon the evidence of record, the medical adviser reported on December 12, 2012
that hearing aids should not be currently authorized. There is no medical evidence from a
physician stating that he should be provided with hearing aids or any other medical treatment for
his employment-related hearing loss. The Board finds that under these circumstances OWCP did
not abuse its discretion under section 8103(a) by denying authorization for hearing aids.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award. The Board also finds that OWCP did not abuse its discretion by
denying authorization for hearing aids.

10

See F.D., Docket No. 10-1175 (issued January 4, 2011); R.R., Docket No. 12-1840 (issued February 14, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the December 14, 2012 schedule award decision of
the Office of Workers’ Compensation Programs is affirmed.
Issued: April 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-0975
Issued: March 10, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 11, 2021 appellant filed a timely appeal from a June 4, 2021 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 stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

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Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

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change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

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By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
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 the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

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

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reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 13 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

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incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.18 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

7

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
El Segundo, CA, Employer
)
___________________________________________ )
L.J., Appellant

Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1622
Issued: August 28, 2012

Case Submitted on the Record

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

JURISDICTION
On July 5, 2011 appellant, through her attorney, filed a timely appeal from a March 15,
2011 decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the
termination of her compensation benefits. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation and medical
benefits effective September 27, 2010

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 4, 1996 appellant, then a 44-year-old revenue officer, filed an occupational
disease claim alleging that she sustained work-related depression, anxiety and hypertension in
the performance of duty. She attributed her condition to confrontations with coworkers and
taxpayers. Appellant stopped work on November 7, 1996. OWCP accepted the claim for
depression and benign hypertension and paid her compensation for injury-related disability for
work.2 Appellant stopped work in April 1997.
On June 2, 2009 OWCP referred appellant for a second opinion examination, together
with a statement of accepted facts, a set of questions and the medical record, to Dr. Robert
Borigini, a Board-certified internist.
In a June 20, 2009 report, Dr. Borigini reviewed appellant’s history of injury and medical
treatment.3 He noted that her blood pressure was fairly well controlled. Dr. Borigini determined
that appellant was having no symptoms due to the hypertension. He related that she also noted
that “she did not leave work due to the high blood pressure but because of the depression and
anxiety.” Dr. Borigini explained that there were no residuals related to hypertension and opined
that appellant did not appear to have any permanent aggravation that was work related. He
advised that she did not appear to be disabled related to the hypertension. Dr. Borigini
concluded that, with regard to her hypertension, appellant was not disabled from work.
On June 2, 2009 OWCP referred appellant for a second opinion, with a statement of
accepted facts, a set of questions and the medical record, to Dr. William Goldsmith, a Boardcertified psychiatrist.
In a June 24, 2009 report, Dr. Goldsmith noted appellant’s history of injury and
treatment. He examined her and found that she had residual depressive symptoms.
Dr. Goldsmith noted that appellant was somatically preoccupied. Further, appellant’s intellectual
functioning at the time of the interview suggested that she would be unable to engage in
consistent interviewing of taxpayers’ clientele or to explain complex financial transactions.
Dr. Goldsmith diagnosed dysthymia, in partial remission. He opined that the condition was
caused by factors of her employment on August 1, 1994. Dr. Goldsmith advised that appellant
portrayed the “impression of having settled into a life of a retiree. Appellant has no motivation
or interest in returning to the workplace. Her current presentation suggests that she could not
meet all the requirements of the job description.” Dr. Goldsmith advised that appellant was able
to follow simple instructions. He stated that her ability to perform complex procedures was
slightly impaired and her ability to relate and interact with supervisors, coworkers and the public
was moderately impaired. Dr. Goldsmith found that appellant’s ability to maintain concentration
was intact and her pace was slow. Appellant’s ability to perform day-to-day work activity,
2

The record reflects that appellant has a history of a cerebral concussion and depression from 1982; chronic
pulmonary disease, cancer in 1984 and 1983; and an emotional breakdown requiring psychiatric hospitalization in
1994. Additional stressors included a 1985 divorce, a 1995 bomb explosion at an employing establishment office,
the 1993 death of a coworker, 1992 and 1994 riots in Los Angeles and a teenage daughter.
3

Dr. Borigini noted that appellant had not worked at her position since 1997.

2

including attendance and safety was slightly impaired. Her ability to adapt to the stresses in a
workplace environment was dormant and her ability to maintain regular attendance in the
workplace and perform on a consistent basis was moderately impaired as she had chronic
problems with punctuality. Regarding appellant’s ability to perform without supervision,
Dr. Goldsmith indicated that this was difficult to assess. Dr. Goldsmith noted that she would
probably need additional supervision during the initial phases of her work. He completed a work
capacity evaluation and advised that appellant could not work eight hours a day as there was “too
little motivation.” Dr. Goldsmith advised that she could work for three to four hours a day
performing simple repetitive work with minimal upper extremity activity.
On April 26, 2010 OWCP requested a supplemental opinion from Dr. Goldsmith, who
was advised that appellant could be reexamined in order to respond to the questions. It requested
his opinion with regard to her ability to work up to four hours per day. OWCP advised
Dr. Goldsmith that lack of motivation, alone, was not an adequate basis on which to continue
disability compensation benefits. It also inquired into whether appellant could work eight hours
per day.
On May 11, 2010 OWCP referred appellant for examination by Dr. Goldsmith. In a
June 4, 2010 report, Dr. Goldsmith noted her history and reexamined her. His findings included
that appellant was recently hired as a home health worker for approximately 31 hours a month,
four days a week, 4 hours a day. Dr. Goldsmith noted that she related that she felt “capable of
doing this. [Appellant] feels optimistic about her ability to perform in the workplace.” He
related that she had some recent changes with her life situation. While appellant lived
independently, she was allowing her 34-year-old daughter with marital problems and three
children to move in with her. Dr. Goldsmith noted that she had an ongoing relationship with a
man which appeared to be heading toward marriage. Regarding appellant’s current symptoms,
Dr. Goldsmith stated that she related that she had difficulty handling “too much stress.” He
noted that she took several psychotropic medications which caused drowsiness during the day.
Dr. Goldsmith referred to his prior report and noted that he previously advised that, “If
[appellant] were motivated to return to her old position, she would require intensive training.
Her motivation for this is nil. [Appellant] also complains of physical problems that would limit
her ability to function in the workplace such as her carpal tunnel syndrome and problem with her
bladder with urinary frequency due to a ‘fallen bladder.’” On mental examination, appellant
presented as alert, cooperative and cheerful. Dr. Goldsmith advised that her thought process was
organized and intact and there was no evidence of thought blocking, loose associations, or
tangentiality. There was no gross delusional thinking and she was not suicidal or homicidal.
Dr. Goldsmith noted that appellant’s perception was without auditory or visual hallucinations
and she was oriented to time, place and situation. He opined that, from a psychiatric standpoint,
appellant was capable of working eight hours a day. Dr. Goldsmith deferred to an appropriate
specialist regarding whether she could work from physical standpoint. He advised that,
compared with her previous presentation, she was considerably improved. Dr. Goldsmith noted
that her mood was better, her pace was brisker and she had “brave adventurous plans to relocate
in Jamaica.” He opined that appellant had a good prognosis and she was capable of selfmanaging funds. In an accompanying work capacity evaluation, Dr. Goldsmith advised that
appellant could work eight hours daily and could perform her usual job although she would need
retraining.

3

On June 17, 2010 OWCP requested that Dr. Goldsmith clarify his report with regard to
whether appellant continued to have residuals of her work-related depression.
In an August 24, 2010 response, Dr. Goldsmith opined that appellant had no residuals
that were elicited in his interview.
On August 25, 2010 OWCP issued a notice of proposed termination of compensation for
wage loss and for medical benefits for her psychiatric claim. It found that the weight of the
medical evidence rested with the reports of Drs. Borigini and Goldsmith. OWCP advised that
appellant would remain entitled to medical benefits for benign hypertension. Appellant was
given 30 days to submit additional evidence or argument.
By decision dated September 27, 2010, OWCP terminated appellant’s wage-loss and
medical benefits for the psychiatric portion of her claim effective that date on the grounds that
appellant had no continuing residuals of her employment injury.
On October 12, 2010 appellant’s representative requested a hearing, which was held on
February 2, 2011. She contended that appellant’s lack of motivation was a residual of
depression. Appellant testified that she had made attempts to find employment, but she was used
to working for the government as it was the only job she had since she was 19 years old.
In a September 30, 2010 letter, appellant’s representative argued that OWCP did not meet
its burden of proof to terminate benefits. She provided a report from Dr. John Beck, a
psychiatrist, contending that it created a conflict in medical opinion.
In a September 27, 2010 report, Dr. Beck disagreed with Dr. Goldsmith with regard to
whether appellant continued to have residuals of her work-related condition. He noted treating
her since 2005. Dr. Beck explained that appellant demonstrated that she had “inadequate
concentration and excessive anxiety” from knowing that she was “damaged” physically from
carpal tunnel syndrome and related pain and mentally “repeatedly demonstrating poor
organization thought, inability to carry out plans for daily living and the inability to address the
tasks necessary to conduct her affairs. Appellant has failed at several attempts at enterprise such
as the development of an import business as aided by her fiancé in Jamaica and the training to
become an insurance agent. Both were chosen because she felt that she could not function at an
occupation that entailed physical activity as limited by her previous employment injuries to her
wrist. Also, appellant has experienced elevations and problem control of her hypertension from
the mental stress of not being able to advance her wishes to develop a rehabilitation occupation.
When engaged in her efforts to reeducate herself she becomes frustrated at reasonable tasks and
has insomnia, over eats, weight gain and lethargy.” Dr. Beck further noted that the “inefficiency,
failure and disappointment of [appellant’s] efforts to improve her ability to function in a position
of occupational learning and demands has repeatedly failed causing her to be frustrated and
aggravated with increased emotional distress.” He advised that, as the treating psychiatrist, he
“had the opportunity to originate various rehabilitation work projects only to witness the failure
of such and the increased psychiatric symptoms for which she was treated.” Dr. Beck
recommended that she work in a position for which there was minimal organization and paper
work as well as minimal demands on her injured wrists.

4

By decision dated March 15, 2011, OWCP’s hearing representative affirmed the prior
decision. She found that appellant no longer had residuals of her work-related depression and
hypertension.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective September 27, 2010.
OWCP accepted the claim for depression and benign hypertension. It terminated
appellant’s compensation and medical benefits for the psychiatric portion of her claim as of
September 27, 2010 on the grounds that she had no continuing residuals of her employment
injury based on the opinion of Dr. Goldsmith.
In a June 24, 2009 report, Dr. Goldsmith reviewed appellant’s history of injury and
treatment. He examined her and found residual depressive symptoms. Dr. Goldsmith noted that
appellant portrayed the “impression of having settled into a life of a retiree. Appellant has no
motivation or interest in returning to the workplace. Her current presentation suggests that she
could not meet all the requirements of the job description.” Dr. Goldsmith advised that appellant
was able to follow simple instructions. Appellant’s ability to perform complex procedures was
slightly impaired and her ability to relate and interact with supervisors, coworkers and the public
was moderately impaired. Dr. Goldsmith advised that she could work for three to four hours a
day performing simple repetitive work with minimal upper extremity activity. On April 26, 2010
OWCP requested a supplemental opinion from Dr. Goldsmith. In a June 4, 2010 report,
Dr. Goldsmith noted that appellant had recently begun working part time. Appellant related that
she felt capable of working and felt “optimistic about her ability to perform in the workplace.”
Dr. Goldsmith explained that she had no motivation to return to her old position, which would
require intensive training. From a psychiatric standpoint, he found that appellant was capable of
working eight hours a day. Dr. Goldsmith noted that, compared with her previous presentation,
she was considerably improved as her mood was better, her pace was brisker and she had “brave
adventurous plans to relocate in Jamaica.” He opined that she had a good prognosis. On
June 17, 2010 OWCP requested that Dr. Goldsmith clarify his report with regard to whether
appellant continued to have residuals of her work-related depression. In an August 24, 2010
response, Dr. Goldsmith opined that appellant had no residuals.

4

Curtis Hall, 45 ECAB 316 (1994).

5

Jason C. Armstrong, 40 ECAB 907 (1989).

5

The Board finds that Dr. Goldsmith’s opinion is based upon an accurate history and is
sufficiently well reasoned to establish that the accepted condition of depression had resolved.
Dr. Goldsmith’s opinion constitutes the weight of the medical evidence and justifies OWCP’s
September 27, 2010 termination of compensation benefits.6
Subsequent to OWCP’s September 27, 2010 termination of compensation benefits, a
conflict in medical opinion arose regarding whether appellant continued to have residuals from
her accepted employment injury. Dr. Goldsmith, the second opinion physician, determined that
she no longer had any residuals or disability due to her work-related depression. Dr. Beck, an
attending physician, advised that appellant continued to have residuals from her work-related
depression. Section 8123(a) 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.7 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 an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.8 The Board will remand the case for such further development of the
medical evidence.9
On appeal, appellant’s representative contended that OWCP did not meet its burden of
proof to terminate benefits. As noted, the Board finds that OWCP met its burden to terminate
appellant’s compensation benefits based on the opinion of Dr. Goldsmith. A conflict
subsequently arose and the case will be remanded for further development.
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s
compensation benefits as of September 27, 2010. Thereafter, a conflict in the medical evidence
arose necessitating appellant’s referral to an impartial specialist.

6

The Board notes that the hearing representative’s March 15, 2011 decision, in affirming the termination of
benefits, also found that residuals of appellant’s hypertension condition had ceased. However, OWCP’s prior
September 27, 2010 decision and the August 25, 2010 notice of proposed termination did not indicate that benefits
were being terminated for her accepted hypertension. As appellant did not receive appropriate notice of a
termination of benefits for her accepted hypertension, any termination of such benefits by the hearing representative
was improper. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.6
(March 1997) (provides that OWCP will provide pretermination notice, with limited exceptions, before terminating
monetary compensation or medical benefits).
7

5 U.S.C. § 8123(a); Barry Neutuch, 54 ECAB 313 (2003).

8

20 C.F.R. § 10.321.

9

See 20 C.F.R. § 501.2(c)(2) (there shall be no appeal with respect to any interlocutory matter disposed of by
OWCP while the case is pending).

6

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded in part for
further action consistent with this decision.
Issued: August 28, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, 544th
PROPULSION MAINTENANCE SQUADRON,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1701
Issued: January 17, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 9, 2013 appellant timely appealed the May 3, 2013 merit decision of the Office
of Workers’ Compensation Programs (OWCP), which denied his occupational disease claim.
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 the claim.
ISSUE
The issue is whether appellant’s right arm condition is causally related to his federal
employment.
FACTUAL HISTORY
On November 13, 2012 appellant, then a 62-year-old painter, filed an occupational
disease claim (Form CA-2) for carpal tunnel syndrome that arose on or about October 16, 1991.
1

5 U.S.C. §§ 8101-8193 (2006).

He had previously filed a claim for injury arising on October 16, 1991, which OWCP accepted
for right carpal tunnel syndrome (xxxxxx499). Appellant underwent bilateral carpal tunnel
surgery in the early 1990’s and afterward he resumed work.
He retired effective
December 30, 2012.
Dr. Houshang Seradge, a Board-certified orthopedic surgeon, examined appellant on
September 12, 2007. He noted episodes of right hand locking and triggering since 1991.
Appellant’s condition had recently worsened with increased activity and use of the right hand.
Dr. Seradge diagnosed trigger finger and tenosynovitis of the flexor tendon in the index, long,
ring and little finger of the right hand. He noted similar problems with appellant’s left ring
finger. On physical examination there was a negative carpal tunnel compression test; however,
radial tunnel compression test was extremely positive. Some of appellant’s complaints dated
back to 1991. In view of the duration of some symptoms, Dr. Seradge stated that appellant’s
recent employment activity was not the primary cause of injury. He advised that work had
aggravated appellant’s preexisting condition and recommended surgical intervention for a
tenosynovectomy and trigger releases to the right index, long, ring and little finger. Dr. Seradge
also proposed a right radial tunnel release. Appellant had surgery on October 11, 2007.
With respect to his present right hand complaints, appellant explained that the pain
recurred on November 13, 2012. His daily employment duties involved repetitive hand
movements, which included three hours of perpetual hand movements while holding a onepound paint gun. Appellant’s daily work routine also included three hours of cleaning air craft
materials and two hours of documenting material on a computer or by hand. He also reportedly
lifted F100 engine shafts weighing 25 pounds.
Dr. Theodore A. Mickle, Jr., a Board-certified family practitioner, treated appellant on
November 13, 2012 at the employing establishment’s clinic. That morning appellant had been
spray painting F100 shafts when his right fingers/hand locked up while gripping a paint gun. He
was unable to open his right hand without assistance. Appellant experienced a tingling sensation
in the right middle, ring and pinky fingers that radiated into the elbow and shoulder. Dr. Mickle
diagnosed right forearm muscle spasm, “onset while using aircraft paint gun.” He placed
appellant on limited duty with no use of the right hand or arm. Appellant was to use his left hand
to perform his duties. He returned to the clinic for follow up on November 16 and 20, 2012. On
both occasions, Dr. Mickle extended appellant’s limited-duty restrictions.
On November 27, 2012 appellant returned to the clinic where he was seen by
Dr. Philip M. Beck, a Board-certified family practitioner. The treatment notes advised that no
further issue arose with cramping, but appellant continued to experience intermittent digit
numbness and tingling. Dr. Beck did not provide a specific diagnosis, but continued with the
previous work restrictions pending further evaluation by appellant’s personal physician, which
was scheduled for December 4, 2012.
Appellant followed up with Dr. Beck on December 5, 2012. He saw his primary care
physician who referred him to a hand surgeon. The primary care physician also advised
appellant to continue with his previous work restrictions. Having noted that appellant did not
provide any documentation from his primary care physician, Dr. Beck extended the limited-duty

2

restrictions.
extremity.

He did not provide a firm diagnosis with respect to appellant’s right upper

On December 13, 2012 appellant returned for follow up and Dr. Beck once again
extended his work restrictions. Appellant saw the hand surgeon who advised that he was starting
to have trigger finger again. The hand surgeon also administered a steroid injection in
appellant’s right hand. Appellant did not provide Dr. Beck with any documentation from the
hand surgeon. Dr. Beck accommodated appellant’s request for continued work restrictions, but
he did not provide a current right upper extremity diagnosis.
By letter dated February 13, 2013, the employing establishment controverted the claim.
Appellant had a history of insulin-dependent diabetes with diabetic neuropathy. The employing
establishment noted that this condition could also cause symptoms similar to those he was
currently experiencing.
In a March 27, 2013 decision, OWCP denied the claim. It found that the claim was not
timely filed within three years of October 16, 1991.2
On April 24, 2013 appellant requested reconsideration.
By decision dated May 3, 2013, OWCP denied appellant’s claim. It accepted the 2012
claim as timely filed, but found that the medical evidence did not establish that his diagnosed
right arm condition was causally related to his federal employment.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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;

2

OWCP advised appellant that, if he was seeking additional medical care under claim number xxxxxx1499, he
should separately file Form CA-2a under that claim number.
3

20 C.F.R. § 10.115(e), (f) (2012); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). 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. Id.

3

and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.4
ANALYSIS
Appellant has a history of right upper extremity complaints dating back to 1991. He has
a previously accepted claim for right carpal tunnel syndrome (xxxxxx499). While the current
claim, filed in November 2012, listed the same October 16, 1991 date of injury as the previous
accepted claim, there is no current diagnosis of right carpal tunnel syndrome. Appellant does not
appear to be claiming either a recurrence (Form CA-2a) of disability or a recurrence of a medical
condition under his prior claim.
Appellant identified November 13, 2012 as the date of onset of his latest right hand
complaints. That morning he had been spray painting jet engine parts using a one-pound paint
gun. Appellant stated that his right fingers locked up while gripping the paint gun and he was
unable to open his hand without assistance. He also reported having experienced a tingling
sensation in the right middle, ring and little fingers that radiated into the elbow and shoulder.
Following the incident, appellant went to the employing establishment’s clinic where Dr. Mickle
diagnosed right forearm muscle spasm. He reported an “onset while using aircraft paint gun.”
The mere fact that a condition manifests itself during a period of employment is not
sufficient to establish causal relationship.5 Appellant’s use of an aircraft paint gun at the time he
experienced a muscle spasm does not, by itself, establish that the equipment and/or his spray
painting activities caused or contributed to a diagnosed condition. A mere temporal relationship
between the employment activity and the reported symptoms will not suffice for purposes of
establishing a causal relationship.6 OWCP requested that he submit a narrative report from an
attending physician addressing causal relationship.
Appellant returned to the clinic on several occasions between November 16 and
December 13, 2012, but none of the treatment notes provide a firm medical diagnosis. The clinic
records also failed to provide a definitive opinion on the cause of appellant’s right arm condition.
Appellant’s belief that factors of employment caused or aggravated his condition is insufficient,
by itself, to establish causal relationship.7 The issue of causal relationship is a medical one and
must be resolved by probative medical opinion from a physician. Accordingly, the Board finds
that he failed to establish that his current right upper extremity condition is employment related.

4

Victor J. Woodhams, id.

5

20 C.F.R. § 10.115(e).

6

See D.I., 59 ECAB 158, 162 (2007). The fact that a condition manifests itself during a period of employment
does not raise an inference of causal relationship. Id.
7

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.8
CONCLUSION
Appellant has not demonstrated that his current right upper extremity condition is
causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 17, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8

5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1842
Issued: January 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 8, 2015 appellant filed a timely appeal from a March 16, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision of January 23, 2014 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 over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s January 28, 2015
reconsideration request under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 20, 2013 appellant, then a 32-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he experienced an anxiety attack at work when he was given
1

5 U.S.C. § 8101 et seq.

instructions contradictory to what he was previously taught. He explained that he was frustrated
because a supervisor, Jill Lipovsek, would get on the intercom before everyone’s start time of
8:00 a.m. and issue instructions to punch in, do a vehicle check, and attend a meeting. Appellant
related that, often when he would return from vehicle check, Ms. Lipovsek had already begun the
meeting. He reported that management then instructed them not to clock-in prior to the meeting,
he alleged that he was unable to complete eight hours on a route. Appellant provided a detailed
timeline of dates and the interactions he had with management from June 11 to 15, 2013. He
first became aware of his condition and realized it resulted from his employment on
June 15, 2013. Appellant stopped work on June 15, 2013 and returned on July 1, 2013.
In a June 15, 2013 e-mail, Elizabeth Wolf, an operations manager, stated that she had
observed appellant on June 14, 2013 writing down all the addresses on his route that had parcels.
She advised him that practice was unacceptable. Ms. Wolf related that on June 15, 2013 a
supervisor took the collection portion of appellant’s route away, but he stated that he could not
get an eight-hour day completed. She observed him screaming, shaking, and crying that he had
been harassed for the past five days. An ambulance was called and transported appellant to the
hospital.
In an undated statement, Kathleen Larsen, customer service supervisor, reported that on
June 15, 2013 she approached appellant and informed him that he would not do the collection
part of his route that day, but had a 45-minute auxiliary on route 1621. She told him that she
expected him to work eight hours that day. Ms. Larsen related that appellant began shaking his
head, took his arrow key, and threw it down in his hamper. She explained that he became very
belligerent and loud and stated that he could not deal with this anymore. Ms. Larsen reported
that appellant was escorted out the back door and was transported to the hospital for treatment.
In a handwritten July 12, 2013 report, Dr. Mark Weisberg, a Board-certified internist,
related that he examined appellant on June 15 and 17 and July 12, 2013. He reported that
appellant suffered an anxiety attack at work caused by work-related stress. Dr. Weisberg
explained that appellant developed uncontrollable shaking, uncontrolled body movements, and
significant rise in blood pressure. He indicated that appellant was evaluated in the emergency
room and diagnosed with an acute anxiety attack. On June 15 and 17, 2013 Dr. Weisberg
evaluated appellant and observed that his blood pressure was still elevated. He instructed
appellant to remain on his medications and to remain off work until the stressors at work
resolved. Dr. Weisberg noted that appellant returned to work on July 1, 2013. He diagnosed
uncontrolled hypertension requiring additional medications along with anxiety attack due to
overwhelming work-related stress. Dr. Weisberg opined that appellant’s illness was directly
caused from experiencing overwhelming anxiety and stress at his workplace on account of the
tremendously stressful environment at the time.
By letter dated October 10, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish his occupational disease claim. It requested additional evidence to
demonstrate that he actually experienced the employment factors he alleged and additional
medical evidence to establish that the described employment factors caused or contributed to his
medical condition. A similar letter was sent to the employing establishment.

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On November 11, 2013 OWCP received appellant’s response to the development letter.
Appellant noted that his condition developed when the management team arrived. He alleged
that the team was an aggressive group of individuals who were very controlling and demanding
on a daily basis. Appellant indicated that the team had a lack of care and concern for the
employees and that on several occasions he was yelled at and told different misleading
instructions from each member of the team. He described his symptoms as fear, pressure,
helplessness, hopelessness, confusion, shaking, sadness, and elevated blood pressure. Appellant
reported that before the “management team” arrived at the employing establishment the
employing establishment was totally different and he was treated with respect. He noted that he
was providing witness statements from coworkers.
Appellant submitted a handwritten June 21, 2013 witness statement from Erik
Christoffel, a coworker. Mr. Christoffel reported that on June 15, 2013 he was casing route
1673, which was next to appellant’s route, when appellant told him about the harassment he was
receiving at work. Appellant related examples of when management advised Mr. Christoffel of
different times to begin his work shift and whether to write down addresses. Mr. Christoffel
noted that during their conversation Ms. Larsen confronted appellant about his eight hours and
questioned why he was still at work. He stated that appellant got upset and broke down.
Appellant was removed from the docks and paramedics were called.
In another handwritten statement, Rick Wolfgram, another coworker, explained that he
was casing route 1675 when he heard a commotion on route 1665. He looked over and observed
management talking to appellant who was visibly upset. Appellant stated that he wanted to leave
because he was being harassed and he began to cry and shake. Mr. Wolfgram reported that when
appellant began to scream and cry he took appellant outside and waited with him until the
ambulance came to take him to the hospital.
Annie McCoy, another coworker, further noted in a handwritten statement that on
June 15, 2013 she was casing her route when she saw David Taylor instructing appellant to line
his parcels up in the order in which they would go out. Shortly, after, she observed Ms. Larsen
walk over to appellant and question him in a loud tone regarding why he was not done with his
work yet. Ms. Larsen then informed him that he had to finish his collection in eight hours.
Appellant stated that he could not finish in eight hours and became visibly upset. He stated that
Ms. Larsen was harassing him and he could not take it anymore. Ms. McCoy indicated that
appellant was shaking and crying. Mr. Wolfgram called 911 and an ambulance arrived shortly.
In a handwritten October 29, 2013 report, Dr. Weisberg related that during the week of
June 10 through 15, 2013 appellant experienced a significant amount of emotional stress while at
work at the employing establishment due to management’s verbal harassment and conflicting
demands. He explained that management was applying significant emotional pressure on
appellant in regards to his workload and work requirements. Dr. Weisberg opined that the
emotional pressure and stress escalated to the point that appellant suffered an acute severe panic
attack, which led to uncontrollably shaking and becoming emotional labile. He related that
paramedics came and transported appellant to the nearest hospital where he was treated for
dangerously high blood pressure. Dr. Weisberg concluded that the emotional trauma from
extreme pressure being applied by appellant’s superiors directly contributed to a temporary

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harmful and detrimental physiologic state, which caused an unacceptably high blood pressure
along with a panic attack.
By decision dated January 23, 2014, OWCP denied appellant’s occupational disease
claim finding that the employment factors he alleged to have caused or contributed to his
emotional condition were not compensable factors of employment under FECA.
On January 28, 2015 OWCP received appellant’s January 17, 2015 reconsideration
request. Appellant stated that his request was based on the fact that it was work-related
traumatic stress that occurred on the job during work hours. He explained that management
provoked a hostile work environment and ongoing harassment during his route evaluation
period. Appellant noted that he was escorted by an ambulance from his employment and would
be attaching medical reports from the ambulance and the hospital. OWCP did not receive any
further evidence.
By decision dated March 16, 2015, OWCP denied appellant’s January 17, 2015 request
for reconsideration finding that his request did not meet any of the requirements for further merit
review pursuant to 5 U.S.C. § 8128(a). It determined that his letter did not raise a substantive
legal question nor include new and relevant evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his own motion or on application.2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3
OWCP procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following a reconsideration, any merit
decision by the Board, and any merit decision following action by the Board, but does not
include prerecoupment hearing decisions.4 Timeliness is determined by the document receipt
date of the reconsideration request (the received date in the Integrated Federal Employees

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4.b (October 2011).

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Compensation System (iFECS)). If the request for reconsideration has a document received date
greater than one year, the request must be considered untimely.5
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of it in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.6
The term clear evidence of error is intended to represent a difficult standard. If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.7
ANALYSIS
The most recent decision reviewing the merits of appellant’s case was OWCP’s
January 23, 2014 decision. As the appeal rights attached to that decision explained, appellant
had one calendar year from the date of that decision or until January 23, 2015, to ensure receipt
by OWCP of any reconsideration request.
OWCP received appellant’s January 17, 2015 reconsideration request on
January 28, 2015. As the received date was more than one year beyond January 23, 2014,
appellant’s request must be considered untimely. The proper standard of review for an untimely
reconsideration request is the clear evidence of error standard.
In denying appellant’s reconsideration request, OWCP did not determine whether
appellant’s reconsideration request was untimely filed and did not review the request under the
clear evidence of error standard. Rather, it applied the standard of review for timely requests for
reconsideration. As OWCP applied the wrong standard of review to the untimely request for
reconsideration, the Board will set aside OWCP’s September 29, 2014 decision and remand the
case for proper review under the clear evidence of error standard as required by regulations.8
CONCLUSION
The Board finds that OWCP improperly denied appellant’s January 28, 2015
reconsideration request under 5 U.S.C. § 8128(a).

5

Id.

6

20 C.F.R. § 10.607.

7

Supra note 4 at Chapter 1.1602.5.a (October 2011).

8

See 20 C.F.R. § 10.607(b). See L.D., Docket No. 15-0865 (issued October 6, 2015).

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ORDER
IT IS HEREBY ORDERED THAT the March 16, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further review under
the clear evidence of error standard.
Issued: January 14, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 06-1405
Issued: January 26, 2007

Case Submitted on the Record

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

JURISDICTION
On June 13, 2006 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ hearing representative’s decision, dated April 3, 2006,
affirming the termination of her compensation benefits. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
medical and compensation benefits effective May 31, 2005; and (2) whether appellant has met
her burden of proof to establish any continuing disability due to her October 5, 2002 employment
injury.
FACTUAL HISTORY
On October 5, 2002 appellant, then a 59-year-old regular rural carrier, filed a traumatic
injury claim alleging that she had developed low back pain due to lifting in the performance of

duty. The Office accepted appellant’s claim for herniated disc L4-5 on December 11, 2002 and
entered her on the periodic rolls on December 12, 2002.
Appellant underwent a magnetic resonance imaging (MRI) scan on July 23, 2002 at the
request of Dr. Dorothy Chase, a family practitioner, due to a clinical history of low back pain
with radiation down the right lower extremity with some associated paresthesias. The MRI scan
demonstrated minimal narrowing of the L4-5 disc space, a broad-based bulging annulus at the
L3-4 and L4-5 levels with no focality or compression of the exiting nerve roots. Appellant’s
MRI scan also demonstrated a slightly bulging annulus at the L5-S1 level.
Following her accepted employment injury, appellant’s attending physician,
Dr. Stephen H. Johnson, a Board-certified neurosurgeon, recommended conservative treatment
and epidural injections. He noted that the initial MRI scan following appellant’s date of injury
demonstrated a very small subligamentous disruption at L4-5. Dr. Johnson recommended an
additional MRI scan on May 13, 2003 due to a severe worsening of appellant’s radiculopathy.
The June 3, 2003 MRI scan demonstrated a slight increase in size of small left-sided herniations
at L3-4 and L4-5, but no nerve root impingement. Dr. Johnson reviewed the June 3, 2003 MRI
scan on June 10, 2003 and found no evidence of significant nerve root compression. He
recommended a myelogram. Appellant’s June 26, 2003 myelogram demonstrated no evidence of
significant degenerative disc disease with slight underfilling of the left S1 nerve root. The
computerized tomography (CT) immediately following the myelogram demonstrated mild
bulging discs at L3-4, L4-5 and mild Grade 1 spondylolisthesis at L5-S1. Following these tests,
Dr. Johnson recommended an electromyelogram (EMG) of the right leg to rule out radiculitis.
Appellant’s August 26, 2003 EMG was reported as normal with no electrodiagnostic evidence of
a right lumbosacral motor radiculopathy. Dr. Johnson recommended additional physical therapy
on September 11, 2003 and additional testing for unusual causes of appellant’s pain on
November 13, 2003. He stated that the etiology of appellant’s pain was unclear and that the MRI
scan suggested minor pathology all on the left side. Dr. Johnson continued to support appellant’s
total disability for work.
Dr. Johnson examined appellant on January 13, 2004 and stated that she was disabled
from her work requirements of lifting, bending and twisting. He stated that it was unclear when
appellant might recover completely and that appellant should not return to the employing
establishment. Dr. Johnson examined appellant on July 15, 2004 and noted that she experienced
back and leg pain associated with discogenic pathology that was nonoperative. He noted that
appellant’s low back pain was constant and opined that she was permanently disabled from her
date-of-injury position due to the heavy lifting required. Dr. Johnson suggested work hardening.
On July 30, 2004 the Office referred appellant for a second opinion evaluation with
Dr. John McConville, a Board-certified orthopedic surgeon. In an August 17, 2004 report,
Dr. McConville noted that appellant had a preexisting back condition warranting an MRI scan
three months before her accepted employment injury. He found no palpable muscle spasm or
guarding on physical examination with lateral flexion bilateral to 30 degrees with no complaints
of pain. Dr. McConville noted that appellant had pain with forward flexion and hyperextension
of the lumbar spine. He stated that appellant could heel and toe walk with no weakness in
dorsiflexion or plantar flexion in the right lower extremity. Dr. McConville also reviewed
appellant’s diagnostic studies and concluded that they demonstrated mild to moderate

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degenerative changes in the lumbar spine consistent with appellant’s age. He stated, “[A]ll
objective diagnostic imaging studies, including conventional x-rays, myelogram, MRI scan
studies, bone scan and EMG testing have disclosed no obvious, easily recognizable and
understandable objective problems that could be considered consistent with the duration and
severity of the complaints of [appellant].” Dr. McConville noted that appellant’s objective
diagnostic tests gave no evidence of easily observable and readily recognizable significant
lumbar disc derangement. He diagnosed acute lumbosacral sprain, chronic low back syndrome
with intermittent mild right lumbar radiculopathy, lumbosacral instability with Grade 1
spondylolisthesis L5-S1 and subligamentous L4-5 lumbar disc displacement (resolved).
Dr. McConville concluded that appellant’s final diagnosis was related to her accepted
employment injury of October 5, 2002. He listed appellant’s back diagnoses as acute
lumbosacral sprain (resolved) and primary lumbosacral instability with L4-5 subligamentous disc
derangement, improved.
Dr. McConville concluded that appellant did not have substantiating objective findings
either in terms of physical examination or diagnostic imaging procedures to justify her claim for
total disability. He stated that appellant could return to limited-duty work eight hours a day with
limitations on lifting more than 20 pounds, as well as repeated bending, stooping and twisting.
Dr. McConville stated that appellant should be allowed to change positions. He stated that
appellant’s October 5, 2002 injury was an aggravation of a preexisting back condition, that she
did not require further medical treatment and that she was capable of work. Dr. McConville
concluded that appellant had no residuals of her work-related condition.
In a letter dated September 27, 2004, the Office proposed to terminate appellant’s
compensation benefits on the grounds that she had no medical residuals of her accepted
employment injury based on Dr. McConville’s August 17, 2004 report. It allowed appellant 30
days for a response.
On October 22, 2004 appellant’s attorney responded to the Office’s notice of proposed
termination, contending that Dr. McConville failed to base his report on a proper factual
background as he found that appellant had sustained an aggravation of preexisting conditions
rather than a herniated disc as accepted by the Office. Appellant submitted a report from
Dr. Chase dated October 21, 2004 which stated that appellant developed low back pain on
November 6, 2001, which she diagnosed as a strain and which resolved. She attributed this back
pain to lifting in the performance of appellant’s federal job duties and opined that appellant’s
back symptoms were all due to her employment activities. Dr. Chase also completed a workrestriction evaluation and indicated that appellant was totally disabled due to back pain.
By decision dated May 20, 2005, the Office terminated appellant’s compensation benefits
effective May 31, 2005 as it found she had no residuals of her work-related injury.
Appellant requested an oral hearing on May 26, 2005. She testified at the oral hearing on
January 18, 2006 and her attorney alleged that Dr. McConville’s report was not sufficient to
meet the Office’s burden of proof.

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Following the oral hearing, appellant submitted a report from Dr. Chase dated January 5,
2006 which stated that an October 25, 2004 MRI scan demonstrated a left L5 protrusion of the
disc that abuts the left L5 nerve root causing pain down her left leg.
By decision dated April 3, 2006, the hearing representative affirmed the Office’s May 20,
2005 termination decision finding that the weight of the medical evidence established that the
injury-related condition had resolved.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2 The
Office’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 of
disability. To terminate authorization for medical treatment, the Office must establish that a
claimant no longer has residuals of an employment-related condition, which require further
medical treatment.4 The Office’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for herniated disc at L4-5 and entered her on the
periodic rolls on December 12, 2002. Appellant’s attending physician, Dr. Johnson, a Boardcertified neurosurgeon, diagnosed a work-related nonoperative discogenic condition and
supported appellant’s disability for work through July 2004. The Office referred appellant for a
second opinion evaluation with Dr. McConville, a Board-certified orthopedic surgeon. On
August 17, 2004 he found that appellant had no residuals of her employment injury, required no
further medical treatment and could perform limited-duty work eight hours a day. The Office
based its termination of appellant’s compensation and medical benefits on Dr. McConville’s
August 17, 2004 report.
The Board finds that there is an unresolved conflict of medical opinion evidence between
Dr. McConville and Dr. Johnson. The Federal Employees’ Compensation Act provides that, if
there is a disagreement between the physician making the examination for the United States and
the physician of the employee, the Secretary shall appoint a third physician who shall make an

1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

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

3

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

4

Mary A. Lowe, supra note 2.

5

Daniel F. O’Donnell, Jr., 54 ECAB 456, 460 (2003).

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examination.6 The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion
physician or an Office medical adviser or consultant, the Office shall appoint a third physician to
make an examination. This is called a referee examination and the Office will select a physician
who is qualified in the appropriate specialty and who has had no prior connection with the case.7
Dr. McConville, the second opinion physician selected by the Office, provided a detailed
analysis of appellant’s physical findings and diagnostic testing and concluded that appellant was
not totally disabled due to her accepted employment injury, that she had no residuals of her
employment injury and did not require further medical treatment. On the other hand, appellant’s
attending physician, Dr. Johnson, found that she was totally disabled due to her accepted disc
pathology. Due to this unresolved conflict in the medical opinion evidence, the Office failed to
meet its burden of proof to terminate appellant’s compensation benefits.
CONCLUSION
The Board finds that there is a conflict of medical opinion regarding the nature and extent
of appellant’s accepted employment injuries and resultant disability. Therefore the Office has
not met its burden of proof to terminate appellant’s compensation and medical benefits.

6

5 U.S.C. §§ 8101-8193, 8123.

7

20 C.F.R. § 10.321.

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ORDER
IT IS HEREBY ORDERED THAT the April 3, 2006 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 26, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JOHN J. PERSHING VA MEDICAL CENTER,
Poplar Bluff, MO, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0008
Issued: March 4, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On October 2, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0008.
On January 17, 2019 appellant, then a 47-year-old medical technologist, filed a traumatic
injury claim (Form CA-1) alleging that on January 14, 2019 he had difficulty breathing and
experienced swelling of the brain and body when he was exposed to mold at work while in the
performance of duty. He stopped work on the date of the claimed injury. In support of his claim,
appellant submitted medical evidence. OWCP assigned this claim OWCP File No. xxxxxx215.
Following development of the evidence, OWCP, by decision dated March 1, 2019, denied
appellant’s traumatic injury claim on the factual component because the evidence of record did
not support that the January 14, 2019 exposure occurred as alleged. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA. Additionally, OWCP
noted that appellant had filed a prior occupational disease claim (Form CA-2) in OWCP File No.
xxxxxx158 for an injury caused by workplace mold exposure, which would be addressed in a
separate decision. It noted that the alleged employment-related mold exposure in the claim in

OWCP File No. xxxxxx158 and the current claim in OWCP File No. xxxxxx215 occurred over a
period much longer than one shift
On March 19, 2019 appellant requested reconsideration and submitted additional evidence.
He contended that he submitted test results, photographs, and witness statements that were
sufficient to establish that he was exposed to mold at work, as well as medical evidence sufficient
to establish that he had an asthmatic reaction after being exposed to mold.
By decision dated May 16, 2019, under OWCP File No. xxxxxx215, OWCP denied
modification of its March 1, 2019 decision. It again referenced appellant’s claim for mold
exposure under OWCP File No. xxxxx158.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP’s procedures provide that cases should be administratively combined when
a new injury is reported for an employee who previously filed a claim for a similar injury and
further indicates that the cases should be administratively combined as soon as the need to do so
becomes apparent. 1 The record reflects that appellant filed an occupational disease claim in
OWCP File No. xxxxxx158 and, thereafter, filed the current traumatic injury claim for the same
condition. As both claims involve an asthmatic reaction to the exposure of mold, the claims must
be administratively combined for a full and fair adjudication of appellant’s present claim. This
will allow OWCP to consider all relevant claim files and accompanying evide nce in developing
appellant’s current traumatic injury claim.
The case shall therefore be remanded for OWCP to administratively combine OWCP File
Nos. xxxxxx215 and xxxxxx158. Following this and other such further development as deemed
necessary, it shall issue a de novo decision.

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1) (February 2000);
see R.R., Docket No. 20-0911 (issued October 30, 2020); T.M., Docket Nos. 09-1090 and 09-2226 (issued
March 8, 2010).

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IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 4, 2022
Washington, DC

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

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

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

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