United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE ARMY, TRAINING &
DOCTRINE COMMAND,
Kandahar Province, Afghanistan, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0547
Issued: November 18, 2016

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 February 3, 2016 appellant, through counsel, filed a timely appeal from a
December 2, 2015 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.
ISSUE
The issue is whether appellant met his burden of proof to establish an employmentrelated injury on July 14, 2012.
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.

On appeal counsel asserts that, if not for the work situation, the injury would not have
occurred.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as outlined
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to the
present appeal are set forth below. On August 9, 2012 appellant, then a 58-year-old social
scientist, filed a traumatic injury claim, alleging that on July 14, 2012 he sustained monoperipheral neuropathy of the lower left leg and foot. He was treated by an Army medic that day,
but did not receive treatment from a physician until July 20, 2012. Appellant was medically
evacuated to the United States on August 15, 2012. In reports dated January 15 and 16, 2013,
Dr. Paul M. Joslin, an attending Board-certified internist, described the history of injury. He
diagnosed left lower extremity paresis and numbness, lumbar radiculopathy, and cerebrovascular
disease. Dr. Joslin indicated that it was most likely that appellant’s left lower extremity paresis,
sensory deficit, and foot drop were caused by an ischemic cerebrovascular accident in the right
middle cerebral artery distribution, due to dehydration and hypovolemia in combination with
extreme heat while on patrol in Afghanistan. He also indicated that appellant’s left lower
extremity weakness, numbness, and foot drop could be due to lumbar radiculopathy which would
presumably be caused by disc bulging related to carrying an 80- to 100-pound pack. Dr. Joslin
opined that this was a less likely explanation, in light of the absence of focal disc protrusion,
spinal stenosis or foraminal encroachment shown on a September 11, 2012 lumbar magnetic
resonance imaging (MRI) scan. He concluded that appellant had recovered completely. By
decision dated February 28, 2013, OWCP denied the claim finding the medical evidence
insufficient to establish causal relationship. Appellant appealed to the Board.
In a March 19, 2014 decision, the Board found the opinions of Dr. Joslin to be
sufficiently well rationalized to require further development of the medical evidence.4 It
remanded the case for referral to an appropriate Board-certified specialist for an examination,
diagnosis and a rationalized opinion as to whether appellant established that employment factors
caused or aggravated his back or left lower extremity condition.
Subsequent to the Board’s March 19, 2014 decision, OWCP asked that the employing
establishment provide additional information, and referred appellant to Dr. John J. Sand, a
Board-certified neurologist, for a second opinion evaluation. In reports dated May 21, July 2,
and 28, 2014, Dr. Sand described physical examination findings. He opined that uncertainty
remained as to a diagnosis of either stroke or radiculopathy or both, but that the findings on
examination and the sudden onset of appellant’s symptoms were more suggestive of stroke and
were therefore unrelated to appellant’s employment. In a September 3, 2014 merit decision,
OWCP found that, based on Dr. Sand’s opinion, appellant had not established a work-related
medical condition. Appellant filed an appeal with the Board on November 21, 2014.

3

Docket No. 13-1409 (issued March 19, 2014); Docket No. 15-0296 (issued April 9, 2015)

4

Docket No. 13-1409 (issued March 19, 2014).

2

In an April 9, 2015 decision,5 the Board found a conflict in medical evidence existed
between Dr. Joslin and Dr. Sand as to whether appellant’s diagnosed condition was caused or
aggravated by the July 14, 2012 incident.
Following remand from the Board’s April 9, 2015 decision, on October 8, 2015, OWCP
referred appellant to Dr. Irving Wolfe, an osteopath who is a Board-certified neurologist, for an
impartial evaluation. In a November 5, 2015 report, Dr. Wolfe reviewed the statement of
accepted facts and list of definitions provided by OWCP. He reported appellant’s description of
the events of July 14, 2012 and thereafter, and described the record chronologically, including
medical reports and correspondence from appellant regarding the events of July 14, 2012 and his
medical condition thereafter. Dr. Wolfe described physical examination findings of decreased
strength of extension of the second, third, fourth, and fifth toes, explaining that these were
innervated by the deep peroneal nerve, and that appellant had no weakness of extension of the
left great toe, also innervated by the deep peroneal peripheral nerve (primarily L5 nerve root
innervated muscle). He reported that appellant demonstrated no diminished sensation in the left
leg, was able to heel walk and toe walk, and had normal eversion and inversion of the left foot.
Pin sensation to the lower extremities was equal and symmetric bilaterally, and straight leg
raising in a sitting position revealed no radicular irritation pattern.
Dr. Wolfe disagreed with Dr. Joslin’s opinion that appellant had a cerebrovascular
accident (stroke) of the right middle cerebral artery distribution, opining that a stroke would
cause weakness in the left face and left arm to a greater extent than of the left leg, and appellant’s
medical records did not indicate any weakness of the left face or left arm. Dr. Wolfe noted his
review of the magnetic resonance imaging (MRI) and magnetic resonance angiography (MRA)
scan discs. He advised that the MRA scan showed no abnormalities, and that the foci seen on the
brain MRI scan were most suggestive of mild-to-moderate chronic small vessel ischemic
changes of age, agreeing with the reviewing radiologist.6 Dr. Wolfe further noted that no disc
protrusion, extrusion, stenosis, or neural foraminal encroachment was identified on the lumbar
MRI scan, and that a September 5, 2015 electrodiagnostic study reported L5 radiculopathy. He
opined that, as the result of the July 14, 2012 incident, appellant sustained left-sided common
peroneal neuropathy, site nonspecific.
Dr. Wolfe advised that, at the time of his November 5, 2015 examination, appellant
endorsed symptoms of numbness of the left leg with the inability to dorsiflex or evert the left
foot. Appellant reported no other symptoms involving his arm or legs, or cognitive impairments
such as confusion or disorientation or difficulties with memory or attention. Dr. Wolfe noted
that on July 20, 2012 a Dr. Duckworth had documented weakness of the left leg due to
appellant’s inability to dorsiflex and evert his left foot. He described the physiology of a stroke.
Dr. Wolfe opined that, after his review of the medical records and his face-to-face evaluation
with appellant on November 5, 2015, there was no medical evidence which suggested that
appellant had a stroke which would cause an upper motor neuron pattern of weakness as opposed
to a lower motor neuron pattern of weakness, noting that there were no MRI scan findings of a
stroke which would clinically result in appellant’s presenting symptoms. Dr. Wolfe explained
that the October 26, 2012 brain MRI scan findings were most suggestive of mild-to-moderate
5

Docket No. 15-0296 (issued April 9, 2015).

6

Copies of the reports of these studies are not found in the case record before the Board.

3

chronic small vessel ischemic changes for age, a common finding in the brains of people 55 to 60
years old. He explained that appellant’s risk factors for these MRI scan changes were his weight,
his male gender, and his age, none of which were the result of the events of July 14, 2012.
Dr. Wolfe concluded that “the incidents that occurred on July 14, 2012, did not aggravate or
cause a stroke (blood oxygen decrease to the brain) and did not cause any of [appellant’s]
symptoms which occurred on July 14, 2012.”
By decision dated December 2, 2015, OWCP denied modification of its prior decisions.
It credited the opinion of Dr. Wolfe and found that the events of July 14, 2012 did not cause or
aggravate a stroke and did not cause any of his symptoms that occurred on July 14, 2012.
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 of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.7
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.8 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.9
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 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 employee.11 Neither the mere fact that a disease or condition manifests itself during a period

7

Gary J. Watling, 52 ECAB 278 (2001).

8

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

9

Id.

10

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.12
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.14 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.15
ANALYSIS
The Board finds this case is not in posture for decision. OWCP found that on July 14,
2012 appellant was laden with body armor and a pack on a hot day in Hutal, Afghanistan. He
had left lower extremity paresthesias and immobility of his left foot when he stood after sitting
for about 45 minutes. Appellant could not receive medical care from a physician for a number of
days due to his remote location that required waiting for a military convoy to transport him to a
Forward Operating Base for medical treatment, and then further time passed until he was
transferred stateside for further medical treatment.
In its April 9, 2015 decision, the Board found that a conflict in medical evidence had
been created between the opinions of Dr. Joslin and Dr. Sand and, following remand, OWCP
referred appellant to Dr. Wolfe for an impartial evaluation.
In his November 5, 2015 report, Dr. Wolfe stated in his medical opinion that
“[appellant’s] diagnosis as the result of his accident on July 14, 2012, while performing his job
duties as a social scientist as an employee of the [employing establishment] on July 14, 2012, is
that of left-sided common peroneal neuropathy, site nonspecific.” Later in the same report, he
opined that “the incidents that occurred on July 14, 2012 did not aggravate or cause a stroke
(blood oxygen decrease to the brain) and did not cause any of [appellant’s] symptoms which
occurred on July 12, 2012. The Board finds these opinions to be inconsistent.
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires

12

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

13

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

14

20 C.F.R. § 10.321.

15

V.G., 59 ECAB 635 (2008).

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clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting a defect in the original report.16
For the above-described reasons, the opinion of Dr. Wolfe is in need of clarification and
elaboration. To resolve the continuing conflict in medical opinion, the case will be remanded to
OWCP for referral of the case record and a statement of accepted facts to Dr. Wolfe, and for
another physical examination of appellant if necessary, for a supplemental report in which he
fully explains his diagnosis of left-sided common peroneal neuropathy, whether it or any other
condition was caused by the accepted events of July 14, 2012, whether the condition/conditions
continue, and whether appellant had or has any disability as defined by FECA due to the
diagnosed condition. After this and such further development as deemed necessary, OWCP shall
issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
has a current diagnosed condition or residuals due to a July 14, 2012 incident.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: November 18, 2016
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
16

I.H., Docket No. 08-1352 (issued December 24, 2008).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, North Little Rock, AR, Employer
__________________________________________

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

Docket No. 08-1556
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On May 7, 2008 appellant, through counsel, filed a timely appeal from an April 3, 2008
decision of an Office of Workers’ Compensation Programs’ hearing representative, who affirmed
an August 24, 2007 decision denying his emotional condition claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition
causally related to his federal employment.
FACTUAL HISTORY
On May 22, 2007 appellant, then a 50-year-old housekeeping aid, filed an occupational
disease claim alleging that on January 7, 2001 he first became aware of his depression. He
attributed his depression to work stress and being forced to resign his position due to his
preexisting disability on November 19, 2004.
Appellant resigned from the employing

establishment effective December 13, 2005. On the SF50 form noting his resignation, he wrote
that he was forced to resign his position due to depression.
In support of his claim, appellant submitted progress notes dated November 19, 2004
from Willie J. Davis, LPN and Pamela R. Capel, RN and November 29, 2004 from Dr. Eve J.
Wiseman, an attending Board-certified psychiatrist. Ms. Davis and Ms. Capel stated that
appellant was seen on November 14, 2004 for depression which had been present for the prior
three days. Dr. Wiseman diagnosed depression. She noted appellant was first diagnosed with
depression in 2001. Dr. Wiseman noted that appellant stated he lost memory of 24 hours the
previous October and had no recall of what happened during that period.
By letter dated July 12, 2007, the Office requested appellant to submit additional medical
and factual information as the evidence currently in the record was insufficient to support his
claim.
On July 30, 2007 the Office received evidence from the employing establishment. It
provided a copy of his position description, a December 9, 2005 resignation letter, letters
regarding his removal from the employing establishment and a June 30, 2005 last chance
agreement signed by appellant. An undated letter informed appellant that his removal was being
held in abeyance subject to the terms of the last chance agreement and that he was being
suspended for seven days. The June 30, 2005 last chance agreement listed the terms for
appellant’s continued employment and his acknowledgement that the employing establishment
had valid reasons for seeking his removal. The agreement provided that he read and understood
his responsibilities regarding leave and absences and that any “failure to meet my responsibilities
as described will be considered a violation of this agreement.” Under paragraph eight of the
agreement, it noted that “[A]ny misconduct, which would normally lead to disciplinary/adverse
action during the time frames of this agreement” would be a violation of the agreement and result
in his immediate removal.
In a November 25, 2005 letter, the employing establishment informed appellant that his
removal would be effective December 16, 2005. It found that he had violated paragraph 8 of the
last chance agreement. The employing establishment noted that appellant failed to supply the
requested medical documentation for leave used on September 18 and 24, 2005, which was a
violation of his agreement. Appellant’s December 9, 2006 letter stated that he was resigning his
position as he was moving out of town.
In letters dated March 11 and April 15, 2005, appellant contended that he was disabled
due to a major depressive episode of March 4 to 8, 2005 and that he believed he had called in
sick to work on March 6, 2005. In a response for information, he noted that on October 4, 2004
he was out of his work area as he was on his morning break and was trying to contact his family
in Florida. Appellant noted that Pennie Thompson, a supervisor, stated that she did not care for
his reason for being away from his duty station and that she was going to write him up as being
insubordinate and absent without leave. He noted that, when he was approached by
Ms. Thompson, he had been trying to contact his mother to ensure she was okay as he had been
unable to reach her for the prior two weeks.

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In a November 30, 2004 report, Dr. Ben Wilson diagnosed depression aggravated by
appellant’s employment.
In a June 9, 2005 contact report, Albert R. Tabieros, a patient representative, related that
appellant contacted him based of his belief that his supervisors were harassing him. Appellant
related that he had been written up for using a phone during work and that he was charged two
days of being absent without leave when he was sick. Appellant contended that he had called in
and provided a doctor’s note. Appellant alleged that he was being written up for minor things
over which he had no control and there was a pattern of harassment. Mr. Tabieros stated that he
advised appellant to contact his Equal Employment Opportunity (EEO) office, human resources
or his union regarding these matters.
On July 25, 2007 appellant detailed his job duties and noted that he had no stress outside
of his federal employment. He alleged that his depression was aggravated by the chemical
smells at work and that his supervisor was always on his back. Appellant noted that his mother
had been hospitalized in May 2005 and he went to see her because she was dying. He received a
telephone call at work from his mother after returning to work from visiting her. Appellant
noted that he was given leave to attend his mother’s funeral and that he experienced difficulty
returning to work due to Hurricane Katrina. He informed his foreman regarding the difficulties
in trying to get back to work and the foreman threatened him with the loss of his job if he did not
return to work on “such and such day.” Upon his return, appellant learned that he had been
charged with five or six days of being absent without leave and was subsequently written up by
various supervisors. He alleged that he was subjected to harassment and retaliation by
supervisors.
By decision dated August 24, 2007, the Office denied appellant’s claim. It found he had
failed to establish any compensable factors of employment.
In a letter dated September 18, 2007, appellant’s counsel requested an oral hearing before
an Office hearing representative. A telephonic hearing was held on January 7, 2008 at which
appellant was represented by counsel and provided testimony.
By decision dated April 3, 2008, the Office hearing representative affirmed the denial of
appellant’s claim.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric 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 emotional condition.1

1

Donna Faye Cardwell, 41 ECAB 730 (1990)

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Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
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 under the Act.4 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his 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 employees’ disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.5
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 under the Act. Where the disability
results from an employee’s emotional reaction to his regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his 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, the Office, 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, the Office 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, the Office must base its decision on an
analysis of the medical evidence.8

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751 (1993)

5

Lillian Cutler, supra note 2.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

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ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of several
employment incidents. The Board must initially review whether the alleged incidents of
employment are compensable under the terms of the Act.
Appellant made several allegations related to administrative or personnel matters. These
allegations are unrelated to his regular or specially assigned work duties and do not generally fall
within the coverage of the Act.9 However, the Board has held that an administrative or personnel
matter will be considered an employment factor where the evidence discloses error or abuse. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether management acted reasonably.10
Appellant’s alleged that his supervisors instituted improper disciplinary actions and
forced him to resign. This pertains to administrative or personnel matters unrelated to his regular
or specially assigned work duties.11 Appellant also alleged being terminated for taking leave to
visit his mother who was ill. Although, the handling of disciplinary actions and evaluations are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.12 The record shows that appellant was issued a last chance agreement on
June 30, 2005 which informed him that his employment could be terminated if he violated any of
the terms of the agreement. It required that he provide medical certification for leave. The
evidence establishes that appellant’s supervisors acted reasonably in response to his failure to
provide appropriate medical documentation when requested. Under the last chance agreement,
appellant was on probation for two years and the violation of the agreement would result in his
immediate termination. The evidence of record establishes that appellant did not comply with
the terms of the agreement. Appellant has presented no evidence to support that his supervisors
acted unreasonably in any disciplinary action or his termination from employment. He has
submitted no evidence to support his allegation that he was terminated for using leave to visit his
mother. Appellant has not established administrative error or abuse in these actions and they do
not constitute a compensable factor under the Act.
Appellant also alleged he was improperly charged with being absent without leave when
he took time off to attend his mother’s funeral. The Board notes that, although the handlings of
leave requests, while generally related to the employment, are administrative functions of the
employer and not duties of the employee.13 The record contains no evidence regarding
9

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. V.W., 58 ECAB ___ (Docket No. 07-234,
issued March 22, 2007); Sandra Davis, 50 ECAB 450 (1999).
10

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Richard J. Dube, 42 ECAB 916,
920 (1991).
11

See Janet I. Jones, 47 ECAB 345 (1996), Jimmy Gilbreath, 44 ECAB 555 (1993); Apple Gate, 41 ECAB 581
(1990); Joseph C. DeDonato, 39 ECAB 1260 (1988).
12

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007).

13

C.S., 58 ECAB ___ (Docket No. 06-1583, issued November 6, 2006).

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appellant’s allegation that he was terminated for taking sick leave to visit his mother or that he
was improperly charged with being absent without leave for the time he took to attend her
funeral. Appellant alleged that he informed his supervisor of difficulty encountered in returning
to work because of Hurricane Katrina. However, there is no evidence in support of this
contention. Appellant has provided no evidence to show that the employing establishment ever
improperly charged him with absent without leave. He has not established a compensable
employment factor with respect to this administrative matter.
Appellant also alleged his depression was aggravated by his supervisor’s harassment. He
alleged the harassment started on October 4, 2004 when a supervisor wrote him up for being
away from his work area. Appellant stated that he had informed the supervisor that he was on
break and trying to contact his family in Florida. He alleged that he became upset when his
supervisor would not allow him to continue his telephone call and the apparent lack of concern
by the supervisor. Subsequently appellant received a letter for insubordination. He addressed
the last chance agreement issued following his mother’s death and funeral. To the extent that
incidents alleged as constituting harassment by a supervisor are established as occurring and
arising from appellant’s performance of his regular duties, these could constitute employment
factors.14 However, for harassment to give rise to a compensable disability under the Act there
must be evidence that harassment did in fact occur. Mere perceptions of harassment are not
compensable under the Act.15 Although, appellant diagnosed with his supervisor for writing him
up for being away from his work area, his complaint about the manner in which a supervisor
performs his or her duties or the manner in which a supervisor exercises his or her discretion fall,
as a rule, outside the scope of coverage provided by the Act. This principle recognizes that a
supervisor or manager must be allowed to perform his duties and employees will, at times,
dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial action
will not be compensable, absent evidence of error or abuse.16 The Board finds that the evidence
of record does not establish error, abuse or harassment on the part of the supervisor. Appellant
acknowledged that he was not in his assigned work area at the time his supervisor directed him
to return to work. There is no evidence establishing that appellant’s supervisor acted
unreasonably when writing him up for being away from his work area in issuing the last chance
letter following his return to work. There is no evidence in the record that appellant’s supervisor
acted unreasonably. The Board finds that appellant has not established a compensable
employment factor with respect to his allegations of harassment and discrimination. Appellant
has not substantiated a compensable work factor. Since he has not established a compensable
work factor, the Board will not address the medical evidence.17

14

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

15

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
16

See T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006).

17

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); Margaret S. Krzycki, 43 ECAB
496 (1992).

6

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.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2008 is affirmed.
Issued: January 5, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Darrington, WA, Employer
__________________________________________

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

Docket No. 09-1836
Issued: June 9, 2010

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant filed an appeal of the Office of Workers’ Compensation
Programs’ February 5, 2009 merit decision denying her occupational disease claim, and the
May 29, 2009 nonmerit decision denying her request for an oral hearing. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained an injury in the
performance of duty; and (2) whether the Office properly denied appellant’s request for an oral
hearing as untimely.
FACTUAL HISTORY
On November 27, 2007 appellant, then a 43-year-old writer-editor, filed an occupational
disease claim (Form CA-2) alleging that she developed pain and spasms in her neck and back as

a result of sitting and working long hours at her computer.1 She first realized that her condition
was causally related to her employment on March 30, 2006.
In a November 27, 2007 statement, appellant noted that she experienced a severe muscle
spasm in her neck and right shoulder on a two-week work-related trip to Washington, DC in the
fall of 2007. She attributed her condition to lifting heavy luggage (two suitcases weighing 30
and 38 pounds respectively) on October 18 and 19, 2007, and to working at a “nonergonomically set up desk.” Appellant indicated that, when she sneezed on October 23, 2007,
she experienced a shooting pain between her shoulder blades and down her back. On
November 23, 2007 she fell on ice while walking in the front door of her normal duty station,
thereby exacerbating the pain in her shoulder, neck, arm and hand. Appellant also alleged that
the stress level caused by critical deadlines added to the muscular tension and caused severe
discomfort. She noted a prior neck injury due to a work-related motor vehicle accident,2 and that
her lower back sciatica had been ongoing for several years, first noticed following a fall while
hiking.
Appellant submitted notes from Dr. Gary Schillhammer, Board-certified in the field of
family medicine, dated January 23, 1998 through April 16, 2006. Dr. Schillhammer’s notes
reflect that appellant sustained injuries to her shoulder and back as a result of a January 30, 1998
motor vehicle accident and that she had flare-ups approximately once a year. On April 16, 2006
appellant reported that she had recently experienced increased back pain, which radiated across
her shoulders, due to her constant seated position at work. Dr. Schillhammer diagnosed lumbar
strain.
On February 14, 2008 appellant stated that she had been diagnosed with herniated,
bulging discs, tendinitis and bursitis in her right shoulder. She alleged that her job duties, which
required her to work seven to eight hours per day on a keyboard and mouse, exacerbated the pain
in her neck and shoulders into her hands and arms.
In a decision dated March 10, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that the claimed medical conditions were causally
related to the accepted work events. It accepted that appellant worked extensive hours while
sitting and using the computer, but found that the record did not contain a well-rationalized
medical opinion explaining how an injury resulted from her work duties.
On March 20, 2008 appellant requested an oral hearing. In a March 23, 2008 report,
Dr. Schillhammer noted appellant’s complaints of constant neck and right shoulder pain
beginning in October 2007, which she originally attributed to carrying luggage on a work-related
trip. The pain became worse after working at the computer for two to three hours and extreme
after seven hours. Physical examination revealed laxity and tenderness at the neck and shoulder.
A magnetic resonance imaging (MRI) scan of the shoulder showed bursitis and tendinosis. An
1

The record also contains a notice of traumatic injury, dated April 26, 2006, alleging that appellant injured her
neck and sciatic nerve on March 30, 2006 due to repeated long hours and work at her computer. The form was not
received by the Office until January 28, 2008. The Office combined the claims and developed them under File
No. xxxxxx881.
2

Appellant’s March 23, 1998 traumatic injury claim (File No. xxxxxx422) was accepted for cervical strain.

2

MRI scan of the neck showed mild to moderate degenerative changes, including a small
herniation at C4-5 and a moderate herniation at C5-6, with moderate narrowing.3
At the August 7, 2008 hearing, appellant reiterated her claim that her neck and shoulder
conditions were due to her prolonged sitting and keyboarding activities. She stated that her
conditions were not caused by a specific traumatic event.
In an August 6, 2008 report, Dr. Schillhammer stated that he had treated appellant for a
variety of musculoskeletal problems for over 20 years. In October 2007, appellant injured her
right neck and shoulder while on a business trip to Washington, DC. MRI scans demonstrated
acute tendinosis and bursitis of the right shoulder as well as a type II accordion. A neck MRI
scan demonstrated facet arthritis as well as chronic disc herniation. Dr. Schillhammer stated that
shoulder muscle tension, created by holding arms extended, or neck muscle tension could
certainly explain the aggravation of her underlying arthritis and tendinitis. He opined that
prolonged time spent keyboarding at a computer workstation had aggravated the condition in her
neck and right shoulder, with recurring bouts of pain and spasm and palpable inflammation of
her neck and shoulder.
By decision dated October 8, 2008, the Office hearing representative vacated the
March 10, 2008 decision. He found that Dr. Schillhammer generally supported that appellant’s
claimed injury was caused by the accepted employment incidents. The case was remanded for
further development of the medical evidence.
On remand, the Office referred appellant to Dr. Paul H. Reiss, a Board-certified
orthopedic surgeon, together with a statement of accepted facts, for an opinion as to whether she
had a diagnosed condition causally related to the accepted work-related events.4 In a report
dated December 19, 2008, Dr. Reiss diagnosed degenerative disc disease of the cervical spine
with right C6 radiculopathy, which he stated represented a “worsening of the previous condition
noted on the MRI scan of June 22, 1996.” He found that appellant’s current condition was due to
the natural aging of the cervical spine and was unrelated, on a more-probable-than-not basis, to
using a computer, which did not provide an occupational risk for worsening of degenerative disc
disease of the cervical spine over and above the activities of daily living. Dr. Reiss also opined
that the minimal impingement of the right shoulder was not due to a specific traumatic injury or
to keyboarding, as working on a keyboard was not an occupational risk for impingement of the
shoulder. Rather, he concluded that the condition was due to age-related changes and that the
majority of appellant’s symptoms were coming from the cervical spine, specifically, the right C6
radiculopathy.
Dr. Reiss opined that appellant’s documented multiple musculoskeletal
conditions were not related to the use of keyboarding or the alleged 2007 injury.

3

The record contains copies of notes from Dr. Schillhammer from February 24, 1998 through February 22, 2008;
reports of MRI scans of the cervical spine dated June 24, 1998 and November 15 and December 18, 2007; and a
listing of visits to Dr. Schillhammer for the period April 25, 1995 to June 14, 2007.
4

The Office’s November 10, 2008 statement of accepted facts reflected that appellant sat at and used a computer
7 to 8 hours per day, 5 days per week, and sometimes used the computer up to 16 hours per day to meet deadlines.

3

By decision dated February 5, 2009, the Office denied appellant’s claim based on
Dr. Reiss’ December 19, 2008 report, which established that appellant had no work-related
condition that could be causally related to the accepted employment activities.
On April 16, 2009 appellant requested an oral hearing.
By decision dated May 29, 2009, an Office hearing representative denied appellant’s
request for an oral hearing as untimely.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician (known as

5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

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

8

Id.

4

a referee physician or impartial medical specialist) who shall make an examination.9 A
difference in medical opinion sufficient to be considered a conflict occurs when two reports of
virtually equal weight and rationale reach opposing conclusions.10
ANALYSIS
The Board finds this case is not in posture for decision due to a conflict in medical
opinion between Dr. Schillhammer, appellant’s treating physician, and Dr. Reiss, the second
opinion physician, as to whether her claimed conditions are related to her accepted employment
activities.
Dr. Schillhammer opined that appellant’s neck and shoulder condition was causally
related to the identified work activities. On March 23, 2008 he noted appellant’s complaints of
constant neck and right shoulder pain beginning in October 2007, which was reportedly worse
after working at the computer for two to three hours and extreme after seven hours.
Dr. Schillhammer provided examination findings, which revealed laxity and tenderness at the
neck and shoulder. An MRI scan of the shoulder showed bursitis and tendinosis. An MRI scan
of the neck showed mild to moderate degenerative changes, including a small herniation at C4-5
and a moderate herniation at C5-6, with moderate narrowing.
On August 6, 2008
Dr. Schillhammer noted that he had treated appellant for a variety of musculoskeletal problems
for over 20 years and stated that shoulder muscle tension, created by holding arms extended, or
neck muscle tension could certainly explain the aggravation of her underlying arthritis and
tendinitis. He opined that prolonged time spent keyboarding at a computer workstation had
aggravated appellant’s neck and right shoulder conditions, causing recurring bouts of pain and
spasm and palpable inflammation of her neck and shoulder.
Dr. Reiss opined that appellant’s degenerative disc disease with right C6 radiculopathy
and her minimal shoulder impingement were not employment related, but rather were due to agerelated changes. He stated that her condition was unrelated, on a more-probable-than-not basis,
to using a computer, which did not provide an occupational risk for the worsening of
degenerative disc disease of the cervical spine or for shoulder impingement.
The Board finds that there is a conflict in the medical opinion evidence between
appellant’s treating physician and the Office’s second opinion examiner. Dr. Schillhammer
stated that appellant’s neck and shoulder conditions were causally related to her computer duties
and prolonged sitting at work. Dr. Reiss found that her symptoms were due to age-related
changes, rather than to employment activities. The opinions of both physicians are of virtually
equal weight and rationale but reach opposing conclusions.11 The case will be remanded to the
Office for further development in order to resolve the conflict.12 Following such development as
deemed necessary, the Office shall issue an appropriate decision in the case.
9

5 U.S.C. § 8123(a). See also R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008).

10

See 20 C.F.R. § 10.321(b). See also James P. Roberts, 31 ECAB 1010 (1980).

11

See 20 C.F.R. § 10.321(b). See James P. Roberts, supra note 10.

12

5 U.S.C. § 8123(a).

5

CONCLUSION
The Board finds that the case is not in posture for decision due to a conflict in medical
opinion.13
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2009 is set aside and remanded for further action
consistent with this decision.
Issued: June 9, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

In light of the Board’s ruling on the first issue, the second issue is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEXANDRIA, LOUISIANA HOSPITAL,
Alexandria, LA, Employer
__________________________________________

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

Docket No. 13-1704
Issued: December 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 3, 2013 appellant filed a timely appeal from a February 28, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a May 30, 2013 nonmerit
decision denying her request for a hearing before the Branch of Hearings and Review. 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 OWCP met its burden of proof to terminate appellant’s
compensation benefits on the grounds that she no longer had any residuals or disability causally
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence following the February 28, 2013 merit decision and May 30, 2013
nonmerit decision. The Board, however, may not consider new evidence for the first time on appeal which was not
before OWCP at the time it issued its final decision. As the reports were not part of the record considered by OWCP
in its February 28, 2013 decision, the Board may not consider this evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c).

related to her accepted employment-related injuries; and (2) whether OWCP properly denied
appellant’s request for a review of the written record as untimely.
FACTUAL HISTORY
On August 2, 2007 appellant, then a 60-year-old nurse, sustained neck, back, shoulder
and arm injuries from pushing and pulling a medication cart weighing up to 200 pounds over the
course of three hours. She stopped work on August 8, 2007. On October 9, 2007 OWCP
accepted the claim for sprain of neck and aggravation of brachial neuritis or radiculitis.
Appellant returned to part-time light duty on December 3, 2007 and sought treatment with her
physician, Dr. Gregory Bevels, Board-certified in family medicine.
On February 25, 2008 OWCP referred appellant to Dr. John Sandifer, a Board-certified
orthopedic surgeon, for a second opinion regarding her current status and work ability.
In a March 17, 2008 report, Dr. Sandifer reported that appellant was pushing and pulling
a heavy medicine cart on August 2, 2007 when she felt pain in her neck and shoulder blades. He
obtained a history of an anterior cervical fusion in 2006 and that appellant had not worked since
January 2008. Appellant complained of bilateral arm pain and numbness, noting that her
symptoms were similar to those she had prior to her cervical spine surgery. Upon physical
examination and review of medical reports and diagnostic testing, Dr. Sandifer diagnosed
cervical strain with bilateral radiculopathies. He noted that there were no objective findings on
examination. Objective testing revealed evidence of prior anterior fusion which was a
preexisting problem that appellant had undergone surgery for.
On October 6, 2009 appellant initially elected Office of Personnel Management (OPM)
benefits. On January 1, 2010 appellant elected FECA benefits, stopped work and was placed on
the periodic rolls.
OWCP determined that a second opinion examination was warranted to confirm the
extent and duration of appellant’s accepted work injuries. It referred her, a statement of accepted
facts, the case file and a series of questions to Dr. Austin Gleason, a Board-certified orthopedic
surgeon.
In a February 23, 2010 report, Dr. Gleason noted by history that on October 12, 2006,
appellant underwent a C5-6, C6-7 anterior cervical discectomy and fusion with plating as a result
of a nonwork-related condition. Upon physical examination and review of prior medical reports,
he diagnosed cervical sprain with residual pain in the thoracic spine, extreme weakness all over
the body and status post anterior cervical discectomy and fusion at C5-6 and C6-7. Dr. Gleason
reported that the only objective finding was surgery for cervical fusion. He noted that the
functional capacity evaluation (FCE) failed to provide findings regarding any residuals to her
cervical spine. Dr. Gleason noted that appellant’s work injury was relatively minor which
caused neck pain after pushing and pulling a cart over three hours. He noted that appellant was
becoming weaker and weaker since the injury three and a half years ago. Dr. Gleason found no
evidence of cervical radiculopathy or plexopathy and opined that there was no evidence to
associate her current complaints to the August 2, 2007 incident of pushing and pulling a cart. He
further stated that appellant also fell and injured her lumbar spine on August 17, 2008 which was
not a compensable injury. While it was unclear what caused appellant’s weakness all over her
body, he recommended a complete neurological evaluation to rule out a stroke or other
2

underlying debilitating neurological problems. In a Form OWCP-5c, he noted that appellant was
not capable of performing her usual job until she obtained a neurological/psychological
evaluation.
By letter dated July 14, 2011, OWCP informed appellant that it had not received current
medical documentation pertaining to her treatment. It requested that she provide a report from a
physician addressing her work-related injury and current physical restrictions. No medical
reports were received.
On July 23, 2012 OWCP referred appellant, a statement of accepted facts, the case file
and a series of questions to Dr. Robert Holladay, IV, a Board-certified orthopedic surgeon, for a
second opinion medical examination.
In an August 14, 2012 report, Dr. Holladay provided a detailed medical history and
summary of appellant’s prior medical treatment. On August 2, 2007 appellant pushed and pulled
a very heavy medicine cart which weighed up to 200 pounds when she began having pain in her
neck radiating between her shoulder blades. Upon physical examination and review of the
diagnostic testing, Dr. Holladay diagnosed neck pain, diabetes mellitus, diabetic neuropathy,
anxiety, depression, mild-to-moderate obesity and postoperative anterior cervical disc and fusion
C5-6, C6-7 on October 12, 2006. He stated that appellant had no objective physical examination
findings to account for her consistent complaints of pain. Dr. Holladay further noted that
Dr. Gleason also found no objective evidence of residuals from the August 2, 2007 employment
incident. He advised that soft tissue sprains/strains resolve in a matter of a few months. Based
upon the reported mechanism of injury and the accepted condition of a soft tissue strain/sprain,
appellant’s condition had long since resolved and she was physically capable of resuming her
full-time unrestricted work activities as a nurse. He concluded that appellant’s wide and varied
subjective complaints were more likely related to co-morbid nonwork-related medical
conditions.
By letter dated October 12, 2012, OWCP forwarded Dr. Holladay’s report to Dr. Bevels,
appellant’s treating physician, for review and comments. No response was received.
On January 25, 2013 OWCP notified appellant of a proposal to terminate her
compensation benefits based on Dr. Holladay’s opinion that she no longer had residuals or
disability connected to her August 2, 2007 employment injury. It provided her 30 days to submit
additional information. No additional evidence was received.
By decision dated February 28, 2013, OWCP terminated appellant’s compensation
benefits effective March 10, 2013. It found that the weight of the medical evidence rested with
Dr. Holladay who determined that appellant did not have residuals of her work-related injury.
On April 29, 2013 appellant requested review of the written record before the Branch of
Hearings and Review. The appeal was postmarked on April 30, 2013.
By decision dated May 30, 2013, the Branch of Hearings and Review denied appellant’s
request finding that it was not made within 30 days of the February 28, 2013 OWCP decision.
The Branch of Hearings and Review further determined that the issue in the case could equally

3

well be addressed by requesting reconsideration before OWCP and submitting evidence not
previously considered addressing residuals of her August 2, 2007 injury.3
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for sprain of neck and aggravation of brachial neuritis
or radiculitis due to an August 2, 2007 employment incident. On December 3, 2007 appellant
returned to a part-time limited-duty position. She stopped work on January 1, 2010 and was
placed on the periodic rolls.
OWCP requested medical evidence from appellant regarding her accepted conditions,
noting that it had been an extended period of time since medical documentation had been
received. As no new medical evidence was received, it referred appellant for a second opinion
examination with Dr. Holladay.
Dr. Holladay found that appellant had no residuals of her accepted sprain of neck and that
her condition had resolved. He based his opinion on examination findings and review of the
medical records, which substantiated that appellant had received appropriate treatment and
negative diagnostic testing. Based upon the reported mechanism of injury and the accepted
condition of a soft tissue strain/sprain, appellant’s work-related condition had resolved. He
3

The Board notes that appellant submitted additional evidence after OWCP rendered its May 30, 2013 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

6

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

7

Roger G. Payne, 55 ECAB 535 (2004).

8

Pamela K. Guesford, 53 ECAB 726 (2002).

4

found that she was no longer disabled and was capable of performing her full-time unrestricted
work activities as a nurse. OWCP relied on Dr. Holladay’s opinion in its February 28, 2013
decision, finding that appellant had no residuals or disability causally related to her neck sprain.
The Board finds that Dr. Holladay’s opinion is well rationalized and based on an accurate
history, a review of the medical records and findings from physical examination. Dr. Holladay
reviewed the statement of accepted facts and provided detailed findings regarding appellant’s
prior medical treatment and test results. He related his comprehensive examination findings in
support of his opinions. Moreover, Dr. Holladay found no objective basis for residuals from the
condition of neck sprain, which was also supported by the reports of Dr. Sandifer and
Dr. Gleason. As there were no objective findings related to appellant’s neck sprain condition, he
opined that her wide and varied subjective complaints were more likely related to co-morbid
nonwork-related medical conditions. Dr. Holladay noted that, based on the mechanism of injury
from pushing and pulling a cart, the sprain would have resolved within a matter of months and
was not the cause of her current condition more than five years later. Thus, he concluded that
appellant did not have any work limitations as a result of the accepted August 2, 2007
employment incident and could resume her full-time unrestricted work activities as a nurse.
Dr. Holladay’s opinion is sufficiently probative, rationalized and based upon a proper factual
background.9 The medical evidence establishes that appellant no longer has any residuals of her
accepted neck sprain.
The Board finds that Dr. Holladay’s opinion represents the weight of the medical
evidence regarding appellant’s accepted conditions. The Board also notes that there are no
current reports from appellant’s treating physicians establishing employment-related disability or
supporting any continuing residuals of the accepted conditions.10 Because appellant no longer
has residuals or disability related to her accepted employment conditions, OWCP properly
terminated entitlement to wage-loss compensation and medical benefits effective
March 10, 2013.11 Accordingly, OWCP’s met its burden of proof and its decision to terminate
appellant’s compensation and medical benefits shall be affirmed.12
On appeal, appellant argues that she is still under the care of Dr. Bevels as a result of her
August 2, 2007 injury and that he is willing to provide any additional information needed. As
noted, the issue of whether appellant has continuing disability causally related to her August 2,
2007 work injury is a medical issue which must be addressed by a physician. Appellant did not
submit additional medical evidence prior to the February 28, 2013 merit decision terminating her
benefits.13 OWCP contacted Dr. Bevels on October 12, 2012 to review and comment on the
findings by Dr. Holladay but he did not respond.

9

L.S., Docket No. 13-716 (issued June 4, 2013).

10

Following a proper termination of compensation benefits, the burden of proof shifts back to the claimant to
establish continuing employment-related disability. John F. Glynn, 53 ECAB 562 (2002).
11

G.I., Docket No. 13-19 (issued April 2, 2013).

12

L.C., Docket No. 12-1177 (issued August 19, 2013).

13

J.M., Docket No. 13-27 (issued April 11, 2013).

5

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.14 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.15 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.16 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of OWCP’s decision.17 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.18 In such a case, it will
determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.19
ANALYSIS -- ISSUE 2
In the present case, appellant requested review of the written record on April 29, 2013
and OWCP found that the reconsideration request was postmarked on April 30, 2013.
Appellant’s request was made more than 30 days after the date of issuance of OWCP’s prior
decision dated February 28, 2013. Therefore, OWCP properly found in its May 30, 2013
decision that appellant was not entitled to an oral hearing or examination of the written record as
a matter of right because her request for an oral hearing was not made within 30 days of its
February 28, 2013 decision.20
OWCP has the discretionary authority to grant a hearing if the request was not timely
filed. In its May 30, 2013 decision, it considered the issue involved and properly exercised its
discretion when it denied appellant’s hearing request and determined that she could equally well
address the issue of the termination of her benefits by requesting reconsideration and submitting
evidence not previously considered which establishes that she continues to suffer residuals from
her August 2, 2007 injury. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
14

5 U.S.C. § 8124(b)(1).

15

20 C.F.R. § 10.615.

16

Id. at § 10.616(a).

17

See James Smith, 53 ECAB 188 (2001).

18

Herbert C. Holley, 33 ECAB 140 (1981).

19

Id.

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

6

deduction from established facts.21 In the present case, OWCP did not abuse its discretion in
denying a discretionary hearing and properly denied appellant’s request for an oral hearing under
section 8124 of FECA.22
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective March 10, 2013. The Board also finds that OWCP properly denied her request for
review of the written record as untimely.
ORDER
IT IS HEREBY ORDERED THAT the February 28 and May 30, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 24, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

21

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

22

See Hubert Jones, Jr., 57 ECAB 467 (2006); D.F., Docket No. 11-42 (issued August 1, 2011).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF DEFENSE, SHARPE
ARMY DEPOT, Lathrop, CA, Employer
__________________________________________

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

Docket No. 10-676
Issued: October 26, 2010

Case Submitted on the Record

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

JURISDICTION
On January 11, 2010 appellant, through his attorney, filed a timely appeal from a
December 3, 2009 decision of the Office of Workers’ Compensation Programs denying his
request for reconsideration as untimely filed and failing to demonstrate clear evidence of error.
Because more than one year elapsed from the last merit decision dated October 16, 1991 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of his case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.1 The only decision properly before the Board is the nonmerit
December 3, 2009 decision denying appellant’s request for reconsideration.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board. Appellant filed an occupational disease
claim alleging that he developed a loss of hearing and tinnitus due to his employment duties.
The Office denied his claim on October 16, 1991 on the basis that the evidence did not establish
that his hearing loss was causally related to his exposure to hazardous noise levels in the
performance of duty. It declined to reopen appellant’s claim on April 3, 2000 on the grounds
that he failed to establish clear evidence of error and his request for reconsideration was not
timely. The Board affirmed this decision on March 12, 2002.2 Appellant requested an oral
hearing and the Branch of Hearings and Review denied this request on February 23, 2006. He
again requested reconsideration and, by decision dated June 2, 2006, the Office denied his
request as untimely. The Board reviewed these decisions on January 5, 2007 and affirmed the
Office’s determinations.3 Appellant again requested reconsideration. The Office again denied
his request as untimely with no clear evidence of error on June 21, 2007. The Board reviewed
this decision on October 8, 2008 and affirmed the Office’s decision.4 The facts and
circumstances of the case as set forth in the Board’s prior decisions are incorporated herein by
reference.
Appellant, through his attorney, requested reconsideration on October 7, 2009. In a note
dated August 10, 2009, Dr. Kenneth Mak, a Board-certified otolaryngologist, examined appellant
and diagnosed subjective tinnitus and sensorineural hearing loss. He stated that appellant had a
long history of sensorineural hearing loss and tinnitus. Dr. Mak opined, “This is likely from his
long employment working in a loud environment.”
Dr. Aren Francis, an otolaryngologist, examined appellant on October 6, 2009 and stated
that appellant had a 20-year history of tinnitus and was exposed to heavy machinery,
woodworking tools and saws while employed. Appellant worked without full benefit of hearing
protection on occasion. Dr. Francis found an asymmetric sensorineural hearing loss at high
frequencies. He stated that this finding was consistent with noise-induced hearing loss and that
appellant’s noise exposure was likely the etiology of appellant’s current tinnitus.
By decision dated December 3, 2009, the Office declined to reopen appellant’s claim for
consideration of the merits on the grounds that his request for reconsideration was untimely and
did not establish clear evidence of error in the Office’s last merit decision.
LEGAL PRECEDENT
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
The Board has found that the imposition of the one-year limitation does not constitute an abuse
2

Docket No. 00-2219 (issued March 12, 2002).

3

Docket No. 06-1685 (issued January 5, 2007).

4

Docket No. 08-1304 (issued October 8, 2008).

5

20 C.F.R. § 10.607(a).

2

of the discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.6
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.7 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.9 The evidence must be positive, precise and explicit and
must manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of the Office decision.14
ANALYSIS
The Office’s last merit decision of October 16, 1991 denied appellant’s claim for
occupational hearing loss on the basis that the medical evidence did not establish a causal
6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). Office procedure further provides that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that the Office made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., supra note 6.

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relationship between his diagnosed loss of hearing or tinnitus and his employment-related noise
exposure. In support of his request for reconsideration dated October 7, 2009, appellant
submitted a report dated August 10, 2009 from Dr. Mak. As appellant’s request for
reconsideration was not filed within one year of the 1991 decision, the Board finds that the
Office properly determined that it was untimely and evaluated the evidence submitted under the
standard of clear evidence of error.
Dr. Mak’s August 10, 2009 report is not sufficient to establish that the Office erred in
issuing the 1991 merit decision. He diagnosed sensorineural hearing loss and tinnitus and stated
that these conditions were “likely” from appellant’s employment-related noise exposure. While
this evidence is generally supportive of appellant’s claim, Dr. Mak’s report does not establish
clear error on the part of the Office in the denial of appellant’s claim. The opinion provided by
Dr. Mak is speculative. It is not enough to show that evidence could be construed so as to
produce a contrary result.15 The submission of a well-rationalized medical report which, if
submitted before the denial of the claim was issued, would have created a conflict in medical
opinion is not clear evidence of error.16 The report does not establish any error by the Office and
is not sufficient to raise a substantial question as to the correctness of the Office’s 1991 denial of
the claim. Therefore this report does not establish clear evidence of error.
Appellant also submitted an October 6, 2009 report from Dr. Francis, which listed
appellant’s alleged employment-related noise exposures and failure to consistently use noise
protection. Dr. Francis diagnosed asymmetric sensorineural hearing loss at high frequencies and
concluded that this finding was consistent with noise-induced hearing loss. He opined that
appellant’s employment-related noise exposure caused his tinnitus. As noted, this report is not
sufficient to establish clear evidence of error in the Office’s 1991 merit decision. The mere fact
that Dr. Francis attributed appellant’s condition to his employment in 2009 is not sufficient to
raise a substantial question concerning the denial of the hearing loss claim in 1991. This report
does not establish any error on the part of the Office and does not shift the weight of the
evidence in favor of appellant. For these reasons, this report is not sufficient to establish clear
evidence of error in the 1991 decision.
CONCLUSION
The Board finds that the Office properly determined that appellant’s request for
reconsideration was untimely and failed to establish clear evidence of error such that review of
the merits was warranted.

15

D.E., 59 ECAB 438 (2008).

16

See A.F., 59 ECAB 714 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 26, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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