United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, SC, Employer
__________________________________________

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

Docket No. 18-0876
Issued: March 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 9, 2018 appellant filed a timely appeal from a February 1, 2018 merit decision
and a February 22, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish right carpal
tunnel syndrome and acquired trigger finger of the right thumb causally related to the accepted
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 22, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

factors of her federal employment; and (2) whether OWCP properly denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 13, 2017 appellant, then a 51-year-old pharmacy technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome and acquired trigger finger of the right thumb due to factors of her federal employment,
including performing the physical demands required or associated with her employment. She
indicated that she first became aware of her condition and first realized it was caused or aggravated
by her federal employment on June 16, 2017. Appellant stopped work on August 23, 2017 and
returned to work on November 13, 2017.
In a December 18, 2017 development letter, OWCP advised appellant of the deficiencies
of her claim. It requested that she submit additional factual and medical evidence and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In response, appellant submitted a position description, a written confirmation of request
for accommodation dated December 27, 2017, and an “Employee Limitations on Reassignment
Options” form dated January 16, 2018 requesting a different type of position for which she was
qualified.
Appellant also submitted occupational therapy reports in support of her claims dated
October 2, 6, 13, 16, 20, and 31 and November 9 and 10, 2017.
In a July 12, 2017 report, Dr. Michael Ugino, a Board-certified orthopedic surgeon,
diagnosed acquired trigger finger of the right thumb and left hand pain. He obtained a history of
appellant experiencing triggering of the right thumb as well as bilateral hand numbness and
tingling over the prior few months. Dr. Ugino indicated that her hands showed no arthritic changes
to the carpometacarpal (CMC), metacarpophalangeal (MCP), and interphalangeal (IP) joints.
Appellant otherwise had full range of motion (ROM) of the IP joints and there was no thenar
eminence atrophy. Tinel’s testing was positive over the carpal canals and Phalen’s testing was
positive after 30 seconds of volar flexion of the wrists. Sensibility testing showed diminished
sensation in the median nerve distribution of the hands. Vascular Allen’s testing was normal.
There was triggering over the A1 pulley of the right thumb.
An August 3, 2017 electromyography and nerve conduction velocity (EMG/NCV) study
revealed mild-moderate bilateral median neuropathy at the wrist consistent with carpal tunnel
syndrome.
In an August 7, 2017 report, Dr. Ugino reviewed the results of electrodiagnostic testing.
He diagnosed right carpal tunnel syndrome and recommended a right carpal tunnel release.
On August 24, 2017 Dr. Ugino performed a right carpal tunnel release and a right trigger
thumb release.

2

In work excuse notes dated September 1 and 15 and October 6 and 20, 2017, Dr. Ugino
advised that appellant was not capable of returning to work.
On September 15, 2017 Dr. Ugino saw appellant for a follow-up evaluation and noted that
she was approximately three weeks postsurgery. He confirmed his diagnosis of right carpal tunnel
syndrome and found that the incision site was well healed.
In an October 6, 2017 report, Dr. Ugino noted the diagnoses previously made and indicated
that appellant was undergoing occupational therapy.
On October 20, 2017 Dr. Ugino indicated that appellant still had numbness in all her
fingers that went up her arm to her neck and reported a lot of pain in her thumb, especially in her
thumb web space.
In a November 10, 2017 report, Dr. Ugino again diagnosed right carpal tunnel syndrome
and right trigger thumb and found that appellant could resume limited-duty employment on
November 13, 2017.
In work excuse notes dated November 10 and December 8, 2017 and January 8, 2018,
Dr. Ugino released appellant to return to work with restrictions.
By decision dated February 1, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record failed to establish a causal relationship between her
right carpal tunnel syndrome and acquired trigger finger of the right thumb and the accepted factors
of her federal employment.
On February 15, 2018 appellant requested reconsideration and resubmitted a position
description, as well as the August 3, 2017 EMG/NCV studies. She also submitted an undated,
unsigned “Employee Limitations on Reassignment Options” form.
Appellant further submitted a January 11, 2018 e-mail message indicating that her work
restrictions could not be accommodated by the employing establishment and an October 20, 2013
notification of personnel action (SF-50) indicating that she had received a promotion.
In a February 7, 2018 report, Dr. Ugino discussed appellant’s complaints of pain in the
hands bilaterally and trigger finger of the right thumb, and noted that she related that her condition
was aggravated by excessive repetitive pulling, pushing, and twisting at work, working in awkward
or stationary positions for extended hours, and extreme temperatures. He noted that appellant had
worked in her current position for nine years and attributed her bilateral hand pain to the physical
requirements of her position. Dr. Ugino diagnosed mild-moderate right carpal tunnel syndrome
and mild left carpal tunnel syndrome. He opined that appellant had developed bilateral carpal
tunnel syndrome with right trigger thumb due to her employment duties as an oncology pharmacy
technician. Dr. Ugino explained that appellant was exposed to risk factors likely to result in carpal
tunnel syndrome, including repetitive movements, awkward positioning, remaining stationary for
extended periods, compression from grasping, and working in cold temperatures. He related,
“These risk factors, either alone or in combination, can subject workers’ shoulders, arms, hands,
wrists, backs, and legs to thousands of repetitive twisting, forceful, or flexing motions during a
typical workday.”
3

By decision dated February 22, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim, including 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 period
of FECA,4 that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (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.7
Causal relationship is a medical question, which requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.10

3

Supra note 1.

4

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

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
See L.C., Docket No. 19-1301 (issued January 29, 2020); D.R., Docket No. 09-1723 (issued May 20, 2010). See
also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41
ECAB 345 (1989).
8

See A.L., Docket No. 19-1122 (issued January 7, 2020); Robert G. Morris, 48 ECAB 238 (1996).

9

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, supra note 7.

10

Id.

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome and acquired trigger finger of the right thumb causally related to the accepted
factors of her federal employment.
In support of her claim, appellant submitted reports dated July 12, 2017 to January 8, 2018
from Dr. Ugino. In these reports, however, Dr. Ugino failed to address the cause of the diagnosed
conditions. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value and insufficient to establish the claim.11
The August 3, 2017 EMG/NCV studies of record revealed mild-moderate bilateral median
neuropathy at the wrist, as seen in carpal tunnel syndrome. The Board has held, however, that
diagnostic studies lack probative value on the issue of causal relationship as they do not provide
an opinion as to whether the accepted employment factors caused appellant’s diagnosed
condition.12
Appellant also submitted occupational therapy reports dated October 2 through
November 10, 2017 in support of her claim. These documents do not constitute competent medical
evidence because an occupational therapist is not considered a “physician” as defined under
FECA. Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to compensation benefits.13
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted factors of her federal employment, the Board
finds that she has not met her burden of proof to establish her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.14 OWCP has discretionary authority in this regard and has imposed certain

11

A.P., Docket No. 18-1690 (issued December 12, 2019).

12

L.C., Docket No. 19-1301 (issued January 29, 2020).

13
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician 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).
14
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

limitations in exercising its authority.15 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.16
A timely request 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.17 When a timely request 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.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration appellant submitted a February 7, 2018 report wherein Dr. Ugino
discussed appellant’s complaints of pain in the hands bilaterally and trigger finger of the right
thumb. He noted that appellant related that her condition was aggravated by excessive repetitive
pulling, pushing, and twisting at work, working in awkward or stationary positions for extended
hours, and extreme temperatures. Dr. Ugino discussed appellant’s work history and diagnosed
mild-moderate right carpal tunnel syndrome and mild left carpal tunnel syndrome. He opined that
appellant had developed bilateral carpal tunnel syndrome with right trigger thumb due to her
employment duties as an oncology pharmacy technician. Dr. Ugino explained that appellant was
exposed to risk factors likely to result in carpal tunnel syndrome, including repetitive movements,
awkward positioning, remaining stationary for extended periods, compression from grasping, and
working in cold temperatures. He concluded that “These risk factors, either alone or in
combination, can subject workers’ shoulders, arms, hands, wrists, backs, and legs to thousands of
repetitive twisting, forceful, or flexing motions during a typical workday.”
Dr. Ugino’s February 7, 2018 report directly addressed the basis upon which OWCP denied
appellant’s claim as it provided additional explanation as to the cause of the diagnosed conditions
and discussed the relationship to appellant’s federal employment.19 The Board, thus, finds that
OWCP improperly refused to reopen appellant’s case for further review of the merits, as the
evidence she submitted, in support of her reconsideration request, is relevant and pertinent new
15

20 C.F.R. § 10.607.

16

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.
17

20 C.F.R. § 10.606(b)(3); P.M., Docket No. 19-1253 (issued January 23, 2020).

18

Id. at § 10.608(a), (b).

19

M.C., Docket No. 17-1983 (issued August 17, 2018).

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evidence not previously considered.20 Reopening a claim for merit review does not require a
claimant to submit all evidence that may be necessary to discharge his or her burden of proof.21
As appellant has submitted relevant and pertinent new evidence not previously considered
by OWCP, she is entitled to a review of the merits of her claim under section 10.606(b)(3) of
OWCP’s regulations.22 The case will be remanded to OWCP to conduct a merit review of the
claim. Following this and such other development as deemed necessary, it shall issue an
appropriate merit decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome and acquired trigger finger of the right thumb causally related to the accepted
factors of her federal employment. The Board further finds that OWCP improperly denied
appellant’s request for reconsideration of the merits of her claim.

20

20 C.F.R. § 10.606(b)(3); P.M., Docket No. 19-1253 (issued January 23, 2020).

21

R.T., Docket No. 18-1263 (issued February 7, 2019); K.S., Docket No. 18-1022 (issued October 24, 2018).

22

Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed and the February 22, 2018 decision is set aside and
the case is remanded to OWCP for further proceedings consistent with this decision of the Board.
Issued: March 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-1221
Issued: September 14, 2015

Case Submitted on the Record

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

JURISDICTION
On May 6, 2015 appellant filed a timely appeal from a March 27, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition on May 3, 2013 in the performance of duty causally related to factors of his federal
employment.
FACTUAL HISTORY
On May 9, 2013 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim
alleging that on May 3, 2013 he was relieved of his duties as acting supervisor at the
1

5 U.S.C. §§ 8101-8193.

McDonough, Georgia, Post Office and this caused anxiety issues. He indicated that he had a
stress claim accepted in 2004. Appellant stopped work on May 3, 2013.
In support of his claim, appellant submitted May 7, 2013 reports from David W. Aycock,
Ph.D., a licensed psychologist, who noted that he had treated appellant for a work-related injury
from 2004 to 2006, and that he recently had a recurrence and could not work until further notice.
Dr. Aycock diagnosed anxiety disorder.
The employing establishment controverted the claim, relating that appellant was told by a
supervisor to return to his duty station. In a May 10, 2013 statement, Rebecca Spivey, the
postmaster at the Hampton, Georgia, Post Office, related that on May 6, 2013 appellant reported
that he was going to the doctor because he did not understand why he was being blamed for
events, and that on May 7, 2013 appellant presented a recurrence claim.2
By letter dated May 22, 2013, OWCP informed appellant of the information needed to
support his claim. In a May 24, 2013 response, appellant related that after his accepted 2004
emotional condition, he returned to work in 2005 and had worked as an acting supervisor in
several postal installations, including at the Hampton Post Office in 2012, where Jerry Sparks
was postmaster, and that when Mr. Sparks became postmaster was assigned to the McDonough
Post Office in July 2012, appellant went there on a detail as an acting supervisor. Appellant
stated that Mr. Sparks accepted another postmaster position in April 2013, and Carolyn Carter
took charge of the McDonough Post Office. He reported that he was the subject of an
investigation by the Office of Inspector General (OIG) regarding delay of mail and an
investigational interview took place on May 3, 2013. Appellant indicated that later that day
Ms. Carter told him to report back to his assigned delivery unit, and that while driving home he
realized he had been “fired” from a job without cause he had held for eight months, and this
caused increased stress. In an undated portion of an Equal Employment Opportunity (EEO)
complaint, appellant related that as a result of the adverse relief of duties without cause by
Ms. Carter on May 3, 2013, he had a serious relapse of stress and anxiety. He stated that he
originally filed a recurrence claim, but was informed by Ms. Spivey to file a traumatic injury
claim. The EEO complaint described additional issues, not relevant to the instant claim.
In an attending physician’s report dated May 7, 2013, Dr. Aycock noted a history of
injury that appellant was suddenly demoted and this caused anxiety, sleep disturbance,
concentration and memory deficits, appetite disturbance, low motivation, lethargy, reliving
workplace trauma, and reliving previous trauma. He opined that this was a recurrence of a
severe anxiety disorder that disabled appellant previously, and the disability would be longstanding.
By decision dated June 27, 2013, OWCP denied that appellant sustained a traumatic
injury on May 3, 2013. It accepted as factual that appellant was assigned as a rural carrier
associate at the Hampton and McDonough locations, with additional duties and reassignments.

2

The record indicates that the 2004 claim was adjudicated by OWCP under file number xxxxxx966, and that
appellant also filed a recurrence claim under that file for the events of May 3, 2013. The instant case was
adjudicated under file number xxxxxx842.

2

OWCP denied the claim because the medical evidence was insufficient to establish that he
sustained an emotional condition causally related to the accepted employment factor.
In correspondence dated April 7, 2014 received by OWCP on April 14, 2014, appellant
requested reconsideration. He stated that he returned to work in September 2013 but relapsed in
October 2013 as a result of adverse actions by management at the Hampton Post Office, for
which he had filed an occupational disease claim.3 Appellant maintained that the employing
establishment improperly controverted his claim. He described the events of May 3, 2013.
Appellant related that Ms. Carter took over management of the McDonough Post Office on or
about April 30, 2013 and improperly relieved him of duties there on May 3, 2013, and this
caused an acute anxiety disorder. He reasoned that this was because he was being accused of
delaying mail. Appellant stated that he had filed both an EEO claim and a claim before the Merit
Systems Protection Board (MSPB), which were both settled. He submitted evidence regarding
his occupational disease claim and postal policies. The acceptance letter for his 2004 claim, and
May 15, 2013 correspondence informing appellant of an investigative interview was scheduled
on May 21, 2013 with Ms. Carter.
Also submitted were medical records from Dr. Aycock dated September 23, 2013 to
January 7, 2014. He advised on December 17, 2013 that appellant’s employment injury of
May 3, 2013 was clearly debilitating and brought about a recurrence of his 2004 accepted injury.
Dr. Aycock stated that the circumstances of injury and appellant’s symptoms were very similar
to the previous injury, and that the causative link between the May 3, 2013 injury and appellant’s
diagnosed disability was very clear. On January 5, 2014 he diagnosed a serious anxiety disorder.
Dr. Aycock stated that he had been treating appellant weekly for a traumatic relapse on May 3,
2013 and also discussed events regarding appellant’s occupational disease claim.
An MSPB settlement agreement dated July 18, 2013 indicated that appellant would not
be disciplined for events addressed in a May 15, 2013 report of investigation regarding delay of
mail at the McDonough Post Office, and that appellant would withdraw MSPB appeals and an
EEO complaint. In a March 20, 2014 statement, John D. Snow, a coworker, described how the
events at the McDonough Post Office in May 2013 affected him. In a March 31, 2014 statement,
Mr. Sparks explained that appellant worked as an acting supervisor while he was postmaster at
both Hampton and McDonough Post Offices. He stated that appellant was highly knowledgeable
of postal and rural delivery operations and at no time was he found to be unsuitable for the
supervisory position.
An OIG report of investigation dated May 15, 2013 described events from April 29 to
May 15, 2013. The investigation was conducted regarding delay of mail at the McDonough Post
Office. The report stated that a confidential source had reported that appellant and Mr. Snow had
been hiding mail in a vault. A number of employees were interviewed, some of whom reported
seeing undelivered mail in the vault at the employing establishment. Appellant was interviewed
on May 3, 2013. He indicated that he did not always have the resources to get out the mail every
day and would go through the mail that was left to make sure no first class mail was undelivered
before placing the mail in the vault.
3

The occupational disease claim is adjudicated by OWCP under file number xxxxxx079.

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In a May 6, 2014 statement, Ms. Spivey, postmaster at the Hampton Post Office, stated
that she knew Ms. Carter sent appellant back to Hampton, his home office, because of an
investigation at McDonough.
In a June 12, 2014 statement, Ms. Carter, postmaster at McDonough, stated that she
arrived at McDonough on April 29, 2013 and that on April 30, 2013 she was informed by OIG
that they would be investigating a telephone call that first class mail was being hidden in the
walk-in vault. She related that she and the OIG investigator walked into the vault and found two
tubs of first class mail, which was contrary to postal standards. Ms. Carter stated that an
investigation was conducted and appellant, who was on a detail to McDonough, was then
relieved of his supervisor duties, was told why, and was returned to his primary assignment at the
Hampton Post Office. She related that she consulted with the district labor manager regarding
how to proceed and, following this, sent appellant a directive to come in for an investigative
interview. However, after appellant provided a physician’s statement that he could have no
contact with the postal office, all communications ceased. Ms. Carter attached a copy of
appellant’s May 3, 2013 interview conducted by an OIG investigator and a sworn statement,
signed by appellant on May 3, 2013 regarding mail not delivered at the end of the day.
Appellant stated that, since his arrival at McDonough in July 2012, undeliverable mail was
collected in a tub and placed in the vault. He stated that he did not always have time to go
through this mail to make sure that first class mail was not delayed and explained that first class
mail for rural delivery could be delayed because it was not properly sequenced, sorted, or sent.
Appellant stated that he lacked control because his hands were tied by higher management who
held him accountable for different standards.
In a merit decision dated July 3, 2014, OWCP modified the July 10, 2013 decision to find
no compensable factors of employment and thus appellant had failed to establish an
employment-related emotional condition.
By correspondence dated January 12, 2015, appellant requested reconsideration. He
asserted that his due process rights were violated when he was adversely terminated at
McDonough Post Office on May 3, 2013. Appellant attached duplicates of evidence previously
of record, copies of employing establishment policies, an EEO complaint that does not
specifically address the events of May 3, 2013, copious materials regarding his 2004 injury,
adjudicated under file number xxxxxx966, and regarding his occupational disease claim,
adjudicated under file number xxxxxx079. In identical reports dated October 5 and November 5,
2013, Dr. Aycock noted that appellant had a very serious relapse of his anxiety disorder on
May 3, 2013, and that he had been treating him for this since May 7, 2013. He related that this
was caused when appellant was adversely relieved of his duties as an acting supervisor at the
McDonough Post Office, stating that this was without just cause, noting that an investigation was
being conducted. Dr. Aycock stated that appellant was sent back to his primary job at the
Hampton Post Office before the investigation had been completed and this reinforced appellant’s
prior distrust of the employing establishment’s management. He indicated that appellant briefly
returned to work but, after mistreatment by management, he again took appellant off work
because he had regressed.
On March 27, 2015 OWCP denied modification of the prior decisions, finding that
appellant had not established an emotional condition in the performance of duty.

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LEGAL PRECEDENT
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.4 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.5 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.6
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,7 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.8 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.9 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.10 Where the
claimant alleges compensable factors of employment, he must substantiate such allegations with
probative and reliable evidence.11 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially

4

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

5

Dennis J. Balogh, 52 ECAB 232 (2001).

6

Id.

7

28 ECAB 125 (1976).

8

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

9

Lillian Cutler, supra note 7.

10

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

11

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

12

Roger Williams, 52 ECAB 468 (2001).

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assigned work duties of the employee and are not covered under FECA.13 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.14
ANALYSIS
The Board finds that appellant did not establish an employment-related emotional
condition based on the events of May 3, 2013.
Appellant has not attributed his emotional condition to the performance of his regular
work duties or to any special work requirement arising from his employment duties under
Cutler.15 Rather, his claim pertains to events that occurred on May 3, 2013 when he was relieved
of a detail position as acting supervisor at the McDonough Post Office and returned to his regular
job is as a rural carrier at the Hampton Post Office.
Although the handling of job transfers, the management of work assignments, and
scheduling are generally related to the employment, they are administrative functions and are not
an employment factor where there is no error or abuse on the part of the employing
establishment.16 On May 3, 2013 appellant was on a work detail at the McDonough Post Office.
His regular duty station was the Hampton Post Office.
As to the investigation itself and appellant’s interview with an OIG agent on May 3,
2013, investigations too are an administrative function of the employer. The employing
establishment retains the right to investigate its employee when specific wrongdoing is suspected
or as part of an evaluation process. An employee’s fear of being investigated is not covered
under FECA.17 The record supports that the employing establishment had a legitimate reason to
investigate why first class mail was inappropriately kept in a vault. Appellant acknowledged this
in a written statement. He did not submit evidence that the supervisor, OIG staff, or other
official acted unreasonably or abusively during the investigation.18
Although the record contains an MSPB settlement agreement dated July 18, 2013, the
agreement stated that the terms were mutually dependent and inseparable and thus does not
establish error or abuse.

13

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

14

Kim Nguyen, 53 ECAB 127 (2001).

15

Supra note 7. See James E. Norris, 52 ECAB 93 (2000).

16

See L.C., 58 ECAB 493 (2007).

17

Jeral R. Gray, 57 ECAB 611 (2006).

18

Id.

6

The Board finds that appellant has not established a compensable factor of employment
under FECA and has not established an emotional condition in the performance of duty.19 As
appellant has failed in his burden to establish a compensable factor of employment the Board is
not required to analyze the medical evidence of record.20
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an emotional
condition on May 3, 2013 in the performance of duty causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the March 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

19

As appellant has not established a compensable employment factor, the Board need not consider the medical
evidence of record. See Katherine A. Berg, 54 ECAB 262 (2002).
20

See supra note 5.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF TRANSPORTATOIN,
FEDERAL AVIATION ADMINISTRATION,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
Jennifer Raymond, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0917
Issued: May 8, 2017

Case Submitted on the Record

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

JURISDICTION
On April 1, 2016 appellant, through counsel, filed a timely appeal from a January 22,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
On appeal counsel contends that appellant has established compensable factors of
employment and that his condition is causally related to those factors.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts as presented in the prior
Board decision are incorporated herein by reference. The relevant facts are as follows.
Appellant, then a 47-year-old supervisor air traffic control specialist, filed an
occupational disease claim (Form CA-2) on January 31, 2013 alleging that his post-traumatic
stress disorder had been aggravated by his excessive workload and stress from his job duties. He
first realized that his post-traumatic stress disorder was employment related on September 16,
2012 and he stopped work on September 24, 2012.
In support of his claim, appellant submitted a report from Dr. Naomi I. Jacobs, a licensed
clinical psychologist, who noted appellant’s concern of hostility towards Hispanic employees
and attempts to fire him. Dr. Jacobs opined that appellant suffered from an aggravation of posttraumatic stress disorder stemming from a June 5, 2012 incident.
In a June 25, 2013 decision, OWCP denied appellant’s claim because he failed to
establish any compensable employment factors, which an OWCP hearing representative affirmed
in a November 13, 2013 decision.4 Appellant appealed to the Board, and by decision dated
November 14, 2014, the Board affirmed OWCP’s November 13, 2013 decision denying his
emotional condition claim.5 The Board found that appellant failed to establish any compensable
employment factors.
The Board found that the following alleged events were not established compensable
employment factors: (a) appellant’s computer was confiscated on June 5, 2012 by R.G. and
R.C.; (b) appellant was not given a reason for confiscation of his computer, nor was he allowed
to copy files or work from the confiscated computer; (d) appellant was wrongly accused of
running a personal business from his personal computer; (e) the employing establishment failed
to verify whether a business existed in appellant’s name prior to confiscating his computer; (f)
appellant’s privacy was violated by a request for his eBay user name; (g) appellant was harassed
as part of an organized effort to eliminate Hispanics from employing establishment management;
3

Docket No. 14-0854 (issued November 14, 2014).

4

The hearing representative noted that appellant had filed two previous claims for stress and post-traumatic stress
disorder. She noted that under OWCP File No. xxxxxx327 he alleged stress due to overwork with an injury date of
May 26, 2000. Under OWCP File No. xxxxxx656 appellant alleged post-traumatic stress disorder due to an
excessive workload with an injury date of June 5, 2012. Neither claim has been accepted by OWCP.
5

Supra note 3.

2

(h) appellant’s supervisors were ordered to fire him with no investigation; and (i) appellant was
assigned an excessive workload and increased responsibility as he was required to manage staff
on and off the clock and also manage air traffic.
On October 28, 2015 appellant, through counsel, requested reconsideration. In support of
the request, counsel provided argument and submitted additional evidence.
In a December 29, 2011 e-mail G.O., acting as Director of the National Hispanic
Coalition of Federal Aviation Employees, expressed concern regarding reports of harassment and
discrimination toward Hispanic employees. He stated that the derogatory Hispanic comments
made by two individuals at a December 8, 2011 meeting were abusive, degrading and
inflammatory. G.O. alleged that the individuals who made the inappropriate comments were not
held accountable. He alleged direct and indirect harassment of Hispanic employees at all levels
including allegations that Hispanics were only in their jobs due to their minority status. G.O.
questioned how appellant could be investigated and threatened with removal based on a false
accusation in an e-mail by a disrespectful employee and no factual basis. He alleged
discrimination in the selection of subordinate white males for supervisory positions instead of a
higher placed Hispanics.
The record contains e-mail correspondence between P.G., R.G., S.A., and G.O. regarding
the choice of replacement for appellant and racist remarks directed at Hispanic employees made
during a December 8, 2011 meeting.
In an undated and unsigned statement, appellant alleged a hostile work environment due
to the discrimination and abuse aimed at Hispanic employees at the employing establishment. In
support of this allegation, he referred to the filing of Equal Employment Opportunity (EEO)
complaints by L.O., a manager; G.O., a subordinate supervisor; and A.I., a subordinate
supervisor. According to appellant the chaos and abuse during this period impacted him
emotionally and was a direct cause of his anxiety and September 16, 2012 loss of focus. He
related that his treating physician diagnosed post-traumatic stress disorder due to the employing
establishment chaos and abuse.
On October 17, 2015 appellant provided a narrative statement regarding alleged abuse
and harassment he incurred along with other Hispanic employees at work. He generally alleged
that during the period April 2010 to June 6, 2012 he was informed that he and other Hispanic
employees would be denied promotions by the employing establishment. More specifically
appellant alleged that he was initially informed that he would be denied promotion to the
position of Traffic Management Officer (TMO). After he was promoted to the TMO position, he
alleged that he was subjected to hostile treatment and offensive statements and hostile treatment
due to his race, including racist comments made during a meeting on December 8, 2011.
Appellant alleged that the stress from increased pressure of trying to prove himself capable of
performing the duties of the TMO position, while under discriminatory conditions, was
overwhelming. He further alleged that he was subjected to an employing establishment
investigation of his laptop after complaining about supervisors and coworkers at the employing
establishment, and that it was difficult for him to work under the stress of the investigation.
Appellant alleged that other Hispanic coworkers were also harassed and investigated at this same
time.

3

In an October 20, 2015 statement, G.O. related that appellant had been a wonderful
manager, but noted that appellant had been under significant stress due to his managerial
responsibilities. He noted that appellant became burnt-out due to the stress of his job and the
24-hour on-call responsibilities, six days a week. G.O. noted that appellant missed work and
sought medical care due to the effects of the stress on his health.
In a second statement dated October 20, 2015, G.O. described a December 8, 2011 allhands meeting where disparaging remarks were made about Hispanic managers without any
correction by management. He stated that C.S. made a comment regarding promotion favoritism
by P.G. G.O. also referred to Spanish as “the lingo.” He related that he and A.I. were appalled
by C.S.’s comments, but D.R., M.C., and V.D. appeared in agreement. According to G.O. and
M.C. then made a comment that L.O. would get the next promotion on a FLM bid as she spoke
Spanish. G.O. related that the Hispanic managers at this meeting had been deeply offended by
the meeting comments. Upper management had been alerted to the concerns about the meeting
statements, but nothing was done. Following this meeting, both he and appellant felt that they
were held to a different standard and felt the stress-of-their jobs.
In a statement dated October 21, 2015, J.G. alleged discrimination and a hostile work
environment toward Hispanic employees by the employing establishment. He noted that during
the summer of 2011 appellant had been promoted to the position of TMO which he described as
a high stress and very demanding job. At the time of appellant’s promotion, J.G. stated that
people were unhappy with the selection and K.C. made a comment about the number of
Hispanics in leadership positions. He also related that several supervisors left as they did not
want to work for appellant and had not been selected for the position. Due to the shortage of
supervisors and the reason for their leaving put a lot of stress on appellant. J.G. stated that, after
appellant was promoted, his decisions were questioned and there were constant complaints. At
no time, however, was appellant ever found to have done anything wrong in his decisions.
According to J.G. appellant was instructed to make any needed changes with the result that the
routing changes improved the operation, but made the command center unhappy. He related
things changed at the employing establishment in October 2011 following the retirement
announcement of M.M., Air Traffic Manager, and the promotion of his subordinate manager to
M.M.’s position. According to J.G. this was the start of the disrespectful behavior towards
Hispanic managers and employees.
In November 2011 G.K., whom he described as a disgruntled employee, filed an EEO
complaint against appellant for inappropriate comments, which was dismissed as meritless after
an investigation. J.G. related that he had been told that in a December 2011 meeting that C.S.
made racial comments about Hispanics including that speaking Spanish was the only reason for
their promotions. Prior to M.M.’s retirement, J.G. stated that M.M. came into his office during a
conversation with appellant and that they were told that R.B. wanted appellant removed from his
position due to K.C. stating that appellant had threatened the supervisors. He stated that R.G. did
not give appellant any support and had no traffic management background. On June 6, 2012
appellant informed him that his computer had been taken by R.B. without any explanation. He
related that he believed appellant’s computer was taken to check for e-mails from J.G. and his
brother. According to J.G. appellant felt micromanaged, questioned, and concerned about how
to defend himself. J.G. concluded that since December 8, 2011 there have been personal attacks
and unwarranted scrutiny on the Hispanic employees.

4

By decision dated January 22, 2016, OWCP denied modification of its June 23, 2015
denial of the claim. It found that the evidence of record failed to substantiate appellant’s claims
of overwork and harassment. Specifically, OWCP found that the evidence submitted was
insufficient to establish: (a) any changes in appellant’s work duties; (b) appellant’s allegation of
overwork based on his concern about work being done correctly and working a shift for another
manager; (c) appellant’s allegation of accumulated stress from his position; and (d) that
statements appellant had provided substantiated his allegations of overwork or harassment based
on ethnicity.
LEGAL PRECEDENT
To establish a claim for an emotional condition in the performance of duty, an employee
must submit the following: (1) medical evidence establishing that he or she has an emotional or
psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged to
have caused or contributed to his or her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to his or her
emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation.8 Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employing establishment the disability comes within the coverage of FECA.9 On
the other hand, the disability is not covered where it results from such factors as an employee’s
fear of a reduction-in-force or a frustration from not being permitted to work in a particular
environment or to hold a particular position.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.11 However,
the Board has held that, where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.12 In determining whether the employing establishment has erred or acted abusively,

6

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

7

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

8

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

9

Supra note 2; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

11

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

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

5

the Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.13
The Board has held that the manner in which a supervisor exercises his discretion falls
outside the coverage of FECA. This principal recognizes that a supervisor or manager must be
allowed to perform his or her duties and that employees will, at times, disagree with actions
taken. Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.14 Although the handling of leave
requests and attendance matters are generally related to employment, they are administrative
matters and not a duty of the employee.15
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that FECA’s alleged or implicated by the employee did, in fact,
occur.16 Mere perceptions of harassment or discrimination are not compensable under FECA.17
A claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.18 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.19 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.20
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.21 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.22 When the matter asserted is a compensable factor of employment and the evidence of

13

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

14

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

15

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006).

16

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 7.

17

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

18

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7.

19

G.S., Docket No. 09-0764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005);
Penelope C. Owens, 54 ECAB 684 (2003).
20

Robert Breeden, supra note 7; Beverly R. Jones, 55 ECAB 411 (2004).

21

D.L., 58 ECAB 217 (2006); Jeral R. Gray, supra note 15.

22

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

6

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.23
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of specific
employment incidents and conditions. OWCP denied his emotional condition claim finding that
he failed to establish any compensable work factors. The Board must, therefore, initially review
whether these alleged incidents and conditions of employment are covered employment factors
under FECA.
In the prior appeal, the Board found that appellant’s allegations of stress from increased
scrutiny and an excessive workload were not substantiated by the evidence of record. The Board
also found that his allegations of overwork were nonspecific and general and unsupported by the
evidence. The Board concluded that appellant only provided general allegations of harassment
and discrimination based on his Hispanic origin. Appellant did not provide specific allegations
or instances of discrimination or evidence of a hostile work environment. The Board further
found that he failed to submit any corroborating evidence that the removal of his computer and
an interrogation on August 15, 2012 were unreasonable or erroneous.
Appellant submitted additional evidence in support of his claim following the Board’s
prior decision.
The Board finds that appellant has not established a compensable factor of employment
with regard to overwork. Appellant generally alleged that he was overworked. However, he
provided insufficient corroborating evidence to establish this allegation.
While the record contains allegations that appellant was on-call 24/7, the record does not
substantiate that, as a supervisor, he qualified for overtime. He submitted no factual evidence
substantiating this allegation, such as earnings and leave statements, time records, or daily work
records. Appellant did submit statements from J.G., his supervisor, and G.O., a person he
supervised, relating that appellant was overworked due to understaffing. Neither G.O. nor J.G.,
however, provided specific details or instances where appellant supporting their statement that he
was overworked. Both G.O. and J.G. provided generalized statements without any citation to the
specific work duties appellant performed or the dates they stated that he filled in for
subordinates. In addition, there is no factual evidence corroborating their general allegation
regarding understaffing. As with all allegations, overwork must be established on a factual basis
to be a compensable employment factor.24 Because appellant has not submitted any evidence
corroborating this, overwork cannot be deemed compensable factors of employment.
The Board also finds that appellant failed to establish that his supervisors or coworkers
verbally abused him based on his race or ethnicity or created a hostile work environment. As
23

Robert Breeden, supra note 7.

24

K.S., Docket No. 15-1426 (issued December 29, 2015); Robert Breeden, 57 ECAB 622 (2006); Sherry L.
McFall, 51 ECAB 436 (2000).

7

previously noted, mere perceptions of harassment or discrimination are not compensable under
FECA.25 A claimant must substantiate allegations of harassment or discrimination with
probative and reliable evidence.26
Appellant provided general allegations of harassment or discrimination based on his
Hispanic heritage. He described dealing with Hispanic managers who had filed EEO complaints
increased his stress level. However, appellant did not provide specific details regarding his
interaction with the individuals involved or any dates. He also alleged that D.R. informed him
that he would not be chosen for an open higher position since a Hispanic person occupied the
number two position in the front office. However, the evidence of record establishes that
appellant was promoted to the TMO position.
Appellant further alleged that B.B., R.G., and R.B. were all involved in an attempt to get
him fired. The Board notes that appellant provided no corroborating evidence or witness
statements to establish that these individuals were colluding to get him fired.
The record also contains a statement by G.O. who alleged that the employing
establishment discriminated against Hispanics. He provided no information regarding any
specific incident involving appellant. Moreover, G.O.’s statement regarding discrimination was
general in nature with no details regarding any specific incidents regarding appellant or any other
Hispanic employee. Appellant did not provide evidence to substantiate his allegations of
harassment or discrimination.27
Appellant alleged that he was subjected to a hostile work environment based on his
Hispanic ethnicity and the hostile treatment of Hispanic employees. He contended that the
harassment and resentment of Hispanics began following his promotion to TMO. The perception
of harassment or mistreatment is not sufficient to establish a compensable work factor.28 There
must be probative and reliable evidence in support of the allegation.29 The evidence of record
does not contain probative and reliable evidence sufficient to establish harassment or a hostile
work environment. Although appellant alleged that EEO complaints had been filed by several
Hispanic employees, the record contains no findings by the EEO Commission or other
administrative agencies on this issue.30 The witness statements and the documents from his
supervisor and subordinates made allegations of a hostile work environment towards Hispanics,
but do not provide specific examples of harassment involving appellant. These statements by
J.G., G.O., S.A., and R.G. concern a replacement for appellant and deal with the racial remarks
25

Supra note 17.

26

Supra note 18.

27

See G.S., supra note 19; Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must
substantiate allegations of harassment or discrimination with probative and reliable evidence).
28

G.S., supra note 19; J.C., 58 ECAB 594 (2007); Robert G. Burns, supra note 17.

29

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7.

30

Such evidence, while not determinative, may constitute substantial evidence regarding a compensable work
factor. See Walter Asberry, Jr., 36 ECAB 686 (1985).

8

made at the December 8, 2011 meeting describe incidents they have had with C.S. and D.R., but
do not mention any incidents pertaining to appellant. J.G. and G.O. also provided further details
regarding a December 8, 2011 meeting where they stated racist remarks were made about
Hispanic employees and general allegations of a hostile work environment for Hispanic
employees. However, their statements are insufficient as they are general perceptions by G.O.
and J.G. without describing in detail specific incidents involving appellant. They merely note
that they have witnessed hostile behavior towards Hispanics. The Board has long held that mere
perceptions of harassment or discrimination are not compensable.31 Thus, appellant has not
established a compensable factor with respect to a hostile work environment.
On appeal counsel argues that the evidence of record establishes that appellant was
overworked. Counsel also argues that all elements of entitlement under FECA have been met
and thus, OWCP erred in denying his emotional condition claim. As found above, appellant
failed to establish any compensable factor of employment with respect to his allegations. He
submitted no supporting factual evidence confirmation regarding his allegation that he was
overworked and thus, he has failed to establish any compensable factors of employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty

31

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

9

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2016 is affirmed.
Issued: May 8, 2017
Washington, DC

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

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

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

10


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

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

Docket No. 18-0058
Issued: May 7, 2019

Case Submitted on the Record

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

JURISDICTION
On October 10, 2017 appellant, through counsel, filed a timely appeal from an August 15,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted October 12, 2015 employment incident.
FACTUAL HISTORY
On October 12, 2015 appellant, then a 54-year-old lead technician, filed a traumatic injury
claim (Form CA-1) alleging a “lower back slight pull” injury on October 12, 2015 as a result of
pulling down a roll-up door while in the performance of duty. In his accompanying narrative
statement, he indicated that the strap on the door broke while it was descending, causing him to
fall backwards. Appellant explained that he felt a little pull on his back and he had to twist to gain
his balance and composure. He stopped work on October 13, 2015.
On October 12, 2016 the employing establishment executed an OWCP authorization for
examination and/or treatment (Form CA-16) authorizing appellant to obtain treatment from Saint
Michaels Medical Center.
In an October 15, 2015 report, Dr. Edward Novik, a Board-certified anesthesiologist and
pain medicine specialist, diagnosed lumbar radiculopathy and advised that appellant was disabled
from work for the period October 15 to November 15, 2015.
On October 23, 2015 the employing establishment controverted appellant’s claim,
asserting that the evidence submitted failed to establish causal relationship.
In a November 16, 2015 report, Dr. Novik diagnosed status post lumbar fusion and
indicated that appellant had a lumbar fusion at L5-S1 on September 27, 2015. Appellant did not
report any significant improvement of his pain and continued to complain of low back pain with
radiation to the left leg associated with numbness, weakness, and paresthesia.
In an attending physician’s report (Form CA-20) dated December 3, 2015, Dr. Novik
diagnosed post-traumatic lumbago, lumbar radiculopathy, and a herniated lumbar disc. He
checked a box marked “Yes” indicating that these conditions were caused or aggravated by
appellant’s employment activity. Dr. Novik advised that appellant remained disabled from work
from October 27 to December 27, 2015.
On January 5, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
the period November 27, 2015 to January 1, 2016.
In a development letter dated January 12, 2016, OWCP indicated that when appellant’s
claim was received it appeared to be a minor injury that resulted in minimal or no lost time from
work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it had reopened the claim for consideration because
he had filed a claim for wage-loss compensation. OWCP requested additional evidence and
afforded appellant 30 days to respond to its inquiries.

2

In response, appellant submitted a December 23, 2015 report from Dr. Novik who
diagnosed cervical/lumber radiculopathy and advised that appellant was disabled for work for the
period December 27, 2015 to January 7, 2016.
On October 16, 2015 Dr. Marc A. Cohen, a Board-certified orthopedic surgeon, diagnosed
lumbar disc herniation at L5-S1, lumbar internal disc disruption disease at L5-S1, and lumbosacral
radiculopathy. He noted that appellant had an “injury at work when [appellant] was pulling
something down and this aggravated his back even worse” and “led [appellant] to the
understanding that he must have something seriously wrong with his back because he cannot
function with respect to his persistent back pain.”
A magnetic resonance imaging (MRI) scan of the lumbar spine dated December 15, 2015
revealed status post L5-S1 pedicle fixation surgery and L4-5 right paracentral disc herniation with
annular tear and thecal sac indentation.
In a December 22, 2015 report, Dr. Cohen diagnosed status post lumbar fusion at L5-S1
without radiographic evidence of change and a new disc herniation at L4-5 right side after
traumatic event.
On October 15, 2015 Dr. Novik reiterated his diagnoses. He explained that appellant was
taking stuff out of a truck, fell down from the truck, hit the ground, and felt immediate sharp pain
in his low back, but his main problem was that his left leg went numb immediately and he lost all
feeling. Dr. Novik indicated that appellant continued to complain of low back pain with radiation
to the legs, but the main problems was the numbness. Initially, it was only down his left leg, but
now appellant felt the numbness in his right leg.
In a November 18, 2015 report, Dr. Cohen diagnosed status post-laminectomy and fusion
with initial improvement with respect to leg pain and back pain and exacerbation of appellant’s
recent surgical pain with “a traumatic driving episode.”
On January 7, 2016 Dr. Novik diagnosed post-laminectomy syndrome and reported that
appellant complained of low back pain with radiation to his legs and was not responding to
conservative treatment with anti-inflammatory medications and a structured home exercise
program.
In a January 25, 2015 report, Dr. Novik diagnosed lumbalgia and opined that appellant’s
symptoms were directly and causally related to a January 30, 2013 motor vehicle accident.
On February 4, 2016 Dr. Novik advised that appellant was disabled from work from
February 7 to March 7, 2016.
By decision dated February 18, 2016, OWCP denied the claim finding that the evidence of
record failed to establish that the claimed October 12, 2015 incident occurred as alleged.
Appellant subsequently submitted a February 4, 2016 report from Dr. Novik, who
continued to diagnose post-traumatic lumbalgia, post-laminectomy syndrome, and lumbar
radiculopathy. Dr. Novik indicated that appellant had a caudal epidural steroid injection and
reported 50 percent improvement in his pain.
3

On March 1, 2016 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Counsel further submitted an operative report dated October 27, 2015 from Dr. Cohen,
who performed an open lumbar laminectomy, lateral recess decompression, and 100 percent
facetectomy at L5-S1.
A telephonic hearing was held before an OWCP hearing representative on
November 15, 2016. Appellant provided testimony and the hearing representative held the case
record open for 30 days for the submission of additional evidence.
By decision dated January 17, 2017, OWCP’s hearing representative affirmed the prior
decision, as modified, accepting that the October 12, 2015 employment incident occurred as
alleged, but denying the claim finding that the medical evidence of record failed to establish a
causal relationship between appellant’s diagnosed conditions and the accepted October 12, 2015
employment incident.
On May 31, 2017 appellant, through counsel, requested reconsideration and submitted a
May 29, 2017 report from Dr. Cohen, who diagnosed lumbar internal disc disruption
disease/discogenic instability at L5-S1 and lumbosacral radiculopathy.
In a June 27, 2017 report, Dr. Novik continued to diagnose post-traumatic lumbago, lumbar
radiculopathy, and herniated lumbar disc. He reiterated the factual history of the claim and opined
that appellant’s conditions were causally related to the October 12, 2015 work incident.
By decision dated August 15, 2017, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
the employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.8
To establish 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 sufficient to establish such causal relationship.9 Rationalized medical opinion
evidence is required to establish causal relationship. The opinion of the physician must be based
on a complete factual and medical background, 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.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted October 12, 2015 employment incident.
In support of his claim, appellant submitted medical reports by Dr. Cohen who diagnosed
a lumbar disc herniation at L5-S1, lumbar internal disc disruption disease at L5-S1, and
lumbosacral radiculopathy and reported the history of injury. Dr. Cohen reported that appellant
had initially been referred to his office for a spinal surgical evaluation on March 20, 2014 because
of a motor vehicle accident in 2013 which injured appellant’s back. He explained that appellant
was managing his back complaints until the work-related injury of October 12, 2015 when his
back pain became significant and eventually necessitated surgical intervention. On October 27,
2015 Dr. Cohen performed an open lumbar laminectomy, lateral recess decompression, and 100
percent facetectomy at L5-S1. After appellant’s surgery, he diagnosed exacerbation of appellant’s
recent surgical pain due to new disc herniation at L4-5 after “a traumatic driving event.” Dr. Cohen
noted that appellant had done very well from his surgery and then indicated that he had an incident
when he was a passenger in a car that was transporting him from the hospital when the driver went
off the road. The Board has held that a report is of limited probative value regarding causal
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

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

8

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

9

K.V., Docket No. 18-0723 (issued November 9, 2018).

10

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

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

relationship if it does not contain medical rationale explaining how a given medical condition was
caused or aggravated by an employment incident.12 The Board finds that Dr. Cohen’s report does
not provide sufficient medical rationale explaining how appellant’s new or preexisting lumbar
conditions were caused or aggravated by on the accepted October 12, 2015 employment incident.
The need for rationale is particularly important as the evidence indicates that appellant had a
preexisting back condition due to a 2013 motor vehicle accident.13 Therefore, the Board finds that
the reports from Dr. Cohen are insufficient to establish causal relationship.
Appellant also submitted medical reports by Dr. Novik, who opined that appellant’s
cervical and lumbar spine conditions were causally related to the accepted October 12, 2015
employment incident. Dr. Novik reported the history of injury and provided examination findings.
The Board finds that he failed to provide sufficient medical rationale explaining how the accepted
October 12, 2015 employment incident either caused or contributed to appellant’s diagnosed
conditions. Dr. Novik opined that appellant’s conditions were causally related to the October 12,
2015 pulling and falling incident at work. However, the fact that a condition manifests itself during
a period of employment is insufficient to establish causal relationship.14 Temporal relationship
alone will not suffice.15 Dr. Novik’s reports did not include sufficient medical rationale explaining
how the October 12, 2015 incident either caused or contributed to appellant’s back conditions.16
For these reasons, the Board finds that the evidence from Dr. Novik is insufficient to establish that
appellant’s diagnosed conditions are causally related to the October 12, 2015 work incident.
Appellant also submitted diagnostic testing reports. The MRI scan of the lumbar spine
dated December 15, 2015 confirmed the diagnosis of status post L5-S1 surgery and L4-5 right
paracentral disc herniation. Diagnostic studies are of limited probative value as they do not address
whether the employment incident caused any of the diagnosed conditions.17 Thus, this evidence
is insufficient to satisfy appellant’s burden of proof with respect to causal relationship.
As appellant has not submitted rationalized medical evidence to support his claim that he
sustained a back injury causally related to the accepted October 12, 2015 employment incident, he
has not met his burden of proof to establish entitlement to compensation benefits.
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.

12

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

13

Supra note 11.

14

20 C.F.R. § 10.115(e).

15

See D.I., 59 ECAB 158, 162 (2007).

16

Supra note 12.

17

See J.S., Docket No. 17-1039 (issued October 6, 2017).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted October 12, 2015 employment incident.18
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2019
Washington, DC

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

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

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

18

On return of the case record OWCP shall also review the Form CA-16 of record. The Board notes that the
employing establishment issued appellant a signed authorization for examination and/or treatment (Form CA-16)
authorizing medical treatment. The Board has held that where an employing establishment properly executes a
CA-16 form, which authorizes medical treatment as a result of an employee’s claim for an employment-related injury,
it creates a contractual obligation which does not involve the employee directly to pay the cost of the examination or
treatment regardless of the action taken on the claim. See 20 C.F.R. §§ 10.300 and 10.304; R.W., Docket No. 18-0894
(issued December 4, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
POST OFFICE, Duluth, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1650
Issued: February 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 1, 2013 appellant, through his attorney, filed a timely appeal from a May 3, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that he did
not establish a recurrence of disability. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on September 22, 2010
causally related to his August 19, 2004 employment injury.
FACTUAL HISTORY
On August 19, 2004 appellant, then a 42-year-old mail processor, sustained a low back
strain in the performance of duty. OWCP accepted the claim for lumbar strain. Appellant
1

5 U.S.C. § 8101 et seq.

worked limited duty until October 26, 2004 and returned to regular employment on
February 1, 2005. He returned to working in a limited-duty capacity on March 22, 2005. On
September 22, 2010 the employing establishment sent appellant home because there was no
work available.
Appellant filed a claim for compensation beginning September 25, 2010. In a report
dated October 18, 2010, Dr. Shevin D. Pollydore, a Board-certified physiatrist, diagnosed
discogenic low back pain with disc bulges and an annular tear at L4-5 by magnetic resonance
imaging (MRI) scan study. He listed work restrictions consistent with a prior functional capacity
evaluation.2
On October 28, 2010 appellant filed a notice of recurrence of disability beginning
September 23, 2010 due to being sent home from work as a result of the National Reassessment
Program (NRP).
By decision dated December 23, 2010, OWCP denied appellant’s claim after finding that
he had not submitted medical evidence showing that he was disabled from September 25 to
October 10, 2010.
On January 15, 2011 appellant requested an oral hearing before an OWCP hearing
representative regarding OWCP’s December 23, 2010 decision.
In a decision dated January 24, 2011, OWCP denied appellant’s claim for compensation
from October 9 to 22, 2010 as he had not submitted supporting medical evidence as requested.
In a report dated January 5, 2011, received by OWCP on April 25, 2011, Dr. Pollydore
related that he began treating appellant after an August 19, 2004 employment injury. Appellant’s
back pain began “slowly over time with repetitive lifting….” Dr. Pollydore diagnosed
discogenic back pain with multiple disc bulges, an annular tear at L4-5 and lumbar facet pain.
He noted that a computerized tomography discogram revealed degenerative changes particularly
at L3-4 and L4-5. Dr. Pollydore found that appellant’s injuries were permanent and provided
work restrictions. He stated, “In my medical judgment [appellant’s] current symptoms and
impairment are directly related to his work[-]related repetitive injury dated August 19, 2004.”
In a decision dated May 16, 2011, an OWCP hearing representative set aside the
December 23, 2010 decision. She noted that OWCP had further developed the issue of whether
appellant sustained a disc tear due to his work injury by obtaining a July 18, 2006 report from
Dr. Harold Alexander, a Board-certified orthopedic surgeon and OWCP referral physician. The
hearing representative found, however, that Dr. Alexander’s opinion was insufficient to resolve
the issue of causal relationship of the disc tear and remanded the case for OWCP to further
develop the evidence.

2

In reports dated October 18, 2010 and January 3, 2011, Dr. Pollydore diagnosed discogenic back pain with disc
bulges and an annular tear at L4-5 and lumbar facet pain. He provided work restrictions consistent with those of a
prior functional capacity evaluation.

2

On May 19, 2011 OWCP referred appellant to Dr. Alexander N. Doman, a Boardcertified orthopedic surgeon, for a second opinion examination. In a report dated June 14, 2011,
Dr. Doman opined that appellant had “no objective findings to support the diagnosis of lumbar
strain.” He asserted that the strain had resolved by November 19, 2004. Dr. Doman found that
appellant had no residuals of his August 19, 2004 employment injury. In a supplemental report
dated July 5, 2011, he advised that the annular tear and disc bulges were unrelated to the
August 19, 2004 work injury.
OWCP determined that a conflict existed between Dr. Doman and Dr. Pollydore
regarding whether appellant had any current work-related condition and whether had residuals of
his lumbar strain. It referred appellant to Dr. C. Thomas Hopkins, Jr., a Board-certified
orthopedic surgeon, to resolve the conflict in medical opinion. In a report dated October 13,
2011, Dr. Hopkins discussed appellant’s history of injury and reviewed the medical evidence of
record. On examination he found a negative straight leg raise with low back pain at 60 degrees.
Dr. Hopkins further found a normal sensory and motor examination of the lower extremities with
full range of motion. He opined that appellant had no objective findings of his lumbar strain and
that “any strain that he sustained would have resolved within several months after his initial
complaint.” Dr. Hopkins further determined that the multiple disc bulges and annular disc tear
appeared due to age and were unrelated to employment. He advised that appellant could perform
medium work and indicated that “any activity that requires excessive amount of lifting can
aggravate that condition although it is unrelated to any work.” Dr. Hopkins explained that he
saw no “objective pathology on any portion of the examination that reveals any work[-]related
injury secondary to [appellant’s] complaints of 2004. I see no evidence that further treatment is
indicated.”
By decision dated November 8, 2011, OWCP denied appellant’s compensation for wage
loss from September 25 to October 10, 2010. It found that the medical evidence established that
he had no residuals of his work injury and terminated authorization for medical benefits.
In a decision dated April 30, 2012, an OWCP hearing representative affirmed the
April 30, 2012 decision. He found that Dr. Hopkins’ opinion established that the August 19,
2004 lumbar strain had resolved and that the disc bulges and annular tear at L4-5 were not due to
the accepted work injury. The hearing representative thus concluded that appellant had not
established an employment-related recurrence of disability beginning September 22, 2010.
On April 2, 2013 appellant, through his attorney, requested reconsideration. In a report
dated January 24, 2013, Dr. Pollydore diagnosed discogenic low back pain with disc bulges and
an annular tear at L4-5 and lumbar facet pain. He listed work restrictions.
By decision dated May 3, 2013, OWCP denied modification of the April 30, 2012
decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment

3

that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.5
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.6
ANALYSIS
Appellant filed a notice of recurrence of disability beginning September 22, 2010 after
the employing establishment withdrew his limited-duty job pursuant to the NRP.7 OWCP
determined that a conflict arose between Dr. Pollydore, his attending physician and Dr. Doman, a
referral physician, regarding whether he had any further disability due to his August 19, 2004
employment injury and whether he sustained an annular disc tear due to his employment injury.
It referred appellant to Dr. Hopkins for an impartial medical examination.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.8 The Board finds that the opinion of Dr. Hopkins, a
Board-certified orthopedic surgeon selected to resolve the conflict in opinion, is well rationalized
3

20 C.F.R. § 10.5(x).

4

See Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman, 38 ECAB 222 (1986).

5

See Maurissa Mack, 50 ECAB 498 (1999).

6

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

7

While OWCP did not refer to the provisions of FECA Bulletin 09-05, it fulfilled the requirements of the bulletin
by its development of the current medical evidence and referring appellant for an impartial medical examination.
8

J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB 414 (2006).

4

and based on a proper factual and medical history. Dr. Hopkins accurately summarized the
relevant medical evidence, provided detailed findings on examination and reached conclusions
about appellant’s condition which comported with his findings.9 In a report dated October 13,
2011, he reviewed the medical evidence of record, including the results of diagnostic studies. On
examination, Dr. Hopkins noted normal sensory and motor findings and a negative straight leg
raise with no loss of motion. He determined that appellant had no objective findings of the
accepted condition of lumbar strain and that the strain resolved no later than several months after
the 2004 injury. Dr. Hopkins provided rationale for his opinion by noting that the examination
revealed no objective findings of the employment injury. He further determined that the annual
tear and disc bulges seen on MRI scan study were age related and not due to the employment
injury. As Dr. Hopkins’ report is detailed, well rationalized and based on a proper factual
background, his opinion is entitled to the special weight accorded an impartial medical
examiner.10 OWCP properly relied upon his report to find that appellant did not establish that he
sustained a recurrence of disability on September 22, 2010 causally related to his August 19,
2004 work injury.
Subsequent to Dr. Hopkins’ October 13, 2011 evaluation, appellant submitted a report
dated January 24, 2013 from Dr. Pollydore, who diagnosed discogenic low back pain with disc
bulges, lumbar facet pain and an annular tear at L4-5. Dr. Pollydore provided work restrictions.
The Board notes that he was on one side of the conflict in medical opinion. A medical report
from a physician on one side of a conflict resolved by an impartial medical examiner is generally
insufficient to overcome the weight accorded the report of an impartial medical examiner or
create a new conflict.11 In this regard, Dr. Pollydore essentially reiterated his prior opinion on
causal relation.
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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability on September 22, 2010 causally related to his August 19, 2004 employment injury.

9

See Manuel Gill, 52 ECAB 282 (2001).

10

See J.M., supra note 8; Katheryn E. Demarsh, 56 ECAB 677 (2005).

11

Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

5

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 10, 2014
Washington, DC

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

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

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

6