United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, VEHICLE
MAINTENANCE FACILITY, Huntsville, AL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1556
Issued: January 28, 2008

Case Submitted on the Record

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

JURISDICTION
On May 21, 2007 appellant filed a timely appeal of the April 18, 2007 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of her claim for an
employment-related emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On June 20, 2005 appellant, then a 51-year-old clerk, filed an occupational disease claim
for stress, depression and anxiety. She stopped work on September 15, 2003. On the claim form
appellant generally alleged that she had been insulted, verbally and mentally harassed and was
denied training. She also claimed that she was retaliated against and sexually harassed by her

supervisor, Kenneth W. Fair. The alleged mistreatment began in January 2002 when appellant
was assigned a rehabilitation position at the vehicle maintenance facility (VMF).1 Mr. Fair
allegedly made sexual advances and sexually-suggestive remarks. He also reportedly allowed
other employees to insult and belittle appellant. Appellant claimed that she had been ridiculed
for not being able to perform her job and told she was stupid. She also alleged that Mr. Fair
punished her for not responding to his sexual advances.
Appellant submitted a November 18, 2003 report from Dr. R. Scott Hellard, a Boardcertified psychiatrist, who had been treating her for anxiety and depression since May 2003.
Dr. Hellard noted that appellant relayed to him that her transfer to VMF had been stressful and
that much of her stress was related to the constant and unrelenting verbal abuse that she suffered
from her supervisor. According to Dr. Hellard, appellant related numerous examples of how she
felt singled out and harassed by her supervisor. He noted that on more than one occasion she
reported that the supervisor had made sexual advances and that her rejection of these advances
resulted in retaliation by the supervisor. Dr. Hellard indicated that appellant remained extremely
fearful and paranoid of her workplace. He attributed her ongoing symptoms of depression and
anxiety to the circumstances that arose at work following her transfer to VMF.
The employing establishment challenged appellant’s claim noting, among other things,
that her allegations of sexual harassment and retaliation had recently been dismissed by an
administrative judge in a separate Equal Employment Opportunity (EEO) complaint.
In a July 13, 2005 statement, appellant’s supervisor denied her allegations of sexual
harassment. Mr. Fair stated that “[a]t no time did [he], or any personnel within the VMF, ever
sexually harass [appellant].” He also stated that she never commented about anyone belittling or
demeaning her. During appellant’s year and a half tenure at VMF, she never informed anyone of
any type of harassment. Mr. Fair indicated that he and appellant began having problems when he
asked her to complete the necessary forms for Family and Medical Leave Act (FMLA)
authorization. He also noted that he provided her with on-the-job training in various areas, such
as filing work orders and using Microsoft Excel. Mr. Fair explained that appellant had
difficulties performing these tasks correctly, which in turn caused scheduling problems and
potential financial losses. He also indicated that, after her September 15, 2003 departure from
VMF, she filed an EEO complaint against him for sexual harassment. According to Mr. Fair,
professional mediators and federal judges found there was no merit to the charges.
The Office requested additional evidence from both appellant and the employing
establishment. She was asked to provide a more recent physician’s opinion. The Office also
requested a specific account of the alleged incidents, including details as to when and where the
events occurred, who was present and what was said and done. Appellant was also encouraged
to provide any available evidence to support her allegations, such as witness statements and any
final grievance or EEO findings. The Office also asked the employing establishment to provide
full copies of all final EEO findings and documents regarding appellant’s allegations. Neither
party submitted the requested information within the allotted time frame.
1

Appellant previously sustained an employment-related left shoulder injury on October 18, 2000 (File No.
06-2020419).

2

In a decision dated October 21, 2005, the Office denied appellant’s claim because the
evidence was insufficient to establish fact of injury. The Office noted that she had not submitted
detailed and verifiable descriptions of the employment factors or incidents she alleged caused her
medical disorder. Without full details and evidence regarding appellant’s allegations, the Office
was unable to make a finding that the incidents and factors occurred as alleged.
Within a few days of the decision, the Office received a packet of information from
appellant that included additional medical records, a three-page statement and a June 21, 2005
EEO Commission decision. On November 17, 2005 appellant requested a review of the written
record.2
In appellant’s statement, she described several instances where she requested training and
was denied. She indicated that, when she began work at VMF on January 26, 2002, she was
initially responsible for computer data input. Appellant reportedly asked Mr. Fair for computer
training and he told her there was no training. But Mr. Fair did demonstrate some basic
computer functions for her. When appellant was later assigned data input duties on the vehicle
maintenance accounting system (VMAS), he again denied her request for training. Instead of
providing formal training, Mr. Fair assigned Ronnie Hall to explain how VMAS worked.
Appellant stated that Mr. Hall was not particularly helpful and at times was verbally abusive.
Another employee assigned to VMF in October 2002 received VMAS training, whereas
appellant did not. Appellant also alleged that she was the only VMF employee who did not
receive AVIS training. She explained that everyone assigned to VMF was put in some type of
training except her. Appellant also complained about not receiving formal or on-the-job training
when assigned additional duties such as maintaining information on hazardous materials, work
hours, mileage and material safety.
Another incident allegedly occurred on July 1, 2003 when appellant became upset during
a meeting with Mr. Fair and Fred Owens, the FMLA coordinator. Mr. Fair and Mr. Owens
discussed with her the procedures for documenting and authorizing FMLA requests. Appellant
was reportedly asked how long it would take her to bring in her medical excuse.
Appellant also accused both Mr. Fair and Mr. Hall of being verbally abusive. When
Mr. Hall was assigned the task of explaining how VMAS worked, he allegedly criticized her and
called her “dumb” and “stupid” whenever she asked a work-related question. He also allegedly
told appellant that she could not learn anything. This pattern of verbal abuse continued anytime
she and Mr. Hall were required to work together. Appellant claimed that she had spoken to
Mr. Fair on several occasions about Mr. Hall’s attitude and negative comments. Mr. Fair
reportedly told her to get used to it because he was not going to say anything to Mr. Hall.
Appellant similarly accused Mr. Fair of calling her stupid and telling her she was not smart
enough to learn anything. This allegedly occurred when she was working on VMAS. Appellant
also claimed that, between July and September 2002, Mr. Fair insulted her on many occasions.
Mr. Fair’s insults reportedly intensified in October and December 2002, and according to
appellant Mr. Fair was “rude and just plain hateful” towards her.
2

The Office hearing representative advised the employing establishment of appellant’s hearing request, but it
neglected to forward a copy of appellant’s recent statement to the employing establishment for comment.

3

Appellant raised a number of additional issues regarding job assignments and allocation
of office space. She alleged that Mr. Fair and Mr. Hall discussed how they would use her as a
cleaning person, which she believed was beyond her physical limitations. Appellant also stated
that Mr. Fair would make her paint, clean and take out the trash just to show her he was the boss.
She claimed that Mr. Fair also made her go outside in the rain and put gas in the pick-up truck
because he did not want to get wet. Appellant also objected to having one of her duties
reassigned to another employee in October 2002.
She took exception to Mr. Fair’s
September 15, 2003 decision to limit her access to VMAS.
Appellant noted that in March 2002, Mr. Hall told Mr. Fair to move her to the front
office. She complained that the move occurred without her input. Another office move in
July 2003 also did not meet with appellant’s approval. Appellant stated that, upon returning to
work on July 7, 2003, she found that her desk had been moved to the stockroom. The desk was
reportedly placed in a dark corner in front of a supply cabinet. Because of the desk’s location,
appellant would have to move every time someone came into the stockroom for supplies.
According to appellant, all of the noted incidents of inadequate training, job and office
reassignments, time and attendance disputes and verbal abuse occurred against the backdrop of
pervasive and continuous sexual harassment by Mr. Fair. The harassment allegedly started on
January 26, 2002, appellant’s first day working at VMF. She stated that Mr. Fair started asking
personnel questions that were inappropriate. Beginning in February 2002, Mr. Fair allegedly
made unwanted advances that include rubbing appellant’s shoulders, upper arms and her back.
He also reportedly put his wet finger in her ear. Even after appellant told him to stop, Mr. Fair
continued to put his hands on her. She also alleged that Mr. Fair began using foul language in
her presence. Appellant stated that, when she used the number “69,” Mr. Fair would make rude
and vulgar comments. Mr. Fair always talked about his sexual experience when around her.
Appellant stated that on several occasions Mr. Fair asked her to set him up with one of her
girlfriends. Mr. Fair would also ask her to meet him for drinks. Appellant alleged that Mr. Fair
continued to put his hands on her and inquire about her sex life. On June 9, 2003 Mr. Fair
reportedly wanted to have another private talk with her. Appellant said she did not want to meet
in private and preferred to have a witness present. However, Mr. Fair would not meet with her
under those circumstances. Lastly, appellant stated that, during September 2003, Mr. Fair told
her on several occasions she “needed a good f-----g.”
In her EEO complaint, appellant alleged that Mr. Fair sexually harassed her and that she
was relieved of her VMAS duties because of her gender or in retaliation for opposing Mr. Fair’s
sexual advances. In a decision dated June 21, 2005, the EEO Commission determined that there
was no discrimination. The administrative judge found that there was “sufficient evidence to
support a claim of harassment or hostile work environment on the basis of sex.” He specifically
found that appellant’s allegations concerning Mr. Fair’s behavior appeared “credible” and her
testimony established that the harassment was based on sex. But while the EEO Commission
found evidence of sexual harassment in the workplace, the employing establishment was relieved
of any liability for Mr. Fair’s misconduct because appellant neglected to take advantage of the
specific procedures in place at her job for reporting sexual harassment. With respect to her claim
that she was improperly relieved of her VMAS duties, the EEO Commission found that the
employing establishment had a legitimate, nondiscriminatory basis for this personnel action.

4

By decision dated February 24, 2006, the Office hearing representative affirmed the
October 21, 2005 decision denying the claim. The majority of appellant’s allegations were found
not to have been factually established, particularly those involving Mr. Fair’s alleged sexual
harassment.3 Appellant also failed to establish a lack of training and that she was called names
by coworkers. She did, however, establish that one of her duties was reassigned in October 2002
and that a coworker had been assigned to assist her with VMAS. The hearing representative also
found that appellant was asked to provide documentation for FMLA authorization and that she
was required to fill-up a truck with gas in the rain. Additionally, he found that she was required
to clean, paint and take out the garbage. Of the factors the hearing representative found
established, all were considered to be administrative in nature. Because there was no evidence of
error or abuse on the part of the employing establishment, the hearing representative found that
the established factors were noncompensable.
On August 16, 2006 appellant requested reconsideration. She submitted another copy of
the June 21, 2005 EEO Commission decision and specifically referenced the administrative
judge’s finding regarding Mr. Fair’s sexual harassment. Appellant also submitted a May 17,
2006 supplemental report from Dr. Hellard, who continued to find her disabled due to
employment-related depression and anxiety. Dr. Hellard stated that appellant’s symptoms began
at her workplace as a direct result of harassment she alleged occurred there.
The Office received another statement from Mr. Fair dated September 26, 2006. He
indicated that he never sexually harassed anyone. Mr. Fair also explained his “business
decision” to change appellant’s VMAS access status and to utilize her on other tasks. He denied
that there was a hostile work environment at VMF.
In response to appellant’s reconsideration request, the employing establishment argued
that the June 21, 2005 EEO Commission finding of sexual harassment should not be accepted by
the Office because the administrative judge did not base his finding on the facts, but on the
observed demeanor of the witnesses. The employing establishment argued that the facts
supported Mr. Fair’s denial of any harassment. It noted that five coworkers said they had not
seen any touching of a sexual nature between appellant and Mr. Fair nor did they hear him make
comments of a sexual nature.
Appellant replied on October 24, 2006. She explained that Mr. Fair’s “unwanted
advances and verbal statements were not performed in front of any employee or coworker.”
Appellant also submitted a copy of an August 2, 2004 notice of proposed adverse action -reduction in grade. The employing establishment had charged Mr. Fair with improper conduct
and failure to perform his duties in a satisfactory manner. The improper conduct charge included
five specific counts of misconduct directed toward appellant. These included unwelcome
touching, graphic descriptions of sexual encounters and other intimate details, an invitation to
partake in an illicit drug, Ecstasy, and other sexually-related statements. On at least one
occasion, Mr. Fair reportedly told appellant that what she needs was a “‘good f------g.’” On
several other occasions he asked if she “had gotten some,” a reference to having had sex.
3

The hearing representative made no mention of the fact that appellant filed an EEO complaint and that a
decision was issued June 21, 2005.

5

In a decision dated November 9, 2006, the Office reviewed the merits of the claim and
denied modification. Appellant filed another request for reconsideration on January 24, 2007
and the result was the same. The Office denied modification in a decision dated April 18, 2007.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable. Disability is not compensable, however, when it results from factors such
as an employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.5 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.6 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.7
ANALYSIS
Appellant identified a number of employment incidents she claimed either caused or
contributed to her diagnosed depression and anxiety. Of the employment incidents found to have
occurred as alleged, the Office determined that these particular incidents involved administrative
or personnel matters that were not compensable absent evidence of error or abuse on the part of

4

See Kathleen D. Walker, 42 ECAB 603 (1991).

5

Lillian Cutler, 28 ECAB 125 (1976).

6

See Kathleen D. Walker, supra note 4. Unless a claimant establishes a compensable factor of employment, it is
unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).
7

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

6

the employing establishment.8 With respect to the employment incidents involving time and
attendance, availability and adequacy of job training, work assignments, reassignment of
particular job duties and office space allocation, the Board finds these incidents noncompensable.
Appellant has not presented any evidence of error or abuse on the part of the employing
establishment with respect to its handling of the above-noted administrative and personnel
matters.
As to the remaining allegations of verbal abused by Mr. Hall and sexual misconduct by
Mr. Fair, the Board finds that the case is not in posture for decision. Verbal abuse or threats of
physical violence in the workplace are compensable under certain circumstances.9 This,
however, does not imply that every ostensibly abusive or threatening statement uttered in the
workplace will give rise to coverage under the Act.10 Verbal altercations and difficult
relationships with supervisors, when sufficiently detailed and supported by the record, may
constitute compensable factors of employment.11
Regarding Mr. Hall, appellant alleged that he called her dumb and stupid on numerous
occasions and told that her she could not learn anything. The offensive remarks initially
occurred when Mr. Hall was assigned to assist appellant on VMAS. It allegedly continued
whenever the two were subsequently assigned to work together. The employing establishment,
however, has not provided any specific information in response to appellant’s allegation that
Mr. Hall was verbally abusive. The only statements in the record were provided by Mr. Fair and
he did not offer any testimony about what Mr. Hall allegedly said to appellant. He merely
commented that appellant had not complained to him about “anyone belittling or demeaning
her.” Mr. Fair July 13, 2005 statement is not particularly responsive and it predated appellant’s
more detailed account of what allegedly transpired in the workplace, which the Office received
on October 26, 2005.
An employer who has reason to disagree with any aspect of the claimant’s allegations
shall submit a statement to the Office that specifically describes the factual allegation or
argument with which it disagrees and “provide evidence or argument to support its position.”12
The employer may include supporting documents such as witness statements or any other
relevant information.13 If the employer does not submit a written explanation to support the
disagreement, the Office may accept the claimant’s report of injury as established.14 The current
8

As a general rule, an employee’s reaction to administrative or personnel matters falls outside the scope of the
Federal Employees’ Compensation Act. However, to the extent the evidence demonstrates that the employing
establishment either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor. Andrew J. Sheppard, 53 ECAB 170, 173 (2001).
9

Fred Faber, 52 ECAB 107, 109 (2000).

10

Id.

11

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

12

20 C.F.R. § 10.117(a) (2007).

13

Id.

14

20 C.F.R. § 10.117(b).

7

record does not include a statement from Mr. Hall addressing appellant’s allegations that he was
verbally abusive. In fact, there is no indication that the Office ever requested that the employing
establishment respond to appellant’s latest statement received October 26, 2005. The hearing
representative was the first to address these specific allegations and the record indicates that he
did not solicit the employing establishment’s input regarding appellant’s October 26, 2005
statement.15 Thus, the Board finds that the case is not in posture for decision regarding the
allegations of verbal abuse involving Mr. Hall.
The Office’s development of the record regarding the numerous allegations of workplace
sexual misconduct lodged against Mr. Fair is similarly deficient, and thus, precludes a complete
and thorough review of this particular issue. Mr. Fair provided a blanket denial regarding the
alleged sexual misconduct. However, an EEO Commission administrative judge, who presided
over a hearing where both appellant and Mr. Fair testified, found appellant to be a more credible
witness, and thus, accepted her testimony regarding numerous incidents of sexual harassment by
Mr. Fair. The June 21, 2005 decision included specific findings of fact regarding Mr. Fair’s
inquiries about whether appellant was “get[ting] any?” and his repeated comments that she
needed “a good fucking.” The administrative judge also accepted appellant’s testimony that
Mr. Fair would discuss his personal sexual activities in great detail and that he asked her to go
out with him and take the drug Ecstasy. EEO Commission findings may constitute substantial
evidence relative to the claim to be considered by the Office and the Board.16 Although the
Office is not bound by the EEO Commission’s finding that Mr. Fair sexually harassed appellant,
there is legal precedent for accepting the demeanor-based credibility determinations of the trier
of fact who had the opportunity to examine various witnesses.17
The administrative judge’s acceptance of appellant’s account of events lends some
credence to her allegations that Mr. Fair made inappropriate advances and comments of a sexual
nature. Furthermore, there is evidence in the record that the employing establishment, at least at
one point, believed appellant’s allegations of sexual misconduct to be credible. The record
includes a copy of an August 2, 2004 proposed disciplinary action against Mr. Fair for sexual
misconduct involving appellant. But there is no indication in the record that the Office ever
asked the employing establishment to explain or provide any additional information regarding
the proposed disciplinary action. Additionally, the employing establishment appears to have
selectively disclosed only portions of appellant’s EEO file in an effort to rebut her allegations,
rather than providing the complete file for the Office to consider. Other potentially relevant
evidence includes the “Agency’s Report of Investigation,” as referenced in the June 21, 2005
EEO Commission decision. However, this document was also not made available to the Office.
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish entitlement to compensation,
the Office shares responsibility in the development of the evidence to see that justice is done.18
15

See supra note 2.

16

Beverly R. Jones, 55 ECAB 411, 417 n. 14 (2004).

17

J.S., 58 ECAB __ (Docket No. 06-2113, issued May 10, 2007); Anthony J. DeWilliams, 48 ECAB 410,
411 (1997).
18

William J. Cantrell, 34 ECAB 1223 (1983).

8

The Board finds that further evidentiary development is necessary in the present case.
Accordingly, the case is remanded to the Office for that purpose. After such development of the
case record as the Office deems necessary, a de novo decision shall by issued.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 18, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: January 28, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
La Crosse, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-500
Issued: June 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 5, 2007 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ merit decisions dated August 16, 2006 and September 17, 2007.
Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a right shoulder condition in the performance of duty.
FACTUAL HISTORY
Appellant, a 49-year-old custodial worker, filed a Form CA-2 claim for benefits on
May 15, 2006, alleging that as of April 10, 2006 he became aware that he had a right shoulder
condition causally related to factors of his employment.

In a report dated April 10, 2006, Dr. Bruce J, Kerr, Board-certified in internal medicine,
stated:
“[Appellant] reports at this time for evaluation of right scapular pain and increase
in anxiety. [He] left work today because of increasing symptoms. [Appellant]
was sweeping and felt worsening symptoms around his right upper back.”
“[Appellant] is interested in physical therapy for his injury… I do recommend
removing him from the workplace for several days, to allow him adequate time to
evaluate these symptoms and for occupational medicine evaluation. Further, time
off or return to workplace under restrictions will be arrived at after proper
occupational medicine evaluation.
Dr. Kerr noted on April 11, 2006 that x-ray results showed no pneumothorax on the right
and no active infiltrates. He advised that right scapular x-rays showed no bony abnormalities of
either the shoulder or the scapula.
In a report dated April 24, 2006, Dr. Catherine J. Inman, a specialist in occupational
medicine, related appellant’s complaints of right shoulder and right upper back pain and stated:
“[Appellant] states that he is a 60 percent disabled veteran and because of that
reason was put on a 20-pound weight restriction. He states that he has been
having pain with using his dust mop since February 6, 2005.... [Appellant]
describes his right upper back pain as below his right scapula and burning in
nature that is present upon awakening and worsens as the day progresses.”
Dr. Inman noted that appellant had undergone chiropractic treatment, which provided
some relief. On physical examination, she stated that appellant had full range of neck motion
with pain in internal rotation/adduction and pain with abduction at 120 degrees. Dr. Inman noted
some mild tenderness over the right acromioclavicular joint with some tenderness in the
infraspinatus area. Appellant also experienced pain with external rotation. Dr. Inman diagnosed
right infrascapular pain, work relatedness to be determined. She advised that, because of his
symptoms that suggested possible cervical disc pathology as the cause of his symptoms, she was
referring him to his primary care physician at the employing establishment. Dr. Inman
concluded:
“I explained to him that I doubt [his right scapular pain] can be considered work
related due to his 1988 injury since that did not appear to be musculoskeletal and
it would have resolved by this time. [Appellant] is on work restrictions as per [the
employing establishment] with a 20-pound work restriction, so it is not necessary
to address that aspect of his work restrictions. However, I recommend that he
have restricted reaching to the occasional category.”
By letter dated June 12, 2006, the Office advised appellant that it required additional
factual and medical evidence to determine whether he was eligible for compensation benefits.
The Office asked him to submit a comprehensive medical report from his treating physician
describing his symptoms and the medical reasons for his condition and an opinion as to whether

2

his claimed conditions were causally related to his federal employment. Appellant did not submit
any additional medical evidence.
By decision dated August 16, 2006, the Office denied appellant’s claim, finding that he
failed to submit medical evidence sufficient to establish that he sustained a right shoulder
condition in the performance of duty.
In a December 26, 2006 report, Dr. Aaron J. Hanesworth, a specialist in family practice,
stated:
“[Appellant] is a 49-year[-]old male who is a disabled veteran as well as having
problems with chronic ongoing right scapular pain. The origin of this pain seems
to date back to 1988. It has been bothering him much worse since April 2006....
It has been worse over the last several days and he feels like he needs some time
off work to help heal this.”
Dr. Hanesworth stated that his examination of appellant’s back revealed tenderness just
medial to the lower aspect of the right scapula. He noted some spasm of the thoracic paraspinous
muscles on the right side. Dr. Hanesworth advised that appellant could reach over his head, but
this only reproduced the pain. In a January 18, 2006 note, Dr. Michael S. Rusak, a chiropractor,
recommended physical therapy for appellant.
By letter dated July 8, 2007, appellant requested reconsideration.
diagnostic tests from March 2005 and May 2006, which showed normal results.

He submitted

By decision dated September 17, 2007, the Office denied modification of the August 16,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.2 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
1

5 U.S.C. §§ 8101-8193.

2

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

3

Victor J. Woodhams, 41 ECAB 345 (1989).

3

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish 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.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5
ANALYSIS
In the instant case, appellant has failed to submit any medical opinion containing a
rationalized, probative report which relates his claimed right shoulder condition to factors of his
employment. For this reason, he has not discharged his burden of proof to establish his claim
that this condition was sustained in the performance of duty.
Appellant submitted reports from Drs. Kerr, Inman and Hanesworth, who related findings
of right shoulder and right scapular pain on examination, in addition to upper back pain, but did
not provide any diagnosis or a probative, rationalized medical opinion that the claimed condition
or disability was causally related to employment factors. Dr. Inman advised that appellant’s
symptoms suggested possible cervical disc pathology as the cause of his symptoms, but
diagnostic tests were normal. In addition, she indicated that the injury was probably not work
related in light of a previous injury he had sustained in 1988 injury and because it did not appear
to be musculoskeletal and would have resolved by this time. Dr. Hanesworth stated in his
December 26, 2006 report that appellant was having problems with chronic ongoing right
scapular pain, which seemed to have originated in 1988. While his examination showed
tenderness at the lower aspect of the right scapula and some spasm of the thoracic paraspinous
muscles on the right side, he did not relate these symptoms to any factors of employment
The opinions of the physicians of record are of limited probative value as they do not
contain any medical rationale explaining how or why appellant’s claimed right shoulder

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

condition was currently affected by or related to factors of employment.6 The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated conclusions.7
Appellant did not submit a medical opinion which sufficiently described his job duties or
explained the medical process through which such duties would have been competent to cause
the claimed condition. Accordingly, he failed to submit sufficient medical evidence to establish
that his claimed right shoulder condition was causally related to his employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. The Office
advised appellant of the evidence required to establish her claim. However, he failed to submit
such evidence. Accordingly, the Office properly denied appellants’ claim for compensation
based on a right shoulder condition.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establish that his
claimed right shoulder condition was sustained in the performance of duty.

6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the September 17, 2007 and August 16, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York City, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1755
Issued: May 1, 2012

Case Submitted on the Record

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

JURISDICTION
On July 26, 2011 appellant filed a timely appeal from a January 25, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding her schedule award claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has more than two percent impairment of the left leg, for
which she received a schedule award.
FACTUAL HISTORY
On April 12, 2005 appellant, then a 62-year-old administrative clerk, filed an
occupational disease claim for left heel pain caused by walking at work. OWCP accepted left
plantar fasciitis and authorized an endoscopic plantar fasciotomy, which she underwent
1

5 U.S.C. §§ 8101-8193.

on May 1, 2007. After a period of time off work, appellant retired.
accepted a consequential right plantar fasciitis condition.

OWCP subsequently

On October 10, 2008 appellant filed a claim for a schedule award. In a December 10,
2008 letter, OWCP advised her of the medical information needed for a schedule award. No
responsive medical evidence was received.
By decision dated January 30, 2009, OWCP denied the schedule award claim finding that
appellant had not submitted any medical evidence to establish permanent impairment as a result
of the work-related condition.
Following this decision, OWCP received several reports from Dr. Eric Walter, a
podiatrist. In a January 15, 2009 report, Dr. Walter discussed the mechanism of injury,
appellant’s treatment and presented findings on examination. He concluded that she reached
maximum medical improvement on September 2008 when she was 60 percent recovered from
the initial pain. Dr. Walter noted that appellant continued to experience nerve root pain with no
weakness or atrophy, full movement and a slight limp. He stated that she had five percent
permanent impairment.
On February 12, 2009 appellant disagreed with OWCP’s January 30, 2009 decision and
requested a review of the written record by an OWCP hearing representative. By decision dated
May 6, 2009, the hearing representative set aside the January 30, 2009 decision finding that
Dr. Walter’s January 15, 2009 report required further medical development.
In a June 29, 2009 letter, OWCP requested that Dr. Walter submit additional medical
documentation in support of appellant’s schedule award claim using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). In a July 15, 2009 response, Dr. Walter opined that her right heel pain was related to
her left heel pain. Appellant favored her left heel and placed pressure on the right heel, which
over time led to decreased mechanical control of the foot and increased pain in the right heel.
Dr. Walter did not rate permanent impairment to her left lower extremity.
In an August 23, 2009 report, an OWCP medical adviser reviewed the medical record.
He noted that Dr. Walter failed to provide any impairment determination under the A.M.A.,
Guides or provide sufficient information so impairment could be calculated.
On November 3, 2009 OWCP referred appellant, together with the medical record, a list
of questions and a statement of accepted facts to, Dr. Stanley Soren, a Board-certified orthopedic
surgeon, for a second opinion examination. In a November 13, 2009 report, Dr. Soren reviewed
the history of injury, the medical records and presented examination findings. He diagnosed
plantar fasciitis of the left foot; status post endoscopic plantar fasciotomy. Dr. Soren felt that
appellant reached maximum medical improvement, although it was difficult to determine exactly
when it occurred. He stated an approximate date would be around June 2009 when Dr. Walter
mentioned her right foot became symptomatic and was worse than the left foot. Dr. Soren also
noted that appellant was a diabetic. In a December 8, 2009 report, he opined that she had 13
percent impairment of the left leg under the sixth edition of the A.M.A., Guides. Dr. Soren noted
that left foot range of motion was normal. But, under Table 16-2, page 501, he opined that

2

appellant had plantar fasciitis with an impairment range of 1 to 13 percent. Under Table 16-6,
page 516 Dr. Soren opined that she had grade modifier Functional History (GMFH) of 2; under
Table 16-7, page 517, appellant had grade modifier Physical Examination (GMPE) of 2; and
under Table 16-8, page 519, appellant had grade modifier Clinical Studies (GMCS) of 2. Under
the net modifier adjustment formula (GMFH – CDX) (2-1) + (GMPE – CDX) (2-1) + (GMCS CDX) (2-1) a +3 net modifier adjustment was found. Accordingly, Dr. Soren found that
appellant had 13 percent left leg impairment.
In a February 24, 2010 report, an OWCP medical adviser reviewed Dr. Soren’s reports
and noted that Dr. Soren did not list a default value for class 1 plantar fasciitis and provided no
rationale for his impairment determination. He stated that Dr. Soren picked the upper end of the
impairment range for numerous diagnoses under the class 1 heading but this was not correct for
the plantar fasciitis diagnosis. The medical adviser stated that the diagnosis of planar fasciitis
should have been chosen with a default value of class 1, which when adjusted moved to two
percent or the E value of the highest possible value for plantar fasciitis. He further stated that the
date of maximum improvement could either be July 15, 2009, the date of Dr. Walter’s
examination or June 2009, the date Dr. Soren choose.
On May 11, 2010 OWCP requested Dr. Soren to clarify his impairment rating. In a
June 23, 2010 report, Dr. Soren agreed that the default value for a class 1 plantar fasciitis was
one percent under Table 16-2, page 501. He stated that, as his net modifier adjustment of 3
moved the default value to the right or to the E value, appellant had two percent impairment of
her left leg.
In a July 21, 2010 report, an OWCP medical adviser stated that Dr. Soren correctly rated
two percent impairment for appellant’s left leg. In a December 13, 2010 report, the medical
adviser opined that the date of maximum medical improvement was November 13, 2009, the
date of Dr. Soren’s examination.
By decision dated January 25, 2011, OWCP granted appellant a schedule award for two
percent impairment to the left leg. The award covered 5.76 weeks of compensation for the
period November 13 to December 23, 2009.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 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. It, however, does not specify
the manner in which the percentage of loss shall be determined. The method used in making
such a determination is a matter that rests within the sound discretion of OWCP.3 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
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
2

20 C.F.R. § 10.404.

3

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

3

appropriate standard for evaluating schedule losses.4 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.5
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.6 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.8
ANALYSIS
OWCP accepted that appellant sustained a left plantar fasciitis, for which she underwent
an authorized endoscopic plantar fasciotomy on May 1, 2007.9 Appellant subsequently filed a
claim for a schedule award. By decision dated January 25, 2011, OWCP granted two percent
permanent impairment to the left lower extremity.
In his January 15, 2009 report, Dr. Walter opined that appellant had five percent
permanent impairment. However, he did not indicate what edition of the A.M.A., Guides the
impairment rating was based on or provide any rationale or calculations for his impairment
rating. No other reports from Dr. Walter contained an impairment rating for which an
impairment rating under the sixth edition of the A.M.A., Guides could be calculated. Thus, his
reports are of limited probative value to obtain an impairment rating.10
Dr. Soren submitted three reports, November 13 and December 8, 2009 and
June 23, 2010. In his November 13, 2009 report, he set forth his examination findings. In his
December 8, 2009 report, Dr. Soren initially opined that appellant had 13 percent left leg
impairment.11 OWCP referred the matter to an OWCP medical adviser who opined that
4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides 494-531.

7

Id. at 521.

8

Federal (FECA) Procedure Manual, supra note 5 at Chapter 2.808.6(d) (August 2002).

9

While OWCP subsequently accepted a consequential right plantar fasciitis, this schedule award only concerns
the accepted left plantar fasciitis condition.
10

See Shalanya Ellison, 56 ECAB 150, 154 (2004) (schedule awards under FECA are to be based on the A.M.A.,
Guides; an estimate of permanent impairment is irrelevant and not probative where it is not based on the A.M.A.,
Guides).
11

Dr. Soren apparently mistakenly chose 13 percent impairment as this was the maximum impairment allowed
for any class one diagnosis in Table 16-2 page 501-08 of the A.M.A., Guides. However, the actual range of
impairment for the applicable diagnosis of plantar fasciitis is zero to two percent. A.M.A., Guides at 501.

4

Dr. Soren had utilized the improper default value. Subsequently, Dr. Soren found in his June 23,
2010 report that the correct application of the A.M.A., Guides resulted in two percent left leg
impairment. Under Table 16-2, page 501 of the A.M.A., Guides a class 1 plantar fasciitis has
one percent default value for the c level. Dr. Soren found under Table 16-6, page 516 appellant
had GMFH of 2; under Table 16-7, page 517, appellant had GMPE of 2; and under Table 16-8,
page 519, appellant had GMCS of 2. Using the net modifier adjustment formula (GMFH –
CDX) (2-1) + (GMPE – CDX) (2-1) + (GMCS - CDX) (2-1), he found a +3 adjustment. In his
June 23, 2010 report, Dr. Soren acknowledged that a net adjustment of 3 would move the default
value of a class 1 to the right to grade E for a maximum of two percent of the left lower
extremity. The Board finds that Dr. Soren’s final impairment of two percent of the left lower
extremity conforms to the proper application of the A.M.A., Guides. On July 21, 2010 an
OWCP medical adviser reviewed the medical evidence and opined that Dr. Soren properly
calculated appellant’s impairment at two percent for the left leg.
The record does not contain any other report that evaluates appellant’s left lower
extremity impairment under the sixth edition of the A.M.A., Guides. Appellant has not
submitted evidence showing that she has more than a two percent permanent impairment of her
left leg.
On appeal, appellant states that she believes the two percent schedule award is incorrect
and asserted that she has never received any compensation for her injury. As noted, the medical
evidence of record does not establish greater impairment than two percent of the left leg. The
Board notes that amount payable pursuant to a schedule award does not take into account the
effect that the impairment has on employment opportunities, wage-earning capacity or lifestyle
activities.12 Appellant may request an increased schedule award based on evidence of a new
exposure or medical evidence showing progression of an employment-related condition resulting
in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than two percent permanent impairment of
the left lower extremity, for which she received a schedule award.

12

Denise L. Crouch, 57 ECAB 161 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE ARMY,
TRAINING & DOCTRINE COMMAND,
Kandahar Province, Afghanistan, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-296
Issued: April 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 21, 2014 appellant, through counsel, filed a timely appeal from a
September 3, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on July 14, 2012.
On appeal counsel asserts that the September 3, 2014 OWCP decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a March 19, 2014 decision, the Board
found the case not in posture for decision. The Board found the opinion of Dr. Paul M. Joslin, a
Board-certified internist, was sufficient to require further development of the medical record and
remanded the case to OWCP to refer appellant, an updated statement of accepted facts, and the
medical evidence of record to an appropriate Board-certified specialist for an examination,
diagnosis, and a rationalized opinion as to whether appellant established that employment factors
caused or aggravated his back or left lower extremity condition.2 The law and facts of the
previous Board decision are incorporated herein by reference.
Subsequent to the Board’s March 19, 2014 decision, OWCP requested that the employing
establishment provide a copy of appellant’s position description and information regarding his
deployment to Afghanistan, the date he stopped work, and the reason for his departure. It also
referred appellant to Dr. John J. Sand, a Board-certified neurologist, for a second opinion
evaluation. Dr. Sand was provided a statement of accepted facts and a set of questions.
On May 13, 2014 the employing establishment forwarded a position description and two
Notifications of Personnel Action (Form 50). The first Form 50, effective August 29, 2011,
indicated that appellant’s appointment on that date was “excepted” and not to exceed October 28,
2013 and was subject to completion of 14 months. The second Form 50, effective October 28,
2012, indicated that appellant was terminated due to the expiration of appointment.
In a May 21, 2014 report, Dr. Sand noted his review of the medical record and the
July 2012 incident. He indicated that neurological examination revealed that appellant was
awake, alert, and oriented. Mental status was intact, and speech and language were normal.
Pseudobulbar affect was not noted during the evaluation, and cranial nerves II through XII were
intact. Motor examination revealed minimal weakness of the left hip and knee flexors with
otherwise normal strength and tone throughout. Sensory examination was normal to touch, pin
and stereognosis. Gait was normal on heels, on toes, and in tandem. Romberg test was
negative. Finger to nose and heel to shin were normal, and rapid alternating movements were
minimally slowed in the left foot. Dr. Sand diagnosed generalized muscle weakness. He advised
2

Docket No. 13-1409 (issued March 19, 2014). Appellant filed a traumatic injury claim, alleging that on July 14,
2012 he sustained mono peripheral neuropathy of the lower left leg and foot. He indicated that, after sitting for 45
minutes at a remote Afghanistan location while in full combat gear, his left foot became numb and he could not walk
normally when he stood, which caused him to fall. Appellant was treated by an Army medic that day and did not
receive treatment from a physician until July 20, 2012. He was medically evacuated to the United States on
August 15, 2012. In reports dated January 15 and 16, 2013, Dr. Joslin described the history of injury. He diagnosed
left lower extremity paresis and numbness, lumbar radiculopathy and cerebrovascular disease. Dr. Joslin indicated
that his medical opinion and explanation as to how the reported work incident caused or aggravated the diagnosed
conditions would include two possibilities, both related to appellant’s work in Afghanistan: first, that appellant’s
left lower extremity weakness, numbness, and foot drop were due to lumbar radiculopathy which would presumably
be caused by disc bulging related to carrying an 80- to 100-pound pack. He opined that this would be a less likely
explanation, in light of the absence of focal disc protrusion, spinal stenosis or foraminal encroachment shown on a
September 11, 2012 lumbar magnetic resonance imaging (MRI) scan, indicating that the most likely explanation was
that appellant’s left lower extremity paresis, sensory deficit and foot drop were caused by an ischemic
cerebrovascular accident in the right middle cerebral artery distribution, due to dehydration and hypovolemia in
combination with extreme heat while on patrol in Afghanistan. Dr. Joslin concluded that appellant had recovered
completely.

2

that appellant had a slowly resolving left lower extremity weakness syndrome, with
symptomatology that had been stable for approximately one year, with minimal residual.
Dr. Sand opined that appellant’s history was consistent with a small right frontal cerebral
infarction with sudden onset, stability for a few days or weeks, and then slow improvement over
3 to 12 months. He also stated that the history would also be consistent with peripheral nerve
injury, stating that if this were the case, he would expect more sensory symptoms including pain
and numbness. Dr. Sand indicated that it was difficult to reconstruct “this unusual situation”
almost two years after the onset of symptoms, especially since neurologic evaluation and
subsequent testing did not occur for weeks or months after the onset of symptoms. He stated that
there would always be some question as to the diagnosis and causes of appellant’s left leg
weakness, but felt that the most likely diagnosis was a small right frontal cerebral infarction.
Dr. Sand indicated that this was not due to dehydration because appellant would have had
additional symptoms and bilateral findings. He concluded that the diagnosis of probable stroke
was not related to work activities and indicated that a less likely alternative diagnosis was a
peripheral nerve injury such as an L6 radiculopathy, which would be related to his work
activities.
On May 27, 2014 appellant forwarded copies of an award presented to appellant and of a
photograph of him with the gear he wore when traveling in Afghanistan from one command
outpost to another. He also provided a Department of Defense Directive dated January 23, 2009
concerning civilian expeditionary workforce. This included the employing establishment’s
policy regarding employees who became ill or when injured while deployed.
In a supplemental report dated July 2, 2014, Dr. Sand indicated that appellant had a high
likelihood that his left leg weakness was due to a stroke and was unrelated to work. He
concluded, “I cannot be completely certain as to the cause of [appellant’s] difficulties, but feel a
diagnosis of stroke with reasonable certainty.” On July 28, 2014 Dr. Sand indicated that there
were no clear test results indicating a stroke and electrodiagnostic testing suggested lumbar
radiculopathy which would be a lower back problem. He stated that the minimal findings on
examination revealed weakness most consistent with stroke or other upper motor neuron cause,
rather than radiculopathy. Dr. Sand further opined that the sudden onset of symptoms was much
more stroke-like rather than a radiculopathy. He concluded that uncertainty remained as to the
diagnosis of either stroke or radiculopathy or both but that the findings on examination and the
sudden onset of symptoms were more suggestive of stroke and were therefore unrelated to
appellant’s employment.
In a merit decision dated September 3, 2014, OWCP found that, based on Dr. Sand’s
opinion that appellant’s condition was likely caused by suspected stroke, unrelated to
employment, appellant did not establish that he sustained an employment-related medical
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged

3

and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 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 employee.7 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 causal relationship.8
ANALYSIS
The Board finds this case is not in posture for decision as to whether appellant sustained
an employment-related injury on July 14, 2012. In its September 3, 2014 decision, OWCP found
that the weight of the medical evidence rested with Dr. Sand who provided a second opinion
evaluation. The Board finds, however, that a conflict exists in the medical evidence with respect
to whether appellant’s diagnosed conditions were caused or aggravated by the July 12, 2012
incident.
In reports dated January 15 and 16, 2013, Dr. Joslin, an attending internist, diagnosed left
lower extremity paresis and numbness, lumbar radiculopathy, and cerebrovascular disease. He
indicated that there were two possibilities regarding how the July 2012 incident caused or
3

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

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

5

Supra note 3.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

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

4

aggravated the diagnosed conditions, both related to appellant’s work in Afghanistan: first that
his left lower extremity weakness, numbness, and foot drop were due to lumbar radiculopathy
which would presumably be caused by disc bulging related to carrying an 80- to 100-pound
pack. Dr. Joslin opined that this would be a less likely explanation, in light of the absence of
focal disc protrusion, spinal stenosis, or foraminal encroachment shown on a September 11, 2012
lumbar MRI scan, and that the most likely explanation was that appellant’s left lower extremity
paresis, sensory deficit, and foot drop were caused by an ischemic cerebrovascular accident in
the right middle cerebral artery distribution, due to dehydration and hypovolemia in combination
with extreme heat while on patrol in Afghanistan. He concluded that appellant had recovered
completely.
In reports dated May 21, July 2 and 28, 2014, Dr. Sand diagnosed generalized muscle
weakness, stating that appellant had a slowly resolving left lower extremity weakness syndrome,
with symptomatology that had been stable for approximately one year, with minimal residual.
He opined that the history would be consistent with a small right frontal cerebral infarction with
sudden onset, stability for a few days or weeks, and then slow improvement over 2 to 12 months.
However, the history would also be consistent with peripheral nerve injury, and that, if this were
the case, he would expect more sensory symptoms including pain and numbness. Dr. Sand
indicated that it was difficult to reconstruct “this unusual situation” almost two years after the
onset of symptoms, especially since neurologic evaluation and subsequent testing did not occur
for weeks or months after the onset of symptoms. He stated that, while there would always be
some question as to the diagnosis that caused appellant’s left leg weakness, there was a high
likelihood that he had a small right frontal cerebral infarction. Dr. Sand opined that this was not
due to dehydration because then appellant would have had additional symptoms and bilateral
findings and concluded that the diagnosis of probable stroke was not related to work activities.
He indicated that a less likely alternative diagnosis was a peripheral nerve injury such as lumbar
radiculopathy, which would be related to his work activities. In a supplemental report dated
July 2, 2014, Dr. Sand indicated that appellant had a high likelihood that his left leg weakness
was due to a stroke and was unrelated to work, indicating that the minimal findings on
examination revealed weakness most consistent with stroke or other upper motor neuron cause,
rather than radiculopathy. He further opined that the sudden onset of symptoms was much more
stroke-like rather than a radiculopathy. Dr. Sand concluded that uncertainty remained as to the
diagnosis of either stroke or radiculopathy or both but that the findings on examination and the
sudden onset of symptoms were more suggestive of stroke and were therefore unrelated to
appellant’s employment.
If there is disagreement between OWCP’s referral physician and the employee’s treating
physician, OWCP will appoint a third physician who shall make an examination.9 For a conflict
to arise, the opposing physicians’ viewpoints must be of virtually equal weight and rationale.10
Dr. Joslin and Dr. Sand are in agreement that the most likely cause of appellant’s lower
extremity weakness was a stroke. They, however, disagree as to whether the stroke was caused
by the July 14, 2012 employment incident. The Board finds their opinions to be of equal weight
as to whether the diagnosed stroke was caused by the July 14, 2012 employment incident. The
9

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

10

Darlene R. Kennedy, 57 ECAB 414 (2006).

5

Board will set aside the September 3, 2014 decision and remand the case for OWCP to refer
appellant to an impartial medical specialist to resolve the conflict. The impartial medical
specialist should review the reports of both Dr. Joslin and Dr. Sand, along with the case record
and statement of accepted facts, and provide a rationalized opinion as to whether appellant’s
diagnosed condition was caused or aggravated by the July 14, 2012 incident. After such further
development as it deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision as there is an unresolved conflict
in medical evidence regarding whether appellant met his burden of proof to establish that he
sustained an employment-related injury on July 14, 2012.
ORDER
IT IS HEREBY ORDERED THAT the September 3, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: April 9, 2015
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 10-224
Issued: October 6, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On October 13, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 16, 2008, which denied appellant’s claim
for a cervical condition. Appellant also timely appealed the Office’s September 2, 2009
nonmerit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
these issues.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that his
cervical condition was causally related to his employment; and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits of his claim.
FACTUAL HISTORY
On October 17, 2004 appellant then a 54-year-old letter carrier, filed an occupational
disease claim alleging that he sustained a back condition as a result of his duties. He did not stop
work. However, appellant requested light duty. He indicated that he had back problems since
1974 when he fell off of an airplane while in the Air Force. Appellant also noted being rear
ended in an automobile accident on July 20, 2004. The Office accepted his claim for lumbar

degenerative disc disease, temporary aggravation of lumbar stenosis and temporary aggravation
of lumbar spondylosis. It also authorized lumbar spine fusion operations that were performed on
January 11 and May 18, 2005 and September 20, 2006.1 Appellant received compensation
benefits. He returned to work on July 11, 2005 at full-time modified duty. Appellant stopped
work on September 19, 2006.
In a November 14, 2005 report, Dr. William D. Smith, a Board-certified neurosurgeon
and treating physician, advised that appellant presented with severe neck pain radiating into the
shoulders and interscapular region. He found cervical spondylitic change, most severe at C4-5
and C5-6 and recommended anterior cervical discectomy and fusion. Dr. Smith opined that
appellant’s job for many years carrying mail predisposed him to this injury. On June 7, 2007 he
advised that appellant might need further testing as he believed that appellant had early cervical
myelopathy. Dr. Smith indicated that appellant was permanently disabled.
On July 13, 2007 the Office referred appellant for a second opinion examination with
Dr. Aubrey Swartz, a Board-certified orthopedic surgeon, regarding the extent of appellant’s
condition. In an August 1, 2007 report, Dr. Swartz, noted appellant’s history and indicated that
diagnostic testing dating to May 26, 2004 showed no evidence of radiculopathy. He advised that
imaging studies in 2004 showed an arthritic spine with central spinal stenosis. Dr. Swartz
indicated that such testing suggested that the lumbar conditions were a chronic degenerative
process. He also noted that appellant was involved in a motor vehicle accident in July 2004,
which caused his back pain to worsen. Dr. Swartz stated that appellant was taking numerous
medications. He advised that appellant’s response to a light fingertip touch signified symptom
magnification. Dr. Swartz also noted that appellant had had three failed back surgeries, and
failed medical treatment. He noted that appellant’s physician failed to recognize that appellant
had a psychiatric problem, which needed to be addressed. Dr. Swartz opined that appellant’s
current back condition was unrelated to his employment with the employing establishment and
indicated that appellant had no other conditions related to his employment. He explained that the
work-related temporary aggravation of his conditions ended when he last worked for the
employing establishment. Dr. Swartz physician noted that, after that point, appellant had
residuals from his years of progressive degenerative disease and his original injury that began
when he was in the military. He opined that appellant could work within restrictions although
the need for restrictions was not employment related.
In a September 18, 2007 report, Dr. Smith noted that appellant’s automobile accident in
2004 caused a temporary worsening of his back pain. He disagreed with Dr. Swartz that
appellant had reached maximum medical improvement. Dr. Smith also advised that appellant’s
compression of his thoracic and cervical spine was work related. On October 11, 2007 he noted
that appellant had cervical stenosis and recommended an anterior cervical discectomy and
interbody fusion at C4-5, C5-6 and C6-7. Dr. Smith opined that appellant’s duties as a letter
carrier “predisposed him to this.”

1

The record reflects that appellant has a Department of Veterans Affairs claim which was accepted for several
conditions that included chronic lumbosacral strain/facet syndrome and cervical strain with degenerative joint
disease.

2

On December 1, 2007 appellant, filed an occupational disease claim for cervical and
thoracic conditions as a result of his duties. He alleged that on July 18, 2000, he realized his
disease or illness was caused or aggravated by his employment.
On April 30, 2008 the Office referred appellant along with a statement of accepted facts,
and the medical record to Dr. Mark Rosen, a Board-certified orthopedic surgeon, for an impartial
medical opinion to resolve the medical conflict between Drs. Smith and Swartz about appellant’s
work status and whether a cervical or any other condition was work related.
In a June 2, 2008 report, Dr. Rosen noted appellant’s history and examined appellant.
Regarding the cervical spine, he determined that appellant could flex no more than 10 degrees
nor extend at all. He also determined that appellant could not rotate to either side without pain.
Dr. Rosen also noted lumbar spine findings. He stated that appellant complained of pain in his
neck but not his lower back. Dr. Rosen advised that rotation around the pelvis resulted in slight
back pain. He noted that appellant had pain with straight leg raise in the back which radiated to
the back of his legs with elevation to no more than 15 degrees off the table and seating to 90
degrees. Dr. Rosen also determined that appellant had pain in the back when he ranged his hips.
Regarding a return to gainful employment, he noted that appellant’s activities at home were
consistent with sedentary work noting that, at home, appellant alternated sitting, lying down and
moving about his “office.” Dr. Rosen opined that “there was no logical reason that appellant
could n[o]t engage in such work.” He noted activity restrictions and advised that appellant
would need to be weaned off his pain medications so that he could stay awake. Dr. Rosen
explained that appellant’s limitations were due to the extensive degenerative disc disease
involving appellant’s cervical and lumbosacral spine, his constant complaints of chronic pain and
the narcotics used for his treatment. He noted that appellant’s problems began in 1974 when he
fell off the wing of the airplane. Dr. Rosen explained that “[w]ithin a reasonable degree of
medical probability it was this fall and possibly some degenerative genetic predisposition that
resulted in the degenerative disc disease and arthritis involving the entire axial spine. There is no
reason to believe that his occupation as a worker at the postal office has physically sped up the
natural course of that condition.” Dr. Rosen also noted that appellant had not worked at the
employing establishment for the last three years and opined that while appellant’s work at the
employing establishment could have aggravated the symptoms due to his conditions, there was
no reason to expect that they would have accelerated the anatomic degenerative conditions
responsible for his suffering. He advised that since appellant had stopped working at the
employing establishment, any temporary aggravation would have ceased. Dr. Rosen opined that
“[s]ince stopping work has not diminished his symptoms one can not attribute his symptoms to
the work.”2
By decision dated October 16, 2008, the Office denied appellant’s claim for a cervical
spine condition. It determined that, based on Dr. Rosen’s report, the cervical condition was not
caused by appellant’s work at the employing establishment as a letter carrier.

2

The Office requested a supplemental opinion from Dr. Rosen regarding residuals due to lumbar surgery and
work restrictions. In a September 5, 2008 addendum, Dr. Rosen noted that the lumbar surgeries appellant underwent
resulted in residuals that accelerated disc disease in the lumbar spine. He also provided a work restriction evaluation
form.

3

On November 9, 2008 appellant submitted a detailed statement questioning the validity
of Dr. Rosen’s report. He alleged that there were various inaccuracies. Appellant alleged that
Dr. Rosen had a “preconceived agenda and was not interested in the facts.” He noted his
medical records since November 4, 1986 and argued that his cervical and thoracic conditions
were “job related.” Also submitted was an October 2, 2008 report from a physician’s assistant.
On July 20, 2009 appellant requested reconsideration. He alleged that Dr. Rosen’s
opinion was not valid because he advised against a fourth lumbar surgery. Appellant noted that
it was subsequently determined he was a surgical candidate. He argued that Dr. Rosen must be
incorrect in determining that his cervical condition was not causally related to his injury.
Appellant repeated his arguments that his cervical and thoracic conditions were job related. He
also submitted a December 29, 2008 report from Dr. Smith who noted that a cervical
computerized tomography (CT) scan revealed significant degeneration at C4-5, C5-6 and C6-7,
with disc bulges at C4-5 and foraminal stenosis at C5-6 and C6-7. On May 14, 2009 Dr. Smith
noted lumbar spine findings and on May 19, 2009, he performed a discectomy at L1-2.
Appellant also submitted copies of previously submitted reports and diagnostic test
results. They included Dr. Smith’s November 14, 2005 report and a January 10, 2005 report
from Dr. Richard Kudrewicz, a Board-certified family practitioner, who provided an impairment
rating for the lumbosacral spine, right shoulder, cervical spine and right knee. Additionally, the
Office received cervical magnetic resonance imaging (MRI) scans dated March 29, 2005 and
January 2, 2007, thoracic MRI scans dated March 13, 2006 and October 2, 2007 and cervical
x-rays dated January 21, 2004 and February 24, 2005.
A November 25, 2008 CT scan of the cervical spine read by Dr. William Orrison, a
Board-certified diagnostic radiologist, revealed marked degenerative changes at C4-5, C5-6 and
C6-7. Dr. Orrison also provided a November 25, 2008 lumbar spine CT scan. Additionally, he
provided a myelogram of the cervical, thoracic and lumbar spine on that same date. Dr. Orrison
found noted multi-level degenerative changes in the cervical spine and bulging discs at C3-4,
C4-5, C5-6, C6-7 and C7-T1. In the thoracic spine, he noted a mild intervertebral disc bulge at
T5-6 with degenerative changes. A February 18, 2009 electromyography (EMG) and nerve
conduction study from Dr. Leo Germin, a Board-certified neurologist, noted findings for L2-S2
innervated muscles.
On August 5, 2009 the Office received a copy of an October 12, 2005 report, from
Dr. Anthony Ruggeroli, a Board-certified anesthesiologist, who noted that appellant’s cervical
MRI scan revealed broad-based protrusions at C4-5 with other associated degenerative changes.
In his October 28, 2005 report, Dr. Ruggeroli noted “the precise source of appellant’s pain is still
unclear.” He noted that appellant had degenerative changes at C4-5 and C5-6 and opined that “it
would be unusual if those findings were responsible for any pain he is experiencing.”
Dr. Ruggeroli noted that appellant had myofascial pain. Also submitted was a February 18, 2009
report noting his treatment of appellant’s lumbar spine. In a September 2, 2009 decision, the
Office denied appellant’s request for reconsideration finding that the evidence submitted was
insufficient to warrant review of its prior decision.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, he bears the burden of proof to establish that the condition is
causally related to the employment injury.7 To establish a causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a causal relationship.8 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.9
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.10 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 causal relationship.11

3

5 U.S.C. §§ 8101-8193.

4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Jaja K. Asaramo, 55 ECAB 200 (2004).

8

I.R., 61 ECAB ___ (Docket No. 09-1229, issued February 24, 2010).

9

Y.J., 60 ECAB ___ (Docket No. 08-1167, issued October 7, 2008).

10

Phillip L. Barnes, 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

11

A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

5

ANALYSIS -- ISSUE 1
The Office accepted the claim for several low back conditions and authorized lumbar
spine surgery. Appellant’s treating physician, Dr. Smith opined that appellant’s cervical and
thoracic conditions were work related. The second opinion physician, Dr. Swartz, opined that
appellant did not have any other work-related conditions. On April 30, 2008 the Office referred
appellant to Dr. Mark Rosen, a Board-certified orthopedic surgeon and impartial medical
examiner, to resolve the conflict.
Section 8123(a) of the Act 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.”12 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.13
In a June 2, 2008 report, Dr. Rosen conducted an extensive review of appellant’s history
and noted findings on examination of appellant’s spine, including his cervical spine. He opined
that appellant’s current spine condition began when appellant fell from an airplane in 1974 while
in the Air Force. Dr. Rosen opined that this fall and possibly some degenerative genetic
predisposition resulted in the degenerative disc disease and arthritis involving the entire axial
spine. He explained that there was no reason to believe that his occupation at the employing
establishment physically sped up the natural course of that condition. Dr. Rosen further noted
that appellant had not worked at the employing establishment for the last three years and thus
while there may have been an aggravation of the symptoms due to his conditions, “there was no
reason to expect that they would have accelerated the anatomic degenerative conditions
responsible for his suffering.” He explained since appellant had stopped working at the
employing establishment, any temporary aggravation would have ceased and, because
appellant’s symptoms had not diminished since stopping work, he could not attribute symptoms
to his former work. In a September 5, 2008 addendum, Dr. Rosen clarified that appellant had
lumbar residuals due to accepted surgeries. However, he noted no basis on which to attribute
appellant’s neck or other spine condition to his employment.
The Board finds that Dr. Rosen provided a detailed and well-rationalized report based on
a proper factual background and thus his opinion is entitled to the special weight accorded an
impartial medical examiner. His report, therefore, constitutes the weight of the medical opinion
evidence and establishes that appellant does not have a cervical condition as a result of his duties
at the employing establishment.

12

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002); Rita Lusignan (Henry Lusignan), 45
ECAB 207, 210 (1993).
13

See Roger Dingess, 47 ECAB 123, 126 (1995); Juanita H. Christoph, 40 ECAB 354, 360 (1988); Nathaniel
Milton, 37 ECAB 712, 723-24 (1986).

6

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, 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.15 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.16 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.17
14

ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his claim for a cervical condition and requested
reconsideration. The underlying issue, of whether appellant established that he sustained a
cervical condition causally related to his employment, is medical in nature. However, appellant
did not provide any relevant or pertinent new medical evidence to the issue of whether his
cervical condition was causally related to his accepted employment injuries.
In a November 9, 2008 statement and a July 20, 2009 request for reconsideration
appellant argued that his cervical and thoracic conditions were “job related.” Causal
relationship, however, is a medical issue and must be supported by medical evidence.18 These
unsupported allegations do not show that the Office erroneously applied or interpreted a specific
point of law and do not advance a relevant legal argument not previously considered by the
Office. Likewise, appellant also questioned the validity of Dr. Rosen’s report and alleged
various inaccuracies. For example, he alleged that Dr. Rosen had a “preconceived agenda and
was not interested in the facts.” He also argued that Dr. Rosen’s opinion was not valid because
he did not support further lumbar surgery although appellant was later found to be a surgical
candidate. The Board finds that these general assertions are not medical in nature nor relevant to
the underlying issue of causal relationship.19
Appellant submitted new reports from Dr. Smith, including a December 29, 2008 report
which noted degeneration in the cervical spine; a May 14, 2009 report regarding the lumbar
14

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).
15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.607(a).

17

Id. at § 10.608(b).

18

See supra note 9. See also Gloria J. McPherson, 51 ECAB 441 (2000) (lay individuals are not competent to
render a medical opinion).
19

See J.P., 58 ECAB 289 (2007) (evidence that does not address the particular issue involved does not constitute
a basis for reopening a case).

7

spine and a May 19, 2009 report noting Dr. Smith had performed a lumbar discectomy. While
these reports were new reports, they are not relevant because Dr. Smith did not address causal
relationship between appellant’s cervical condition and his federal employment. The submission
of evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.20 Likewise, reports of diagnostic testing such as those from Dr. Orrison and
Dr. Germin were submitted. These reports are not relevant because they did not offer an opinion
supporting that appellant’s work duties caused or aggravated a diagnosed cervical condition.
Appellant submitted copies of previously submitted reports.
These included
Dr. Ruggeroli’s October 12 and 28, 2005 reports. The submission of evidence which repeats or
duplicates evidence that is already in the case record does not constitute a basis for reopening a
case for merit review.21 Additionally, the record also contains an October 2, 2008 report from a
physician’s assistant. This evidence is not relevant as a physician’s assistant is not a physician
and cannot render a medical opinion. As noted, the underlying issue is medical in nature.22
Consequently, the evidence and argument submitted by appellant on reconsideration do
not establish a basis for reopening the claim for a merit review under the Office’s regulatory
criteria.
On appeal, appellant submitted additional evidence. The Board has no jurisdiction to
review this evidence for the first time on appeal.23 He also repeated the arguments made on
reconsideration, which included his questions regarding the validity of the impartial medical
examiner. These arguments are not supported by the record. Dr. Rosen’s opinion, as noted, has
been found to be the weight of medical evidence. At the time of his examination, Dr. Rosen
found no basis to support that appellant’s neck condition was caused or aggravated by his federal
employment. As noted, appellant has the burden of proof to establish his claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
cervical condition was causally related to his accepted employment injuries. 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).

20

Supra note 19.

21

David J. McDonald, 50 ECAB 185 (1998); John Polito, 50 ECAB 347 (1999); Khambandith Vorapanya,
50 ECAB 490 (1999).
22

See 5 U.S.C. § 8101(2) (provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by the applicable state law). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that
a medical opinion, in general, can only be given by a qualified physician).
23

20 C.F.R. § 501.2(c); James C. Campbell, 5 ECAB 35 (1952).

8

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2009 and October 16, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 6, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9