United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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New Orleans, LA, Employer
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___________________________________________ )
D.B., Appellant

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

Docket No. 07-2426
Issued: April 15, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ schedule award decision dated February 22, 2007 and an April 9, 2007
nonmerit decision, which denied his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether appellant sustained any permanent impairment due to his
accepted injury; and (2) whether the Office properly refused to reopen his case for further review
of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 21, 2006 appellant, then a 62-year-old mail handler, filed an occupational
disease claim alleging carpal tunnel due to his federal employment. He described throwing third
class bundles, pulling, pushing and loading mail and using heavy equipment. Appellant noted
hand symptoms of tingling and cramping and stated that he was diagnosed with carpal tunnel

syndrome. He did not stop work. The Office accepted appellant’s claim for bilateral carpal
tunnel syndrome. Appellant underwent a right carpal tunnel release on June 23, 2006 and a left
carpal tunnel release on July 27, 2006. He received appropriate compensation benefits.1
On July 15, 2006 appellant filed a claim for a schedule award.
By letter dated September 29, 2006, the Office requested that Dr. Melvin L. Parnell, Jr.,
an attending Board-certified orthopedic surgeon, provide an opinion regarding his work-related
condition. The Office advised Dr. Parnell to utilize the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) to determine whether appellant
had any permanent impairment and, if so, the percentage of impairment with an explanation of
how the calculation was derived.
In a September 25, 2006 report, Dr. Parnell noted that appellant was seen in follow up
and was doing well. Appellant had some mild discomfort when he used his hands but did not
having any significant pain. Dr. Parnell conducted a physical examination and found that
appellant had a full range of motion of each wrist with some mild discomfort at the extremes of
motion. The Tinel’s and Phalen’s tests were negative bilaterally. Dr. Parnell noted that
appellant had a full range of motion of the fingers of each hand with normal sensation and
capillary refill. He was pleased with appellant’s progress and noted that, since the pressure was
released from his nerves, he expected continued improvement. Appellant was able to return to
work without any significant exacerbation of symptoms. Dr. Parnell stated that he did “not feel
that [appellant] has sustained any permanent impairment.” On October 13, 2006 he advised that
appellant reached maximum medical improvement on September 25, 2006. Dr. Parnell again
indicated that appellant did not have any impairment of the upper extremities.
In a February 16, 2007 report, an Office medical adviser noted appellant’s history of
injury and treatment including Dr. Parnell’s September 25, 2006 report. The medical adviser
concurred that appellant had reached maximum medical improvement on September 25, 2006
but did not have any impairment to his upper extremities.
By decision dated February 22, 2007, the Office denied appellant’s claim for a schedule
award. The Office found that the medical evidence did not establish that appellant sustained any
impairment to this upper extremities due to his accepted condition.
By letter dated March 27, 2007, appellant requested reconsideration. He contended that
Dr. Parnell did not provide an impairment rating because it was too soon after the operation.
Appellant indicated that his physician advised him to wait four to six months after the operation
to do an accurate test. He noted that his physician had requested authorization for testing and
was waiting for approval.2

1

The record reflects that appellant returned to full duty on September 12, 2006.

2

The Office authorized the testing on April 4, 2007.

2

By decision dated April 9, 2007, the Office denied appellant’s request for reconsideration
without a review of the merits. It found that his request neither raised substantial legal questions
nor included new and relevant evidence and was insufficient to warrant further review.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act3 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions,
and organs of the body.4 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.5 The A.M.A., Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.6
ANALYSIS -- ISSUE 1
The Board finds that the medical evidence does not establish that appellant sustained any
impairment to his upper extremities based on his accepted carpal tunnel condition.
By letter dated September 29, 2006, the Office requested that Dr. Parnell describe
appellant’s condition following surgery to determine whether he sustained any impairment.
In a September 25, 2006 report, Dr. Parnell noted that appellant had a full range of
motion of the fingers and wrist of each hand and had returned to work without any significant
exacerbation of symptoms. He opined that appellant did not have any impairment. Dr. Parnell
repeated his assessment in his October 13, 2006 report and opined that appellant reached
maximum medical improvement on September 25, 2006. The Office medical adviser reviewed
Dr. Parnell’s findings and concurred that appellant did not sustain any permanent impairment to
his upper extremities.
Appellant did not submit any medical reports from a physician explaining how, pursuant
to the fifth edition of the A.M.A., Guides, his accepted bilateral carpal tunnel syndrome caused
any permanent impairment to his right or left arms. As noted the Office evaluates schedule
award claims pursuant to the standards set forth in the A.M.A., Guides. Appellant has the
burden of proof to submit medical evidence supporting permanent impairment of a schedule
member of the body.7 As such evidence has not been submitted, appellant is not entitled to a
schedule award. The Office properly denied his claim.

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8107.

5

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

6

20 C.F.R. § 10.404.

7

See Annette M. Dent, 44 ECAB 403 (1993).

3

LEGAL PRECENT -- ISSUE 2
Under section 8128(a) of the Act,8 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”9
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.10
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his schedule award claim and requested
reconsideration on March 27, 2007. The underlying issue on reconsideration, whether appellant
has any permanent impairment, is medical in nature. Appellant did not submit any medical
evidence. He noted that Dr. Parnell did not provide an impairment rating because it was too
soon after surgery and needed to wait for several months to obtain an accurate rating. As noted,
however, Dr. Parnell found maximum medical improvement to have been reached by
September 25, 2006. Without a relevant and pertinent new report from his physician, appellant
has not provided a basis for reopening his claim for merit review.
Since appellant did not provide a new and relevant medical report regarding his
permanent impairment due to his accepted employment-related conditions, he did not satisfy the
third criterion for reopening a claim for merit review. Appellant has not shown that the Office
erroneously applied or interpreted a specific point of law or advanced a relevant new argument
not previously submitted.
Therefore, the Office properly denied his request for
reconsideration.11
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b).

10

Id. at § 10.608(b).

11

The Board notes that appellant retains the right to file his for any increased impairment based on new medical
evidence indicating that the progression of an employment-related condition. See Linda T. Brown, 51 ECAB
115 (1999).

4

CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.
The Board also finds that the Office properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).12
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 9 and February 22, 2007 are affirmed.
Issued: April 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

The Board notes that subsequent to the Office’s April 9, 2007 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35, 36 n.2 (1952)

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION
HEALTHCARE SYSTEM, Miami, FL, Employer
__________________________________________

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

Docket No. 10-1844
Issued: May 10, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from a June 9, 2010 nonmerit decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration without
further merit review. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over this decision. Because more than 180
days elapsed between the most recent Office merit decision dated February 3, 2009 and the filing
of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 30, 2008 appellant, then a 56-year-old nurse, filed a recurrence of
disability alleging that she sustained severe low back pain on July 31, 2008 after she was
assigned to two work areas for approximately one week. She specified that she had been on
restricted duty in a single area due to an accepted April 26, 2006 back injury2 and the increased
volume of work, namely inserting intravenous catheters, taking vital signs, managing patient
charts and pushing wheelchairs, caused her to bend more frequently. Appellant’s supervisor
explained that a second work area was assigned due to a nursing staff shortage. She stopped
work on August 1, 2008 and returned on August 6, 2008. The Office developed this as a claim
for a new occupational disease.
An August 4, 2008 note from Dr. Luis R. Pagan, a Board-certified neurological surgeon,
related that appellant had “a recent exacerbation of back pain that started a week ago.” On
physical examination, Dr. Pagan observed a negative straight leg raise and normal gait and
posture. Neurological examination findings were also normal. In an August 6, 2008 attending
physician’s report, Dr. Pagan diagnosed disc dislocation and listed April 26, 2006 as the date of
injury. He also noted that appellant reached maximum medical improvement and advised that
she be placed on light duty in an August 11, 2008 work capacity evaluation.
The employing establishment notified appellant in a September 16, 2008 memorandum
that she remained on restricted duty due to her “on-the-job injury.” The employing
establishment pointed out that she reached maximum medical improvement and that she would
be provided work within her restrictions.
On December 18, 2008 the Office informed appellant that it was adjudicating the matter
as a new occupational disease claim as she implicated new employment factors. It gave her 30
days to submit a physician’s reasoned opinion explaining how her July 2008 work activities
caused or aggravated a back condition. The Office did not receive a response.
By decision dated February 3, 2009, the Office denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that a back condition resulted from the described
employment factors.
In a January 12, 2010 e-mail correspondence with her attorney, appellant stated that she
was first informed by Dr. Pagan sometime in late 2009 that the Office closed her original claim.
She disputed the action, asserting that she was permanently disabled and needed prescription
medication. Appellant retired effective January 1, 2010.
In a January 25, 2010 report, Dr. Pagan noted that he initially attended to appellant on
July 24, 2006, when she complained of back, left hip and left leg pain on April 26, 2006 while
lifting a patient at work. Appellant denied any preexisting back and leg pain before this incident.
A magnetic resonance imaging (MRI) scan at the time revealed L4-L5 facet hypertrophy and

2

Claim number xxxxxx201. This claim is not before the Board on the present appeal.

2

L5-S1 left disc herniation. Appellant continued to present back discomfort and recently
underwent left knee arthroscopy. Dr. Pagan concluded:
“[Appellant] denies prior history of back pain and leg pain before her April 26,
2006 injury. I therefore conclude that there is causal relationship between her
work injury and her symptomatology and need for treatment. This opinion is
within reasonable medical certainty and/or probability. As a consequence of her
injury, [appellant] is left with a permanent disability, for which she may only
work in a light-duty capacity. These opinions are only for her lumbar spine.”
Appellant’s counsel requested reconsideration on January 31, 2010 and argued that the
February 3, 2009 decision should be vacated based on Dr. Pagan’s January 25, 2010 report.
By decision dated June 9, 2010, the Office denied appellant’s request on the grounds that
it did not receive new and relevant evidence warranting a merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the Act,3
the Office’s regulations provide that the evidence or argument submitted by a claimant must
either: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.4 Where the request
for reconsideration fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
Appellant’s counsel requested reconsideration and argued that newly-submitted evidence,
namely Dr. Pagan’s January 25, 2010 report, warranted further merit review and ultimately
reversal. In this report, Dr. Pagan found that appellant’s employment caused her lumbar spine
symptoms and need for treatment.
The Board finds that Dr. Pagan’s January 25, 2010 report constituted relevant and
pertinent new evidence not previously considered by the Office as it addressed the issue
underlying the Office’s February 3, 2009 denial, whether appellant’s employment caused or
aggravated her low back condition.6 Although appellant had submitted previous reports from
Dr. Pagan, the earlier reports did not specifically address causal relationship. Therefore, the
Office was obligated to conduct a merit review of the claim when appellant submitted
3

5 U.S.C. § 8128(a).

4

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

5

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

6

See Mary Lou Barragy, 46 ECAB 781 (1995) (submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case).

3

Dr. Pagan’s January 25, 2010 report in support of her reconsideration request. The requirements
for reopening a claim for merit review do not include the requirement that a claimant submit all
evidence which may be necessary to discharge her burden of proof.7 If the Office should
determine that the new evidence submitted lacks probative value, it may deny modification of
the prior decision, but only after the case has been reviewed on the merits.8 The case shall be
remanded to the Office to conduct a merit review of the entire record. After such further
development as is deemed necessary, the Office shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the Office improperly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 9, 2010 decision of the Office of Workers’
Compensation Programs is set aside and remanded for a review of the merits.
Issued: May 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7

See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988).

8

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF AGRICULTURE,
INSPECTION OPERATIONS PROGRAM,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 12-940
Issued: September 7, 2012

Case Submitted on the Record

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

JURISDICTION
On March 13, 2012 appellant filed a timely appeal from the December 29, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s claim
for a period of disability compensation. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had disability
after August 30, 2011 due to her July 25, 2011 work injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 25, 2011 appellant, then a 33-year-old food inspector, filed a traumatic injury
claim form alleging that she sustained injury on July 25, 2011 when she pulled on a chair. She
requested on the form that she receive continuation of pay.2 Appellant stopped work on
July 25, 2011. On August 25, 2011 OWCP accepted that she sustained a work-related sprain of
her lumbar region.
In an August 22, 2011 form report, Dr. Harold Weems, an attending Board-certified
orthopedic surgeon, provided various work restrictions. He indicated that appellant could not lift
more than 15 pounds and that she should not engage in bending, stooping, pulling or pushing.
On August 30, 2011 the employing establishment offered appellant an alternative-duty
assignment. The description of the assignment indicated that she would perform the full duties
of her food inspector position, except that an inspector’s helper would hang all carcasses
presented for inspection.3
On September 8, 2011 appellant filed a claim for compensation (Form CA-7) claiming
that she was entitled to disability compensation for the period July 25 to September 8, 2011.
Appellant later filed CA-7 forms claiming disability from September 9 through midDecember 2011.
In a September 13, 2011 letter, OWCP requested that appellant submit additional factual
and medical evidence within 30 days in support of her September 8, 2011 disability claim. It
noted that the employing establishment had offered appellant an alternative-duty assignment on
August 30, 2011 and stated:
“[Section] 8106(c)(2) states that ‘A partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by, or secured for him
is not entitled to compensation.’ Therefore, anyone who stops working a suitable
job without good cause is not entitled to further compensation for wage loss or
schedule award.”4
Appellant submitted medical reports including treatment notes of Dr. Weems dated
July 27 and August 10, 2011 and an August 31, 2011 disability slip of Dr. Hasmukh Patel, an
attending Board-certified internist, who indicated that she should be off work until she had
magnetic resonance imaging (MRI) scan testing.5 In a September 5, 2011 report, Dr. James M.
Arthur, an attending Board-certified neurosurgeon, stated that appellant was under his care for a
bulging disc at L5-S1 and that she was to remain off work until October 12, 2011. In a
2

Appellant began to receive continuation of pay starting July 25, 2011.

3

Appellant did not accept the position and she remained off work.

4

In a September 13, 2011 letter, OWCP requested that the employing establishment answer questions regarding
the alternative-duty assignment.
5

The record contains the findings of MRI scan testing from September 2, 2011.

2

September 26, 2011 note, Dr. Patel indicated that appellant had low back pain caused by central
disc protrusion and that she would be off work until she was seen by Dr. Arthur. A
September 28, 2011 report from Dr. Arthur stated that appellant would be off work until
October 5, 2011 and an October 18, 2011 note from Dr. Arthur indicated that she was able to
perform limited-duty work beginning November 20, 2011.
In a December 29, 2011 decision, OWCP denied appellant’s claim for disability
compensation beginning August 31, 2011 indicating that continuation of pay was authorized
through August 30, 2011 but was denied for the period thereafter. In the “basis for decision”
portion of an accompanying memorandum, it briefly discussed some of the medical evidence
submitted by appellant and indicated that it did not contain medical rationale regarding the
relationship of the claimed disability to the July 25, 2011 work injury. OWCP also noted that, to
accommodate Dr. Weems’ work restrictions, the employing establishment made a modified-duty
offer to appellant on August 30, 2011, but indicated that she advised her supervisor that she
would not be returning to work on August 31, 2011. In the “conclusion” portion of the
memorandum, OWCP stated:
“Continuation of pay (COP) is authorized for the period [July 25 to August 30,
2011] as you were released to work by Dr. Weems with restrictions; however, the
[employing establishment] did not make an offer of accommodations until
[August 30, 2011].
“You refused the offer by not reporting for duty on [August 31, 2011] as advised.
You were previously notified by [OWCP] that 5 U.S.C. § 8106(c)(2) of the
Federal Employees’ Compensation Act (FECA) provides that, ‘A partially
disabled employee who refuses or neglects to work after suitable work is offered
to, procured by, or secured for him is not entitled to compensation.’
“COP and wage[-]loss compensation benefits beginning [August 31, 2011] and
continuing are denied because you refused suitable work.”
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an “employee of the United States”
within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.6 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the compensable employment factors.7
6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

See E.J., Docket No. 09-1481 (issued February 19, 2010).

3

Section 8106(c)(2) of FECA provides in pertinent part, “A partially disabled employee
who ... (2) refuses or neglects to work after suitable work is offered ... is not entitled to
compensation.”8 However, to justify such termination, OWCP must show that the work offered
was suitable and must inform the claimant of the consequences of refusal to accept such
employment.9 An employee who refuses or neglects to work after suitable work has been
offered to her has the burden of showing that such refusal to work was justified.10
In determining whether a claimant has discharged her burden of proof and is entitled to
compensation benefits, OWCP is required by statute and regulations to make findings of fact.11
Its procedure specifies that a final decision of OWCP must include findings of fact and provide
clear reasoning which allows the claimant to “understand the precise defect of the claim and the
kind of evidence which would tend to overcome it.”12 These requirements are supported by
Board precedent.13
ANALYSIS
OWCP accepted that on July 25, 2011 appellant sustained a work-related sprain of her
lumbar region and paid her continuation of pay starting July 25, 2011, the date she stopped work.
Appellant did not return to work and filed claims alleging continued entitlement to
compensation. In a December 29, 2011 decision, OWCP denied her claim for disability
compensation beginning August 31, 2011.
The Board finds that OWCP did not provide adequate facts and findings in its
December 29, 2011 decision which would provide appellant a clear picture of the reason for the
denial of her compensation claim after August 30, 2011. Appellant would not understand the
precise defect of the claim and the kind of evidence which would tend to overcome it.
In a portion of its December 29, 2011 decision, OWCP briefly discussed some of the
medical evidence submitted by appellant and indicated that it did not contain medical rationale
regarding the relationship of the claimed disability to the July 25, 2011 work injury. Therefore,
it suggested that it was denying her claim because she did not submit sufficient medical to show
8

5 U.S.C. § 8106(c)(2).

9

See Y.A., 59 ECAB 701 (2008); T.T., 58 ECAB 296 (2007); Maggie L. Moore, 42 ECAB 484 (1991), reaff’d on
recon, 43 ECAB 818 (1992). OWCP regulations require that OWCP shall advise the claimant that it has found the
offered work to be suitable and afford the claimant 30 days to accept the job or present any reasons to counter
OWCP’s finding of suitability. If the employee presents such reasons and OWCP determines that the reasons are
unacceptable, it will notify the employee of that determination and that she has 15 days in which to accept the
offered work without penalty. 20 C.F.R. § 10.516.
10

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

11

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (July 1997).

13

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

4

she had work-related disability after August 30, 2011. However, in other portions of the
decision, OWCP suggested that it was denying appellant’s claim for disability compensation
after August 30, 2011 because she had refused suitable work offered by the employing
establishment, i.e., the alternative-duty assignment offered on August 30, 2011. The Board notes
that it is unclear why OWCP would suggest that it was carrying out a suitable work termination
as OWCP did not carry out a number of the formal requirements of a suitable work termination,
such as formally advising appellant of its determination that the position was suitable and
providing her an opportunity to present arguments challenging a suitability determination.14 In
fact, it is uncertain whether OWCP intended to carry out a suitable work termination under 5
U.S.C. § 8106(c)(2). The basis for the denial of appellant’s claim for disability compensation
after August 30, 2011 remains unclear.
For these reasons, OWCP’s December 29, 2011 decision must be set aside and the case
remanded to OWCP for further development, to include issuance of a merit decision containing
adequate facts and findings regarding appellant’s claim that she is entitled to disability
compensation after August 30, 2011 due to her July 25, 2011 work injury.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she had disability after August 30, 2011 due to her
July 25, 2011 work injury.

14

See supra note 9. In a September 13, 2011 letter, OWCP made a brief reference to 5 U.S.C. § 8106(c)(2), but
this document would not constitute a formal finding by OWCP, within the strictures of 20 C.F.R. § 10.516, that the
position offered by the employing establishment was suitable.

5

ORDER
IT IS HEREBY ORDERED THAT the December 29, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 7, 2012
Washington, DC

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

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

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

6


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

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

Docket No. 21-1221
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 August 9, 2021 appellant filed a timely appeal from an April 6, 2021 merit decision
and a May 5, 2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a recurrence
of medical treatment causally related to his accepted May 5, 2009 employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim, pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2009 appellant, then a 24-year-old materials expediter, filed a traumatic injury
claim (Form CA-1) alleging that on May 5, 2009 he injured his left knee when moving pallets of
material with the use of a pallet jack while in the performance of duty. Following a request for
surgery, OWCP formally adjudicated the claim and accepted left knee sprain, lateral collateral
ligament; old bucket handle tear of left medial meniscus and left knee contusion. Appellant
underwent OWCP-authorized left knee arthroscopic surgeries on July 23, 2009 and
October 27, 2016. OWCP paid him intermittent wage-loss compensation on the supplemental rolls
through November 21, 2016.
In a report dated May 17, 2017, Dr. Paul A. Stanton, an osteopath Board-certified in
orthopedic surgery, related that a final medical evaluation was performed at the request of
appellant. He related appellant’s medical history and physical examination findings. Dr. Stanton
noted that appellant had returned to full-duty work and that future medical care was not anticipated.
He concluded that appellant had reached a permanent and stationary level of disability.
Appellant’s last medical examination of record prior to his notice of recurrence of medical
treatment was conducted on December 1, 2017. In a report of even date, Dr. Amarilda
Christensen, a Board-certified occupational medicine specialist, performed a permanent
impairment evaluation and concluded that appellant had two percent permanent impairment of the
left lower extremity.2
On January 26, 2021 appellant filed a Form CA-2a alleging that he sustained a recurrence
of the need for medical treatment, commencing December 2, 2020 causally related to his accepted
left knee employment conditions. He asserted that it was difficult to bend, stoop, and climb stairs.
Appellant also noted that since he returned to work he could not seek medical treatment as his case
was closed.
In a development letter dated February 16, 2021, OWCP informed appellant of the
definition of a recurrence of a work-related medical condition for medical treatment and requested
that he submit additional evidence in support of his claim, including a physician’s opinion
supported by a medical explanation as to the relationship between h is current need for medical
treatment and the accepted employment conditions. It provided a questionnaire for his completion,
which posed questions regarding his medical treatment. 3 OWCP afforded appellant 30 days to
respond.
In a March 17, 2021 statement, appellant reported that he had experienced issues with his
left knee since his original injury, which had progressively worsened following the second surgery.

2
By decisions dated February 17, 2010 and Ma rch 6, 2018, OWCP granted appellant schedule award for one
percent permanent impairment of the left lower extremity, and an additional schedule award for two percent permanent
left lower extremity, respectively, for a total three percent permanent impairment of the left lower extremity.
3

OWCP advised appellant that, if a new traumatic work injury or occupational disease (Form CA-2) produced by
the work environment occurred, a new claim might need to be filed. This was true even if the new incident or exposure
involved the same part of the body as previously affected.

2

He noted that recent x-rays showed his knee was arthritic and narrowing as a result of his
arthroscopic surgeries and meniscus tear repair.
Appellant submitted reports from Dr. Benjamin M. Woodhead, an orthopedic surgeon,
dated February 19 and March 10, 2021. In his February 19, 2021 report, Dr. Woodhead noted that
appellant was seen for follow up six weeks’ status postsurgery, and his left knee. With regard to
the left knee, he noted appellant’s medical history, presented examination findings, and diagnosed
left knee patellofemoral syndrome and left knee mild arthritis. Dr. Woodhead indicated that
appellant had some irritation in the knee, but that it was difficult to say if his patellofemoral
symptoms stemmed from his prior surgeries or work-related injuries without having all the records.
In the March 10, 2021 report, he indicated that appellant had anterior knee pain, patellofemoral
symptoms; mild-to-moderate degenerative changes on x-rays; left knee patellofemoral syndrome,
mild arthritis. Dr. Woodhead reiterated that he was unable to answer questions regarding causal
relationship as he did not have all of appellant’s records.
By decision dated April 6, 2021, OWCP denied appellant’s recurrence claim, finding that
the medical evidence of record was insufficient to establish a recurrence of the need for medical
treatment due to a worsening of his accepted employment injuries. It found that there was no
medical evidence to support that the claimed recurrence was due to the accepted work -related
injury of May 5, 2009.
On April 26, 2021 appellant requested reconsideration. He indicated that he was never
notified by OWCP that his case was closed for medical treatment and argued that it should not
have been closed. Appellant requested that his case be reopened, and that the acceptance of his
claim be expanded to include osteoarthritis and patellofemoral injuries and medical treatment for
such conditions. Duplicative copies of evidence previously of record was submitted.4
By decision dated May 5, 2021, OWCP denied appellant’s request for reconsideration. 5
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment f or the accepted condition or injury when there is no
accompanying work stoppage. 6 An employee has the burden of proof to establish that he or she

4

This included June 2, 2012 and August 13, 2016 magnetic resonance imaging (MRI) scans of the left knee and
Dr. Woodhead’s February 19 and March 10, 2021 reports.
OWCP explained why an “October 26, 2020” medical report from Dr. Louis C. Redix, Jr., an orthopedic surgery
specialist, supported case closure. The Board notes that the medical report from Dr. Redix OWCP referenced is dated
October 26, 2009, not October 26, 2020. In his October 26, 2009 report, Dr. Redix, indicated, “The patient will not
require any additional medical treatment or follow up. The patient is not a surgical candidate nor is he likely to become
one. There is no need for continued medication or physical therapy. No further intervention will be needed or
anticipated.” This report was used in the calculation of appellant’s February 17, 2010 schedule award. See supra
note 2.
5

6

20 C.F.R. § 10.5(y).

3

sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause. 7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his
or her burden. 8 To meet this burden, the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history , supports that the
condition is causally related and supports his or her conclusion with sound medical rationale. 9
Where no such rationale is present, medical evidence is of diminished probative value. 10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury.
In a report dated May 17, 2017, Dr. Stanton, appellant’s treating physician, related that a
final medical evaluation was performed at appellant’s request. He noted that appellant had
returned to full-duty work and that future medical care was not anticipated. Following this report,
the other medical evidence received of record prior to appellant’s request for further medical
treatment did not document further medical treatment, but evaluated appellant for schedule award
purposes. The Board therefore finds that appellant’s claim for recurrence of medical condition
was made more than 90 days after release from medical care by Dr. Stanton, and therefore his
claim for recurrence of medical treatment must be supported by medical evidence of a causal
relationship between his current condition and the accepted May 5, 2009 employment injury. 11
In his February 19, 2021 report, Dr. Woodhead noted the medical history of appellant’s
left knee, presented examination findings, and diagnosed left knee patellofemoral syndrome and
left knee mild arthritis. He indicated that appellant had some irritation in the knee, but opined that
it was difficult to say if appellant’s patellofemoral symptoms stemmed from his prior surgeries or
work-related injuries without having all the records. In the March 10, 2021 report, Dr. Woodhead
reiterated that he was unable to answer the causal relationship of appellant’s anterior knee pain,
patellofemoral symptoms; mild-to-moderate degenerative changes on x-rays; left knee
patellofemoral syndrome, mild arthritis as he did not have all of appellant’s records and films. His
reports are of limited probative value as he was unable to offer an opinion on the issue of causal
relationship. The Board has held that a medical report is of no probative value on a given medical
7

M.P., Docket No. 19-0161 (issued August 16, 2019); E.R., Docket No. 18-0202 (issued June 5, 2018).

8

Federal (FECA) Procedural Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4b (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

S.P., Docket No. 19-0573 (issued May 6, 2021); A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket
No. 15-0778 (issued June 25, 2015).
10

M.P., supra note 7; Michael Stockert, 39 ECAB 1186 (1988).

11

Supra note 9.

4

matter if it does not contain an opinion on that matter. 12 Thus, these reports are insufficient to
establish appellant’s recurrence claim.
As the medical evidence of record does not contain a rationalized medical opinion
establishing that appellant required further medical care on or after December 2, 2020 causally
related to his accepted employment conditions, the Board finds that appellant has not met his
burden of proof to establish his recurrence claim.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 13
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.14
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 15 If the request is timely, but fails to meet at least
one of the requirements for reconsideration, OWCP will deny the request for reconsideration
without reopening the case for review on the merits. 16

12

See S.P., Docket No. 19-0573 (issued May 6, 2021); T.H., Docket No. 18-0704 (issued September 6, 2018);
Charles H. Tomaszewski, 39 ECAB 461 (1988).
13

5 U.S.C. § 8128(a); T.T., Docket No. 19-0319 (issued October 26, 2020); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
14

20 C.F.R. § 10.606(b)(3); see V.D., Docket No. 20-0569 (issued December 7, 2020); B.R., Docket No. 19-0372
(issued February 20, 2020); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
15

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
16

Id. at § 10.608(b); see M.E., Docket No. 20-0067 (issued October 15, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant argued that OWCP prematurely closed his case as he was not released from
medical care. However as previously discussed, Dr. Stanton in his May 17, 2017 report released
appellant from medical care. Appellant’s allegations that he was not released from medical care
do not demonstrate that OWCP erroneously applied or interpreted a specific point of law and do
not constitute a valid new legal argument. Consequently, the Board finds that appellant was not
entitled to a review of the merits based on the first or second above -noted requirements under
20 C.F.R. § 10.606(b)(3).17
Appellant also failed to submit relevant and pertinent new evidence in support of his
reconsideration request. He submitted duplicative evidence previously of record. Evidence which
repeats or duplicates evidence already of record has no evidentiary value and does not constitute a
basis for reopening a case.18 Therefore, appellant also failed to satisfy the third requirement under
20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant has not met any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
the need for medical treatment on or after December 2, 2020 causally related to his accepted
May 5, 2009 employment injury. The Board further finds that OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

17

D.B., Docket No. 19-1963 (issued July 1, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020); C.B.,
Docket No. 18-1108 (issued January 22, 2019).
18

R.B., Docket No. 21-0035 (issued May 13, 2021); V.L., Docket No. 19-0069 (issued February 10, 2020); A.K.,
Docket No. 19-1210 (issued November 20, 2019); R.S., Docket No. 19-0312 (issued June 18, 2019); Richard Yadron,
57 ECAB 207 (2005); Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

ORDER
IT IS HEREBY ORDERED THAT the April 6 and May 5, 2021 decisions of the Office
of Workers’ Compensation Programs are 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
__________________________________________
A.B., claiming as widow of F.B., Appellant
and
DEPARTMENT OF THE NAVY, FORT
LEJEUNE, NC, Employer
__________________________________________

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)

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

Docket No. 11-675
Issued: October 14, 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 January 20, 2011 appellant filed a timely appeal from a December 15, 2010 merit
decision of the Office of Workers’ Compensation Programs. 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 the employee’s death on February 9, 2009 was causally related to
his federal employment.
FACTUAL HISTORY
OWCP accepted that the employee, a warehouseman, sustained permanent aggravation of
asthma as a result of exposure to dust in federal employment. The employee received
compensation for wage loss until his death on February 9, 2009.
1

5 U.S.C. § 8101 et seq.

On May 8, 2009 appellant filed a claim for compensation by widower (Form CA-5)
alleging that the employee’s death was casually related to the employment injury. The reverse of
the claim form was completed by Dr. B. Gentry, a family practitioner, who checked a box “yes”
that the employee’s death was related to the employment injury. In a narrative statement dated
April 23, 2009, he stated that Dr. Leif Paulson was the employee’s primary care manager, but he
was currently deployed and unavailable. Dr. Gentry stated that the employee had multiple
pulmonary problems, including chronic obstructive pulmonary disease, moderate persistent
asthma, bronchiolitis obliterana, multiple pulmonary nodules and recurrent pulmonary infections.
Appellant submitted a death certificate dated February 24, 2009, signed by Dr. Shreyana
Patel, an internist, who indicated the cause of death was acute respiratory failure, hypotension,
respiratory distress congestive heart failure and acute renal failure.
In a hospital report dated January 22, 2009, Dr. Sean McKay, an internist, noted the
employee had been admitted on January 15, 2009 for gout exacerbation and then was transferred
to the intensive care unit on January 17, 2009 due to altered mental status, fever and decreased
urine output. He described the hospital treatment and advised appellant was discharged on
January 22, 2009.
OWCP referred the medical records to Dr. Thomas Truncale, an osteopath, for a second
opinion evaluation. In a report dated June 15, 2009, Dr. Truncale provided a review of medical
records. The employee was found at home on February 9, 2009 and was pronounced dead. He
opined that the employee’s death was not casually related to the accepted aggravation of asthma.
Dr. Truncale stated that appellant’s hospital treatment commencing January 15, 2009 did not
establish it was due to an asthma exacerbation. He stated there was no evidence that the
employee’s asthma was poorly controlled or that the employee had a prior history of intensive
care treatment for asthma. Dr. Truncale concluded the employee likely had an acute coronary
artery event that caused his death. The record also contains a June 19, 2009 report from him
indicating that he had reviewed additional records. Dr. Truncale reiterated his opinion with
respect to the death of the employee.
By decision dated July 14, 2009, OWCP denied the claim for compensation. It found the
weight of the evidence rested with Dr. Truncale.
Appellant requested reconsideration of her claim. She submitted a September 22, 2009
note from Dr. Patel, who stated he was providing an amendment to the list of causes of death.
Dr. Patel stated that the employee “died as permanent exacerbation of asthma leading to
acceleration of his death along with multiple other medical conditions he was experiencing at
time of death. Patient died in the hospital at New Hanover Regional Medical Center.” Appellant
also submitted on November 10, 2009 treatment reports (SF 600) from the employing
establishment medical clinic regarding the employee’s treatment.
In a decision dated January 14, 2010, OWCP reviewed the merits of the claim and denied
modification.
Appellant again requested reconsideration.

2

In a report dated April 21, 2010, Dr. Paulson opined that although the original death
certificate did not mention asthma as a cause of death, this omission was incorrect. He stated the
employee “suffered from moderate to severe respiratory conditions such as Moderate Persistent
Asthma and Bronchiolitis Obliterans which predisposed [the employee] to recurrent chronic
pulmonary infections.” Dr. Paulson concluded that the employee’s asthma “as well as his other
chronic respiratory condition(s) weakened him to such a degree that while they may not have
been the primary cause of death they were a significant and contributing factor.”
By decision dated December 15, 2010, OWCP reviewed the case on its merits and again
denied modification.
LEGAL PRECEDENT
An appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment. This
burden includes the necessity of furnishing medical opinion evidence of a cause and effect
relationship based on a complete factual and medical background.2 The opinion of the physician
must be one of reasonable medical certainty and must be supported by medical rationale.3 The
mere showing that an employee was receiving compensation for total disability at the time of his
death does not establish that his death was causally related to his employment.4
FECA provides that, if there is a 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 the examination.5 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or OWCP’s medical adviser, it shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.6
ANALYSIS
In this case, OWCP relies on the opinion of the second opinion physician Dr. Truncale,
who reviewed the medical evidence of record. Dr. Truncale provided an opinion that the
employee’s death was not related to the employment-related aggravation of asthma, noting the
employee’s history and treatment prior to his death. He found there was no evidence to support
the death was causally related to the employment injury.

2

Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552 (1989).

3

Kathy Marshall (Dennis Marshal), 45 ECAB 827 (1994).

4

Edna M. Davis (Kenneth L. Davis), 42 ECAB 728 (1991).

5

5 U.S.C. § 8123.

6

20 C.F.R. § 10.321 (1999).

3

On the other hand, appellant has submitted reports supporting causal relationship.
Dr. Patel, who completed the death certificate and apparently saw the employee at the time of
death, submitted a September 22, 2009 note stating that the aggravation of asthma did accelerate
the employee’s death. An attending physician, Dr. Paulson, who had treated the employee since
2006,7 opined that the asthma had predisposed the employee to infections and had weakened his
condition, contributing to his death.
In view of this disagreement between a second opinion and attending physicians on a
difficult issue of casual relationship, the Board finds that a conflict under 5 U.S.C. § 8123(a) has
been created. The case will be remanded for proper resolution of the conflict by referral to a
referee physician. In this regards the Board notes there is some confusion regarding the location
of the employee’s death. Dr. Truncale believed the employee died at home, while Dr. Patel
indicated the employee died at the hospital. If the employee died at the hospital then presumably
there would be contemporaneous hospital reports. On remand OWCP should secure any relevant
medical reports at the time of death, to ensure the referee physician has all of the available
medical evidence on which to base a decision. After such further development as it deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision as there is an unresolved
conflict in the medical evidence.

7

The earliest report in the record from Dr. Paulson is dated October 20, 2006.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2010 is set aside. The case is remanded for further
action consistent with this decision of the Board.
Issued: October 14, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, USA TACOM,
Warren, MI, Employer
__________________________________________

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

Docket No. 09-951
Issued: December 23, 2009

Case Submitted on the Record

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

JURISDICTION
On February 23, 2009 appellant, through counsel, filed a timely appeal of July 18, 2008
and January 22, 2009 merit decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this
claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation for
wage-loss and medical benefits effective July 18, 2008 on the grounds that he no longer had any
residuals or disability causally related to his accepted employment injury; (2) whether appellant
had any continuing employment-related residuals or disability after July 18, 2008; and
(3) whether appellant established that he sustained a psychiatric or emotional condition as a
consequence of his accepted September 22, 2006 employment injury.

FACTUAL HISTORY
On October 19, 2006 appellant, then a 27-year-old mechanical engineer, filed an
occupational disease claim alleging that, on September 22, 2006, he sustained injuries to his
head, neck, back and arm when he was rear-ended by a dump truck during work-related travel.
The Office accepted the claim for concussion, post-concussion syndrome and neck sprain.
Appellant returned to part-time work on December 11, 2006, but again stopped working on
December 12, 2006.
Appellant was treated by Dr. Bharat M. Tolia, a Board-certified psychiatrist and
neurologist. On January 17, 2007 Dr. Tolia diagnosed: status post motor vehicle accident;
whiplash with cervical pain; cerebral concussion; after-concussion syndrome with cognitive
difficulty, mood disorder, affective disorder, child-like behavior and emotional lability; back
stiffness; insomnia; mood swings; right arm and hand pain; and right-sided cluster headaches.
His neurological examination was normal. Dr. Tolia found appellant to be alert, awake and
oriented, with normal attention span, recall, speech and language functions.
In a letter dated February 12, 2007, the Office asked appellant to provide a report from
Dr. Tolia, which provided objective findings to substantiate his diagnoses and a rationalized
opinion explaining how those conditions were causally related to his accepted injury.
In a report dated March 14, 2007, Dr. Tolia reiterated his previous diagnoses and opined
that appellant was unable to work. He stated that appellant continued to complain of head pain,
which worsened after he worked for a few hours. Dr. Tolia related appellant’s complaints of
irritability, sadness, estrangement, isolation and hyper vigilance. He noted that appellant had
difficulty concentrating; was confused and distracted; had an exaggerated startle response; and
suffered from headaches and nausea. The record contains follow-up reports from Dr. Tolia from
March 22 through December 12, 2007 reflecting appellant’s complaints of continuing memory
problems, headaches and stress. On July 12, 2007 Dr. Tolia diagnosed post-traumatic stress
syndrome.
On March 29, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Yasmeen Ahmad, a Board-certified psychiatrist and neurologist, for a second
opinion as to whether appellant had continuing residuals causally related to his accepted
September 22, 2006 injury and, if so, whether he was disabled as a result of those residuals. In a
report dated April 18, 2007, Dr. Ahmad stated that there was no objective evidence supporting
continuing residuals of a neck sprain, concussion or postconcussion syndrome related to the
September 22, 2006 injury. He opined that, from a neurological standpoint, appellant was
capable of performing his preinjury duties of a mechanical engineer without any restrictions.
Based on his review of the entire record, Dr. Ahmad provided a history of injury, which reflected
appellant’s report that he did not hit his head or pass out during or as a result of, the accepted
incident. On examination, appellant was alert, oriented and able to do “serial [seven]
subtraction;” however, the speed of processing was extremely slow. Cranial nerve testing
revealed pupils that were equal, round and reactive to light and normal discs fundus (cranial
nerves 2); intact extraocular movements (cranial nerves 3, 4 and 6); intact sensation and strength
bilaterally (cranial nerve 5); symmetrical nasal labile folds bilaterally and equal wrinkling of the
forehead (cranial nerve 7); air conduction better than bone conduction, with a midline Weber

2

(cranial nerve 8); uvula midline and well-elevated palate (cranial nerves 9 and 10); strength of
aternocleidomastoid intact bilaterally (cranial nerve 11); and midline tongue, with no atrophy or
fasciculations (cranial nerve 12). Motor examination showed no pronator drift or subtle
weakness. Strength was 5/5 in all muscle groups. Deep tendon reflexes were 2+ in the upper
extremities, 3 to 4+ at the knee and 0 to 1+ at the ankles with downgoing Babinski. On sensory
examination, appellant was intact to pinprick. Cerebellar examination revealed normal “fingernose-finger” test and normal tandem gait. Appellant had full range of motion in the cervical
spine with flexion, extension and lateral rotation. Dr. Ahmad noted that appellant had extreme
confusion with every instruction.
Dr. Ahmad found no clinical evidence of seizure activity or of cognitive deficits
secondary to the 2006 motor vehicle accident. He noted that the cognitive deficits that appellant
was describing, such as pouring water on a surface rather than in a glass and forgetting to take
the dog on his way to walk, were not consistent with the type of minor injury that he sustained;
nor were they consistent with a closed-head injury. Dr. Ahmad diagnosed medication overuse
headaches, which he opined would cease in a period of one to four weeks, once the over-thecounter pain medications and triptans were stopped. Regarding appellant’s alleged neck pain,
Dr. Ahmad found no radicular symptoms and no numbness or tingling. The neurological
examination was completely normal, with normal strength and sensation and bilaterally
symmetrical reflexes. Dr. Ahmad stated that appellant’s neck pain was myofascial, self-limited
and resolved and opined that he had returned to preaccident status within a few weeks to a few
months after the accepted injury.
The Office found a conflict in medical opinion between the Office’s second opinion
physician and Dr. Tolia. It referred appellant, together with a statement of accepted facts, a list
of questions and the medical record to Dr. William M. Leuchter, a Board-certified psychiatrist
and neurologist, to resolve the conflict as to whether appellant continued to suffer residuals from
his accepted conditions and, if so, whether he was disabled as a result of those residuals.
In a February 6, 2008 report, Dr. Leuchter reviewed the entire medical record and
provided a history of injury and treatment and examination findings. He stated that, although
appellant exhibited rather bizarre and inappropriate behavior, he exhibited no neurological
symptoms and was not neurologically disabled as a result of his accepted injury. Dr. Leuchter
found that appellant had a good memory for events surrounding the accident, with no evidence of
retrograde or anterograde amnesia. He opined that appellant’s behavior was psychiatric in origin
and could not be related to his motor vehicle accident. In addition, appellant’s neurological
testing, including a magnetic resonance imaging scan of the brain, a previous head computerized
tomography scan and electrophysiological studies, was normal. Dr. Leuchter found no evidence
of peripheral or central nervous system dysfunction, constructional apraxia or visual spatial
disorientation. On physical examination, both pupils were equal, round and reactive at five
millimeter. The discs were flat; the fields were full; and the corneas were equal. There was no
facial weakness. Cranial nerves 8 through 12 were normal. Muscle mass and tone was normal.
There was no drift, no tremor and no focal weakness. Pinprick, light touch and position were all
intact. Deep tendon reflexes were 2+ in the arms, 3 in the knees, 2+ in the ankles and
symmetrical. Dr. Leuchter noted that appellant appeared to be overusing medications.

3

In a supplemental report dated March 12, 2008, Dr. Leuchter opined that appellant’s
accepted neck sprain had fully resolved. Appellant had full range of motion in his neck, with no
residual muscle spasm, tenderness or pain on movement. His complaints of neck pain were not
substantiated at the time he was seen on February 6, 2008 with any objective neurological or
neuromuscular findings.
Appellant submitted a March 16, 2007 neuropsychological evaluation from
Dr. Bradley G. Sewick, a Board-certified clinical neuropsychologist, who indicated that he
administered a battery of tests and reviewed certain medical records. Dr. Sewick stated that
appellant was functioning very well from a neurobehavioral perspective up until the time of a
September 22, 2006 automobile accident with acceleration/deceleration-type of head trauma,
which he stated was consistent with literature concerning concussive brain injury. He diagnosed
cognitive disorder and a pain disorder with dysomnia, secondary to the September 22, 2006 head
injury. Dr. Sewick also noted evidence of a mood disorder with post-traumatic anxiety
symptoms and some psychotic features. He also suggested the possibility that appellant might
have an organic personality syndrome secondary to the accepted injury.
On April 7, 2008 the Office proposed to terminate appellant’s compensation and medical
benefits. It determined that Dr. Leuchter’s referee report established that appellant’s injuryrelated disability and residuals had ceased. Appellant was afforded 30 days within which to
submit any additional evidence.
On May 6, 2008 Dr. Tolia reported that appellant had scored below average on the
Neurotax memory test (70.6 percent) and that electroencephalogram testing was abnormal for
subcortical paroxysmal disturbance. He stated that appellant had numerous mood disorders and
continued to experience sensitivity to light, anxiety, memory and concentration loss, neck and
leg pain as a result of his September 2006 head injury.
The record contains an April 22, 2008 report from Dr. Sewick. The report reflects that
appellant was unable to return to work following his accepted injury, which was characterized as
life-changing and likely career-ending. Following the accident, appellant reportedly was
experiencing auditory and visual hallucinations, extreme difficulty differentiating between reality
and his perceptions, intense feelings of fear, symptoms of post-traumatic stress, debilitating
emotional and physical fatigue, depression, inability to regulate his own emotions, extreme
nervousness, hyper vigilance, anxiety, fear, disinhibition, anger, verbal and physical impulsivity,
notable weight loss of 25 pounds, irregular sleep patterns, obsessive-compulsive tendencies,
nightmares of morbid and dreadful content, feelings of peculiarity, social isolation, not to
mention multiple physical pain problems relating to injury. In addition, he reported symptoms of
photosensitivity, dizziness, loss of coordination, a significant decrease in his stamina, constant
headaches that range from mild to severe intensity, neck, shoulder and back pain and pain in his
right upper extremity including tingling. In a separate report dated April 22, 2008, Dr. Sewick
stated that appellant continued to present with deficits in executive skills, concentration,
memory, processing information, insight and judgment due to his September 22, 2006 motor
vehicle accident. He diagnosed cognitive disorder, pain disorder with dysomnia, mood disorder
with post-traumatic anxiety symptoms with psychotic features, all of which he indicated were
secondary to the September 22, 2006 head injury. Dr. Sewick also recommended ruling out
organic personality syndrome secondary to the September 22, 2006 accident.

4

The Office referred appellant, together with a statement of accepted facts, to
Dr. Michael H. Gotlib, a Board-certified psychiatrist and neurologist, for a second opinion
evaluation, who was asked to provide an opinion as to whether appellant sustained a
psychological or emotional condition causally related to his accepted 2006 motor vehicle
accident. In a June 6, 2008 report, Dr. Gotlib stated that he had reviewed the medical record
available to him, as well as the statement of accepted facts and found no evidence of a
psychiatric condition.1 He noted that appellant reported no psychotic symptoms, no
hallucinations or delusions, no mood symptoms, no depression, no mania and no anxiety
symptoms at the time of his examination. On examination, appellant was alert and oriented, with
no auditory or visual hallucinations seen or reported. He had good immediate recent and remote
memory. Appellant knew the name of the President and Vice President. He could tell the
difference between the sun and a ball. Appellant was able to do “serial 7’s” and to spell “w—
o—r—l—d” frontward and backwards. He could repeat “No ifs ands and buts.” Appellant had
goal directed speech of normal range, affect and intensity. Dr. Gotlib opined that, from a
psychiatric standpoint, appellant was not disabled and was able to perform his usual job as a
mechanical engineer without restrictions and that no further treatment was indicated. He also
indicated that he would defer to a neuropsychologist on the issue of whether appellant had a
cognitive disorder, although he found no evidence of such a condition.
By decision dated July 18, 2008, the Office finalized the termination of appellant’s
compensation and medical benefits effective that date. It found that Dr. Leuchter’s referee report
was sufficient to resolve the conflict in the medical evidence and established that appellant was
not disabled and had no remaining residuals from his accepted injury. The Office further found
that Dr. Gotlib’s second opinion report represented the weight of the medical evidence regarding
appellant’s psychological condition and established that he suffered from no work-related
psychiatric condition.
On July 24, 2008 appellant, through counsel, requested a telephone hearing. At the
November 5, 2008 hearing, he testified that he hit his headrest during the September 22, 2006
motor vehicle accident. Appellant stated that he was unable to perform the duties of his position
after the injury. Appellant’s attorney argued that Dr. Gotlib’s report was deficient, as he did not
have access to all of the medical records and saw him for only five minutes.
Appellant submitted a July 22, 2008 note from Dr. Sewick, reflecting his opinion that
appellant had a cognitive disorder due to a head injury. He also submitted follow-up therapy
notes from S. MacDonald, a licensed counselor, from July 22 through December 1, 2008.
By decision dated January 22, 2009, the Office hearing representative affirmed the
July 18, 2008 decision terminating appellant’s compensation and medical benefits. The
representative found that the weight of the medical evidence on the issue of residuals and
disability related to the accepted injury was represented by Dr. Leuchter’s February 6 and
March 12, 2008 reports, which established that appellant no longer had residuals from the
September 22, 2006 motor vehicle accident. He also found that appellant had failed to meet his
burden of proof to establish that he had sustained a psychiatric condition causally related to the
1

Dr. Gotlib stated that he had not received all treatment notes from appellant’s therapists and indicated that
review of those notes would be useful.

5

accepted injury, based on Dr. Gotlib’s second opinion report, which represented the weight of
the medical evidence on that issue.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation.2 After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.6
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Board finds that the Office correctly determined that a conflict in the medical
opinion evidence arose between Dr. Tolia, appellant’s treating physician, and Dr. Ahmad, an
Office referral physician, as to whether appellant had any residuals or disability causally related
to his accepted conditions. Dr. Tolia opined that appellant suffered from continuing
employment-related residuals and total disability. On the other hand, Dr. Ahmad opined that
appellant’s employment-related concussion, postconcussion syndrome and neck sprain had
resolved and he could return to work with no restrictions. Accordingly, the Office properly
referred the case to an impartial medical specialist for the purpose of resolving the conflict.8
In his February 6, 2008 report, Dr. Leuchter opined that appellant was not disabled and
had no remaining residuals from his accepted conditions. He reviewed the entire medical record
2

A.W., 59 ECAB ___ (Docket No. 08-306, issued July 1, 2008).

3

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007).

4

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

5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007).

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

7

Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Id.

6

and provided a history of injury and treatment and detailed examination findings. Dr. Leuchter
stated that, although appellant exhibited rather bizarre and inappropriate behavior, he was not
neurologically disabled and, in fact, exhibited no neurological symptoms and as a result of his
accepted concussion, postconcussion syndrome and neck sprain. He found that appellant had
good memory for events surrounding the accident, with no evidence of retrograde or anterograde
amnesia. Dr. Leuchter opined that appellant’s behavior was psychiatric in origin and could not
be related to his motor vehicle accident. In addition, appellant’s neurological testing was
normal. Dr. Leuchter found no evidence of peripheral or central nervous system dysfunction.
Appellant showed no symptoms of constructional apraxia or visual spatial disorientation. His
examination revealed equal, round and reactive pupils, flat discs, full fields and equal corneas;
no facial weakness, no drift, no tremor and no focal weakness; normal muscle mass and tone;
and normal sensation and deep tendon reflexes. Cranial nerves 8 through 12 were normal. In his
March 12, 2008 supplemental report, Dr. Leuchter opined that appellant’s accepted neck sprain
had fully resolved. Appellant had full range of motion in his neck, with no residual muscle
spasm, tenderness or pain on movement. His complaints of neck pain were not substantiated at
the time he was seen on February 6, 2008 with any objective neurological or neuromuscular
findings.
The Board finds that Dr. Leuchter’s opinion was based on a proper factual and medical
background and is entitled to special weight. Based on his review of the case record and
statement of accepted facts, physical examination and negative findings on objective
examination, he found that appellant did not have any residuals or disability causally related to
his accepted concussion, postconcussion syndrome and neck sprain. Dr. Leuchter opined that
appellant’s bizarre behavior was psychiatric in origin and could not be related to his accepted
injury. Moreover, appellant’s claimed neck pain was not substantiated by any objective findings.
Dr. Leuchter’s well-rationalized reports constitute the special weight of the medical opinion
evidence afforded an impartial medical specialist. The Board, therefore, finds that the Office
met its burden of proof to terminate appellant’s compensation benefits as of July 18, 2008.
On appeal, appellant’s representative argues that the Office’s July 18, 2008 and
January 22, 2009 decisions were contrary to fact and law. For reasons stated herein, the Board
finds this argument to be without merit.
LEGAL PRECEDENT -- ISSUE 2
Once the Office met its burden of proof to terminate his compensation and medical
benefits, appellant had the burden to establish that he had any residuals or disability causally
related to his accepted injury.9 To establish a causal relationship between the condition, as well
as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence, based on a complete factual and medical background, supporting
such a causal relationship.10 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.11 Rationalized
9

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

10

Kathryn E. Demarsh, supra note 6.

11

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elizabeth Stanislav, 49 ECAB 540 (1998).

7

medical evidence is medical evidence which includes a physician’s rationalized medical opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factors. The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.12
ANALYSIS -- ISSUE 2
After the Office properly terminated appellant’s compensation and medical benefits,
effective July 18, 2008, the burden of proof shifted to appellant to establish continuing
employment-related residuals and disability.13 Appellant submitted a July 22, 2008 note from
Dr. Sewick, reflecting his opinion that appellant had a cognitive disorder due to a head injury.
He also submitted follow-up therapy notes from a counselor from July 22 through
December 1, 2008. Dr. Sewick did not explain how the cognitive disorder was causally related
to appellant’s accepted conditions. Therefore, his report is of limited probative value and
insufficient to give rise to a new conflict or otherwise show that the termination was improper.14
Moreover, as Dr. Sewick is a psychologist, rather than a medical physician, he is not considered
a “physician” under the Federal Employees’ Compensation Act for purposes of determining
whether appellant had continuing residuals from his accepted medical conditions.15 Further,
notes from a counselor do not constitute probative medical evidence.16
The Board finds that appellant has failed to meet his burden of proof to establish that he
had any residuals or disability causally related to his accepted conditions after July 18, 2008.
LEGAL PRECEDENT -- ISSUE 3
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional

12

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Solomon Polen, 51 ECAB 341 (2000).

13

I.J., supra note 6; Joseph A. Brown, Jr., supra note 9.

14

The Board has held that a medical opinion not fortified by medical rationale is of diminished probative value.
Mary A. Ceglia, 55 ECAB 626 (2004). See Brenda L. DuBuque, 55 ECAB 212 (2004); see also David L. Scott,
55 ECAB 330 (2004); Willa M. Frazier, 55 ECAB 379 (2004).
15

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.” 5 U.S.C. § 8101(2).
16

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a “physician” as defined in 5 U.S.C. § 8101(2). Id. See Merton J. Sills, 39 ECAB
572, 575 (1988).

8

conduct.17 The subsequent injury is compensable if it is the direct and natural result of a
compensable primary injury.18 With respect to consequential injuries, the Board has stated that,
where an injury is sustained as a consequence of an impairment residual to an employment
injury, the new or second injury, even though nonemployment related, is deemed, because of the
chain of causation to arise out of and in the course of employment and is compensable.19
Proceedings under the Act are not adversary in nature; nor is the Office a disinterested
arbiter.20 While the claimant has the burden to establish entitlement to compensation, the Office
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.21 Accordingly, once the Office undertakes to develop the medical evidence further, it
has the responsibility to do so in the proper manner.22
ANALYSIS -- ISSUE 3
The Board finds that the case is not in posture for decision as to whether appellant
developed a psychiatric condition as a result of his accepted September 22, 2006 injury.
Therefore, the case will be remanded for further development of the medical evidence.
Appellant’s treating physicians opined that appellant developed psychiatric conditions as
a consequence of his September 22, 2006 motor vehicle accident. On January 17, 2007
Dr. Tolia, who began treating appellant at the time of his accepted injury, diagnosed mood
disorder, affective disorder, child-like behavior and emotional lability, in addition to his accepted
physical conditions. On March 17, 2007 he diagnosed post-traumatic stress disorder. On May 6,
2008 Dr. Tolia stated that appellant had numerous mood disorders and continued to experience
sensitivity to light, anxiety, memory and concentration loss, neck and leg pain as a result of his
September 2006 head injury.
In a March 16, 2007 neuropsychological evaluation, Dr. Sewick, a Board-certified
clinical neuropsychologist diagnosed pain and cognitive disorders secondary to the
September 22, 2006 head injury and noted evidence of a mood disorder with post-traumatic
anxiety symptoms and some psychotic features. On April 22, 2008 he stated that, following the
accepted injury, appellant experienced auditory and visual hallucinations, extreme difficulty
differentiating between reality and his perceptions, intense feelings of fear, symptoms of posttraumatic stress, debilitating emotional and physical fatigue, depression, inability to regulate his
own emotions, extreme nervousness, hyper vigilance, anxiety, fear, disinhibition, anger, verbal
and physical impulsivity, notable weight loss of 25 pounds, irregular sleep patterns, obsessivecompulsive tendencies, nightmares of morbid and dreadful content, feelings of peculiarity, social
17

Albert F. Ranieri, 55 ECAB 598 (2004).

18

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

19

Kathy A. Kelley, 55 ECAB 206 (2004).

20

Vanessa Young, 55 ECAB 575 (2004).

21

Richard E. Simpson, 55 ECAB 490 (2004).

22

Melvin James, 55 ECAB 406 (2004).

9

isolation, not to mention multiple physical pain problems relating to injury. Dr. Sewick
diagnosed cognitive disorder, pain disorder with dysomnia, mood disorder with post-traumatic
anxiety symptoms with psychotic features, all of which he indicated were the result of the
September 22, 2006 head injury.
The Office referred appellant to Dr. Gotlib for an opinion as to whether appellant
sustained a psychological or emotional condition causally related to his accepted 2006 motor
vehicle accident. In his June 6, 2008 report, Dr. Gotlib stated that he had reviewed the medical
record available to him, as well as the statement of accepted facts and found no evidence of a
psychiatric condition. Finding that his report constituted the weight of the medical evidence, the
Office hearing representative found that appellant had failed to establish a claim for a psychiatric
condition. The Board finds, however, that Dr. Gotlib’s report is deficient and requires
supplementation.
Dr. Gotlib noted that he had not reviewed appellant’s entire medical record. As his
opinion was not based on a complete factual and medical background, it is of diminished
probative value.23 Objective examination findings were scant and superficial. The Board is
unable to determine from the fact that appellant knew the names of the President and Vice
President, could tell the difference between the sun and a ball, was able to do “serial 7’s” and to
spell “w—o—r—l—d” frontward and backwards and could repeat “No ifs, ands and buts,” that
he did not have a psychiatric condition. Dr. Gotlib noted that appellant was alert and oriented,
with no auditory or visual hallucinations seen or reported; had good immediate recent and remote
memory; and had goal directed speech of normal range, affect and intensity. He opined that,
from a psychiatric standpoint, appellant was not disabled and was able to perform his usual job
as a mechanical engineer without restrictions and that no further treatment was indicated.
However, Dr. Gotlib did not explain how his findings compelled the conclusion that appellant
did not have a psychological condition, nor did he address Dr. Leuchter’s opinion that
appellant’s bizarre and inappropriate behavior was psychiatric in origin. Most importantly,
Dr. Gotlib did not discuss the discrepancies between his findings and those of Dr. Sewick or
explain why the symptoms exhibited by appellant, as documented by Dr. Sewick, were not
caused or exacerbated by the September 22, 2006 injury. Without such explanation, his opinion
is of limited probative value.
The Board finds that this case is not in posture for a decision. Although the opinions of
appellant’s treating physicians are not fully rationalized, they support his claim for a
consequential psychiatric condition. Once the Office undertook to develop the record by seeking
a second opinion on the relevant issue, it had the responsibility to do so in a proper manner.24
Given the deficiency in Dr. Gotlib’s report, the Office should not have denied appellant’s claim
for a consequential injury, prior to receiving a clarifying report. Accordingly, the Board will
remand the case to the Office for appropriate further medical development. After further
development as deemed necessary, it should issue an appropriate merit decision on appellant’s
claim.

23

K.W., supra note 12.

24

Melvin James, supra note 22.

10

CONCLUSION
The Board finds that the Office properly terminated appellant’s wage-loss and medical
benefits, effective July 18, 2008, on the grounds that he had no residuals or disability related to
his accepted employment injury. The Board also finds that appellant has failed to establish that
he had any employment-related residuals or disability after July 18, 2008 due to his accepted
conditions. The Board finds, however, that the case is not in posture for a decision as to whether
appellant has established that he sustained a psychiatric condition as a consequence of his
accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2009 and July 18, 2008 are affirmed in part and
remanded in part.
Issued: December 23, 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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Norfolk, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-294
Issued: April 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On November 20, 2012 appellant filed a timely appeal of a September 5, 2012 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On May 18, 2011 appellant, then a 60-year-old supply technician, filed an occupational
disease claim alleging that he was physically assaulted by two coworkers on February 11 and
1

5 U.S.C. § 8101 et seq.

May 3, 2011. Appellant’s supervisors disputed his claim noting that the implicated coworkers
denied her allegations and that the employing establishment had relocated personnel so that there
was no interaction with appellant.
In his narrative statement, appellant alleged that he was harassed through assaults by
Erinn Brown on May 3, 2011 and Charlie Richardson on February 10, 2011. He stated that on
May 3, 2011 he approached Mr. Brown’s duty station in order to turn the air conditioner off.
Mr. Brown moved his chair to prevent appellant from reaching the switch and then jumped out
of his chair and pushed appellant. When appellant told Mr. Brown not to push him, Mr. Brown
allegedly put his hand on appellant’s chest and asked what appellant was going to do, referring to
him as an old man. He stated that, a few weeks prior to this incident, Mr. Brown ran over his
foot with his chair when appellant approached to turn off the air conditioner. Mr. Brown also
bumped into appellant’s shoulder when they were both going through the door.
Appellant submitted medical evidence diagnosing stress from fear of violence at the
workplace.
In a letter dated September 8, 2011, OWCP requested additional factual and medical
evidence in support of appellant’s emotional condition claim. Appellant described the incident
on February 10, 2011. He stated that the heater was on high in his office and that the noise was
such that he could not hear his clients. Appellant opened the door and Mr. Richardson slammed
the door closed. Mr. Richardson and appellant engaged in a pushing and shouting match.
Appellant alleged that Mr. Richardson stated, “I know why you are doing this because you do
n[o]t want to testify on my behalf because of my pending [Equal Employment Opportunity]
complaint.” He stated that he feared for his safety and requested that management move him to
another work area.
In a statement dated February 11, 2011, the employing establishment noted that appellant
and Mr. Richardson had an ongoing dispute regarding workload distribution. Appellant alleged
that Mr. Richardson physically threatened him. In a statement dated February 11, 2011,
Mr. Richardson stated that he and appellant could not agree on anything in the office, the heat,
the door and the routing of the workload. He stated that there were general disagreements and
they requested separate offices. Appellant alleged that Mr. Brown and Mr. Richardson were
good friends and that the incidents were planned, like a plot.
By decision dated September 5, 2012, OWCP denied appellant’s claim on the grounds
that he did not substantiate that the alleged assaults and harassment occurred as alleged.
LEGAL PRECEDENT
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,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA.3 There are situations where an injury or
2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

2

illness has some connection with the employment but nevertheless does not come within
coverage under FECA.4 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.5 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
personal injury sustained in the performance of duty within the meaning of FECA. Thus
disability is not covered when it results from an employee’s fear of a reduction-in-force nor is
disability covered when it results from such factors as an employee’s frustration in not being
permitted to work in a particular environment or to hold a particular position.6
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.7 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.8 A claimant must support his or her allegations with probative and reliable
evidence. Personal perceptions alone are insufficient to establish an employment-related
emotional condition.9
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.10
ANALYSIS
Appellant has alleged that he developed an emotional condition as the result of
harassment in the form of physical assaults by two coworkers. As noted above, he is required to
establish a factual basis for his claim of harassment through probative and reliable evidence.
4

See Robert W. Johns, 51 ECAB 136 (1999).

5

Cutler, supra note 2.

6

Id.

7

Charles D. Edwards, 55 ECAB 258 (2004).

8

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
9

Roger Williams, 52 ECAB 468 (2001).

10

Alice M. Washington, 46 ECAB 382 (1994).

3

While appellant has submitted detailed narrative statements describing physical and verbal
altercations with coworkers, Mr. Brown and Mr. Richardson, he has not provided any witness
statements, police reports or other documentation supporting that the events occurred as alleged.
The employing establishment disputed appellant’s claim on the grounds that both Mr. Brown and
Mr. Richardson denied his allegations of physical or verbal altercations or harassment. Without
the necessary evidence corroborating and substantiating that the events occurred as he alleged,
appellant has failed to meet his burden to prove a compensable employment factor and OWCP
properly denied his emotional condition claim.
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.11
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 submit the necessary factual evidence to establish
that the alleged events occurred and did not therefore meet his burden of establishing a
compensable factor of employment necessary to establish his emotional condition claim.

11

A.K., 58 ECAB 119 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5