United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
ASSISTANT SECRETARY FOR
ADMINISTRATION & MANAGEMENT,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 16-1779
Issued: November 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 7, 2016 appellant filed a timely appeal from an August 22, 2016 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 an emotional
condition on October 30, 2014.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 3, 2014 appellant then a 48-year-old human resources specialist, filed a
traumatic injury claim (Form CA-1) alleging that, on October 30, 2014, he experienced stress
and anxiety due to a confrontation with his supervisor, S.C., which occurred in front of clients
and coworkers. He alleged that S.C. approached his cubicle, while he was meeting with clients,
in a hostile and aggressive manner including a loud tone of voice. S.C. was loud, rude, and
unprofessional and she embarrassed and belittled appellant in front of his customers. On the
reverse side of the claim form, she indicated that appellant’s injury was caused by willful
misconduct as he did not follow directives which were repeated to him five times. S.C. alleged
that appellant refused to complete the work assignment each time in front of the client.
In a note dated November 6, 2014, Dr. Susan M. Fair, a licensed clinical psychologist,
diagnosed severe anxiety and panic. She found that appellant was totally disabled through
November 17, 2014. On November 13, 2014 Dr. Fair diagnosed panic attacks and intense acute
anxiety that occurred at work on November 3, 2014 during an interaction with his manager. In a
November 17, 2014 note, she indicated that the date of appellant’s initial panic attack was
October 30, 2014 rather than November 3, 2014.
In an e-mail dated October 30, 2014, R.H., a coworker, described the events of that date
beginning at 9:30 a.m. She noted that appellant was meeting with two persons from the Bureau
of Labor Statistics (BLS) and in front of these customers S.C. lectured appellant in a loud and
antagonistic manner at his desk regarding his workload and priorities. R.H. opined that S.C. was
very unprofessional and hostile, noting that S.C. informed appellant that he was responsible for
multi-tasking to accomplish his workload. She alleged that S.C. escalated the situation so that
the whole human resources division could hear the disturbance.
A.T., a coworker, provided an e-mail dated October 30, 2014 at 9:58 a.m. and noted that
appellant was talking to a customer, explaining that there were delays with deliverables. S.C.
intervened and explained that appellant needed to reprioritize his workload. He informed
appellant that he had to get multiple priorities done when she had assigned specific priorities to
him. Appellant tried to justify why certain items were not completed because of reassigned
priorities which were outside his control. S.C. instructed appellant that it was his responsibility
to complete his work. Appellant indicated that he was trying to complete his work, but could not
when his priorities kept shifting. He also noted that there were multiple steps in the process of
accession actions along with recruitment items. On November 3, 2014 A.T. asserted that S.C.
used a firm, demanding, and hostile tone in front of customers. She alleged that the conversation
escalated to the degree that she could hear it clearly from her desk.
In an e-mail dated November 5, 2014, N.G., one of appellant’s BLS customers on
October 30, 2014, confirmed that S.C. approached during the meeting and asked whether there
was a problem. Appellant denied a problem and indicated that he was explaining to the
customers why he was unable to work on their request because management kept scrambling his
priorities. S.C. informed appellant that he could handle all the different issues and that he was to
work eight hours and should be able to take care of everything in his procession. N.G. opined
that S.C. scolded appellant like a young child. She further indicated that she had never
experienced this behavior in a work environment. N.G. indicated that S.C.’s demeanor was

2

hostile, firm, and demanding. She further noted that S.C. called her to apologize and told her
that she should have handled the situation differently.
Appellant contacted S.P., the other BLS client, with whom he met on October 30, 2014.
S.P. indicated that he received a call and apology from L.D., the human resources officer, for the
loud argument between supervisor and employee in a public area.
In December 18, 2014 letters, OWCP requested additional information from appellant
and the employing establishment regarding the events of October 30, 2014, as well as additional
medical evidence from him. It allowed him 30 days to respond.
Appellant provided a narrative statement on January 22, 2015, indicating that the meeting
on October 30, 2014 was to address why N.G. and S.P.’s recruitment requests were taking an
enormous amount of time to be reviewed and posted. He alleged that the discussion was about
the priorities that he received from his supervisor. Appellant alleged that he was not aware of
S.C.’s whereabouts until she asked in a loud, hostile, and antagonistic voice whether there was a
problem. He asserted that S.C. repeatedly asked whether there was a problem and then began to
criticize his work without allowing him to speak. S.C. informed him that, if he did not know
how to prioritize, then she could do it for him. She noted that appellant had eight hours to
complete his tasks and should be able to complete all of the tasks within the eight hours. S.C.
stood in the entrance of his cubicle and spoke with a loud and hostile tone. She walked away,
but then returned to continue to criticize and ridicule appellant about his work. Appellant filed
an Equal Employment Opportunity (EEO) complaint. He was previously diagnosed with panic
attacks in October 1999 and had utilized prescribed medication for anxiety.
S.C. submitted a narrative statement on February 2, 2015. She contended that her
supervisor, L.D., telephoned her and directed her to go to appellant’s cubicle to investigate
appellant’s raised voice. S.C. asserted that when she opened her door she could hear N.G. and
appellant yelling at each other. N.G. yelled that she needed to have her new hires and that she
could not believe that appellant could not provide this service to her. Appellant retorted that he
could not get to her work because his supervisor gave him other priorities that he must first
complete. S.C. entered the cubicle and asked if there was a problem. N.G. yelled that there was
a problem, that she needed her new hires. She repeated appellant’s allegation that he must
complete other work first. S.C. directed appellant to have N.G.’s new hires by the date
requested. Appellant asserted that he could not get N.G.’s work done because S.C. had given
him priorities. She reviewed the priority he indicated and noted that it did not have a deadline,
so that appellant could complete N.G.’s new hires by the date requested. Appellant disagreed.
S.C. noted, “I stated to [appellant] again, you need to have the new hires done and this is a
directive and you are here eight hours a day and you need to multi-task your work
responsibilities and you need to bring the new hires aboard….” The disagreement with appellant
repeated itself several times until S.C. left. She noted that her voice was raised because appellant
had informed her that he suffered with hearing loss. S.C. asserted that her demeanor was calm,
but that N.G. was very upset. S.C. further alleged that she was not properly informed of the
meeting with appellant, N.G., and S.P. and should have been included in the meeting. S.C.
alleged that she apologized to N.G. for appellant’s conduct and behavior. She asserted that L.D.
apologized to S.P., but not for S.C.’s behavior. S.C. noted that appellant was closely monitored
for his work performance due to deficiencies discovered in July 2014.

3

On October 30, 2014 L.D. completed a narrative statement indicating that she heard
raised voices during the claimed incident, one of which she recognized as appellant’s. She
telephoned S.C. and advised her that she may need to investigate. S.C. came to her office and
informed her of the discussion regarding appellant’s ability to complete N.G. and S.P.’s task.
S.C. advised L.D. that she had instructed appellant that one of his priorities did not have a
deadline and that he had to be able to multitask. L.D. asked whether the discussion with
appellant took place in the common area. S.C. acknowledged that it had and L.D. then advised
that discussions of that type should take place after customers had left and behind closed doors.
L.D. suggested to S.C. that she could have taken the whole group to her office or to a conference
room. L.D. noted that she contacted S.P. and informed him that the discussion should have been
held behind closed doors with appellant. She indicated, “I apologized for the situation that they
witnessed, but not [S.C.’s] behavior.”
On October 30, 2014 S.C. provided appellant with written counseling regarding his
failure to comply with deadlines and directives from October 6 through 29, 2014.
In a July 13, 2015 decision, OWCP denied appellant’s traumatic emotional condition
claim. It found that appellant had not substantiated a compensable employment factor as causing
or contributing to his emotional condition. OWCP found that the interaction with S.C. on
October 30, 2014 was an administrative action and that appellant had not established error or
abuse on the part of S.C. It noted that there were no statements from A.T. or N.G.
On July 19, 2015 appellant requested an oral hearing from OWCP’s Branch of Hearings
and Review. In a letter dated September 2, 2015, appellant requested subpoenas for S.P., N.G.,
R.H., and A.T. By decision dated December 28, 2015, OWCP’s hearing representative denied
appellant’s requests for subpoenas.
Appellant testified at the oral hearing on January 25, 2016. He asserted that, if L.D.
could hear his voice, then S.C. should have been able to do so as her office was closer.
Appellant also denied that he and N.G. yelled at each other. He denied informing S.C. that he
had hearing loss. Appellant noted that he had a disability, but that it did not pertain to his
hearing or mental state. He alleged that S.C. was “mimicking” his work, when he tried to do the
best he could. Appellant indicated that S.C. first became a supervisor in June 2014. He noted
that the meeting was impromptu and scheduled at N.G.’s request. Appellant alleged that he had
not received counseling prior to the October 30, 2014 incident and had not received discipline
based on the counseling letter. He noted that S.C. left the agency in 2015.
At the hearing, appellant submitted a January 21, 2016 statement from A.T. A.T. noted
that her desk was 15 feet from appellant’s and that appellant, N.G., and S.P. were having a
meeting at appellant’s desk on October 30, 2014. She indicated that the three parties were
having a mutual conversation which appeared to be normal such that she could focus on her
work. S.C. then began interjecting into appellant’s conversation and her voice escalated such
that A.T. could no longer hear appellant. She alleged that S.C. embarrassed appellant in front of
the customer as S.C. spoke firmly with hostility, and with a raised voice. A.T. reported that S.C.
made a one-way conversation by yelling at appellant and placing demands on him in front of
customers and coworkers. She opined that S.C.’s conduct toward appellant was abusive and
unprofessional as she belittled him, insulted his professionalism, and degraded his work ethic.

4

A.T. noted that she did not hear N.G. or S.P. raise their voices. She also noted that appellant had
never asked her to speak up because of hearing loss.
N.G. also completed a January 22, 2016 statement. She reviewed and disagreed with
many of S.C.’s allegations asserting that they were false. N.G. denied yelling at appellant and
denied that he yelled at her on October 30, 2014. She also disagreed that appellant had “lashed”
at her and that she “yelled” at S.C. N.G. noted that she and appellant merely responded “no” to
S.C.’s query of whether there was a problem. She asserted that S.C. belittled and yelled at
appellant. N.G. opined, “S.C. berated him with unnecessary yelling and condescending remarks,
which in my opinion were abusive toward [appellant]. [S.C.] abused her authority as a
supervisor. She demoralized [appellant] in front of us. I recalled thinking that I had never seen a
supervisor/manager abuse an employee and in public in all of my 40 years in government
service. [S.C.] used her authority to abuse [appellant].” N.G. disputed S.C.’s allegation that
N.G. was upset with appellant and asserted that S.C. was solely responsible for the hostility and
that she was abusive in the continuous belittling of appellant.
R.H., a coworker whose desk was located 10 feet from appellant’s, submitted a
January 23, 2016 statement regarding the events of October 30, 2014. She noted that appellant
had a meeting with clients at his desk regarding the status of their recruitment. S.C. approached
appellant’s desk and began to loudly assert that he was required to complete all his work
assignments in accordance with deadlines. R.H. opined that S.C. spoke in a loud,
unprofessional, and demeaning manner. S.C. repeated herself several times and became visibly
frustrated. She left the area. R.H. asserted that the conversation between appellant and N.G. was
never loud or discordant. She noted that they spoke in a civil manner and at normal volumes for
an office environment. R.H. also asserted that appellant did not throw paper or slam his desk as
alleged by S.C. She alleged that appellant did not have noticeable hearing loss and that S.C.
fabricated events to justify losing her temper and yelling at appellant.
By decision dated April 11, 2016, OWCP’s hearing representative found L.D.’s statement
credible regarding raised voices from appellant and N.G. despite the different assessments from
appellant, N.G., R.H., and A.T. She determined that S.C. reported that she was asked by L.D. to
intercede and that there was “no other credible assertion as to why she approached the
discussion.” OWCP’s hearing representative noted that appellant was explaining to N.G. why he
was unable to complete his work and that she therefore believed that voices were raised. She
determined that witness statements supported that appellant argued with S.C. when she instructed
him that he should be able to complete all his assignments on time as he was explaining and
“justifying” his other priorities. OWCP’s hearing representative noted, “I also am somewhat
perplexed as to how he would have time to hold an ‘excuse’ meeting with BLS supervisors, but
not have time to just complete the action they were requesting. I have to conclude that he held
the meeting in order to keep the BLS supervisors from going to his management about why the
action was n[o]t completed.” She found that witnesses indicated that S.C. had no business
interceding when she heard the claimant blaming her for his inability to complete the recruitment
actions for BLS.

5

OWCP’s hearing representative found:
“I have difficulty imagining a situation in private[-]sector employment where an
employee would still have his job at the end of the day, after being overheard by
his employer advising a customer that the reason she didn’t have her product was
because the employer didn’t know how to manage his business. In the present
case, the claimant was publicly engaging in negative comments about his
management to external agency customers, and in front of his coworkers. Such
behavior is unprofessional and very destructive to any organization. Thus I find
his comments would warrant correction from a supervisor. I further find that the
claimant then continued to escalate the interaction with his supervisor by
continuing to argue with her over his assigned priorities. I find that under the
circumstances, the claimant has not established that her response to him then rose
to the level of error or abuse.”
The hearing representative further found that subpoenas were not necessary and affirmed
the July 13, 2015 OWCP denial.
Appellant requested reconsideration on June 2, 2016. He disagreed with OWCP’s
hearing representative’s findings of facts regarding the volume of the conversation between N.G.
and himself and noted that all, but two witnesses corroborated his version of events. Appellant
also disagreed that he argued with S.C. as found by the hearing representative. He noted that his
witnesses supported that S.C. directed him to complete N.G.’s work and that he was explaining
and justifying why he could not complete the work for N.G. Appellant also disputed the hearing
representative’s determination that he held an “excuse” meeting with N.G. and S.P. He repeated
that the meeting was unscheduled.
Appellant completed an additional narrative statement and asserted that neither he nor
N.G. yelled during the October 30, 2014 meeting. He alleged that S.C. “barged in” to the
meeting and spoke in a “condescending and hostile” manner. Appellant further asserted that
S.C. belittled him and criticized his work in the presence of N.G. and S.P. He denied having
hearing loss.
On May 6, 2016 S.P. responded to appellant’s queries and advised that the October 30,
2014 meeting was unscheduled and impromptu organized by N.G. He reported that appellant did
not yell at N.G., but that his voice was “a bit elevated” due to frustration at his workload and
workload priorities. S.P. denied that N.G. yelled or raised her voice. Appellant explained that
recent poor service was due to his manager’s directions to prioritize other work.
Appellant submitted his statement, A.T.’s January 21, 2016 statement, R.H.’s January 23,
2016 statement, N.G.’s January 22, 2016 statement as well as reports from Dr. Fair.
By decision dated August 22, 2016, OWCP denied modification of its prior decisions,
finding that appellant had not substantiated a compensable factor of employment as causing or
contributing to his diagnosed emotional condition. It found that he had not established error or
abuse in an administrative function.

6

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. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.3 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.4 In contrast, a disabling condition
resulting from an employee’s feelings of job insecurity per se is not sufficient to constitute a
person 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.5
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.6 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.7 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.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition on October 30, 2014.

2

28 ECAB 125 (1976).

3

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

4

Supra note 2.

5

Id.

6

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

Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 566 (1991).
7

8

Roger Williams, 52 ECAB 468 (2001).

7

Appellant has not attributed his emotional condition to the performance of his regular or
specially assigned duties under Cutler.9 Rather he has alleged error or abuse by S.C. in the
discussion on October 30, 2014. In Thomas D. McEuen,10 the Board held that an employee’s
emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under FECA as such matters pertain to procedures and requirements
of the employer and do not bear a direct relation to the work required of the employee. The
Board noted, however, that coverage under FECA would attach if the facts surrounding the
administrative or personnel action established error or abuse by employing establishment
superiors in dealing with the claimant. Absent evidence of such error or abuse, the resulting
emotional condition must be considered self-generated and not employment generated. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.11
Verbal altercations and difficult relationships with supervisors/managers, when
sufficiently detailed and supported by the record, may constitute compensable factors of
employment.12 However, this does not imply that every ostensibly abusive or threatening
statement uttered in the workplace will give rise to coverage under FECA. For appellant to
prevail on his claim, he must support his allegations with probative and reliable evidence.13 The
Board has held that being spoken to in a loud or harsh tone does not in itself constitute verbal
abuse or harassment.14
The Board finds that the record establishes that S.C. spoke to appellant in a loud or harsh
tone. Appellant alleged that S.C. was loud, rude, and unprofessional, embarrassing and belittling
him in front of his customers. Witnesses, N.G., A.T., and R.H., agreed that S.C. yelled at
appellant. Furthermore, these witnesses variously described her tone as unprofessional, hostile,
firm, demanding, and scolding. In Carolyn S. Philpott,15 the Board found that a loud discussion
between a supervisor and the claimant on the workroom floor was not error or abuse. The Board
noted that, despite the claimant’s arguments that her supervisor should have spoken or
reprimanded her in private, there was no evidence that the supervisor’s remarks were
unwarranted. Furthermore, the Board noted that the fact that the supervisor raised his voice
during the course of conversation did not amount to verbal abuse as there was no evidence that
he belittled the claimant. The Board finds that appellant has not established verbal abuse merely

9

Supra note 2.

10

Thomas D. McEuen, supra note 7.

11

See Richard J. Dube, 42 ECAB 916, 920 (1991).

12

J.M., Docket No. 16-0717 (issued January 12, 2017); L.M., Docket No. 13-267 (issued November 15, 2013).

13

Y.J., Docket No. 15-1137 (issued October 4, 2016) (allegations of verbal abuse must be surrounded by
specificity in order to more appropriately gauge the context in which they were made).
14

Joe M. Hagewood, 56 ECAB 479 (2005); R.T., Docket No. 13-1665 (issued September 12, 2014).

15

51 ECAB 175, 179 (1999); Karen K. Levene, 54 ECAB 671 (2003); J.C., Docket No. 14-0299 (issued
October 16, 2014).

8

because S.C. raised her voice on October 30, 2014 in the work area. To establish error or abuse
by his supervisor in reprimanding him, he must prove more than a raised voice.16
The content of S.C.’s remarks on October 30, 2014 is agreed upon by S.C., appellant, and
witnesses. S.C. noted, “I stated to [appellant] again, you need to have the new hires done and
this is a directive and you are here eight hours a day and you need to multi-task your work
responsibilities and you need to bring the new hires aboard….” He asserted that S.C. informed
him that, if he could not prioritize, then she could do it for him. Appellant alleged that S.C.
noted that appellant had eight hours to complete his tasks and should be able to complete them
within the eight hours. A.T. indicated that S.C. explained that appellant needed to reprioritize his
workload, and that he had to get multiple priorities done when she had assigned specific
priorities to him. R.H. indicated that S.C. chastised appellant regarding his workload and
priorities. N.G. related that S.C. informed appellant that he could handle all the different issues
assigned him, that he was to work eight hours, and that he should be able to take care of his
assignments. N.G. noted that S.C. instructed appellant that it was his responsibility to complete
his work. The Board finds that these statements do not constitute verbal abuse. A claimant’s
own feeling or perception that a form of criticism by or disagreement with a supervisor is
unjustified, inconvenient, or embarrassing, is self-generated and does not give rise to coverage
under FECA absent evidence that the interaction was, in fact, erroneous or abusive.17 While the
statements may have engendered offensive feelings, they did not sufficiently affect the
conditions of employment so as to constitute a compensable factor.18 S.C. directed appellant in
the method that she wished him to follow to complete his assigned work.
In Sharon J. McIntosh19 appellant’s supervisor criticized her work ethic in a raised voice,
which appellant contended was combative, abusive, and defamatory. The Board found that the
appropriate analysis was whether the remarks were made in a situation of mutual accusation. In
R.K.,20 N.G.,21 and Karen K. Levene,22 the Board found that a stressful argument with a
16

M.H., Docket No. 12-0130 (issued December 4, 2012); J.R., Docket No. 11-0334 (issued October 26, 2011);
J.S., Docket No. 09-0442 (issued September 15, 2009); David C. Lindsey, 56 ECAB 263 (2005).
17

Michael A. Deas, 53 ECAB 208, 216 (2001).

18

J.C., 58 ECAB 594 (2007); Denis M. Dupor, 51 ECAB 482 (2000) (supervisor used profanity in instructing the
claimant to do his job, and apologized, but the claimant instigated shouting and escalated the verbal exchange, such
that the Board did not find a compensable factor). But see Ana L. Leishman, Docket No. 95-2007 (issued July 3,
1997) (finding that a work-related argument between a supervisor and an employee was compensable when a
coworker described the supervisor’s actions as she “harassed and badgered [the employee] intentionally in a hostile
manner”).
19

Docket No. 94-1777 (issued August 28, 1996). But see Marvetta J. Anderson, Docket No. 94-1486 (issued
April 23, 1996) (the Board found that a supervisor yelling at the claimant about job performance “what kind of
supervisor are you, you can’t event give a correct count” was a compensable factor).
Docket No. 10-1989 (issued June 8, 2011) (the claimant responded to a question from his supervisor with “It’s
none of your business” and the supervisor yelled at him to leave the building or be removed).
20

21

Docket No. 10-0353 (issued January 21, 2011) (the Board found that without threats, yelling directives to get a
life and that everything appellant was doing was going to get back to her, was not verbal abuse).
22

54 ECAB 671 (2003).

9

supervisor over a claimant’s work in which the supervisor spoke in a loud voice was not verbal
abuse. Likewise, the Board finds that S.C.’s remarks do not constitute verbal abuse as the record
supports mutual conflict as appellant was defending his inability to complete his work in a timely
manner.23 Furthermore, there is no allegation that S.C. called appellant degrading names,24
threatened violence,25 or used extensive profanity.26 The Board therefore finds that appellant has
not established verbal abuse on the part of S.C.
The Board further notes that the fact that appellant’s supervisors apologized to N.G. and
S.P. does not establish error or abuse on the part of the employing establishment. S.P. indicated
that he received a call and apology from L.D., for the loud argument between S.C. and appellant
in a public area. L.D. noted that she contacted S.P. and informed him that the discussion should
have been held behind closed doors with appellant. She indicated, “I apologized for the situation
that they witnessed, but not [S.C.’s] behavior.” N.G. noted that S.C. called her to apologize and
told her that she should have handled the situation differently. The Board has held that an
apology does not support an admission of fault or wrongful actions.27
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition on October 30, 2014.

Cyndia R. Harrill, 55 ECAB 522 (2004) (the Board found that the statement “paybacks are a [b----]” by a
supervisor was not compensable in the context of a joke after appellant was two hours late returning from work).
23

But see, Felix Flecha, 52 ECAB 268 (2001) (evidence establishing derogatory epitaphs including “lazy spick”
was a compensable factor); Ruth S. Johnson, 45 ECAB 237 (1994) (finding that a supervisor’s comment that the
claimant had the “brain cells of a bird” was a degrading comment resulting in coverage under FECA); Kathryn E.
Lunz, Docket No. 00-2622 (September 5, 2001).
24

25

G.M., Docket No. 11-235 (issued October 5, 2011) (finding when that a witness corroborated that a coworker
screamed at the claimant and approached her threatening violence, she had substantiated verbal abuse) Linda D.
King-Roberts, Docket No. 94-1050 (issued April 22, 1996).
26

R.V., Docket No. 11-0054 (issued September 28, 2011) (the claimant substantiated that several coworker yelled
profanities at him over the course of several days); Diane Smith, Docket No. 95-2039 (issued May 23, 1997) (the
record established that a coworker yelled at the claimant and used profanity).
27

M.R., Docket No. 11-0980 (issued August 15, 2012).

10

ORDER
IT IS HEREBY ORDERED THAT the August 22, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Omaha, NE, Employer
__________________________________________

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

Docket No. 12-1427
Issued: January 8, 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 June, 18, 2012 appellant filed a timely appeal of the December 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a traumatic injury in the performance of duty.

1
2

5 U.S.C. §§ 8101-8193.

Following issuance of the December 21, 2011 decision, appellant submitted new evidence to OWCP. The
Board may not consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On August 3, 2011 appellant, then a 41-year-old transportation security officer, filed a
traumatic injury claim alleging that, on July 30, 2011, while grabbing a bag, she felt her left knee
pop. She did not stop work.
In an August 8, 2011 work status report, Dr. Charles F. Burt, a Board-certified
orthopedist, diagnosed left knee pain and advised that appellant could return to work with
restrictions. In work status reports dated August 18 and 19, 2011, he diagnosed medial tibial
plateau contusion of the left knee and advised that she could return to a desk job with
restrictions. On September 28, 2011 Dr. Burt reported appellant’s complaints of lateral and
posterior left knee pain. He noted minimal effusion and tenderness along the posterolateral joint
line of the left knee. Dr. Burt diagnosed persistent left knee pain with symptomatic lateral
meniscus tear and painful cyclops lesion and recommended a left knee arthroscopy cyclops
lesion excision. Appellant submitted August 8, 2011 report from a physician’s assistant who
treated her for bilateral knee pain. She reported lifting a luggage bag from one carrier to the next
and twisted and felt a pop in her left knee. Appellant noted that her history was significant for a
bilateral knee anterior cruciate ligament reconstruction in 2005 and 2006. The physician’s
assistant advised x-rays of both knees revealed mild degenerative changes bilaterally with no
other acute abnormalities. In a September 16, 2011 report, the physician’s assistant noted that
appellant had no improvement in her knee symptoms. An August 16, 2011 magnetic resonance
imaging (MRI) scan of the left knee revealed an anterior cruciate ligament reconstruction with
hamstring autograft, focal fibrosis cyclops lesion, lateral meniscus, shallow radial tear posterior
horn and full thickness chondral fissuring with foci in situ delamination of the lateral facet of the
patella.
The employing establishment submitted a September 28, 2011 physician review report
from Dr. David M. Sack, a Board-certified physiatrist who was asked to review appellant’s file
but did not examine her. Dr. Sack noted Dr. Burt’s finding of a cyclops lesion and opined that a
cyclops lesion can develop over time after an anterior ligament reconstruction and not after an
acute injury event. He opined that there was no clear acute condition that could be explained by
the July 30, 2011 event. Dr. Burt advised that there were no injury symptoms reported at the
time of the injury with regard to the right knee and the left knee appeared to be related to a long
term complication of the prior anterior cruciate ligament reconstruction.
By letter dated October 17, 2011, OWCP advised appellant that her claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It indicated that her claim was administratively handled to allow medical payments up to
$1,500.00; however, the merits of the claim had not been formally adjudicated. OWCP advised
that, because appellant’s physician recommended surgery, her claim would be formally
adjudicated. It requested that she submit additional information including a comprehensive
medical report from her treating physician, which included a reasoned explanation as to how the
specific work factors or incidents identified by her had contributed to her claimed left knee
injury.
Appellant submitted an August 18, 2011 report from a registered nurse who noted MRI
scan findings. An August 22, 2011 report from a physician’s assistant noted that she presented
for a right knee cortisone injection. In an October 31, 2011 report, the physician’s assistant
noted that appellant was one week status post arthroscopic surgery with cyclops excision and
2

chondroplasty. A work status note dated October 31, 2011 from Dr. Burt diagnosed status post
left knee surgery and advised that she could not work. Appellant also submitted a physical
therapy report.
On December 21, 2011 OWCP denied appellant’s claim on the grounds that the medical
evidence was insufficient to establish that a medical condition was related to the established
work-related events.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
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
employing establishment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or
occupational disease.3
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.4 The second component of fact of
injury is whether the employing establishment incident caused a personal injury and generally
can be established only by medical evidence. To establish a causal relationship between the
condition, as well as any attendant disability, claimed and the employment event or incident, the
employee must submit rationalized medical opinion evidence, based on a complete factual and
medical background, supporting such a causal relationship.5
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.6 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.7
3

Gary J. Watling, 52 ECAB 357 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

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Id.

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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

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ANALYSIS
In the instant case, it is not disputed that appellant worked as a transportation security
officer and that, on July 30, 2011, she was lifting luggage at work. It is also not disputed that she
was diagnosed with medial tibial plateau contusion of the left knee and a cyclops lesion.
Appellant has failed to submit sufficient medical evidence to establish that her medical
conditions were causally related to the July 30, 2011 work incident. On October 17, 2011
OWCP advised her of the type of medical evidence needed to establish her claim. Appellant did
not submit a rationalized medical report from a physician sufficiently explaining how the
July 30, 2011 lifting and twisting incident caused or aggravated a diagnosed medical condition.
Appellant submitted several reports from Dr. Burt. In an August 8, 2011 work status
report, Dr. Burt diagnosed left knee pain and advised she could return to work with restrictions.
In work status reports dated August 18 and 19, 2011, he diagnosed medial tibial plateau
contusion of the left knee. Similarly, in a September 28, 2011 report, Dr. Burt diagnosed
persistent left knee pain with symptomatic lateral meniscus tear and painful cyclops lesion and
recommended left knee arthroscopy cyclops lesion excision. Likewise, in a work status note
dated October 31, 2011, he noted that appellant was status post left knee surgery and could not
work. However, Dr. Burt’s reports are insufficient to establish the claim as he did not provide a
history of injury or specifically address whether appellant’s employment activities had caused or
aggravated a diagnosed medical condition.8 The need for a physician to support causal
relationship and to explain the basis for such opinion is particularly important where the record
indicates a prior bilateral knee condition that required reconstructive surgery.
Other evidence submitted by appellant included reports from a physician’s assistant, a
physical therapy report and a report from a nurse. The Board has held that treatment notes
signed by a physician’s assistant, physical therapist or nurse are not considered medical evidence
as these providers are not a physician under FECA.9 As noted, medical documents not signed by
a physician are not probative medical evidence and do not establish appellant’s claim.10
Other medical reports submitted by appellant, such as reports of diagnostic testing
including the MRI scan of the left knee dated August 16, 2011 are insufficient to establish the
claim as these reports did not provide an opinion on the causal relationship between her job and
her diagnosed medial tibial plateau contusion of the left knee and a cyclops lesion.
The employing establishment referred appellant’s medical record to Dr. Sack, for a
physician review report. In a September 28, 2011 report, Dr. Sack opined that her cyclops lesion
was a condition that developed over time after an anterior ligament reconstruction and not after

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
10

Id. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).

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an acute injury event. He advised that there was no clear acute condition that could be explained
by the event of July 30, 2011.
For these reasons, OWCP properly found that appellant did not meet her burden of proof
in establishing her 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.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the December 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 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

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

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

Docket No. 17-0041
Issued: January 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from the May 5 and August 29, 2016
nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the date of the last merit decision, September 1, 2015, to the filing of this
appeal and, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

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2

5 U.S.C. § 8101 et seq.

The record of evidence provided the Board includes evidence submitted after OWCP issued its August 29, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 3, 2013 appellant, then a 37-year-old letter carrier (city), filed a traumatic injury
claim (Form CA-1) for injuries to her neck and lower back, which she attributed to a January 22,
2013 employment-related motor vehicle accident. OWCP accepted her claim for temporary
aggravation of cervical and lumbar disc disorder with myelopathy and temporary aggravation of
cervical and lumbar/lumbosacral intervertebral disc degeneration.
Appellant received
continuation of pay and compensation for intermittent wage loss beginning March 12, 2013.
Beginning September 17, 2013, appellant worked modified duty as a lobby host. On
January 3, 2014 the employing establishment offered her work as a modified carrier, which she
accepted. The job offer was based on the November 13, 2013 work restrictions imposed by
appellant’s treating physician, Dr. Hosea Brown, III, a Board-certified internist. In a January 8,
2014 duty status report (Form CA-17), Dr. Brown extended the previous work restrictions. In an
accompanying narrative report, he noted that appellant had been advised to continue working
within her restrictions.
On January 17, 2014 Dr. Serge Obukhoff, a Board-certified neurosurgeon, examined
appellant and diagnosed L5-S1 lumbar disc herniation. He recommended an L5-S1 arthroplasty
with decompression. Dr. Obukhoff also noted that appellant was able to perform modified duty
in accordance with her treating physician’s Form CA-17. In a February 28, 2014 follow-up
evaluation, he reiterated his prior diagnosis and recommendation for surgical intervention.
Dr. Obukhoff also noted that appellant was capable of performing modified duty in accordance
with her treating physician’s restrictions as set forth on the Form CA-17.
On March 5, 2014 Dr. Brown extended appellant’s previous work restrictions. However,
in an April 15, 2014 duty status report (Form CA-17), he indicated that appellant was
temporarily totally disabled through July 15, 2014. In a separate narrative report, Dr. Brown
indicated that appellant was medically excused from work beginning April 10, 2014 due to
severe low back instability and pain. He also noted that Dr. Obukhoff recommended surgery,
which was scheduled for June 2014.
Beginning in April 2014, appellant filed a series of claims for compensation CA-7 forms
covering the period January 13 through June 9, 2014. She claimed intermittent wage loss, as
well as temporary total disability from January 13 through 24, 2014 and April 21 through
June 9, 2014.
By letter dated May 9, 2014, OWCP advised appellant that it had authorized payment for
certain claimed medical appointments, but other appointments were not substantiated.
Additionally, it advised that appellant had not established total disability for the claimed
period(s). OWCP noted that the employing establishment had provided ongoing light/limitedduty work as of January 3, 2014, and it was unclear why appellant could not perform the work
provided which was within her restrictions. It afforded appellant 30 days to submit additional
evidence in support of her claim for wage-loss compensation.

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On June 10, 2014 appellant underwent an OWCP-approved L5-S1 discectomy and fusion
performed by Dr. Obukhoff.3 OWCP paid wage-loss compensation for temporary total disability
beginning June 10, 2014, and placed her on the periodic compensation rolls effective
October 19, 2014.
By decision dated February 4, 2015, OWCP granted 13.52 hours of intermittent wageloss compensation, but denied compensation for temporary total disability for the periods
January 13 through 24, 2014 and April 11 through June 9, 2014.
On June 3, 2015 appellant requested reconsideration of OWCP’s February 4, 2015
decision. She submitted an April 20, 2015 report from Dr. Brown. Dr. Brown referenced his
earlier reports dated January 8 and April 15, 2014, and indicated that these reports justified
compensation for the periods January 13 through 24, 2014 and April 11 through June 9, 2014.
On June 9, 2015 OWCP referred appellant to Dr. Michael J. Einbund, a Board-certified
orthopedic surgeon, for a second opinion examination to determine the nature and extent of her
accepted conditions. In his July 17, 2015 report, Dr. Einbund diagnosed mild cervical spine
strain and status postoperative anterior fusion at L5-S1. He determined that appellant had not yet
reached maximum medical improvement and opined that she had been temporarily totally
disabled since undergoing surgery on June 10, 2014. Dr. Einbund advised that appellant was
currently able to return to modified duty with the following lumbar-related restrictions: no
lifting over 10 pounds; no repetitive bending or stooping more than two hours per eight-hour
workday. He did not specifically address any periods of claimed disability prior to appellant’s
June 10, 2014 surgery.
By decision dated September 1, 2015, OWCP vacated in part and affirmed in part its
prior February 4, 2015 decision. Based on Dr. Brown’s April 20, 2015 report, it awarded wageloss compensation for temporary total disability for the period April 15 through June 9, 2014.
However, OWCP affirmed its prior finding that the medical evidence of record was insufficient
to establish appellant’s claimed disability for the periods January 13 through 24, 2014 and
April 11 through 14, 2014.
On February 2, 2016 appellant requested reconsideration. She submitted a November 3,
2015 report from Dr. Brown who opined that appellant was totally disabled for work during the
period April 11 to 14, 2014 based on his “medical re-evaluation dated April 15, 2014.”
Dr. Brown indicated that on April 15, 2014 appellant informed him that she was unable to work
as a result of severe low back instability and increasing radicular symptomatology. He further
indicated that she had a positive straight leg raising test and her lumbar spine range of motion
was severely restricted with severe spasm of the paraspinal lumbosacral musculature.
By decision dated May 5, 2016, OWCP denied appellant’s request for reconsideration
without a merit review finding that Dr. Brown’s November 3, 2015 report was repetitious and
did not constitute relevant and pertinent new evidence.

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Dr. Joseph Vanderlinden, a vascular surgeon, assisted on the June 10, 2014 surgical procedure.

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On August 25, 2016 appellant again requested reconsideration and submitted an
August 5, 2016 report from Dr. James T. Tran, a Board-certified neurosurgeon, who reviewed
the medical evidence of record and diagnosed painful lumbar radiculopathy and history of L5-S1
disc arthroplasty on June 10, 2014. Dr. Tran observed that on January 8, 2014 Dr. Brown had
noted that appellant had significant pain and discomfort in the lower back and was unable to
cooperate with the straight leg raise test portion of the examination. He concluded that appellant
took time off work from January 13 to 24, 2014 because of excruciating back and leg pain with
foot numbness and weakness that she could not tolerate. Dr. Tran further observed that in a
February 28, 2014 report Dr. Obukhoff had noted that appellant had low back pain and severe
persistent right leg radiculopathy. He concluded that appellant had to take time off work from
April 11 to 14, 2014 because she had progressive radicular symptoms due to work activities and
was unable to continue working as a result of severe low back instability and increasing radicular
symptoms.
By decision dated August 29, 2016, OWCP denied appellant’s request for reconsideration
without conducting a merit review finding that Dr. Tran’s August 5, 2016 report was cumulative
and did not constitute relevant and pertinent new evidence.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.6 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8

4

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). 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 2016). 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.
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

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ANALYSIS
On February 2, 2016 appellant submitted the appeal request form that accompanied
OWCP’s September 1, 2015 decision. She requested reconsideration, but did not otherwise
elaborate. Appellant’s February 2, 2016 request for reconsideration neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Brown’s November 3, 2015 report reiterated statements made in his
report dated April 15, 2014 and is, therefore, cumulative and duplicative in nature.9 The Board
finds that this report does not constitute relevant and pertinent new evidence not previously
considered by OWCP.10 Therefore, OWCP properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied her February 2, 2016 request for reconsideration.
With respect to appellant’s August 25, 2016 request for reconsideration, she neither
alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by
OWCP. Consequently, appellant is not entitled to further review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Tran’s August 5, 2016 report was new, but irrelevant as it contained
no new, independent medical opinion and was comprised of his support for adoption of the
medical opinions already considered and rejected by OWCP.11 The Board finds that this report
does not constitute relevant and pertinent new evidence not previously considered by OWCP.12
Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening
the case for a merit review.
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(3) and properly denied her August 25, 2016 request for reconsideration.

9

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
10

Id.

11

See K.C., Docket No. 12-32 (issued October 9, 2012).

12

Id.

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of its May 5 and August 29, 2016 decisions pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 29 and May 5, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.L., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
FOOD SERVICE BRANCH, Wiesbaden, AE,
Employer
__________________________________________

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

Docket No. 11-525
Issued: November 15, 2011

Case Submitted on the Record

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

JURISDICTION
On December 28, 2010 appellant filed a timely appeal from a November 9, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this schedule award case.
ISSUE
The issue is whether appellant has greater than a 31 percent impairment to his lower right
extremity, for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 10, 2007 appellant, then a 36-year-old food service worker, filed a traumatic
injury claim alleging that, on April 9, 2007, while returning from taking out the trash, he slipped
on a wet floor and twisted his right knee, thereby aggravating a preexisting injury. On
October 24, 2008 OWCP accepted his claim for tear of the medial meniscus of the knee, current,
right. It paid appropriate compensation and medical benefits.
In July 31, 2008 report, Dr. Med J. Pfeil, a German physician, indicated that from May 3
to 7, 2007 appellant underwent a surgical procedure where he had an arthroscopic meniscus
repair and a grafting of the anterior cruciate ligament (ACL). He stated that appellant now
reports that his feeling of instability have gone and that he has only some problems after hard
work in the area of the anterior tibia of the right leg.
In a September 29, 2010 report, Dr. William F. Clayton, an orthopedist, noted that
appellant fell on April 9, 2007 which led to surgery after a magnetic resonance imaging (MRI)
scan showed an old ACL tear and bucket handle tear of the medial meniscus. He noted that
appellant stated that this surgery did not help his knee pain and actually made it worse.
Dr. Clayton stated that on September 24, 2009 appellant slipped at work and that this aggravated
his right knee pain. He noted that appellant became more sensitive to cold and could not work in
refrigerated areas any more. Dr. Clayton reviewed appellant’s current symptoms. He stated that
appellant reached maximum medical improvement for the first injury on November 3, 2007.
Dr. Clayton stated that it was debatable whether the MRI scan findings of diffuse meniscal
damage would be benefited by an arthroscopic debridement of the knee, but that this would
probably be more related to the 2009 injury. He noted that the April 9, 2007 work injury
aggravated appellant’s preexisting ACL insufficient knee and probably caused the medial
menisus tear. Dr. Clayton noted that this was appropriately treated with meniscal debridement
and ACL reconstruction, but that clinically he has a poor result from the surgery with the
findings today of postoperative fat pad syndrome, generalized degenerative joint disease of the
knee from the 1998, 2007 and 2009 injuries, two centimeter right thigh atrophy and incisional
neuroma and postoperative sensory deficit upper anterior tibial area. He stated that using the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) pursuant to Table 13-12 on page 336 with regard to gait disorders,
appellant would have a 10 percent lower extremity impairment for a more severe class 1
impairment. Dr. Clayton then used Table 16-3 on page 511 for moderate knee arthritis
(combining with his MRI scan findings of meniscal damage) and determined there would be a 20
percent lower extremity impairment. He then used Table 13-17 page 339 for dysesthetic pain
(incisional neuroma) and determined that it will be a class 1 or a three percent lower extremity
impairment. Dr. Clayton then used Table 16-3, page 509 for partial medial meniscecomy and
determined that would amount to a two percent impairment of the lower extremity. Combining
these percentages (10, 20, 3 and 2) using the Combined Values Chart, he determined that
appellant had an impairment to his right lower extremity of 31 percent.
An OWCP medical adviser reviewed the report of Dr. Clayton and agreed that appellant
had a 31 percent impairment of the right lower extremity. The medical adviser used calculations
identical to those of Dr. Clayton in reaching his conclusion.

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By decision dated November 9, 2010, OWCP issued a schedule award for a 31 percent
impairment of the right lower extremity. It listed the date of maximum medical improvement as
September 29, 2010. The award was based on a weekly compensation of $432.25. In order to
not delay appellant’s award, OWCP found that a determination would be made later with regard
to a clarification on appellant’s entitlement to Sunday premium pay. It excluded, pursuant to
5 U.S.C. § 8114(e), from appellant’s pay rate all additional pay or allowance, including
postallowance pay, authorized outside the United States because of a differential in cost of living
and other special circumstances. A separate maintenance allowance authorized under 5 U.S.C.
§ 5924(3) was also excluded as it is a cost-of-living allowance paid to an employee in a foreign
area.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent result and
to ensure equal justice under the law to all claimants, good administrative practice necessitates
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4 For decisions issued on or after May 1,
2009, the sixth edition of the A.M.A., Guides is used for evaluating permanent impairment.5
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
limb to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (knee regional grid) beginning on page 509. The associated
class is determined from the knee regional grid and the adjustment guide and grade modifiers
(including functional history, physical examination and clinical studies) are used to determine
what grade of associated impairment should be chosen within the class defined by the regional
grid. The evaluator then uses the regional grid to identify the appropriate impairment rating
value for the impairment class, modified by the adjustments as calculated.6 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairing rating choices, including choices of
diagnoses from the regional grids and calculations of the modifier scores.7

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

5

See FECA Bulletin No. 09-93 (issued March 15, 2009). For OWCP decisions issued before March 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
6

See A.M.A., Guides (6th ed. 2009) 499-500.

7

Id. at 23-24.

3

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.8 Accordingly, once OWCP undertakes to develop the medical evidence, further, it has
the responsibility to do so in the proper manner.9
ANALYSIS
Both Dr. Clayton and OWCP’s medical adviser agreed that, pursuant to the sixth edition
of the A.M.A., Guides, appellant had a 31 percent impairment of his right lower extremity.
However, neither physician appropriately applied the A.M.A., Guides. OWCP accepted
appellant’s claim for a tear of the medial meniscus of the knee. The appropriate chapter of the
A.M.A., Guides to utilize when addressing the knee is Chapter 16. Certain calculations made by
Dr. Clayton and OWCP’s medical adviser were made utilizing Chapter 13 of the A.M.A.,
Guides. However, Chapter 13 of the A.M.A., Guides provides criteria for evaluating permanent
impairments due to documented dysfunction of the central and peripheral nervous system.10 The
record does not indicate that appellant had such an injury. Accordingly, evaluating appellant’s
impairment utilizing Chapter 13 of the A.M.A., Guides was not appropriate. Both physicians
found that appellant was entitled to 10 percent lower extremity impairment based on Table 13-12
for an antalgic gait. Table 13-12 addresses problems maintaining balance and a stable gait from
a central nervous or peripheral neurologic impairment.11 Furthermore, Table 13-12 addresses
impairment with regard to impairment to the whole person. Dr. Clayton and OWCP’s medical
adviser determined that appellant had a 10 percent impairment to the lower extremity pursuant to
this chart but neither converted this whole person impairment rating to an impairment rating for
the lower extremity. FECA does not authorize a schedule award for whole person impairment.12
Furthermore, both physicians found that appellant had a three percent impairment pursuant to
Table 13-17 of the A.M.A., Guides. However Table 13-17 clearly states that, in order for this
table to apply, one must first document that the individual has a peripheral neuropathy or spinal
cord injury consistent with dysesthetic pain.13 The Board further notes that, as with Table 13-12,
Table 13-17 lists impairment ratings to the whole person, not to the lower extremity. The Board
further finds that Dr. Clayton and OWCP’s medical adviser did not appropriately make findings
using Chapter 16. Although Chapter 16 of the A.M.A., Guides is the appropriate chapter to
utilize in evaluating impairment of the lower extremity, neither physician properly applied this
chapter. These physicians found that appellant had a 20 percent impairment to the lower
extremity based on Table 16-3, page 511 due to moderate knee arthritis and a two percent
impairment based on Table 16-3, page 509 for partial medial meniscectomy. Under the sixth
8

Russell F. Polhemus, 32 ECAB 1066 (1981).

9

See Robert Hart, 36 ECAB 186 (1984).

10

A.M.A., Guides 322.

11

Id. at 336.

12

L.C., Docket No. 10-2092 (issued July 5, 2011).

13

A.M.A., Guides 339, Table 13-17.

4

edition of the A.M.A., Guides, impairment value is determined by the diagnosis and specific
criteria, considered the key factor, and then adjusted by grade modifiers or nonkey factors.14
However, neither physician discussed the grade modifiers as required by the sixth edition of the
A.M.A., Guides.
There is also some confusion in the record as to the date of appellant’s maximum medical
improvement. Dr. Clayton found that the date of maximum medical improvement for the current
injury is November 3, 2007. OWCP’s medical adviser found that the date of maximum medical
improvement was the date of Dr. Clayton’s report, September 29, 2010. Neither physician
adequately explains the choice of date for maximum medical improvement.
On appeal, appellant contends that his rate of pay should have included the
postdifferential for overseas employees. The Board finds that OWCP properly excluded this pay
from its calculations. Pursuant to 5 U.S.C. § 8114(e), account is not made in determining
appellant’s rate of pay of overtime pay, additional pay or allowance authorized outside the
United States because of differential in cost of living or other special circumstances such as
bonus or premium pay or pay for hazardous service in time of war.15
The Board will remand this case, however, for OWCP to refer appellant for an evaluation
and to recalculate appellant’s impairment rating. After such further development of the case
record as OWCP deems necessary, a de novo decision shall be issued regarding appellant’s claim
for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the percentage of
impairment to appellant’s lower right extremity. The case is remanded for further necessary
development.

14

Id. at 495.

15

5 U.S.C. § 8114(e).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2010 is set aside and the case remanded for further
action consistent with this decision.
Issued: November 15, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pottsville, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Edward M. Brennan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-286
Issued: August 18, 2010

Case Submitted on the Record

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

JURISDICTION
On November 19, 2009 appellant, through counsel, appealed an August 21, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of a medical condition on
August 22, 2007 causally related to his December 29, 2005 employment injury.
FACTUAL HISTORY
On December 31, 2005 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim alleging that on December 29, 2005 he injured his right knee while delivering mail. The
Office accepted the claim for right knee lateral and medial meniscus tears and authorized
surgery, which was performed on March 2, 2006. Appellant worked light duty from the date of
the incident until the date of surgery. On May 30, 2006 appellant returned to limited-duty work.

In an August 13, 2007 report, Dr. Thomas B. Wheeler, a treating Board-certified
orthopedic surgeon, noted that appellant sustained an injury at work on December 29, 2005,
which caused pain and swelling. A review of the magnetic resonance imaging (MRI) scan and
x-ray interpretations revealed right knee degenerative changes more advanced on the medial than
the lateral side. Dr. Wheeler concluded that appellant’s preexisting degenerative right knee
condition had been aggravated and accelerated by his injury. Specifically, he concluded that the
December 29, 2005 employment injury exacerbated appellant’s knee arthritis, which resulted in
the meniscus tearing and resultant surgery. Dr. Wheeler also noted that appellant’s limping had
increased following his employment injury, which resulted in a gait disturbance and herniated
disc.
On August 22, 2007 appellant filed a claim for a recurrence of disability (Form CA-2a)
claiming medical treatment only. He stated that due to the injury he required a total knee
replacement.
In an October 30, 2007 report, Dr. Robert A. Smith, a second opinion Board-certified
orthopedic surgeon, diagnosed right knee arthritis based on a review or the medical records and
physical examination. He concluded that the arthritis was unrelated to his accepted employment
injury as appellant “has had a long history of right knee pain due to arthritis” and the “natural
progression of this condition would account for his current symptoms. Dr. Smith opined that
appellant needed a total knee replacement, but this was unrelated to the accepted December 29,
2005 employment injury.
By decision dated August 28, 2008, the Office denied appellant’s recurrence on the
grounds that his condition had not worsened such that total knee surgery was required.
On May 27, 2009 appellant requested reconsideration. In support of his request, he
submitted medical and factual evidence including a December 15, 2008 report and progress notes
for the period January 21 to February 4, 2009 from Dr. Robert P. Boran, Jr., a treating Boardcertified orthopedic surgeon. On December 15, 2008 Dr. Boran performed a physical evaluation
and review of medical evidence. Diagnoses included right knee pain, right knee synovitis and
effusion and moderately severe-to-severe right knee degenerative arthritis. Dr. Boran concluded
that it was highly probable that his right knee medial compartment problems were due to a
previous 1993 injury and were certainly exacerbated by the 2005 injury. He stated that he
wanted to treat appellant with Synvisc to see if he responds before trying the total knee
arthroplasty recommended by Dr. Wheeler. Dr. Boran noted that appellant would eventually
need a total knee arthroplasty.
By decision dated August 21, 2009, the Office denied modification of the August 28,
2008 decision.
LEGAL PRECEDENT
A recurrence of a medical condition is defined in the Office’s regulations and procedure
manual as the documented need for further treatment of the accepted condition when there has

2

been no work stoppage.1 When a claim for a recurrence of medical condition is made more than
90 days after release from medical care, an employee is responsible for submitting a medical
report that contains a description of objective findings and supports causal relationship between
the employee’s current condition and the previous work injury.2 In order to establish that a
claimed recurrence of medical condition was caused by the accepted injury, medical evidence
bridging the symptoms between the present condition and the accepted injury must support the
physician’s conclusion of a causal relationship.3
ANALYSIS
The Office accepted that appellant sustained right knee lateral and medial meniscus tears
as a result of the December 29, 2005 injury and authorized knee surgery. The issue is whether he
sustained a recurrence of a medical condition on August 22, 2007, causally related to the
employment injury.
In support of his claim, appellant submitted an August 13, 2007 report from Dr. Wheeler,
a treating Board-certified orthopedic surgeon, who opined that appellant’s December 29, 2005
employment injury aggravated his preexisting knee arthritis resulting in a torn meniscus. He
opined that appellant’s knee arthritis had been exacerbated by his December 29, 2005
employment injury.
The Office obtained a second opinion from Dr. Smith, a Board-certified orthopedic
surgeon. In an October 30, 2007 report, Dr. Smith opined that appellant did not sustain a
recurrence of disability, as his condition was not related to his work injury. The Office denied
appellant’s claim for recurrence of disability by an August 21, 2009 decision, based on Dr. Smith
as the weight of the medical evidence.
The Board finds that there is a conflict of medical opinion between Dr. Wheeler, for
appellant, and Dr. Smith, for the government, regarding whether appellant’s accepted condition
worsened such that he sustained a recurrence of a medical condition and that a total knee
replacement was required. Section 8123 of the Federal Employees’ Compensation Act provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician, who shall make
an examination.4 The case will be remanded to the Office to refer appellant, a statement of
accepted facts and the medical record to an appropriate specialist or specialists to resolve the
conflict of opinion regarding whether appellant sustained a recurrence of a medical condition
causally related to the December 29, 2005 employment injury thereby necessitating surgery in

1

J.F., 58 ECAB 124 (2006); Mary A. Ceglia, 55 ECAB 626 (2004); 20 C.F.R. § 10.5(y); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(a) (May 1997).
2

J.F., id.; Federal (FECA) Procedure Manual, id. at Chapter 2.1500.5(b) (May 2003).

3

See Ricky S. Storms, 52 ECAB 349 (2001).

4

5 U.S.C. § 8123(a); see C.M., 61 ECAB ___ (Docket No. 09-1268, issued January 22, 2010); Darlene R.
Kennedy, 57 ECAB 414 (2006); Charles S. Hamilton, 52 ECAB 110 (2000).

3

the form of a total knee replacement. Following this and any other development deemed
necessary, the Office shall issue an appropriate decision in the case.5
CONCLUSION
The Board finds that the case is not in posture for a decision due to a conflict of medical
evidence. The case will be remanded to the Office for appropriate further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2009 be set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: August 18, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5

On appeal appellant’s counsel contends the Office failed to consider the evidence submitted with his
reconsideration request. In view of the Board’s disposition of the case, it need not address this contention.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-597
Issued: September 28, 2009

Case Submitted on the Record

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

JURISDICTION
On December 31, 2008 appellant, through his attorney, filed a timely appeal from an
August 19, 2008 merit decision of the Office of Workers’ Compensation Programs’ Branch of
Hearings and Review affirming a March 13, 2008 merit decision of the Office. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of his claim.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty.
FACTUAL HISTORY
On January 4, 2008 appellant, a 60-year-old mail clerk, filed an occupational disease
claim (Form CA-2) for bilateral brachial plexus and a shoulder condition. He alleged that he
first became aware of these conditions and their relation to his federal employment on
December 6, 2007. The employing establishment controverted appellant’s claim. The record

reflects that he had a claim, which was accepted for a left shoulder condition for which he had
surgery on April 7, 2007.1 Following this surgery, appellant returned to light-duty work.
Appellant submitted a June 8, 2007 report (Form CA-20) signed by Dr. Randeep S.
Kahlon, a Board-certified orthopedic surgeon, who diagnosed him with left shoulder bicep
tendinitis. In a subsequent report (Form CA-20) dated August 10, 2007, Dr. Kahlon diagnosed
appellant with left shoulder pain. He noted that appellant was post left shoulder arthroscopy and
bicep tenotomy. Dr. Kahlon noted that appellant had been advised that he could return to work.
By checkmark, he indicated that appellant’s diagnosed conditions were caused or aggravated by
his work activities.
Appellant submitted notes dated December 16, 2007 and January 15, 2008 signed by
Dr. Scott M. Fried, a Board-certified orthopedic surgeon, who reported that appellant was to
continue light-duty work that involved no use of his left arm or hand.
Appellant submitted a September 17, 2007 report in which Dr. Fried reported that x-rays
of his hands and wrists were unremarkable and revealed no significant arthritis or evidence of
acute fracture. Dr. Fried reported that x-rays of his left shoulder and acromioclavicular (AC)
joint showed no severe abnormality. He noted that there was minimal change to the humeral
head and that the subacromial area showed Grade 1 postoperative change. X-rays of appellant’s
cervical spine revealed straightening of the normal cervical lordosis and mild disc space
narrowing at the C5-6 and C6-7 levels with no severe foraminal change. X-rays of appellant’s
left elbow and proximal forearm revealed moderate heterotypic calcification anterior to the
elbow as well as probable deformity to the radial head. Dr. Fried observed no other severe
abnormality.
Dr. Fried diagnosed appellant with left median, radial and ulnar neuropathy, left brachial
plexopathy/cervical radiculopathy with long thoracic neuritis, scapular winging Grade 2,
secondary to a traction injury, capsulitis of the shoulder as well as rotator cuff strain and sprain.
He noted a narrowing of the disc space at C5-6 and C6-7, and reported that appellant had a distal
nerve injury. X-rays of the left shoulder and AC joint demonstrated Grade 1½ spurring as well
as some interior spurring Grade 1½ change at the AC joint and glenohumeral articulation was
grossly intact and that the subacrominal area showed perhaps a Grade 1 change. Dr. Fried
recommended that appellant be restricted to light-duty sedentary work involving no repetitive
motions or lifting objects weighing more than five pounds. He opined that early retirement was
the best option as it was the most medically and cost effective solution to appellant’s condition.
In the same report, Dr. Fried noted that appellant’s initial work consisted of sorting of
letters and was assigned to the LSM for 18 years, which was highly repetitive hand, wrist and
arm activity. He reported that appellant was then assigned to the flat sorter, where he had
worked for the past six years, under modified conditions, primarily pitching mail. Prior to
appellant’s injury, Dr. Fried noted that he lifted trays of mail that weighed up to 30 pounds and
performed repetitive hand, wrist and arm activity. He reported that appellant’s injury occurred
while collecting mail from a tray on May 3, 2005. Dr. Fried reported that, while appellant was
1

OWCP No. xxxxxx973. Appellant was injured on May 3, 2005, when he tried to stop a tray of mail from
falling.

2

collecting mail from a tray, reaching down to his left side at about shoulder level with his arm
fully extended, he grabbed a tray of mail, pulling it towards him, when the tray slipped. To
prevent the tray from falling, he noted that appellant attempted to catch the tray with his left arm
fully extended and abducted. Dr. Fried related that appellant experienced a sharp pain in his left
anterior shoulder. He characterized this as a classic abduction traction injury.
Dr. Fried reported that appellant was a hard worker who “obviously … continued to try to
work through [a] substantial injury.” He opined that appellant “…obviously [had] a substantial
shoulder muscular ligamentous injury as well as a brachial plexus traction injury at his initial
incident.” Dr. Fried opined that appellant developed capsulitis or frozen shoulder in addition to
the shoulder condition for which he received surgery. He opined that shoulder surgery did not
treat the brachial plexus or the ongoing symptoms produced by it. Dr. Fried opined that
appellant could not abduct his shoulder post surgery and, thus, was not able to straighten the
nerves and, further, did not know that doing so would exacerbate his nerve symptoms. It was not
the surgery, rather post surgery motion of the shoulder that caused the nerve damage. Dr. Fried
opined that appellant had the nerve injury when he injured his shoulder and that, once his
shoulder was free, the nerve injury was inflamed and damaged. Regarding appellant’s ability to
work, he noted that appellant should not perform repetitive work activities with his upper
extremities, and that, if such light-duty work was not available, his work hours should be limited
or he should stop work altogether.
Appellant submitted a January 22, 2008 note documenting his employment history. He
also submitted a report dated November 5, 2007 in which Dr. Fried reviewed results from a
functional capacity evaluation (FCE) conducted October 24, 2007.
In a February 8, 2008 note, appellant’s attorney, noted that appellant had a claim which
was accepted for a left shoulder condition for which he underwent surgery. Counsel asserted that
the current claim was for bilateral upper extremity conditions, including carpal tunnel syndrome.
He argued that Dr. Fried’s September 17, 2007 report established causal relationship between
appellant’s brachial plexus, carpal tunnel syndrome and his federal employment.
By decision dated March 13, 2008, the Office denied appellant’s claim because the
evidence of record was insufficient to establish that he sustained an injury as defined by the
Federal Employees’ Compensation Act.
On March 18, 2008 appellant, through his attorney, requested an oral hearing. This was
conducted June 18, 2008 at which appellant testified that his job at the employing establishment
involved sorting trays of mail. He testified that he sustained a left shoulder injury in May 2005,
which developed after his shoulder was injured while trying to stop a tray of mail he was
carrying from falling. Appellant testified that following surgery he returned to work in a position
where he pitched rather than sorted mail. He reported that, upon returning to work, he
immediately developed a problem with his hands and arms as well as numbness in his fingers.
Appellant testified that he changed jobs within the employing establishment to one where he was
taping letters and prepackaging damaged letters. Counsel contended that he believed Dr. Fried’s
September 17, 2007 report was sufficient to establish a prima facie claim and that appellant’s
condition was an aggravation of his prior left arm and shoulder condition when he went back to
pitching mail. He opined that the report demonstrated that Dr. Fried was familiar with

3

appellant’s employment and the duties he performed. Counsel argued that Dr. Fried’s
September 17, 2007 report sufficiently established a causal relationship existed between
appellant’s work activities and his left arm condition as well as development of the brachial
plexus condition.
By decision dated August 19, 2008, the hearing representative affirmed the Office’s
March 13, 2008 decision, finding that no medical condition had been identified in connection
with the claimed employment factors.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.3
ANALYSIS
The Board finds this case is not in a posture for decision.
Appellant alleged that his bilateral brachial plexus and shoulder condition were caused by
pitching mail at the employing establishment, after he returned to light-duty work following his
May 2005 accepted injury. His burden was to demonstrate, through production of probative
rationalized medical evidence, that his bilateral brachial plexus and shoulder condition were
causally related to the identified employment factor.4
2

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

3

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
4

The Board notes that appellant submitted a report from a physical therapist. Because healthcare providers such
as nurses, acupuncturists, physician’s assistants and physical therapists are not considered physicians under the Act,
their reports and opinions do not constitute competent medical evidence. 5 U.S.C. § 8101(2); see also G.G., 58
ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983). Thus the physical therapy report appellant
submitted is of no probative value.

4

Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant,5 must be one of
reasonable medical certainty6 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.7 The fact that the condition became apparent during a period of
employment is not sufficient to establish that the causal relationship, which must be established
in each case by affirmative medical evidence.8
Dr. Fried reported a history of injury, a review of appellant’s employment duties and
findings upon examination. He diagnosed appellant with left brachial plexopathy/cervical
radiculopathy with long thoracic neuritis, scapular winging Grade 2, secondary to a traction
injury, capsulitis of the shoulder, rotator cuff strain and sprain as well as left median, radial and
ulnar neuropathy. Dr. Fried noted a narrowing of the disc space at C5-6 and C6-7. He also
reported that appellant had a distal nerve injury.
Dr. Fried reported that appellant’s injury occurred while collecting mail from a tray on
May 3, 2005. He noted that, while appellant was collecting mail from a tray, reaching down to
his left side at about shoulder level with his arm fully extended, he grabbed a tray of mail,
pulling it towards him, when the tray slipped. To prevent the tray from falling, Dr. Fried noted
that appellant attempted to catch the tray with his left arm fully extended and abducted. He
related that appellant experienced a sharp pain in his left anterior shoulder. Dr. Fried
characterized this as a classic abduction traction injury.
Dr. Fried opined that it was not the surgery, rather post surgery motion of the shoulder
that caused the nerve damage. He opined that appellant had the nerve injury when he injured his
shoulder and that, once his shoulder was free, the nerve injury was inflamed and damaged.
In summary, Dr. Fried’s report reviewed the identified employment factors which
appellant claimed caused his condition and, incorporating these identified factors together with
findings upon examination and a review of his medical history, explained how the identified
employment factors caused or aggravated a diagnosed condition and presented a medical
rationale in support of his opinion.9 The Board finds that Dr. Fried’s report is sufficient, given
the absence of any opposing medical evidence, to require further development of the record.10 It
is well established that proceedings under the Federal Employees’ Compensation Act11 are not
5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

Paul D. Weiss, 36 ECAB 720 (1985); William J. Murray, 35 ECAB 606 (1984); 20 C.F.R. § 10.110(a).

9

Robert Broome, 55 ECAB 339 (2004).

10

See Earnest J. Reece, Jr., 32 ECAB 1508, 1510 (1981).

11

5 U.S.C. §§ 8101 et seq.

5

adversarial in nature12 and while appellant has the burden to establish entitlement to
compensation, the Office shares responsibility in the development of the evidence.13 The Office
has an obligation to see that justice is done.14
The case will be remanded for the Office for further action consistent with appellant’s
decision. On remand, after such further development of the case record as the Office deems
necessary, a de novo decision shall be issued.15
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 19 and March 13, 2008 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings in accordance with this decision.
Issued: September 28, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo. 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71 (1956).
13

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

14

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

15

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

6