United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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)
and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Denver, CO, Employer
)
___________________________________________ )
J.S., Appellant

Appearances:
John S. Evangelisti, Esq., for the appellant
No appearance, for the Director

Docket No. 09-650
Issued: April 20, 2009

Oral Argument November 13, 2008

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of a March 24, 2008 decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of these emotional condition claims.1
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained a
traumatic injury in the performance of duty on July 5, 2006.
Appellant argues that the Equal Employment Opportunity (EEO) decision is dispositive
on the issue of whether the supervisor’s conduct amounted to unlawful harassment and
discrimination, creating abusive and/or hostile work environment. In this regard, she alleges that
it is for the Office to determine only whether this unlawful harassment and discrimination equate

1

Appellant also filed an appeal of a March 14, 2008, the Office decision for a traumatic injury claim. That matter
is being separately handled by a Board decision under docket number 08-2072.

with error or abuse under the Federal Employees’ Compensation Act standard. Appellant further
reiterated his request that the case file numbers xxxxxx928 and xxxxxx750 be combined.
FACTUAL HISTORY
On July 6, 2006 appellant filed a traumatic injury claim alleging that, on July 5, 2006,
Postmaster Matthew Curry yelled at her, was verbally abusive, threatening her, screaming at her
for a small infraction. She claimed that she tried to get away but he “dogged” her, coming
toward her yelling and screaming. On the form was a signed statement by a Greg Miller who
noted that he had been dropping mail into the mail slot, had heard Mr. Curry screaming at
appellant and asked her if she was “ok.” Appellant stopped work on July 5, 2006. Mr. Curry
indicated on the Form CA-1 that, as they sat down for a meeting, appellant seemed angry and he
informed her that they would reschedule the meeting; however, she started screaming. He stated
that he had witnesses who could confirm that he did not scream. Mr. Curry noted that appellant
claimed stress several previous times and her most recent claim was denied.
On July 13, 2006 the Office requested that appellant submit additional supportive factual
and medical evidence. Although it received some medical reports, the Office received no
statement from appellant as to the events of July 5, 2006 and on that basis denied her claim by
decision dated August 21, 2006.
On October 25, 2006 appellant requested reconsideration. In support of her claim, she
submitted several medical documents that diagnosed her with anxiety disorder as a result of her
being “verbally abused by her supervisor last p.m.,” as well as a statement from herself and
coworkers, friends and customers, an employing establishment policy noting zero tolerance for
workplace violence and a newspaper clipping. Appellant also provided a copy of an EEO
complaint related to the July 5, 2006 incident. She further requested the Office file numbers
xxxxxx750 and xxxxxx928 be combined as “they both involve stressful situations at work.”
Regarding the matters at issue in this case, appellant stated that on July 5, 2006 Mr. Curry
“brought his face within 12 inches of mine” and began yelling for two minutes about her
handling of a customer. She noted that a customer overheard Mr. Curry and asked, “What is the
matter? Are you ok?” Appellant stated that his “behavior was so physically threatening I was
afraid he would hit me. I hurried away, tripped over some buckets and hit my knee bruising it
badly.” After Mr. Curry continued yelling and following her, appellant alleged that he ordered
her to clock out and the next day she was given a letter threatening her with removal.2 She stated
that, after filing her July 7, 2006 claim, Mr. Curry told her that he would trump up allegations
against her and would protect himself. Appellant alleged that she then received a notice placing
her off duty without pay which directed her to appear for a due process meeting on July 7, 2006
as “Employee may be injurious to self or others.”3
A statement from a friend, Mary Lawrence, noted that appellant had confided to her
about Mr. Curry’s harassment.
2

Appellant provided a copy of the letter.

3

Appellant provided a copy of the notice.

2

Ron Velasquez, a coworker, noted general frustration with the working environment in
the employing establishment, had seen appellant in tears after speaking with Mr. Curry and heard
him use the term, “He does n[o] t get mad, [h]e gets even,” which was allegedly said in front of
customers.
Coworker Danielle Gore noted that people often spoke ill of other employees, that
Mr. Curry did not get involved in customer complaints and that made Ms. Gore’s window
responsibilities more difficult, but because of her position at the window, she did not get
involved in employee disputes.
Judy Sandoval, coworker, noted Mr. Curry never being satisfied with the work performed
by the employees on Saturdays, despite good effort. She noted that he has yelled at her and that
he is very unpredictable. Ms. Sandoval believed the office environment to be hostile. She had
witnessed appellant coming out of Mr. Curry’s office crying on numerous occasions.
Ms. Sandoval generally noted that numerous occasions where she had difficult dealings with
Mr. Curry. She also confirmed hearing Mr. Curry state, “I do n[o] t get mad, I get even.”
Janet Fuller, coworker, expressed general frustration with how Mr. Curry ran the office.
She said he had acted aggressively when complaining about the employees’ work by slamming
cases around and grabbing papers out of her hand and he blamed the poor work of the employees
for him not receiving the promotion he wanted. Ms. Fuller noted that Mr. Curry also played
favorites with some employees over others. She reported that Mr. Curry told her that
“[appellant’s] stress case against him was going nowhere and that I could n[o]t win in a case of
that nature either.”
Another statement by Pauline Ulimasao, a coworker, and union steward noted generally
that there was a hostile work environment in the employing establishment. She said that
Mr. Curry shares personal business about employees with other employees, for example, he had
told her about appellant’s “issues.” Ms. Ulimasao noted that, when she asked Mr. Curry about
interviews being conducted about a hostile work environment, he said, “if they think this is a
hostile work environment, just wait.” She generally noted that, when work issues are brought to
Mr. Curry’s attention, he threatens the employees with a change in their schedule.
Randal Tolbert, a coworker and former union steward, generally related that Mr. Curry
demeans employees by talking down to them. He noted that Mr. Curry would belittle appellant
about how she did parcels.
Ben Medina, a coworker, noted that the general hostile work environment noting some
examples of the employees working very hard to get the mail out on Saturdays, yet being
threatened with discipline if any employees wanted overtime. He reported that Mr. Curry has a
very threatening personality.
Appellant submitted several customer statements that discussed generally Mr. Curry’s
behavior. An April 6, 2006 statement from a D.A. Gallen noted witnessing the postmaster
engage in rude and verbally abusive behavior towards customers and clerks. He advised that he
had witnessed an incident involving a clerk named “[Josie Padilla].”

3

Katie Gotchell alleged in her April 17, 2006 statement, that she was shocked by
Mr. Curry’s aggressive behavior and treatment.
In a June 20, 2006 statement, Rohann Million described an incident that occurred on
June 6 or 7, 2006 with herself and Ms. Padilla, a clerk, and Mr. Curry. She alleged that she was
locked out of her personal mailbox and Ms. Padilla refused to help and that Mr. Curry accused
her of disrespecting his worker and swearing at her. Ms. Million indicated that appellant and
another clerk came to assist her.
Bev Christiansan, in her September 25, 2006 statement, indicated that, on June 6, 2006,
she was standing in line to buy stamps when a customer and a clerk began having a heated
argument. Mr. Curry dismissed the clerk. She noted that appellant was trying to assist the
customer but Mr. Curry appeared and “rudely” dismissed appellant by shaking his finger and
yelling at her to go into his office. Ms. Christiansan alleged that, when appellant refused, he
became louder and more demanding. She noted that he demanded that appellant go to his office
and when she refused, he yelled louder.
On August 2 and 11, 2006 the employing establishment controverted appellant’s
allegations. Documents submitted by the employing establishment included a July 5, 2006
e-mail statement signed by Mr. Curry, which described the incident. Mr. Curry advised that
appellant locked the store and left with 10 to 15 customers in line and disappeared. He noted
that appellant told a customer to wait for Mr. Curry, without advising him, which caused the
customer to be upset due to a lengthy wait. Mr. Curry indicated that appellant was found
working collection boxes and did not wish to discuss the matter on the workroom floor. He
stated that they proceeded to the rear of the building to have an informal discussion and appellant
expressed anger and hostility. Mr. Curry suggested that they should finish the meeting with a
steward and got up to leave. He stated that appellant then began to “whale and scream;” he told
her to calm down, clock out and leave. Mr. Curry noted backing away from appellant because of
her screaming. He stated that, after a minute, she got up, with no tears on her face and just a
smirk.
Mr. Curry also alleged that the witness statement from Mr. Miller should be given little
credibility as it was written by appellant in front of himself and a union steward, Bev Chavez.
He further alleged that he conducted an investigative interview with two other clerks,
Mr. Velasquez and Ms. Padilla, who were both at the window and indicated that they only heard
appellant screaming. Mr. Curry alleged that Ms. Padilla did not see him near appellant.
Regarding leave matters, Mr. Curry explained that it was a requirement to place an
employee in an emergency status when they refused to clock in for an investigative interview.
By decision dated May 18, 2007, stating: “It is therefore [o]rdered that the decision dated
July 21, 2006 be modified and that the Office acknowledge that [f]act of injury, event is
established but that the element of [p]erformance of [d]uty is not as the evidence does not
establish that the accepted work event is compensable as defined by the [Act].”

4

On December 19, 2007 appellant requested that the Office reconsider its prior decisions,
“including but not limited to April 6, 2006 and July 16, 2007,4 but later, by letter dated
January 16, 2008, corrected those decision dates to August 21, 2006 and May 18, 2007. With the
request for reconsideration, she submitted a December 4, 2007 Equal Employment Opportunity
Commission (EEOC) decision. In that decision, which addressed the following issue: “Whether
the [employing establishment] discriminated against [appellant] on the basis of her sex, female
and age … when on July 5, 2006, Postmaster Curry yelled at her and placed her on off duty
without pay,” the administrative judge found that appellant had established “a prima facie case
of hostile work environment sex and age.” The administrative judge determined that Mr. Curry’s
actions, which included raising his voice, bringing his face to within 12 inches of appellant’s and
yelling at her, were sufficiently severe or pervasive to alter the condition of her employment
and/or create an abusive working environment. Appellant again requested that this claim be
doubled with file number xxxxxx928.
The employing establishment continued to strongly controvert the claim, noting in its
January 14, 2008 letter that “the standard for ‘harassment’ or ‘discrimination’ as defined by
EEOC statutory or case law is not the applicable standard for a claim under the [Act].”
By decision dated March 24, 2008, the Office denied modification of its previous
decisions dated August 21, 2006 and May 18, 2007.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to her regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Act.5 On the other hand the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or her frustration
from not being permitted to work in a particular environment or to hold a particular position.6
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which she claims compensation was caused or
adversely affected by employment factors.7 This burden includes the submission of a detailed
description of the employment factors or conditions, which that claimant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.8
4

These were decisions issued in file number xxxxxx928.

5

5 U.S.C. §§ 8101-8193.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
7

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

8

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

5

ANALYSIS
Regarding the July 5, 2006 incident, appellant stated that Mr. Curry “brought his face
within 12 inches of mine” and began yelling for two minutes about her handling of a customer.
She noted that a customer overheard Mr. Curry and asked, “What is the matter? Are you ok?”
Appellant stated that his “behavior was so physically threatening I was afraid he would hit me. I
hurried away, tripped over some buckets and hit my knee bruising it badly.” After Mr. Curry
continued yelling and following her, she stated that he ordered her to clock out and the next day
she was given a letter threatening her with removal. Appellant stated that, after filing her July 7,
2006 workers’ compensation claim, Mr. Curry told her that he would trump up allegations
against her and would protect himself. She alleged that she then received a notice placing her off
duty without pay and which directed her to appear for a due process meeting on July 7, 2006.
In support of her assertion, appellant noted that Mr. Miller, a customer, indicated that he
heard the postmaster screaming at her on that date. She also provided a copy of an EEO
decision, dated December 4, 2007. The administrative judge found that Mr. Curry’s actions,
which included raising his voice, bringing his face to within 12 inches of hers and yelling at her,
were sufficiently severe or pervasive to alter the condition of her employment and or create an
abusive working environment. He found that appellant had established a prima facie case for a
hostile work environment related to her sex and age based on the incidents surrounding the
July 5, 2006 event. Although Mr. Curry denied that he screamed at appellant, the evidence
refutes his denial.
This evidence is sufficient to support the credibility of the allegations surrounding the
June 5, 2006 incident and to support a finding of a compensable factor. It is well established
that, while the findings of other federal agencies are not dispositive with regard to questions
arising under the Act, such evidence may be given weight by the Office and the Board.9 It is
appellant’s burden to prove that harassment by Mr. Curry did in fact occur. Although heartily
denied by the employing establishment, appellant has met her burden that this incident did occur
and did arise from her performance of her regular duties.
The Board has held that allegations, alone, by a claimant are insufficient to establish a
factual basis for an emotional condition claim but must be substantiated by the evidence.10 Mere
perceptions and feelings of harassment or discrimination will not support an award of

9

See Pamela Casey, 57 ECAB 260, 264 (2005); Michael A. Deas, 53 ECAB 208 (2001).

10

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991); and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).

6

compensation. The claimant must establish such allegations with probative and reliable
evidence.11 The Office, in its March 24, 2008 decision, addressed the EEO decision in this
manner:
“Your attorney submitted a second statement, dated February 1, 2008, in which he
discusses the response from the employing agency. In this statement he argues
that, based on the EEOC determination, the weight of evidence shifts in favor of
you, because it provides strong evidence of error or abuse on the part of the
[a]gency. Upon review of these transcripts it is found that, while they support the
findings of the EEOC, they do not specifically verify your previous allegations
previously identified with supporting evidence.”
The Board disagrees with the Office and finds that these findings do support appellant’s
factual allegations of harassment surrounding the July 5, 2006 event. Appellant’s allegations of
harassment surrounding that incident, substantiated by the witness statement and the finding of a
hostile work environment by the EEO decision, constitutes substantial evidence of harassment by
Mr. Curry.
Thus, appellant has identified a compensable work factor with respect to the July 5, 2006
incident. As she has implicated a compensable employment factor, the Office must base its
decision on an analysis of the medical evidence. As the Office found no compensable
employment factors, it did not analyze or develop the medical evidence. The case will be
remanded to the Office for this purpose.12 After such further development as deemed necessary,
it should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that appellant has identified a compensable factor of employment and
remands for further development.

11

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); see Pamela R. Rice, supra note at 838 (it was found that the employee failed to establish the incidents or
actions characterized as harassment).
12

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded. Upon remand, the Office will
combine the case files of case file numbers xxxxxx928 and xxxxxx750 and, following further
development consistent with this decision, render an appropriate decision.
Issued: April 20, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clearwater, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)

Docket No. 20-1479
Issued: March 29, 2021

Case Submitted on the Record

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

On August 5, 2020 appellant filed a timely appeal from a July 30, 2020 merit decision of
the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards docketed the
appeal as No. 20-1479.
This case has previously been before the Board.1 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On October 11, 2017 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 10, 2017 he injured his lower back as a result of an
automobile accident while in the performance of duty. After an initial denial, OWCP accepted the
claim by decision dated March 6, 2018 for lumbar and cervical strains, lumbar and cervical disc
displacement, and left ankle/foot strain and sprain.
On June 8, 2018 appellant filed a claim for a schedule award (Form CA-7). By decision
dated January 8, 2019, OWCP denied appellant’s schedule award claim, finding that he had not
reached maximum medical improvement (MMI).

1

Docket No. 19-0540 (issued August 8, 2019).

On January 11, 2019 appellant filed an appeal to the Board.
On January 14, 2019 appellant underwent OWCP-approved cervical procedures at C5-6
and C6-7 including arthrodesis, complete anterior cervical discectomy, anterior segmental spinal
instrumentation with insertion with spinal fixation, application of intervertebral biomechanical
devices, and application of bone autograft.
On June 17, 2019 appellant filed a claim for a schedule award (Form CA-7).
In a report dated July 2, 2019, Dr. Angelo Alves, a Board-certified neurologist, opined that
appellant had reached MMI and that he had permanent impairment of 10 percent for residual
cervical injury with a residual problem in the left upper extremity, status post cervical spine
surgery, 20 percent for chronic low back pain syndrome with disc herniations and signs of
radiculopathy, and 5 percent for bilateral carpal tunnel syndrome CTS. In a letter dated April 29,
2019, he advised that appellant suffered from significant bilateral CTS, associated with sorting
mail on a daily basis, and recommended that he reduce his activity to a minimum acceptable level.
By decision dated August 8, 2019, the Board affirmed OWCP’s January 8, 2019 decision,
finding that, as appellant had not established that he was at MMI, he had not met his burden of
proof to establish permanent impairment of a scheduled member of function of the body,
warranting a schedule award.
In a statement of accepted facts (SOAF) dated October 7, 2019, OWCP noted that on
January 11, 2019 appellant filed an occupational disease claim (Form CA-2) for carpal tunnel
syndrome.2 It also noted that he had filed a notice of recurrence (Form CA-2a) due to a cervical
pinched nerve.3
OWCP referred appellant to Dr. William Dinenberg, a Board-certified orthopedic surgeon,
for a second opinion regarding appellant’s entitlement to a schedule award. In a report dated
March 27, 2020, Dr. Dinenberg, diagnosed cervical and lumbar sprain, left foot sprain, and
cervical and lumbar disc bulges. He noted that he would need to obtain a new electromyogram/
nerve conduction velocity (EMG/NCV) study to render an impairment rating. In a supplemental
report dated June 4, 2020, Dr. Dinenberg opined that no impairment rating was appropriate for the
bilateral lower extremities, but that based on chronic left C7 radiculopathy with mild sensory
deficit and minimal loss of strength, he rendered 10 percent upper extremity impairment secondary
to C7 under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides)4 and The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter).
Dr. Dinenberg’s report was referred to Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), who determined in a report dated June 25,
2020 that as Dr. Dinenberg found no objective motor/sensory deficits in the right upper extremity,
2

Appellant has a claim under OWCP File No. xxxxxx959 accepted for bilateral carpal tunnel syndrome. OWCP
File No. xxxxxx959 has not been administratively combined with the present claim.
3

Appellant’s Form CA-2a was converted to a new occupational disease claim, assigned OWCP File No.
xxxxxx617. OWCP No. xxxxxx617 has not been administratively combined with the present claim.
4

A.M.A., Guides (6th ed. 2009).

2

left lower extremity, or right lower extremity, there was no ratable impairment of any spinal nerve
and no ratable impairments for the accepted spinal conditions.
By decision dated July 30, 2020, OWCP denied appellant’s claim for a schedule award for
the right upper extremity and the bilateral lower extremities. It based its decision on the March 27
and June 4, 2020 reports of Dr. Dinenberg.5
The Board, having duly considered the matter, finds that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication depends on cross-referencing between files and where two or more injuries
occur to the same part of the body.6 For a full and fair adjudication of appellant’s schedule award
claim, the case shall be remanded for OWCP to administratively combine OWCP File No.
xxxxxx925 with OWCP File Nos. xxxxxx959 and xxxxxx617. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo merit decision on
appellant’s schedule award claim for the right upper extremity and bilateral lower extremities.
IT IS HEREBY ORDERED THAT the July 30, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: March 29, 2021
Washington, DC

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

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

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

5

OWCP noted that the impairment of the appellant’s left upper extremity would be addressed in a separate decision.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
California, PA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for appellant1
Office of Solicitor, for the Director

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)

Docket No. 17-1667
Issued: March 8, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On July 28, 2017 appellant, through counsel, filed a timely appeal from a June 16, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP) which affirmed the
termination of appellant’s wage-loss compensation effective October 4, 2016. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision. The electronic integrated Federal Employees’ Compensation System (iFECS) case
record contains a June 30, 2016 physical evidence receipt for three discs of surveillance videos
obtained by the employing establishment’s Office of Inspector General (OIG). The surveillance
videos reportedly showed appellant performing unreported private sector work as a janitor, tasks
which purportedly exceeded his medical restrictions. In a July 15, 2016 letter, OWCP instructed
Dr. Victoria Langa, a Board-certified orthopedic surgeon and second opinion physician, to
review the surveillance video and reference it in answering questions posed by OWCP. Also, the
July 15, 2016 statement of accepted facts (SOAF) provided to Dr. Langa extensively referenced
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

the activities shown on the surveillance video. Dr. Langa submitted an August 5, 2016 report
based, in part, on a review of the case record, which included the three surveillance video discs.
OWCP terminated appellant’s wage-loss compensation benefits, effective October 4, 2016,
based on Dr. Langa’s August 5, 2016 opinion as the weight of the medical evidence. In the
June 16, 2017 decision, an OWCP hearing representative affirmed the October 4, 2016 decision.
The three surveillance video discs, however, are not included in the case record transmitted to
the Board.
Section 501.2(c) of the Board’s Rules of Procedure,2 provides that the Board has
jurisdiction “to consider and decide appeals from final decisions of OWCP in any case arising
under the [Federal Employees’ Compensation] Act.”3 Additionally, the Board’s review of the
case is limited to the evidence which was before OWCP at the issuance of the final decision.4
Since the record as transmitted to the Board does not contain evidence that OWCP relied upon in
reaching its final decision, the Board is unable to properly “consider and decide” appellant’s
claim. The June 16, 2017 decision of OWCP, therefore, must be set aside. The case is remanded
to OWCP for reconstruction and proper assemblage of the case record including obtaining the
three above-referenced surveillance video discs. Following this and such further development as
OWCP deems necessary, OWCP shall issue a de novo decision. Accordingly,
IT IS HEREBY ORDERED THAT the June 16, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.

2

20 C.F.R. § 501.2(c).

3

5 U.S.C. §§ 8101-8193.

4

See 20 C.F.R. § 501.2(c)(1).

2

Issued: March 8, 2018
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Medford, OR, Employer
__________________________________________

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

Docket No. 08-697
Issued: February 11, 2009

Case Submitted on the Record

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

JURISDICTION
On January 10, 2008 appellant filed a timely appeal from an August 2, 2007 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation and
authorization for medical treatment and an October 18, 2007 nonmerit decision denying his
request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case and over the October 18, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation
effective August 2, 2007 on the grounds that he had no further employment-related disability;
(2) whether the Office properly terminated authorization for medical benefits; and (3) whether
the Office properly denied his request for an oral hearing as untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
On August 26, 1986 appellant, then a 36-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained injuries on August 25, 1986 when he stumbled on sidewalk

steps. The Office accepted the claim for acute chronic lumbar and thoracic strains and an
episode of anxiety and depression. Appellant experienced intermittent disability beginning
August 1986. He returned to part-time work on October 21, 1991 and to full-time work as a
clerk on April 13, 1992. By decision dated May 1, 1992, the Office reduced appellant’s
compensation to zero based on its finding that his actual earnings as a general office clerk fairly
and reasonably represented his wage-earning capacity.
On May 12, 2006 appellant filed a claim for compensation from May 1 to 12, 2006 for
four hours per day. In a form report dated April 21, 2006, Dr. Martha MacRitchie, a Boardcertified physiatrist, diagnosed lumbar strain and a herniated disc at L4-5 and checked “yes” that
the condition resulted from his employment. She found that he was partially disabled beginning
February 1, 2006 with restrictions on working over four hours per day or lifting, pushing or
pulling over 10 pounds. In a report dated August 14, 2006, Dr. MacRitchie noted that she began
treating appellant in 1992 for low back and right leg symptoms. A computerized tomography
(CT) scan showed a herniated disc at L5-S1 with impingement on the right S1 nerve root.
Dr. MacRitchie stated, “In my experience, it is not unusual for an early diagnosis of lumbar
strain to evolve into a more complete finding of herniated disc as symptoms and the disease
process progress.”
On October 3, 2006 the Office referred appellant to Dr. Stephen Thomas, Jr., a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a report dated October 27,
2006, Dr. Thomas noted that appellant worked full time as a clerk. He diagnosed degenerative
arthritis of the lumbar spine due to age and obesity. Dr. Thomas found that his lumbar and
thoracic strain had resolved and that his degenerative arthritis was unrelated to his 1986
employment injury.
By letter dated November 13, 2006, Dr. MacRitchie disagreed with Dr. Thomas’
evaluation, citing to the reasons she provided in her August 14, 2006 report. On December 12,
2006 the Office found a conflict existed between Dr. MacRitchie and Dr. Thomas regarding the
nature of appellant’s current back condition and whether the August 25, 1986 work injury
resulted in a herniated disc.1
On March 8, 2007 the Office referred appellant to Dr. Timothy Borman, an osteopath
certified by the American Osteopathic Association in orthopedic surgery, for an impartial
medical examination. On April 4, 2007 Dr. Borman reviewed the history of injury and the
medical evidence of record. He diagnosed multilevel degenerative disc disease unrelated to
appellant’s federal employment. Dr. Borman noted that appellant had a history of a herniated
disc diagnosis but had no documented radiculopathy or “clinical syndrome of herniated nucleus
pulposis.” He disagreed with Dr. MacRitchie that a lumbar strain could cause degenerative disc
disease. The Office asked Dr. Borman to address whether appellant required further medical
treatment for his work-related condition, had any continued disability or restrictions due to his

1

In a report dated February 22, 2007, Dr. Scott H. Kitchel, a Board-certified orthopedic surgeon, diagnosed
chronic lumbar strain and lumbar radicular pain disorder. He recommended against surgery. Dr. Kitchel opined that
appellant’s “work injury in 1986 is the major contributing cause to his spine problems and ongoing need for
treatment.”

2

employment injury and whether the injury-related conditions had resolved. Dr. Borman
responded that these questions were “[n]ot applicable.”
On June 6, 2007 the Office notified appellant of its proposed termination of his
compensation and authorization for medical treatment on the grounds that the weight of the
evidence established that he had no further employment-related condition or disability.
In a report dated June 22, 2007, Dr. Peter S. Kosek, a Board-certified anesthesiologist,
attributed appellant’s “need for ongoing treatment and his disability to his original lumbar
strain.” He concurred with Dr. Borman’s opinion that he did not have radiculopathy but stated
that “a person can have debilitating pain without radiculopathy.” In a report dated July 5, 2007,
Dr. Kosek asserted that appellant’s work injury caused the majority of his disability.
On July 30, 2007 appellant requested an oral hearing on the notice of proposed
termination of compensation. In a report dated July 24, 2007, received by the Office on
August 2, 2007, Dr. MacRitchie related that Dr. Borman misinterpreted her comment that a
lumbar strain could evolve to a herniated disc. She clarified that she meant that with more
symptoms and objective testing the correct diagnosis became clear.
By decision dated August 2, 2007, the Office finalized its termination of his
compensation and authorization for medical treatment. On September 13, 2007 appellant
requested an oral hearing. By decision dated October 18, 2007, the Office denied his request for
a hearing as untimely under section 8124.
LEGAL PRECEDENT -- ISSUES 1 & 2
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.2 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was, in fact,
erroneous.4 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.5

2

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

3

Sharon C. Clement, 55 ECAB 552 (2004).

4

Tamra McCauley, 51 ECAB 375, 377 (2000).

5

Id.

3

The Federal (FECA) Procedure Manual provides that, if a formal loss of wage-earning
capacity decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.6 The procedure manual further indicates that
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.7
Board precedent further provides that when a wage-earning capacity determination has
been issued and the employee submits evidence with respect to increased disability for work, the
issue presented is whether modification of wage-earning capacity is warranted, not whether he or
she has sustained a recurrence of disability.8
ANALYSIS -- ISSUE 2
The Office issued a wage-earning capacity decision on May 1, 1992 based on appellant’s
actual earnings in the position as general office clerk. It found that he had no loss of wageearning capacity as his actual earnings met or exceeded those held at the time of injury.
On May 12, 2006 appellant filed a claim for compensation from May 1 to 12, 2006 for
four hours per day. The Office attempted to terminate compensation and medical benefits as of
August 2, 2007 based on the findings of Dr. Borman. Appellant, however, was not in receipt of
compensation at the time that he reduced his hours and filed a claim for compensation. Once a
wage-earning capacity decision is made it remains in effect until it is properly modified.9 The
Board has held that when a wage-earning capacity determination has been issued and appellant
submits evidence regarding his ability to work, the Office must evaluate the evidence to
determine if modification of his wage-earning capacity is warranted.10 The Office’s procedure
manual directs the claims examiner to consider the criteria for modification when a claimant
requests resumption of compensation for wage loss.11 The initial issue, consequently, is whether
appellant has established that his wage-earning capacity should be modified. Accordingly, the
Board finds that the Office should have considered the issue of modification of the May 1, 1992
wage-earning capacity determination.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
7

Id.

8

See Katherine T. Kreger, 55 ECAB 633, 636 (2004); Sharon C. Clement, supra note 3.

9

Id.

10

Id.

11

Supra note 6.

4

CONCLUSION
The Board finds that the Office improperly terminated his compensation and
authorization for medical benefits instead of adjudicating the issue of whether his wage-earning
capacity should be modified.12
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 18 and August 2, 2007 are reversed.
Issued: February 11, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

In view of the Board’s disposition of the merits, the issue of whether the Office properly denied appellant’s
request for an oral hearing is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE ARMY, MATERIEL
COMMAND, Corpus Christi, TX, Employer
__________________________________________

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

Docket No. 07-1159
Issued: November 15, 2007

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 March 26, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 1, 2006 merit decision denying his emotional condition
claim and the Office’s February 21, 2007 nonmerit decision denying his request for a review of
the written record. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied appellant’s request for a review of the written record by an Office hearing representative.
FACTUAL HISTORY
On July 11, 2006 appellant, then a 56-year-old retired aircraft worker, filed an
occupational disease claim alleging that he sustained an emotional condition, including posttraumatic stress syndrome, in the performance of duty. He first became aware of his condition

on October 8, 1991 and of its relationship to his employment on October 8, 2002. Regarding the
relationship of the claimed condition to his employment, appellant stated:
“After coming back from Southwest Asia, Persian Gulf Operation Desert Storm,
Desert Shield, I became very ill with a lot of stress. I couldn’t sleep. I didn’t
perform my duties at work like I used to. Always in trouble with supervisor, not
going to work, [absent without leave].”1
The record contains documents which indicate that appellant served in the Middle East in
a civilian capacity for the employing establishment during the Persian Gulf War in 1990 and
1991. In a May 3, 1994 letter, an employing establishment official advised appellant that he
could have a medical evaluation if he believed he had medical complications related to his
service in Saudi Arabia. Appellant retired on medical disability effective March 11, 2003.
In support of his claim, appellant submitted a July 12, 1994 statement in which he
indicated that he was selected to go with a support group from the Corpus Christi Army Depot to
Bahrain and Dhahran, Saudi Arabia, to perform maintenance on tanks for 100 days during
Operation Desert Shield and Operation Desert Storm. He stated that he went to support the
troops in the field and he was exposed to missile raids every night. Appellant asserted that one
of the missiles which killed 24 soldiers hit close to where he was sleeping and that smoke, which
he believed was gas, came close to where he was sleeping. He indicated that he saw six or more
soldiers who were wounded in the incident. Appellant indicated that he had developed
numerous stress-related psychiatric and physical conditions, including post-traumatic stress
disorder, depression, panic disorder, gastrointestinal problems and muscle aches.
Appellant also submitted an October 8, 2002 report in which Dr. Jose E. Pagan, an
attending Board-certified psychiatrist, stated that he sustained employment-related emotional
conditions, including post-traumatic stress disorder, which began after he was “exposed to
traumatic events while in the Persian Gulf War.”
In a November 1, 2006 decision, the Office denied appellant’s emotional condition claim
on the grounds that he did not establish any compensable employment factors. The Office noted
that on October 5, 2002 appellant filed an occupational disease claim (file number 16-2048740)
for depression alleged to have arisen after returning from the Persian Gulf War, but that the claim
was denied on January 27, 2003.
By letter postmarked January 9, 2007, appellant requested a review of the written record
by an Office hearing representative. In a February 21, 2007 decision, the Office determined that
he was not entitled to an oral hearing as a matter of right because his request for an oral hearing
was untimely. The Office indicated that it was exercising its discretion and had denied appellant’s
hearing request on the basis that he could request reconsideration and submit additional factual and
medical evidence.

1

Appellant indicated that he filed a claim with the Office in October 2002 but the claim was denied because the
employing establishment “did not report my record.”

2

LEGAL PRECEDENT
A claimant seeking compensation under the Federal Employees’ Compensation Act2 has
the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,3 including that he is an “employee” within the meaning of
the Act4 and that he filed his claim within the applicable time limitation.5
In cases of injury on or after September 7, 1974, section 8122(a) of the Act provides that
an original claim for compensation for disability or death must be filed within three years after
the injury or death.6 Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given
within 30 days.”7
Section 8122(b) provides that, in a case of latent disability, the time for filing a claim
does not begin to run until the employee has a compensable disability and is aware, or by
exercise of reasonable diligence should have been aware, of the causal relationship of the
compensable disability to his employment. In such a case, the time for giving notice of injury
begins to run when the employee is aware, or by the exercise of reasonable diligence should
have been aware, that his condition is causally related to his employment, whether or not there is
a compensable disability.8 The Board has held that if an employee continues to be exposed to
injurious working conditions after such awareness, the time limitation begins to run on the last
date of this exposure.9
2

5 U.S.C. §§ 8101-8193.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

Kenneth W. Grant, 39 ECAB 208 (1987); James E. Lynch, 32 ECAB 216 (1980); Emiliana de Guzman (Mother of
Elpedio Mercado), 4 ECAB 357 (1951); see 5 U.S.C. § 8101(1).
5

Paul S. Devlin, 39 ECAB 715 (1988); Emmet L. Pickens, 33 ECAB 1807 (1982); Kathryn A. O’Donnell, 7 ECAB
227 (1954).
6

5 U.S.C. § 8122(a).

7

Section 8119 provides that a notice of injury or death shall be given within 30 days after the injury or death; be
given to the immediate superior of the employee by personal delivery or by depositing it in the mail properly
stamped and addressed; be in writing; state the name and address of the employee; state the year, month, day and
hour when and the particular locality where the injury or death occurred; state the cause and nature of the injury, or
in the case of death, the employment factors believed to be the cause; and be signed by and contain the address of
the individual giving the notice.
8

5 U.S.C. § 8122(b).

9

Charlene B. Fenton, 36 ECAB 151, 157 (1984); Gladys E. Olney, 32 ECAB 1643, 1645 (1982).

3

The time limitations in section 8122(a) and (b) do not (1) begin to run against a minor
until he reaches 21 years of age or has had a legal representative appointed, (2) run against an
incompetent individual while he is incompetent and has no duly appointed legal representative,
or (3) run against any individual whose failure to comply is excused by the Secretary on the
ground that such notice could not be given because of exceptional circumstances.10
ANALYSIS
Appellant claimed that he sustained an emotional condition due to various incidents
which occurred while he worked for the employing establishment during the Persian Gulf War in
1990 and 1991. By decision dated November 1, 2006, the Office denied his emotional condition
claim on the grounds that he did not establish any compensable employment factors. The Board
finds that appellant’s claim should be denied on the basis that he did not file a timely claim for
an employment-related emotional condition.
The evidence establishes that appellant was aware, or by the exercise of reasonable
diligence should have been aware, of the causal relationship between his employment and the
compensable disability as early as July 12, 1994. In his July 11, 2006 occupational disease claim
form, he alleged that he sustained an emotional condition, including post-traumatic stress
syndrome, while working for the employing establishment in the Middle East during the Persian
Gulf War in 1990 and 1991. In a July 12, 1994 statement, appellant claimed that while working
in Bahrain and Saudi Arabia he was exposed to missile raids every night. He asserted that in one
incident 24 soldiers were bombed close to where he was sleeping and that he saw six or more
wounded soldiers. Appellant indicated in his July 12, 1994 statement that he sustained several
stress-related psychiatric conditions due to these incidents, including post-traumatic stress
disorder, depression and panic disorder. His explicit linking of the above-noted employment
incidents with his development of several medical conditions shows that he knew as early as
July 12, 1994 of the possible relationship between these employment incidents and his claimed
medical conditions.
Moreover, appellant stated on his July 11, 2006 claim form that he first became aware of
the relationship of his claimed medical conditions to his employment on October 8, 2002. He
also submitted an October 8, 2002 report in which Dr. Pagan, an attending Board-certified
psychiatrist, stated that he sustained employment-related emotional conditions, including posttraumatic stress disorder, which began after he was “exposed to traumatic events while in the
Persian Gulf War.”

10

5 U.S.C. § 8122(d).

4

The totality of the factual circumstances of record establish that appellant was aware or
should have been aware as early as July 12, 1994 that his claimed injury was due to employment
factors.11 Appellant did not file his claim for an employment-related emotional condition until
July 11, 2006 and therefore he did not file his claim within the requisite three years of his
awareness of the possible relationship between the implicated employment incidents and the
claimed medical conditions. Even if it were determined that appellant was not aware of this
possible relationship until October 8, 2002, the filing of his claim on July 11, 2006 would not
have been timely.
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of the Act if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. He has not made any claim that he has satisfied either of these
provisions, nor does the record support a finding that he has satisfied either of them.12
Given the Board’s determination that appellant’s emotional condition claim was
untimely, it is not necessary to consider whether the Office properly denied his request for a
review of the written record by an Office hearing representative.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty because he did not file a timely
claim.

11

If appellant continued to be exposed to injurious working conditions after the date he became aware of a
possible employment-related cause of his claimed emotional condition, i.e., July 12, 1994 in the present case, the
time limitation would begin to run on the last date of this exposure. However, the employment incidents implicated
by appellant occurred in 1990 and 1991 and there is no indication that he continued to be exposed to injurious
working conditions after his awareness of a possible employment-related cause of his claimed emotional condition.
See supra note 9 and accompanying text.
12

There is no indication in the record that appellant provided the July 12, 1994 statement, or any other similar
statement, to his immediate superior such that he satisfied the provision of sections 8119 and 8122(a) of the Act. See
supra note 7 and accompanying text. The Office indicated that on October 5, 2002 appellant filed an occupational
disease claim for depression which was denied on January 27, 2003, but the Office did not provide any notable
discussion of this claim and it is not the subject of the present appeal.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 1, 2006 decision is affirmed as modified to reflect that appellant’s emotional
condition claim is denied because he did not file a timely claim.
Issued: November 15, 2007
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


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

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

Docket No. 21-0136
Issued: March 28, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 2, 2020 appellant filed a timely appeal from an October 8, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case. 3
1
On November 2, 2020 appellant also filed an appeal from a purported October 1, 2020 decision of OWCP.
However, the October 1, 2020 document is a proposed termination notice rather than a final decision of OWCP. The
only final adverse decision over which the Board may exercise jurisdiction is the October 8, 2020 merit decision. See
20 C.F.R. §§ 501.2(c) and 501.3.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 8, 2020 decision, appellant submitted additional evidence to OWCP
and on appeal to the Board. 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 f inal decision. Evidence not before
OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is
precluded from reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On April 24, 2013 appellant, then a 31-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that on April 14, 2013 she sustained an injury to her neck and back
area when she engaged in reaching and lifting duties while in the performance of duty.5 She
stopped work on April 22, 2013. OWCP accepted that appellant sustained aggravation of
preexisting cervical spondylosis and paid appellant wage-loss compensation for disability from
work commencing April 22, 2013 on the supplemental rolls and commencing December 15, 2013
on the periodic rolls.
On January 15, 2015 appellant filed a claim for compensation (Form CA-7) for a schedule
award due to her accepted April 14, 2013 employment injury. In support of her claim, she
submitted an October 28, 2014 report in which Dr. Jonathan Nissanoff, a Board-certified
orthopedic surgeon, determined that she had a 30 percent “combined whole person impairment
rating.”
By decision dated March 11, 2015, OWCP denied appellant’s claim for a schedule award.
By decision dated October 22, 2015, OWCP denied modification of the March 11, 2015
decision. On April 7, 2016 appellant requested reconsideration and submitted additional evidence.
By decision dated April 14, 2016, OWCP denied her request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

4

Docket No. 15-1437 (issued May 9, 2016).

5

Based on the description of injury, appellant’s claim was converted to an occupational disease claim (Form CA-2)
because the employment activities occurred over a period longer than one workday or shift. A traumatic injury refers
to injury caused by a specific event or incident or series of incidents occurring within a single workday or work shift,
whereas an occupational disease refers to an injury produced by employment over a period longer than a single workday
or shift. 20 C.F.R. §§ 10.5(q), (ee), respectively; R.V., Docket No. 18-1037 (issued March 26, 2019); Brady L. Fowler,
44 ECAB 343, 351 (1992).

2

Appellant also appealed to the Board and, by decision dated May 9, 2016, 6 the Board
affirmed the decision. 7
In a July 25, 2018 report, Dr. Kamshad Raiszadeh, a Board-certified orthopedic surgeon,
determined that appellant had zero percent permanent impairment of the upper extremities
stemming from the cervical spine. He noted that, although an electromyogram/nerve conduction
velocity (EMG/NCV) study suggested mild carpal tunnel syndrome and an ulnar condition, there
was no frank neurologic evidence of either condition upon which to rate a diagnosis-based
impairment. Dr. Raiszadeh referenced symptoms of pain in appellant’s wrists and found one
percent permanent impairment of each upper extremity due to the reported symptoms by utilizing
Table 15-2 (Wrist Regional Guide) on page 395 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).8
In an October 22, 2018 report, Dr. David M. Kupfer, a Board-certified orthopedic surgeon,
indicated that appellant had a history of bilateral carpal tunnel syndrome and left ulnar neuropathy.
A February 15, 2019 EMG/NCV study found no sensory or motor findings emanating from the
cervical spine. The study revealed mild findings in the ulnar and median nerves.
On April 17, 2019 OWCP referred appellant’s medical record to Dr. Herbert White, a
Board-certified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It
requested an opinion on permanent impairment utilizing The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
which is a supplemental publication of the sixth edition of the A.M.A., Guides. In an April 22,
2019 report, Dr. White discussed the diagnostic testing of record and opined that there was no
evidence of compression of the cervical spine. He concluded that, under The Guides Newsletter,
there was no spinal nerve root abnormality that would result in a ratable upper extremity
impairment.
On May 7, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and series of questions, for a second opinion examination and evaluation with Dr. Jon P.
Kelly, a Board-certified orthopedic surgeon. It requested an opinion on permanent impairment
utilizing The Guides Newsletter. In a July 17, 2019 report, Dr. Kelly discussed appellant’s factual
and medical history and reported the findings of the physical examination he conducted on that
date. He noted atypical and equivocal medical findings without regard to any true ulnar or carpal
tunnel condition. Dr. Kelly reported that appellant exhibited normal upper extremity sensory and
motor findings. 9 He indicated that she had subjective complaints of possible radicular symptoms
of the upper extremities, but advised that the diagnostic testing of record, including a magnetic
6

Supra note 4.

7

Appellant also appealed January 2 and 27 and June 8, 2015 merit decisions of OWCP, which the Board affirmed
in its May 9, 2016 decision, but the subject matters of these decisions are not currently before the Board.
8

A.M.A., Guides (6 th ed. 2009).

9

Dr. Kelly indicated that appellant had reached maximum medical improvement (MMI) by the date of his
examination.

3

resonance imaging (MRI) scan of the cervical spine, did not demonstrate evidence of neural
impingement. Dr. Kelly determined that, therefore, appellant did not have a ratable permanent
impairment of the upper extremities under the sixth edition of the A.M.A., Guides and The Guides
Newsletter.
On August 28, 2019 OWCP again referred appellant’s case to Dr. White in his capacity as
a DMA. In a September 10, 2019 report, Dr. White found that she did not have a ratable permanent
impairment of the upper extremities. He expressed his agreement with the conclusions of
Dr. Kelly.
By decision dated September 16, 2019, OWCP denied appellant’s schedule award claim,
finding that she did not meet her burden of proof to establish permanent impairment of a scheduled
member or function of the body.
On October 14, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. During the hearing, held on February 12, 2020, she
argued that she had permanent impairment of her upper extremities due to bilateral carpal tunnel
syndrome and a cubital tunnel condition.
Appellant submitted additional medical evidence, including September 19 and 30, 2019
reports from Dr. Kupfer who diagnosed cervical disc disorder with radiculopathy, history of
bilateral carpal tunnel syndrome, and left ulnar radiculopathy at the cubital tunnel with intermittent
ulnar nerve subluxation.
By decision dated April 28, 2020, OWCP’s hearing representative affirmed the
September 16, 2019 decision, finding that appellant failed to establish an upper extremity
impairment emanating from the cervical spine.
On July 10, 2020 appellant requested reconsideration of the April 28, 2020 decision.
Appellant submitted additional medical evidence, including May 19 and June 4, 2020
reports from Dr. Enass Rickards, a Board-certified orthopedic surgeon. In these reports,
Dr. Rickards diagnosed bilateral carpal tunnel syndrome and left ulnar nerve lesion. A June 1,
2020 EMG/NCV study showed a left ulnar neuropathy with conduction block between the elbow
and wrist.
On July 16, 2000 OWCP referred appellant, along with an updated SOAF and a series of
questions, for a second opinion examination and evaluation with Dr. William P. Curran, a Boardcertified orthopedic surgeon. It requested that he provide an opinion on whether she continued to
have residuals of her accepted April 22, 2013 employment injury.
In a September 1, 2020 report, Dr. Curran discussed appellant’s factual and medical history
and reported the findings of the physical examination he conducted on that date. He noted that the
cervical compression test he conducted was negative and that she did not exhibit spasms in her
cervical spine. The Phalen’s test was positive in both wrists. Dr. Curran diagnosed, inter alia,
cervical strain, and clinical and electrical evidence of left cubital tunnel syndrome. He opined that

4

the June 1, 2020 EMG/NCV study of appellant’s upper extremities was negative for bilateral
carpal tunnel syndrome and he found no objective findings of the accepted condition of cervical
spondylosis. Dr. Curran noted that the most recent cervical MRI scan, dated March 8, 2019, was
entirely within normal limits. He found evidence of a left cubital tunnel syndrome, which caused
numbness, tingling, and weakness of digits four and five of the left hand , but indicated that this
was a nonindustrial condition. Dr. Curran advised that appellant had reached MMI.
By decision dated October 8, 2020, OWCP denied modification of the April 28, 2020
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA 10 and its implementing regulations11 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants. 12 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 13
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 14 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 15 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, which is a
supplemental publication of the sixth edition of the A.M.A., Guides. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. The appropriate tables for rating spinal nerve
extremity impairment are incorporated in the Federal (FECA) Procedure Manual. 16

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
14

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
15

Supra note 13 at Chapter 2.808.5c(3) (March 2017).

16

Supra note 13 at Chapter 3.700, Exhibit 4 (January 2010).

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In his July 17, 2019 report, Dr. Kelly discussed appellant’s factual and medical history and
reported the findings of the physical examination he conducted on that date. He noted atypical
and equivocal medical findings without regard to any true ulnar o r carpal tunnel condition.
Dr. Kelly reported that appellant exhibited normal upper extremity sensory and motor findings.
He indicated that she had subjective complaints of possible radicular symptoms of the upper
extremities, but advised that the diagnostic testing of record, including an MRI scan of the cervical
spine, did not demonstrate evidence of neural impingement. Dr. Kelly determined that, therefore,
appellant did not have a ratable permanent impairment of the upper extremities under the sixth
edition of the A.M.A., Guides. Moreover, Dr. White, a DMA, found in a September 10, 2019
report that she did not have a ratable permanent impairment of the upper extremities. Dr. White
expressed his agreement with the conclusions of Dr. Kelly.17
Appellant has not submitted probative medical evidence establishing ratable permanent
impairment of the upper extremities. The Board has held that an opinion on permanent impairment
is of little probative value if it is not derived in accordance with the standards adopted by OWCP
and approved by the Board as appropriate for evaluating schedule losses. 18
Appellant submitted a July 25, 2018 report from Dr. Raiszadeh who referenced symptoms
of pain in her wrists and found one percent permanent impairment of each upper extremity due to
the reported symptoms by utilizing Table 15-2 on page 395 of the sixth edition of the A.M.A.,
Guides.19 However, OWCP has not accepted an employment-related wrist condition. Moreover,
Dr. Raiszadeh’s report is of little probative value because he has not adequately explained how the
employment-related conditions resulted in a ratable impairment under the A.M.A., Guides.20 In
addition, he acknowledged in the same report that appellant had zero percent permanent
impairment of the upper extremities stemming from her cervical spine. Dr. Raiszadeh also noted
that, although an EMG/NCV study suggested mild carpal tunnel syndrome and an ulnar co ndition,
there was no frank neurologic evidence of either condition upon which to rate a diagnosis -based
impairment. The Board notes that neither of these conditions has been accepted by OWCP.
The Board finds that OWCP properly relied on the opinion of Dr. Kelly, an OWCP referral
physician, in denying appellant’s schedule award claim. Dr. Kelly’s comprehensive and well-

17
The Board notes that Dr. Curran, an OWCP referral physician, indicated in a September 1, 2020 report that he
found no objective findings of the accepted condition of cervical spondylosis. OWCP did not ask him to comment on
permanent impairment.
18

See N.A., Docket No. 19-0248 (issued May 17, 2019); James Kennedy, Jr., 40 ECAB 620, 626 (1989).

19

A.M.A., Guides (6 th ed. 2009).

20

See supra note 19.

6

rationalized July 17, 2019 report constitutes the most recent assessment of her upper extremity
impairment and represents the weight of the medical evidence with respect to the matter.
Appellant may request a schedule award at any time 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 not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0784
Issued: July 27, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 24, 2015 appellant, through counsel, filed a timely appeal from a
November 14, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 14, 2014 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of total
disability on November 28, 2011 and January 11 and 31, 2012 causally related to her August 27,
2010 employment injury.
On appeal, counsel contends that the employing establishment changed the nature and
extent of appellant’s light-duty job requirements and, therefore, she sustained recurrences of total
disability on November 28, 2011 and January 11 and 31, 2012.
FACTUAL HISTORY
On September 10, 2010 appellant, then a 43-year-old letter carrier, filed a traumatic
injury claim (Form CA-1) alleging neck and shoulder injuries on August 27, 2010 as a result of
closing mailboxes. She stopped work on August 31, 2010. OWCP accepted the claim for sprain
of neck and right shoulder sprain and authorized physical therapy.4
On December 15, 2011 appellant, through counsel, filed a claim for a recurrence (Form
CA-2a) commencing November 28, 2011. She returned to work on December 2, 2011.
Appellant indicated that she had an indefinite restriction from a prior injury, under OWCP File
No. xxxxxx029,5 but was told that she had no restrictions on file and was required to work full
duty when she returned to work on November 28, 2011. The employing establishment stated
that her “only restriction [was a] 30[-] pound weight restriction, which [was] full duty of position
for carriers in her unit.” OWCP noted that there were “[i]nsufficient medical[s] to satisfy
absence or additional restrictions.”
In reports dated August 16 through December 9, 2011, Dr. Thomas Helbig, a Boardcertified orthopedic surgeon, diagnosed herniated disc at C6-7 and opined that appellant’s
cervical condition was causally related to her August 27, 2010 employment injury. He indicated
that she was unable to work due to her herniated cervical disc and could not work on
November 29 and 30, 2011. Thereafter, until December 9, 2011, Dr. Helbig restricted appellant
to no lifting over 10 pounds continuously, and 15 pounds intermittently.
In a December 16, 2011 letter, OWCP notified appellant of the deficiencies of her claim
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a January 10, 2012 work excuse note from Dr. Helbig, indicating
that she was able to work that day with the restriction of no delivery.

4

Appellant received continuation of pay from August 31 to October 14, 2010. She received wage-loss
compensation for total disability from October 15, 2010 to April 16, 2011. She returned to part-time full-duty work
on April 18, 2011 and received wage-loss compensation for the hours she did not work from that date through
November 18, 2011.
5

The record reveals that OWCP had accepted this claim for a sprain of the right shoulder and upper arm and a
cervical intervertebral disc displacement without myelopathy. Claim number xxxxxx029 is not presently before the
Board.

2

By decision dated January 18, 2012, OWCP denied appellant’s recurrence claim, as the
medical evidence submitted was insufficient to establish a recurrence of disability commencing
November 28, 2011 causally related to the August 27, 2010 employment injury.
On January 25, 2012 appellant, through counsel, requested reconsideration and submitted
a January 24, 2012 duty status report from Dr. Helbig indicating that appellant was restricted to
lifting 20 pounds continuously and 10 pounds intermittently for four hours a day. On
January 31, 2012 Dr. Helbig stated that appellant had been seen for a cervical disc herniation at
C6-7 and a cervical sprain and indicated that she had been asked by her supervisor to perform
duties that were beyond her restrictions.
Appellant, through counsel, filed a second notice of recurrence on February 14, 2012.
She indicated that on January 11, 2012 she was sent home and told there was no work for her.
On the claim form, the employing establishment stated that appellant had been working full duty
with a permanent 30-pound weight restriction.
On February 16, 2012 appellant, through counsel, filed a third notice of recurrence. She
indicated that on January 31, 2012 she was told there was no job offer for her at the time. The
employing establishment noted that she had a “permanent restriction of 30 pounds lifting for
another injury,” which was considered full duty in her current position.
In a February 27, 2012 letter, OWCP notified appellant of the deficiencies of her claims
and afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a February 21, 2012 report from Dr. Helbig who reiterated his
diagnosis and indicated that she continued to have a lot of neck pain.
By decision dated April 10, 2012, OWCP denied modification of its January 18, 2012
decision. It found that the medical evidence submitted was insufficient to establish that appellant
sustained a recurrence of disability commencing November 28, 2011 causally related to the
August 27, 2010 employment injury.
In a second decision also dated April 10, 2012, OWCP denied appellant’s additional
recurrence claims of January 11 and 31, 2012 as the medical evidence submitted was insufficient
to establish that she sustained a recurrence of disability commencing on those dates causally
related to the August 27, 2010 employment injury. It explained that the evidence of record
neither established a change in the nature or extent of her employment-related injury, nor a
change in the nature and extent of her light-duty position.
On November 20, 2012 appellant, through counsel, requested reconsideration of both
OWCP decisions, and submitted progress reports dated May 12, 2011 through September 27,
2012 from Dr. Helbig. She also submitted reports dated April 4 through October 24, 2012 from
Dr. David Conyack, a Board-certified anesthesiologist, who diagnosed cervical radiculopathy
secondary to C4-7 herniated disc, cervical myofascial dysfunction of the cervical paraspinous
muscles, and myofascial spasm of the bilateral trapezius muscles.
The employing establishment attached a job offer as a modified carrier technician which
appellant had accepted on January 26, 2012. The duties included casing mail up to four hours a
3

day with the following restrictions: standing and reaching at, above, or over the shoulder up to
four hours a day; lifting up to 10 pounds intermittently up to four hours a day.
By decision dated February 14, 2013, OWCP denied modification of its prior decisions,
finding that the evidence submitted in support of the three recurrence claims did not show a
change in the nature and extent of the injury-related condition or change in the nature and extent
of the limited-duty job requirements.
On March 5, 2013 appellant, through counsel, requested reconsideration and submitted
progress reports dated February 14 through May 14, 2013 from Dr. Helbig. She also submitted a
position description indicating that the duties and requirements of a letter carrier included lifting
up to 10 pounds continuously and 70 pounds intermittently.
By decision dated June 7, 2013, OWCP denied modification of its February 14, 2013
decision.
On October 24, 2013 counsel again requested reconsideration and submitted progress
reports dated July 16 through September 10, 2013 from Dr. Helbig reiterating prior diagnoses
and findings.
By decision dated December 23, 2013, OWCP denied modification of its June 7, 2013
decision.
On January 7, 2014 appellant, through counsel, again requested reconsideration and
submitted reports dated January 2 through September 30, 2014 from Dr. Helbig who indicated
that the cervical spine was tender in the right parascapular and trapezial muscles. Appellant
further submitted a July 15, 2014 magnetic resonance imaging (MRI) scan of the cervical spine,
requested by Dr. Conyack, which showed disc ridging and foraminal narrowing.
By decision dated November 14, 2014, OWCP denied modification of its prior decision.
It found that the evidence of record was insufficient to establish either that appellant was
working limited duty at the time of the claimed recurrences, that there was a worsening of her
employment-related condition, or that there was a withdrawal of a limited-duty offer.
LEGAL PRECEDENT
A 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 has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.6 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 (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical

6

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

4

requirements of such an assignment are altered so that they exceed his or her established physical
limitations.7
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-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 to show that he or she cannot perform such limited-duty work. As part of
this burden, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.8 This burden
includes the necessity of furnishing evidence from a qualified physician who concludes, on the
basis of a complete and accurate factual and medical history, that the disabling condition is
causally related to the employment injury. The medical evidence must demonstrate that the
claimed recurrence was caused, precipitated, accelerated or aggravated by the accepted injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence
of total disability causally related to her August 27, 2010 employment injury.
OWCP accepted that appellant sustained a neck and right shoulder sprain on August 27,
2010 in the performance of duty. Appellant filed three recurrence claims. On appeal, counsel
contends that the employing establishment changed the nature and extent of appellant’s lightduty job requirements (essentially placing her in a position which exceeded her lifting
restrictions) and, therefore, she sustained a recurrence commencing November 28, 2011 and
January 11 and 31, 2012. Appellant has the burden to provide medical evidence sufficient to
establish that she was totally disabled due to a change in her job duties such that she was unable
to perform her light-duty work.
On the recurrence claim forms, the employing establishment stated that appellant’s only
restriction was a 30-pound lifting restriction for a prior injury and explained that she was
7

Id.

8

See A.M., Docket No. 09-1895 (issued April 23, 2010).

9

See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (January 2013).
10

See I.R., Docket No. 09-1229 (issued February 24, 2010).

11

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

5

considered full duty in her carrier position even with the weight restriction as a 30-pound
restriction was considered full duty for carriers. Appellant later accepted a modified carrier
technician position on January 26, 2012 with restrictions on lifting no more than 10 pounds
intermittently up to four hours a day. On April 10, 2013 the employing establishment indicated
that it complied with appellant’s restrictions and accommodated her.
Appellant alleged that her recurrence of total disability was caused by an inability to
perform her light-duty job requirements. However, the record shows that on January 24, 2012
appellant’s attending physician, Dr. Helbig, found that she could perform light-duty work within
the restriction of lifting 20 pounds continuously and 10 pounds intermittently for four hours a
day. Appellant did not submit sufficient medical evidence to establish that her assigned duties
had changed such that she was not medically able to perform them. She did not submit adequate
medical evidence to support that her assigned duties exceeded her medical limitations or that she
otherwise had a spontaneous change in her accepted condition in the present claim. On
January 31, 2012 Dr. Helbig noted that appellant had been asked by her supervisor to perform
duties that were beyond her restrictions. However, he failed to provide a rationalized medical
opinion explaining how appellant’s assigned duties exceeded her physical limitations or caused
or aggravated her accepted conditions. The Board finds that the evidence of record is
insufficient to establish that appellant’s light-duty job requirements changed such that the job
requirements were no longer within the restrictions provided by Dr. Helbig and appellant was
unable to perform her position.12
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence
of total disability causally related to her August 27, 2010 employment injury.

12

See J.F., 58 ECAB 124 (2006); see also Terry R. Hedman, 38 ECAB 222 (1986).

6

ORDER
IT IS HEREBY ORDERED THAT the November 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.13
Issued: July 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

13

James A. Haynes, Alternate Judge participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7