United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, WEATHERS POST
OFFICE, Swansea, IL, Employer
__________________________________________

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

Docket No. 19-0827
Issued: November 20, 2019

Case Submitted on the Record

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

JURISDICTION
On March 5, 2019 appellant filed a timely appeal from a November 16, 2018 merit decision
and a February 21, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 16, 2016 appellant, then a 55-year-old supervisor of customer services, filed
a traumatic injury claim (Form CA-1) alleging that on September 15, 2016 she developed anxiety,
panic attacks, and depression when she was “suddenly informed that [she] would be returning to
a hostile and abusive work environment -- after the postmaster told [her] that [she] would not be
returning back there.”3
On September 16, 2016 the employing establishment provided appellant with an
authorization for examination and/or treatment (Form CA-16) regarding her alleged emotional
condition. Dr. Michael A. Hinz, a clinical psychologist, completed the physician’s portion of the
form on September 16, 2016 and diagnosed anxiety and panic disorder. He checked a box marked
“yes” indicating that her diagnosed conditions were caused or aggravated by her history of being
returned to a hostile and abusive work environment. Dr. Hinz opined that appellant was totally
disabled from work.
In development letters dated October 4, 2016, OWCP requested additional factual evidence
and medical evidence from appellant. It also requested additional factual evidence from the
employing establishment. OWCP requested that a knowledgeable supervisor respond regarding
the accuracy of the statement provided by appellant, provide her position description noting any
stressful activities in the position, a listing of the accommodations made for her due to her stress,
along with various information regarding staffing at the postal establishments. It afforded both
parties 30 days to respond.
The employing establishment responded on October 7, 2016 and submitted an e-mail from
appellant’s supervisor, P.N., who noted that appellant received an e-mail directing her to return to
the employing establishment. Appellant asserted that the postmaster had informed her that she
would not be returning to the employing establishment. She became very upset, crying
hysterically. P.N. reported, “All I know is [appellant] was not supposed to return to [the employing
establishment] where this all started with [C.G.] the manager.” Appellant further noted that an
initial management inquiry process (IMIP) was conducted, but that she was unaware of the
outcome.
On October 15, 2016 appellant responded to OWCP’s request for factual information. She
noted that she had previously been prescribed medication for an emotional condition, but was not
currently taking medication. Appellant indicated that she had been seeing a psychologist weekly
2

Docket No. 18-0273 (issued July 27, 2018).

3

The record indicates that appellant has two prior emotional condition claims under OWCP File Nos. xxxxxx802
and xxxxxx658, both of which were denied by OWCP. In OWCP File No. xxxxxx535, OWCP accepted her
occupational disease claim for a single episode of major depression on April 13, 2001. Appellant’s claims have not
been administratively combined.

2

for depression concerning pain and recovering from mistreatment from previous managers. She
alleged that she had an ongoing issue with the manager of the employing establishment where she
was directed to return. Appellant noted that she had left the employing establishment in midFebruary 2016 because of a hostile situation in which the manager threatened her job on a daily
basis. She asserted that the postmaster assured her that she would not be returning to the same
employing establishment facility. On September 15, 2016 appellant received a schedule from the
manager of the employing establishment directing her to report back on September 17, 2016.
Upon receipt of this schedule, she became nervous, panicky, fearful, nauseated, and began crying
uncontrollably.
In a note dated October 26, 2016, Dr. Hinz reported that he had treated appellant since
August 6, 2007 due to a previously accepted work-related claim for major depression. He
attributed her current condition of panic disorder to a work injury on September 15, 2016 when
she was informed that she would be reassigned back to her previous workstation where the
manager had harassed, emotionally abused, and demeaned her, creating a hostile work
environment.
On October 26, 2016 Dr. Hinz completed a form report and diagnosed anxiety and panic
attack symptoms. He attributed these conditions to a fear reaction and feelings of vulnerability
and helplessness as appellant was faced with having to return to a hostile work environment and
to work under a manager who had engaged in harassment and emotionally abusive behaviors
toward her in the past. Dr. Hinz opined that her anxiety and panic worsened her depressive
symptoms and increased her chronic pain levels.
By decision dated January 24, 2017, OWCP denied appellant’s emotional condition claim,
finding that her emotional reaction to being directed to return to the employing establishment was
not compensable. It also found that appellant had not submitted any evidence corroborating her
allegation that hostile conditions existed at the employing establishment.
On February 3, 2017 appellant requested reconsideration of the January 24, 2017 OWCP
decision. In support of this request, she contended that she was in fact at work, during work hours
when her anxiety attack occurred, that her manager confirmed the change of assignment and
provided her with the Form CA-16, and that she was directed to report to the employing
establishment on September 16, 2016.
By decision dated May 4, 2017, OWCP reviewed the merits of appellant’s claim, but
denied modification of the January 24, 2017 decision. It found that she failed to provide evidence
corroborating her allegations that she was inappropriately reassigned to the employing
establishment, that she experienced a hostile work environment at the employing establishment,
or that the postmaster provided her with assurances that she would not return to the employing
establishment where she previously worked.
On June 20, 2017 appellant requested reconsideration of the May 4, 2017 merit decision.
She provided a letter from her supervisor, P.N., that appellant worked at the employing
establishment during the month of September 2016. P.N. noted that when appellant received
confirmation that she was to report back to the employing establishment, she became upset.

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By decision dated September 11, 2017, OWCP denied modification of its May 4, 2017
decision finding that appellant had not implicated a compensable factor of employment on
September 15, 2016 to which she attributed her emotional condition.
Appellant appealed the September 11, 2017 OWCP decision to the Board. In its July 27,
2018 decision, the Board found that the employing establishment did not adequately respond to
the October 4, 2016 development letter. It noted that the response from P.N. suggested that the
employing establishment should have documentation regarding the events at the employing
establishment and should have documentation addressing P.N.’s assertion that appellant was not
to return to the employing establishment. The Board, on remand, directed OWCP to obtain
additional information from the employing establishment about appellant’s allegations of error or
abuse and a hostile work environment, including information about the employment incidents and
the IMIP.
On remand OWCP sent a September 18, 2018 development letter to the employing
establishment requesting that it provide documents regarding the events at the employing
establishment involving appellant and C.G. It noted that in the absence of a full reply, it may
accept her allegations as factual and afforded 30 days for a response.
In an e-mail dated October 18, 2018, C.V., the postmaster, denied telling appellant that she
would never have to return to the employing establishment. On October 19, 2018 P.N. reported
that she did not know who told appellant that appellant would never go back to the employing
establishment and that she was not involved in that conversation.
By decision dated October 26, 2018, OWCP denied appellant’s claim, finding that the
evidence of record did not establish that she was told that she would never have to return to the
employing establishment. Thus, the requirements had not been met for establishing an emotional
condition arising during the course of employment and within the scope of acceptable work factors
as defined by FECA. OWCP issued an amended decision dated November 16, 2018, finding that
there was no evidence of administrative error or abuse in her reassignment to the employing
establishment.
On November 30, 2018 appellant requested reconsideration. She contended that the
employing establishment’s response was untimely and did not comply with the requests from
OWCP and the Board.
By decision dated February 21, 2019, OWCP denied appellant’s request for
reconsideration of the merits of her claim in accordance with 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
4

Supra note 1.

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disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) factual evidence identifying employment factors or incidents alleged to have
caused or contributed to the condition; (2) medical evidence establishing that he or she has an
emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.8 In the case of Lillian Cutler,9 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition under FECA. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the concept or
coverage under FECA.10 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury arising
out of and in the course of employment.11 On the other hand, when an injury or illness results
from an employee’s feelings of job insecurity per se, fear of a reduction-in-force, his or her
frustration from not being permitted to work in a particular environment or to hold a particular
position, unhappiness with doing work, or frustration in not given the work desired, such injury or
illness falls outside FECA’s coverage because they are found not to have arisen out of
employment.12
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 compensable factors of

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6
20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7

S.K., Docket No. 18-1648 (issued March 4, 2019); George H. Clark, 56 ECAB 162 (2004

8

T.L., Docket No. 18-0100 (issued June 20, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).
9

28 ECAB 125 (1976).

10

S.K., supra note 7; A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

11

Supra note 9; O.P., Docket No. 19-0445 (issued July 24, 2019); Trudy A. Scott, 52 ECAB 309 (2001).

12

B.S., Docket No. 19-0378 (issued July 10, 2019); William E. Seare, 47 ECAB 663 (1996).

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employment and may not be considered.13 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. If a
compensable factor of employment is substantiated, OWCP must base its decision on an analysis
of the medical evidence which has been submitted.14
OWCP’s Federal (FECA) Procedure Manual provides that, if an employing establishment
fails to respond to a request for comments on a claimant’s allegations, OWCP’s claims examiner
may usually accept the claimant’s statements as factual. However, acceptance of the claimant’s
statements as factual is not automatic in the absence of a reply from the employing establishment,
especially in instances where performance of duty is questionable. OWCP’s Federal (FECA)
Procedure Manual further notes that the Board has consistently held that allegations unsupported
by probative evidence are not established and that OWCP’s claims examiner should consider the
totality of the evidence and evaluate any inconsistencies prior to making a determination.15
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision.
In its prior decision, the Board found that appellant had attributed her emotional condition
to error and abuse in administrative matters. As a general rule, administrative and personnel
matters, although generally related to the employee’s employment, are administrative functions of
the employer rather than the regularly or specially assigned work duties of the employee and are
not covered under FECA.16 In Thomas D. McEuen,17 the Board held that an employee’s emotional
reaction to administrative actions or personnel matters taken by the employing establishment is
not covered under FECA as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of an employee. However, the Board has
also held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, such action will be considered
a compensable employment factor.18 In determining whether the employing establishment erred
or acted abusively, the Board will examine the factual evidence of record to determine whether the
employing establishment acted reasonably.19

13

B.S., id.; Dennis J. Balogh, 52 ECAB 232 (2001).

14

S.K., supra note 7; Norma L. Blank, 43 ECAB 384, 389-90 (1992).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5d(1)
(June 2011). See also L.B., Docket No. 17-1671 (issued November 6, 2018); R.B., Docket No. 14-1663 (issued
September 29, 2015) (citing Chapter 2.800.5d(1)).
16

S.K., supra note 7; Matilda R. Wyatt, 52 ECAB 421 (2001).

17

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

18

S.K., supra note 7; William H. Fortner, 49 ECAB 324 (1998).

19

S.K., id.; Ruth S. Johnson, 46 ECAB 237 (1994).

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Appellant has attributed her emotional condition to actions of the employing establishment
including: notification on September 15, 2016 of her transfer back to the employing establishment
on September 16 or 17, 2016, that she was inappropriately reassigned to the employing
establishment on September 15, 2015 after the postmaster provided her with assurances that she
would not return to the same employing establishment facility, and that she experienced a hostile
work environment at the employing establishment.
In its July 27, 2018 decision, the Board set aside OWCP’s September 11, 2017 decision
and remanded the case for further development. The Board found that appellant had provided
evidence of error or abuse, specifically the October 7, 2016 statement of her supervisor, P.N., who
reported, “All I know is [appellant] was not supposed to return to [the employing establishment]
where this all started with [C.G.] the manager.” Appellant further noted that an IMIP was
conducted by the employing establishment, but that she was unaware of the outcome. The Board
directed OWCP, on remand, to obtain additional information from the employing establishment
about her alleged employment incidents and the IMIP. The Board also directed OWCP, after
carrying out such development, to issue a de novo decision regarding appellant’s emotional
condition claim.
In response to OWCP’s inquiries on September 18, 2018, the employing establishment did
not provide the basis for P.N.’s October 7, 2016 statement and did not provide any information
regarding the IMIP. It provided minimal information with a statement from C.V. dated
October 18, 2018 in which she denied telling appellant that she would never have to return to the
employing establishment. In an October 19, 2018 statement, P.N. reported that she did not know
who told appellant that she would never have to go back to the employing establishment and that
she was not involved in that conversation. The Board finds that these statements are not responsive
to the queries from the Board and OWCP. Both C.V. and P.N.’s responses were incomplete and
focused only on whether and by whom appellant was told that she “never” had to return to the
employing establishment. The employing establishment response did not address the results of
the investigation mentioned by P.N., nor the basis of P.N.’s previous statement that she knew that
appellant was not supposed to return to the employing establishment where “this all started with
[C.G.] the manager.” In order to address whether appellant has established error or abuse, the
Board requires that the employing establishment produce a detailed statement describing the
investigation and findings regarding appellant’s interactions at the employing establishment.
The Board therefore finds that the case shall again be remanded to OWCP for further
development. On remand OWCP should obtain the additional evidence from the employing
establishment necessary for development of the present claim as set forth in the Board’s decisions.
If after carrying out such further development, it receives a full and satisfactory response
addressing each question raised, then OWCP shall issue a de novo decision on appellant’s
emotional condition claim evaluating the new factual evidence presented. If the employing
establishment fails to respond or fails to provide full and clear responses, OWCP shall accept her
account of events as factual and accept her allegations of error and abuse as compensable factors
of employment, proceeding with an evaluation of the medical evidence in its de novo decision.

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CONCLUSION
The Board finds that the case is not in posture for decision.20
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2019 and November 16, 2018
decisions of the Office of Workers’ Compensation Programs are set aside, and the case is remanded
to OWCP for further action consistent with this decision.
Issued: November 20, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

20

In light of the Board’s disposition of issue 1, issue 2 is rendered moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Southeastern, PA,
Employer
__________________________________________

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

Docket No. 13-1314
Issued: December 20, 2013

Case Submitted on the Record

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

JURISDICTION
On May 10, 2013 appellant, through counsel, appealed from the February 19, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than a one percent impairment of the left upper
extremity, for which she received a schedule award.
On appeal, appellant’s counsel contends that there was a conflict in medical evidence that
required OWCP to refer appellant for an impartial medical examination. He also contended that
preexisting impairments to the same body part must be included in the determination of a
schedule award.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 9, 1997 appellant, then a 31-year-old part-time flexible mail handler, filed
an occupational disease claim alleging that she suffered from a left shoulder strain caused by
repeatedly lifting heavy bags and parcels. OWCP accepted his claim for tendinitis to the left
shoulder.
On May 23, 2011 appellant filed a claim for a schedule award.
In a medical report dated November 22, 2010, Dr. Arthur Becan, an orthopedic surgeon,
listed appellant’s diagnoses as: (1) chronic post-traumatic rotator cuff tendinopathy left
shoulder; (2) left brachial plexopathy; (3) left ulnar neuropathy; (4) subacromial impingement
syndrome right shoulder; (5) right brachial plexopathy; (6) right radial neuropathy; (7) bulging
C5-6 and C6-7 discs; and (8) C6-7 radiculopathy. He, after applying the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides),
opined that she had a four percent impairment to her left upper extremity. Dr. Becan, noted that
appellant had left shoulder cuff tendinitis with residual loss which equaled a three percent
impairment under Table 15-5 of the A.M.A., Guides.2 He then found modifications to this figure
by noting a grade modifier for Functional History (GMFH) of 1, a grade modifier for Physical
Examination (GMPE) of 13 and a grade modifier for Clinical Studies (GMCS) of 1.4 After
applying the formula set forth in the A.M.A., Guides, he indicated that the grade modifiers
amounted to a net adjustment of 0 to appellant’s impairment rating, so appellant had a 3 percent
impairment based on her left shoulder tendinitis. He then found that appellant had a class 1 left
ulnar entrapment at her elbow and noted test findings of 1, functional history of 2 and physical
examination of 1; he averaged these findings to equal 1 and determined that pursuant to the
A.M.A., Guides, appellant had an impairment due to left ulnar entrapment of 1 percent.5 He then
combined these figures and determined that appellant’s left upper extremity impairment was 4
percent.
OWCP referred appellant’s claim to its medical adviser for review. In a July 3, 2012
report, OWCP’s medical adviser noted that pursuant to the A.M.A., Guides, Table 15-5, page
402, there are two categories for tendinitis. The first category describes history of painful injury
of occupational exposure without consistent objective findings and lists grade C, default value of
one percent with a range of zero to two percent. The second category within class 1 is for
residual loss of function with normal motion. The medical adviser noted that Dr. Becan noted
negative impingement sign, pain free range of motion and normal range of motion and it was
therefore unclear why Dr. Becan would conclude that there is a residual loss. He concluded that
the first category would be more appropriate in that there are residual symptoms without
consistent objective findings, and the grade C default value would be one percent with a range of
zero to two percent. Utilizing the adjustment grid of grade modifiers, the medical adviser found
2

A.M.A., Guides 402, Table 15-5.

3

Id. at 408, Table 15-8.

4

Id. at 410, Table 15-9.

5

Id. at 449, Table 15-23.

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grade modifiers of 1 each for GMPE, GMCS and GMFH.6 Therefore, he concluded that the net
adjustment was 0 and that he recommended a grade C for a one percent impairment rating for the
left upper extremity. The medical adviser did not include an impairment rating based on left
ulnar nerve entrapment as he determined that this was not a condition accepted by OWCP.
On July 25, 2012 OWCP issued a schedule award for a one percent impairment of the left
upper extremity.
By letter dated August 7, 2012, appellant, through counsel, requested a hearing before an
OWCP hearing representative. By letter dated November 29, 2012, OWCP requested that this be
changed to a request for review of the written record.
By decision dated February 19, 2013, OWCP’s hearing representative affirmed the
July 25, 2012 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to
calculate schedule awards.10 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.11 It is the claimant’s burden to establish that he or she sustained a
permanent impairment of a scheduled member or function as a result of an employment injury.12
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).13 Under the sixth edition of the A.M.A., Guides, for upper extremity
6

Supra note 3 at Table 15-8; pp. 410-11, Table 15-9; and p. 406, Table 15-6, respectively.

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

11

See FECA Bulletin No. 09-03 (issued March 15, 2009).

12

Tammy L. Meehan, 53 ECAB 229 (2001).

13

A.M.A., Guides, supra note 3 at 3, section 1.3, ICF: A Contemporary Model of Disablement.

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impairments the evaluator identifies the impairment class for the diagnosed condition (CDX),
which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.14 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.16
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee, the Secretary shall
appoint a third physician who shall make an examination.17
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for left shoulder tendinitis. Appellant filed a claim for
a schedule award, and in support of her claim, she submitted the report of Dr. Becan, who opined
that appellant had an impairment to her left upper extremity of four percent. Dr. Becan based his
calculations, in part, on Table 15-5 of the A.M.A., Guides.18 He found a default value of 3,
based on residual loss, functional, with normal motion. Dr. Becan determined that the grade
modifiers did not alter this determination, and accordingly determined that appellant should be
issued a three percent impairment based on tendinitis in her left shoulder. OWCP’s medical
adviser disagreed. He noted that Table 15-5 allows a default value of three in terms of residual
loss, functional with normal motion, but that he believed that appellant’s default was better
represented by the first paragraph of Table 15-5 discussing tendinitis which described tendinitis
with residuals symptoms without consistent objective findings which would yield a default value
of one.19 The medical adviser agreed with Dr. Becan that the grade modifiers would not alter
this value. Accordingly, the medical adviser and appellant’s physician disagreed as to the proper
criteria for determining the default impairment under Table 15-5 of the A.M.A., Guides. The
disagreement appears to revolve around whether appellant can properly be said to have a residual
loss for the left shoulder. Furthermore, Dr. Becan also gave appellant an impairment rating of
one percent based on left ulnar entrapment at her elbow. The medical adviser did not believe
that she was entitled to this amount as OWCP only accepted her claim for left shoulder
tendinitis. Therefore, Dr. Becan concluded that appellant had an impairment to her left upper
extremity of four percent and the medical adviser found an impairment rating of one percent.
14

Id. at 385-419.

15

Id. at 411.

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability, Chapter
2.808.6(d) (August 2002).
17

D.H., Docket No. 12-1857 (issued February 26, 2013).

18

A.M.A., Guides 402.

19

Id.

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The Board finds that a conflict in medical opinion exists between Dr. Becan and OWCP’s
medical adviser with regards to the best method by which to rate appellant’s left upper extremity
impairment. Because there is an unresolved conflict in medical opinion between these two
physicians, the case will be remanded to OWCP for referral to an impartial medical examiner.
After such further development of the case record as OWCP deems necessary, a de novo decision
shall be issued.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2013 is set aside, and the case is remanded for
further action consistent with this decision.
Issued: December 20, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 07-902
Issued: June 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 14, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs hearing representative decision dated November 13, 2006. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $44,005.64 for the period July 14, 2002 through December 27,
2003; and (2) whether the Office properly found that appellant was at fault in creating the
overpayment.
FACTUAL HISTORY
Appellant, a 40-year-old letter carrier, sustained an injury to his left wrist, right knee, left
ankle, head, back and neck on March 16, 1999 when his mail truck was involved in a vehicular
accident. He filed a claim for benefits, which the Office accepted for neck sprain, lumbar sprain,

osteoarthrosis of the left shoulder and contusion of the left forearm. The March 26, 1999 letter
informing appellant that his claim had been accepted contained the following statement:
“PENALTY.
Any person who knowingly makes any false statement,
misrepresentation, concealment of fact, or any other act of fraud to obtain
compensation as provided by the FECA [the Federal Employees’ Compensation
Act] or who knowingly accepts compensation to which he or she is not entitled is
subject to felony criminal prosecution and may, under appropriate U.S. Criminal
Code provisions, be punished by a fine of not more than $10,000.00 or
imprisonment for not more than five years or both.”
The Office paid appropriate compensation for temporary total disability.
In an investigative report dated April 4, 2003, the employing establishment indicated that
an investigation of appellant commenced for suspected compensation fraud. Appellant was
subsequently interviewed on May 28, 2003 by a Department of Labor special agent regarding his
continued receipt of compensation. During this interview, he stated to the agent that his
condition had not improved and that he had severe limitations impairing his ability to lift, bend,
walk, drive and exercise. The Office found on December 27, 2003 that this statement was in
direct contradiction to his observed activity level and that he willfully and knowingly made this
statement with the intent to facilitate his continued collection of total disability compensation.1
On August 29, 2004 appellant signed a plea agreement pleading guilty in U.S. District
Court to violation of Title 18 U.S.C. § 1920 of the Act for making false statements to obtain
compensation benefits. The agreement, to which both parties stipulated, indicated that he had
received more than $30,000.00 in disability benefits after his condition had improved to the
extent that he should have reported that improvement. The court ordered appellant to pay the
amount of $44,005.64 in restitution to the Department of Labor.
By decision dated October 20, 2004, the Office terminated appellant’s compensation
benefits effective September 4, 2004 on the grounds that he was convicted of violating Title 18
U.S.C. § 1920 of the Act for making false statements to obtain compensation benefits. The
Office found that this conviction precluded appellant from entitlement to further benefits under
the Act.
On August 23, 2005 the Office issued a preliminary determination that an overpayment
had occurred in the amount of $44,005.64 for the period July 14, 2002 through December 27,
2003 because appellant had been receiving compensation to which he was not entitled. The
Office relied on the amount stipulated in the August 29, 2004 plea agreement, $44,005.64, in
determining the total amount of overpayment.
The Office found that appellant was at fault in the matter because he admitted in U.S.
District Court that he was guilty of violating Title 18 U.S.C. § 1920 of the Act for making false
statements to obtain compensation benefits.
1

These findings by the Office were stipulated to by appellant and the U.S Attorney in the plea agreement he and
his attorney signed on August 29, 2004.

2

On September 22, 2005 appellant requested a hearing, which was held on
August 24, 2006. At the hearing, he admitted engaging in the activities at which he was
videotaped; i.e., putting things in his truck, carrying a duffle bag and moving clothes. Appellant
stated, however, that the video was misleading because he only engaged in these activities for a
few minutes, on different days and was therefore not engaged in continuous heavy labor as was
alleged. He asserted that the only reason he pleaded guilty at federal court to violating Title 18
U.S.C. § 1920 was because he feared having to serve a prison term.
In a decision dated November 13, 2006, an Office hearing representative affirmed and
finalized the preliminary determination regarding the overpayment of $44,005.64. The hearing
representative found that as a result of appellant’s conviction for violation of Title 18 U.S.C.
§ 1920 of the Act he was not entitled to benefits as of July 14, 2002, the date he was determined
to be engaging in activity he claimed he was unable to perform, through December 27, 2003, the
date the Office found that he willfully and knowingly made false statements to the Department of
Labor in order to continue receiving compensation for total disability. The hearing
representative further found that appellant was at fault in the creation of the overpayment. The
hearing representative stated that appellant’s admission of guilt constituted an acknowledgement
that he made false statements which he knew or should have known to be incorrect.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Act provides in pertinent part:
“The Secretary of Labor may require a partially disabled employee to report his
earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies. The employee shall include in
the affidavit or report the value of housing, board, lodging and other advantages
which are part of his earnings in employment or self-employment and which can
be estimated in money. An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
forfeits his right to compensation with respect to any period for which the
affidavit or report was required.”2
This section of the Act is further defined by regulations which provides:
“Affidavit or report by employee of employment and earnings.
“(c) Earnings from employment referred to in this section or elsewhere in this part
means gross earnings or wages before any deductions and includes the value of

2

5 U.S.C. § 8106(b).

3

subsistence, quarters, reimbursed expenses or any other advantages received in
kind as part of the wages or remuneration.”3
In analyzing whether an employee in receipt of compensation has earnings or wages the
Board, in Christine P. Burgess,4 noted wages are defined as:
“Every form of remuneration payable for a given period to an individual for
personal services, including salaries, commissions, vacation pay, dismissal wages,
bonuses and reasonable value of board, rent, housing, lodging, payments in kind,
tips and any other similar advantage received from the individual’s employer or
directly with respect to work for him.”5
ANALYSIS -- ISSUE 1
To determine that the overpayment of compensation occurred in this case, the Office
appears to have somehow found that appellant forfeited his right to monetary compensation from
July 14, 2002 through December 27, 2003 pursuant to 5 U.S.C. § 8106(b)(2).6 If that is the case,
the Office should have based its finding of forfeiture on a determination that he knowingly failed
to report “earnings” on Office CA-1032 forms. However, the Office found that appellant was
not entitled to compensation for that period solely on the basis of the U.S. District Court’s
finding that he violated Title 18 U.S.C. § 1920 and was liable in the amount of $44,005.64. The
Office provided no other reason for its finding. The Office found that appellant’s continuing
receipt of compensation for wage loss from July 14, 2002 through December 27, 2003 was
fraudulent in light of medical evidence indicating that he was not actually disabled during that
period. While it may be true that appellant was fraudulent in obtaining compensation, section
8106(b) of the Act requires that the fraud be in terms of earnings, not simply reporting the
physical condition. The decision of the Office provides on further legal basis for its decision
which the Board can evaluate.
The Board has previously held that to sustain a finding of forfeiture the Office has the
burden of proof to establish that appellant did, either with knowledge, consciously, willfully or
intentionally, fail to report earnings from employment or self-employment. To meet this burden
of proof, the Office is required to closely examine appellant’s activities and statements in
reporting employment earnings.7 The Office may meet this burden by appellant’s own
subsequent admission to the Office that he failed to report employment or earnings which he new
he should report. The Office may also meet this standard without an admission by appellant, if
he failed to fully and truthfully complete the EN1032 forms and the circumstances of the case
establish that he failed to fully and truthfully reveal the full extent of his employment activities
3

20 C.F.R. § 10.125(c).

4

43 ECAB 449 (1992).

5

Id. at 457, citing Black’s Law Dictionary, (Special Deluxe, 5th ed. 1979).

6

See Samuel J. Rosso, 28 ECAB 43, 46 (1976).

7

See Michael D. Mathews, 51 ECAB 247 (1999).

4

and earnings. The Office may also meet this burden as it establishes though the totality of the
factual circumstances that appellant’s certification in the EN1032 form that he was not employed
or self-employed, was false.8
While the Board has defined “earnings” broadly to include receipt of “other advantages”
such as free travel, lodging or food, pursuant to the Act, the Board has consistently held that the
Office must establish “earnings” before proceeding with the forfeiture penalty.9 The evidence in
this case, unlike that presented in Burgess, does not establish that appellant received any wages,
tips or other similar advantage from any employment activities, i.e., earnings, during the period
from July 14, 2002 through December 27, 2003. With no evidence of the receipt of earnings or
other remuneration from his efforts, the record provided no basis for invoking the penalty
provision of section 8106(b)(2).10
The Board finds that the Office improperly determined that appellant effectively forfeited
his right to compensation for the period July 14, 2002 through December 27, 2003. In the instant
case, the Office found that appellant had forfeited past earnings in the amount of $44,005.64 for
the period July 14, 2002 through December 27, 2003 despite the fact that there was no evidence
in the record that he had accumulated earnings in that amount. The Office has not established, as
required by section 8106(b), that appellant had “earnings” or other forms of remuneration from
his activities.
As the record fails to establish that appellant had any earnings or other form of
remuneration from his employment activities from July 14, 2002 through December 27, 2003,
the Board finds that the Office did not properly invoke the penalty provision under section
8106(b)(2). For this reason, the overpayment of compensation based on the application of the
forfeiture provision in this case must be set aside.
The November 13, 2006 decision of the Office is hereby reversed.

8

Terryl A. Geer, 51 ECAB 168 (1999).

9

In Burgess, the Board found that the record established that the employee received reimbursed expenses and
“other advantages” as part of wages or remuneration in the form of free travel, lodging, food and transportation costs
as a result of performing the duties of an escort for a travel service. Based on these reimbursed expenses and
payments in kind, the Board found that appellant had “earnings” as defined under section 8106(c) which she was
required to report to the Office.
10

See Cecil S. Ortagus, 38 ECAB 141 (1986) (setting aside a period of forfeiture as there was no evidence that
there were earnings); Jack Langley, 34 ECAB 1077 (1983) (noting the Office’s application of the forfeiture
provision of the Act is not proper where an employee has no outside earnings).

5

CONCLUSION
The Board reverses the November 13, 2006 Office determination that appellant received
an overpayment of compensation in the amount of $44,005.64 for the period July 14, 2002 to
December 27, 2003.11
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2006 decision of the Office of
Workers’ Compensation Programs’ hearing representative is reversed.
Issued: June 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

This decision is limited to the current record to the extent that section 8106(b) may have been the basis of the
Office’s determination. In the absence of absence of any more specific explanation in the Office decision, this
decision of the Board provides no opinion on whether appellant may have to reimburse compensation paid for the
period July 14, 2002 to December 27, 2003 pursuant to the U.S. District Court’s order.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
HOSPITAL PENSACOLA, FAMILY MEDICAL
CLINIC, Pensacola, FL, Employer
__________________________________________

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Appearances:
Ronald S. Webster, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0308
Issued: July 24, 2019

Case Submitted on the Record

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

JURISDICTION
On November 27, 2018 appellant, through counsel, filed a timely appeal from an
October 9, 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 October 9, 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 OWCP met its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016; and (2) whether appellant has met her burden proof
to establish continuing disability or residuals causally related to her accepted employment injuries
on or after August 29, 2016.
FACTUAL HISTORY
On January 24, 2011 appellant, then a 53-year-old licensed practical nurse, filed a
traumatic injury claim (Form CA-1) alleging that on January 19, 2011 she slipped and fell on an
unmarked wet floor outside her office door while in the performance of duty. She indicated that
the floor was saturated with floor stripper. Appellant alleged injuries to her neck, back, abdominal
muscles, right leg, and right foot. She returned to light-duty work on January 20, 2011.
By decision dated May 5, 2011, OWCP accepted appellant’s claim for sacroiliitis. Later,
on June 15, 2011, it expanded acceptance of appellant’s claim to include lumbar sprain.
On August 8, 2011 appellant’s attending physician released her to light-duty work four
hours per day. On October 28, 2011 appellant’s lumbar magnetic resonance imaging (MRI) scan
demonstrated superimposed annual tears at L1-2 and L4-5 as well as degenerative disc disease at
L3-4.
Beginning November 21, 2011, appellant filed claims for wage-loss compensation (Form
CA-7) due to leave without pay for four hours a day. OWCP authorized wage-loss compensation
benefits. On May 1, 2012 appellant’s physician found that she was totally disabled. On August 15,
2012 OWCP entered appellant on the periodic rolls for total disability.
On April 29, 2013 OWCP referred appellant, a statement of accepted facts (SOAF), and a
list of questions to Dr. Raymond Fletcher, a Board-certified orthopedic surgeon, for a second
opinion evaluation. Dr. Fletcher completed a report on May 20, 2013, noting appellant’s history
of injury and medical history. He determined that her lumbar sprain had resolved, but diagnosed
permanent aggravation of the lumbar spondylosis, and lumbar radiculopathy at L4-5. Dr. Fletcher
found appellant was unable to return to her date-of-injury position as a licensed practical nurse due
to her current work-related lumbar condition and the need for pain medication. In a June 5, 2013
addendum, he opined that she had lumbar residuals from the January 19, 2011 work injury and
that she was currently totally disabled due to the need for pain medication.
On October 3, 2013 OWCP expanded acceptance of appellant’s January 19, 2011
traumatic injury claim to include urinary complications, permanent aggravation of lumbar
spondylosis, and lumbar radiculopathy.
On August 18, 2014 OWCP referred appellant, an updated SOAF, and a list of questions
to Dr. Richard C. Smith, a Board-certified orthopedic surgeon, for a second opinion evaluation. In
a September 11, 2014 note, Dr. Smith performed a physical examination and diagnosed lumbar
sprain, sacroiliitis, lumbar radiculopathy, and urinary complication. He completed a report on
September 15, 2014 and listed his objective findings as tenderness and limited range of motion.
Dr. Smith found that appellant’s aggravation of preexisting lumbar spondylosis required further
medical treatment and caused disability for work. He found that appellant was not totally disabled,
2

but could not return to her date-of-injury position as a licensed practical nurse and suggested a
functional capacity evaluation (FCE) to assess permanent restrictions. On October 16, 2014
appellant underwent an FCE which demonstrated that she could work at the sedentary level with
maximal lifting and carrying up to 10 pounds, frequent lifting and carrying objects of negligible
weight, sitting primarily with brief and intermittent periods of standing and or walking.
In a letter dated July 23, 2015, OWCP authorized Dr. Jeff Buchalter, Board-certified in
pain management, to examine appellant due to her request for a change of physicians. In his
August 26, 2015 report, Dr. Buchalter noted appellant’s history of injury on January 19, 2011 and
reviewed her diagnosed studies. He diagnosed L1-2 and L4-5 annular tears, L4-5 disc bulge,
history of sacroiliitis, history of lumbar radiculopathy, and permanent aggravation of lumbar
spondylosis. Dr. Buchalter found that she could perform sedentary work. On November 4, 2015
he diagnosed chronic pain syndrome, sacroiliitis, spondylitis with radiculopathy, disc degeneration
of the lumbar region, muscle spasm, and myalgia. On November 9 and 30, 2016 Dr. Fletcher
performed a right lumbar facet injection. On February 24, 2016 appellant underwent a lumbar
epidural steroid injection at L5-S1. In a March 23, 2016 note, Dr. Buchalter reported that appellant
received no improvement following her last injection. He prescribed chiropractic treatment and
massage to improve her pain level.
On May 16, 2016 OWCP referred appellant, a SOAF, the medical record, and a list of
questions to Dr. George Andrew Corbett, a Board-certified orthopedic surgeon, for a second
opinion evaluation.4 In his May 31, 2016 report, Dr. Corbett noted his review of the SOAF,
appellant’s history of injury, and her diagnostic test results. He performed a physical examination
and found brisk reflexes to both the patellar tendon and heel cord. Dr. Corbett found no obvious
degenerative joint disease or degenerative disc disease on x-rays. He diagnosed low back pain,
undefined etiology. In response to OWCP’s questions, Dr. Corbett also diagnosed mild residual
right sacroiliitis, but opined that the original contusion had resolved. He found that based on his
examination, appellant had no objective findings to support ongoing disability. Dr. Corbett agreed
that appellant’s work capacity was commensurate with her October 16, 2014 FCE, i.e., sedentary
work, lifting and carrying up to 10 pounds, frequent lifting and carrying objects of negligible
weight, sitting primarily with brief and intermittent periods of standing and or walking. He also
opined that appellant should be able to continue to work in her date-of-injury position as a licensed
practical nurse based on his examination.
In a July 14, 2016 note, Dr. Buchalter noted appellant’s history of injury and ongoing
severe back pain. He reported L1-2 and L4-5 annular tears with probable discogenic pain,
myofascial pain, and narcotic dependence. Dr. Buchalter diagnosed chronic pain syndrome,
sacroiliitis, spondylitis, panniculitis, muscle spasm and myalgia. He performed trigger point
injections.
On July 21, 2016 OWCP proposed to terminate appellant’s wage-loss compensation based
on Dr. Corbett’s opinion. It afforded appellant 30 days to respond if she disagreed with the
proposed termination. Appellant responded on August 5, 2016 and disagreed with the proposed
termination. She alleged that her continuing back symptoms prevented her from working.
Appellant resubmitted test results and a date-of-injury position description, which indicated that
4

The SOAF included a description of the physical duties of appellant’s date-of-injury position listed as extensive
walking, standing, stretching, lifting, and bending in caring for patients, the ability to physically control or defend
against emotionally ill or confused patients.

3

(extensive walking, standing, stretching, lifting, and bending in caring for patients was required,
as was the ability to physically control or defend against emotionally ill or confused patients.
By decision dated August 29, 2016, OWCP terminated appellant’s wage-loss
compensation benefits effective that date based on Dr. Corbett’s opinion that she could return to
her date-of-injury job. On September 19, 2016 appellant, through counsel, requested an oral
hearing, in the form of a telephonic hearing, before an OWCP hearing representative.
In a September 13, 2016 note, Dr. Buchalter reviewed appellant’s MRI scan and found
multilevel lumbar discogenic changes. He performed a discogram and found disc displacement,
disc degeneration, radiculopathy, and low back pain. Appellant also provided several notes from
Audrey Sisney, a registered nurse practitioner.
On April 5, 2017 appellant testified before an OWCP hearing representative. She noted
that she had not worked since “May of 2011.” Appellant described her symptoms of urinary
incontinence, constant back spasms, and tingling down her right leg. She noted that she continued
to receive treatment from Dr. Buchalter and Ms. Sisney. Appellant asserted that she could not
currently perform her date-of-injury position.
On April 24, 2017 appellant resubmitted Dr. Buchalter’s July 14 and September 13, 2016
notes and provided a September 4, 2013 report regarding her psychiatric condition as well as notes
from Ms. Sisney. On May 3, 2017 she provided an April 28, 2017 MRI scan which demonstrated
L1-2 paracentral disc protrusion, mild diffuse disc bulges at L3-4 and L4-5, and minimal annular
bulging at L5-S1. Appellant also provided physical therapy notes from Kendra Keyes Metcalfe, a
physical therapist.
By decision dated May 16, 2017, OWCP’s hearing representative affirmed OWCP’s
August 29, 2016 termination of wage-loss compensation. She determined that Dr. Corbett’s
reports constituted the weight of the medical opinion evidence.
In a September 8, 2017 note, Dr. Buchalter examined appellant due to right back and
buttock pain. He found right-sided paraspinal spasms. Dr. Buchalter diagnosed intervertebral disc
degeneration and lumbar radiculopathy. Appellant submitted an October 6, 2017 note from
Ms. Sisney. On December 15, 2017 Dr. Buchalter noted that appellant received over 50 percent
relief from her most recent lumbar epidural steroid injection. He continued to diagnose lumbar
radiculopathy and performed an additional lumbar epidural steroid injection. On January 10, 2018
Dr. Buchalter diagnosed multilevel lumbar spondylosis and annular tears due to her 2011
employment injury.
On March 7 and May 16, 2018 appellant, through counsel, requested reconsideration of the
May 16, 2017 decision. Counsel contented that Dr. Corbett’s report was insufficiently detailed
and well reasoned to constitute the weight of medical opinion evidence.
In a report dated February 19, 2018, Dr. Buchalter opined that appellant’s work-related low
back injuries continued to require treatment including injective therapy. He further opined that
appellant’s FCE established her work restrictions. On May 14, 2018 Dr. Buchalter diagnosed disc
degeneration and radiculopathy lumbar region. He provided an injection and medications.
Appellant also submitted March 26, and April 27, 2018 notes from Donna L. Garrett, a certified
registered nurse practitioner.
4

By decision dated May 31, 2018, OWCP denied modification of the May 16, 2017
decision. It found that Dr. Corbett’s reports were entitled to the weight of the medical evidence
and established that appellant had no disability causally related to her accepted January 19, 2011
employment injuries.
In a note dated August 1, 2018, Dr. Buchalter diagnosed lumbar spondylosis with
degenerative disc changes and disc protrusion. He indicated that there was no change in
appellant’s work restrictions. On June 7, 2018 Ms. Garrett completed a treatment note.
On September 13, 2018 appellant, through counsel, requested reconsideration of the
May 31, 2018 merit decision. He alleged that there was a conflict of medical opinion evidence
requiring an impartial medical evaluation.
In a September 10, 2018 note, Dr. Buchalter diagnosed disc degeneration, lumbar
radiculopathy, spondylosis, and sacrococcygeal disorders. He performed a caudal epidural steroid
injection.
By decision dated October 9, 2018, OWCP denied modification of the May 31, 2018 merit
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.5 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.6 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016.
OWCP accepted appellant’s January 19, 2011 employment injury for sacroiliitis, lumbar
strain, urinary complications, permanent aggravation of lumbar spondylosis, and lumbar
radiculopathy. By decision dated August 29, 2016, OWCP terminated wage-loss compensation
benefits for the accepted back conditions, finding that the weight of the medical evidence rested
with the second opinion physician, Dr. Corbett.
In his May 31, 2016 report, Dr. Corbett noted reviewing the SOAF, which included the
physical requirements of her date-of-injury position as a licensed practical nurse, appellant’s
history of injury, and her medical test results. Dr. Corbett diagnosed low back pain, undefined
5
R.P., Docket No. 17-1133 (issued January 18, 2018); D.A., Docket No. 18-0476 (issued October 10, 2018); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
6

R.P., id; D.A., id.; I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

7

R.P., supra note 5; D.A., supra note 5; J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

5

etiology. In response to OWCP’s questions, he also diagnosed mild residual right sacroiliitis, but
opined that the original contusion had resolved. Dr. Corbett found that based on his examination,
appellant had no objective findings to support ongoing disability. He noted that he agreed with
appellant’s work capacity as detailed in her October 16, 2014 FCE, i.e., sedentary work, including
lifting no more than 10 pounds. Dr. Corbett also determined that appellant could accommodate
those work restrictions and return to her date-of-injury position as a licensed practical nurse based
on his examination.
The Board finds that Dr. Corbett did not provide any medical reasoning or explanation of
how he could find both that appellant could only work in accordance with her FCE restrictions and
at the same time could return to her date-of-injury position as a licensed practical nurse. The FCE
provided that appellant had a lifting restriction of 10 pounds and could perform a sedentary
position primarily sitting with brief and intermittent periods of standing and or walking.
Alternatively, appellant’s date-of-injury position, a licensed practical nurse, required extensive
walking, standing, stretching, lifting, and bending in caring for patients, as well as the ability to
physically control or defend against emotionally ill or confused patients.8
The Board finds that Dr. Corbett’s opinions on disability are inconsistent and conclusory
in nature and lack sufficient medical rationale to support the termination of appellant’s wage-loss
compensation benefits.9 Dr. Corbett offered no supporting medical rationale to support either of
his opinions regarding appellant’s ability to work. Due to the internal inconsistencies in
Dr. Corbett’s report, the Board cannot determine whether it was his considered opinion that
appellant could return to her date-of-injury position as a licensed practical nurse.10 Because his
second opinion report failed to provide medical rationale in support of his divergent conclusions,
Dr. Corbett’s opinion is of diminished probative value and is insufficient to OWCP to meet its
burden of proof to justify the termination of appellant’s wage-loss compensation benefits.11
The Board thus finds that OWCP has not met its burden of proof to establish that appellant
no longer had residuals or disability due to the accepted conditions.12
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation, effective August 29, 2016.

8

S.B., Docket No. 18-0700 (issued January 9, 2019).

9

Id.

10

D.A., supra note 5; S.W., Docket No. 18-0005 (issued May 24, 2018).

11

S.B., supra note 8; A.R., Docket No. 12-0443 (issued October 9, 2012); see also P.F., Docket No. 13-0728 (issued
September 9, 2014); T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report consisting solely of
conclusory statements without supporting rationale is of little probative value).
12

In light of the disposition of the first issue, the second issue regarding appellant’s continuing residuals or disability
is rendered moot. M.R., Docket No. 17-0634 (issued July 24, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2018 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 24, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERIVICE, POST OFFICE,
Manassas, VA, Employer
__________________________________________

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

Docket No. 09-281
Issued: July 21, 2009

Case Submitted on the Record

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

JURISDICTION
On November 7, 2008 appellant filed a timely appeal from a July 28, 2008 merit decision
of the Office of Workers’ Compensation Programs denying his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
bilateral inguinal hernias in the performance of duty.
FACTUAL HISTORY
On March 28, 2008 appellant, a 56-year-old postal mail handler, filed an occupational
disease claim (Form CA-2) for an inguinal hernia. He attributed his condition to the lifting and
pulling tasks he performed in the performance of his federal employment. Appellant became
aware of his condition and its relation to his federal employment on March 7, 2008. He was not
precisely sure when the injury occurred but stated that it could have occurred between 1992 and

2008. Appellant reported that on March 6, 2008 he woke up to go to work when he experienced
pain in his side. He consulted a physician who diagnosed the hernias.
In support of his claim, appellant submitted two illegible medical notes, both of which
were dated March 7, 2008.
The employing establishment controverted appellant’s claim on the grounds that he had
not provided medical documentation supporting his claim.
Appellant submitted no additional evidence in support of his claim and by letter dated
April 10, 2008, the Office notified him that the evidence submitted was insufficient to support
his claim. The Office provided a list of questions as well as a description of the type of evidence
he needed to submit.
Responding to the Office’s letter, appellant submitted a March 31, 2008 medical report
signed by Dr. John Williams, a Board-certified surgeon, who noted appellant’s history that he
experienced groin pain while lifting heavy objects at work. Dr. Williams diagnosed appellant
with bilateral inguinal hernias, for which he recommended laparoscopic bilateral inguinal hernia
repair with mesh.
Appellant also submitted a hand-written response to the Office’s April 10, 2008 letter.
He reported that he had been employed as a mail handler since 1992 and that his condition
developed over time. Appellant asserted that he experienced ongoing symptoms of pain and
discomfort but was unaware of its cause. He identified the continuous lifting of heavy bags and
boxes as well as the continuous pushing of heavy equipment as employment factors contributing
to his injury.
Appellant submitted no additional evidence in support of his claim and by decision dated
July 28, 2008, the Office, while accepting that he was diagnosed with a hernia following a lifting
event at work, denied his claim because the evidence of record did not demonstrate that the
claimed medical condition was related to the established work-related events.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.1
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
1

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

2

compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.2
ANALYSIS
Appellant claimed that he sustained an inguinal hernia in the performance of duty and
identified lifting heavy bags and boxes as well as pushing heavy equipment as factors of his
employment that caused his bilateral inguinal hernias. It is his burden to submit rationalized
medical evidence establishing that the identified factors of employment caused or aggravated a
diagnosed medical condition. The Board finds that the evidence of record insufficient to
accomplish this task as it lacks a rationalized medical opinion establishing that the identified
employment factors caused or aggravated appellant’s bilateral inguinal hernias.
The relevant medical evidence of record consists of a March 31, 2008 medical report
signed by Dr. Williams. Although Dr. Williams diagnosed appellant with bilateral inguinal
hernias, he proffered no opinion on the causal relationship between his hernia and the identified
factors of his federal employment. The Board has held that medical reports lacking an opinion
on causal relationship are of limited probative value.3 As Dr. Williams’ March 31, 2008 medical
report lacks an opinion on causal relationship, it is of limited probative value and insufficient to
establish that appellant sustained bilateral inguinal hernias in the performance of duty.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.4
As there is no other probative evidence of record, other than appellant’s own statements,5
he has not met his burden of proof to establish that he sustained bilateral inguinal hernias in the
performance of duty.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained bilateral inguinal hernias in the performance of duty
2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
3

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB
332 (2001).
4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s self-serving declarations do not, in the opinion of
the Board, constitute evidence of a sufficiently substantial nature).

3

ORDER
IT IS HEREBY ORDERED THAT the July 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 21, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, O’HARE
INTERNATIONAL AIRPORT, Chicago, IL,
Employer
__________________________________________

)
)
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)
)
)
)
)
)
)
)

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

Docket No. 11-377
Issued: September 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2010 appellant filed a timely appeal from a November 2, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
cerebellar stroke in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 11, 2010, appellant, then a 60-year-old maintenance technician, filed a
traumatic injury claim alleging that on June 7, 2010 he sustained a cerebellar stroke in the
performance of duty. As a result of the stroke, he was unable to walk without support and
experienced chronic dizziness, difficulty in balance and coordination, vertigo, nausea and
vomiting. Appellant stopped work on June 7, 2010.
On August 20, 2010 OWCP advised appellant that the evidence was insufficient to
support his claim. It requested that he provide a detailed, narrative medical report from his
physician, which included a history of the injury, examination and treatments received, results of
any examination and tests, medical diagnosis and his physician’s opinion, supported by medical
rationale, explaining how the June 7, 2010 employment incident caused or aggravated the
alleged injury. OWCP also requested additional factual evidence describing where appellant was
and what he was doing at the time the alleged injury occurred, any similar disabilities or
symptoms he experienced before the injury, and the factors of his employment that caused his
alleged condition.
In a July 15, 2010 statement, appellant explained that he had a cerebellar stroke on
Monday, June 7, 2010. At approximately 3:00 a.m., he suddenly experienced headaches and
dizziness and vomited in the bathroom.2 Appellant was able to complete his work shift, but on
his way home he stopped multiple times to wait for his dizziness and headaches to resolve.
Around 11:00 a.m., he began to suffer from dizziness, headaches and vomiting again. At 7:00
p.m. that night, his wife drove him to work, but on the way to work his symptoms returned.
Upon arrival at the employing establishment, he informed Wallace Hodges that he would not be
working that night because he felt ill. The next day, appellant went to the emergency room and
was diagnosed with vertigo. He was discharged on Wednesday and did not work Thursday or
Friday. On Saturday, the symptoms worsened and appellant returned to the emergency room
where he was again diagnosed with vertigo. On Sunday, he underwent a magnetic resonance
imaging (MRI) scan of the brain, which confirmed that he suffered a left-sided cerebellar stroke
of the vertebral artery with dissection of the artery. Appellant was evaluated by Dr. Reuben R.
Weisz, a Board-certified neurologist, and his primary physician, Dr. Norbeto J. Martinez, a
Board-certified internist.
Appellant stated that for the prior three months, he experienced an increased amount of
pressure and stress at work due to demand for coverage at the terminal exits and an increased
workload. Because of his dedication as a maintenance technician appellant provided coverage of
various machines such as itemizers, bahringers, sabres, bottle liquid scanners (BAS), and walkthrus. Appellant believed that this increased tension in his life caused chronic headaches,
increased his blood pressure, stress and ultimately caused his stroke.
In a June 21, 2010 discharge report, Dr. Martinez stated that appellant was admitted to
the hospital, underwent a computerized tomography (CT) scan, carotid Doppler, and cardiology
evaluation and was diagnosed with vertigo. Appellant continued to experience vertigo attacks
2

Appellant’s tour of duty was listed as 8:30 p.m. to 5:00 a.m.

2

after being discharged and was admitted into another emergency room. An MRI scan of his
brain confirmed that he sustained a cerebellar ischemic infarction. Dr. Martinez diagnosed acute
ischemic infarction, vertigo secondary, status post coronary artery bypass graft and insulindependent diabetes mellitus.
In a July 20, 2010 attending physician’s report, Dr. Martinez, stated that on June 7, 2010
appellant experienced increased vertigo with vomiting. An MRI scan confirmed that he suffered
an infarction of the cerebellum with vertigo. Dr. Martinez noted it was undetermined whether
appellant’s medical condition was caused or aggravated by an employment activity. He listed
the dates of treatment and authorized appellant to return to work with restrictions.
Appellant also submitted medical reports by Dr. Weisz.
In a June 14, 2010
electroencephalograph (EEG) report, he noted that appellant suffered a left cerebellar infarct and
ataxia and appeared confused and disoriented. Appellant’s rapid rhythms were symmetrical and
his EEG asleep was normal. Dr. Weisz also submitted a June 14, 2010 consultation report.
In a July 29, 2010 letter, Dr. Weisz stated that appellant had improved significantly and
no longer experienced ataxia. His coordination and gait had improved such that he was able to
walk 10 laps in the park without falling. Appellant denied any headaches, chest pain, shortness
of breath and palpitations. Dr. Weisz observed that his sphincter function was preserved, his
bowel movements were intact, his appetite was good and his weight was stable. On examination,
appellant did not exhibit any bruits over the head or neck with no meningeal signs. His
cardiopulmonary examination was essentially noncontributory. Dr. Weisz did not observe any
edema of the lower extremities, peripheral pulses or skin stigmata. His neurological examination
revealed an intact mental status, cranial nerves, motor examination, reflexes, sensory
examination, coordination and gait.
In a July 29, 2010 duty status report, Dr. Weisz noted that appellant sustained a stroke on
June 7, 2010 and indicated that he was unable to return to work. In a September 8, 2010 duty
status report, he noted that appellant sustained a stroke on June 7, 2010 and advised appellant to
return to work on September 8, 2010 with restrictions.
In an undated attending physician’s report, Dr. Weisz noted appellant suffered from
vertigo, nausea, and vomiting and diagnosed cerebrovascular accident (CVA) stroke. He listed
the dates of his treatment and authorized appellant to resume light work on September 8, 2010.
Dr. Weisz also checked a box marked “No” in response to a question about whether appellant’s
condition was caused or aggravated by his employment.
In a September 2, 2010 physical therapy report, appellant stated that he no longer
experienced dizziness during his daily activities, gait, or while riding in the car. The physical
therapist reported that appellant demonstrated significant improvement of his vertigo, balance,
and gait deficits.
In a September 1, 2010 letter, the employing establishment requested that appellant’s
traumatic injury claim be adjudicated as an occupational disease claim based on the information
provided. In a September 1, 2010 e-mail, Douglas Ruhde, a maintenance manager, stated that
appellant never informed him prior to June 7, 2010 that his work was causing him stress or

3

affecting his health. He also did not learn that appellant was hospitalized until June 17, 2010 and
that he claimed his condition was work related until approximately July 12, 2010.
In a decision dated November 2, 2010, OWCP denied appellant’s claim finding
insufficient medical evidence to establish that his stroke was causally related to the June 7, 2010
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
specified employment factors or incident.7 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.8 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144, issued
July 27, 2010).
6

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

4

accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.9
ANALYSIS
On June 12, 2006 appellant filed a traumatic injury claim alleging that on June 7, 2010 he
sustained a stroke in the performance of duty. He indicated that his condition was a traumatic
injury by filing a Form CA-1, but he described employment factors that occurred over a threemonth time span in a subsequent narrative statement. The Board will treat this claim as an
occupational disease claim because appellant attributed his condition over a period longer than a
single workday or shift.10
The Board finds that the medical evidence of record is insufficient to establish that
appellant’s acute infarction or vertigo were causally related to his employment activities as a
maintenance technician.
Appellant explained that for three months prior to his stroke his employment duties as a
maintenance technician caused additional stress due to an increased workload and demands for
additional coverage of terminal exits. He submitted various medical reports from Dr. Martinez
and Dr. Weisz in support of his claim. In a July 21, 2010 discharge report, Dr. Martinez stated
that it was “undetermined” whether appellant’s medical condition was caused or aggravated by
his employment. In an undated attending physician’s report, Dr. Weisz checked “No” that
appellant’s stroke was not caused or aggravated by an employment activity. The medical reports
of record do not support that appellant’s cerebellar condition was causally related to the factors
of his federal employment. Causal relationship is a medical issue and must be resolved by
probative medical evidence.11 The medical evidence does not support the issue of causal
relationship. Neither the reports of Dr. Martinez nor of Dr. Weisz provided any opinion
attributing the cause of appellant’s condition to his federal employment; rather, the physicians
noted that appellant’s condition was not a result of his employment. The evidence is insufficient
to establish appellant’s claim.12
Although appellant contends that the increased pressure and stress at work caused his
stroke, the Board has held that a claimant’s belief that his condition was caused by his
employment is insufficient to establish causal relationship.13 As noted, it is appellant’s burden to

9

Patricia J. Bolleter, 40 ECAB 373 (1988).

10

OWCP regulations 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. Such condition must be caused by external force,
including stress or strain, which is identifiable as to the time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee). An occupational disease or illness is defined as a condition produced by the
work environment over a period longer than a single workday or shift. Id. at § 10.5(q).
11

D.I., 59 ECAB 158 (2007); Margaret Carvello, 54 ECAB 498 (2003).

12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Sharon Yonak, 49 ECAB 250 (1997).

5

establish his claim by the weight of the reliable, probative and substantial evidence.14 OWCP
advised appellant in its August 20, 2010 letter that a comprehensive medical report explaining
how his stroke was caused or aggravated by his employment was needed to support his claim.
He failed to provide such probative medical evidence. Thus, appellant did not meet his burden
of proof to establish that he sustained a cerebellar stroke in the performance of duty.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a cerebellar stroke in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: September 13, 2011
Washington, DC

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

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

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

14

Joseph M. Whelan, supra note 3.

6