United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PUBLIC WORKS CENTER, San Diego, CA,
Employer
__________________________________________

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

Docket No. 09-167
Issued: July 17, 2009

Case Submitted on the Record

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

JURISDICTION
On October 22, 2008 appellant filed a timely appeal from a July 18, 2008 decision of the
Office of Workers’ Compensation Programs’ decision adjudicating his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the case.
ISSUE
The issue is whether appellant has more than 11 percent impairment of his left upper
extremity for which he received a schedule award.
FACTUAL HISTORY
This is the third appeal in this case.1 By decisions dated January 8, 2007 and April 8,
2008, the Board remanded the case for further development of the medical evidence. The law
1

See Docket No. 08-30 (issued April 8, 2008); Docket No. 06-1982 (issued January 8, 2007).

and the facts of this case, as set forth in the Board’s prior decisions, are incorporated herein by
reference.
On February 13, 2003 appellant, then a 40-year-old roofer sustained a left wrist fracture
and a lumbar compression fracture when he fell from a roof while working. On April 10, 2004
he filed a claim for a schedule award. On May 20, 2004 the Office granted appellant a schedule
award for 11 percent of his left upper extremity for 34.32 weeks, from January 16 to
September 12, 2004.2 By decisions dated August 19, 2005 and June 27, 2007, it denied
modification of the May 20, 2004 decision.
In an April 18, 2008 memorandum, a senior Office claims examiner asked Dr. Ellen
Pichey, an Office medical adviser, to explain whether she disagreed with the physical findings of
Dr. Richard Yu, the treating physician, who did not provide an impairment rating, and the
impairment rating of Dr. Arthur Harris, an Office medical consultant.
On May 26, 2008 Dr. Pichey provided a report regarding appellant’s left wrist
impairment.3 The top of the paper submitted to her by the claims examiner for her impairment
rating contained a printed note that, “only bookmarked documents should be referred to DM
[district medical] consultant.” Dr. Pichey stated that Dr. Harris provided rationale in his June 20,
2007 impairment rating for his rating of appellant’s grip strength. She opined that appellant had
one percent impairment for loss of palmar flexion in the left wrist.4 Dr. Pichey did not address
the one percent impairment Dr. Harris calculated for residual left wrist pain. She did not provide
a rationalized opinion as to appellant’s total left wrist extremity impairment.
In a July 18, 2008 decision, the Office found that appellant had no more than 11 percent
impairment of his left wrist causally related to his accepted left wrist fracture.
LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 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. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to

2

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of an upper extremity. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 11 percent equals 34.32 weeks of
compensation.
3

Dr. Pichey did not personally examine appellant.

4

Dr. Harris found no ratable impairment due to decreased left wrist flexion.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

2

all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
ANALYSIS
In its January 8, 2007 and April 8, 2008 decisions, the Board noted several deficiencies in
the impairment rating provided by Dr. Harris. However, in the memorandum to Dr. Pichey, the
Office claims examiner summarized the impairment calculation of Dr. Harris without noting
these deficiencies. Additionally, the claims examiner indicated that only bookmarked documents
should be referred to the Office medical consultant. Therefore, the medical evidence made
available to Dr. Pichey cannot be determined. Dr. Pichey stated that Dr. Harris provided
rationale in his June 20, 2007 impairment rating for his rating of appellant’s grip strength. She
opined that appellant had one percent impairment for left wrist loss of flexion.8 Dr. Pichey did
not address the one percent impairment Dr. Harris calculated for residual left wrist pain. She did
not provide a rationalized opinion as to appellant’s total left wrist extremity impairment. Due to
these deficiencies, Dr. Pichey’s May 26, 2008 report is not sufficient to establish appellant’s left
wrist impairment. The case must be remanded for further development of the medical evidence.
CONCLUSION
The Board finds that this case is not in posture for a decision and must be remanded for
further development of the medical evidence. On remand, the Office should refer appellant to an
appropriate medical specialist for an impairment rating of appellant’s left wrist based on correct
application of the A.M.A., Guides and supported by thorough medical rationale. The evaluating
physician should review the January 16, 2004 report of Dr. Yu who personally examined
appellant, provided findings on physical examination, and found that he had reached maximum
medical improvement. As noted in the Board’s April 8, 2008 and January 8, 2007 decisions,
there are numerous deficiencies in the impairment rating of Dr. Harris. Accordingly, the new
evaluating physician should not base any portion of his or her impairment rating on the May 6,
2004 or June 20, 2007 reports of Dr. Harris. After such further development as may be required
to obtain an accurate rating of appellant’s left wrist impairment, the Office should issue an
appropriate decision.

7

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

8

As noted, Dr. Harris found no left wrist impairment due to loss of range of motion.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 18, 2008 is set aside and the case is remanded for further
development consistent with this decision.
Issued: July 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, WAGE & HOUR
DIVISION, Dallas, TX, Employer
__________________________________________

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

Docket No. 11-796
Issued: January 12, 2012

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant filed a timely appeal of a December 27, 2010 merit
decision1 of the Office of Workers’ Compensation Programs (OWCP) denying her emotional
condition claim.2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Appellant actually appealed a January 19, 2011 OWCP “decision.” However, the Board notes that the record
does not contain a decision issued by OWCP on this date.
2

In a decision dated February 10, 2011, OWCP denied appellant’s request for reconsideration, without a review
of the merits, regarding the December 27, 2010 decision, which found that she did not sustain an emotional
condition in the performance of duty. The Board and OWCP may not have concurrent jurisdiction over the same
issue in a case. Consequently, the February 10, 2011 decision, issued while the Board had jurisdiction of the case, is
null and void. Douglas E. Billings, 41 ECAB 880 (1990); see also 20 C.F.R. § 501.2(c)(3).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
On appeal, appellant contends that the evidence of record establishes that she sustained
the claimed emotional condition.
FACTUAL HISTORY
On January 19, 2010 appellant, then a 43-year-old human resources compensation
specialist, filed an occupational disease claim alleging that on August 19, 2009 she first realized
that her unbearable headaches and upper body pain were caused by constant harassment from
Denise Flores, a regional wage specialist, and Deborah Hollins, a lead wage specialist, which
created a hostile work environment. She was also subjected to verbal harassment and yelling and
was unfairly accused of incorrectly performing her work duties. Appellant filed an Equal
Employment Opportunity (EEO) complaint against the employing establishment which had not
yet been resolved.
By letter dated February 23, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence.
OWCP also requested that the employing establishment respond to appellant’s allegations.
In a March 12, 2010 memorandum, Ms. Flores noted that appellant filed a grievance on
September 3, 2009 alleging a hostile work environment. She denied appellant’s allegation of
being subjected to this type of work environment and verbal harassment. Ms. Flores stated that
an investigation of appellant’s allegation by the employing establishment’s EEO office
determined that no law, regulation or policy regarding harassment had been violated and that her
allegation was false. Appellant did not perform her required work duties in accordance with
management’s expectations and her performance standards. Her difficulty with understanding
the Davis-Bacon survey program for which she underwent training in June 2009 resulted in her
difficulty with the performance of her assigned duties. Appellant did not complete her work
assignments correctly or in a timely manner. From July 1 to September 2, 2009, Ms. Flores and
Ms. Hollins met with appellant’s twice a day to review her work and provide very detailed
refresher training and instructions for performing Davis-Bacon surveys. In October 2009,
appellant was rated as minimally satisfactory due to deficiencies in her work assignments which
were regularly returned to her due to repetitive errors. She was counseled on several occasions
regarding leave abuse and inappropriate use of the internet during work hours.
In e-mails dated May 15, 2009 to February 24, 2010, appellant alleged several incidents
of harassment by the employing establishment. On May 15, 2009 Ms. Flores requested a leave
slip because her lunch break went beyond 30 minutes. On July 30, 2009 appellant asked
Ms. Flores for an explanation for her request since no other employee was instructed to submit a
leave slip for an extended lunch break. During training in San Francisco, California from June 8
through 12, 2009, Ms. Hollins became angry and acted mean towards appellant because she
asked Shirley Ebbeson, an employing establishment employee, too many questions about a
survey process. From July 7 through September 2, 2009, appellant had to meet with Ms. Flores

2

and Ms. Hollins twice a day until 90 percent of her work did not contain substantial errors and
her work product reflected an efficient use of her time. She denied any substantial errors in her
work. On July 9, 2009 appellant contacted Theresa Brandon, a union representative, about filing
a harassment claim against Ms. Flores. On July 14 and 15, 2009 she asked Ms. Flores if she
could have a witness when she met with Ms. Hollins due to a July 8, 2009 incident in which
Ms. Hollins snatched papers from her and hollered at her. Appellant contended that this incident
was witnessed by Ms. Flores. On July 30, 2009 she requested that Ms. Hollins place her
assignments in her box so that Ms. Hollins could not slap them down on her keyboard. On
August 3, 2009 appellant advised the union in writing that she did not want to meet alone with
Ms. Hollins. She asserted that Ms. Hollins and Ms. Flores sent her unnecessary, hateful and rude
e-mails from July 16, 2009 through April 13, 2010 regarding her work performance. Appellant
further asserted that on August 12, 2009 Ms. Flores and Ms. Hollins treated Denise Clark, a
15-year employee, so badly that Cynthia Watson, a regional administrator, immediately granted
Ms. Watson’s request to transfer to a different section.
On August 20, 2009 Ms. Hollins yelled at appellant when she denied performing her
work incorrectly. Appellant left the office and cried and she talked to Ms. Clark and another
employee and wrote the union and administration about this incident. On August 28, 2009
Ms. Flores instructed appellant to obtain permission to attend any meetings with a union
representative. On September 1, 2009 appellant advised Ms. Brandon that she needed to file a
claim because her situation had worsened. On September 2, 2009 Ms. Flores advised appellant
that daily meetings were no longer necessary and did not respond to her inquiry about whether
she had met her goal. On September 17, 2009 appellant questioned why Ms. Flores wanted her
to look for a file in an employee’s area and cabinets. On October 6, 2009 she heard Ms. Hollins
gossiping on the telephone with Ms. Flores about her interview with Ms. Brandon. This incident
was witnessed by LaDonna Vick, Ms. Clark and Susie Rendon, employees. On October 7, 2009
Ms. Brandon requested that necessary action be taken against Ms. Hollins for disclosing
confidential information. On November 24, 2009 appellant contended that Ms. Flores was
unqualified to be a manager. She denied that her assignments were unfinished as she performed
all of her work and that of other employees.
In a step-two decision dated December 22, 2009, the employing establishment denied
appellant’s September 3, 2009 EEO complaint, finding no violations of any provisions in a union
contract.
In a February 1, 2010 e-mail, Teleah Hayes, an employee, advised appellant that she
overheard a conversation in which Ms. Hollins discussed appellant’s work ethics with an
employee. Ms. Hollins stated that on January 28, 2010 appellant sat at her desk and did nothing.
Appellant only submitted a small stack of files when she should have turned in more work.
Ms. Hollins stated that Rachel Guerrero, an employee, and Ms. Vick could perform all the work
that needed to be performed in the office. She discussed a conversation between appellant and
Ms. Guerro which upset Ms. Guerro.
In a June 7, 2010 letter, Ms. Clark stated that she transferred to another section in the
employing establishment due to hostile treatment she received from Ms. Flores and Ms. Hollins.
She witnessed these women harass appellant on several occasions. They had daily meetings with
only her. Ms. Hollins disclosed confidential information about the work performance of

3

appellant and other employees. Ms. Clark heard Ms. Hollins and/or Ms. Flores talk loudly or
yell at appellant about her work performance. She believed that they did not like appellant and
punished her in any possible manner.
In a June 9, 2010 letter, Rhonda L. Pettitt, an employee, stated that on at least three
occasions appellant vented to her about being harassed at work. In one of these incidents
appellant was reduced to tears and had to go to the restroom to pull herself together before
talking to a union representative. Other times she was on the verge of tears, but was able to calm
down and return to her desk.
In a February 24, 2010 memorandum, Betty A. Lopez, the EEO program manager, stated
that she reviewed interviews of Ms. Hollins, Ms. Flores and other employees which were
conducted by James E. Varsalone, an EEO investigator, in response to appellant’s September 10,
2009 harassment complaint. She determined that the evidence did not demonstrate that
Ms. Hollins had violated the employing establishment’s harassment policy.
Medical records dated March 29 through April 15, 2010, found that appellant had a
stress-induced musculoskeletal injury, carpal tunnel syndrome and cervical spondylosis.
In a May 26, 2010 decision, OWCP denied appellant’s claim. It found that the factual
evidence was insufficient to establish that the incidents occurred as alleged. OWCP also found
that the medical evidence failed to establish that appellant sustained a medical condition causally
related to the alleged employment factors.
On June 29, 2010 appellant requested a telephone hearing before an OWCP hearing
representative.
Medical records dated June 7 through October 15, 2010, advised that appellant had
chronic post-traumatic stress disorder and depression due to harassment, a hostile work
environment and retaliation.
In a December 27, 2010 decision, an OWCP hearing representative affirmed the May 26,
2010 decision. The hearing representative found that appellant failed to establish any
compensable employment factors.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.4 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;

4

Pamela R. Rice, 38 ECAB 838 (1987).

4

and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.5
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 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.6 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.7
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 FECA8 However, the Board
has 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.9
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.10
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.11 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, OWCP must base its decision on an analysis of
the medical evidence.12
5

See Donna Faye Cardwell, 41 ECAB 730 (1990).

6

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

7

Gregorio E. Conde, 52 ECAB 410 (2001).

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
9

See William H. Fortner, 49 ECAB 324 (1998).

10

Ruth S. Johnson, 46 ECAB 237 (1994).

11

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

12

Id.

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ANALYSIS
Appellant alleged that she sustained an emotional condition due to several incidents at the
employing establishment. Primarily, she alleged instances of harassment and unfair treatment by
her coworkers, Ms. Flores and Ms. Hollins. OWCP denied appellant’s emotional condition
claim on the grounds that she did not establish any compensable employment factors. The Board
must, therefore, initially review whether these alleged incidents and conditions of employment
are covered employment factors under the terms of FECA. The Board notes that appellant’s
allegations do not pertain to her regularly or specially assigned duties under Cutler.13 Rather
appellant has alleged harassment and unfair treatment or error and abuse by her supervisors in
administrative matters.
Appellant contended that Ms. Flores and Ms. Hollins created a hostile work environment
by subjecting her to harassment and verbal abuse. She contended that Ms. Hollins snatched
papers from her hands and yelled at her on July 8, 2009. Appellant also contended that on
August 20, 2009 Ms. Hollins yelled at her when she denied performing her assignments
incorrectly. On September 17, 2009 Ms. Flores asked her to look for a file in an employee’s area
and cabinet. Appellant alleged that on October 6, 2009 she overhead Ms. Hollins gossiping on
the telephone with Ms. Flores about her interview with Ms. Brandon. She contended that
Ms. Hollins and Ms. Flores unjustifiably accused her of incorrectly performing her work duties
and failing to complete her assignments. Appellant stated that they sent her unnecessary, hateful
and rude e-mails from July 16, 2009 to April 13, 2010 regarding her work performance. She
asserted that Ms. Hollins slapped her work down on her keyboard. Appellant further asserted
that during training in San Francisco, California from June 8 through 12, 2009, Ms. Hollins
reacted angrily and mean towards her when she questioned Ms. Ebbeson about a survey process.
She alleged that on May 15, 2009 Ms. Flores unfairly instructed her to submit a leave slip for an
extended lunch break while no other employees in the same situation were asked to submit a
leave slip. Appellant contended that Ms. Hollins and Ms. Flores unjustifiably reviewed her work
twice a day from July 7 to September 2, 2009 until 90 percent of her work did not contain any
errors. She asserted that Ms. Flores never responded to her question about whether she had met
her goal upon completion of the review period. Appellant filed an EEO complaint alleging
harassment by Ms. Hollins and Ms. Flores.
Appellant’s contentions regarding Ms. Hollins’ request for a leave slip,14 the
assignment15 and monitoring of her work by Ms. Flores and Ms. Hollins16 and filing of an EEO
complaint alleging harassment17 are administrative matters and not compensable absent a
showing of error or abuse on the part of the employing establishment. Although she has alleged
error or abuse by her coworkers, she did not submit any probative evidence establishing error or
13

Cutler, supra note 6.

14

John Polito, 50 ECAB 347, 348 (1999).

15

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

16

See Lori A. Facey, 55 ECAB 217, 224 (2004).

17

Michael A. Salvato, 53 ECB 666, 668 (2002).

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abuse regarding the above-noted administrative matters. Ms. Flores explained that appellant’s
work performance was monitored because it did not meet management’s expectations and her
performance standards. She stated that appellant had difficulty performing surveys under the
Davis-Bacon program for which she received training. Ms. Flores also stated that she incorrectly
performed her work assignments which were regularly returned to her due to repetitive errors
and she completed her assignments in an untimely manner. She related that the review sessions
she and Ms. Hollins had with appellant twice a day provided her with refresher training and
instructions for performing her surveys. Ms. Flores counseled her on several occasions for
abusing leave and inappropriately using the internet during work hours. She stated that appellant
received a minimally satisfactory performance appraisal in October 2009 due to deficiencies in
her work performance. The Board notes that the counseling sessions18 and performance
appraisal19 are administrative matters and appellant has not submitted any probative evidence
establishing error or abuse regarding these matters. Further, Ms. Flores and Ms. Lopez stated
that the investigation of appellant’s September 3, 2009 harassment complaint by the employing
establishment’s EEO office revealed that there was no violation of law, regulation, policy or
union by the employing establishment. Appellant did not submit a final EEO decision. While
she submitted a December 22, 2009 step two decision, there was no finding that the employing
establishment committed error or abuse. The Board finds, therefore, that appellant has failed to
establish a compensable employment factor with regard to the above-noted administrative and
personnel matters.
To the extent that incidents alleged as constituting harassment by a coworker are
established as occurring and arising from appellant’s performance of her regular duties, these
could constitute employment factors. However, for harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment or discrimination did, in fact,
occur. Mere perceptions or feelings of harassment do not constitute a compensable factor of
employment.20 An employee’s charges that he or she was harassed or discriminated against, is
not determinative of whether or not harassment or discrimination occurred.21 To establish
entitlement to benefits, a claimant must establish a factual basis for the claim by supporting his
or her allegations with probative and reliable evidence.22 The factual evidence fails to support
appellant’s claim for harassment. The record does not support her allegation that she was
harassed. Appellant stated that the July 8, 2009 incident was witnessed by Ms. Flores and the
October 6, 2009 incident was witnessed by Ms. Vick, Ms. Clark and Ms. Rendon, but she did not
submit a statement from any of these individuals describing the incidents as alleged. While
Ms. Lewis noted incidents involving appellant’s reaction to being harassed at work, she failed to
provide any specific details and dates of these incidents. The Board finds that her statement does
not constitute sufficient evidence of harassment on the part of the employing establishment.
Similarly, Ms. Hayes’ statement that she overheard negative comments made by Ms. Hollins to
18

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

19

David C. Lindsey, Jr., 56 ECAB 263, 271-72 (2005).

20

Lorraine E. Schroeder, 44 ECAB 323 (1992).

21

See William P. George, 43 ECAB 1159 (1992).

22

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

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an employee regarding appellant’s work performance is of a general nature and, therefore, is also
insufficient to establish harassment on the part of the employing establishment. Ms. Flores
denied that appellant was subjected to a hostile work environment based on the finding of the
employing establishment EEO office that no harassment law, regulation or policy had been
violated and her allegations were false.
Regarding appellant’s allegation that she was verbally abused by Ms. Hollins, the Board
has generally held that being spoken to in a raised or harsh voice does not of itself constitute
verbal abuse or harassment.23 In the instances she described above, the Board notes that the fact
that Ms. Hollins yelled at her on July 8 and August 20, 2009 regarding her poor work
performance in a raised tone of voice is insufficient, by itself, to warrant a finding that her
actions amounted to verbal abuse as she did not show how such a response would rise to the
level of verbal abuse or otherwise fall within the coverage of FECA.24 Although appellant
asserted that she was in tears following the August 20, 2009 incident and talked to Ms. Clark and
another employee about the incident, the record is devoid of any statement from these witnesses
corroborating her version of this incident. Ms. Clark stated in a June 7, 2010 letter, that she
heard Ms. Hollins and Ms. Flores talk loudly or yell at appellant about her work performance.
She also stated that she witnessed these women harass her on several occasions. However, these
statements are insufficient as they are general perceptions made by Ms. Clark without describing
in detail specific incidents. Her statements merely note that she has witnessed the described
behavior by Ms. Hollins and Ms. Flores. No mention is made of when or where appellant was
allegedly subjected to this behavior. Moreover, Ms. Clark’s allegation that she transferred to
another section due to the hostile behavior of Ms. Flores and Ms. Hollins does not establish that
appellant was subjected to the same harassment and hostile behavior. Ms. Flores denied that
appellant was verbally abused. The Board finds that appellant has not met her burden of proof to
establish verbal abuse.
On appeal, appellant contended that the evidence of record is sufficient to establish that
she sustained an emotional condition in the performance of duty. For reasons noted, the Board
finds that she has not established a compensable employment factor giving rise to her claimed
emotional condition. Therefore, appellant did not meet her burden of proof.25
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 failed to establish that she sustained an emotional
condition in the performance of duty, as alleged.
23

T.G., 58 ECAB 189 (2006).

24

Peter D. Butt, Jr., 56 ECAB 117 (2004).

25

As appellant has not substantiated a compensable factor of employment as the cause of his emotional condition,
the medical evidence regarding his emotional condition need not be addressed. Karen K. Levene, 54 ECAB
671 (2003).

8

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 12, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Las Vegas, NV,
Employer
__________________________________________

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

Docket No. 08-2551
Issued: June 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the February 14 and June 24,
2008 merit decisions of the Office of Workers’ Compensation Programs denying his traumatic
injury claim and request for a schedule award. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury while in the
performance of duty on November 5, 1977; and (2) whether the Office properly determined that
he was not entitled to a schedule award.
FACTUAL HISTORY
On November 10, 1977 appellant, then a 22-year-old special agent, filed a traumatic
injury claim alleging that he sustained a skull fracture, concussion and cuts and bruises on his
head on November 5, 1977 as a result of a work-related motor vehicle accident. The record

reflects that he received continuation of pay (COP) for the period from November 6
through 28, 1977. Appellant returned to work on November 29, 1977. His claim was treated as
a “short-form closure” case. On November 27, 1984 the case was closed and the record was
destroyed due to inactivity without being fully adjudicated.
On May 31, 2007 appellant filed a notice of recurrence alleging that he had sustained a
significant hearing loss in his right ear due to the November 5, 1977 motor vehicle accident. He
stated that, at the time of the injury, medical personnel had advised him that he sustained nerve
damage in his right ear as a result of a skull fracture. On May 31, 2007 appellant also requested
a schedule award.
In a letter dated October 29, 2007, the Office informed appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional
information, including records of medical treatment since the 1977 accident and a current
physician’s report, with a diagnosis and a rationalized opinion as to the cause of the diagnosed
condition.
Appellant submitted numerous fitness-for-duty reports and audiograms performed by the
employing establishment, medical personnel from February 2, 1976 to August 15, 2005. On
April 17, 1979 Dr. Terry L. Kellenberger, a Board-certified family practitioner, reported that
appellant had a history of a head injury in 1977, with an uneventful recovery. An August 1,
1984 audiogram reflected that appellant’s hearing sensitivity was within normal limits
bilaterally, but better on the left than the right. On October 27, 1988 Dr. Frank J. Santora, Jr.
reported borderline hearing loss in the right ear. In reports dated October 17, 1989 to August 15,
1995, Dr. Richard Rydze noted that appellant had mild-to-moderate high-tone hearing loss, right
greater than left. On January 7, 1999 Dr. William F. Feldner diagnosed moderate high-tone
hearing loss in the right ear and mild high-tone loss in the left ear.
By decision dated February 14, 2008, the Office denied appellant’s recurrence and
schedule award claims. It accepted that appellant was involved in a motor vehicle accident on
November 5, 1977. However, it found that appellant had not submitted “contemporaneous
medical evidence to determine what diagnosed medical condition was sustained as a result of the
motor vehicle accident” and therefore had failed to establish that the motor vehicle accident
caused or contributed to his hearing loss condition. The Office also found that, as the case was
not accepted for a hearing loss, appellant was not entitled to a schedule award.
On February 19, 2008 appellant requested reconsideration. He asserted his belief that his
hearing loss was causally related to the accepted 1977 work injury. Appellant reported that,
following the 1977 motor vehicle accident, he was advised by his physician that he would
probably sustain some degree of nerve damage and resultant hearing loss in his right ear.
The record reflects that appellant filed an occupational disease claim on November 20,
2007 (File No. xxxxxx912) alleging that he sustained permanent bilateral hearing impairment as
a result of nerve damage and 30-years of exposure to fire arms training. He submitted a
March 12, 2008 audiogram, bearing an illegible signature.

2

In connection with appellant’s occupational disease claim, the Office directed him to
submit to a second opinion examination in order to determine whether his hearing loss was
secondary to work-related noise exposure. In a March 5, 2008 report, Dr. Richard L. Barnes, a
Board-certified osteopath specializing in otolaryngology, provided a history of injury. He
indicated that appellant had sustained a skull fracture as a result of a November 5, 1977 motor
vehicle accident. Appellant reported a cerebral spinal leak from his right ear. A review of the
medical records reflected that he developed mild sensorineural hearing loss on the right after the
temporal bone fracture. Examination revealed patent external auditory canals. Eardrums were
intact and drum mobility was normal. Audiogram testing showed a mild-to-moderate right
sensorineural hearing loss and mild high frequency left sensorineural hearing loss. Dr. Barnes
opined that it was medically probable that the hearing loss was due to appellant’s noise exposure
during federal employment because the findings were consistent with noise-induced
sensorineural hearing loss bilaterally. He noted, however, that there was an asymmetrical
sensorineural hearing loss on the right, giving him a moderate hearing loss on the right.
Dr. Barnes stated that this finding would be consistent with the temporal lobe fracture, which
was sustained during appellant’s federal employment.
On April 30, 2008 the Office accepted appellant’s occupational disease claim (File No.
xxxxxx912) for bilateral high frequency neurosensory hearing loss.
By decision dated June 24, 2008, the Office denied modification of its February 14, 2008
decision. It found that Dr. Barnes’ report, which was submitted under a different case, did not
provide any medical rationale supported by contemporaneous medical reports of the 1977 work
injury and that no medical reports were submitted to establish that the hearing loss was a result
of the November 5, 1977 motor vehicle accident. The Office also found that appellant was not
entitled to a schedule award, since he had failed to establish that the November 5, 1977 work
injury caused or contributed to his hearing loss.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.1 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged and that any disability or specific condition for which compensation is claimed is
1

5 U.S.C. § 8102(a).

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).

3

causally related to the employment injury.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the November 5, 1977 motor vehicle accident occurred as
alleged in the performance of duty. The issue, therefore, is whether appellant has submitted
sufficient medical evidence to establish that the employment incident caused an injury. The
Board finds that this case is not in posture for decision regarding whether appellant sustained an
injury in the performance of duty.
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term “injury,” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. §§ 10.5(q) and (ee), which defines occupational disease and
traumatic injury, respectively.
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Id.

8

20 C.F.R. § 10.303(a).

9

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

4

An employee who claims benefits under the Act has the burden of establishing the
essential elements of his claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is sought
is causally related to a specific employment incident or to specific conditions of the employment.
As part of this burden, the claimant must present rationalized medical opinion evidence, based
upon a complete and accurate factual and medical background, establishing causal relationship.10
However, it is well established that proceedings under the Act are not adversarial in nature and,
while the claimant has the burden of establishing entitlement to compensation, the Office shares
responsibility in the development of the evidence to see that justice is done.11
The Office accepted that the November 5, 1977 accident occurred as alleged, but found
that there was no medical evidence establishing that the accepted incident caused or contributed
to his hearing loss. The Board finds, however, that the medical evidence of record supports that
appellant sustained a work-related injury on November 5, 1977.
In a second opinion examination requested by the Office in conjunction with appellant’s
occupational disease case, Dr. Barnes diagnosed mild-to-moderate right sensorineural hearing
loss and mild high frequency left sensorineural hearing loss. Dr. Barnes noted that appellant had
sustained a skull fracture as a result of the November 5, 1977 motor vehicle accident and had
experienced a cerebral spinal leak from his right ear. A review of the medical records reflected
that appellant developed mild sensorineural hearing loss on the right after the temporal bone
fracture. Dr. Barnes opined that it was medically probable that the hearing loss was due to
appellant’s noise exposure during federal employment, because the findings were consistent with
noise-induced sensorineural hearing loss bilaterally. He noted, however, that there was an
asymmetrical sensorineural hearing loss on the right, giving him a moderate hearing loss on the
right. Dr. Barnes stated that this finding would be consistent with the temporal lobe fracture,
which was sustained during appellant’s federal employment. While his report does not fully
explain how the November 5, 1977 traumatic injury caused or contributed to appellant’s hearing
loss, it supports his claim and is uncontroverted.
In its June 24, 2008 decision, the Office found that Dr. Barnes’ report did not provide any
medical rationale supported by contemporaneous medical reports of the 1977 work accident and
that no medical reports were submitted to establish that the hearing loss was a result of the
accident. However, the Board has held that, once it undertakes development of the record, it has
the responsibility to do so in a proper manner.12 Dr. Barnes’ opinion was requested by and relied
upon by, the Office in appellant’s occupational disease claim, which was accepted for bilateral
high frequency neurosensory hearing loss. If it requires clarification or further explanation as to
his opinion on the existence of a causal relationship between the 1977 accident and appellant’s
hearing loss, then it should seek a supplemental report from Dr. Barnes, who examined appellant
10

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 10; Dorothy L. Sidwell, 36
ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).
12

See Melvin James, 55 ECAB 406 (2004).
Charles J. Jenkins, 40 ECAB 362 (1988).

See also Henry G. Flores, Jr., 43 ECAB 901 (1992);

5

and reviewed the entire medical record and statement of accepted facts. The Office’s decision
denying appellant’s traumatic injury claim was based, in part, upon the fact that the record was
devoid of contemporaneous medical evidence. However, the Board notes that the dearth of
contemporaneous medical evidence was caused by the Office’s destruction of the case record in
1984.
The remaining medical evidence of record also supports appellant’s claim. He submitted
numerous fitness-for-duty reports and audiograms performed by the employing establishment
medical personnel from February 2, 1976 to August 15, 2005. Although these reports do not
contain a rationalized opinion establishing a causal relationship between appellant’s hearing loss
and the 1977 motor vehicle accident, they do provide support for and are factually consistent
with his claim that he developed a hearing loss in his right ear subsequent to the accepted
incident.
The Board notes that, while none of the medical reports of record is completely
rationalized, they are all consistent in indicating that he sustained an employment-related hearing
loss due to the 1977 motor vehicle accident, and are not contradicted by any medical or factual
evidence of record. While the reports are not sufficient to meet his burden of proof to establish
his claim, they raise an uncontroverted inference between appellant’s claimed condition and the
accepted employment incident and are sufficient to require the Office to further develop the
medical evidence and the case record.13 Therefore, the Board finds that the case must be
remanded for further development of the medical evidence. On remand the Office shall obtain a
rationalized opinion from a qualified physician as to whether appellant’s current condition is
causally related to the accepted incident and shall issue an appropriate decision in order to
protect his rights of appeal.
In light of its ruling on the first issue, the Board finds that the case is not in posture for a
decision on the schedule award issue.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty, or whether he is entitled to a schedule award.

13

See Virginia Richard, supra note 10; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the June 24 and February 14, 2008 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
development consistent with this decision.
Issued: June 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FOOD & DRUG
ADMINISTRATION, Bethesda, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1879
Issued: March 21, 2013

Case Submitted on the Record

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

JURISDICTION
On September 5, 2012 appellant, through her attorney, filed a timely appeal from a
June 13, 2012 merit decision and an August 7, 2012 nonmerit 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 recurrence of disability from
September 27 through November 15, 2011 causally related to her accepted June 22, 2009
employment injury; and (2) whether OWCP properly denied appellant’s June 26, 2012 claim for
reconsideration under 5 U.S.C. § 8128(a).
On appeal, appellant’s counsel contends that the decision was contrary to fact and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant, then a 50-year-old press officer, sustained neck, lumbar
and right shoulder/upper arm strains as a result of a June 22, 2009 employment injury. She
stopped work on June 23, 2009. Appellant received disability compensation. On October 7,
2009 she returned to light duty.
On January 22 and June 18, 2010 appellant sustained recurrences of the June 22, 2009
employment injury and stopped work again. OWCP also expanded her claim to include acquired
hallux valgus and tibialis tendinitis. Appellant received disability compensation. On
December 1, 2010 she underwent authorized right foot surgery. Appellant stopped work and
received disability compensation. On February 22, 2011 she returned to light duty.
On May 23, 2011 appellant, along with a statement of accepted facts, was referred for a
second-opinion examination to Dr. William I. Smulyan, a Board-certified orthopedic surgeon,
for a follow-up evaluation to determine whether she was able to return to full duty. In a July 6,
2011 report, Dr. Smulyan reviewed her history, including the statement of accepted facts and
noted that she underwent right foot surgery on December 1, 2010. He also reported that he had
previously examined appellant on September 21, 2010 and found evidence of preexisting flat
foot with hallux valgus with posterior tibial tendon dysfunction. Dr. Smulyan opined that her
current conditions were aggravated by the July 22, 2009 employment injury and concluded that
there was a causal relationship between her accepted injury and her current complaints. Upon
examination, he observed well-aligned head, neck, spine and shoulders. Examination of the right
foot and lower limbs revealed markedly antalgic gait and intact neurovascular status.
Dr. Smulyan stated that radiographic studies demonstrated realigned vagus and well-healing
hallux valgus deformity. He opined that appellant was able to work on a full-time basis, eight
hours a day, on a purely sedentary basis without any periods of walking to exceed 10 to 15
minutes. Dr. Smulyan reported that she had not reached maximum medical improvement and
would benefit from physical therapy.
In an August 5, 2011 report, Dr. Stuart D. Miller, a Board-certified orthopedic surgeon,
related that appellant continued to experience pain and swelling in her foot following a
December 1, 2010 surgery and noted that she was progressing very well. He stated that she was
examined by Dr. Smulyan who thought she should return to work. Dr. Miller opined that
appellant should slowly continue to reach an eight-hour day and noted that there may be a few
days when she needs to remain off her feet for a short period of time.
In a handwritten August 5, 2011 duty status report, Dr. Miller authorized appellant to
return to full duty on a sedentary basis with restrictions of no squatting, kneeling and climbing.
On September 13, 2011 appellant returned to full duty. She continued to receive medical
and physical therapy treatment.

2

On October 7, November 2 and 15, 2011 appellant filed various claims for total disability
compensation beginning September 27 through November 15, 2011.
The employing
establishment noted that she had not returned to work since September 27, 2011.2
By letter dated October 14, 2011, OWCP advised appellant that the evidence was
insufficient to establish that she sustained a recurrence of her disability beginning September 27,
2011 and requested additional evidence to establish her claim.
On November 9, 2011 appellant filed a recurrence claim commencing on
September 27, 2011. She explained that she had been on limited duty with restrictions for a
number of days and had worked at home, but then returned to work with restrictions on bending,
walking, lifting, running, standing and stooping.
Appellant stopped work on
September 27, 2011. The employing establishment checked “yes” that it made adjustments in
her regular duties due to her injury-related limitation. It stated that it adhered to the physician’s
orders and provided appellant with appropriate limited duty and alternative work assignments,
but she did not always follow her limited-duty job offer assignments.
In an undated statement, appellant related that she had walked with a cane for the past
eight months due to her December 2010 surgery and experienced pain, plantar fasciitis, swelling
and difficulty walking. She explained that she favored her left side because she was not steady
on her feet and this factor had exacerbated her shoulder, cervical and back issues. Appellant
stated that walking from the parking lot to her office required her to carry a shoulder briefcase
containing her laptop, work binder, other documents and lunch. She walked to and from her car
to her office each day, which was roughly 4/10 to 5/10 of a mile and also had a long walk to the
bathroom, kitchen and on-campus cafeteria. Appellant noted that, although she had a walking
restriction for her work assignment, there were no accommodations for the other distances that
she walked. She believed that walking these other distances with a cane and carrying a heavy
briefcase, along with the complications created from her foot surgery and using a cane to walk,
contributed to her current neck, shoulder, upper, middle and lower back pain.
In a September 27, 2011 work restriction note, Dr. Robert M. Saltzman, a Board-certified
orthopedic surgeon, checked a box marked “no work” for the period September 27 through
October 4, 2011.
In an October 4, 2011 disability note, Dr. Saltzman checked a box indicating that
appellant may not work until her next visit on November 1, 2011.
In an October 28, 2011 duty status report, Dr. Saltzman noted that appellant worked as a
public affairs specialist and complained of right shoulder and upper back pain. The report
indicated that on June 22, 2009 she slipped on her left foot and pulled her back and leg muscles.
Appellant was advised to return to full duty on November 1, 2011 with a walking restriction of
up to one hour per day.

2

Appellant’s November 18, 2011 time analysis form indicated that she did not work from November 7 to 15,
2011 and worked eight hours each day from November 16 to 18, 2011.

3

In a November 1, 2011 work restriction note, Dr. Saltzman noted a date of injury of
June 22, 2009 and stated that appellant was capable of sedentary work beginning
November 18, 2011.
In a November 7, 2011 office note, Dr. Miller conducted a follow-up examination
following appellant’s posterior tibial tendon reconstruction in December 2010. He related that
she had been out of work secondary to low back problems and believed that it was due to her
altered gait. Dr. Miller recommended that appellant use an ankle brace from time to time and a
boot if it really limited her. He opined that she could have an eight-hour workday but
recommended that she continue to limit her standing and walking at work.
In a November 7, 2011 disability slip, Dr. Miller noted that appellant may return to work
with continued restrictions and could work additional hours from home.
In a November 8, 2011 report, Dr. Saltzman examined appellant for complaints of right
shoulder and upper back pain. He related that she had surgery on her right foot secondary to a
work-related injury and continued to use a cane for many months. Dr. Saltzman explained that
appellant developed upper back and shoulder pain because of her dependence on her upper
extremities for support when she used her cane. Upon examination, he observed limited right
shoulder motion and pain on resister scapular abduction and external rotation. Range of motion
of the cervical spine did not cause symptoms to radiate to the shoulder or arm. Both upper
extremities were neurovascularly intact. Dr. Saltzman noted some tenderness about the
paraspinal muscles to the right side of the thoracic spine and some tenderness about the
peri-scapular muscles on the right. He stated that appellant’s right shoulder pain was improving
and recommended limited use of the arm. Dr. Saltzman authorized her to return to
sedentary-duty work in two weeks.
In a November 8, 2011 disability note, Dr. Saltzman stated that appellant had been under
his care for right shoulder and upper back pain. He checked a box marked “no work” and
requested that she be excused from work from September 27 to October 4, 2011.
In a November 9, 2011 statement, the employing establishment related various e-mails
from appellant indicating that she would not be at work because of her back pain. It noted that
she was released from a walking restriction in August 2011 and that she chose to carry a
shoulder briefcase even though she was offered a roller briefcase with wheels. The employing
establishment stated that there was no requirement for appellant to transport her governmentissued laptop to and from the workplace.
In a November 21, 2011 disability note, Dr. Miller stated that appellant was released back
to sedentary full-time work with no restrictions on October 1, 2011.
In a November 18, 2011 statement, appellant related that on June 22, 2009 she suffered
multiple injuries to her neck, shoulder, back and right foot as a result of slipping on an overly
waxed floor at work. She stated that OWCP took months to accept her claim, which caused her
to exhaust all of her available sick and annual leave and also delayed approval of her surgery.
She explained that, while recovering from surgery, she spent months in a hospital and underwent
physical therapy to work her way up to using a cane and being able to walk again. Appellant

4

stated that, after months of overtaxing the left side of her body and having an altered gait, she
experienced neck, shoulder, back, hip and knee pain. She noted that Dr. Saltzman outlined how
the surgery on her foot and overdependence on the other side of her body led to her current
conditions and that Dr. Miller also stated that her conditions were often seen following the type
of surgery she received. Appellant believed that she submitted all the medical documentation
required of her.
On November 22, 2011 the employing establishment advised OWCP that appellant
returned to work on November 16, 2011.
Appellant was referred for another second-opinion examination. In a December 14, 2011
second-opinion examination report, Dr. Smulyan stated that she worked as a press officer and
reviewed her history, including the statement of accepted facts. He noted that he previously
examined appellant on July 6, 2011 and found that she was fit to work in a full-time sedentary
capacity. Dr. Smulyan related that on September 27, 2011 she woke up with pain around her
neck, back, right shoulder and arm. He noted that appellant had been out of work from
September 27 to November 16, 2011 due to complaints of neck, back and right shoulder pain.
Dr. Smulyan reviewed her duties as a press officer and stated that she carried her computer over
her right shoulder when she attempted activities out of her office such as going to hearings on
Capitol Hill. He reported that appellant’s right shoulder pain worsened when she used her cane
to assist her.
Upon examination, Dr. Smulyan observed that appellant’s head and neck were held in the
upright and midline positions. Flexion and extension were to 30 degrees and rotation was to 15
degrees bilaterally. Examination of the lumbar spine revealed that appellant stood fully erect and
had a markedly antalgic gait. Trendelenburg test was negative. Examination of the right
shoulder and upper limbs revealed that there was no deformity. Abduction was to 90 degrees on
the right side and 120 degrees on the left. Dr. Smulyan also noted that radiographic studies of
the cervical spine revealed a straightening of the cervical lordosis and narrowing of the
intervertebral disc spaces at C4-5 and C5-6. Radiographic studies of the lumbar spine revealed
osteophyte changes in the vertebral bodies of L1 through L5. Disc space heights were well
preserved.
Radiographic studies of the right shoulder demonstrated well-preserved
glenohumeral and acromioclavicular joints with marked narrowing in the subacromial space
anteriorly. Dr. Smulyan found evidence of supraspinatus tendinitis in the right shoulder and
cervical and lumbar spondylosis. He stated that appellant was currently being treated for lumbar
spondylosis and opined that there was no evidence of recurrent disability as a result of these
conditions. Dr. Smulyan concluded that her work stoppage was not causally related to her
condition and that her current condition was not caused by the use of a cane and altered gait. He
authorized appellant to return to work in her previously described capacity.
In a decision dated January 5, 2012, OWCP denied appellant’s recurrence of disability
claim finding insufficient medical evidence to establish that she was disabled beginning
September 27, 2011 as a result of the June 22, 2009 employment injury. It found that
Dr. Smulyan’s December 14, 2011 second-opinion report was well rationalized in determining

5

that her September 27, 2011 disability was not causally related to her accepted employment
conditions.3
On January 18, 2012 appellant’s counsel appealed the January 5, 2012 denial decision
and requested a telephone hearing, which was held on April 4, 2012. Appellant was represented
by counsel, Mary Ann Rini. She stated that when she first returned to work she initially worked
from home but in late July or early August 2011 appellant began to go to work two or three days
a week. Appellant explained that she drove to work and carried a laptop which weighed about
10 or 15 pounds, a purse, lunch and work binders to and from her workplace. She stated that she
used a cane to walk as a result of the June 2009 injury and that the walk from her car to the office
was a long distance that took her about 15 to 20 minutes. Appellant also walked a distance of
5 or 10 minutes throughout the day to go to meetings, lunch or the restroom and sometimes
walked to other buildings on her campus.
In an October 4, 2011 report, Dr. Saltzman noted that appellant had a previous work
injury and also sustained injuries to her foot and ankle. Appellant underwent foot surgery and
had been using a cane. Dr. Saltzman opined that using the cane seemed to have exacerbated her
back and right shoulder pain. The examination revealed limited motion of the right shoulder and
cervical spine. Dr. Saltzman observed tenderness throughout the right side of appellant’s upper
back, about the scapula, right shoulder and cervical and thoracic spine. He stated that her right
shoulder and upper back pain appeared secondary to a musculoligamentous cause.
In a November 1, 2011 report, Dr. Saltzman related appellant’s complaints of right
shoulder and upper back pain and noted that she used a cane after undergoing surgery on her
right foot. He explained that, because of the continued use of the cane for many months and the
dependence on her upper extremities for support, she developed upper back and shoulder pain.
Upon examination, Dr. Saltzman observed limited right shoulder motion and pain on resisted
scapular abduction and resisted external rotation. Range of motion of the cervical spine did not
cause symptoms to radiate to the shoulder or arm. Dr. Saltzman noted some tenderness about the
paraspinal muscles to the right side of the thoracic spine and some tenderness about the
periscapular muscles on the right. He stated that appellant could continue to work and
authorized her to resume sedentary-duty work in two weeks.
In an undated statement, the employing establishment responded to the April 4, 2012
hearing transcript. It pointed out that appellant was not released until October 1, 2011 and that in
September 2011 she worked with medical restrictions. The employing establishment stated that
her laptop weighed approximately 6.4 pounds and that there was no requirement for her to
transport her laptop to and from the workplace. It noted that appellant walked approximately a
total of 2/10 to 3/10 of a mile from her car to her office and back each day. The employing
establishment reported that she was released from a walking restriction in August 2011 and
currently had no restrictions on walking. It provided a timeline of appellant’s work status after
the June 2009 work-related injury and a map of her workplace, which included the various
distances from the parking lot to her building and the other buildings in the area.
3

OWCP also pointed out that since her recurrence of disability was denied, any claims for wage-loss benefits
were also formally denied for periods of total disability after this period of time.

6

By decision dated June 12, 2012, an OWCP hearing representative affirmed the
January 5, 2012 denial decision. The hearing representative found that the medical evidence
failed to establish that appellant’s disability from September 27 to November 15, 2011 was
causally related to the June 22, 2009 employment injury.
On June 26, 2012 appellant’s counsel submitted a request for reconsideration. She
resubmitted various medical reports previously on the record dated from July 29, 2009 to
February 6, 2012.
In an undated statement, appellant responded to the employing establishment’s statement
regarding the April 4, 2012 hearing transcript. She stated that she was authorized to return to full
duty on September 1, 2011 and not October 1, 2011. Appellant described the distances that she
walked at work and also her various duties as a press officer. She related that she had to carry
her briefcase with her laptop, shoulder bag, lunch, binders and also a work “Go Bag.” Appellant
requested that OWCP review Dr. Miller’s reports as they address the ongoing issues with her
foot.
In a decision dated August 7, 2012, OWCP denied appellant’s request for reconsideration
finding that no evidence was submitted sufficient to warrant further merit review under 5 U.S.C.
§ 8128(a).
LEGAL PRECEDENT -- ISSUE 1
OWCP regulations define the term a recurrence of disability as an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.4 OWCP’s procedure manual provides that a recurrence of disability also
includes worsening of disability due to an accepted consequential injury.5
Where an employee, who is disabled from the job he or she held when injured returns to a
light-duty position or the medical evidence establishes that he or she can perform the light-duty
position, the employee has the burden to establish by the weight of the reliable, probative and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, the employee must show either a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.6 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
4

20 C.F.R. § 10.5(x).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (January 1995).

6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Herman, 38 ECAB
222 (1986).

7

that the disabling condition is causally related to the employment injury. The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained neck, lumbar and right shoulder strains and
acquired hallux valgus and tibialis tendinitis as a result of a June 22, 2009 employment injury. It
also accepted that on January 22 and June 18, 2010 she sustained recurrences of the accepted
employment injury. On December 1, 2010 appellant underwent authorized foot surgery. She
stopped work and returned to full duty on September 13, 2011. Appellant stopped work again on
September 27, 2011 and returned on November 16, 2011. On November 2, 2011 she filed a
recurrence of disability claim commencing on September 27, 2011 alleging that she continued to
suffer from neck, shoulder and back pain as a result of the June 22, 2009 work-related injury.
Appellant also submitted various disability compensation claims beginning September 27, 2011.
The issue is whether she sustained a recurrence of total disability on September 27, 2011,
causally related to the June 22, 2009 employment injury.
Appellant has not alleged a change in her light-duty job requirements. Instead, she
attributed her recurrence of disability to a change in the nature and extent of her employmentrelated conditions. Appellant must provide medical evidence to establish that she was disabled
due to a worsening of her accepted work-related conditions. The Board finds that she has not
met her burden of proof in establishing her claim.
The Board notes initially that OWCP’s procedures recognize that if the alleged
recurrence is less than 90 days after a return to light or full duty, the claimant is not required to
produce the same evidence as for a recurrence claimed long after apparent recovery and return to
work. Therefore, in cases where recurring disability for work is claimed within 90 days or less
from the first return to duty, the focus is on disability rather than causal relationship.10
Appellant submitted medical reports and disability notes from Dr. Saltzman. The
relevant reports are dated September 27 to November 8, 2011. In September 27, October 4 and
November 8, 2011 disability notes, Dr. Saltzman checked a box marked “no work” and indicated
7

Supra note 5 at Causal Relationship, Chapter 2.805.2 (March 2011).

8

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

10

Supra note 5 at Chapter 2.1500.6(a) (September 2003).

8

that appellant may not work from September 27, 2011 until her next appointment on
November 1, 2011. In an October 28, 2011 duty status report, he authorized her to return to
work with a walking restriction on November 1, 2011. In November 1 and 8, 2011 reports,
Dr. Saltzman authorized appellant to return to sedentary work on November 18, 2011. Although
he excused her from work until November 18, 2011, he did not provide any explanation on the
cause of her inability to work beginning September 27, 2011. Dr. Saltzman fails to provide an
explanation, based on objective medical findings and rationale, demonstrating why appellant’s
current conditions were disabling. He does not discuss a worsening of her accepted conditions.
None of Dr. Saltzman’s reports contain rationalized medical opinion evidence establishing that
appellant sustained a recurrence of total disability on September 27, 2011.11
Appellant also submitted medical reports from Dr. Miller. In a November 7, 2011 report,
Dr. Miller stated that she had been out of work secondary to low back problems and opined that
it was due to her altered gait. He authorized appellant to return to work with continued
restrictions. Although Dr. Miller notes that she was out of work due to low back problems, he
also does not provide any objective findings which establish a change in the nature and extent of
her back condition or explain why she was unable to perform her employment duties.12 He fails
to provide an opinion as to why appellant was totally disabled commencing September 27, 2011.
Furthermore, the Board points out that Dr. Miller authorized her to return to work on
November 7, 2011 with continued restrictions. Dr. Miller does not provide any medical
evidence addressing appellant’s inability to work from November 7 to 15, 2011. The additional
medical evidence from him related to her medical condition either before or after the alleged
September 27, 2011 recurrence and are not relevant to this claim. Thus, Dr. Miller’s reports are
insufficient to establish appellant’s burden of proof.
On December 14, 2011 appellant underwent a second-opinion examination by
Dr. Smulyan, who reviewed her history, including the statement of accepted facts and conducted
a thorough examination. Dr. Smulyan noted that he had previously examined her and that she
had undergone foot surgery on December 1, 2010 as a result of a June 22, 2009 employment
injury. He related that on September 27, 2011 appellant woke up with pain around her neck,
back, right shoulder and arm and reported that she had been out of work from September 27 to
November 16, 2011. Dr. Smulyan concluded that there was no evidence that she sustained a
recurrence of her medical condition and no evidence of recurrent disability as a result of her
accepted conditions. He reported that appellant could return to work, with her previous
restrictions. The Board finds that Dr. Smulyan’s report is sufficiently well rationalized and
based on an accurate background. He conducted a thorough examination and concluded that
appellant’s accepted conditions had not caused a recurrence of disability from September 27 to
November 15, 2011. Accordingly, the Board finds that the medical evidence fails to establish
that she sustained a recurrence of disability beginning September 27, 2011.
On appeal, appellant’s counsel alleges that OWCP’s decision was contrary to fact and
law. The record reveals, however, that appellant did not submit sufficient medical evidence to
meet her burden of proof. As previously noted, a recurrence of disability means an inability to
11

See H.M., Docket No. 09-864 (issued November 6, 2009).

12

M.M., Docket No. 12-897 (issued October 12, 2012).

9

work after an employee has returned to work that is caused by a spontaneous change in a medical
condition resulting from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. Appellant has failed to provide
sufficient medical evidence to establish a change in the nature and extent of her injury-related
conditions or a change in the nature and extent of her job requirements, which would prohibit her
from performing her employment duties after she returned to work.
Appellant may submit new evidence or argument with a written request for
reconsideration within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.13 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district office.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.16 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.17 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.18

13

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
14

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
15

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

Id. at § 10.607(a).

17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument not previously
considered by OWCP; and she has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decisions dated January 5 and June 13, 2012, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that she sustained a recurrence of disability beginning
September 27, 2011. On June 26, 2012 appellant’s counsel requested reconsideration. She
resubmitted various medical reports previously of record. The Board finds that the submission
of evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.19 The Board finds that the submission of this evidence did not require
reopening appellant’s case for merit review.
Appellant also submitted a narrative statement describing the materials she carried on her
shoulder as part of her work duties and the distances she walked at work. OWCP denied her
claim finding that the medical evidence failed to establish a recurrence of total disability.
Appellant’s statement about her work duties is not relevant and pertinent to the underlying issue
in this case and is not sufficient to require OWCP to reopen her claim for consideration of the
merits.20
Appellant did not submit any evidence along with her request for reconsideration to show
that OWCP erroneously applied or interpreted a specific point of law or advances a relevant legal
argument not previously considered by OWCP. Because she did not meet any of the necessary
requirements, she is not entitled to further merit review.
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen her case for further consideration of the merits of her claim under 5
U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of total disability commencing September 27, 2011. The Board also finds that OWCP properly
denied her June 26, 2012 request for reconsideration under 5 U.S.C. § 8128(a).

19

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

20

See James W. Scott, 55 ECAB 606 (2004).

11

ORDER
IT IS HEREBY ORDERED THAT the August 7 and June 13, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Spokane, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2334
Issued: July 5, 2011

Case Submitted on the Record

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

JURISDICTION
On September 21, 2010 appellant filed a timely appeal from the August 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his wage-loss
compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation effective August 10, 2010 on the grounds that he had no disability due to his
employment injuries after that date.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 24, 2005 appellant, then a 48-year-old transportation security screener
sustained an injury when his elbow popped while moving a bag to a table. OWCP initially
accepted that appellant sustained right elbow and forearm sprains/strains on September 24, 2005
and it later accepted that he sustained a right shoulder superior glenoid labrum lesion, right
shoulder/upper arm sprain and right lateral epicondylitis on that date. Under a separate claim
file, it accepted that appellant sustained right shoulder adhesive capsulitis as a consequence of
his September 24, 2005 injury.
On January 10, 2008 appellant underwent arthroscopic surgery of his right shoulder in the
form of an anterior capsulorrhaphy, Bankart repair, biceps tendonesis and rotator cuff repair. He
stopped work on March 2, 2007 and was terminated from the employing establishment on
April 7, 2007 for reasons unrelated to the work injury. Appellant continued to receive wage-loss
compensation and medical benefits.
In an August 20, 2008 report, Dr. Graeme French, an attending Board-certified
orthopedic surgeon, found that appellant’s right upper extremity had reached 90 percent
resolution and he removed all lifting restrictions.
In an October 14, 2008 report, Dr. George R. Harper, a Board-certified orthopedic
surgeon serving as OWCP’s referral physician, determined that appellant had permanent work
restrictions, but the record does not contain a complete Form OWCP-5c (work capacity
evaluation) from this period. He noted that he preferred that appellant’s work capacity be based
on a functional capacity evaluation.
Dr. Harper later reviewed a November 18, 2008 functional capacity evaluation and, in a
February 26, 2009 Form OWCP-5c, he indicated that appellant could work eight hours per day.
He noted that appellant had permanent restrictions of sitting, walking and standing for four hours
per day; reaching for two hours per day; no reaching above the right shoulder; twisting, bending
and stooping for two hours per day; repetitive movement of the right elbow for two hours per
day (no more than five pounds); pushing, pulling and lifting with the right arm for two hours per
day, and operating a motor vehicle no more than four hours per day.
The November 18, 2008 functional capacity evaluation indicated that appellant refused to
perform leg, back or floor static strength tests or power, back or barrier lifts for fear of pain or
reinjury. Appellant exhibited symptom/disability exaggeration behavior and poor effort on
validity criteria, suggesting a voluntary effort to demonstrate a greater level of disability than
was actually present. Given the poor effort during testing, OWCP asked Dr. Harper to review
the November 18, 2008 functional capacity evaluation again and to readdress appellant’s work
restrictions.
In a July 14, 2009 Form OWCP-5c, Dr. Harper indicated that, based on the accepted
conditions to appellant’s right upper extremity, he could work eight hours per day with
limitations from reaching (including reaching above the shoulder), operating a motor vehicle and
climbing. Repetitive movements of the elbow were limited to four hours per day (up to 5

2

pounds); pushing and pulling was limited to four hours per day (up to 5 pounds) and lifting was
limited to four hours per day (up to 10 pounds).
On May 9, 2009 Dr. French opined that appellant’s medical conditions had reached
maximum medical improvement. He found that, based on the residual loss of function of
appellant’s arm and back (a nonwork-related condition), he could not work eight hours per day.
Appellant was limited to reaching three hours per day (without reaching above the shoulder);
pushing and pulling up to 30 pounds (for one hour per day); lifting up to 40 pounds (for one hour
per day) and climbing for one hour per day. OWCP asked Dr. French to provide limitations
based only on appellant’s right upper extremity conditions and on September 5, 2009 he relayed
that appellant could not work eight hours per day and could not perform repetitive grip work.
Dr. French had limitations of occasional reaching; no reaching above the shoulder; pushing up to
40 pounds; pulling and lifting up to 30 pounds and no climbing on ladders. No restrictions were
provided for repetitive wrist or elbow movement or for operating a motor vehicle.
Based on the conflicting medical opinions of Dr. French and Dr. Harper, OWCP referred
appellant for an impartial medical examination with Dr. Robert C. Colburn, a Board-certified
orthopedic surgeon. In a November 4, 2009 report, Dr. Colburn reviewed the evidence of record
and reported examination findings of appellant, finding that he had permanent limitations
regarding his right upper extremity. In a November 9, 2009 Form OWCP-5c, he indicated that
appellant was limited in the number of hours he could perform certain activities, but he did not
indicate whether appellant could work eight hours per day in a modified position. OWCP asked
Dr. Colburn to clarify his report but a January 20, 2010 Form OWCP-5c did not provide the
requested clarification.
Given Dr. Colburn’s failure to clarify his opinion, appellant was referred to Dr. Lance C.
Brigham, a Board-certified orthopedic surgeon, for an impartial medical examination. In an
April 16, 2010 report, Dr. Brigham reviewed the evidence of record and reported the findings of
his examination of appellant. He indicated that appellant complained of constant pain over the
lateral deltoid in his right shoulder and intermittent pain and numbness over the right lateral
epicondylar area which increased with activity. Dr. Brigham noted that, upon examination, there
was no pain on palpation of the right or left medial or lateral epicondyle. He diagnosed lateral
epicondylitis on a more-probable-than-not-basis due to the September 24, 2005 work injury.
Dr. Brigham found that appellant had “very few physical limitations” but stated that “restrictions
have already been placed on his use of the right shoulder.” He found that appellant had no
physical restrictions for nonwork-related conditions and indicated that he demonstrated a very
high degree of pain disability, marked pain behavior and complaints of pain disability.
Dr. Brigham completed a Form OWCP-5c on April 16, 2010. He indicated that appellant
was not capable of performing his date-of-injury job, but noted that he could work eight hours
per day with permanent restrictions of no reaching (including no reaching above the shoulder),
no climbing and no lifting more than 20 pounds. On May 5, 2010 OWCP sought clarification
from Dr. Brigham, requesting that he provide an opinion on appellant’s physical limitations and
work capacity irrespective of any prior limitations set. In a May 17, 2010 letter, Dr. Brigham
stated, “Regarding his right shoulder and ‘irrespective of any prior limitation set,’ [appellant]
would have no restrictions that would prevent him from ‘performing his usual job.’”

3

In a July 2, 2010 letter, OWCP advised appellant that it proposed to terminate his wageloss compensation based on the opinion of Brigham, the impartial medical specialist who found
that he could perform his regular work for the employing establishment. It provided appellant 30
days to submit evidence and argument challenging the proposed termination action.
In a July 8, 2010 letter, appellant argued that the opinion of Dr. Brigham was not
sufficiently well rationalized to justify termination of his wage-loss compensation. He asserted
that Dr. Brigham did not explain why he changed his opinion on his level of disability.
Appellant submitted a May 18, 2010 report in which Dr. William Weigel, an attending Boardcertified neurologist, described his application of steroid injections in the low back. He also
submitted a number of medical records which had already been submitted to OWCP.
In an August 9, 2010 decision, OWCP terminated appellant’s wage-loss compensation
effective August 10, 2010 on the grounds that he had no disability due to his employment
injuries after that date. It found that the weight of the medical evidence rested with the opinion
of Dr. Brigham.
LEGAL PRECEDENT
Under FECA,2 once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.3 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.4
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.5
Section 8123(a) of FECA provides in pertinent part: “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.”6 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.7
ANALYSIS
In the present case, OWCP properly determined that there was a conflict in the medical
opinion between Dr. French, an attending Board-certified orthopedic surgeon, and Dr. Harper, a
2

5 U.S.C. §§ 8101-8193.

3

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

4

Id.

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

5 U.S.C. § 8123(a).

7

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

Board-certified orthopedic surgeon acting as OWCP’s referral physician, regarding the extent of
appellant’s wage loss due to his accepted employment injuries.8 In order to resolve the conflict,
OWCP properly referred appellant, pursuant to section 8123(a) of FECA, to Dr. Brigham, a
Board-certified orthopedic surgeon, for an impartial medical examination and an opinion on the
matter.9
The Board finds that the opinion of Dr. Brigham is not sufficiently well rationalized to
represent the weight of the medical opinion and to resolve the conflict in the medical opinion
regarding whether appellant continues to have wage loss due to his accepted employment
injuries.10
In an April 16, 2010 report, Dr. Brigham indicated that appellant complained of constant
pain over the lateral deltoid in his right shoulder and intermittent pain and numbness over the
right lateral epicondylar area which increased with activity. Although he found that appellant
had “very few physical limitations,” he diagnosed lateral epicondylitis on a more-probable-thannot-basis due to the September 24, 2005 work injury. Dr. Brigham did not explain why this
continuing work-related condition would not cause some level of disability from work, nor did
he explain why appellant’s multiple work-related right shoulder conditions had improved to the
extent that they no longer caused him to sustain wage loss.
Dr. Brigham stated in his April 16, 2010 report that appellant had no physical restrictions
due to nonwork-related conditions. In a Form OWCP-5c completed on April 16, 2010, he
indicated that appellant was not capable of performing his date-of-injury job, but noted that he
could work eight hours per day with permanent restrictions of no reaching (including no reaching
above the shoulder), no climbing and no lifting more than 20 pounds. Therefore, Dr. Brigham
ostensibly provided an opinion that appellant’s inability to perform his regular work was due to
his accepted employment injuries. On May 5, 2010 OWCP sought clarification from him,
requesting that he provide an opinion on appellant’s physical limitations and work capacity
irrespective of any prior limitations set. In a May 17, 2010 letter, Dr. Brigham stated,
“Regarding his right shoulder and ‘irrespective of any prior limitation set,’ [appellant] would
have no restrictions that would prevent him from ‘performing his usual job.’” However, he did
not provide any explanation for this sudden change in his opinion on appellant’s ability to work.
Dr. Brigham did not provide adequate medical rationale for his new opinion that appellant’s
accepted employment injuries no longer caused him to sustain wage loss.
For these reasons, OWCP did not meet its burden or proof to terminate appellant’s wageloss compensation effective August 10, 2010.

8

In reports from mid 2009, Dr. French and Dr. Harper recommended different degrees of work restrictions.
OWCP initially accepted that appellant sustained right elbow and forearm sprains/strains on September 24, 2005 and
it later accepted that he sustained a right shoulder superior glenoid labrum lesion, right shoulder/upper arm sprain
and right lateral epicondylitis on that date. It also accepted that he sustained a consequential injury in the form of
right shoulder adhesive capsulitis.
9

See supra note 5 and accompanying text.

10

See supra note 6.

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss compensation effective August 10, 2010 on the grounds that he had no disability due
to his employment injuries after that date.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 5, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6