United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0603
Issued: January 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 18, 2019 appellant, through counsel, filed a timely appeal from a July 26, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 26, 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.

ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include cervical spine derangement and other
conditions causally related to the accepted April 4, 2016 employment injury; (2) whether appellant
has met her burden of proof to establish total disability for the periods September 27, 2016 through
January 6, 2017, January 9 through March 17, 2017, and March 30 through 31, 2017 causally
related to her accepted April 4, 2016 employment injury; (3) whether OWCP has met its burden
of proof to terminate appellant’s wage-loss compensation and medical benefits, effective April 21,
2017, as she no longer had disability or residuals due to the accepted April 4, 2016 employment
injury; and (4) whether appellant has met her burden of proof to establish continuing employmentrelated residuals or disability after April 21, 2017 causally related to the accepted April 4, 2016
employment injury.
FACTUAL HISTORY
On April 5, 2016 appellant, then a 45-year-old correspondence examination technician,
filed a traumatic injury claim (Form CA-1) alleging that on April 4, 2016 she sustained facial
injuries when she walked face first into a glass portal when leaving work for the day while in the
performance of duty. She sought treatment at the emergency room. Appellant did not return to
work after April 5, 2016 and received continuation of pay benefits.
In an April 6, 2016 note, Dr. John Celentano, a Board-certified family practitioner,
diagnosed concussion, headache, and facial trauma. He opined that she was unable to work until
April 15, 2016.
In an April 12, 2016 note, Dr. Jorge A. Reiley, a Board-certified neurologist, diagnosed
headaches and neck pain. He opined that she was totally disabled until April 22, 2016.
In a development letter dated April 18, 2016, OWCP advised appellant of the deficiencies
in her claim and provided her the opportunity to submit additional evidence, including a wellrationalized report from her physician explaining how the employment incident caused or
aggravated a medical condition. OWCP afforded her 30 days to respond.
On April 6, 2016 the employing establishment provided appellant with an authorization for
examination and/or treatment (Form CA-16) for injuries to her face, nose, and forehead as well as
a concussion. In Part B -- attending physician’s report, on April 13, 2016 Dr. Celentano noted the
history of the April 4, 2016 employment injury and diagnosed facial trauma and headache. He
checked a box marked “yes,” in response to the question of whether appellant’s conditions had
been caused or aggravated by the employment activity and he noted that she was totally disabled
from April 5 to 15, 2016.
On May 2, 2016 OWCP received an April 5, 2016 hospital report which noted the history
of injury and listed a diagnosis of concussion without loss of consciousness. The accompanying
April 5, 2016 x-ray report found no nasal bone fractures.
OWCP subsequently received April 12, 22, and 29, 2016 reports from Dr. Reiley, who
noted the history of injury and diagnosed: closed head and facial trauma with residual posttraumatic headaches, dizziness, short-term memory and concentration impairments;
2

postconcussion syndrome; cervicobrachial pain syndrome; and cervicalgia. Dr. Reiley opined that
appellant was temporarily disabled and recommended additional testing. In an attending
physician’s report (Form CA-20) and a work capacity evaluation (Form OWCP-5) dated April 22,
2016, he opined that appellant remained totally disabled due to severe headaches and neck pain.
On May 23, 2016 OWCP accepted the claim for contusion of face, concussion without loss
of consciousness, and postconcussion syndrome.
By decision dated May 24, 2016, OWCP denied the diagnosed cervical spine derangement
condition as the medical evidence failed to provide rationalized medical evidence which explained
how the accepted April 4, 2016 employment injury had caused or aggravated her neck symptoms.
On June 28, 2016 appellant requested reconsideration.
OWCP received appellant’s June 2, 2016 statement, physical therapy notes, several reports
signed by a certified nurse practitioner, return to work notes and work restrictions, and several
diagnostic reports. An April 5, 2016 x-ray of nasal bones revealed no fractures; a May 6, 2016
head computerized tomography (CT) revealed no intracranial hemorrhage or acute territorial-type
infarct; a May 6, 2016 cervical spine CT found no acute cervical spine fracture; a June 28, 2016
magnetic resonance imaging (MRI) scan of the brain was unremarkable; a June 29, 2016 cervical
spine MRI scan revealed right C5-6 foraminal stenosis; a July 7, 2016 upper extremity
electromyogram (EMG) revealed mild bilateral upper tunnel syndrome; and an August 22, 2016
video nystagmography (VNG) revealed nonacute left peripheral vestibular dysfunction with an
associated mild head left position sensitivity.
In May 6, 2016 hospital discharge instructions, Dr. Lien Lam, a Board-certified emergency
medicine practitioner, diagnosed cervical disc disorder, unspecified with radiculopathy. He
indicated in a May 6, 2016 excuse slip that appellant could return to work on May 27, 2016.
In a June 1, 2016 note, Dr. Celentano opined that appellant was disabled until July 1, 2016.
Medical reports from Dr. Hos C. Luftus, a Board-certified neurologist, dated June 6
and 29, and July 20 and 21, August 31, September 7, and October 7 and 11, 2016 were received
along with work restrictions dated July 20, 2016. Dr. Luftus noted a history of appellant’s injury
and recorded his clinical findings. He indicated that appellant suffered a head injury at work
followed by headaches, neck pain and numbness, and tingling in the hands possibly related to a
radiculopathy caused by the injury. Dr. Luftus diagnosed carpal tunnel syndrome, unspecified
upper limb; other spondylosis, cervical region; and post-traumatic headache, dizziness, and
giddiness and opined that she was unable to work. In his September 7, 2016 report, he reviewed
the August 22, 2016 VNG. Dr. Luftus noted, “vestibulopathy after head injury, with relationship
between VNG findings and head injury unestablished, as is the correlation between VNG findings
and clinical symptoms. While symptoms of dizziness started after a head injury, patient was
referred for a number of blood tests to investigate for potential systemic etiologies for
vestibulopathy.”
In a September 8, 2016 report, Dr. Chandra Sharma, a Board-certified neurologist serving
as an OWCP second opinion physician, reviewed the medical record and a statement of accepted
facts (SOAF), noted appellant’s complaints, and presented normal neurological examination
findings. She diagnosed cervical and lumbar sprain/strain, post trauma headaches, and post trauma
vertigo. Dr. Sharma indicated that there were no objective findings of neurological injury to any
3

part of appellant’s nervous system and opined that her neurological problems had fully resolved.
She also indicated that the subjective symptoms reported by appellant failed to correspond and
were not supported by objective findings. Dr. Sharma explained that appellant’s decreased range
of motion findings on examination were “subjective due to perception of pain and have no
relevance to neurological issues,” noting that appellant’s range of motion was normal during
spontaneous activities. She concluded that appellant was at maximum medical improvement
(MMI). Dr. Sharma opined that appellant could return to her date-of-injury position without
restrictions, that there was no need for further neurological treatment or diagnostic testing as no
neurological injuries were sustained due to the employment injury, and that appellant had no
preexisting or unrelated neurological injuries.
In an October 7, 2016 worksheet, Dr. Bhupinder S. Anand, a Board-certified neurologist,
noted that he provided a nerve block injection and opined that appellant was temporarily totally
disabled.
By decision dated December 2, 2016, OWCP denied modification of its May 24, 2016
decision finding that the evidence submitted was of insufficient probative value to explain how the
accepted April 4, 2016 employment injury had caused or aggravated the claimed additional
diagnosed conditions.
On January 25, 2017 appellant requested reconsideration.
In an August 31, 2016 report, Dr. Philippe Vaillancourt, a Board-certified neurologist,
diagnosed cervicocranial syndrome, pain of ligaments of the cervical region, and post-traumatic
headache all of which he opined were the result of a cervical whiplash injury of April 4, 2016 and
for which she was totally disabled. In November 9 and December 12 and 28, 2016 reports,
Dr. Vaillancourt diagnosed cervicocranial syndrome, spondylosis without myelopathy of the
cervical region, cervicobrachial syndrome, sprain of ligaments of the cervical spine, and
spondylosis without myelopathy of the cervical region. He opined that appellant’s April 4, 2016
employment injury was the proximate cause of her neck pain and cervicogenic headaches, and that
she was totally disabled. In a January 23, 2017 addendum to his December 28, 2016 report,
Dr. Vaillancourt opined that appellant’s neck pain and cervicogenic headaches were “causally
related to whiplash from her workers’ compensation injury.”4
OWCP also received claims for compensation (Form CA-7) from appellant alleging total
disability for the periods September 27 through December 23, 2016 and December 26, 2016
through January 6, 2017. In development letters dated December 2, 2016 and January 3 and 5,
2017, OWCP advised appellant of the necessary medical evidence to support disability during the
periods claimed. It afforded appellant 30 days to respond.
By decision dated March 9, 2017, OWCP denied modification of its December 2, 2016
decision finding that the evidence submitted was insufficient to explain how the April 4, 2016
employment injury had caused or contributed to the claimed diagnosed medical conditions.
On March 16, 2017 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits, finding that Dr. Sharma’s September 8, 2016 report represented the weight of
4

Dr. Vaillancourt also signed physical therapy notes dated January 4 through February 13, 2017, which indicated
that appellant was being treated for cervicalgia and postconcussion syndrome.

4

the medical evidence that she no longer had disability or residuals due to her accepted conditions.
It afforded appellant 30 days to submit additional evidence and argument.
Appellant submitted a claim for compensation (Form CA-7) alleging total disability for the
period January 9 to March 17, 2017.
OWCP received an April 12, 2017 letter from counsel, physical therapy notes dated from
September 2016 through March 29, 2017, and an August 31, 2016 report signed by a certified
nurse practitioner. Duplicative evidence, previously of record, was also received.
Appellant file an additional claim for compensation (Form CA-7) alleging total disability
for the period March 20 through 31, 2017. In a letter dated April 4, 2017, OWCP advised appellant
of the medical evidence needed to support her claim for disability compensation. OWCP afforded
appellant 30 days to provide such evidence.
By decision dated April 4, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period September 27, 2016 through January 6, 2017 finding that the medical
evidence of record was insufficient to establish disability during the claimed period.
By decision dated April 21, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that same date, finding that she no longer had disability or residuals
due to her accepted conditions. It found that the weight of the medical evidence was to be accorded
to Dr. Sharma’s September 8, 2016 report.
By decision dated May 5, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period January 9 through March 17, 2017 finding that the medical evidence
of record was insufficient to establish disability during the claimed period.
On May 16, 2017 appellant, through counsel, requested reconsideration of OWCP’s
March 9, 2017 decision which had denied acceptance of appellant’s other claimed conditions,
OWCP’s April 21, 2017 termination decision, and OWCP’s April 4 and May 5, 2017 denials of
wage-loss compensation. Included with the request was new evidence which included referrals
for physical therapy, physical therapy reports signed by a physical therapist, and progress reports
signed by a certified nurse practitioner.
By decision dated May 31, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period March 20 through 31, 2017 finding that the medical evidence of
record was insufficient to establish disability due to the accepted conditions for the claimed period.
In an April 28, 2017 report, Dr. Vaillancourt noted the history of injury, appellant’s
treatment for chronic posterior headaches, and provided examination findings. He diagnosed
cervicocranial syndrome. Dr. Vaillancourt opined that appellant’s neck pain and cervicogenic
headaches were causally related to whiplash from her employment injury. He recommended
additional medical treatment.
In a March 1, 2018 brief, counsel requested reconsideration of OWCP’s May 31, 2017
denial of wage-loss compensation for the period March 20 through 31, 2017.

5

In August 8, 2016 report, Dr. Loftus noted the medical history and diagnostic testing,
provided examination findings, and set forth a treatment plan. He diagnosed carpal tunnel
syndrome, unspecified upper limb and dizziness/vertigo/imbalance.
By decision dated July 26, 2018, OWCP denied modification of its decisions dated
March 9, April 4 and 21, and May 5 and 31, 2017.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
To establish causal relationship between a condition and the employment event or incident,
the employee must submit rationalized medical opinion evidence based on a complete factual and
medical background, supporting such a causal relationship.6 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include the condition of cervical spine derangement
and other conditions causally related to the accepted April 4, 2016 employment injury.
OWCP accepted appellant’s claim for concussion without loss of consciousness, contusion
of face, and postconcussion syndrome. It denied expansion of the acceptance of her claim to
include additional diagnosed conditions as her physicians had not provided sound medical
rationale explaining how the April 4, 2016 employment injury caused or contributed to the
additional diagnosed conditions.
Dr. Celentano diagnosed concussion, headache, and facial trauma following the April 4,
2016 incident. In his April 13, 2016 attending physician’s report, Part B of Form CA-16, he
checked a box marked “yes” indicating that all of the conditions he had diagnosed were caused or
aggravated by the accepted employment incident. The Board has held that a report that addresses
causal relationship with a checkmark, without medical rationale explaining how the employment

5
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018);
Jaja K. Asaramo, 55 ECAB 200 (2004).
6

See T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).

6

incident caused the alleged injury, is of diminished probative value and insufficient to establish
causal relationship.8
Dr. Vaillancourt provided multiple diagnoses in his reports which he opined were the result
of a “cervical whiplash injury of April 4, 2016” or “whiplash from her workers’ compensation
injury” or that appellant’s April 4, 2016 employment injury was the “proximate cause of her neck
pain and cervicogenic headaches.” While he provided affirmative opinions which supported
causal relationship, he did not offer a rationalized medical explanation in any of his reports to
support his opinion. Medical evidence that provides a conclusion, but does not offer a rationalized
medical explanation regarding the cause of an employee’s condition is of limited probative value
on the issue of causal relationship.9
The remaining medical reports, including those of Dr. Reiley and Dr. Lam, are of no
probative value as to whether acceptance of the claim should be expanded as they do not
specifically address the cause of the additional 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 on the issue of causal relationship.10 Thus, these reports are insufficient to
meet appellant’s burden of proof.
The Board notes that while Dr. Luftus diagnosed several conditions, in reports dated June 6
through October 11, 2016, he specifically discounted causal relationship between appellant’s
vestibulopathy and dizziness after her head injury in his September 7, 2016 report. Furthermore
Dr. Sharma, in her September 8, 2016 report, indicated that there were no objective findings of
neurological injury to any part of appellant’s nervous system.
Appellant also submitted multiple diagnostic testing reports. The Board has held that
diagnostic studies are of limited probative value as they do not address whether the employment
incident caused any of the diagnosed conditions.11
Appellant also submitted reports signed solely by a certified nurse practitioner and physical
therapists. These reports do not constitute competent medical evidence because neither a nurse
practitioner nor a physical therapist is considered a “physician” as defined under FECA.12

8
See R.A., Docket No. 17-1472 (issued December 6, 2017); Sedi L. Graham, 57 ECAB 494 (2006); Deborah L.
Beatty, 54 ECAB 340 (2003).
9

C.V., Docket No. 18-1106 (issued March 20, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11
J.P., Docket No. 19-0216 (issued December 13, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017)
(diagnostic tests, lack probative value as they fail to provide an opinion on the causal relationship).
12

R.L., Docket No. 19-0440 (issued July 8, 2019) (neither a nurse practitioner nor a physical therapist is a physician
under FECA); see David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a (January 2013). Under FECA the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by the applicable state law. 5 U.S.C. § 8101(2).

7

Consequently, the medical findings and/or opinions of a nurse practitioner or physical therapist
will not suffice for purposes of establishing entitlement to compensation benefits.13
Appellant has the burden of proof to submit rationalized medical evidence establishing that
the acceptance of her claim should be expanded to include additional conditions.14 She has not
submitted such evidence and thus the Board finds that she has not met her burden of proof to
establish her claim.
On appeal counsel contends that appellant sustained additional disabling injuries and
conditions causally related to the accepted April 4, 2016 employment injury. As explained above,
the evidence of record does not contain sufficient medical rationale to expand appellant’s claim to
include additional diagnosed conditions.15
LEGAL PRECEDENT -- ISSUE 2
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.16 Whether a
particular injury causes an employee to become disabled from work, and the duration of that
disability, are medical issues that must be proven by a preponderance of probative and reliable
medical opinion evidence.17
Under FECA, the term disability means an incapacity because of an employment injury, to
earn the wages the employee was receiving at the time of the injury.18 When, however, the medical
evidence establishes that the residuals or sequelae of an employment injury are such that, from a
medical standpoint, prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wages.19
To establish causal relationship between the disability claimed and the employment injury,
an employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such causal relationship.20 The opinion of the physician must be one of
13

Id.

14

See M.M., Docket No. 19-0951 (issued October 24, 2019) (where an employee claims that a condition not
accepted or approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish
that the condition is causally related to the employment injury); R.J., Docket No. 17-1365 (issued May 8, 2019).
15

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).
16

See M.B., Docket No. 18-1455 (issued March 11, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005).
17

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

18

Id. at § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

19

See G.T., Docket No. 18-1369 (issued March 13, 2019); Merle J. Marceau, 53 ECAB 197 (2001).

20

See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

8

reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the employee.21
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish total disability
for the periods September 27, 2016 through January 6, 2017, January 9 through March 17, 2017,
and March 30 through 31, 2017 causally related to her accepted April 4, 2016 employment injury.
For the claimed time period of September 27, 2016 to January 6, 2017, both Dr. Luftus and
Dr. Vaillancourt opined that appellant was totally disabled due to nonaccepted conditions, which
included carpal tunnel syndrome of an unspecified upper limb, spondylosis of the cervical region,
cervicocranial syndrome, cervicobrachial syndrome, and sprain of ligaments of the cervical spine.
However, neither physician explained why appellant was disabled during this time period due to
objective medical findings related to her accepted conditions. To establish a period of disability
the medical evidence must provide a discussion of how objective medical findings attributable to
the accepted conditions support a finding that appellant could not perform her employment
duties.22 These reports are, therefore, insufficient to establish appellant’s disability claims.
While Dr. Anand opined in an October 7, 2016 worksheet that appellant was totally
disabled, he did not address specific dates of disability or otherwise provide medical reasoning
explaining why her disability was due to the employment injury.23 The reports from
Drs. Celentano and Reiley predated the claimed period of disability and thus are not relevant to
the specific period of disability claimed. The Board will not require OWCP to pay compensation
for disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow employees to self-certify
their disability and entitlement to compensation.24 Thus, these reports are also insufficient to
establish appellant’s disability claims.
For the claimed time periods of January 9 through March 17, 2017 and March 30 through
31, 2017, the Board notes that the record is devoid of medical evidence which supports disability
due to the accepted conditions.
The Board therefore finds that the medical evidence of record does not support appellant’s
claim of total disability for the periods September 27, 2016 through January 6, 2017, January 9
through March 17, 2017, and March 30 through 31, 2017 causally related to her accepted April 4,
2016 employment injury.

21

C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
22

See W.E., Docket No. 17-0451 (issued November 20, 2017).

23

See E.B., Docket No. 17-0875 (issued December 13, 2018); C.L., Docket No. 16-0004 (issued June 14, 2016).

24

E.B., id.

9

LEGAL PRECEDENT -- ISSUE 3
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits. It may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment injury.25
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.26
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.27 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.28
ANALYSIS -- ISSUE 3
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 21, 2017, as she no longer had disability or
residuals due to her accepted April 4, 2016 employment injury.
In her comprehensive September 8, 2016 report, Dr. Sharma noted her review of the SOAF
and medical record. She described the April 4, 2016 employment injury, appellant’s complaints,
and her physical examination findings including subjective symptoms which did not correspond
to nor were supported by objective findings. While appellant had decreased range of motion
findings on examination, Dr. Sharma indicated that they were “subjective due to appellant’s
perception of pain and had no relevance to neurological issues,” noting that her range of motion
was normal during spontaneous activities. Dr. Sharma opined that she had no ongoing residuals
or disability of the accepted conditions. She explained that appellant had not sustained
neurological injuries due to the employment injury and that she had no preexisting or unrelated
neurological injuries. Thus, Dr. Sharma concluded that appellant’s neurological problems had
resolved and she was at MMI. She further opined that appellant could return to her date-of-injury
position without restrictions and that there was no need for further neurological treatment or
diagnostic testing due to the April 4, 2016 employment injury.
The Board finds that OWCP properly accorded the weight of medical opinion to
Dr. Sharma who reported that appellant no longer had residuals or disability as a result of the
April 4, 2016 employment injury. Dr. Sharma based her opinion on a proper factual and medical
history and physical examination findings and provided medical rationale for her opinion that
appellant had no remaining residuals or necessary work limitations as a result of the employment
injury. Accordingly, OWCP properly relied on her second opinion report in terminating
appellant’s wage-loss compensation and medical benefits.29
25

See J.D., Docket No. 18-0101 (issued August 27, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

26

See J.D., id.

27

See S.M., Docket No. 18-0673 (issued January 25, 2019); Furman G. Peake, 41 ECAB 361, 364 (1990).

28

Id.; see also Calvin S. Mays, 39 ECAB 993 (1988).

29

R.B., Docket No. 19-0204 (issued September 6, 2019).

10

Subsequent to Dr. Sharma’s evaluation, appellant was evaluated and treated by
Dr. Vaillancourt and his certified nurse practitioner. As previously discussed, none of the reports
submitted or countersigned by Dr. Vaillancourt provided a well-reasoned explanation as to why
appellant continued to have residuals or disability for work due to the April 6, 2016 employment
injury.
In response to, or since the issuance of, OWCP’s March 16, 2017 proposed termination,
the record reflects that OWCP received additional treatment notes from Dr. Loftus dated June 6
through October 11, 2016. As previously noted, Dr. Loftus opined in his September 7, 2016 report
that there was no established relationship between appellant’s vestibulopathy and dizziness after
head injury. In his additional reports, Dr. Loftus failed to offer a well-reasoned explanation as to
why appellant continued to have residuals or disability for work due to the April 6, 2016
employment injury.
OWCP also received reports signed solely by a certified nurse practitioner. As previously
noted, reports by nurse practitioners are not considered medical evidence as they are not considered
physicians as defined under FECA.30
The Board finds Dr. Sharma’s opinion to be probative evidence which is both reliable and
sufficient to justify OWCP’s termination of wage-loss compensation and medical benefits for the
accepted conditions of contusion of face, concussion without loss of consciousness, and
postconcussion syndrome. The remaining medical evidence of record is insufficient to overcome
the weight accorded to Dr. Sharma’s second opinion or to create a conflict.31
LEGAL PRECEDENT -- ISSUE 4
As OWCP met its burden of proof to terminate appellant’s entitlement to wage-loss
compensation and medical benefits on April 21, 2017, the burden shifted to appellant to establish
that she had continuing disability causally related to the accepted conditions.32 Causal relationship
is a medical issue. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the claimant.33
ANALYSIS -- ISSUE 4
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related residuals or disability after April 21, 2017 causally related to the accepted
April 4, 2016 employment injury.

30

G.U., Docket No. 19-1002 (issued November 25, 2019); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Supra note 12 at Chapter 2.805.3a(1) (January 2013).
31

See J.D., Docket No. 18-0101 (issued August 27, 2018); K.E., Docket No. 17-1216 (issued February 22, 2018).

32

Id.; Daniel F. O Donnell, Jr., 54 ECAB 456 (2003).

33

See M.M., supra note 14; Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

11

Dr. Vaillancourt, in his April 28, 2017 report, diagnosed cervicocranial syndrome, a
condition OWCP had not accepted as employment related, which he opined was causally related
to whiplash from her employment injury. However, he failed to provide rationale explaining why
appellant had continued residuals or need for medical treatment as a result of the accepted
conditions related to the employment injury.34 A mere conclusion regarding causation without
supporting medical rationale is insufficient to meet appellant’s burden of proof.35 Further,
Dr. Vaillancourt provided no rationale explaining how, physiologically, the movements involved
in the employment injury had caused or contributed to the cervicocranial syndrome. Thus, the
Board finds that his report is insufficient to meet appellant’s burden of proof.36
OWCP also received Dr. Loftus’s August 8, 2016 report, in which he diagnosed carpal
tunnel syndrome of unspecified upper limb, and dizziness/vertigo/imbalance. However,
Dr. Loftus failed to provide an opinion as to whether the accepted employment incident caused or
aggravated her conditions.37 Thus, his opinion is insufficient to establish causal relationship for
the purpose of establishing continuing disability.
As there is no medical evidence of record sufficient to establish that appellant continued to
have residuals or disability after April 21, 2017, due to the accepted April 6, 2016 employment
injury, the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include cervical spine derangement and other
conditions causally related to the accepted April 4, 2016 employment injury. The Board also finds
that she has not met her burden of proof to establish total disability for the periods September 27,
2016 through January 6, 2017, January 9 through March 17, 2017, and March 30 through 31, 2017
causally related to her accepted April 4, 2016 employment injury. Further, the Board finds that
OWCP has met its burden of proof to terminate appellant’s wage-loss compensation and medical
benefits effective, April 21, 2017, as she no longer had disability or residuals due to her accepted
April 4, 2016 employment injury. The Board also finds that appellant has not met her burden of
proof to establish continuing employment-related residuals or disability after April 21, 2017
causally related to the accepted April 4, 2016 employment injury.

34

See T.W., Docket No. 18-1573 (issued July 19, 2019).

35

See L.G., Docket No. 19-0142 (issued August 8, 2019).

36

M.E., Docket No. 18-0940 (issued June 11, 2019).

37

Medical evidence that does not offer an opinion regarding the cause of an employee’s condition or disability is
of no probative value on the issue of causal relationship. See L.B. and D.K., supra note 10.

12

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 28, 2020
Washington, DC

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

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

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rivers Edge, NJ, Employer
__________________________________________

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Appearances:
John Hennessy, for the appellant
Office of Solicitor, for the Director

Docket No. 15-290
Issued: May 4, 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 November 20, 2014 appellant, through his representative, filed a timely appeal from
an August 4, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On June 24, 2014 appellant, then a 36-year-old city mail carrier, filed a traumatic injury
claim alleging that on June 24, 2014 he sustained injuries to his back and right hip as a result of a
motor vehicle accident. He alleged that he was struck by another driver who ran a red light.
1

5 U.S.C. § 8101 et seq.

Appellant stopped work on that day and returned on June 27, 2014. On the claim form, he listed
his street address.
Appellant submitted June 24, 2014 records and a disability status report from an
emergency department which advised that he was able to return to work on June 27, 2014.
By letter dated July 1, 2014, OWCP notified appellant that evidence was insufficient to
establish his claim and advised him of the type of evidence needed. The letter was sent to an
address with a different street designation than that provided on the notice of traumatic injury.
By decision dated August 4, 2014, OWCP denied appellant’s claim because medical
evidence did not establish a medical condition diagnosed in connection with the work event. The
decision was also sent to an incorrect address.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.2 While a claimant has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence.3
In administering FECA, OWCP must attempt to obtain any evidence which is necessary
for the adjudication of the case which is not received when the notice or claim is submitted. To
adjudicate claims promptly and manage them effectively, it should choose the most efficient,
direct, and proactive approach, given the individual circumstances of a claim and the nature of
injury. OWCP must provide information to the claimant about the procedures involved in
establishing a claim, including instructions for developing the required evidence.4
If the claimant submits factual evidence, medical evidence, or both, but OWCP
determines that this evidence is not sufficient to meet the burden of proof, it will inform the
claimant of the additional evidence needed. The claimant will be allowed at least 30 days to
submit the evidence required.5
It is presumed, in the absence of evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual.6 This presumption
arises when it appears from the record that the notice was properly addressed and duly mailed.7
2

Amelia S. Jefferson, 57 ECAB 183 (2005).

3

See Peter C. Belkind, 56 ECAB 580 (2005).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.4.c(1)
(June 2011).
5

20 C.F.R. § 10.121.

6

George F. Gidicsin, 36 ECAB 175 (1984) (when OWCP sends a letter of notice to a claimant, it must be
presumed, absent any other evidence, that the claimant received the notice).
7

Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

The appearance of a properly addressed copy in the case record, together with the mailing
custom or practice of the sender, will raise a presumption that the original was received by the
addressee. This is known as the mailbox rule.8
ANALYSIS
OWCP did not mail its July 1, 2014 development letter and August 4, 2014 decision to
the correct address as it appeared on appellant’s claim form. It did not use the correct street
designation. On appellant’s claim form the street designation is listed as “street.” However,
OWCP mailed correspondence using “avenue” as the street designation.
OWCP did not become aware of the error or change the address in its records before
issuing its August 4, 2014 decision. Because OWCP did not mail its development letter to
appellant’s current home address, the presumption of receipt under the mailbox rule did not arise.
It effectively denied his claim without proper notice and 30 days to respond.9
Accordingly, the Board finds that this case is not in posture for decision. The Board will
set aside OWCP’s August 4, 2014 decision denying appellant’s claim. The case is remanded for
issuance of a development letter to his proper home address and 30 days to submit the required
evidence.10 After such further development as may be necessary, OWCP shall issue a de novo
decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development is
warranted.

8

Larry L. Hill, 42 ECAB 596 (1991) (the presumption of receipt under the mailbox rule must apply equally to
claimants and OWCP alike).
9

L.R., Docket No. 14-361 (issued June 5, 2014) (remanding the case to OWCP when the development letter was
not sent to the address shown on appellant’s claim form).
10

See id.

3

ORDER
IT IS HEREBY ORDERED THAT the August 5, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision.
Issued: May 4, 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

4


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

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Docket No. 14-492
Issued: December 10, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On January 2, 2014 appellant filed a timely appeal from a July 15, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his schedule award claim. He
also appealed an October 10, 2013 nonmerit decision which denied his request for
reconsideration.
OWCP accepted that on February 11, 2012 appellant, then a 64-year-old city carrier,
sustained a rotator cuff tear of the right shoulder while in the performance of duty. It authorized
right shoulder arthroscopic surgery which was performed on April 4, 2012 by Dr. David K.
Kuechle, an attending Board-certified orthopedic surgeon.
On May 21, 2013 appellant filed a claim for a schedule award.
In a June 13, 2013 medical report, received by OWCP on July 12, 2013, Dr. Kuechle
advised that appellant had reached maximum medical improvement. He determined that
appellant had 18 percent impairment of the right upper extremity based on the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).

By decision dated July 15, 2013, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate a measurable impairment of a scheduled member due to his
accepted February 11, 2012 work injury.
On July 17, 2013 OWCP informed appellant that Dr. Kuechle’s June 13, 2013 report was
visible in the case file the day after it issued the July 15, 2013 decision. It advised him to file a
request for reconsideration of its decision.
On July 17, 2013 appellant requested reconsideration and resubmitted Dr. Kuechle’s
June 13, 2013 report.
In an October 10, 2013 decision, OWCP denied appellant’s request for reconsideration
without a merit review. It found that Dr. Kuechle’s June 13, 2013 impairment rating was
irrelevant or immaterial as it was based on the fifth edition rather than the sixth edition of the
A.M.A., Guides.
As the Board’s jurisdiction of a case is limited to reviewing that evidence that was before
OWCP at the time of its final decision,1 it is necessary that OWCP review all the evidence
submitted by a claimant and received by OWCP prior to the issuance of its final decision.2
While OWCP advised appellant that Dr. Kuechle’s June 13, 2013 report was only visible after it
issued the July 15, 2013 decision, the imaged case record reveals that the medical report was
received on July 12, 2013, prior to the issuance of its decision.
The Board finds that this case is not in posture for decision as OWCP did not review all
the relevant evidence before issuing its decision. The case is remanded for consideration of the
submitted evidence, to be followed by any necessary further development as deemed necessary
and issuance of an appropriate final decision on appellant’s schedule award claim.

1

20 C.F.R. § 501.2(c).

2

William A. Couch, 41 ECAB 548 (1990) (OWCP did not consider new evidence received four days prior to the
date of its decision; the Board remanded the case for consideration); see Linda Johnson, 45 ECAB 439 (1994) (the
Board remanded, directing OWCP to consider evidence received the same date it issued its final decision).

2

IT IS HEREBY ORDERED THAT the July 15, 2013 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order of the Board.3
Issued: December 10, 2014
Washington, DC

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

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

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

3

In light of the Board’s disposition in this case, the October 10, 2013 decision denying appellant’s request for
reconsideration is moot.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Olathe, KS, Employer
__________________________________________

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

Docket No. 14-911
Issued: September 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2014 appellant filed a timely appeal from a September 16, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her emotional
condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated June 25, 2013, the
Board set aside a January 25, 2012 nonmerit decision denying appellant’s request for
1

5 U.S.C. § 8101 et seq.

reconsideration under section 8128.2 The Board noted that an OWCP hearing representative, in a
February 7, 2011 decision, determined that appellant had established as a compensable work
factor that she experienced stress on April 29, 2010 while performing her assigned duties as a
training instructor. The hearing representative found, however, that the medical evidence was
insufficient to meet appellant’s burden of proof as it attributed her stress-related condition to her
belief that a coworker accused her of an operational error on April 29, 2010 in retaliation for her
accusing him of harassment. Appellant submitted statements on reconsideration from coworkers
supporting her contention that the coworker retaliated against her when he accused her of an
operational error on April 29, 2010. The Board found that this evidence was sufficient to
warrant reopening her case under section 8128 and remanded the case for OWCP to conduct a
merit review. The facts and circumstances as set forth in the prior decision are hereby
incorporated by reference.
On May 6, 2010 Dr. Daniel K. Berry, an osteopath with the employing establishment,
opined that appellant was unable to perform her safety duties due to medical incapacity.
In a report dated May 13, 2010, Dr. Michael I. Gruenebaum, a Board-certified internist,
noted that appellant had experienced stress at work for months. He diagnosed sinus tachycardia
and acute anxiety disorder. On May 28, 2010 Dr. Gruenebaum stated, “A revised diagnosis for
[appellant] is post-traumatic stress disorder. We have arrived at this diagnosis due to the direct
association between the reported workplace intimidation and [her] symptoms of anxiety and
gastrointestinal symptoms.”3
On June 24, 2010 Dr. Gruenebaum diagnosed “post-traumatic stress disorder due to a
direct association between the reported workplace intimidation and [her] symptoms of anxiety
and gastrointestinal symptoms.”
In a report dated October 21, 2010, Dr. Gruenebaum noted that appellant related that she
had experienced harassment and intimidation by four men at work. She filed a complaint against
the men on April 27, 2010. Dr. Gruenebaum stated:
“[Appellant] explained that two days following her formal report to management,
the workplace intimidation escalated to include a specific incident, manipulated
by one of the accused men, designed to make it appear as though she had
performed her job incorrectly. This man reported to management that she had
deviated [into] his work sector with an aircraft. Immediately following the
individual reporting the incident, [appellant] suffered an acute anxiety attack, her
2

Docket No. 12-1617 (issued June 25, 2013). On May 5, 2010 appellant, then a 46-year-old air traffic control
specialist, filed a traumatic injury claim alleging that on April 29, 2010 she experienced post-traumatic stress
disorder due to harassment in the performance of duty. She maintained that on April 29, 2010 a coworker falsely
accused her of an operational error in retaliation for her accusing him of harassment. OWCP adjudicated the claim
as an occupational disease claim.
3

In a progress report dated June 3, 2010, Dr. Gruenebaum diagnosed acute anxiety disorder, palpitations,
diarrhea, abdominal pain, sinus tachycardia and borderline hypertension. On June 10, 2010 he noted that appellant
wanted a note regarding her disability after “an alleged sexual harassment at work” and to contact him with
questions.

2

emotional distress was severe and evidence and she was dismissed by
management to leave the facility on medical leave. During her appointment on
May 4th, [she] repeatedly stressed her fear that her accusers had crossed the line
from intimidation to a dangerous activity, that of using actual aircraft with live
persons on board to prove a point to her. She noted that her fear is directly related
to the safety of flying passengers.”
Dr. Gruenebaum described appellant’s work duties and indicated that communication
between the team members was essential to the position. He stated, “When [she] took action to
separate aircraft and a member of her assigned team took action against her, she suffered her first
medically defined anxiety attack.” Dr. Gruenebaum diagnosed post-traumatic stress disorder and
noted that he had treated appellant for years. He related, “Given her lack of previous symptoms,
it is our reasoned medical opinion that the acute anxiety that she suffered as a result of the
incident on April 29, 2010 was the mechanism that produced this disorder.”
In a report dated December 20, 2010, Dr. Debra F. Johnson, a clinical psychologist,
related that appellant’s December 15, 2010 statement about the events on April 29, 2010
correlated with her description of the incident in her initial evaluation in January 2010. She
stated:
“As described in [appellant’s] statement, the onset of the symptoms occurred
immediately following the incident in which a coworker allowed aircraft to aim at
each other in order to give the impression that she had made a performance error.
Two days prior to the incident, an investigation of this man and three other
coworkers had resulted from a formal complaint filed by [appellant]. The
complaint addressed increasingly provocative workplace harassment by the four
men.”
“I believe the life-threatening dangerousness of the behavior in the incident on
April 29, 2010 pushed [appellant] from irritation and indignation into a
psychiatric diagnosis.”
Dr. Johnson diagnosed post-traumatic stress disorder. She noted that appellant had greatly
improved and returned to work in September 2010. Dr. Johnson opined that she could resume
her regular employment without restrictions.
By letter dated July 17, 2013, OWCP requested that the employing establishment review
the statements by Neal Thigpen and Scott Barnes.4 It noted that their statements supported that
Brad Schwartz, a manager, found that Greg Stephen’s action toward appellant on April 29, 2010
appeared retaliatory in nature. OWCP asked that Mr. Schwartz or another individual with the
employing establishment address the accuracy of the statements.
In a decision dated September 16, 2013, OWCP denied modification of its February 7,
2011 decision. It noted that the employing establishment had not responded to its request to
comment on whether Mr. Schwartz told Mr. Thigpen and Mr. Barnes that Mr. Stephens acted in
4

See supra note 2.

3

a retaliatory way on April 29, 2010. OWCP accepted appellant’s allegation as factual and found
that she established as a compensable work factor that Mr. Stephens harassed and retaliated
against her by publically alleging that she was involved in an operational error. It determined,
however, that the medical evidence was insufficient to establish a causal relationship between the
April 29, 2010 work factor and a diagnosed emotional condition.
On appeal appellant relates that she experienced a panic attack immediately after being
informed that she had committed an operational error. She noted that the finding that there was
no operational error does not mean that the incident did not occur but instead that she did not
commit an error. Appellant asserts that Mr. Stephens did not properly feed aircraft into her
sector but rather allowed aircraft to aim at each other and then accused her of an operational
error. She noted that Mr. Schwartz confirmed her version of the events at the December 15,
2010 hearing.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. 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. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.6
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.7 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. 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.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
5

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

6

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

7

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

8

Id.

9

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

4

physician must be based on a complete factual and medical background of the claimant,10 must
be one of reasonable medical certainty11 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.13 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.14
OWCP procedure manual provides as follows:
“In psychological/emotional stress claims, the SOAF [statement of accepted facts]
is particularly important since the physician’s opinion on causal relationship must
be based on accurate identification of the implicated work factors. The SOAF is
required in these claims even if the CE [claims examiner] decides not to send the
claimant for a second opinion medical examination at the time of adjudication.
The complex nature of the issues inherent in this type of claim necessitates that
the facts be established and documented in a SOAF.”15
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP found that appellant established as compensable work factors that she
experienced stress on April 29, 2010 while performing her work duties under Cutler. Further,
Mr. Stephens harassed and retaliated against her on April 29, 2010 when he publically asserted
that she had committed an operational error. It noted that the employing establishment had not
responded to its request to review statements by Mr. Thigpen and Mr. Barnes supporting that
Mr. Schwartz, a manager, found that Mr. Stephens’ actions on April 29, 2010 seemed retaliatory.
OWCP denied appellant’s claim after finding that the medical evidence was insufficient to show
a causal relationship between the compensable work factor and a diagnosed emotional condition.
It found that Dr. Johnson attributed her condition to a coworker aiming aircraft at each other to
make it look like she had made an error, which it noted was not established by the record.
OWCP further determined that Dr. Gruenebaum also attributed appellant’s condition to her
belief that her coworkers were endangering passengers.

10

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

11

John W. Montoya, supra note 9.

12

Judy C. Rogers, 54 ECAB 693 (2003).

13

Jimmy A. Hammons, 51 ECAB 219 (1999).

14

20 C.F.R. § 10.121.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2(d)(3)
(September 2009).

5

The Board notes that OWCP failed to prepare a statement of accepted facts describing the
accepted compensable work factors. Its procedures require a statement of accepted facts be
prepared in emotional condition claims even if it does not refer a claimant for a second opinion
examination as a physician’s opinion on causal relationship must accurately identify the
implicated work factors.16 Consequently, OWCP did not comply with its procedures and prepare
a statement of accepted facts prior to adjudicating the medical evidence.
In reports dated May 28 and June 24, 2010, Dr. Gruenebaum diagnosed post-traumatic
stress disorder which he attributed to intimidation at work.
On October 21, 2010
Dr. Gruenebaum noted that appellant had filed a formal complaint of harassment against four
men at work. Two days later, one of the men reported that one of her aircraft deviated into his
work sector. Appellant experienced an acute anxiety attack immediately after the accusation.
She told Dr. Gruenebaum that she was afraid for the safety of passengers because the men were
using aircraft to get to her. Dr. Gruenebaum diagnosed post-traumatic stress disorder and opined
that her acute anxiety attack resulted from the April 29, 2010 employment incident.
On December 20, 2010 Dr. Johnson indicated that appellant began experiencing
symptoms immediately after a coworker allowed aircraft to aim at each other to make it look like
she had committed an operational error. He attributed her post-traumatic stress disorder to the
dangerous actions taken by the coworker on April 29, 2010.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.17
The Board finds that the reports of Dr. Gruenebaum and Dr. Johnson provide support that
appellant sustained post-traumatic stress disorder due to the events of April 29, 2010 sufficient to
warrant further development of the medical evidence.18 OWCP has accepted as compensable
work factors that she experienced stress while performing her regular work duties on April 29,
2010 when she was accused of an operational error. Mr. Stephens also harassed and retaliated
against her when he alleged that she committed an operational error on that date. It found that
appellant had not established that Mr. Stephens’ actions were life threatening to the passengers
on an aircraft; however, his accusation that she had committed an operational error while she was
in the midst of performing her work duties and in the presence of other air traffic controllers
escalated the situation in a manner that involved the passengers on the aircraft being routed
through the affected airspace. Although Dr. Gruenebaum and Dr. Johnson did not provide
sufficient medical rationale explaining how the compensable work factors occurring on April 29,
2010 caused or aggravated an emotional condition, their reports are generally supportive of
appellant’s claim and raise an uncontroverted inference of causal relationship sufficient to
require further development by OWCP.19 On remand, OWCP should prepare a statement of
16

Id.

17

See Phillip L. Barnes, 55 ECAB 426 (2004).

18

Id.

19

See P.B., Docket No. 13-1092 (issued June 19, 2014); R.H., Docket No. 13-1193 (issued May 29, 2014).

6

accepted facts and refer appellant for a second opinion examination by an appropriate specialist.
Following such further development as deemed necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 16, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: September 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1883
Issued: December 27, 2017

Case Submitted on the Record

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

On September 23, 2016 appellant timely filed an appeal from an April 18, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Board docket the
appeal as No. 16-1883.
On a prior appeal the Board remanded the case to OWCP with respect to the pay rate
issue and the underlying overpayment of compensation that was based on a finding of an
incorrect pay rate.1 As the Board indicated, there were two injuries: April 23, 1993 (accepted
for cervical, lumbosacral, left thumb, and ring finger strains, as well as metacarpophalangeal
(MP) joint reconstruction surgery in 2004); and October 27, 1995 (accepted for contusions and
sprains of the left third and fourth fingers and left MP surgery on April 23, 1996). The two
claims have been administratively combined.
OWCP paid compensation from December 12, 1995 to January 4, 2010 based on a
weekly pay rate of $416.73, which purported to be the pay rate on October 27, 1995, the date of
the second injury, but it subsequently found this pay rate was incorrect as it represented full-time
1

Order Remanding Case, Docket No. 13-1547 (issued December 2, 2013); Docket No. 14-1305 (issued
January 13, 2015); Order Denying Petition for Reconsideration, Docket No. 14-1305 (issued July 6, 2015).

work, and appellant worked only part-time as of October 27, 1995. The correct pay rate was
held to be the pay rate on April 23, 1993, the date of the first injury of $376.19. Therefore, it
found that an overpayment of $11,630.61 had been created.
By decision dated January 13, 2015 the Board found that OWCP had not made sufficient
findings to support the October 27, 1995 pay rate. It ordered OWCP to make a finding as to the
proper pay rate on October 27, 1995 pursuant to 5 U.S.C. § 8114.2 If the pay rate was indeed
found to be less than $376.19, then OWCP was instructed to make a finding that $376.19 was the
correct weekly pay rate, and reissue the overpayment decision to protect appellant’s appeal
rights.3
On April 18, 2016 OWCP issued a decision regarding appellant’s pay rate. The April 18,
2016 OWCP decision does not make the directed findings as ordered by the Board in its
January 13, 2015 decision. After reviewing the history of the case, OWCP found that appellant
was working four hours per day on October 27, 1995 and the pay rate “would invariably be
lower” than the established rate for the April 23, 1993 date of injury.
The Board concludes that OWCP failed to make the necessary inquires and specific
findings as to appellant’s pay rate on October 27, 1995 as ordered in the January 13, 2015
decision and by prior orders. The Board specifically noted in its prior decision that “even though
appellant was working four hours a day, it was not clear what her pay rate would be under the
statute.” It further noted that while “it may be that the pay rate was less” on October 27, 1995,
“OWCP should still make a proper determination under 5 U.S.C. § 8114.” OWCP was directed
to “secure relevant evidence from the employing establishment to make proper findings”
including “whether appellant worked substantially the whole year prior in the position, and if not
whether the position would have afforded employment for substantially a whole year, or whether
8114(d)(3) should be applied to determine an amount that reasonably represents the earning
capacity as of October 27, 1995. Such findings require more than a determination that appellant
worked only 4 hours per day between October 10 and 27, 1995.
On remand OWCP should further develop the record as set forth above and thereafter:
(1) determine, in step by step detail, the pay rate for the October 27, 1995 date of injury under 5
U.S.C. § 8114 making appropriate citation to the evidence considered; and (2) if it is less than
$376.19, make a finding that $376.19 is the correct pay rate, and also (3) reissue the
overpayment and schedule award decisions to protect appellant’s appeal rights.

2

The Board also noted the need to make proper findings as to the October 27, 1995 pay rate in Docket No. 111952 (issued September 10, 2012) and by Order Remanding Case in Docket No. 13-1597 (issued
December 2, 2013).
3

The Board also noted that there was a November 16, 2012 schedule award decision that applied a pay rate of
$376.19, and OWCP should properly issue a decision regarding the schedule award pay rate to protect appellant’s
appeal rights on that issue.

2

IT IS HEREBY ORDERED THAT the decision of April 18, 2016 is set aside and the
case remanded for further action consistent with this order of the Board.4
Issued: December 27, 2017
Washington, DC

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

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

4

Colleen Duffy Kiko, Judge, participated in preparation of the order, but was no longer a member of the Board
effective December 11, 2017.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, EAGLE ROCK
STATION, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 16-1649
Issued: February 8, 2017

Case Submitted on the Record

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

JURISDICTION
On August 9, 2016 appellant filed a timely appeal from a May 4, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a left knee condition
causally related to factors of his federal employment.
On appeal, appellant alleged that his pain steadily grew during his years at the employing
establishment, that he had no family history of degenerative joint disease, and that he did not
play any sports that would impair his knee.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 13, 2015 appellant, then a 51-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed arthritis of his left knee with cartilage
thinning as a result of the duties of his federal employment. He indicated that the pain was
manageable with medication in the early stages of his ailment, but that the pain persisted in the
left knee and worsened to the point where medication did not help. Appellant stated that his
knee pain was extreme and unbearable when standing or walking for long periods of time. The
employing establishment noted on the claim form that he was on light duty and working three to
four hours a day.
By letter dated March 26, 2015, OWCP informed appellant that additional information
was necessary to support his claim, and afforded him 30 days to provide this information. In
response, appellant submitted a certification of health care provider for leave under the Family
and Medical Leave Act, completed by Dr. Stephen K. Riffenburgh, a Board-certified orthopedic
surgeon, on January 16, 2014. Dr. Riffenburgh noted that he provided appellant treatment on
May 22 and October 2, 2013, and January 15, 2014. He indicated that appellant suffered from
moderate arthritis of the left knee with medial compartment narrowing, that he was receiving
cortisone injections, and that he will require a Synvisc injection. Dr. Riffenburgh recommended
that appellant get a push cart to carry his mail and decrease the weight off his knees. He further
opined that appellant was unable to lift or carry, and if the pain persisted in his left knee, he may
be unable to work.
In a March 11, 2015 duty status report, a physician assistant indicated that appellant had
left knee osteoarthritis, and was restricted to lifting and carrying 10 pounds one hour a day,
sitting for three hours a day, standing two hours a day, and walking one hour a day. Appellant
was prohibited from climbing, kneeling, bending/stooping.
By decision dated April 27, 2015, OWCP denied appellant’s claim, finding that he did
not submit any medical evidence containing a medical diagnosis in connection with the claimed
work factors.
On May 1, 2015 appellant requested review of the written record by an OWCP hearing
representative. He noted that he believed that the thinning of his left knee cartilage was due to
his work. Appellant noted that he lifted and carried mail in a satchel of up to 30 pounds while
standing, walking, climbing, bending, and kneeling for long periods for 27 years. He noted that
in 2013 he took pain medication each day and the pain was manageable, but that he continued
with his pain in the left knee and it worsened to the point where medication no longer helped.
In further support of his claim, appellant submitted an April 9, 2015 report of an initial
orthopedic consultation, wherein Dr. John Quigley, a Board-certified orthopedic surgeon, noted
that appellant complained of a history of pain in his left knee that had gradually increased with
work over two years. Dr. Quigley noted that appellant has had Synvisc injections in his right
knee with some relief, and that he has used a knee sleeve support in the past. He listed an
impression of severe degenerative joint disease of the medial compartment of the left knee.
Dr. Quigley recommended medication, an unloading brace to unload the medial compartment of
the left knee to help relieve pain, and sit-down work only. He noted that in the future, a total

2

knee replacement would probably be indicated, but that at that time, appellant should continue
conservative treatment.
By decision dated October 20, 2015, the hearing representative affirmed the April 27,
2015 decision, with modification. She determined that while the evidence of record established
appellant’s work duties and established a medical diagnosis, she denied appellant’s claim as he
had failed to provide sufficient evidence of causal relationship between his diagnosed conditions
and the claimed work factors.
On November 30, 2015 appellant requested reconsideration. In support thereof, he
submitted a November 11, 2015 report wherein Dr. Quigley listed an impression of degenerative
joint disease of the left knee, and indicated that he gave appellant an injection of Synvisc.
Dr. Quigley explained that appellant had applied for compensation for his left knee injury, and
that it was his impression that appellant’s injury was caused or contributed to in large part by his
working for the employing establishment. He noted that appellant stood three hours a day and
used the full range of his body with twisting, turning, bending, stretching, and reaching over his
shoulder while sorting cases, and that appellant was required to lift floor trays of unsorted mail
weighing between 17 and 30 pounds to begin the sorting process. He noted that, after this,
appellant removed mail from sorting cases, placed it in a tray that could weigh up to 50 pounds
or more, and he lifted and placed trays in hampers which involved bending at the waist and
lifting above his hips. Appellant also delivered mail, which required six to eight hours of
walking on the street, including walking on hills and uneven terrain and elevated streets, and
carried a satchel with mail and parcels weighing 25 to 40 pounds on his left shoulder.
Dr. Quigley opined that the heavy satchel increased weight on appellant’s body, causing
abnormal posture. He noted that appellant also delivered about 50 heavier parcels a day, and that
the bending, twisting, turning, and lifting of heavy packages in and out of his vehicle also placed
increased stress on his knees. Dr. Quigley opined that the stress on appellant’s knees for almost
three decades contributed to the deterioration and aggravation of his knees. He noted that he saw
appellant on April 9, 2015 and that he had severe degenerative joint disease of the medial
compartment of the left knee with bone-on-bone. Dr. Quigley opined that appellant had
degenerative joint disease of his left knee that had been caused, at least in part, and definitely
aggravated by and accelerated by his work.
By decision dated May 4, 2016, OWCP denied modification of its October 20, 2015
decision, finding that appellant had not provided sufficient medical evidence to support a causal
relationship between his left knee degenerative joint disease and his work duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to

3

the employment injury.2 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.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted that appellant experienced the alleged employment factors and that
appellant suffered from degenerative joint disease in his left knee. However, it denied his claim
as it determined that the medical evidence of record was insufficient to establish causal
relationship between the accepted employment factors and the diagnosed degenerative joint
disease.
Appellant alleged that he sustained the left knee condition due to his work duties for the
employing establishment. The Board finds that the reports from Dr. Quigley are sufficient to
require further development of the medical evidence.
Dr. Quigley opined that appellant’s degenerative joint disease of the left knee was
caused, or definitely aggravated by, the duties of his federal employment. He provided an
accurate and detailed description of appellant’s employed duties, and described how these duties
were related to his degenerative joint disease. Dr. Quigley discussed how appellant carried a
satchel with mail that weighed between 25 to 40 pounds on his left shoulder and that he lifted
heavy trays of mail, which placed additional weight on appellant’s body and caused abnormal
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

See S.P., 59 ECAB 184, 188 (2007).

5

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

6

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

4

posture. He noted that appellant engaged in bending, twisting, turning, and lifting of heavy
packages in and out of his vehicle while delivering mail, which placed stress on appellant’s
knees. Dr. Quigley opined that this additional stress on appellant’s knee over the course of three
decades aggravated and accelerated appellant’s degenerative joint disease of the left knee.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.7 While Dr. Quigley’s opinion is not sufficiently
rationalized to discharge appellant’s burden of proving that the accepted duties of his federal
employment caused the degenerative joint disease in his left knee, his opinion is based on an
accurate history and he provided sufficient rationale to require further development of the case
record by OWCP.8
On remand, OWCP should refer appellant to an appropriate Board-certified specialist for
a second opinion evaluation. After this and such further development as OWCP deems
necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

A.C., Docket No. 16-0624 (issued August 25, 2016).

8

See D.W., Docket No. 15-0367 (issued July 14, 2015); John J. Carlone, 41 ECAB 354 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 4, 2016 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: February 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6