United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 18-1113
Issued: February 21, 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 May 10, 2018 appellant filed a timely appeal from an April 24, 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.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On June 15, 2015 appellant, then a 63-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that, on April 20, 2015, she first became aware that her stress,
depression, and anxiety were related to continued harassment from her supervisors regarding work
restrictions. She alleged that the work stress caused additional conditions including irritable bowel
1

5 U.S.C. § 8101 et seq.

syndrome, hypertension and breathing problems for which she had been hospitalized from April 5
to 20, 2015. The employing establishment indicated that appellant returned to work following a
prior injury under medical restrictions, but worked four hours a day even though eight hours of
work was available.2
In support of her claim, appellant submitted work excuse notes dated April 10, 2015 from
Dr. Gregory Blair, a Board-certified internist. Dr. Blair indicated that appellant was hospitalized
from April 5 to 10, 2015. He released her to light-duty work “due to medical reasons.”
By development letter dated July 2, 2015, OWCP notified appellant that additional
evidence was necessary to establish her emotional condition claim. This included factual evidence
corroborating any workplace incidents and a report from her attending psychiatrist or clinical
psychologist diagnosing a condition attributable to those incidents. OWCP afforded appellant 30
days to submit the necessary evidence.
In a July 13, 2015 supplemental statement, appellant indicated that, on April 5, 2015, she
was admitted to the hospital for breathing problems associated with stress and anxiety. She denied
stress outside the workplace. Appellant noted that her accepted physical conditions had not
improved and that her supervisor harassed her because her medical restrictions had increased.3
In a July 3, 2015 Equal Employment Opportunity (EEO) complaint, appellant identified
supervisor L.W., manager R.D., and Injury Compensation Specialist, T.W., as individuals who
discriminated against her based on sex and her disability due to back and neck problems which
resulted from her letter carrier duties for 24 years. She alleged that she was abused and
discriminated against and ordered to violate her work restrictions. Appellant further alleged that
she was told she was “too slow” and had been threatened with discipline for not meeting projected
times. She also alleged that she was notified that she could not claim her lost time with OWCP.
In an undated statement, appellant indicated that her supervisor had refused her July 6,
2015 request for extra time to complete her assigned route. She also noted that OWCP had denied
authorization for further physical therapy for her accepted back and neck conditions, which made
her movement more restrictive and affected her assigned duties. A copy of OWCP’s April 16,
2015 denial of authorization for further physical therapy under OWCP File No. xxxxxx474 was
submitted.
In a July 8, 2015 request for reasonable accommodation form, appellant requested
accommodation for neck sprain, sprain of lumbosacral joint, displacement of cervical
intervertebral disc without myelopathy, thoracic or lumbosacral neuritis and mental anguish, stress

2
The record reflects that appellant had several prior OWCP claims. Under OWCP File No. xxxxxx474, OWCP
accepted an October 2, 2007 injury for neck sprain, sprain of lumbosacral (joint) (ligament), displacement of cervical
intervertebral disc without myelopathy, and thoracic or lumbosacral neuritis or radiculitis. Under OWCP File No.
xxxxxx561, it accepted a December 31, 2013 injury for sprain of back, lumbar region and sprain of back, thoracic
region. OWCP File No. xxxxxx561 has been combined with OWCP File No. xxxxxx474 serving as the master file.
3
Evidence submitted from OWCP File No. xxxxxx561 indicates that appellant has permanent work restrictions
due to a lumbar strain. In a May 8, 2015 letter, OWCP noted that appellant refused or failed to report to a city carrier
position that it found suitable in accordance with her January 28, 2015 medical limitations.

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and depression from harassment. She alleged difficulty with performing her position because she
was constantly told to work faster and to work beyond her restrictions.
In other statements, requests for reasonable accommodation, and grievance forms,
appellant alleged that she could not perform her job without accommodation because she needed
to compose herself to relieve the stress caused by her supervisors. She also indicated that she
should not be driving due to her back injury. Appellant concluded that she and her coworkers
were subjected to disparaging treatment by management because of their medical limitations.
A statement signed by appellant and several coworkers indicated that the workplace
environment was strained under the current management. They attested that “carriers with medical
limitations” were targeted and subjected to a higher level of scrutiny than the other carriers.
The employing establishment submitted a July 20, 2015 statement denying appellant’s
allegations. A human resources specialist noted that this claim arose after appellant was offered
an eight-hour modified position and that OWCP had denied additional physical therapy under File
No. xxxxxx561. The specialist concluded that appellant had breathing problems prior to the
April 5, 2015 hospitalization, which was for exacerbation of chronic obstructive pulmonary
disorder (COPD).
Medical reports from Dr. Shawn A. Khavari, a Board-certified psychiatrist, dated April 20,
2015 through August 11, 2015 were submitted. Dr. Khavari diagnosed depression, anxiety
disorder, and insomnia associated with anxiety. He noted that appellant reported work was
stressful. Dr. Khavari also noted that she was hospitalized in April 2015 for pneumonia, that she
had a neck injury in 2007 and back injury in 2013, and other medical conditions. In a January 16,
2016 note, he indicated that appellant’s depression and anxiety symptoms had exacerbated her
COPD and irritable bowel symptoms.
In a February 16, 2016 report, Dr. Gregory L. Blair, an internist, noted that appellant had
a stressful job, which might be playing a role in her breathing problems and recurrent pneumonia.
He indicated that her stressful job played a role in her recurrent problems with chest pain and in
controlling her blood pressure.
In an August 3, 2015 statement, appellant indicated that many employees at the workplace
had witnessed management’s harassment and hostility. She indicated that the supervisors admitted
that there was a violation of the union contract and, as a result, she had received minor
compensation associated with that violation. Appellant alleged that the harassment from her
supervisors continued, as did the mental anguish and stress related to such harassment.
A September 2, 2015 letter from the employing establishment indicated that it had denied
appellant’s reasonable accommodation request due to the severely restrictive nature of her
restrictions.
By decision dated December 21, 2015, OWCP denied appellant’s claim for an emotional
condition, as the evidence of record was insufficient to establish that there were compensable
factors of employment. It noted that the evidence revealed that appellant’s condition arose because
of noncompensable factors of employment and/or unsubstantiated allegations.

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On January 15, 2016 appellant requested reconsideration. In a January 19, 2016 letter, she
argued that since neither the employing establishment nor OWCP had provided any evidence to
contradict her claims, her claim should be accepted as factual.
Notes from appellant dated March 7 and 8, 2016 concerned a March 7, 2016 job offer. In
the March 7, 2016 note, appellant alleged that manager R.D. informed her that she had to respond
to the job offer that day, without the consent of her doctor or attorney. She alleged that she felt
coerced due to the required immediate response. The following day, March 8, 2016, appellant met
with R.D. She alleged that he would not give her a copy of the job offer unless she signed it.
Appellant indicated that, out of frustration and previous encounters with R.D., she refused the job
offer as there was no time to review it. A copy of the March 7, 2016 offer of modified assignment
under OWCP File No. xxxxxx561, noted that appellant had refused the position on March 8, 2016
with the caveat that she could review the job offer with legal counsel and her doctors.
In a January 19, 2016 report, Dr. Khavari indicated that appellant had been diagnosed with
depression and anxiety. He indicated that her depression and anxiety had impaired her function
and ability to work. In November 5, 2015 and in March 23, April 12 and 19, 2016 work capacity
evaluations for psychiatric/psychological conditions (OWCP-5a forms), Dr. Khavari indicated that
appellant could not work due to depression and anxiety.
By decision dated June 20, 2016, OWCP denied modification of the December 21, 2015
denial of appellant’s emotional condition claim. It found that appellant had not submitted new
factual evidence to substantiate any allegation of wrong doing on the part of the employing
establishment, nor had she identified any compensable factors of employment.
Appellant continued to submit additional medical evidence.
On April 28, 2017 appellant requested reconsideration. In an April 4, 2017 letter, she
expressed frustration with OWCP over a change in claims examiners. Appellant also requested
that OWCP review and investigate findings in OWCP File Nos. xxxxxx474 and xxxxxx561.
Medical evidence was submitted.
By decision dated April 24, 2018, OWCP denied modification of its June 20, 2016
decision. It found that appellant had not submitted evidence of a hostile work environment or
disparity of treatment. Additionally, there was no evidence of error or abuse on the part of the
employing establishment and she had not identified any compensable factors of employment.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.4

4

See M.R., Docket No. 18-0305 (issued October 18, 2018); George H. Clark, 56 ECAB 162 (2004).

4

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,5 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.6
When an employee experiences emotional stress in carrying out his or her employment duties, and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.7 Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.8 Where the claimant alleges compensable factors of employment,
he or she must substantiate such allegations with probative and reliable evidence.9 Personal
perceptions alone are insufficient to establish an employment-related emotional condition.10 On
the other hand the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or his or her frustration from not being permitted to work in a particular
environment or to hold a particular position.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.12 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.13
In determining whether the employing establishment erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.14

5

28 ECAB 125 (1976).

6

See Robert W. Johns, 51 ECAB 137 (1999).

7

Supra note 3.

8

J.F., 59 ECAB 331 (2008).

9

M.D., 59 ECAB 211 (2007).

10

Roger Williams, 52 ECAB 468 (2001).

11

See P.B., Docket No. 17-1912 (issued December 28, 2018).

12
See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
13

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

14

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

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For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.15
Mere perceptions of harassment, retaliation or discrimination are not compensable under FECA.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty.
Appellant has attributed her emotional condition to the inability to perform her regular or
specially assigned duties. The record indicates that she has neck and back conditions from
previously accepted work-related injuries and that OWCP had denied additional authorization for
physical therapy for her accepted conditions under File No. xxxxxx561. Appellant alleged that
the denial of authorization for physical therapy affected her job performance as it restricted her
physical abilities. The employing establishment indicated that it had offered appellant an eighthour modified position under OWCP File No. xxxxxx561. The Board finds that appellant did not
submit the necessary evidence to establish the duties she was allegedly required to perform, which
overwhelmed her, and caused her stress. 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. Appellant
must establish a basis in fact for the claim by supporting her allegations with probative and reliable
evidence.17 She disagreed with her medical restrictions under File No. xxxxxx561 and that
management had offered her a modified position consistent with her medical restrictions under
that prior claim. Appellant has not, however, established that she was in fact forced to work outside
of her restrictions or that she was targeted in any specific way because she had medical restrictions.
The Board therefore finds that appellant has not established that her emotional condition arose
from her regular or specially assigned duties of her position to constitute a compensable factor of
employment under Cutler.18
Appellant also made several allegations related to administrative and personnel actions on
the part of her supervisors. The incidents identified by appellant include management’s comments
and directives of being ordered to violate her work restrictions, being told that she was too slow,
threats of discipline, the handling of her requests for extra time and reasonable accommodation,
and being pressured to immediately accept the March 7, 2016 job offer.
As a general rule, a claimant’s reaction to administrative or personnel matters falls outside
the scope of FECA.19 Absent evidence establishing error or abuse, a claimant’s disagreement or
15

Marlon Vera, 54 ECAB 834 (2003).

16

Kim Nguyen, 53 ECAB 127 (2001).

17

See J.Q., Docket No. 17-1276 (issued December 27, 2017).

18

A.L., Docket No. 17-0368 (issued June 20, 2018); see Y.J., Docket No. 15-1137 (issued October 4, 2016)
(claimant did not provide the requisite detail regarding specific dates and the duties she performed, which allegedly
overwhelmed her, to establish that her assigned work caused her stress).
19

Carolyn S. Philpott, 51 ECAB 175 (1999).

6

dislike of such a managerial action is not a compensable factor of employment.20 The alleged
comments and directives of management, of which there is no corroborating evidence, and the
handling of her requests for extra time, reasonable accommodations, and the March 7, 2016 job
offer are administrative functions of the employer, and not duties of the employee.21 Appellant
has not established a compensable factor of employment as she has not submitted corroborating
evidence of error or abuse in these administrative and personnel matters.22
While appellant submitted a signed statement from her coworkers attesting that carriers
with medical limitations, including appellant, were targeted and subjected to higher levels of
scrutiny than other carriers, this general statement is insufficient to establish that appellant was
subjected to a higher level of scrutiny by management. There were no specific dates or times
provided which indicated that appellant was in fact scrutinized by management due to her medical
restrictions.23 The Board has held that an employee’s dissatisfaction with perceived poor
management constitutes frustration from not being permitted to work in a particular environment
or to hold a particular position and is not compensable under FECA.24
Appellant has alleged frustration with OWCP with regards to her other claims led to stress.
The Board notes that matters related to the processing of compensation claims bear no relation to
day-to-day or specially assigned duties and are an administrative function of the employer and not
a duty of the employee.25
Appellant has further attributed her emotional condition to discrimination, harassment, and
a hostile work environment by management. However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment did in fact occur as
alleged. Mere perceptions of harassment are not compensable under FECA.26 Appellant alleged
in her August 3, 2015 statement that the supervisors admitted that there was a violation of Articles
15, 19, and 21 and, as a result, she had received minor compensation associated with that violation.
However, the record is devoid of any evidence pertaining to what the alleged violations were and
statements from the supervisors attesting to the fact that such violations happened. Appellant,
therefore, has not established, with probative and reliable evidence, that her allegations of
harassment or discrimination occurred as alleged.27

20

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

21

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
22

Id.

23

See A.L., supra note 18.

24

Michael Thomas Plante, 44 ECAB 510, 515 (1993).

25

See D.P., Docket No. 10-1375 (issued March 24, 2011); David C. Lindsey, Jr., 56 ECAB 268 (2005).

26

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (a claimant must
substantiate allegations of harassment or discrimination with probative and reliable evidence).
27
See S.W., Docket No. 17-1016 (issued September 19, 2018); see G.S., Docket No. 09-0764 (issued
December 18, 2009).

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Consequently, appellant has not established her claim for an emotional condition as she
has not attributed her claimed condition to any compensable employment factors. The Board
therefore does not need to consider the medical evidence of record.28
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 emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 21, 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

28

See S.W., id.; A.K., 58 ECAB 119 (2006); Katherine A. Berg, 54 ECAB 262 (2002).

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

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

Docket No. 11-200
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On October 27, 2010 appellant filed a timely appeal from a July 22, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) which denied her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On February 9, 2010 appellant, then a 46-year-old supervisory production aircraft
controller, filed an emotional condition claim alleging that on January 8, 2010 she suffered
1

5 U.S.C. § 8101 et seq.

emotional stress, anxiety and anxiety-migraine headaches as a result of receiving a notice of
proposed removal. She stopped work on January 9, 2010. The employing establishment
controverted appellant’s claim.
By letter dated February 25, 2010, OWCP requested that the employing establishment
respond to appellant’s allegations. It asked that a knowledgeable supervisor comment on the
accuracy of appellant’s statements regarding her claim, discuss whether aspects of her job could
be perceived as stressful, describe her position and physical requirements, and address whether
she was generally able to perform the duties in accordance with expectations.
In a February 22, 2009 letter, the employing establishment stated that appellant did not
provide sufficient medical evidence supporting her claim for anxiety-migraine headaches, attack
and emotional stress. It also contended that she alleged administrative and personnel matters,
rather than regular or specially assigned work duties, that were not compensable factors under
FECA. The employing establishment contended that appellant’s claim was a result of fear of
removal from employment and that she did not sustain an injury in the performance of her duties.
It provided a statement from Sue Scarlett, a human resource specialist, a position description,
and the January 8, 2010 proposed removal letter.
In a February 17, 2010 statement, Ms. Scarlett reported that on December 10, 2009,
January 8 and February 4, 2010 she was present in Dennis Williamson’s office when he
conducted an informational inquiry with appellant, and when he showed her the proposed letter
of removal. Appellant appeared very composed, interacted appropriately and spoke in a normal
tone of voice. Her speech was cogent and articulate and her demeanor was calm, controlled and
rational. Ms. Scarlett also attended the February 4, 2010 reply meeting. Appellant appeared
very professional, collected and composed.
By letter dated February 25, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and requested additional information. It requested a
detailed description of the employment-related conditions or incidents that she believed
contributed to her illness, of the sources of stress outside of her employment and of the
development of her claimed condition. It also requested additional medical evidence, which
included medical records from all prior treatment and a comprehensive medical report from
appellant’s treating physician, which described her symptoms, results of examinations and tests,
a firm diagnosis, treatment provided, the effect of treatment and a physician’s opinion, with
stated medical rationale, regarding whether her employment caused or contributed to her
condition.
In a March 22, 2010 statement, appellant reported that on December 10, 2009 she was
called into the office of Mr. Williamson and informed that she was under investigation for
allegations of nepotism involving her half sisters. On January 8, 2010 she received a proposed
removal letter from Mr. Williamson and she claimed she began experiencing an anxiety attack.
Appellant requested leave for the rest of the day. On January 11, 2010 she sought medical
treatment for her migraines, headaches, insomnia, nervousness, shaky hands and continuous
anxiety attacks. Appellant stated that being removed from federal employment after 29½ years
of dedicated and loyal service was detrimental to her health. She had worked at the employing
establishment over half of her life and the thought of losing her job was detrimental to herself

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and her family. Appellant further explained that the working conditions of attending daily high
level meetings, working long hours and her dedication to her mission and goals were also
detrimental to her health. She reported no stress outside of her federal employment and no
experience with any situations in her personal or family life.
Appellant stated that she first noticed her illness on January 8, 2010 when she had a
meeting in Mr. Williamson’s office and received a proposed removal letter. Her condition
worsened throughout the days, weeks and months, especially when she was contacted by the
employing establishment or received notices, letters and requests for additional information.
Appellant denied any prior emotional condition, was never treated by a psychiatrist or
psychologist or hospitalized for an emotional condition prior to this incident.
In medical notes dated January 22 and February 11, 2010, Dr. John E. Schulze, a Boardcertified family practitioner, confirmed that appellant was his patient. He excused her from work
for the period January 11 to March 13, 2010 due to her condition.
In an April 12, 2010 decision, OWCP denied appellant’s emotional condition claim
finding the grounds that the evidence did not demonstrate that she sustained an emotional
condition in the performance of duty. It found that she did not establish any compensable work
factors.
On April 23, 2010 appellant submitted a request for reconsideration contending that the
evidence she provided was not properly received by OWCP. She related that a January 8, 2010
work incident caused her extreme stress. Appellant reiterated that she had never experienced this
type of medical problem prior to the January 8, 2010 employment incident. She resubmitted her
March 22, 2010 personal statement and work excuse slips.
In a March 3, 2010 report, Dr. Schluze stated that appellant had been under significant
stress at work, which resulted in her inability to perform her duties in the workplace. Appellant
was prescribed medication to allow her to function at home and for insomnia since the onset of
her problems at work.
In an April 19, 2010 report, Dr. Schulze provided a history of appellant’s medical
treatment at his office. On January 11, 2010 he first examined her for headaches, vertigo, and
nausea in response to problems at work, specifically that she was implicated in nepotism in her
workplace. Appellant described feelings of betrayal by her employing establishment after many
years of employment. Dr. Schulze observed that she appeared anxious and tense, unlike her
previous visits and that her blood pressure was elevated. He prescribed medication for
musculoskeletal headaches and anxiety. On January 26, 2010 appellant was again seen in
Dr. Schulze office for complaints of anxiety and an inability to sleep. She obsessed about her
years of service and the sense of shame and humility she felt at the allegations of nepotism levied
against her. Appellant also expressed concern that her coworkers were talking about her and that
she was ashamed to appear to have acted inappropriately in her employment. Her blood pressure
was elevated and she appeared disheveled. On February 11, 2010 Dr. Schluze noted that the
hypnotic agents were ineffective in abating her insomnia. Appellant expressed an inability to
return to work because she feared her coworkers would talk about her.

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On March 11, 2010 Dr. Schluze observed that appellant’s blood pressure was at a
significant level of risk, her insomnia had worsened, and she was reclusive to the point of
avoiding family and friends. Appellant had begun to lose weight and became more reclusive
since her last visit. When asked if she would harm herself, she responded that her husband
needed her help because his health was also failing. Appellant again expressed embarrassment
that her coworkers viewed her as acting inappropriately, which prevented her from returning to
work.
On April 7, 2010 Dr. Schluze examined appellant and observed that she had lost more
weight and demonstrated lassitude. Appellant did, however, have good control of her blood
pressure with medication. She had given up hope of clearing her name and resolved to leave her
employing establishment. Appellant explained that she could not return to work in a demoted
position due to the indignation she would experience in that demoted position. Dr. Schluze did
not expect that she would recover from being victimized and having her work history tarnished.
He reported that this phenomenon was well documented in psychiatric journals and studies
where workers were fired or demoted after years of employment and service to a company,
which left them with a lifelong feeling of worthlessness and betrayal. Dr. Schluze concluded
that appellant demonstrated anxiety, depression, insomnia and anorexia in direct response to
actions taken against her by her employing establishment during her tour-of-duty.
In a letter dated May 7, 2010, OWCP requested any additional information from the
employing establishment regarding appellant’s claim.
In a May 27, 2010 letter, the employing establishment responded that appellant signed a
last chance agreement which stated that she would be changed from a supervisory position to a
lower grade nonsupervisory position. It accommodated her despite equivocal medical
documentation. The employing establishment also pointed out that Dr. Larry Grabhorn, the
employing establishment’s occupational health physician, reviewed Dr. Schluze’s April 19, 2010
medical report and concluded that there was no well-documented reason for why appellant could
not return to work. It pointed out that appellant’s elevated blood pressure had been effectively
controlled by medication. The employing establishment also noted that the only reason for why
she did not return to work was the fact that she felt ashamed in being demoted.
By decision dated July 22, 2010, OWCP denied modification of appellant’s claim,
finding that she failed to establish that she sustained an emotional condition as alleged. It found
that the claimed notice of removal and demotion to a lower grade were personnel and
administrative matters, which were not compensable employment factors.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to her
employment, appellant must submit:
(1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric

4

disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.2
Workers compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. These are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.3 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of reduction-inforce or his frustration from not being permitted to work in a particular environment or to hold a
particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.5 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative function, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
ANALYSIS
Appellant alleged that she suffered emotional stress, anxiety and migraines commencing
on January 8, 2010. She attributed her emotional condition to being informed that she was under
investigation on December 10, 2009 for nepotism and receiving a notice of proposed removal on
January 8, 2010. The Board finds that she did not establish a compensable factor of
employment.
Appellant did not attribute her emotional condition to her regular employment duties
under Cutler.8 She indicated that she had a long and successful career at the employing
establishment, which she did not want to end. Instead, appellant attributed her condition to two
meetings with management at which she was informed that she was under investigation for
2

K.W., 59 ECAB 271 (2007); Kathleen D. Walker, 42 ECAB 603 (1991).

3

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

4

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

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); M.C., Docket No. 10-1628 (issued June 8, 2011).

6

See William H. Fortner, 49 ECAB 324 (1998). See also Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
7

M.D., 59 ECAB 211 (2007); Ruth S. Johnson, 46 ECAB 237 (1994).

8

Cutler, supra note 3.

5

nepotism and showing favoritism to her half sisters, and at which she was given a proposed
removal letter for these actions. In a February 17, 2010 statement, the employing establishment
confirmed that she met with Mr. Williamson on December 10, 2009 and January 8, 2010.
Appellant was advised that she was under investigation and given a proposed letter of removal.
The Board notes that her allegations pertain to the administrative actions taken by management
personnel at the employing establishment. As noted, however, administrative or personnel
matters are not considered to be employment factors covered under FECA unless the record
reveals error or abuse on the part of the employing establishment.9 It is well established that
investigations into possible employee wrongdoing and discipline pertain to actions taken in an
administrative capacity that do not relate to the regular or specially assigned duties of the
employee.10 Appellant did not allege that Mr. Williamson acted in error or abuse. The Board
finds that the record is void of any evidence establishing that the administrative and personnel
actions taken by her employing establishment were in error and are, therefore, not considered
factors of employment compensable under FECA.
Appellant stated that she was worried that her coworkers would talk about her if she
returned to work in a lower position, and that she was ashamed to appear to have acted
inappropriately. The Board has established, however, that fear of employee gossip is not a
compensable employment factor because it is a personal frustration that is not related to the
actual performance of a claimant’s job duties.11
On appeal, appellant contended that the medical evidence established that her medical
condition was work related and that her injury was caused by the employing establishment’s
actions. The Board has held, however, that OWCP is not required to evaluate medical evidence
if appellant has not established a compensable factor of employment. Appellant must first prove
her allegation of administrative error or abuse to show that the claim falls within the scope of
FECA.12 Appellant has failed to establish such error or abuse in this case. Thus, she did not
submit sufficient evidence to establish a compensable factor of employment.
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 establish that she sustained an emotional condition
in the performance of duty.

9

Cyndia R. Harrill, 55 ECAB 522 (2004); see also Matilda R. Wyatt, supra note 5.

10

Jeral R. Gray, 57 ECAB 611 (2006); Joe M. Hagewood, 56 ECAB 479 (2005).

11

Mary A. Sisneros, 46 ECAB 155 (1994); Gracie A. Richardson, 42 ECAB 850 (1991).

12

L.S., 58 ECAB 249 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 6, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Diego, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-193
Issued: October 6, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 2, 2010 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) merit decision dated August 19, 2010. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability as of July 15, 2006.
FACTUAL HISTORY
This case has previously been before the Board. Appellant injured her lower back on
August 18, 1985 and filed a claim for benefits on August 21, 1985. OWCP accepted the claim
for a herniated disc at L5-S1 and authorized lumbar laminectomy surgery on October 18, 1985.
Appellant retired from the employing establishment in January 1987.
1

5 U.S.C. § 8101 et seq.

Appellant filed a claim for a recurrence of disability on September 12, 2006 alleging that
her disability commenced approximately two months prior. By decision dated November 2,
2006, OWCP denied the claim for a recurrence of disability. By decision dated February 26,
2007, its hearing representative set aside the November 2, 2006 decision and remanded the case
for further development of the medical evidence. OWCP was directed to refer appellant for a
second opinion medical examination to determine whether she sustained a recurrence of her
accepted lower back condition as of July 2006 and whether her surgery in October 2006 was
necessitated by the 1985 work injury.
OWCP referred appellant for a second opinion examination with Dr. Thomas J. Sabourin,
Board-certified in orthopedic surgery, who stated that the 1985 injury and subsequent surgery
resulted in no substantial change in the typical progression of the underlying degenerative
process. Dr. Sabourin opined that appellant’s current L4-5 disc condition was the natural
progression of the degeneration, which had occurred over time, and not related to the original
August 1985 employment injury in which she herniated the L5-S1 disc. Although appellant did
receive treatment for her L4-5 lesion, she would not have needed the October 2006 surgery if she
had only experienced residuals from the 1985 work-related injury at L5-Sl.
By decision dated July 24, 2007, OWCP denied appellant’s claim for a recurrence of
disability. It found that Dr. Sabourin’s referral opinion represented the weight of the medical
evidence. By decisions dated February 29 and September 18, 2008, OWCP denied modification
of the prior decision.
By letter dated May 27, 2009, appellant’s attorney requested reconsideration.
In a December 17, 2008 report, Dr. Sidney H. Levine, Board-certified in orthopedic
surgery, stated the history of injury and reiterated the diagnoses of postsurgical degenerative
spondylosis L3-4 and grade 2 degenerative spondylolisthesis at L4-5. He noted that appellant
had achieved a relatively good result from her October 2006 surgery. Dr. Levine opined that
appellant’s current lumbar condition was causally related to the 1985 work injury, for which she
underwent her 1985 lumbar laminectomy and disc excision at L5-S1. He noted that appellant’s
subsequent employment of eight years following her 1985 injury also contributed to the
deterioration at the L4-5 as well as the L3-4 level. Dr. Levine advised that these findings were
significantly greater than would normally be anticipated with the degenerative process caused by
increased stress at the level above the surgery. He therefore opined that a small percentage of the
need for appellant’s October 2006 surgery was brought about as a result of the 1985 work injury.
Dr. Levine stated that, as a result of the 1985 injury and subsequent surgery, appellant did have
work restrictions that precluded her from returning to her former type of work activity. He
reiterated that her subsequent employment did cause further disability, resulting in the need for
fusion as did the progression of the natural degenerative process.
By decision dated June 11, 2009, OWCP denied appellant’s application for review on the
grounds that it did not raise any substantive legal questions or include new and relevant evidence
sufficient further merit review. It found that appellant had submitted any new or relevant
medical evidence; but did not address Dr. Levine’s December 17, 2008 report.

2

In a June 7, 2010 decision,2 the Board affirmed OWCP’s July 24, 2007, February 29 and
September 18, 2008 merit decisions, finding that appellant failed to submit evidence to show that
she sustained a worsening of her lower back condition as of July 2006. The Board set aside the
June 11, 2009 decision, finding that OWCP abused its discretion by failing to consider
Dr. Levine’s December 17, 2008 report. The complete facts of this case are set forth in the
Board’s June 7, 2010 decision and herein incorporated by reference.
By decision dated August 19, 2010, OWCP denied modification of its previous decisions,
finding that appellant did not establish a recurrence of disability as of July 15, 2006.
LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.3 A recurrence of disability is defined as the inability to work caused by a spontaneous
change in a medical condition which results from a previous injury or illness without an
intervening injury or new exposure to the work environment that caused the illness. The Board
notes that any contribution of employment factors is sufficient to establish the element of causal
relation.4
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s claim for recurrence of disability commencing July 15, 2006
based upon the report of the second opinion physician, Dr. Sabourin, who found that her L4-5
disc condition, for which appellant underwent surgery in 2006, was the natural progression of the
underlying degenerative disease and not related to the accepted August 1985 employment injury
in which she herniated the L5-S1disc.
The December 17, 2008 report from Dr. Levine found that appellant’s current lumbar
condition was to a degree, causally related to the 1985 work injury, for which she underwent a
lumbar laminectomy in 1985 and disc excision at L5-S1. Dr. Levine explained the cause of
appellant’s recurrence by noting that she initially achieved a good result from her 1986 surgery;
but her subsequent employment contributed to the deterioration found at the L4-5 and L3-4
2

Docket No. 09-1905 (issued June 7, 2010).

3

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.121(a).

4

See L.R., claiming as widow of E.R., 58 ECAB 369 (2007).

5

5 U.S.C. § 8123(a).

3

levels, together with the normal progression of the degenerative disease. He advised that the
1985 employment injury would result in some stress at the level above the surgery, as did her
subsequent employment and the progression of the degenerative process. Dr. Levine opined that
a small percentage of the need for appellant’s October 2006 surgery was brought about as a
result of the 1985 work injury.
The Board finds that Dr. Levine’s opinion on causal relationship is in conflict with that of
Dr. Sabourine. Dr. Levine supported causal relationship to the accepted 1985 accepted injury,
while Dr. Sabourine ruled out such causal relationship. The case will be remanded to OWCP for
referral to an impartial medical specialist.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
sustained a recurrence of disability commencing July 15, 2006 causally related to her accepted
L5-S1 herniated disc condition.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded to OWCP for further
development of the medical evidence in conformance with this decision.
Issued: October 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, FOX CREEK
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 12-726
Issued: January 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 14, 2012 appellant, through her attorney, filed a timely appeal of the
December 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her 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 this case.
On appeal, appellant’s attorney contends that OWCP’s December 23, 2011 decision is
contrary to fact and law.
ISSUE
The issue is whether appellant sustained a recurrence of total disability commencing
February 14, 2011 causally related to her accepted January 25, 2011 employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 25, 2011 appellant, then a 59-year-old letter carrier,
sustained a bilateral hip and thigh contusion when she slipped and fell backwards onto snow and
ice as she unloaded mail.
In a medical report and an authorization for examination and/or treatment (Form CA-16)
dated January 27, 2011, Dr. Kimberly M. Winston-Matthews, a Board-certified family
practitioner, advised that appellant sustained a low back and bilateral hip contusion due to a fall
at work. She further advised that appellant could not work from January 25 through
February 13, 2011. Dr. Winston-Matthews stated that appellant could return to work on
February 14, 2011 with restrictions which included no lifting more than 10 pounds and no
repetitive squatting, bending or lifting through February 20, 2011. Appellant could resume her
full workload and activities effective February 21, 2011.
On February 15, 2011 the employing establishment offered appellant a modified letter
carrier position based on the medical restrictions set forth by Dr. Winston-Matthews which she
refused on that date.
In a February 14, 2011 report, Dr. Marlyn G. Generillo, a family practitioner, advised that
appellant could return to work on February 14, 2011 with restrictions. Appellant could not lift
more than 10 pounds or engage in repetitive squatting, bending or lifting through
February 28, 2011. In a February 17, 2011 report, Dr. Generillo advised that appellant was
unable to work from February 14 through 26, 2011.
On March 3, 2011 Dr. James C.C. Leisen, a Board-certified internist, reported that
appellant had lumbago. He advised that she could not work from March 3 to 25, 2011.
By letter dated March 25, 2011, OWCP advised appellant that it had received her claim
(Form CA-2a) alleging a recurrence of disability commencing February 14, 2011.2 It addressed
the factual and medical evidence she needed to submit in support of her recurrence claim.
In an April 18, 2011 letter, appellant stated that her medical documentation established
that she had a contusion of the back and bilateral hips while OWCP accepted her claim for a
contusion of the bilateral hip and thigh. She contended that this was a serious problem because
management would not accept her medical restrictions arising from her back condition.
Appellant’s hip condition occasionally bothered her while her back condition was her primary
problem and had bothered her night and day since the date of injury. She contended that the
duties of the offered position were not within her physical restrictions. Appellant tried to case
mail on February 14 and 15, 2011, but experienced pain after her attempt. She also experienced
pain while bending over and picking up tubs of mail. Appellant worked hard to set up the mail
within the allotted time. She stated that, since a full tub of mail was much heavier than 10
pounds, she had to bend and squat continuously to remove and prepare the mail for casing.
Appellant related that her route, in Grosse Pointe, involved extremely heavy mail, particularly,
flats. A 10-pound restriction was unrealistic. Appellant stated that sometimes a single residence
received that much mail and a school received a full heavy tub of mail. She refused the job offer
2

The Board notes that the Form CA-2a is not contained in the case record.

2

because delivering mail on her route would exceed her medical restrictions. On March 1, 2011
appellant returned to work and unsuccessfully tried to set up and deliver her route. Management
relieved her from working the last two hours of her shift. Following an evaluation by a back
specialist, appellant was restricted from repetitive squatting, bending, lifting, twisting and
pulling.
In a May 2, 2011 letter, appellant stated that she returned to work on March 28, 2011
with restrictions which included no repetitive bending, squatting, twisting, turning, pulling,
pushing and no lifting more than 10 pounds. She further stated that on April 5, 2011 Ms. Hayes,
a supervisor, instructed her not to return to work because the employing establishment could no
longer accommodate her restrictions.
On May 6 and 27 and June 17, 2011 appellant filed claims for wage-loss compensation
(Form CA-7) from January 26 to July 15, 2011.
A magnetic resonance imaging (MRI) scan of the lumbar spine was requested by
Dr. Shlomo S. Mandel, a Board-certified internist, and performed on April 26, 2011. The MRI
scan demonstrated lower lumbar degenerative disc disease and facet arthropathy without
significant central canal stenosis, left paracentral disc protrusion at L5-S1 that mildly narrowed
the left lateral recess with mass effect on the traversing left S1 nerve root and moderate to severe
bilateral neural foraminal narrowing at L5-S1 that caused mass effect on the exiting bilateral L5
nerve roots.
A report signed by Dr. Mandel on May 6, 2011 and by Dr. Rachel B. Hertzberg Hulen, a
Board-certified radiologist, on April 27, 2011 listed findings on physical examination. The
physicians reviewed the April 26, 2011 lumbar MRI scan report and a January 27, 2011 lumbar
x-ray which showed spondylosis and atherosclerosis. Dr. Mandel and Dr. Hulen advised that
appellant was not suitable for employment that involved bending, twisting or lifting.
In a July 19, 2011 decision, OWCP denied appellant’s recurrence of disability claim. It
found no rationalized medical evidence to support that the claimed recurrence was causally
related to the accepted January 25, 2011 employment injuries.
By letter dated July 27, 2011, appellant, through her attorney, requested a telephone
hearing with an OWCP hearing representative.
A January 27, 2011 report from Dr. Joseph G. Craig, a Board-certified radiologist,
advised that x-rays of the bilateral hips revealed no fracture, subluxation or discoloration.
Asymmetric degenerative changes were noted at L4-5 with prominent spurring on the right.
In another January 27, 2011 report, Dr. Hakmin Park3 advised that an x-ray of the
lumbosacral spine demonstrated degenerative changes.
In reports dated February 14 and September 8, 2011, Dr. Frances L. Hewitt, a Boardcertified family practitioner, obtained a history of the January 25, 2011 employment injuries and
diagnosed low back pain. She advised that appellant required light-duty work with restrictions.
During a February 17, 2011 telephone conversation, Dr. Hewitt was advised by appellant that her
3

The Board notes that the professional qualifications of Dr. Park are not contained in the case record.

3

job would not allow her to perform light-duty work. She either had to be off work or perform
her usual work duties. Appellant still had back pain. She asked Dr. Hewitt to place her off work
until February 28, 2011 since she was not allowed to perform light-duty work.
In a March 3, 2011 report, Dr. Leisen reiterated his prior diagnosis of lumbago.
In reports dated March 23 through November 28, 2011, Dr. Mandel noted appellant’s
complaints of low back pain following the January 25, 2011 employment injuries. He listed
physical and neurological examination findings. Dr. Mandel reviewed x-ray results and advised
that they showed some degenerative changes and dextroconvex curvatures, but there was nothing
clearly impinging on the nerve. He established light-duty work restrictions and addressed
appellant’s treatment plan. In the November 28, 2011 report, Dr. Mandel stated that appellant
attributed her lower back pain and symptoms to her January 25, 2011 employment-related fall.
In reports dated March 29, April 7 and August 16, 2011, Dr. Winston-Matthews reported
that appellant had a history of low back and hip pain after her January 25, 2011 employment
injuries and low bone mass. She provided physical examination findings and diagnosed low
bone mass, degenerative joint disease, lumbago and lumbar disc disease. In the March 29, 2011
report, Dr. Winston-Matthews advised that appellant had a work-related injury. She gave
appellant a work note for the employing establishment as she still had intermittent pain. On
June 8, 2011 Dr. Winston-Matthews reported findings on physical examination and advised that
appellant had symptoms of depression and uncontrolled hypertension.
An unsigned report dated April 8, 2011 which contained the typed name of
Dr. Dhanwada S. Rao, a Board-certified internist, stated that appellant had low bone mass and
low back pain.
In reports dated June 15, 2011, Phillip J. Lanzisera, Ph.D. and Dr. Augusto M. Jamora, a
Board-certified psychiatrist, advised that appellant had recurrent episodes of moderate major
depression and anxiety disorder not otherwise specified on Axis 1, hypertension, degenerative
joint disease and back pain on Axis 3 and occupational problems and conflict with daughter on
Axis 4. The physicians deferred a diagnosis on Axis 2. Dr. Lanzisera did not provide a global
assessment functioning (GAF) score on Axis 5 while Dr. Jamora reported a present GAF score of
60 and a past GAF score of 65.
An August 11, 2011 lumbar MRI scan was interpreted by Dr. Hulen and signed by
Dr. Winston-Matthews as showing the same findings as the April 26, 2011 lumbar MRI scan.
In a September 8, 2011 report, Dr. Keiko A.D. Hendrick, a family practitioner, obtained a
history of the January 25, 2011 employment injuries and noted appellant’s complaint of low back
and bilateral hip pain. She listed findings on physical examination and diagnosed multiple level
spondylosis, left L5-S1 foraminal stenosis, lumbago and lumbar disc displacement.
Dr. Hendrick advised that appellant was unable to perform her required work duties. She opined
that the accepted injuries caused the onset of appellant’s back pain and inability to perform her
required work duties. Dr. Hendrick concluded that appellant had documented degenerative joint
disease in the lumbar spine but did not experience pain until after the accepted injuries.
An October 17, 2011 report contained the typed name of Dr. Dariush Zandi, a Boardcertified family practitioner, and stated that appellant had lower back pain. Appellant had
4

degenerative changes which were related to aging. It was difficult to determine whether her back
condition was secondary to work.
Unsigned reports dated October 9, 2001 through June 17, 2002 which contained the typed
names of Dr. Denise D. Collins, a Board-certified radiologist, Dr. Zandi, Dr. Rahul Vaidya, a
Board-certified orthopedic surgeon, Dr. Mirza Adnan Hassan Beg, a Board-certified family
practitioner, and Dr. Owen E. McCormack, a Board-certified family practitioner, addressed
appellant’s back, left upper extremity and gynecological conditions, medical treatment and work
capacity.
In a December 23, 2011 decision, an OWCP hearing representative affirmed the denial of
appellant’s recurrence claim based on insufficient evidence establishing that her current medical
condition and disability resulted from the accepted January 25, 2011 work injuries. The hearing
representative found that the claimed disability was attributed to a back condition that had not
been accepted by OWCP.4
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 had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5 This term also means an inability to work that takes place when a lightduty 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 requirements of such an assignment are altered so that they exceed his or her established
physical limitations.6
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.7
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
4

Following the issuance of OWCP’s December 23, 2011 decision, appellant submitted new evidence. However,
the Board cannot consider evidence that was not before OWCP at the time of the final decision. See 20 C.F.R.
§ 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005);
Rosemary A. Kayes, 54 ECAB 373 (2003).
5

20 C.F.R. § 10.5(x).

6

Id.

7

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).

5

accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.8
ANALYSIS
The Board finds that the case is not in posture for a decision as to whether appellant
sustained a recurrence of disability. OWCP accepted that appellant sustained a bilateral hip and
thigh contusion while working as a letter carrier on January 25, 2011. Following this injury, it
appears from the record that she returned to modified-duty work. Appellant filed a recurrence
claim for total disability commencing February 14, 2011. She contended that she did not sustain
a bilateral thigh contusion and instead attributed her claimed disability to an alleged work-related
back contusion and the accepted bilateral hip contusion.
The record reflects that appellant received treatment from a multitude of physicians and
healthcare providers. The medical evidence relevant to the alleged employment-related back
condition and claimed resultant period of disability includes the March 29, 2011 report in which
Dr. Winston-Matthews opined that appellant had a work-related lumbar degenerative disc
disease. She provided a history that appellant had back and hip pain following the accepted
January 25, 2011 injuries. Dr. Winston-Matthews gave appellant a work note for her employer.
In a September 8, 2011 report, Dr. Hendrick opined that the onset of appellant’s back pain and
inability to perform her required work duties were due to the accepted January 25, 2011
employment injuries. She noted appellant’s complaints of low back and bilateral hip pain.
Dr. Hendrick diagnosed multiple level spondylosis, left L5-S1 foraminal stenosis, lumbago and
lumbar displacement. She stated that appellant had documented degenerative joint disease in the
lumbar spine, but did not have pain until after the accepted injuries. The Board finds that the
reports of Dr. Winston-Matthews and Dr. Hendrick are generally supportive of appellant’s
recurrence claim. Although these reports are not sufficiently rationalized to carry appellant’s
burden of proof in establishing her claim,9 the Board finds that they are of sufficient quality to
require further development of her claim by OWCP.10
It is well established that proceedings under FECA are not adversarial in nature nor is
OWCP a disinterested arbiter.11 While the claimant has the burden to establish entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that justice
is done.12 The case shall therefore be remanded to OWCP. On remand, OWCP shall refer
appellant, an updated statement of accepted facts and the medical evidence of record to an
appropriate Board-certified specialist for an examination, diagnosis and a rationalized opinion as
to whether appellant sustained a back condition and any resultant disability commencing
February 14, 2011 due to the accepted bilateral hip and thigh contusion. Moreover, as appellant
8

James H. Botts, 50 ECAB 265 (1999).

9

See Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
10

John J. Carlone, 41 ECAB 354 (1989); see also Cheryl A. Monnell, 40 ECAB 545 (1989); Bobby W.
Hornbuckle, 38 ECAB 626 (1987); Horace Langhorne, 29 ECAB 820 (1978).
11

John W. Butler, 39 ECAB 852 (1988).

12

Donald R. Gervasi, 57 ECAB 281 (2005); William B. Webb, 56 ECAB 156 (2004).

6

contends that her supervisor advised of the employing establishment’s withdrawal of light duty,
OWCP should verify this and consider whether FECA Bulletin No. 09-05 (issued August 18,
2009) is applicable. The FECA Bulletin No. 09-05 outlines OWCP procedures when limitedduty positions are withdrawn pursuant to the National Reassessment Process and no loss of
wage-earning capacity determination has been issued.13 After this and such further development
as deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that she was totally disabled commencing February 14, 2011 due to the January 25,
2011 accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: January 22, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See FECA Bulletin No. 09-05 (issued August 18, 2009), §§ I.B.1-3.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Romulus, MI, Employer
__________________________________________

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

Docket No. 07-403
Issued: May 2, 2007

Case Submitted on the Record

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

JURISDICTION
On November 27, 2006 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs dated October 16, 2006, denying modification of a
decision dated August 8, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this decision.
ISSUE
The issue is whether appellant sustained a back injury causally related to her employment
on June 8, 2006.
FACTUAL HISTORY
On June 10, 2006 appellant, then a 47-year-old transportation security screener, filed a
traumatic injury claim alleging that on June 8, 2006 she sustained a lower back injury to her right
side when she was clearing a large bag on a conveyor belt.

In a June 28, 2006 letter, the Office requested additional factual information from
appellant. Multiple documents were submitted consisting of memoranda documenting doctor
visits and a June 29, 2006 letter from the employing establishment of appellant’s claim. Also
submitted was a July 7, 2006 report in which David Budaj, a chiropractor, noted appellant’s
reduced range of motion.
In a July 25, 2006 letter, appellant requested an extension of time to submit medical
information.
By decision dated August 8, 2006, the Office denied appellant’s claim based on
insufficient medical evidence.
In an August 23, 2006 letter, appellant requested reconsideration. Accompanying the
request was an August 18, 2006 letter from Dr. Budaj.
In a September 14, 2006 letter, the Office informed appellant that a letter had been sent to
Dr. Budaj seeking clarification regarding her claim but that it was her responsibility to provide
the necessary medical evidence.
In a September 20, 2006 telephone call, Dr. Budaj informed the Office that no x-rays
were taken of appellant’s back.
By decision dated October 16, 2006, the Office denied modification of the prior
August 8, 2006 decision.
LEGAL PRECEDENT
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.1 The second
component is whether the employment incident caused a personal injury.2 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.3
To establish causal relationship, appellant must submit a physician’s report in which the
physician reviews the employment factors identified by appellant as causing his condition and,
1

Elaine Pendleton, 40 ECAB 1143 (1989).

2

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

3

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.

2

taking these factors into consideration as well as findings upon examination, state whether the
employment injury caused or aggravated the diagnosed conditions and present medical rationale
in support of his or her opinion.4
ANALYSIS
Appellant alleged that she sustained an injury to her back on June 8, 2006 when she was
clearing a bag jam from a conveyor belt. The Office accepted that the employment incident
occurred as alleged. The issue in this case is therefore whether the employment incident caused
a personal injury.
The medical reports submitted failed to diagnose an injury as the submitted reports were
not from a physician. Only a physician under the Federal Employees’ Compensation Act can
provide a diagnosis.5 In assessing the probative value of chiropractic evidence, the initial
question is whether the chiropractor is considered a physician under 5 U.S.C. § 8101(2). A
chiropractor is not considered a physician under the Act unless it is established that there is a
spinal subluxation as demonstrated by x-ray to exist.6 Dr. Budaj did not diagnose a subluxation
based on an x-ray, he is not considered a physician under the Act and his report is of no
probative medical value. Had Dr. Budaj taken an x-ray of appellant’s spine and diagnosed a
subluxation, he would be considered a “physician” under the Act.7 As there is no diagnosis of
any condition causally related to appellant’s employment incident by a physician, there is no
evidence of a personal injury.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty.

4

Calvin E. King, 51 ECAB 394 (2000).

5

5 U.S.C. § 8101(2).

6

Mary A. Ceglia, 55 ECAB 626 (2004).

7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the October 16 and August 8, 2006 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Centreville, VA, Employer
__________________________________________

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Appearances:
Dean E. Wanderer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1870
Issued: December 27, 2007

Case Submitted on the Record

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

JURISDICTION
On July 2, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated August 23, 2006 and May 9, 2007 denying her
traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this appeal.
ISSUE
The issue is whether appellant sustained a traumatic injury while in the performance of
duty on December 2, 2005.
FACTUAL HISTORY
On January 19, 2006 appellant, a 56-year-old mail carrier, filed a recurrence of disability
claim (Form CA-2a), alleging that, while putting up a tray of mail in preparation for her route on
December 2, 2005, she “pulled” her back and was in “horrible” pain. She also stated that she

was sick and nauseous from medication.1 The official supervisor’s report reflected that appellant
complained of nausea but made no mention of pain on the date of the alleged injury.
On July 24, 2006 the Office informed appellant that her claim was being treated as a
claim for a new (traumatic) injury. Further informing her that the evidence submitted to date
was insufficient to establish her claim, the Office advised her to provide additional
documentation, including a firm diagnosis and a physician’s opinion as to how her injury
resulted in the diagnosed condition. The Office specifically asked appellant to provide a detailed
description as to how the injury occurred, including the cause of the injury and statements from
any witnesses or other documentation supporting her claim.
In a merit decision dated August 23, 2006, the Office denied appellant’s claim on the
grounds that she failed to establish the fact of injury, as she did not submit sufficient evidence to
establish that she actually experienced an employment incident at the time, place and in the
manner alleged or that the alleged incident caused her claimed condition.
On November 14, 2006 appellant’s representative requested that appellant’s claim (No.
252042219) be consolidated with her prior traumatic injury claim (No. 25-2063787), contending
that her current condition was a recurrence of the original injury. Appellant submitted an appeal
request form dated November 14, 2006, as well as a letter from her representative dated
December 6, 2006, requesting reconsideration of the Office’s August 23, 2006 decision.
The record reflects that appellant was treated at State of the Art Rehab by Dr. S. Roger
Parthasarathy, a treating physician. In a report dated April 25, 2005, Dr. Parthasarathy provided
diagnoses of lumbar postlaminectomy syndrome, lumbar radiculopathy and sacroiliitis, stating
that her condition was caused by a May 26, 2004 work-related injury. In a report dated
October 23, 2006, he reiterated his earlier diagnoses and stated that appellant was medically unfit
for work, noting that her primary problem was pain, numbness and weakness in her lower back.
Dr. Parthasarathy indicated that appellant “had been working six hours per day performing
casing work in the mail facility and delivering mail prior to her exacerbation.” On December 4,
2006 he stated that appellant continued to experience back and left hip pain due to some lateral
hip tendinitis from overuse, and as a residual from her prior injury and subsequent surgery.
Noting that appellant had excruciating pain in her back, hip and leg, Dr. Parthasarathy opined
that she was disabled from work at that time. In a January 5, 2007 follow-up report, he repeated
his diagnoses and opined that appellant was unable to work, as she was in excruciating pain due
to her inability to tolerate her medications. An accompanying duty status report reflected that
appellant was not able to work and that the date of injury was May 26, 2004. In a report dated
February 23, 2007, Dr. Parthasarathy related appellant’s statement that her problems began with
a May 26, 2004 work-related injury, when she stepped into a hole while removing a mail tray.
Following a September 26, 2004 surgery, she noted increased numbness and tingling in her leg
and began to experience severe low back pain.

1

Appellant indicated that she had returned to modified duty in November 2004, following a May 26, 2004 workrelated injury.

2

By decision dated May 9, 2007, the Office denied modification of its August 23, 2006
decision, finding that appellant had failed to establish the fact of injury.2
LEGAL PRECEDENT
The Federal Employees’ Compensation Act3 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”5
An employee seer claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.6 When an employee claims that she sustained a
traumatic injury in the performance of duty, she must establish the “fact of injury,” namely, she
must submit sufficient evidence to establish that she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged, and that such event, incident or
exposure caused an injury.7
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial

2

The Board notes that the record on appeal contains additional evidence which was not before the Office at the
time it issued its May 9, 2007 decision. The Board has no jurisdiction to review this evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c). See also Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB
35, 36 n.2 (1952). Appellant may submit this evidence to the Office, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).
3

5 U.S.C. §§ 8101 et seq.

4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
6

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

3

doubt on a claimant’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.11
ANALYSIS
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury to her back on December 2, 2005.
Appellant alleged that, while putting up a tray of mail in preparation for her route on
December 2, 2005, she “pulled” her back and experienced pain. The Office properly developed
appellant’s claim as a traumatic injury claim.12 Appellant gave no detailed account of the injury.
She presented no evidence regarding the specific mechanism of injury, as required in a claim for
traumatic injury, nor has she alleged that she experienced a specific event, incident or exposure
8

See Betty J. Smith, supra note 7.

9

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

10

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

11

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

12

See 20 C.F.R. § 10.5(x), which provides in pertinent part: “Recurrence of disability means an inability to work
after an employee has returned to work, caused by a spontaneous change in 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.” Appellant’s representative argues that appellant’s current condition is not a result of a new injury, but
rather is a recurrence of her May 26, 2004 injury. However, the instant claim relates to a specific intervening
incident that allegedly occurred on December 2, 2005, which, if proven, would constitute a traumatic injury. See 20
C.F.R. § 10.5(ee), which provides in pertinent part: “Traumatic injury means a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift.” Appellant may file a
new recurrence claim, together with supporting medical evidence, alleging an inability to work due to a spontaneous
change in her medical condition.

4

at a definite time, place and manner.13 No evidence was presented addressing the causal
relationship between the alleged incident and a diagnosed condition.
Appellant’s recitation of the facts does not support her allegation that a specific event
occurred which caused an injury.14 In fact, there are inconsistencies in the evidence which cast
serious doubt on the validity of her claim. Appellant stated that she “pulled” her back and was in
“horrible” pain on December 2, 2005. However, the official supervisor’s report reflected that
appellant complained of nausea but made no mention of pain on the date of the alleged injury.
Appellant has not presented any probative evidence, such as witness statements, to corroborate
her claim that she injured her back on that date.
The contemporaneous medical evidence of record, which consists of reports from
appellant’s treating physician, does not support appellant’s allegation that her condition resulted
from the claimed December 2, 2005 work incident. The record reflects that Dr. Parthasarathy
treated appellant for lumbar postlaminectomy syndrome, lumbar radiculopathy and sacroiliitis.
However, his reports consistently indicated that her condition began with a May 26, 2004 workrelated injury, when she stepped into a hole while moving a mail tray. On October 23, 2006
Dr. Parthasarathy stated that appellant was medically unfit for work, noting that her primary
problem was pain, numbness and weakness in her lower back. He indicated that appellant was
“working six hours per day performing casing work in the mail facility and delivering mail prior
to her exacerbation.” Although his reference to an “exacerbation” suggests a traumatic event,
Dr. Parthasarathy did not provide any details to establish that appellant experienced an
employment incident which caused an injury on December 2, 2005. On December 4, 2006 he
stated that appellant continued to experience back and left hip pain due to some lateral hip
tendinitis from overuse, and as a residual from her prior injury and subsequent surgery. On
February 23, 2007 he related appellant’s statement that her problems began with a May 26, 2004
work-related injury, when she stepped into a hole while removing a mail tray and that, following
a September 26, 2004 surgery, she noted increased numbness and tingling in her leg and began to
experience severe low back pain. The medical evidence of record reflects that appellant did not
clearly report to her physician that she felt her claimed condition was due to a specific and
identifiable employment incident that occurred on December 2, 2005.
In Paul Foster,15 an employee filed a claim alleging that he sustained a knee injury while
walking his mail route. However, because the employee’s allegations were vague and did not
clearly identify the aspect of his employment which he believed caused the claimed condition, or
how he twisted his knee while performing his duties the date in question, the Board held that he
had not met his burden of proof to establish that he sustained an injury in the performance of
duty. Similarly, in the instant case, appellant’s allegations are vague and speculative, and they
do not relate with specificity the cause of the injury (e.g., the fact that she reached overhead or
lifted a tray from the ground from a standing position), or the exact and immediate consequence
of the injury (e.g., the fact that she fell, stumbled, had to sit down or dropped the tray of mail).
13

See Betty J. Smith, supra note 7; see also Tracey P. Spillane, supra note 7.

14

See Dennis M. Mascarena, supra note 10.

15

56 ECAB ___ (Docket No. 04-1943, issued December 21, 2004).

5

Therefore, appellant has not met her burden of proof to establish that she sustained an injury in
the performance of duty, and it is not necessary to discuss the probative value of the medical
reports.16
CONCLUSION
Appellant has not met her burden of proof to establish that she sustained a traumatic
injury to her back in the performance of duty on December 2, 2005.
ORDER
IT IS HEREBY ORDERED THAT the May 9, 2007 and August 23, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: December 27, 2007
Washington, DC

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

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

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

16

Id.

6