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

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

Docket No. 20-0502
Issued: December 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 3, 2020 appellant filed a timely appeal from a July 8, 2019 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated December 17, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the claim.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 11, 2018 appellant, then a 57-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a right shoulder injury as a result of performing
repetitive motion when casing mail while in the performance of duty. She noted that this condition
resulted from degeneration of an accepted right shoulder injury on November 29, 2004.3 OWCP
assigned File No. xxxxxx338. Appellant indicated that she first became aware of her condition on
January 26, 2018 and first realized it was related to her federal employment on March 28, 2018.
She stopped work on April 12, 2018.
In progress notes dated January 26, 2018, Dr. James P. Duffey, a Board-certified
orthopedic surgeon, noted that appellant had a work-related injury in 2004 and had continued to
live with daily shoulder pain since that time. He related that appellant fell at home on
December 30, 2017, she did not land directly on the shoulder, but she subsequently had a
significant increase in her shoulder pain. On examination of the right shoulder, Dr. Duffey
observed atrophy of the supraspinatus and infraspinatus fossa, limited active range of motion, and
pain with manipulation on passive range of motion. He reviewed recent magnetic resonance
imaging (MRI) scans of her right shoulder and compared them to a 2004 MRI scan. Dr. Duffey
observed advanced rotator cuff arthropathy with significant trophic changes at the superior
humeral head and acromion, proximal humeral migration, degenerative changes to the humerus
along with posterior subluxation, and atrophy of the supraspinatus and infraspinatus. The MRI
scan from 2004 demonstrated a partial supraspinatus tendon tear without evidence of muscular
atrophy or secondary degenerative changes of the glenohumeral joint. Dr. Duffey diagnosed right
rotator cuff arthropathy, tears of the right supraspinatus and infraspinatus, and a complete tear of
the right rotator cuff.
By development letter dated April 20, 2018, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and requested a
narrative medical report from her physician, containing a detailed description of findings and
diagnoses, and explaining how the claimed exposure resulted in a diagnosed condition. OWCP
afforded appellant 30 days to respond.
In a report dated March 28, 2018, Dr. Jack L. Rook, Board-certified in physical medicine
and rehabilitation, examined appellant for complaints of right shoulder pain. He noted that
appellant’s work for the employing establishment required casing mail and mail delivery, and that
3

On November 30, 2004 appellant filed a traumatic injury claim (Form CA-1) alleging that on November 29, 2004
she sustained a pulled muscle in her right shoulder as a result of reaching over a tray while delivering mail in the
performance of duty. OWCP assigned that claim File No. xxxxxx115 and accepted it on January 13, 2005 for right
rotator cuff tear and strain. On March 22, 2018 it denied appellant’s claim for recurrence under File No. xxxxxx115.
OWCP File No. xxxxxx115 has been administratively combined with File No. xxxxxx338, with the latter serving as
the master file.

2

she had sustained a work-related injury on November 29, 2004. At the time, it was recommended
that appellant proceed with surgical rotator cuff repair, but appellant chose not to proceed due to
her fear of surgery and her ability to continue to work despite her pain. Dr. Rook noted that
appellant’s right shoulder pain never resolved and worsened over time. Appellant was able to
continue working until a fall at home on December 29, 2017, when she tripped and fell forward,
landing on an outstretched arm. She developed an increase in her right shoulder pain secondary
to this fall. Dr. Rook noted appellant’s physical examination findings and diagnosed chronic
subluxation of the right glenohumeral joint, caused by the longstanding rotator cuff tear, advanced
degenerative joint disease of the right shoulder, with accelerated degeneration likely associated
with the complete and longstanding rotator cuff tear, and permanent aggravation of right shoulder
glenohumeral arthritis.
Dr. Rook opined that, based on appellant’s history, medical records, and physical
examination, he believed that appellant’s current condition was related to her duties as a letter
carrier in conjunction with an underlying work-related condition from 2004. He explained that, as
appellant never had surgery for her rotator cuff tear in 2004, the duties of repetitive reaching,
lifting, and opening and closing the door of her postal vehicle placed stress on her right shoulder
joint. Dr. Rook noted that her worsening condition appeared to be secondary to accelerated
degeneration of the joint due to instability associated with the complete rotator cuff tear. He stated
that the fall sustained at home on December 29, 2017 did not account for the chronic changes
within her shoulder identified on her recent MRI scan. Dr. Rook explained that, from a
pathophysiological perspective, a complete rotator cuff tear resulted in decreased support of the
bones of the shoulder joint, causing increased mobility of the bones, which in turn caused
accelerated wearing away of the joint surfaces. He noted that appellant’s recent MRI scan
demonstrated malposition of her humeral head due to loss of integrity of the supporting joint
structures, as well as the presence of advanced degenerative joint disease, greater than one would
expect in an individual who did not have a complete rotator cuff tear for the prior 14 years.
Dr. Rook opined that, within a reasonable degree of medical certainty, appellant’s current
condition was related to her job duties and the underlying work-related 2004 occupational injury.
On May 2, 2018 a supervisor stated that appellant performed duties of moving equipment
and casing mail. He noted that on the date in question appellant had injured herself at home while
holding a grandchild, which caused her claimed injury.
Appellant responded to OWCP’s inquiries on May 2, 2018. She alleged that on
December 29, 2017 she tripped and fell forward, landing on outstretched arms, resulting in a
marked increase of right shoulder pain and inability to work. Appellant noted that she had
sustained a work-related injury on November 29, 2004, which was accepted for a complete right
shoulder rotator cuff tear under OWCP File No. xxxxxx115. Surgery was recommended, but she
did not undergo surgery due to fear of the procedure and her ability to continue working despite
the pain.
By decision dated July 12, 2018, OWCP denied the claim.
On August 6, 2018 appellant requested a review of the written record before a
representative of OWCP’s Branch of Hearings and Review.

3

By letter dated August 6, 2018, appellant argued that she had submitted sufficient medical
evidence to establish her claim. She noted that her April 5, 2018 MRI scan documented a full
thickness rotator cuff tear of the right shoulder. Appellant stated that her fall at home on
December 29, 2017 was a “wake up” call to a more serious condition, but that the condition was
not caused by the fall. In a separate letter of the same date, she noted that the employing
establishment could not accommodate her work restrictions.
By decision dated December 17, 2018, OWCP’s Branch of Hearings and Review affirmed
the decision of July 12, 2018, finding that the medical evidence of record was insufficient to
establish causal relationship between appellant’s diagnosed conditions and the accepted factors of
her federal employment.
Appellant subsequently submitted a report from Dr. Rook dated January 16, 2019.
Dr. Rook again noted that appellant had never had optimal treatment for her 2004 right shoulder
injury. Appellant had chosen not to have surgery and continued to work at a job which aggravated
her condition on a daily basis, due to the required repetitive reaching and lifting, as well as frequent
opening and closing her vehicle door using her right upper extremity. Dr. Rook explained that
repetitive reaching at the shoulder level caused repeated impingement of the shoulder joint with
progressive inflammation and further breakdown of the rotator cuff fibers. He also explained that
appellant’s other employment activities placed great stress on her right shoulder joint and torn
rotator cuff. This repeated stress to the joint caused wear and tear of the rotator cuff fibers, with
further degeneration and pain. In an attached duty status report of the same date, Dr. Rook
recommended that appellant could return to work with restrictions, including, but not limited to
use of the left upper extremity only and no long life vehicle (LLV) driving.
In a report dated February 15, 2019, Dr. Duffey noted that he had reviewed the
documentation from Dr. Rook and completely agreed with his findings and statement. He opined
that appellant’s work-related injury in 2004 resulted in a rotator cuff tear, which was never repaired
surgically, and progressed over the years into rotator cuff arthropathy. Dr. Duffey noted that
appellant had a fall at home in 2017, but that the changes seen on her MRI scan at that time were
mostly chronic, consistent with the 2004 injury. He stated that her work as a letter carrier,
including duties of casing mail, lifting and carrying packages, lifting and carrying cases of mail,
and delivering mail, continued to aggravate this problem, and had progressed over the years into a
rotator cuff arthropathy. On physical examination of the right shoulder Dr. Duffey observed active
forward flexion and abduction to 90 degrees, passive to 30 to 40 degrees, pain on rotation, and
reduced strength. He reviewed an MRI scan, noting a massive rotator cuff tear with significant
and chronic atrophy of the supraspinatus, infraspinatus, and superior portion of the subscapularis,
glenohumeral degenerative changes, and proximal humeral migration. Dr. Duffey related that
appellant was a candidate for reverse shoulder arthroplasty of the right shoulder.
On June 25, 2019 appellant requested reconsideration of the decision dated
December 17, 2018.
By decision dated July 8, 2019, OWCP denied appellant’s request for reconsideration
without reviewing the merits of the case.

4

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely request for reconsideration, including all supporting documents, must set forth arguments
and contain evidence that either: (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.7
When a timely request for reconsideration does not meet at least one of the above-noted
requirements, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.8
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.
The Board finds that appellant submitted relevant and pertinent new evidence with her
request for reconsideration. OWCP denied appellant’s claim, finding that she had not established
that factors of her federal employment had caused or aggravated her diagnosed right shoulder
condition(s).
On reconsideration appellant submitted a report dated February 15, 2019 from Dr. Duffey.
Dr. Duffey opined that appellant’s work-related injury in 2004 resulted in a rotator cuff tear, which
was never repaired surgically, and progressed over the years into rotator cuff arthropathy. He
noted that appellant had a fall at home in 2017, but that the changes seen on her MRI scan at that
time were mostly chronic, consistent with the 2004 injury. Dr. Duffey explained that her work as
a letter carrier, including duties of casing mail, lifting and carrying packages, lifting and carrying
cases of mail, and delivering mail, continued to aggravate this problem, and had likely led to the
progression of pain and disability over time. He also related that he had reviewed Dr. Rook’s
documentation and completely agreed with his findings and conclusions.

4
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

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Dr. Duffey’s February 15, 2019 report provided support regarding causal relationship of
appellant’s right shoulder condition to duties of her federal employment. As such, the Board finds
that the February 15, 2019 report from Dr. Duffey constituted relevant and pertinent new evidence.
Therefore, appellant’s June 25, 2019 reconsideration request met the third above-noted
requirement of 20 C.F.R. § 10.606(b)(3).
Consequently, the Board finds that OWCP improperly denied merit review pursuant to 20
C.F.R. § 10.608. The case shall therefore be remanded to OWCP to review the case records under
OWCP File Nos. xxxxxx338 and xxxxxx115 for consideration of the merits of appellant’s claim,
to be followed by an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.
ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: December 31, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sepulveda, CA, Employer
__________________________________________

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

Docket No. 10-247
Issued: August 19, 2010

Case Submitted on the Record

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

JURISDICTION
On November 2, 2009 appellant filed a timely appeal from an October 21, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
On August 29, 2008 appellant, then a 44-year-old telephone operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained an emotional condition as a
result of his federal employment. On the claim form he alleged that he was subject to
discrimination on the basis of sexual orientation, race and mental illness.

In a narrative statement dated October 3, 2009, appellant alleged he was subject to
discrimination by a supervisor, Jessie Young, and a coworker, Walter Tillman. In July 2008
appellant had been assigned to a requested location near his home in Sepulveda, but was then
reassigned by Mr. Young back to his original facility in September 2008. According to
appellant, he was falsely accused of excessive absenteeism by Mr. Tillman, as well as being
subject to derogatory comments regarding his sexual orientation. In a September 22, 2008 letter,
he contended that he received average scores on his performance evaluation, further evidence of
discrimination.
The record contains a “report of contact” dated August 12, 2008. Appellant alleged that
Mr. Tillman had used the term “faggot” in his presence and made statements like “If I ever end
up in prison, I would kill any male who tried to touch me.” In a report of contact dated
August 29, 2008, he stated that he went to Mr. Young’s office to secure a compensation form,
and Mr. Young yelled at him to get out of the office. Appellant also submitted two statements
from coworkers stating they had been subject to discrimination.
On January 9, 2009 Mr. Young stated that he had not been aware of appellant’s sexual
orientation and he never heard Mr. Tillman use the term “faggot.” He reported that appellant’s
attendance was in compliance with employing establishment regulations and he was reassigned
from the Sepulveda facility due to a conflict with a coworker.1
Mr. Wright, another supervisor, provided a January 26, 2009 statement that Mr. Tillman
had expressed concern at what he felt was excessive time used by appellant for lunch and breaks.
In response, appellant had written that Mr. Tillman was away from the office excessively and
used derogatory language, which Mr. Tillman denied. According to the supervisor, a coworker
who worked with both employees stated that she had never heard Mr. Tillman use derogatory
language toward appellant. During an interview with Mr. Tillman, he stated that he did not call
appellant a “faggot,” but had used the word in appellant’s presence.
By decision dated February 6, 2009, the Office denied the claim for compensation. It
found appellant had not established a compensable work factor.
Appellant requested a hearing before an Office hearing representative, which was held on
July 24, 2009. At the hearing, he indicated an Equal Employment Opportunity (EEO) complaint
had been filed, though no decision had been issued. Appellant alleged that his supervisor and the
coworker tried to get him out of the Sepulveda facility, and their actions were racially motivated
as they were African-American and he was Caucasian.
By decision dated October 21, 2009, the hearing representative affirmed the February 6,
2009 decision.

1

The record contains an August 27, 2008 report of contact indicating appellant was being reassigned on
September 3, 2008 due to a conflict with a coworker that was having an adverse effect on service.

2

LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
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 illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.6 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.7
For discrimination to give rise to a compensable disability, there must be evidence
introduced which establishes that the acts alleged or implicated by the employee did, in fact,
occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such action occurred. A claimant must establish a factual basis for his or her allegations
that discrimination occurred with probative and reliable evidence.8 With regard to emotional
claims arising under the Act, the term discrimination or harassment as applied by the Board is
not the equivalent of that as defined or implemented by other agencies, such as the EEO
2

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

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

7

Margreate Lublin, 44 ECAB 945, 956 (1993).

8

James E. Norris, 52 ECAB 93 (2000).

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Commission which is charged with statutory authority to investigate and evaluate such matters in
the workplace. Rather, in evaluating claims for workers’ compensation under the Act, the term
harassment is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by co-employees or workers. Mere perceptions and feelings of
discrimination or harassment will not support an award of compensation.9
ANALYSIS
Appellant alleged discrimination by a supervisor and coworker as contributing to his
emotional condition. The initial question is whether he has substantiated a compensable work
factor. Once a compensable work factor is established, then the medical evidence is considered
to determine if causal relationship is established between a diagnosed condition and the
compensable work factor.
A claim based on discrimination must be supported by reliable and probative evidence.
In this case, appellant has not supported his claim with sufficient evidence to suggest his
allegations as factual. He has made a general allegation that he was subject to discrimination
based on sexual orientation, race and a medical condition, without providing probative evidence
of discrimination. The statements of appellant’s coworkers do not discuss specific actions of any
supervisor or coworker towards appellant. Mr. Young stated that he was unaware of appellant’s
sexual orientation. As to race, appellant indicated that a supervisor and coworker were AfricanAmerican and he alleged they tried to get him removed from the Sepulveda facility. He did not
provide sufficient probative evidence to support his allegations of discrimination. Appellant’s
perception that actions were based on race is not a compensable factor. With respect to a
medical condition, he did not provide reliable evidence of any discrimination based on a medical
condition.
Appellant has not provided details regarding specific instances of alleged discrimination.
He indicated that he wanted to stay at the Sepulveda facility but was moved after two months.
The reassignment is an administrative action of the employing establishment, and would be a
compensable factor only if the evidence established error or abuse.10 The supervisor explained
that appellant was reassigned due to a conflict with a coworker that was affecting the quality of
service provided.
Without specific witness statements supporting appellant’s specific
allegations, no evidence of error or abuse is presented. Appellant also alleged he was subject to
verbal abuse by the coworker, but the allegations do not rise to the level of verbal abuse. While
the Board has recognized the compensability of verbal abuse in certain circumstances, this does
not imply that every statement uttered in the workplace will give rise to a compensable work
factor.11 The statements attributed to the coworker are not sufficiently corroborated to establish
verbal abuse. The evidence indicated that a derogatory term was used in appellant’s presence,
and was not directed at appellant, and without contrary evidence, it cannot establish this factor.
9

G.S., 61 ECAB

(Docket No. 09-764, issued December 18, 2009).

10

Similarly, a performance evaluation is an administrative matter and would be compensable only if error or
abuse is established by the evidence of record.
11

Judy L. Kahn, 53 ECAB 321, 326 (2002).

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The evidence of record does not substantiate a compensable work factor. Since appellant
has not established a compensable work factor, the Board will not address the medical
evidence.12
CONCLUSION
The Board finds that appellant did not establish an emotional condition causally related to
compensable work factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 21, 2009 is affirmed.
Issued: August 19, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

See Margaret S. Krzycki, 43 ECAB 496 (1992).

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Memphis, TN, Employer
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___________________________________________ )
R.G., Appellant

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

Docket No. 07-2008
Issued: April 11, 2008

Case Submitted on the Record

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

JURISDICTION
On July 26, 2007 appellant filed a timely appeal of May 24 and June 29, 2007 decisions
of the Office of Workers’ Compensation Programs which denied his request for further merit
review of his claim. He also timely appealed a May 9, 2007 decision which found that he did not
sustain an injury in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merit and nonmerit decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained an injury in the performance of duty on February 26, 2007; and (2) whether the Office
properly refused to reopen his case for further review of the merits of his claim under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On March 22, 2007 appellant, then a 58-year-old mail handler, filed a traumatic injury
claim alleging that, on February 26, 2007, he experienced severe back pain to the lower back

while bending related to a time and dating assignment in the performance of duty.1 He stopped
work on February 26 and returned on March 6, 2007. The employing establishment advised that
“they had no knowledge of this accident.”
In a March 5, 2007 report, Dr. Rommel Childress, a Board-certified orthopedic surgeon,
noted that appellant was seen for recent problems and difficulties stemming from his activities at
work. He noted that appellant was stooping and bending at work, when he had severe worsening
of his pain. Dr. Childress recommended bed rest and restricted activities.
By letter dated April 5, 2007, the Office informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days.
The Office subsequently received a statement from appellant dated April 9, 2007
describing how his injury occurred and several medical reports. In reports dated January 24 and
30, 2007, Dr. Roger Vogelfanger, a Board-certified psychiatrist, advised that appellant was under
his care since December 1, 2006 and could work part time.
In a February 6, 2007 report, Dr. Childress, indicated that appellant was injured on
September 23, 2005. He diagnosed lumbar spasm and cervical strain and released appellant to
work full time. In a March 5, 2007 duty status report, Dr. Childress indicated that appellant
missed work from February 26 to March 5, 2007 due to severe back spasms. In a March 8, 2007
duty status report, he repeated September 23, 2005 as the date of injury, and diagnosed lumbar
spasm and cervical strain, and advised that appellant could return to work full time. In a separate
March 8, 2007 report, Dr. Childress noted that a magnetic resonance imaging (MRI) scan
indicated that appellant had foraminal stenosis on the left upper extremity and spasms in the
lower back. In reports dated March 26, 2007, he noted that the date of injury was September 23,
2005 and repeated his diagnoses of lumbar spasm and cervical strain. Dr. Childress noted that
appellant had been off work since March 16, 2007 due to increased back pain and spasm and
right radicular discomfort. He advised reducing appellant’s workload to six hours per day.
In an April 9, 2007 statement, appellant alleged that, on February 26, 2007, he was
documenting mail on pallets which required bending and stooping. He alleged that, at
approximately 10:45 a.m., he felt pain extending from his neck to his lower back. Appellant
alleged that the pain increased as he continued to work.
In an April 19, 2007 report, Dr. Childress advised that appellant should continue working
six hours per day and opined that it appeared that he aggravated an old injury. He noted that,
while appellant was instructed to complete a Form CA-1 for a new injury, he indicated that
appellant was being treated for an aggravation of the old injury. Dr. Childress opined that he did
not consider it to be a new injury.

1

The claim before the Board on appeal involves claim No. 062185352. As noted in the text of the decision,
appellant has filed several other claims with the Office. However, these other claims are not before the Board on the
present appeal.

2

By decision dated May 9, 2007, the Office denied appellant’s claim finding that the
medical evidence did not demonstrate that the claimed medical condition was related to the
established work-related event.
On May 9 and 10, 2007 appellant requested reconsideration. He alleged that his injury
was a consequential injury. Appellant also alleged that his injury should be accepted based on
his two previous surgeries to his neck under claim No. 060715957. He also referred to his claim
No. 062150046. Appellant indicated that his claims should be combined as his injury was to the
neck and back, the same as in his other cases.
By decision dated May 24, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that his request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.2
On June 15, 2007 appellant requested reconsideration.
By decision dated June 29, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that his request neither raised
substantial legal questions nor included new and relevant evidence and, thus, it was insufficient
to warrant review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act4 and that an injury was
sustained in the performance of duty.5 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.6
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred. The second
2

An earlier decision dated May 16, 2007 adjudicating the same matter, was issued in error, and reissued on
May 24, 2007.
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyet, 41 ECAB 992 (1990).

3

component is whether the employment incident caused a personal injury and generally this can
be established only by medical evidence.7 The employee must also submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury.8 The medical evidence required to establish causal relationship is usually
rationalized medical evidence. Rationalized medical opinion evidence is medical evidence
which includes a physician’s rationalized opinion on the issue of whether there is a causal
relationship between the claimant’s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
Appellant alleged that on February 26, 2007 he experienced severe back pain to the lower
back while bending and stooping related to a time and dating assignment in the performance of
duty. The Board finds that the evidence supports that the claimed events, bending and stooping,
occurred as alleged.
However, the medical evidence is insufficient to establish the second component of fact
of injury, that the employment incident caused an injury. The medical reports of record do not
establish that bending and stopping at work caused a personal injury on February 26, 2007. The
medical evidence contains no reasoned explanation of how the specific employment incident on
February 26, 2007 caused or aggravated an injury.10
The record contains numerous reports from Dr. Childress. The Board initially notes that
his February 6, 2007 report is prior to the date of injury and would not be relevant to the present
claim for a traumatic injury on February 26, 2007. The Board also notes that Dr. Childress
indicated that appellant’s date of injury was September 23, 2005, in his March 8 and 26, 2007
reports and thus, these reports are not sufficient to show that the work events of February 26,
2007 caused or aggravated an injury. Dr. Childress also submitted additional reports dated
March 5, 2007 in which he noted that appellant was stooping and bending at work, when he had
severe worsening of his pain and advised that appellant was unable to work from February 26 to
March 5, 2007 due to severe back spasms. However, as he did not specifically discuss how the
work events of February 26, 2007 caused or aggravated the diagnosed back spasms. While
Dr. Childress’ April 19, 2007 report noted that appellant filed a claim for a new injury, he
considered his treatment of appellant to be for an aggravation of an old injury. He did not
explain how the February 26, 2007 work incident caused a new injury or aggravated a
7

See John J. Carlone, 41 ECAB 354, 357 (1989).

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

9

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

4

preexisting injury. Thus, this report is insufficient to establish appellant’s claim. Other reports
from Dr. Childress did not specifically address whether the February 26, 2007 work incident
caused or aggravated a new injury.
Appellant also submitted reports dated January 24, and 30, 2007 in which
Dr. Vogelfanger, advised that appellant was under his care since December 1, 2006 and advised
that appellant could return to work four hours a day and then six hours per day. However, the
Board notes that these reports predate the date of injury and are not relevant to the claim for an
injury on February 26, 2007.
Other medical records submitted by appellant do not contain a physician’s opinion
addressing causal relationship. In the absence of a medical report providing a diagnosed
condition and a reasoned opinion on causal relationship with the employment incident, appellant
did not meet his burden of proof. As the medical reports provided by appellant do not contain a
firm diagnosis and a specific and reasoned opinion regarding the cause of appellant’s condition,
they are insufficient to establish that he sustained an employment injury on February 26, 2007.11
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,12 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”13
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.14

11

See Willie M. Miller, 53 ECAB 697 (2002).

12

5 U.S.C. § 8128(a).

13

20 C.F.R. § 10.606(b).

14

20 C.F.R. § 10.608(b).

5

ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim and requested reconsideration on May 9,
and 10, 2007, and also on June 15, 2007. The underlying issue on reconsideration was whether
he met his burden of proof in establishing that he sustained an injury in the performance of duty
on February 26, 2007. However, appellant did not provide any relevant or pertinent new
evidence to the issue of whether he sustained an injury in the performance of duty. In his
June 15, 2007 reconsideration request, he made no specific argument with regard to the Office’s
denial of his claim and he did not submit new evidence.
In his May 9 and 10 requests for reconsideration, appellant alleged that his injury was a
consequential injury. He alleged that his injury should be accepted based on his two previous
surgeries to his neck under claim No. 060715957 and No. 062150046. Appellant indicated that
his claims should be combined as his injury was to the neck and back, the same as in his other
cases. However, the Board notes that the issue in the present case is whether appellant sustained
an injury in the performance of duty on February 26, 2007.15 The issue is medical in nature, and
appellant did not submit any additional medical evidence with his request for reconsideration to
support his claim for an injury on February 26, 2007. The submission of evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.16
Appellant did not provide any relevant and pertinent new evidence to establish that he
sustained an injury in the performance of duty. Consequently, his requests for reconsideration do
not satisfy the third criterion, noted above, for reopening a claim for merit review. Furthermore,
appellant also has not shown that the Office erroneously applied or interpreted a specific point of
law, or advanced a relevant new argument not previously submitted. Therefore, the Office
properly denied his requests for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty. The Board also finds that the Office properly
refused to reopen appellant’s case for further review of the merits of his claim under 5 U.S.C.
§ 8128(a).

15

This does not preclude appellant from contacting the Office with regard to pursuing any separate claim for
which he might feel that his continuing condition may be related.
16

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the June 29, May 24 and 9, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 11, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 09-355
Issued: October 14, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 21 and August 27, 2008 merit decisions denying his
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 5, 2007 appellant, then a 55-year-old sales and service clerk, filed a claim
alleging that he sustained an emotional condition in the performance of duty due to stress and
anxiety “coming from daily verbal and mental abuse by another employee.” He stopped work on
May 24, 2007.

In a June 22, 2007 letter, the Office requested that appellant submit additional evidence in
support of his claim.
In a July 10, 2007 statement, appellant alleged that he was harassed by
Richard Ruggirello, a coworker, which had increased dramatically since Easter 2007. He
claimed that Mr. Ruggirello made crude remarks to him and also about him to coworkers.
Mr. Ruggirello did things which made appellant’s work more difficult, such as closing and
locking doors that were to remain open and placing mail and equipment in the wrong area so that
he would have to look for it. Appellant advised management at several different levels that he
feared for his safety as Mr. Ruggirello’s hostile behavior became more severe. He claimed that
management was aware of Mr. Ruggirello’s propensity to harass but chose to do nothing about
the problem. Appellant alleged that, on one occasion, Mr. Ruggirello came up behind him
(within about one foot) and jingled keys and coins in his pockets while making strange sounds.
Mr. Ruggirello also made a comment about visiting his wife’s workplace. Appellant alleged that
Mr. Ruggirello called him a “flicking clown” several times loud and clear in front of several
coworkers. Mr. Ruggirello also told customers and coworkers that the service lines were long
because he had to work with appellant. On May 24, 2007 appellant was treated at an emergency
room.
In a June 20, 2007 statement, Pam Elkins, appellant’s supervisor, indicated that she had
supervised appellant since January 2007 but had “not observed any animosity or verbal abuse
towards [him] from [Mr.] Ruggirello or any other clerk.” On June 20, 2007 Richard Chin, the
acting manager since April 7, 2007, indicated that he had “never observed any animosity or
verbal abuse toward [appellant] from Mr. Ruggirello or any other employees.” In a June 25,
2007 statement, Eugene Salfelder, a customer service supervisor, indicated that he noticed some
tension between appellant and Mr. Ruggirello since March 19, 2007. He stated that remarks had
been made about the lines in the lobby, how long it took to break down distribution, handing out
the accountables mail and locking the safe and doors. Mr. Salfelder stated that on Good Friday
in 2007 appellant extended his hand to shake Mr. Ruggirello’s but Mr. Ruggirello ignored him.
He noted, “Most of this occurs without mentioning a name or directing these comments to an
individual.”
In a July 24, 2007 decision, the Office denied appellant’s emotional condition claim on
the grounds that he did not establish any compensable employment factors.
Appellant submitted medical evidence concerning his emotional condition from Dr. Ilana
Reich, an attending clinical psychologist.
In a November 1, 2007 statement, Ms. Elkins indicated that since she produced her
June 20, 2007 statement that she had been harassed by Mr. Ruggirello. She indicated that
Mr. Ruggirello had made harassing comments to her about work-related and personal matters.
In a February 21, 2008 decision, the Office affirmed its July 24, 2007 decision. It found
that Ms. Elkins did not establish in her November 1, 2007 statement that she observed appellant
being harassed by Mr. Ruggirello.

2

In an April 14, 2008 statement, Steven Lau, a coworker, noted that he witnessed
Mr. Ruggirello threaten appellant over a radio station. He indicated that Mr. Ruggirello later
called appellant a clown and made fun of him. In an undated statement, Scott Simas, a
coworker, stated that Mr. Ruggirello harassed appellant on many occasions. He claimed that
Mr. Ruggirello stated in front of appellant that someone must have cut their wrist because there
was no help at the service window. On another occasion someone called appellant’s name and
Mr. Ruggirello stated, “fucking clown.” Mr. Simas also claimed that Mr. Ruggirello stated that
he was going to take a walk that evening around Wagner College because he knew that
appellant’s wife worked there.
In an undated statement, Anthony Nuzzi, a coworker, asserted that Mr. Ruggirello would
make comments about appellant because he had such an easygoing nature. On one occasion
Mr. Ruggirello turned off the lights in a break room while appellant was inside. Mr. Nuzzi
suggested that Mr. Ruggirello would move newspapers and other articles just to frustrate
appellant. He asserted that Mr. Ruggirello referred to appellant as a clown to coworkers and
customers, threw out a rack that appellant used in order to frustrate him and found a way to
annoy appellant with respect to the radio. Mr. Ruggirello also gave away donated baked goods
such that appellant was not able to eat any of the goods.
Appellant’s attorney argued that the November 1, 2007 statement of Ms. Elkins and the
three statements by Mr. Lau, Mr. Simas and Mr. Nuzzi established appellant’s allegations. In an
August 27, 2008 decision, the Office affirmed its February 21, 2008 decision. It found that the
additional witness statements submitted by appellant were not sufficient to establish the
existence of any employment factor.
LEGAL PRECEDENT
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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.2
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed
1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
3

Pamela R. Rice, 38 ECAB 838, 841 (1987).

3

description of the employment factors or conditions which the employee believes caused or
adversely affected the condition or conditions for which compensation is claimed.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied his emotional condition claim on the
grounds that he did not establish any compensable employment factors. The Board must initially
review whether these alleged incidents and conditions of employment are covered employment
factors under the terms of the Act.
Appellant alleged that he was harassed by Mr. Ruggirello, a coworker, on numerous
occasions. To the extent that disputes and incidents alleged as constituting harassment by
coworkers are established as occurring and arising from appellant’s performance of his regular
duties, these could constitute employment factors.7 However, for harassment to give rise to a
compensable disability under the Act, there must be evidence that harassment or discrimination
did in fact occur. Mere perceptions of harassment are not compensable under the Act.8
The employing establishment denied that appellant was subjected to harassment and he
has not submitted sufficient evidence to establish that he was harassed by Mr. Ruggirello, as
alleged. Appellant alleged that Mr. Ruggirello made statements and engaged in actions which he
believed constituted harassment, but he did not provide sufficient corroborating evidence to
establish his allegations.9 The Board has recognized the compensability of verbal abuse in

4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

5

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

6

Id.

7

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

8

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

9

See William P. George, 43 ECAB 1159, 1167 (1992).

4

certain circumstances. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under the Act.10
Appellant’s attorney argued that the November 1, 2007 statement of Ms. Elkins, a
supervisor and three statements by appellant’s coworkers, Mr. Lau, Mr. Simas and Mr. Nuzzi,
supported appellant’s claim. The Board has reviewed these statements and notes that although
Mr. Ruggirello might have made some untoward comments it has not been shown that his
actions arose to the level of harassment.
In a November 1, 2007 statement, Ms. Elkins indicated that since she produced her
June 20, 2007 statement she had been harassed by Mr. Ruggirello. She indicated that he had
made harassing comments to her about work-related and personal matters. However, Ms. Elkins
did not address whether she witnessed appellant being harassed by Mr. Ruggirello. With respect
to the statements of the three coworkers, many of the assertions contained in the statements are
so vague with regard to the context of Mr. Ruggirello’s actions such that it would not be possible
to determine his intent. For example, Mr. Lau indicated that he witnessed Mr. Ruggirello
threaten appellant over a radio station, but he did not provide the details of this encounter. He
indicated that Mr. Ruggirello later called appellant a clown, but he did not explain the context of
this comment. Mr. Simas asserted that Mr. Ruggirello stated in front of appellant that someone
must have cut their wrist because there was no help at the service window. It is not clear that
this comment was intended towards appellant. Mr. Simas indicated that on another occasion
someone had called out appellant’s name and Mr. Ruggirello stated, “fucking clown,” but it is
unclear whether appellant was present at the time.11 Mr. Nuzzi mentioned actions committed by
Mr. Ruggirello such as turning off lights, moving items and giving away baked goods, but
without further detail the circumstances surrounding these incidents are vague. He asserted that
Mr. Ruggirello referred to appellant as a clown to coworkers and customers, but he did not claim
that the comments were made to appellant.12 The evidence of record does not establish a
compensable employment factor under the Act with respect to the claimed harassment.
Appellant claimed that the employing establishment knew about Mr. Ruggirello’s
harassment and chose to do nothing. The handling of disciplinary actions relates to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of the Act.13 Although the handling of
disciplinary actions is generally related to the employment, it is an administrative function of the
employer and not a duty of the employee.14 The Board has also found that an administrative or
10

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 666, 669-70 (1991).

11

Mr. Simas also claimed that Mr. Ruggirello stated that he was going to take a walk that evening around Wagner
College because he knew that appellant’s wife worked there. However, it is not clear that this comment was made
to intimidate appellant.
12

In a June 25, 2007 statement, Mr. Salfelder, a customer service supervisor, indicated that he noticed some
tension between appellant and Mr. Ruggirello since March 19, 2007. However, the incidents he described do not
clearly show harassment.
13

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
14

Id.

5

personnel matter will be considered to be an employment factor where the evidence discloses
error or abuse on the part of the employing establishment. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the
employing establishment acted reasonably.15 Appellant did not submit sufficient evidence to
establish that the employing establishment committed error or abuse with respect to this matter.
Thus, he has not established a compensable employment factor under the Act with respect to
administrative matters.
The Board finds that appellant has not established any compensable employment factors
under the Act and, therefore, has not met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty.16
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.

15

See Richard J. Dube, 42 ECAB 916, 920 (1991).

16

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the August 27 and February 21, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 14, 2009
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
TENNESSEE VALLEY AUTHORITY, BULL
RUN FOSSIL PLANT, Clinton, TN, Employer
__________________________________________

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

Docket No. 07-591
Issued: May 31, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from the February 27, May 25 and
September 25, 2006 merit decisions of the Office of Workers’ Compensation Programs, which
denied his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of his claim.
ISSUE
The issue is whether appellant sustained a pulmonary condition in the performance of
duty.

FACTUAL HISTORY
On April 12, 2002 appellant, then 63-year-old retired maintenance worker, filed an
occupational disease claim alleging that his asbestosis was a result of his federal employment: “I
worked in maintenance in and around asbestos and I started coughing extremely bad.”1
Dr. Antoin H. Mardini, a Board-certified internist, examined appellant on December 11,
2001 and March 20, 2002. He stated that appellant was suffering from asbestosis, most likely
from handling asbestosis while working for the employing establishment from 1973 to 1989.
Dr. Mardini reported that chest x-rays obtained on October 29, 2001 showed parenchymal
abnormalities, small opacities in the bilateral lower fields and some pleural abnormalities. He
diagnosed parenchymal abnormalities consistent with asbestosis, bilateral lung fields.
On October 19, 2002 Dr. Ronald R. Cherry, a Board-certified internist specializing in
pulmonary disease, reported as follows:
“[Appellant] has had significant occupational exposure to asbestos dust in the past
which has, to a reasonable degree of medical certainty, resulted in asbestosis
which is the parenchymal lung scarring caused by the retention of asbestos fibers
in the lungs.
“[Appellant] has developed dyspnea with exertion and is known to have a
moderate restrictive impairment of lung function and reduction in his diffusion
capacity, also consistent with his asbestosis. I have advised [him] regarding his
increased risk of [m]esothelioma related to asbestos exposure, and also his
increased risk of lung cancer related to both asbestosis and cigarette smoking.”
On May 5, 2004 Dr. Cherry reported that x-rays dated April 21, 2004 revealed bilateral
interstitial infiltrates, primarily in the mid to lower lung zones, consistent with asbestosis. He
diagnosed asbestosis, which appeared to have progressed some in comparison to the previous
year.
On January 12, 2005 Dr. Cherry again addressed appellant’s occupational exposure to
asbestos:
“[Appellant] is a patient of mine who suffers from asbestosis. [He] had
significant occupational exposure to asbestos dust while working at various TVA
[Tennessee Valley Authority] plants from 1973 through 1989. [Appellant] also
had asbestos dust exposure when working on brake pads for 8 [to] 10 years off
and on, starting at the age of 18. I believe the asbestosis in [him] is related to all
of these asbestos exposures. It should be noted that there is on average a 20-year
delay between the onset of asbestos exposure and the development of asbestosis.
[Appellant’s] asbestos-related lung disease certainly falls within this general
latency period.”
1

On the prior appeal of this case, the Board found that appellant’s claim was timely. Docket No. 05-1179 (issued
August 16, 2005).

2

The Office accepted that appellant was exposed to asbestos in the course of his federal
employment for various periods from 1973 to 1989. The Office referred appellant, together with
a statement of accepted facts, to Dr. Suresh Enjeti, a Board-certified internist specializing in
pulmonary disease, for a second opinion on causal relationship.
On December 18, 2005 Dr. Enjeti diagnosed moderate obstructive airways disease. He
noted subtle abnormalities in the chest x-ray that needed better evaluation with a high-resolution
computerized tomography (CT) scan of the chest without contrast to look for abnormalities
consistent with pulmonary parenchymal and pleural changes associated with asbestos. Dr. Enjeti
stated that the primary abnormality, obstructive airways disease, was related to smoking.
On February 15, 2006 Dr. Enjeti reported that a January 16, 2006 high-resolution CT
scan of the chest showed no evidence of parenchymal or pleural abnormalities associated with
asbestos exposure.
On March 13, 2006 Dr. Cherry reported that conventional posterior-anterior chest x-rays
were superior to chest CT scans in the evaluation and staging of asbestos, in his opinion. He
noted that the International Labor Organization used chest x-rays rather than chest CT scans in
this regard. Dr. Cherry continued to diagnose asbestosis. On June 23, 2006 Dr. R. Hal Hughes,
specializing in pulmonary critical care medicine, diagnosed mild increased interstitial and
nodular markings in a patient with known asbestos exposure “who is essentially a nonsmoker.”
He stated: “I think this is highly suspicious for asbestosis.”
The Office denied appellant’s claim for compensation in decisions dated February 27,
May 25 and September 25, 2006. On December 14, 2005 the Office denied appellant’s
November 21, 2006 request for reconsideration.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 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 of the physician must be based on a complete
2

5 U.S.C. §§ 8101-8193.

3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

Mary J. Briggs, 37 ECAB 578 (1986).

3

factual and medical background of the claimant,5 must be one of reasonable medical certainty,6
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.7
Section 8123(a) of the Act provides in 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.”8
ANALYSIS
The Office accepted that appellant was exposed to asbestos in the course of his federal
employment for various periods from 1973 to 1989. Appellant has therefore established that he
experienced a specific exposure occurring at the time, place and in the manner alleged. The
question that remains is whether this exposure caused an injury.
Appellant submitted medical opinions supporting that the accepted exposure caused
asbestosis. Dr. Mardini was of the opinion that appellant was suffering from asbestosis, most
likely from handling asbestosis while working for the employing establishment from 1973 to
1989. Dr. Cherry stated that appellant’s occupational exposure to asbestos dust had, to a
reasonable degree of medical certainty, resulted in asbestosis. Both reported x-ray findings
consistent with asbestosis. Dr. Hughes added that his x-ray findings were “highly suspicious”
for asbestosis.
Dr. Enjeti, the Office referral physician, disagreed. He diagnosed moderate obstructive
airways disease causally related to smoking. Although Dr. Enjeti noted subtle abnormalities in
the chest x-ray, a high-resolution CT scan of the chest showed no evidence of parenchymal or
pleural abnormalities associated with asbestos exposure.
The Board finds a conflict in medical opinion between appellant’s physicians and the
Office referral physician on whether appellant’s accepted exposure to asbestos in federal
employment caused an injury. The Board will therefore set aside the Office decisions denying
appellant’s claim and remand the case for further development pursuant to section 8123(a) of the
Act. The Office shall refer appellant to an appropriate impartial medical specialist for
examination and a reasoned opinion on whether appellant’s accepted exposure to asbestos caused
a respiratory injury. Following such further development of the evidence as may be necessary,
the Office shall issue an appropriate final decision on appellant’s claim for compensation.

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

5 U.S.C. § 8123(a).

4

CONCLUSION
The Board finds that this case is not in posture for decision. A conflict in medical
opinion necessitates further development of the evidence.9
ORDER
IT IS HEREBY ORDERED THAT the September 25, May 25 and February 27, 2006
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
for further action consistent with this opinion.
Issued: May 31, 2007
Washington, DC

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

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

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

9

The disposition of this appeal renders moot the Office’s December 14, 2005 nonmerit decision denying
reconsideration.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Phoenix, AZ, Employer
__________________________________________

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Appearances:
Mark Coby, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1655
Issued: March 18, 2010

Case Submitted on the Record

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

JURISDICTION
On June 22, 2009 appellant, through his representative, filed a timely appeal from a
January 15, 2009 decision of the Office of Workers’ Compensation Programs denying his
request for reconsideration. Because more than one year has elapsed from the most recent merit
decision dated March 27, 2008, the Board lacks jurisdiction over the merits of the case pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s representative contends that the October 15, 2008 medical report
from Dr. Dale Ratcliffe, Board-certified in physical medicine and rehabilitation, constituted new
and relevant evidence establishing that appellant sustained an internal disc disruption due to the
September 21, 2003 employment injury and that this disc injury caused the subsequent findings
of spinal radiculopathy and the claimed emotional condition. He argued that the report directly
addressed the findings of the Office hearing representative, who stated that there was no

objective evidence to establish that the diagnosed radiculopathy or chronic lumbar pain was
caused by the work injury.
FACTUAL HISTORY
On September 21, 2003 appellant, then a 44-year-old transportation security screener,
sustained a low back injury while lifting a heavy bag at work. The Office accepted the claim for
a low back strain. Appellant stopped working on September 21, 2003. On May 5, 2004 he
underwent an interforaminal block at the L5-S1 nerve root. Based on the recommendations of a
second opinion physician, Dr. Robert Dunn, a Board-certified neurosurgeon, the employing
establishment offered appellant a light-duty position. Appellant briefly returned to light duty on
May 31, 2005 but stopped working after two hours due to a claimed back problem.1
On August 31, 2007 appellant’s representative requested that appellant’s claim be
expanded to include chronic depression with generalized anxiety, which appellant experienced
due to his ongoing chronic back condition. He submitted an August 6, 2007 medical report from
Jessie Garcia, Ph.D., a clinical psychologist, who diagnosed severe, chronic depression
combined with generalized anxiety. Dr. Garcia opined that the depression was associated with
appellant’s chronic back condition and back pain, as well as his preoccupations about
unemployment and money issues.
In a September 5, 2007 letter, the Office notified appellant of the deficiencies in his claim
for a consequential emotional condition and advised him of the evidence required to establish the
claim.
By decision dated October 11, 2007, the Office denied appellant’s claim for a
consequential emotional condition. It found that he did not submit sufficient medical evidence to
establish that he sustained depression or anxiety condition causally related to his employment
injury.2
On October 31, 2007 appellant, through his representative, requested an oral hearing
before an Office hearing representative. The oral hearing took place on February 5, 2008.
Appellant subsequently submitted a February 4, 2008 medical report from Dr. Garcia
who opined that appellant’s psychological conditions of depression and anxiety were
exacerbated by his September 21, 2003 back condition. Dr. Garcia stated that appellant’s poor

1

Appellant filed a separate claim for a May 31, 2005 traumatic back injury under Office file number xxxxxx528,
which the record reveals has not been accepted by the Office. Further, the record reveals that he also has several
other unaccepted workers’ compensation claims, including a September 16, 2005 occupational disease claim for
depression due to threats by the employing establishment, unfair denial of benefits and withholding of pay under
Office file number xxxxxx518. Appellant also filed a May 11, 2003 traumatic injury claim for a lower back and
right arm injury due to transporting heavy bags at work under Office file number xxxxxx684.
2

By decision dated October 22, 2007, the Office found that appellant incurred an overpayment in the amount of
$896.47, for which he was at fault, after receiving total disability compensation from May 29 through June 11, 2005
after he returned to work.

2

mental health apparently began in September 2003 and was further complicated by his physical
and financial difficulties.
By decision dated March 27, 2008, the Office hearing representative affirmed the
October 11, 2007 decision. He found that appellant did not submit a rationalized medical
opinion explaining how his employment-related low back strain caused depression and anxiety.
The Office hearing representative also noted that the medical evidence of record was insufficient,
as it related appellant’s emotional condition to employment-related chronic back pain and
radiculopathy. He stated that appellant’s injury was only accepted for a soft-tissue injury and
that chronic back pain and radiculopathy were not accepted conditions.
On October 27, 2008 appellant, through his representative, requested reconsideration. He
submitted an October 15, 2008 medical report from Dr. Dale Ratcliffe, Board-certified in
physical medicine and rehabilitation, who briefly described appellant’s medical and occupational
history. Based on a review of appellant’s medical records, Dr. Ratcliffe found that appellant
sustained a disc injury on September 21, 2003 and likely sustained internal disc disruption. He
stated that the internal disc disruption could account for the documented electromagnetic
findings of left L5 radiculopathy. Further, Dr. Ratcliffe opined that appellant’s depression was
secondary to his September 2003 injury with associated chronic pain syndrome.
By decision dated January 15, 2009, the Office denied appellant’s request for
reconsideration on the grounds that he did not submit any new evidence, advance a relevant legal
argument or show an “error in fact or law.” It found that Dr. Ratcliffe’s medical report did not
constitute new evidence as it reiterated evidence previously considered and was not probative to
the issue in the case.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6

3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

3

ANALYSIS
In support of his reconsideration request, appellant submitted an October 15, 2008
medical report from Dr. Ratcliffe. Based on a review of appellant’s medical records,
Dr. Ratcliffe stated that appellant sustained a disc injury on September 21, 2003 and also likely
sustained a disc disruption. Dr. Ratcliffe advised that the disc injury could likely account for the
documented findings of radiculopathy at L5. He also opined that appellant’s depression was
secondary to his September 21, 2003 injury with associated chronic pain syndrome.
The Office denied merit review on the grounds that this evidence was cumulative as it
reiterated previously submitted evidence and was not probative on the instant issue in the case.
However, in determining whether to reopen a case for reconsideration, it is improper for the
Office to evaluate the probative value of the evidence submitted.7 If the Office should determine
that the new evidence submitted lacks substantive probative value, it may deny modification of
the prior decision, but only after the case has been reviewed on the merits.8
Dr. Ratcliffe provided an opinion on the relevant issue of whether appellant sustained a
consequential emotional condition due to his employment injury. The Board finds that this
evidence is new and was not previously considered by the Office. It is sufficient to warrant a
further review of the case on its merits.9 The Office abused its discretion in finding that the
evidence reiterated that of record. The case is remanded to the Office to consider Dr. Ratcliffe’s
medical report and, following any necessary further development, issue an appropriate decision
on the merits of the case.
CONCLUSION
The Board finds that the Office abused its discretion by denying appellant’s request for
reconsideration.

7

Maggie Moore, 41 ECAB 334 (1989). See Helen E. Tschantz, 39 ECAB 1382, 1386 (1988).

8

Dennis J. Lasanen, 41 ECAB 933 (1990).

9

See R.M., 59 ECAB ___ (Docket No. 08-734, issued September 5, 2008); Donald T. Pippin, 54 ECAB
631 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the January 15, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: March 18, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5