United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS -- STATIONS, Barstow, CA, Employer
__________________________________________

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

Docket No. 12-897
Issued: October 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2012 appellant, through his attorney, filed a timely appeal of a
December 22, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his recurrence 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 established that he sustained a recurrence of total
disability commencing January 4, 2011 causally related to his accepted employment-related
conditions.
FACTUAL HISTORY
On September 12, 2008 appellant, then a 55-year-old heavy mobile equipment repair
inspector, injured his back when he slipped on a pipe climbing on a vehicle and twisted his low
1

5 U.S.C. §§ 8101-8193.

back while trying to avoid falling. OWCP accepted the claim for spinal stenosis, lumbar region
and paid appropriate benefits.2 Appellant stopped work on May 6 to August 10, 2009, when he
returned to light duty four hours a day.
On September 8, 2009 OWCP requested that appellant’s treating physician provide a
reasoned report addressing whether appellant continued to have disability due to his accepted
conditions. Thereafter, appellant’s treating physician, Dr. Purnima Thakran, a neurologist,
submitted a September 28, 2009, prescription slip stating that appellant should be off work for
one month.
On January 11, 2010 Dr. Ghol Bahman Ha’Eri, an orthopedic surgeon and OWCP
referral physician, reviewed the job description of a heavy mobile equipment mechanic leader,
the medical records and a statement of accepted facts. He presented examination findings and
opined that the objective findings of mild bilateral neural foraminal stenosis, as seen on the
November 28, 2008 magnetic resonance imaging (MRI) scan, was of a degenerative nature and
not due to the mechanism of injury as noted in the statement of accepted facts. Dr. Ha’Eri
opined that the multilevel lumbar degenerative discs and mild bilateral foraminal stenosis at L4-5
were temporarily aggravated by the work injury and that appellant reached his preinjury status
when he returned to part-time modified duties on August 10, 2009. He opined that appellant
reached maximum medical improvement from all conditions related to the mechanism of injury.
Dr. Ha’Eri indicated that appellant was unable to perform his usual job, but could perform
limited duty eight hours a day based on his degenerative lumbar disc and stenosis conditions.
Following OWCP’s request for clarification as to whether appellant was capable of performing
full time on a “5/4/9” compressed work schedule, Dr. Ha’Eri opined, in a follow-up report of
July 11, 2010, that appellant was able to perform modified work under a 5/4/9 compressed work
schedule and work eight 9-hour days and one 8-hour day for a total of 80 hours biweekly.
In July 2010, appellant began working light duty on a full-time basis. The employing
establishment indicated that it would accommodate Dr. Ha’Eri’s restrictions beginning
July 26, 2010.
In a January 11, 2011 progress note, Dr. Navdeep Loomba, a Board-certified pain
specialist to whom appellant was referred by Dr. Thakran, indicated that appellant last worked
January 4, 2011. Dr. Loomba provided an assessment of lumbosacral radiculitis, herniated
lumbar disc and osteoarthrosis lower leg and took appellant off work for three weeks. In
subsequent progress notes, he continued to take appellant off work. Progress notes from
Dr. James H. Lehto, a chiropractor, were also received.
On April 20, 2011 appellant filed a claim for total disability commencing April 19, 2011.
In an April 19, 2011 note, Dr. Loomba advised that appellant was being treated for low back pain
and requested that he be excused from work from April 19 to July 19, 2011.

2

Appellant has two prior claims for low back injuries: under case number xxxxx565, date of injury
November 15, 2004, he is an unadjudicated claim which was allowed for limited medical benefits. Under case
number xxxxx505, date of injury April 27, 2005, he has an accepted lumbar strain/sprain.

2

In a May 10, 2011 letter, OWCP indicated that medical evidence establishing disability
for the period April 19, 2011 and continuing was needed. It also advised appellant of the
definition of a recurrence and noted that since he was performing light or limited duty at the time
of his claimed recurrence, the medial evidence must show that he cannot perform such duty. No
new medical evidence was received.
By decision dated June 10, 2011, OWCP denied appellant’s claim for disability
compensation from April 19, 2011 and continuing. It adjudicated the claim as a recurrence claim
and determined that the evidence of record failed to establish that he sustained a recurrence of
total disability from April 19, 2011 and continuing due to his work injury.
On June 23, 2011 appellant, through his attorney, requested a telephonic hearing before
an OWCP hearing representative, which was held October 12, 2011. He stated that he last
worked on February 21, 2011 and indicated that he was granted social security disability for his
low back condition. Appellant testified that, when he began light duty, he performed duties that
did not involve lifting or climbing.
Additional medical evidence received consisted of progress notes from Dr. Loomba and
Dr. Lehto. In a September 16, 2011 operative report, Dr. Loomba diagnosed lumbar radiculitis
and performed a left L3-4, L4-5 transforaminal epidural steroid injection procedure. In an
October 17, 2011 report, he noted that appellant was being treated for lumbosacral radiculitis and
asked that he be excused from work from October 5, 2011 to January 5, 2012.
By decision dated December 22, 2011 an OWCP hearing representative affirmed the
denial of appellant’s recurrence claim as modified to reflect the date of recurrence as January 4,
2011 as opposed to April 19, 2011.3
LEGAL PRECEDENT
OWCP’s regulations define the term recurrence of disability as follows: Recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition, which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.
This term also means an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.4 OWCP’s procedure
manual provides that a recurrence of disability also includes worsening of disability due to an
accepted consequential injury.5
3

The hearing representative noted that in view of Dr. Ha’Eri’s report that, the temporary aggravation of
appellant’s back condition had ceased, OWCP should review his entitlement to continuing medical benefits. As
OWCP has issued no final decision regarding this, the matter of appellant’s entitlement to medical benefits is not
before the Board on the present appeal. See 20 C.F.R. § 501.2(c).
4

20 C.F.R. § 10.5(x).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

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When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.6 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.7
ANALYSIS
Appellant’s claim was accepted for lumbar spinal stenosis. Dr. Ha’Eri, an OWCP
referral physician opined that appellant could perform full-time modified work under a
compressed work schedule. In July 2010, appellant began working light duty on a full-time
basis. He stopped work on January 4, 2011 and filed a claim for total disability commencing.
OWCP developed the matter as a claim for a recurrence of disability which it denied.
Appellant has not alleged a change in his light-duty job requirements. Instead, he
attributed his recurrence of disability to a change in the nature and extent of his employmentrelated conditions. Appellant must provide medical evidence to establish that he was disabled
due to a worsening of his accepted work-related conditions. The Board finds that he has not met
his burden of proof in establishing his claim.
In his January 11, 2011 progress note, Dr. Loomba indicated that appellant last worked
on January 4, 2011 and took him off work for three weeks. In subsequent progress notes and
disability notes, he excuses appellant from work on an ongoing basis. Dr. Loomba, however,
fails to discuss any objective findings which establish a change in the nature and extent of
appellant’s low back condition. While he notes that appellant was being treated for low back
pain and lumbosacral radiculitis, he does not show a change in the nature of appellant’s low back
condition or provide a medical explanation, based on objective findings, as to why he was unable
to perform the duties of his light-duty assignment. Although Dr. Loomba also found that
appellant was totally disabled, he did not express an opinion as to whether and how his disability
commencing January 4, 2011 was causally related to the accepted employment injuries.8 Thus,
his reports are insufficient to establish appellant’s burden of proof.
The reports from Dr. Lehto, a chiropractor, are of no probative value because a
chiropractor is not a physician as defined under FECA unless a subluxation by x-ray is
6

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
7

Maurissa Mack, 50 ECAB 498 (1999).

8

See A.D., 58 ECAB 159 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697
(2002); Michael E. Smith, 50 ECAB 313 (1999).

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diagnosed.9 There is no evidence he diagnosed a subluxation by x-ray and, thus, he is not
considered a physician under FECA. Accordingly, Dr. Lehto’s reports are of no probative
medical value.
Appellant has not met his burden of proof in establishing that there was a change in the
nature and extent of the injury-related conditions or a change in the nature and extent of the
limited light-duty requirements, which would prohibit him from performing the light-duty
position he assumed after he returned to work.
On appeal, appellant’s attorney generally contended that OWCP’s hearing
representative’s decision was contrary to fact and law. For the reasons stated above, the Board
finds that appellant did not submit sufficient medical evidence establishing that he sustained a
recurrence of disability as of January 4, 2011 due to his accepted September 12, 2008
employment injuries.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability commencing January 4, 2011 causally related to his accepted employment
conditions.

9

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2011 is affirmed.
Issued: October 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 19-0335
Issued: July 2, 2019

Case Submitted on the Record

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

JURISDICTION
On November 30, 2018 appellant filed a timely appeal from an October 29, 2018 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty on September 5, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 29, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On September 17, 2018 appellant, then a 49-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on September 5, 2018 she sustained a bruised right arm
and shoulder, bruised right eye, and swollen left knee when she fainted due to heat. On the reverse
side of the claim form, the employing establishment indicated that she stopped work on
September 5, 2018 and returned to work on September 13, 2018. It contended that appellant was
not injured in the performance of duty and noted that she fainted while “delivering to her
businesses” and “[appellant] was kept in the hospital for heart-related issues.”
In a work excuse note dated September 7, 2018, Dr. Scott L. Massien, Board-certified in
internal medicine, indicated that he treated appellant on September 7, 2018 and that she was to
return to work on September 11, 2018.
In an x-ray scan report dated September 9, 2018, Dr. Jawad Nesheiwat, a Board-certified
diagnostic radiologist, noted impressions of no acute osseous abnormality and mild progression of
mild-to-moderate degenerative changes of the left knee.
In a duty status report (Form CA-17) dated September 11, 2018, Dr. Scott L. Massien,
Board-certified in internal medicine, diagnosed syncope. He noted that appellant fainted due to
heat outside, and indicated that she could return to work with restrictions.
In a letter dated September 14, 2018, the employing establishment controverted appellant’s
claim noting that she was taken to the hospital after fainting on her route. However, it alleged that
the physician admitted her into the hospital after finding an air pocket on her heart. The employing
establishment indicated that the hospital discharged appellant with a heart monitor and treated her
for an upper respiratory infection and other illnesses. It alleged that the paramedics on the scene
of the incident stated that they thought she passed out from the heat, however, her medical
documentation did not indicate that heat was the cause.
In a development letter dated September 26, 2018, OWCP advised appellant that the
evidence of record was insufficient to establish that she actually experienced the incident alleged
to have caused the injury as a result of her work duties, and that she had not submitted a physician’s
opinion as to how her injury resulted in a diagnosed medical condition. It requested that she submit
additional factual and medical evidence and provided a questionnaire for her completion. OWCP
afforded appellant 30 days to submit the necessary evidence. No response was received.
By decision dated October 29, 2018, OWCP denied appellant’s claim, finding that she was
not in the performance of duty at the time of the alleged September 5, 2018 employment incident.
It noted that the evidence she submitted for review did not support that her diagnosed condition of
syncope was caused or contributed to by her federal employment. OWCP specifically related that
it could not determine if appellant’s reported fall was idiopathic or unexplained because she had
not responded to the requested questionnaire.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.7 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.8 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.9
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”10 “The
phrase” sustained while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.”11 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in the master’s business, at a place where he or
she may reasonably be expected to be in connection with the employment, and while the employee
was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.”12

3

Supra note 1.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153(1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

C.B., Docket No. 18-0071 (issued May 13, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

D.B., Docket o. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

5 U.S.C. § 8102(a).

11

G.R., Docket No. 18-1490 (issued April 4, 2019); Charles Crawford, 40 ECAB 474, 476-77 (1989).

12

G.R., id.; Mary Keszler, 38 ECAB 735, 739 (1987).

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It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA.13 Such an injury does not arise out of a risk connected with the
employment and is, therefore, not compensable. The Board has made equally clear, the fact that
the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.
This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.14 If the record does not establish that the particular fall was due to
an idiopathic condition, it must be considered as merely an unexplained fall, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted and
caused the fall.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on September 5, 2018, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident occurred
in the performance of duty as alleged.16 On her Form CA-1 she explained that she sustained a
bruised right arm and shoulder, bruised right eye, and swollen left knee when she fainted due to
heat while delivering mail in the performance of duty. On the reverse side of the Form CA-1, and
in a separate letter, the employing establishment controverted the claim indicating that “[appellant]
was kept in the hospital for heart-related issues,” and not as a result of the alleged fall. Therefore,
OWCP could not determine, based upon evidence of record, whether appellant’s fall was
idiopathic or otherwise remained unexplained.17
Appellant was provided an opportunity to submit evidence to establish how her alleged
injury occurred on September 5, 2018. By development letter dated September 26, 2018, OWCP
requested that she describe the factual circumstances of her injury and provided her with a factual
development questionnaire for completion. Appellant did not respond to the questionnaire and
failed to provide a narrative statement detailing the traumatic incident prior to the issuance of
OWCP’s denial of her claim on October 29, 2018. The only explanation she provided pertaining
to the alleged September 5, 2018 employment incident is a general and vague statement noted on
13

H.B., Docket No. 18-0278 (issued June 20, 2018); see Carol A. Lyles, 57 ECAB 265 (2005).

14

H.B., id.; Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

15

H.B., id.; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB
200 (1974).
16

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

17

Supra note 15.

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her Form CA-1. While appellant indicated that she fainted due to heat, she did not provide details
such as the alleged circumstances surrounding her alleged injury e.g., outdoor temperature on
September 5, 2018 and how long she had been exposed to this or any other factors as a result of
delivering mail in the alleged “heat.” By failing to describe the employment incident and
circumstances surrounding her alleged injury, she has not established that the traumatic injury
occurred in the performance of duty, as alleged.18 Thus, the Board finds that appellant has not met
her burden of proof.19
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on September 5, 2018, as alleged.

18

Id.

19
The Board notes that appellant was transported to the hospital. OWCP, however, did not adjudicate the issue of
her incurred medical expenses or whether emergency or unusual circumstances were present. Ordinarily, the
employing establishment will authorize treatment of a job-related injury by providing the employee a properly
executed authorization for examination and/or treatment (Form CA-16) within four hours. In this case, the record
does not contain a Form CA-16 or any other authorization from OWCP for medical treatment. However, under section
8103 of FECA, OWCP has broad discretionary authority to approve unauthorized medical care which it finds
necessary and reasonable in cases of emergency or other unusual circumstances. 5 U.S.C. § 8103; 20 C.F.R. § 10.304.
See L.B., Docket No. 10-0469 (issued June 2, 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical,
Authorizing Examination and Treatment, Chapter 3.300.3a.(3) (February 2012)

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 2, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Soddy Daisy, TN, Employer
__________________________________________

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

Docket No. 14-1942
Issued: March 25, 2015

Case Submitted on the Record

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

JURISDICTION
On September 8, 2014 appellant filed a timely appeal from an April 8, 2014 merit
decision and a June 25, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
medical and wage-loss compensation benefits effective April 7, 2013 on the basis that she no
longer had any residuals or disability causally related to her accepted employment-related injury;
(2) whether appellant has established continuing employment-related residuals or disability on or
after April 7, 2013 as a result of her accepted June 24, 1985 employment injury; and (3) whether
OWCP properly denied her request for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 1985 appellant, then a 32-year-old plant laborer, filed a traumatic injury
claim alleging that on June 24, 1985 she sustained a concussion when she was opening a fire
door and the pressure from the door knocked her into scaffold, causing her to fall and become
unconscious. She sought emergency treatment, stopped work on June 24, 1985, and did not
return. Appellant’s position was terminated on August 8, 1985 due to lack of work.
By decision dated November 6, 1986, OWCP accepted the claim for concussion. It later
expanded the claim to include cervical strain and cervical facet joint syndrome. On
September 16, 1987 appellant received wage-loss compensation benefits for which she was
placed on periodic rolls. She sought treatment with various providers since the onset of her
work-related injury, including treatment with Dr. Cornelius Mance, a Board-certified
neurologist.
On September 19, 2011 OWCP referred appellant, the case file, a series of questions, and
a statement of accepted facts (SOAF)2 to Dr. Tejanand G. Mulpur, a Board-certified neurologist,
for a second opinion evaluation regarding appellant’s current disability status. Dr. Mulpur
detailed the employment incident and stated that appellant sustained a concussion approximately
25 years ago when she was thrown against steel scaffolding and lost consciousness. Appellant
was taken to the hospital and was discharged that same date after review of imaging studies. She
began to gradually experience headaches and severe pain all over her body which persisted to
present day complaints. Dr. Mulpur provided findings on physical examination and noted that
the neurological examination did not reveal any focal findings and appellant had good muscle
strength. He diagnosed fibromyalgia, migraine headaches, and anxiety with depression.
Dr. Mulpur noted that it was hard to believe that the concussion from 25 years ago was
contributing to her symptomatology, especially since the injury did not result in any contusions
or abnormal computerized tomography or neurological findings at that time.
On February 13, 2012 OWCP requested that Dr. Mulpur answer the previously provided
questions and to arrange a functional capacity evaluation (FCE) to determine appellant’s work
capabilities.
In a February 16, 2012 addendum report, Dr. Mulpur concluded that appellant’s
work-related head injury had resolved and was unrelated to her current diagnoses of
fibromyalgia, vascular headaches, anxiety, and depression. He noted that, while vascular
headaches, fibromyalgia, anxiety, and depression could be exaggerated by a head injury, it would
be unusual for these to last 25 years. Dr. Mulpur also noted that appellant should be referred for
an FCE as he was not trained to evaluate her in that capacity. Because appellant had no focal
motor deficits and her diagnosed conditions were treatable, he opined that she could return to
work.

2

The SOAF noted the following concurrent or preexisting conditions that were not considered work related:
congenital abnormality 51 vertebral body, mild scoliosis, appendectomy 1973, hysterectomy 1978, hearing loss right
ear, history of breast biopsy, fibromyalgia, chronic musculoskeletal recurring pains, hypothyroidism, bilateral carpal
tunnel syndrome, temporomandibular joint, and right knee injury and surgery.

2

On June 11, 2012 OWCP notified appellant of a proposal to terminate her medical and
wage-loss compensation benefits based on Dr. Mulpur’s report that she was not experiencing any
residuals or disability connected to the June 24, 1985 employment injury as her conditions had
ceased. Appellant was provided 30 days to submit additional information.
In a June 24, 2012 narrative statement, appellant disputed the proposed termination and
attributed her chronic pain and current diagnoses to the June 24, 1985 employment incident. In
support of her claim, she submitted various medical reports previously of record.
By decision dated July 25, 2012, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective July 29, 2012 finding that the weight of the medical evidence
rested with Dr. Mulpur. It noted that the medical evidence provided by her was largely outdated
and did not relate to her accepted conditions or establish continuing disability.
On August 17, 2012 appellant requested an oral hearing before the Branch of Hearings
and Review disputing the July 25, 2012 termination decision.
By decision dated December 7, 2012, the Branch of Hearings and Review set aside the
July 25, 2012 termination decision finding that OWCP failed to meet its burden of proof to
terminate appellant’s compensation benefits.3 OWCP’s hearing representative noted that
Dr. Mulpur’s reports were not well rationalized, his opinion was speculative, and he failed to
mention any review of medical records or the SOAF. OWCP remanded the case for a second
opinion evaluation with a Board-certified neurologist to determine the nature and extent of
appellant’s employment-related condition and disability.
On remand, OWCP referred appellant, the SOAF, a series of questions, and the case file
to Dr. Steven D. Graham, a Board-certified neurologist, for a second opinion examination.
In his January 16, 2013 medical report, Dr. Graham provided a history of injury, findings
on physical examination, and noted review of prior medical reports and the SOAF. He
diagnosed somatoform pain disorder which was negatively affected by underlying psychological
factors such as depression and anxiety. Dr. Graham noted that appellant’s preexisting
fibromyalgia was likely a strong component contributing to the continuation of her pain and
there was no clear, objective, neuropathological process which explained the continuation of her
symptoms. He stated that, because the injury occurred in 1985 and was at best described as a
mild head injury, her current complaints and examination findings could not be directly
connected to the remote work-related injury. Dr. Graham further noted that appellant’s
subjective complaints of pain overshadowed examination findings, primarily because of the
discrepancy in her complaints of pain versus normal neurological examination. He stated that
her fibromyalgia and musculoskeletal pain had been diagnosed prior to her injury, noting that
these preexisting conditions were likely aggravated by her underlying psychological factors
leading to the continuation of the subjective complaints over the past 27 years, in the absence of
any permanent brain or cervical spine anatomical derangement from the injury. Due to
appellant’s subjective complaints over the last 27 years, Dr. Graham stated that he did not
3

The Board notes that no hearing was held as the hearing representative determined based on preliminary review
that the July 25, 2012 decision should be set aside and remanded for further development.

3

recommend additional treatment and was guarded in regard to prognosis for improvement of the
somatoform pain disorder. He opined that, from a neurological standpoint, appellant was no
longer experiencing direct residuals from the work injury. Dr. Graham’s opinion was primarily
based on the lack of objective examination or radiological findings, and the 27 years that had
elapsed since the injury. With respect to resuming normal work activities, he explained that,
from a neurological standpoint, there clearly was no anatomical derangement of the central or
peripheral nervous system, specifically the brain, spinal cord, peripheral nerves, or muscles.
However, because appellant had somatoform pain disorder with significant psychological factors
negatively influencing her symptoms, Dr. Graham opined that it was doubtful she could return to
any type of employment situation.
In medical reports submitted dated April 6 to October 6, 2011, Dr. Mance provided
findings on physical examination and diagnosed fibromyalgia and soft tissue dysfunction.
On February 8, 2013 OWCP notified appellant of a proposal to terminate her medical and
wage-loss compensation benefits based on Dr. Graham’s report that she was not experiencing
any residuals or disability connected to the accepted work-related conditions. Appellant was
provided 30 days to submit additional information.
In a February 22, 2013 narrative statement, appellant disputed OWCP’s proposed
termination and argued that she continued to suffer from residuals and disability as a result of the
June 24, 1985 employment incident.
In support of her claim, appellant submitted an August 30, 2012 narrative from
Dr. Mance, who stated that he treated her post injury to her neck and shoulder on June 24, 1985
when a pressure door knocked her into a scaffold. Dr. Mance noted that she complained of
continued neck and shoulder pain which was caused by soft tissue dysfunction. He stated that he
had been treating appellant for both fibromyalgia and soft tissue problems which continued to be
present since he initially treated her. Dr. Mance noted that, after treating her for multiple years
without any benefit through use of various medications, she was basically living with continuous
dysfunction and increased pain in her neck, shoulder, and headaches with increased activity or
any activity that caused her to exert herself for any length of time. He stated that, even though
the diagnosis of fibromyalgia was given, appellant’s symptoms had always been the same with
intractable neck and shoulder pain and soft tissue dysfunction.
In a February 19, 2013 treatment note, Dr. Mance reported complaints of pain and
provided findings on physical examination. He diagnosed chronic pain with associated
depression, other chronic pain, muscle spasm, and myalgia/myositis.
By decision dated March 13, 2013, OWCP terminated appellant’s medical and wage-loss
compensation benefits effective April 7, 2013 finding that the weight of the medical evidence
rested with Dr. Graham.
On March 23, 2013 appellant requested an oral hearing before the Branch of Hearings
and Review. She argued that Dr. Graham did not perform any medical testing to the brain, spinal
cord, peripheral nerves, muscles, or cervical joints. Appellant further argued that Dr. Mance’s
report was more credible as it he had treated her over the last 28 years.

4

A telephone hearing was held on June 10, 2013. At the hearing, appellant argued that her
current conditions and disability were caused by the June 24, 1985 employment incident.
By decision dated July 23, 2013, the Branch of Hearings and Review affirmed the
March 13, 2013 decision terminating appellant’s medical and wage-loss compensation benefits
finding that she failed to establish ongoing disability on or after April 7, 2013 causally related to
one or more of the accepted employment-related conditions. It noted that the weight of the
medical evidence rested with Dr. Graham.
On August 28, 2013 appellant filed a timely appeal before the Board, which was
docketed as No. 13-1989. By letter dated December 19, 2013, she requested that the appeal
before the Board be dismissed and the case be filed for reconsideration with OWCP in light of
new medical evidence. By order dated March 13, 2014, the Board granted appellant’s request
for dismissal of her appeal.4
On April 1, 2014 appellant requested reconsideration of OWCP’s decision.
In support of her claim, appellant resubmitted Dr. Mance’s August 30, 2012 narrative
report and also submitted new diagnostic reports.
In a September 9, 2013 diagnostic report, Dr. Kilton D. Kingsman, a Board-certified
diagnostic radiologist, reported that lateral chest x-rays revealed no acute cardiopulmonary
disease. Seven views of the cervical spine revealed moderate right bony neural foraminal
narrowing at C4-5 of uncertain clinical significance and moderate degenerative disc disease at
C7-Tl. The thoracic spine revealed unremarkable other than moderate disc disease at C7-T1 and
mild multilevel degenerative disc disease T5-8. Dr. Kingsman stated that the lumbar spine
revealed moderate dextroscoliosis and mild-to-moderate hypertrophic facet degenerative joint
disease changes at L4-S1 while left hip series revealed unremarkable.
In a September 20, 2013 diagnostic report, Dr. Jeffrey E. Tipps, a Board-certified
diagnostic radiologist, reported that a magnetic resonance imaging (MRI) scan of the cervical
spine revealed cervical spondylosis, no evidence of myelomalacia or cord edema, and moderate
neuroforaminal stenosis C3 through C5.
By decision dated April 8, 2013, OWCP affirmed the July 23, 2013 decision finding that
appellant failed to establish ongoing disability on or after April 7, 2013 causally related to the
accepted June 24, 1985 incident or injury sustained as a result thereof.
By letter dated June 16, 2013, appellant requested reconsideration of OWCP decision.
She stated that her deteriorating cervical spine condition was caused by the June 24, 1985 injury
which she argued was a major trauma. Appellant further stated that Dr. Graham failed to provide
objective testing which she had recently submitted through x-ray and MRI scan reports. She
argued that he was not a qualified psychiatrist and her depression and anxiety had been properly
documented in her medical reports since the onset of her injury in 1985. Appellant noted that
she had no preexisting injuries and was fully functional prior to the June 24, 1985 employment
4

Docket No. 13-1989 (issued March 13, 2014).

5

incident. Due to the injury, she argued she was unable to work and would not be able to return to
work in the future. In support of her claim, appellant resubmitted Dr. Tipps’ September 20, 2013
MRI scan report of the cervical spine.
By decision dated June 25, 2014, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a concussion, cervical strain, and cervical facet
joint syndrome as a result of the June 24, 1985 work-related incident. The issue is whether it
properly terminated her medical and wage-loss compensation benefits effective April 7, 2013 as
she was not experiencing any residuals or disability of the June 24, 1985 injury. The Board finds
that OWCP properly terminated appellant’s medical and wage-loss benefits.
In its termination decision, OWCP determined that the weight of the medical evidence
rested with Dr. Graham, a Board-certified neurologist serving as the second opinion physician.
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

Roger G. Payne, 55 ECAB 535 (2004).

8

Pamela K. Guesford, 53 ECAB 726 (2002).

9

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

10

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

6

The Board finds that Dr. Graham’s well-rationalized report, which was based upon a proper
factual and medical background, represents the weight of the medical evidence and establishes
that appellant’s concussion, cervical strain, and cervical facet joint syndrome ceased and was no
longer experiencing residuals or disability related to the June 24, 1985 employment incident.11
In his January 16, 2013 medical report, Dr. Graham diagnosed somatoform pain disorder
which was negatively affected by underlying psychological factors such as depression and
anxiety. He noted that appellant’s preexisting fibromyalgia was likely a strong component
contributing to the continuation of her pain and there was no clear, objective, neuropathological
process which would explain the continuation of her symptoms. Dr. Graham stated that because
the injury occurred in 1985 and was at best described as a mild head injury, her current
complaints and examination findings could not be directly connected to the remote work-related
injury. He opined that appellant was no longer experiencing direct residuals from the work
injury because neurologically there was no objective examination or radiological findings and 27
years had elapsed since the injury.
The Board has carefully reviewed the opinion of Dr. Graham and finds that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue in the present case.12 Dr. Graham’s opinion is based on a proper factual and
medical history and he thoroughly reviewed the SOAF and medical records.13 He provided
medical rationale for his opinion by explaining that appellant’s current complaints were related
to her preexisting fibromyalgia and musculoskeletal pain which were likely aggravated by her
underlying psychological factors, leading to the continuation of the subjective complaints over
the past 27 years, in the absence of any permanent brain or cervical spine anatomical
derangement from the injury. Dr. Graham further explained that, from a neurological standpoint,
there was no anatomical derangement of the central or peripheral nervous system, specifically
the brain, spinal cord, peripheral nerves, or muscles. As there were no objective findings related
to appellant’s concussion, cervical strain, and cervical facet joint syndrome, he opined that her
disability had ceased and any limitations on her physical ability to work did not relate to the
June 24, 1985 injuries. Rather, Dr. Graham attributed appellant’s inability to work to
somatoform pain disorder influenced by significant psychological factors, conditions not
accepted by OWCP. Thus, his opinion establishes that she was no longer experiencing residuals
or disability related to the June 24, 1985 employment incident.
In support of her claim, appellant submitted medical reports from Dr. Mance, her treating
physician. In medical reports dated April 6 to October 6, 2011, Dr. Mance noted findings on
physical examination and diagnosed fibromyalgia and soft tissue dysfunction. In a February 19,
2013 treatment note, he diagnosed chronic pain with associated depression, other chronic pain,
muscle spasm, and myalgia/myositis. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on

11

Y.M., Docket No. 14-1050, 14-1193 (issued December 24, 2014).

12

See R.W., Docket No. 12-375 (issued October 28, 2013).

13

See Melvina Jackson, 38 ECAB 443 (1987).

7

the issue of causal relationship.14 While these reports provided various diagnoses, Dr. Graham
failed to provide an opinion that appellant was experiencing residuals or disability as a result of
her accepted June 24, 1985 injuries.15
In an August 30, 2012 narrative report, Dr. Mance stated that he treated appellant post
injury to her neck and shoulder on June 24, 1985 when a pressure door knocked her into a
scaffold. He noted that she complained of continued neck and shoulder pain which was caused
by soft tissue dysfunction. Dr. Mance stated that he had been treating appellant for both
fibromyalgia and soft tissue problems which had continued to be present since he initially treated
her. He noted that, after treating her for multiple years without any benefit through use of
various medications, she was basically living with continuous dysfunction and increased pain in
her neck, shoulder, and headaches with increased activity or any activity that caused her to exert
herself for any length of time. Dr. Mance stated that, even though the diagnosis of fibromyalgia
was given, appellant’s symptoms had always been the same with intractable neck and shoulder
pain and soft tissue dysfunction.
The Board finds that the opinion of Dr. Mance is not well rationalized and insufficient to
overcome the weight of the medical evidence afforded to Dr. Graham.16 Dr. Mance attributed
appellant’s symptoms to fibromyalgia and soft tissue dysfunction, conditions not accepted by
OWCP. He failed to provide any opinion that her current conditions were caused or aggravated
by the June 24, 1985 employment incident. Dr. Mance only generally noted that he had been
treating appellant for fibromyalgia and soft tissue problems since the employment incident but
did not relate the conditions to the traumatic injury. To be of probative value, a physician’s
opinion on causal relationship should be one of reasonable medical certainty.17 Dr. Mance’s
report is speculative and equivocal and does not support causation or continuing residuals of the
accepted injuries.
Furthermore, Dr. Mance failed to address why appellant’s head, neck, and shoulder
complaints were not caused by her preexisting fibromyalgia disorder or soft tissue dysfunction.
His report provided no discussion regarding whether the preexisting conditions had progressed
beyond what might be expected from the natural progression of that condition.18 A
well-rationalized opinion is particularly warranted when there is a history of preexisting
conditions.19 Dr. Mance did not adequately explain why appellant continued to suffer from
residuals or disability of the June 24, 1985 employment incident, more than 25 years after the
initial incident, and made no reference to objective examination findings. As he failed to state
14

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

J.H., Docket No. 12-1848 (issued May 15, 2013).

16

See generally Floyd Stilley, Docket No. 02-2016 (issued February 19, 2003).

17

See Beverly R. Jones, 55 ECAB 411 (2004).

18

R.E., Docket No. 14-868 (issued September 24, 2014).

19

The Board has held that an opinion that a condition is causally related because the employee was asymptomatic
before the injury is insufficient, without adequate rationale, to establish causal relationship. T.M., Docket
No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

8

that appellant continued to suffer from residuals or disability of the accepted concussion, cervical
strain, and cervical facet joint syndrome injuries, his report is of limited probative value.20
The Board further notes that Dr. Mance’s August 30, 2012 report, as well as older
medical reports previously of record, did not discuss appellant’s disability as of April 7, 2013.
Dr. Graham’s January 16, 2013 second opinion examination report provided a current
assessment pertaining to the nature and extent of disability. The Board has held that stale
medical evidence cannot form the basis for current evaluation of residual symptomology or
disability determination.21 For this reason, the Board finds that these reports are of limited
probative value regarding the current issue and do not create a conflict in medical evidence.22
The Board finds that Dr. Graham’s opinion constitutes the weight of the medical
evidence and is sufficient to justify OWCP’s termination of benefits for the accepted conditions.
The Board also notes that there are no current reports from appellant’s treating physicians
establishing employment-related disability or supporting any continuing residuals of the accepted
conditions. Because appellant no longer has residuals or disability related to her accepted
employment conditions, OWCP properly terminated entitlement to compensation and medical
benefits effective April 7, 2013.23 Accordingly, it met its burden of proof and its decision to
terminate her compensation and medical benefits shall be affirmed.24
On appeal, appellant argues that her injuries were not preexisting and that her medical
records show a history of injury stemming back 27 years, which also includes a well-documented
history of anxiety and depression. She further argues that Dr. Graham’s report establishes that
she is unable to resume employment. As previously noted, the conditions to which appellant is
referring to have not been accepted by OWCP and Dr. Graham’s disability findings related to
these nonindustrial injuries.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
After termination of compensation benefits clearly warranted on the basis of the
evidence, the burden for reinstating compensation shifts to the claimant. To prevail, the claimant

20

J.A., Docket No. 13-1657 (issued February 3, 2014).

21

See Keith Hanselman, 42 ECAB 680 (1991); Ellen G. Trimmer, 32 ECAB 1878 (1981) (reports almost two
years old deemed invalid basis for disability determination and loss of wage-earning capacity determination.)
22

Id.

23

G.I., Docket No. 13-19 (issued April 2, 2013).

24

L.C., Docket No. 12-1177 (issued August 19, 2013).

9

must establish by the weight of the reliable, probative, and substantial evidence that she had an
employment-related disability which continued after the termination of compensation benefits.25
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to termination compensation benefits as of April 7, 2013.
Appellant therefore has the burden of proving by the weight of the substantial, reliable, and
probative evidence a causal relationship between her claimed disability on or after April 7, 2013
and the accepted June 24, 1985 injuries.26 The reports of her physicians do not provide a
rationalized medical opinion finding her disabled for work after April 7, 2013 due to her
accepted injuries. Therefore, the medical evidence submitted is insufficient to meet appellant’s
burden of proof.27
In diagnostic reports dated September 9 and 20, 2013, Dr. Kingsman and Dr. Tipps
provided radiographic findings pertaining to the chest, cervical spine, thoracic spine, lumbar
spine, and left hip. These reports failed to discuss appellant’s employment and medical history
and did not provide any opinion regarding the cause of appellant’s conditions. As the reports
simply interpreted imaging studies and provided no opinion that she was totally disabled on or
after April 7, 2013 due to the June 24, 1985 employment injuries, the reports are insufficient to
meet her burden of proof.28
The Board notes that it is appellant’s burden to establish that the findings made in the
diagnostic reports were causally related to the June 24, 1985 employment injury.29 Because
appellant has not submitted any reasoned medical opinion evidence to show that she was
disabled on or after April 7, 2013 as a result of her accepted concussion, cervical strain, and
cervical facet joint syndrome, the Board finds that OWCP properly denied her claim for
disability compensation.30

25

See I.J., 59 ECAB 408 (2008).

26

See Amelia S. Jefferson, 57 ECAB 183 (2005).

27

Alfredo Rodriguez, 47 ECAB 437 (1996).

28

L.J., Docket No. 14-523 (issued August 7, 2014).

29

Medical reports without adequate rationale on causal relationship are of diminished probative value and do not
meet an employee’s burden of proof. Ceferino L. Gonzales, 32 ECAB 1591 (1981). The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical rationale explaining the
relationship between the diagnosed condition and the established incident or factor of employment. See Lee R.
Haywood, 48 ECAB 145 (1996).
30

The Board will not require OWCP to pay compensation for disability in the absence of any medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation. L.L., Docket No. 13-2146 (issued
March 12, 2014). See also William A. Archer 55 ECAB 674, 679 (2004).

10

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 3
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by it; or (3) constitute relevant and pertinent new evidence
not previously considered by OWCP.31 Section 10.608(b) of OWCP regulations provide that
when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.32
ANALYSIS -- ISSUE 3
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In her June 16, 2013 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant repeated previously made arguments and alleged that she
suffered from continued disability as a result of the June 24, 1985 employment incident. The
underlying issue in this case was whether she was experiencing any residuals or disability of the
June 24, 1985 injury. That is a medical issue which must be addressed by relevant medical
evidence.33 Appellant, however, failed to submit new and relevant medical evidence in support
of her claim.
The only medical evidence submitted was Dr. Tipps’ September 20, 2013 MRI scan
report of the cervical spine. As the report repeats evidence already in the case record, it is
duplicative and does not constitute relevant and pertinent new evidence. Material which is
duplicative of that already contained in the case record does not constitute a basis for reopening a
case.34 A claimant may obtain a merit review of an OWCP decision by submitting new and

31

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

32

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

33

See Bobbie F. Cowart, 55 ECAB 746 (2004).

34

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

11

relevant evidence. In this case, appellant failed to submit any new and relevant evidence
addressing continued disability.35
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective April 7, 2013. The Board further finds that appellant failed to
establish she continued to suffer from employment-related residuals or disability on or after
April 7, 2013 as a result of her accepted June 24, 1985 employment injuries. The Board also
finds that OWCP properly refused to reopen appellant’s case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 25 and April 8, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 25, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Deputy Chief Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
35

M.H., Docket No. 13-2051 (issued February 21, 2014).

12


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1571
Issued: November 25, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 2, 2014 appellant filed a timely appeal from a February 24, 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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective February 24, 2014 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment injuries.
FACTUAL HISTORY
On June 13, 2006 appellant, then a 50-year-old mail handler, filed an occupational
disease claim alleging that she developed swollen and painful feet as a result of her employment
1

5 U.S.C. § 8101 et seq.

duties. She first became aware of her condition and realized it resulted from her employment on
April 28, 2006. Appellant has a previously accepted traumatic injury claim for an August 4,
2005 employment injury. OWCP accepted the claim for lower back and left buttock contusion.
The claim was accepted under File No. xxxxxx130. Both claims were combined into Master File
No. xxxxxx330. OWCP accepted appellant’s claim for bilateral plantar fasciitis and bilateral
heel spur syndrome. Appellant stopped work and returned to modified duty.
On April 1, 2009 appellant stopped work again because there was no limited-duty work
available. OWCP paid appropriate wage-loss compensation benefits. On June 7, 2009 appellant
was placed on the periodic rolls.
In a March 26, 2013 report, Dr. Nicole Pham-Bailey, Board-certified in physical
medicine and rehabilitation, stated that she had been appellant’s primary treating physician since
a May 1, 2006 injury. She noted appellant’s current diagnoses of posterior tibial tendon
dysfunction and plantar fasciitis. Dr. Pham-Bailey related appellant’s continued complaints of
low back, buttock, and leg pain. She reviewed appellant’s history and conducted an
examination. Dr. Pham-Bailey reported that a February 15, 2013 magnetic resonance imaging
(MRI) scan of the left spine demonstrated degenerative anteriolisthesis with associated facet
arthropathy and mild foraminal stenosis at L4-5 and left paracentral protrusion and facet
arthropathy at L5-S1. Examination of the lumbar spine revealed tenderness and spasm of the left
paralumbar on the low back but no longer tenderness on the right paralumbar. Motor strength
was 4/5 bilateral, weaker on the left. Straight leg raise testing in the seated position was
equivocal. Dr. Pham-Bailey diagnosed lumbar radiculopathy. She reported that appellant’s
work status was permanent work restrictions from August 15, 2007 of no casing mail, climbing,
pushing, pulling, squatting, or lifting over five pounds and maximum of four hours per day.
OWCP referred appellant, together with a statement of accepted facts and the medical
records, to Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon, for a second opinion
examination to determine the extent of her accepted employment-related injuries and any
continuing disability.2 OWCP questioned whether the accepted conditions of bilateral plantar
fasciitis and bilateral heel spurs, as well as low back and buttock contusions had resolved.
In an October 30, 2013 report, Dr. Ha’Eri provided an accurate history of appellant’s
accepted bilateral feet and lower back and buttock injuries. He described the medical treatment
appellant received and reviewed her various medical records. Dr. Ha’Eri noted that an August 3,
2006 MRI scan of the lumbar spine demonstrated a small disc bulge at L5-S1 level with no
compression of neural elements. He related appellant’s complaints of constant lower back pain
with radiation to both lower extremities and right ankle and foot pain and swelling. Upon
examination of the lower back, Dr. Ha’Eri observed normal lordosis and lumbosacral tenderness.
Range of motion of the lumbar spine was limited and straight leg raise testing was to 90 degrees
bilaterally. Examination of appellant’s ankle and feet demonstrated flat feet. Dr. Ha’Eri
reported swelling and limited range of motion of the right ankle. He diagnosed bilateral plantar
fasciitis, resolved, bilateral flat feet, preexisting industrial, obesity, lower back and left buttock
2

Appellant failed to report to the scheduled second opinion examination on July 19, 2013 and OWCP issued a
September 23, 2013 letter suspending her medical benefits.

2

contusion, industrial resolved, and chronic lumbar strain, nonindustrial, secondary to
deconditioning and obesity.
Dr. Ha’Eri opined that appellant’s accepted bilateral plantar fasciitis and bilateral heel
spur syndrome had resolved. He explained that appellant had not been standing or walking for
many hours a day for several years. Dr. Ha’Eri stated that there were no objective findings for
appellant’s feet due to diagnosis of plantar fasciitis. He pointed out that her current condition of
flat feet was a preexisting nonindustrial condition. Dr. Ha’Eri also opined that appellant’s
August 4, 2005 work-related lower back and left buttock conditions had resolved and that any
residual lower back pain was due to deconditioning and obesity. He reported that the current
objective findings for appellant’s lower back was due to degenerative changes of L5-S1 disc
level with small disc bulge as evidenced in the August 3, 2006 MRI scan. Dr. Ha’Eri stated that
appellant was capable of working 8 hours a day or 40 hours per week with limitations of
handling items weighing up to 20 pounds up to 2 hours per day and pushing or pulling up to 40
pounds for up to 2 hours per day. He explained that these limitations were due to the
nonindustrial conditions of her flat feet, obesity, chronic lumbar strain and right ankle chronic
sprain. Dr. Ha’Eri reported that appellant’s present physical limitations resulted from her
preexisting conditions.
On January 8, 2014 OWCP proposed to terminate appellant’s compensation and medical
benefits based on Dr. Ha’Eri’s October 30, 2013 second opinion report. It determined that the
weight of the medical evidence rested with Dr. Ha’Eri who determined that appellant’s
employment-related injuries had resolved and that she was capable of returning to modified duty.
No response or additional evidence was received by appellant.
By decision dated February 24, 2014, OWCP finalized the termination of appellant’s
compensation and medical benefits effective February 24, 2014. It determined that the weight of
the medical evidence rested with Dr. Ha’Eri’s October 30, 2013 report which determined that
appellant’s employment-related injuries had resolved and that she was capable of returning to
modified duty. The decision however only specifically referred to appellant’s June 13, 2006
claim, which was accepted for bilateral plantar fasciitis and bilateral heel spurs. There was no
acknowledgement of the master file including the low back and left buttock contusion. The
decision also fails to acknowledge the medical opinions of appellant’s treating physician,
Dr. Pham-Bailey.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.3 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.4 Its burden of proof includes the necessity of furnishing

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).

3

rationalized medical opinion evidence based on a proper factual and medical background.5 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
ANALYSIS
OWCP referred appellant’s claim to Dr. Ha’Eri for a second opinion examination to
determine the extent of her accepted employment-related bilateral feet, lower back, and buttock
injuries. In an October 30, 2013 report, Dr. Ha’Eri determined that there was no objective
medical evidence to establish that appellant continued to suffer residuals of her accepted
conditions. By decision dated February 24, 2014, OWCP determined that his opinion constituted
the weight of the evidence to establish that appellant’s bilateral plantar fasciitis had resolved and
thereafter terminated appellant’s entitlement to all medical benefits and disability compensation.
As previously found, the February 24, 2014 decision does not acknowledge appellant’s low back
and buttock contusion.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
disability compensation and medical benefits because the medical evidence does not
conclusively establish that her work-related injuries had resolved and that she was no longer
disabled from work.
OWCP terminated appellant’s compensation benefits based on Dr. Ha’Eri’s October 30,
2013 report. Dr. Ha’Eri provided an accurate history of appellant’s accepted bilateral feet, lower
back, and buttock injuries and conducted an examination. He reported lumbosacral tenderness
and normal lordosis of the lower back. Range of motion of the lumbar spine was limited and
straight leg raise testing was to 90 degrees bilaterally. Upon examination of appellant’s right
ankle, Dr. Ha’Eri observed flat feet, swelling, and limited range of motion. He concluded that
appellant was capable of returning to work full time with restrictions of handling items weighing
up to 20 pounds and pulling or pulling up to 40 pounds for 2 hours per day. Dr. Ha’Eri opined
that such restrictions were personal to appellant and not occupationally related.
The Board finds that as appellant was employed as a mail handler, a medical opinion that
she could return to modified duty does not establish that disability has ceased.8
The Board also finds that Dr. Ha’Eri’s opinion lacks probative value to establish that
appellant no longer suffers residuals of her accepted conditions. Dr. Ha’Eri opined that
appellant’s accepted bilateral plantar fasciitis and bilateral heel spur syndrome had resolved and
5

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

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
7

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

8

See T.C., Docket No. 13-441 (issued June 4, 2013).

4

that her current condition of flat feet was a preexisting condition. He also pointed out that
appellant had not been standing or walking for many hours a day or several years. Dr. Ha’Eri,
however, did not provide any medical rationale for his conclusion. He also failed to explain,
based on medical rationale, how his objective findings of pain and swelling in appellant’s right
ankle demonstrated that her accepted bilateral feet condition had resolved. The Board has found
that medical conclusions unsupported by medical rationale are of little probative value.9 Because
Dr. Ha’Eri did not provide a well-rationalized medical opinion that appellant’s bilateral feet
conditions had resolved, his report is insufficient to justify termination of her medical benefits.10
The Board notes that Dr. Pham-Bailey has not opined that appellant’s disability had
ceased such that she was capable of returning to work. In a March 26, 2013 report, she opined
that appellant was capable of working limited duty with restrictions of no casing mail, climbing,
pushing, pulling, squatting, or lifting over five pounds and maximum of four hours per day.
Dr. Pham-Bailey expressly relates such ongoing restrictions to appellant’s accepted work-related
conditions. Accordingly, the Board finds that the medical evidence is insufficient to justify the
termination of appellant’s wage-loss compensation benefits.
In assessing medical evidence, the weight of medical evidence is determined by its
reliability, its probative value, and its convincing quality. The factors that comprise the
evaluation of medical opinion evidence include the opportunity for and thoroughness of physical
examination, the accuracy or completeness of the physician’s knowledge of the facts and medical
history, the care of analysis manifested and the medical rationale expressed in support of the
physician’s opinion.11 In this case, the Board finds that the medical evidence and rationale
supporting Dr. Ha’Eri’s opinion is lacking. Accordingly, Dr. Ha’Eri’s opinion has diminished
probative value and does not constitute the weight of medical opinion in determining the extent
of appellant’s employment-related injuries and any continuing disability. Moreover, Dr. PhamBailey has been appellant’s treating physician and has presented medical opinions of equal
weight than those of Dr. Ha’Eri.
Finally the Board notes that while the February 24, 2014 decision referenced termination
of all medical and wage-loss benefits, the text of the decision only noted termination of benefits
arising from appellant’s April 28, 2006 injury, which was accepted for bilateral plantar fasciitis
and bilateral heel spurs. The decision did not properly state that benefits were also terminated
for the August 4, 2005 injury, which was accepted for low back and left buttock contusion. The
February 24, 2014 decision provided no basis for termination of benefits for the master file
which includes the accepted August 4, 2005 injury to appellant’s low back and buttock.
The Board will reverse OWCP’s February 24, 2014 decision and will remand the case for
a proper reinstatement of compensation benefits.

9

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

10

See A.P., Docket No. 14-1237 (issued September 18, 2014).

11

Nicolette R. Kelstrom, 54 ECAB 570 (2003); Anna M. Delaney, 53 ECAB 384 (2002).

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to justify termination of
appellant’s disability compensation and medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 25, 2014
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
L.G., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIAITON ADMINISTRATION,
Miami, FL, Employer
__________________________________________

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Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 09-276
Issued: August 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2008 appellant, through his representative, filed a timely appeal from a
November 19, 2007 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed the denial of appellant’s emotional condition claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On April 16, 2007 appellant, then a 61-year-old air traffic control specialist, filed a
traumatic injury claim alleging that his anxiety was due to three separate incidents of air craft
coming in close proximity to each other on April 12, 2007. He stopped working April 16, 2007
and has not returned.

On April 25, 2007 the Office conducted a telephone conference with Mark Palazzo,
support manager for safety, and Lisa Griffith, personnel manager at the employing
establishment. Mr. Palazzo provided information on the difference between a near mid-air
collision and operational error. He noted that the facility at which appellant worked handled
aircraft at a cruising altitude of approximately 60,000 feet between airports. Mr. Palazzo noted
that there were two occurrences on April 12, 2007 not three as alleged by appellant and that
appellant had not been “assigned to an operational position at that time.” He noted a proximity
event occurred at about 11:20 a.m. and a Category C operational error occurred at 11:40 a.m.
Although Mr. Palazzo was not involved in the operational error alleged by appellant, it involved
employees other than appellant. He stated that there was no danger of airplanes colliding in the
operational incident.1 Neither Ms. Griffith nor Mr. Palazzo knew whether appellant had been in
the air traffic control room at the time of the incident but, at the time of the incident, he had not
been assigned to work in the control room. Appellant’s duty hours that day in the operational
position were 7:02 a.m. to 2:46 p.m. and from 11:49 a.m. to 12:35 p.m. and 12:57 p.m. to
1:56 p.m. He was decertified from all radar positions on April 5, 2007 due to multiple
performance deficiencies.
In a letter dated April 25, 2007, the Office advised appellant that he needed to submit
additional information in support of his claim. Appellant was provided a copy of the telephone
conference with the employing establishment. The Office asked him to provide information
within 30 days to substantiate that he was working in the control room at the time of the
incidents he alleged.
In a May 1, 2007 report, William Beecham, Ph.D., a clinical psychologist, diagnosed
acute anxiety disorder. Appellant related witnessing three incidents on April 12, 2007 involving
aircraft he was responsible for pass in close proximity and below separation, such that a mid-air
collision seemed possible. He informed Dr. Beecham that the aircraft did not collide and they all
continued on their way without harm.
In a letter dated May 1, 2007, appellant submitted medical and factual evidence,
including witness statements and a May 1, 2007 attending physician’s report (Form CA-20) from
Dr. Beecham. He related that at the time of the 11:10 a.m. incident he was standing behind
Jorge C. Rivera, a coworker, when he saw that Mr. Rivera “had descended an aircraft to the
altitude of another aircraft.” Appellant tried to get Mr. Rivera’s attention by tapping him on the
shoulder, but Mr. Rivera had “noticed it at the same moment and tried unsuccessfully to separate
the aircraft. An alarm went off and he stated that at this point he “felt an adrenaline rush, a knot
in the pit of his stomach, and nausea.” Subsequently appellant was assigned with Chuck
Reininger, the radar controller for sector R24 and had a clear view of sector R25 from his
position in sector R24. At approximately 11:40 a.m., he related hearing Larry say that two
aircraft were head on and saw the actions Larry took to prevent any collision. After seeing there
was no collision, appellant felt nausea, a knot in the pit of his stomach and an adrenaline rush.
He stated that “[A]ll the sector R25 controllers were relieved of their positions to write written
statements about the incident.” Appellant was directed to assist Pam Lessor in D5 and, at this
point, he noticed that a Coast Guard aircraft was descending towards another aircraft at 6,000
1

This error involved two aircraft which had proximity of 700 feet vertically and 3.04 miles laterally.

2

feet. He told a Coast Guard controller to immediately move the military aircraft to 7,000 feet.
Appellant again felt nauseous, a knot in the pit of his stomach and an adrenaline rush. He
finished his shift, went home and worked his Sunday shift. Appellant woke up in the middle of
the night on Friday, Saturday and Sunday with the symptoms he had experienced earlier in the
day on April 12, 2007. On Monday morning he filed his traumatic injury claim.
In an April 30, 2007 statement, William P. Knost, a coworker, stated that at
approximately 11:20 a.m. on April 12, 2007 he had been working in D07 when Mr. Rivera was
involved with a proximity incident due to aircraft losing separation. He related seeing appellant
standing behind Mr. Rivera in the control room during the proximity incident and working in the
D sides later.
In a May 1, 2007 statement, Mr. Rivera noted that during a busy period on April 12, 2007
he was working R07 and recalled that appellant had been standing in the control room behind
D07. At about 11:10 a.m., he frantically separated an aircraft that had descended to the altitude
of another aircraft and appellant witnessed this event. At approximately 11:40 a.m., Mr. Rivera
stated that the alarm went off because of an R25 sector loss of separation. He stated that
appellant “had a clear view of the near tragedy that had just occurred at the sector right smack
next to them.”
In a May 1, 2007 statement, Kurt Aberhorn, controller-in-charge, noted that between
11:45 a.m. and 11:50 a.m. on April 12, 2007 appellant was present in the control room after he
went to investigate a loss of separation. He had been instructed to assign appellant to the D-side
duties of the control room by Ivonne Toledo of the watch desk. Appellant was at the D24
position when a loss of separation occurred at R25. He had a clear view of this near tragedy.
Mr. Aberhorn stated that appellant was relieved of his duties to write up statements regarding the
two separation incidents which had recently occurred.
In a May 1, 2007 CA-20 form, Dr. Beecham diagnosed acute stress disorder and checked
“yes” to the question of whether it was employment related. He indicated that appellant was
totally disabled beginning April 12, 2007.
In a May 29, 2007 memorandum, Mr. Palazzo noted that Mr. Rivera had been assigned to
the operational error in R7 which occurred at 11:10 a.m. on April 12, 2007. He stated that it was
physically impossible to have a clear view of the R25 radar scope from a D24 radar associate
position as this position was located approximately six feet from the R25 position. The R25
controller was responsible for the less than standard separation incident and that an investigation
revealed that the R25 controller took actions to maintain standard separation. Mr. Palazzo
disagreed with Mr. Aberhorn in characterizing the R25 incident as a near tragedy since the
aircraft involved were never closer than 3.04 miles.
In a statement dated May 30, 2007, Angela LaVangie, operations supervisor, indicated
that she was appellant’s supervisor and that he had been decertified from performing all radar
positions on April 5, 2007.
On June 8, 2007 appellant submitted an undated witness statement by Charles Reininger
who stated that appellant observed an operational error at sector 24 on April 12, 2007. He

3

advised that sectors 24 and 25 were adjacent to each other. At the time of the operational error,
appellant had been his assistant controller and witnessed the event.
By decision dated June 12, 2007, the Office denied appellant’s claim, finding that he
failed to establish any compensable factors of employment and thus fact of injury was not
established. Specifically, it found that appellant was not the air traffic controller responsible for
handling the claimed incidents.
In a letter dated June 20, 2007, appellant requested reconsideration. He contended that he
worked at radar positions on April 12, 2007, supported by the submitted witness statements.
Appellant noted that he was part of an en route team and that as a radar associate at D24 he was
responsible for the safety of aircraft in his sector.
In a June 21, 2007 attending physician’s report (Form CA-20), Dr. Daniel R. Collins, a
treating psychiatrist, diagnosed post-traumatic stress disorder. He noted that on April 12, 2007
appellant was on radar duty when he “witnessed three hair-raising events within a 45-minute
time frame.” Dr. Collins checked “yes” to the question of whether appellant’s condition was
employment related. He found that appellant was totally disabled beginning April 12, 2007. On
June 19, 2007 Dr. Collins reiterated that appellant was totally disabled.
By decision dated November 19, 2007, an Office hearing representative affirmed the
June 12, 2007 decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.2 Workers’
compensation law is not applicable to each and every injury or illness that is somehow related to
an employee’s employment. There are situations where an injury or an illness has some
connection with the employment, but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability
comes within the coverage of the Federal Employees’ Compensation Act.3
To occur in the course of employment, in general, an injury must occur: (1) at a time
when the employee may reasonably be said to be engaged in his or her master’s business; (2) at a
place where he or she may reasonably be expected to be in connection with the employment; and

2

See Debbie J. Hobbs, 43 ECAB 135 (1991).

3

Lillian Cutler, 28 ECAB 125 (1976).

4

(3) while he or she was reasonably fulfilling the duties of his or her employment or engaged in
doing something incidental thereto.4
ANALYSIS
Appellant alleged that he developed an anxiety condition on April 12, 2007 as the result
of witnessing three incidents of aircraft coming into close proximity with one another. The
question to be resolved is whether appellant has established that the incidents arose in the course
of employment.
With respect to the first two incidents involving a proximity event in sector R07 which
occurred at 11:20 a.m. and an operational error in sector R25 which occurred at 11:40 a.m., the
employing establishment stated that appellant did not have any operational responsibilities for
the aircraft involved. The evidence submitted by appellant establishes he was present in the
control room at the time the incidents occurred, but did not have any operational responsibility
for the aircraft involved. The record does not establish that he was the responsible air traffic
controller involved in the 11:20 a.m. proximity event in sector R07 or the 11:40 a.m. operational
error in sector R25. Therefore, these incidents did not arise out of the course of his assigned
duties. Appellant’s reaction is not in the performance of duty.
Appellant also alleged that he became anxious as a result of a third incident involving a
Coast Guard aircraft. The incident occurred when he was assigned to assist Ms. Lessor in D-5.
Appellant noticed that a Coast Guard aircraft was descending towards another aircraft at 6,000
feet. He instructed a Coast Guard controller to immediately move the military aircraft to 7,000
feet. Following this incident, appellant experienced nausea, a knot in his stomach and an
adrenaline rush. The record contains no evidence from the employing establishment disputing
appellant’s account regarding this incident. The evidence establishes that appellant was acting as
the responsible controller in D-5, at a place he was expected to be. This incident is found a
compensable factor of employment under Cutler.
The Office found that appellant did not establish any compensable factors of
employment. Therefore, it did not review the medical evidence regarding the claimed emotional
condition. Since appellant has established a compensable factor of employment with respect to
the incident involving the Coast Guard aircraft, the case will be remanded to the Office for
review of the medical evidence and issuance of an appropriate decision.
CONCLUSION
The Board finds that appellant has established a compensable factor of employment with
respect to the incident involving the Coast Guard aircraft.

4

R.M., 60 ECAB ___ (Docket No. 07-1066, issued February 6, 2009); Carmen B. Gutierrez, 7 ECAB 58 (1954).

5

ORDER
IT IS HEREBY ORDERED THAT the November 19, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed, in part, set aside, in part and the case remanded
for further proceedings consistent with this decision.
Issued: August 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6