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

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Appearances:
Daniel Loznak, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-828
Issued: November 13, 2009

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 5, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated May 23, 2008 and a nonmerit decision dated
December 23, 2008. 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 appellant has met his burden of proof in establishing that he
sustained a left shoulder condition causally related his accepted December 17, 2003 employment
injury; and (2) whether appellant sustained a recurrence of disability as of March 15, 2005
causally related to his accepted December 17, 2003 employment injury; and (3) whether the
Office abused its discretion by denying his authorization for March 15, 2005 left shoulder
surgery.
FACTUAL HISTORY
This is the second appeal before the Board. On December 18, 2003 appellant, then a 75year-old letter carrier, filed a claim for benefits, alleging that he injured his right shoulder, right
arm and right hand on December 17, 2003. In a report issued on the date of the alleged incident,

Dr. Donald Ramsey, an osteopath, indicated that appellant fell with his right hand extended and
had right shoulder and wrist pain.
The Office accepted the claim for right shoulder and right wrist contusion. In subsequent
reports, however, appellant submitted medical evidence which indicated that he may have also
injured his left shoulder as a result of the December 17, 2003 fall. In reports dated February 24
and July 2, 2004, Dr. Daniel Wilcox, a specialist in orthopedic surgery, noted that appellant
experienced pain in his left shoulder in addition to symptoms in his right shoulder.1 He stated in
his February 24, 2004 report that left shoulder testing indicated possible glenohumeral anterior
capsular disruption, rotator cuff tendinitis and increased glenohumeral joint laxity of the left
shoulder; a July 23, 2004 magnetic resonance imaging (MRI) scan of the left shoulder showed a
partial tear of the left rotator cuff. In a December 10, 2004 report, Dr. Wilcox diagnosed
bilateral shoulder degenerative arthritis, most likely exacerbated by his December 17, 2003 work
incident, which in addition produced tears in both rotator cuffs. In a report dated December 14,
2004, Dr. Roderick Baltzer, an osteopath, stated that in the course of appellant’s fall he injured
both shoulders, the right initially worse than the left; he stated, however, that the left shoulder
had progressed to the point that surgery was contemplated.
In order to determine whether appellant had sustained an injury to his left shoulder as a
result of the December 17, 2003 work incident, the Office referred appellant, a statement of
accepted facts and medical records to Dr. Bruce Abrams, an orthopedic surgeon, for a second
opinion examination. Dr. Abrams stated based on his examination that, although appellant’s left
shoulder showed extensive degenerative changes which preexisted the December 17, 2003 fall, it
was unlikely that a fall on the right side as described would have caused injury to or aggravated
the preexisting condition of his left shoulder.
Appellant had left shoulder surgery on March 15, 2005 and filed a Form CA-7 claim for
compensation commencing March 15, 2005.
The Office determined that a conflict in the medical evidence existed and referred
appellant, together with a statement of accepted facts and medical records, to Dr. Norman Pollak,
a Board-certified orthopedic surgeon for an impartial medical examination. In a report dated
May 20, 2005, Dr. Pollak reviewed the medical history and stated that there was no mention of
left shoulder symptoms until July 2, 2004. He opined that there was no documentation in the
medical records that a left shoulder injury occurred on December 17, 2003. By decision dated
July 20, 2005, the Office denied appellant’s claim for compensation for a left shoulder injury.
By decision dated February 8, 2006, an Office hearing representative affirmed the July 20, 2005
decision. In a January 26, 2007 decision,2 the Board set aside the Office’s July 20, 2005 and
February 8, 2006 decisions. The Board found that the Office erred in relying on Dr. Pollak’s
referee opinion, which it found was not sufficient to resolve the conflict in the medical evidence.
The Board noted that Dr. Pollak had stated that there was no mention of left shoulder symptoms
in the record until July 2, 2004, despite the fact that the case file contained Dr. Wilcox’s
February 24, 2004 report stating that left shoulder testing indicated possible left glenohumeral
anterior capsular disruption, left rotator cuff tendinitis and increased left glenohumeral joint
1

On February 3, 2004 Dr. Wilcox performed rotator repair surgery on appellant’s right shoulder.

2

Docket No. 06-824 (issued January 26, 2007).

2

laxity. The Board found that this statement by Dr. Pollak indicated that it was unclear as to
whether he had a complete and accurate background on which to base his opinion. The Board
therefore remanded to the Office to obtain a new impartial medical evaluation regarding whether
appellant sustained a left shoulder injury resulting from the December 17, 2003 work incident,
based on a complete review of the relevant evidence of record. The complete facts of this case
are set forth in the Board’s January 26, 2007 decision and are herein incorporated by reference.
In a report dated April 13, 2007, Dr. David Frye, an osteopath and the new referee
medical specialist, reviewed the medical record, stated findings on examination and noted
appellant’s complaints of left shoulder pain. He opined that appellant’s left shoulder problems
were not causally related to the December 17, 2003 work injury. Dr. Frye stated that there was
no mention of any injury to the left shoulder in the medical report issued on December 17, 2003,
the date appellant fell and injured his right shoulder. He related that appellant indicated that he
subsequently began treatment with Dr. Wilcox and told him that he had left shoulder complaints
in addition to his right shoulder issues; Dr. Wilcox diagnosed a torn left rotator cuff and
performed left shoulder rotator cuff surgery on March 15, 2005. Dr. Frye noted that
Dr. Wilcox’s medical records were incomplete in that his account of appellant’s treatment began
on July 2, 2004 and concluded with an examination dated March 10, 2006. He stated that based
on his review of the medical record there was indication of left shoulder complaints for several
months after the December 17, 2003 work incident. Dr. Frye further stated that the type of left
shoulder pathology Dr. Wilcox addressed is degenerative and consistent with appellant’s age.
He indicated, however, that if additional medical records from Drs. Baltzer and Dr. Wilcox were
made available he would review and evaluate them.
By letter dated June 20, 2007, the Office asked Dr. Frye to submit an addendum report to
clarify his opinion that appellant’s left shoulder condition was not causally related to the
December 17, 2003 work injury. It specifically asked Dr. Frye to review Dr. Wilcox’s
February 24, 2004 report and indicate more definitively whether appellant sustained a workrelated left shoulder injury as a result of the December 17, 2003 work injury.
In a report dated July 16, 2007, which the Office did not receive until August 8, 2007,
Dr. Frye indicated that, contrary to the Office’s assertion in its June 20, 2007 letter, he had not
received a copy of Dr. Wilcox’s February 24, 2004 report. He reiterated his suggestion that all
of the records from Drs. Wilcox and Baltzer be made available for review. In addition, Dr. Frye
restated his opinion that appellant’s left shoulder condition was not the result of the
December 16, 2003 event. He noted that when appellant presented himself to the hospital on
December 17, 2003 he did not complain of left shoulder or left upper extremity pain; in addition,
there was no record of any observed trauma to the left upper extremity such as an abrasion or
discoloration. Dr. Frye stated that the findings of osteoarthritis, biceps tendon pathology, loss of
articular cartilage and rotator cuff tear in the left shoulder shown by x-ray and MRI scan results
in July 2004 were not the kind of changes that occurred in seven months, the period of time since
the December 2003 work injury. He advised that these were changes that took years to develop.
Dr. Frye further advised that these findings did not constitute problems which occurred as a
result of a slip and fall such that appellant experienced in December 2003. He opined that there
were no changes to suggest that the left shoulder joint structures or soft tissues were ever
affected by the December 17, 2003 work incident.
In a July 12, 2007 memorandum, the Office indicated that it faxed a copy of Dr. Wilcox’s
February 24, 2004 report to Dr. Frye. In a telephone call dated July 17, 2007, Dr. Frye stated
3

that he had reviewed Dr. Wilcox’s February 24, 2004 report and had not changed his previously
issued findings and opinions. However, he did not indicate that he had reviewed Dr. Wilcox’s
February 2004 report in either of his reports.
By decision dated August 2, 2007, the Office denied appellant’s claim for a left shoulder
injury causally related to the accepted December 17, 2003 employment injury, finding that
Dr. Frye’s referee opinion represented the weight of the medical evidence. It also denied his
claim for a recurrence of disability as of March 15, 2005 causally related to the accepted
December 17, 2003 employment injury. The Office found that appellant stopped work on
March 15, 2005 to undergo surgery for his left shoulder, a condition unrelated to the accepted
December 2003 work injury.
On August 27, 2007 appellant requested an oral hearing, which was held on
March 12, 2008. At the hearing, appellant’s attorney stated that appellant had returned to light
duty following right shoulder surgery in 2004 but was unable to perform the duties of the
modified job. Counsel and appellant stated that, when he attempted to return to duty following
his March 2005 surgery to the left shoulder, the employing establishment told him there were no
positions available. Appellant filed a grievance, the result of which was his separation from the
employing establishment effective May 4, 2007.
By decision dated May 23, 2008, an Office hearing representative affirmed the August 2,
2007 decision. She considered Dr. Frye’s July 16, 2007 addendum report which restated his
opinion that appellant’s left shoulder injury was not causally related to the December 17, 2003
employment injury; this report was not contained in the record at the time the Office issued its
August 2, 2007 decision. The hearing representative noted that Dr. Frye did not review
Dr. Wilcox’s February 24, 2004 report, as the Board had instructed in its January 26, 2007
decision. She stated, however, that this report was entitled to little weight because it was
actually a physical therapy evaluation dated February 24, 2004, signed by Dr. Wilcox on
March 5, 2004, which contained no indication that Dr. Wilcox participated in this evaluation.3
The hearing representative therefore affirmed the Office’s previous finding that Dr. Frye’s
opinion negating a causal connection between the claimed left shoulder injury and the
December 2003 work injury represented the weight of the medical evidence.
By letter dated September 24, 2008, appellant’s attorney requested reconsideration. He
argued that appellant’s right shoulder injury, which had improved with surgery, had recently
deteriorated to the point where he was unable to use his right arm for any work activities.
By decision dated December 23, 2008, the Office denied appellant’s application for
review on the grounds that it neither raised substantive legal questions nor included new and
relevant evidence sufficient to require the Office to review its prior decision.

3

The hearing representative noted that Dr. Wilcox’s February 2004 report contained the first mention of any
complaints to the left shoulder. She also stated that the December 18, 2003 Form CA-1 only references injuries to
the right arm, shoulder and hand, while making no mention of any left shoulder complaints.

4

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing that 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.5 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, 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 is usually rationalized medical
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.7
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.8
ANALYSIS
The Board finds that Dr. Frye’s referee opinion regarding whether appellant’s claimed
left shoulder injury was causally related to the accepted December 17, 2003 employment injury
is not based upon an adequate factual foundation and requires clarification. The Office had
accepted that appellant sustained the conditions of right shoulder contusion and right wrist
4

5 U.S.C. §§ 8101-8193.

5

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

6

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

7

Id.

8

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

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contusion as a result of the December 2003 incident. The Board, in its January 26, 2007
decision, stated that it was unclear whether the previous medical specialist, Dr. Pollak, had a
complete and accurate background on which to base his opinion because he did not consider
Dr. Wilcox’s February 24, 2004 report indicating that appellant had left shoulder
symptomatology stemming from the December 17, 2003 slip and fall incident. The Board
therefore instructed the Office to obtain an opinion from an impartial medical examiner
regarding whether appellant sustained a left shoulder injury resulting from the December 17,
2003 employment injury based on a complete review of the relevant evidence of record. The
Office, however, failed to submit Dr. Wilcox’s February 2004 report to the new referee
examiner, Dr. Frye, prior to his submission of his April 13 and July 16, 2007 reports.9
Notwithstanding this omission, the Office in its August 2, 2007 and May 23, 2008 decisions
relied on Dr. Frye’s opinion in finding that appellant failed to establish that he sustained a left
shoulder injury causally related to the December 17, 2003 injury, without having reviewed
Dr. Wilcox’s February 24, 2004 report. While the Office hearing representative in the May 23,
2008 decision specifically discounted the need for Dr. Frye to review the February 24, 2004
report as it was dictated by a physical therapist, the Board notes that the report was read and
countersigned by Dr. Wilcox. As Dr. Wilcox was actively treating appellant for his right
shoulder injury following the December 2003 injury, and performed surgical repair of the right
shoulder in February 2004, he was in the best position to know of appellant’s left shoulder
complaints, if any. The Board therefore finds that the Office disregarded its instructions by
failing to provide Dr. Frye with relevant medical evidence of record; i.e., Dr. Wilcox’s
February 24, 2004 report. The Board set aside the May 23, 2008 Office decision and remands
for further development regarding the issue of whether he sustained a left shoulder injury in the
performance of duty on December 17, 2003.
Accordingly, the Office’s May 23, 2008 decision is set aside and remanded for referral to
a new impartial medical examiner to resolve the outstanding conflict in the medical evidence
regarding whether appellant sustained a left shoulder injury in the performance of duty on
December 17, 2003. In the event that it finds that the claimed left shoulder injury was work
related, it should then determine whether appellant sustained a recurrence of disability as of
March 15, 2005 causally related to his accepted December 17, 2003 employment injury, and
whether the March 15, 2005 left shoulder surgery was necessitated by an accepted condition.
After such further development of the record as it deems necessary, the Office shall issue a
de novo decision.10

9

The Board further notes that the Office sought clarification from Dr. Frye through telephone contact. The Board
has previously held that oral communication should not occur between the Office and impartial medical examiners
as it undermined the appearance of impartiality; the product of such contacts therefore have no probative value.
Carlton L. Owens, 36 ECAB 608 (1985).
10

In his appeal to the Board, appellant’s attorney argues, as he did below, that the condition of appellant’s right
shoulder has deteriorated to the point where he is unable to use his right arm for any work activities. Counsel
therefore seeks compensation for wage loss based on his right shoulder condition. The Board notes that counsel can
claim compensation for appellant’s right shoulder by filing a Form CA-2a claim for a recurrence of disability with
the Office.

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CONCLUSION
The Board finds that the case is not in posture for decision with regard to the issue of
whether appellant’s claimed left shoulder injury was causally related to the accepted
December 17, 2003 employment injury. The Board finds that the case is not in posture for
decision with regard to the issue of whether he was entitled to compensation for a recurrence of
disability as of March 15, 2005 causally related to his accepted December 17, 2003 employment
injury. The Board finds that the case is not in posture for decision with regard to the issue of
whether appellant’s March 15, 2005 left shoulder surgery was necessitated by an accepted
condition.11
ORDER
IT IS HEREBY ORDERED THAT the May 23, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and remanded for further development consistent
with this decision.
Issued: November 13, 2009
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

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In light of the Board’s disposition in this case, the December 23, 2008 decision is moot.

7


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

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

Docket No. 09-987
Issued: December 24, 2009

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 March 4, 2009 appellant, through counsel, filed a timely appeal from the merit
decision of the Office of Workers’ Compensation Programs dated December 9, 2008 denying
appellant’s claim for an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On June 9, 2008 appellant, then a 34-year-old mail handler, filed an occupational disease
claim, alleging that he suffered from stress due to disparity in treatment because management
was trying to persuade him to respond in a negative manner which would jeopardize his job. In a
statement accompanying the claim, he alleged that on October 19, 2007 the plant manager,
during employee appreciation day, stated that, if he feels you are not working to his standards,

that he will make it his goal to get you fired. Appellant also noted that on the same night Felton
Mitchell accused him of stealing a tray of ribs and that when he told the plant manager, the plant
manager indicated that he believed Mr. Mitchell. He noted that he was accused of leaving his
post of duty to get seconds but that he was on break when he went and so the predisciplinary
review was dismissed. Appellant noted that on November 27, 2007 he had a dispute with
management about putting some equipment in a pallet room when he was told that it was not to
go there. He requested at that time to see a union representative but said that he could not see
one that day. Appellant noted that. “Jack” took the mail and threw most of it on the floor and
mixed it up and that he had to pick it up and put it back in order. He indicated that on
November 29, 2007 he was instructed not to leave his specific area so he could not perform his
duties effectively. Appellant noted an instance on December 3, 2007 when employees were
called for a meeting to the flat sorter to ask opinions on what type of power equipment was
needed and that when the supervisor asked appellant he stated he had no opinion and the
supervisor stated, “good, we do n[o]t need it” and appellant believed that was to belittle him in
front of his coworkers. He noted that he was given impossible time limits and was pulled to do
other details. Appellant alleged that on April 15, 2008 Mr. Mitchell asked him when he would
be finished and he told him he was not stating because anything he says is changed. He noted
that after this incident he was escorted out of the building. Appellant indicated that he was called
back on April 17, 2008 at which time the supervisor told him that he was making a paper trail to
get him fired so he better start looking for a job. He noted that on May 5, 2008 he was issued a
14-day suspension due to this incident.
A May 5, 2008 notice of 14-calendar day suspension signed by Mr. Mitchell indicated
that appellant was suspended because he failed to follow work instructions.1 Appellant refused
to sign the document. Furthermore, a letter of warning dated December 27, 2007 was submitted
by the employing establishment to appellant due to irregular attendance.
By letter dated June 19, 2008, the employing establishment controverted appellant’s
claim.
By letter dated July 2, 2008, the Office asked appellant to answer various questions and
provide further information.
In a statement dated July 22, 2008, Irene Castle stated that she witnessed appellant being
accused of stealing a tray of ribs from the employee appreciation dinner held on October 19,
2007 by Mr. Mitchell. She noted that appellant was constantly being watched, followed and
given restrictions that were not made on other handlers. Ms. Castle indicated that appellant was
not able to do his job because he could not go to the dock to get mail but had to wait until other
mail handlers brought him his mail, that he was constantly being paged, even when he was in his
work area, and that appellant had to inform his supervisors of his whereabouts all the time. She
argued that no employee should have to work under these severe and stressful conditions.

1

The notice indicated that on April 15, 2008 appellant was asked to complete breakdown operation by 21:30, and
that when Mr. Mitchell contacted him at 19:40 to check on progress, appellant stated that he was not saying
anything. Appellant was told to report to the plant manager’s office to discuss his failure to follow instructions. He
did not respond to the plant manager’s questions. Accordingly, appellant was placed on suspension.

2

In a statement dated July 28, 2008, S. Lance Weaver indicated that he was employed at
the employing establishment from August 18, 2007 through March 14, 2008. He noted that at
the October 9, 2007 employee appreciation dinner Jackie Watson, the plant manager, stated that
he was going to get rid of employees he deemed unworthy. Mr. Weaver also noted that
Mr. Mitchell catered this event and there was a discussion of the impropriety of a supervisor
catering such an event, which in turn caused retaliatory actions by supervision towards those
who questioned the impropriety of the act. He noted that on November 27, 2007 he was working
automation when he saw Mr. Watson, the plant manager, approach the work area where
appellant was working and confronted him on several occasions throughout the night.
Mr. Weaver noted that Mr. Watson was very demonstrative as he spoke to appellant and often
stood and glared at him while he performed his work. He noted that on December 3, 2007 he
recalled Johnnie Brown and Mr. Mitchell arguing in the area that appellant was working.
Mr. Weaver also noted that there were many other occasions where he noticed appellant being
harangued by Mr. Watson and Mr. Mitchell but they did not recall specific times. He also stated
that Mr. Mitchell and Mr. Watson created a hostile work environment and perpetuated a scheme
of retaliation and destruction on those who oppose them. In a second statement dated
September 11, 2008, Mr. Weaver stated that his first statement was suspiciously lost by
management. He indicated that he was present at the employee appreciation dinner when
Mr. Watson did make a statement referring to employees he was working hard towards firing
because they did not fit the mold of what an employee should be and that he would get back with
the employees at a later date to discuss the matter. Mr. Weaver again noted that he constantly
saw Mr. Watson and Mr. Mitchell going to the area of appellant and speaking to him in a visibly
demonstrative manner. He noted that he witnessed this because his work area was adjacent to
that of appellant and that he was also the victim of harassment by Mr. Watson and Mr. Mitchell.
An August 20, 2008 statement, completed by a LaJuana D. Mercer using responses by
Mr. Watson, the plant manager, indicated that employees were told that if they were not coming
to work they would be terminated. Mr. Watson also stated that appellant was investigated
because he attended the employee appreciation dinner but later left his operation without
authorization. He indicated that appellant could not work without supervision. Mr. Watson
noted that appellant continues to give excuses why he could not clear his mail timely. The
employing establishment denied that mail was thrown on the floor. Mr. Watson told Ms. Mercer
that he did not belittle appellant with regard to the December 3, 2007 incident, rather appellant
belittled himself with his own statement. He denied that he told appellant he was making a paper
trail in an effort to get him fired.
Medical evidence was submitted by appellant’s treating physician, Dr. Reginald V.
Brown. In notes dated April 21, May 1 and September 9, 2008, Dr. Brown indicated that
appellant told him that he was under increased stress on his job recently due to problems with his
supervisor. He stated that appellant felt he was being set up to be fired in the near future. In a
May 27, 2008 report, Dr. Brown indicated that he had been treating appellant for stress and
depression since April 21, 2008. He noted that appellant reported that he had undergone
workplace harassment since November 2007. Dr. Brown noted that appellant had no prior
history of depression or psychiatric illness. He opined that appellant suffered from prolonged
depression and anxiety. Dr. Brown opined, “It is my opinion that [appellant] has severe
depression with anxiety as a direct result of working in a hostile workplace.”

3

By decision dated December 9, 2008, the Office denied appellant’s claim. It found that
appellant had established compensable factors of employment but there was insufficient medical
evidence to establish a factor of employment caused or aggravated by October 19 or
December 3, 2007. The factors were: being accused of leaving his area of operation without
permission on October 19, 2007; accused of stealing a tray of ribs during the employee
appreciation dinner; and the plant manager responded to appellant’s “no opinion” response at an
employee meeting.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 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.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
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.6 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

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, 28
ECAB 125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

6

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

4

the truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.7
ANALYSIS
Initially, the Board finds that certain allegations made by appellant are not established as
factual. These include appellant’s allegations that mail was thrown on the floor, that he was
denied the right to see a union representative, that he was given impossible time limits and that
his supervisor told appellant that he was making a paper trail in order to get him fired.
Appellant’s burden of proof is not discharged with allegations alone. He must support his
allegations with probative and reliable evidence.8 As appellant has not done so here, he has not
met his burden of proof.
Certain allegations made by appellant concern personnel or administrative matters.
Appellant was suspended for 14 days on April 15, 2008 for “failure to follow
instructions/unsatisfactory work performance” due to appellant’s failure to answer questions by
his supervisor and the plant manager. He was also issued a letter of warning for irregular
attendance. The Board has held that an administrative or personnel matter will be considered to
be an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment.9 In determining whether the employing establishment erred or acted
abusively, the Board has examined whether the employing establishment acted reasonably.10
There is no evidence that the Office acted unreasonably in suspending appellant for his refusal to
answer questions with regard to his work or for irregular attendance.
Allegations were made by appellant and supported by witness statements that appellant’s
performance was unfairly monitored by his supervisors. Although the monitoring of activities at
work is generally related to the employment, it is an administrative function of the employer, and
not a duty of the employee.11 The Board finds that the evidence does not show that the
employing establishment acted unreasonably in its effort to monitor appellant’s work as a way of
improving his job performance. Furthermore, appellant’s objections to the manner in which he
was assigned to pick up mail is not compensable as it involves an administrative matter in the
assignment of work duties.12 Not being permitted to work in a particular environment or to hold
a particular position is not compensable.13

7

Id.

8

Cyndia R. Harrill, 55 ECAB 522 (2004).

9

Id.

10

Janice I. Moore, 53 ECAB 777 (2002).

11

See Dennis J. Balogh, 52 ECAB 232 (2001); see also John Polito, 50 ECAB 347 (1999).

12

Kim Nguyen 53 ECAB 127 (2001).

13

Peter D. Butt, 56 ECAB 117 (2004).

5

Appellant alleges that at the employee appreciation dinner, the plant manager stated that
if he felt an employee was not living up to his work standards, he would make it his goal to fire
that employee. Mr. Weaver supported that this event occurred in his statement. However, not
every statement uttered in the workplace will give rise to a compensable factor.14 The Board
notes that this statement was not directed to appellant but rather to all of the attendees at the
dinner. Under the circumstances of this case, the Board finds that appellant’s emotional reaction
must be considered self-generated, in that it resulted from his perceptions regarding this
statement.15
However, the Office found three compensable work factors: (1) that appellant was
accused of leaving his operation area without permission on October 19, 2007; (2) that appellant
was accused of stealing a tray of ribs from the employee appreciation dinner; and (3) that on
December 3, 2007 the plant manager responded to appellant’s “no opinion” response at an
employee meeting. Accordingly, appellant must submit rationalized medical opinion evidence
establishing that his claimed emotional condition is causally related to his established work
factors.
There is no medical evidence in the record that establishes this causal relationship.
Appellant did submit medical reports by Dr. Brown noting that appellant was experiencing stress
and anxiety as a result of his employment. However, Dr. Brown never exhibited any specific
knowledge or understanding with regard to appellant’s work situation, nor did he ever mention
the compensable work factors. His general statements largely consisted of repeating appellant’s
allegations with regard to general issues at her workplace. Therefore Dr. Brown’s opinions are
insufficient to establish a causal relationship between the listed compensable factors and
appellant’s emotional condition.16
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.

14

Mary A. Sisneros, 46 ECAB 155 (1994).

15

V.W., 58 ECAB ____ (Docket No. 07-234, issued March 22, 2007).

16

A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the
implicated employment factors must be based on a complete factual and medical background. Victor J. Woodham,
41 ECAB 345, 352 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2008 is affirmed.
Issued: December 24, 2009
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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Appearances:
Fidela Mejia, for the appellant
Office of Solicitor, for the Director

Docket No. 12-1674
Issued: February 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On May 15, 2012 appellant filed a timely appeal of a May 10, 2012 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP), denying his request for a hearing.
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 May 10, 2012 nonmerit decision. Since more than 180
days has elapsed between the last OWCP merit decision on August 26, 2010 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§ 501.3(e).
ISSUE
The issue is whether OWCP properly denied appellant’s request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case was before the Board on two prior appeals. By decision dated November 25,
2008, the Board found appellant’s fall at work on April 25, 2006 was in the performance of duty,
as it was an unexplained fall.2 By decision dated July 13, 2011, the Board affirmed the
termination of compensation effective February 22, 2010 based on the medical evidence of
record.3 The history of the case as provided in the prior Board decisions is incorporated herein
by reference.
On April 25, 2012 OWCP’s Branch of Hearings and Review received an April 13, 2012
letter from appellant’s spouse stating that appellant wished to request an oral hearing.
Appellant’s spouse stated that the April 25, 2006 injury was not a temporary aggravation.4
By decision dated May 10, 2012, OWCP’s Branch of Hearings and Review found that
appellant was not entitled to a hearing, noting the July 13, 2011 Board decision. OWCP’s
Branch of Hearings and Review also indicated that it had exercised its discretion and denied the
request for a hearing on the grounds that the issue in the case could equally well be addressed
through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides in pertinent part:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this title 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.”5
OWCP regulations provide, with respect to a request for a hearing, “The claimant must
not have previously submitted a reconsideration request (whether or not it was granted) on the
same decision.”6 With respect to Board decisions, the regulations provide that Board decisions
are final as to the subject matter appealed and such decisions are not subject to review except by
the Board.7

2

Docket No. 08-1510 (issued November 25, 2008).

3

Docket No. 10-2326 (issued July 13, 2011); petition for recon. denied (issued February 14, 2012).

4

The Board notes that OWCP accepted the claim for syncope and collapse, disorder of shoulder bursae and
tendons and spondylolisthesis.
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.616(a); see also 20 C.F.R. § 10.609(c), which provides that an employee receiving a merit
decision following an application for reconsideration “may not request a hearing on this decision.”
7

20 C.F.R. § 501.6(d).

2

The Board has clarified that OWCP does not have discretionary authority to grant a
request for a hearing immediately following a Board decision. OWCP’s Branch of Hearings and
Review may not assume jurisdiction in the claims process absent a final adverse decision by the
Director of OWCP, which has not previously been reviewed.8
ANALYSIS
In the present case, appellant requested a hearing before an OWCP hearing representative
by letter dated April 13, 2012. The procedural history of the case indicates that OWCP
terminated appellant’s compensation for wage-loss and medical benefits effective
February 22, 2010. Appellant exercised his appeal rights by requesting reconsideration and
OWCP issued an August 26, 2010 merit decision. By decision dated July 13, 2011, the Board
affirmed the termination of compensation effective February 22, 2010.
OWCP properly found that the Branch of Hearings and Review did not have jurisdiction
to review a decision of the Board. Section 8149 of FECA and its implementing regulations
provide that decisions of the Board, on appeals taken from claims of employees, are final as to
the subject matter appealed and such decision shall not be subject to review, except by the
Board.9 In this case, the Board issued a final decision regarding the termination of appellant’s
compensation benefits on July 13, 2011. OWCP did not subsequently issue a final decision.
Appellant had no right to request an oral hearing or a review of the written record following the
issuance of the Board’s July 13, 2011 decision. Because the record contains no final and
unreviewed OWCP decision over which OWCP’s Branch of Hearings and Review could assume
jurisdiction, the Board finds that OWCP properly denied appellant’s request for a hearing.10
On appeal, appellant’s representative argues that there were errors in the July 13, 2011
Board decision and she discusses the termination of compensation issue. Appellant filed a
petition for reconsideration of the July 13, 2011 decision and the Board issued an order dated
February 14, 2012 denying the petition. The only issue before the Board on appeal is the
May 10, 2012 denial of a hearing request before an OWCP hearing representative.
CONCLUSION
The Board finds that OWCP properly denied the request for a hearing pursuant to 5
U.S.C. § 8124(b)(1).

8

See Robert N. Thomas, 51 ECAB 180 (1999); Eileen A. Nelson, 46 ECAB 377 (1994).

9

5 U.S.C. § 8149; 20 C.F.R. § 501.6(c).

10

See also J.H., Docket No. 09-1406 (issued January 14, 2010); M.H., Docket No. 12-651 (issued
August 8, 2012).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 10, 2012 is affirmed.
Issued: February 15, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chesapeake, VA, Employer
_________________________________________

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

Docket No. 14-2038
Issued: May 5, 2015

Case Submitted on the Record

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

JURISDICTION
On September 23, 2014 appellant filed a timely appeal from the September 5, 2014
Office of Workers’ Compensation Programs’ (OWCP) schedule award decision. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 12 percent
permanent impairment of his right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been on appeal before the Board.2 In a February 21, 2013
decision, the Board set aside a July 20, 2012 OWCP decision with regard to whether appellant
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-1669 (issued February 21, 2013).

had established more than 12 percent impairment of his right arm for which he had previously
received a schedule award. The Board noted that, in a May 5, 2012 report, an OWCP medical
adviser had used findings from an August 9, 2010 functional capacity evaluation (FCE) and had
found that appellant had 22 percent permanent impairment of the right arm with maximum
medical improvement (MMI) reached on August 3, 2010. However, when OWCP requested
clarification, the medical adviser stated that the August 9, 2010 findings from the FCE were not
reliable. He utilized January 26, 2010 FCE findings to determine that appellant had no more
than 12 percent impairment of the right arm with MMI reached on August 3, 2010. The Board
found that as the January 26, 2010 FCE was prior to the date of MMI, the medical adviser had
not adequately explained this apparent inconsistency and requested clarification on the date of
MMI and whether appellant had more than 12 percent impairment of the right arm. The Board
remanded the case for further medical development. The facts and history contained in the prior
decision are incorporated by reference.3
On February 25, 2014 OWCP referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Edward W. Gold, a
Board-certified orthopedic surgeon.
In a March 12, 2014 report, Dr. Gold described appellant’s history and utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A.,
Guides) (6th ed. 2009). He explained that a December 3, 2008 magnetic resonance imaging
(MRI) scan of the right shoulder revealed a near full thickness tear of the supraspinatus tendon of
the rotator cuff. Dr. Gold noted a history of open repair of the torn rotator cuff tear and an
acromioplasty on April 6, 2009, followed by physical therapy and surgery for a revision of the
prior tendon repair on August 3, 2009. Appellant continued to have shoulder discomfort and
Dr. Gold noted results from the January 25 and August 9, 2010 FCEs. Dr. Gold noted a positive
impingement test in the right shoulder and listed range of motion findings. Appellant had
tenderness to palpation at the subacromial space, biceps tendon, and supraspinatus tendon.
Dr. Gold diagnosed status post repair of the right shoulder supraspinatus tendon. He opined that
the accepted conditions had not completely resolved, but that he could not recommend any
further treatment that would resolve the condition. Dr. Gold found that appellant had reached
maximum medical improvement on December 9, 2010 after his last impairment rating. He
opined that appellant had a class 1 full thickness tear of the right rotator cuff. Dr. Gold explained
that he would place appellant in grade D due to the residual loss of function, which would
account for his loss of motion and found a 12 percent impairment of the right arm. He referred
to Table 15-5,4 and noted that the maximum allowable impairment for the injury was 13 percent.
On April 29, 2014 OWCP forwarded Dr. Gold’s report to an OWCP medical adviser.
In a May 17, 2014 report, OWCP medical adviser determined that appellant had no more
than six percent impairment of the right arm. He explained that Dr. Gold had rated appellant for
a right shoulder full thickness rotator cuff tear but did not document the grade modifiers that
3

OWCP accepted appellant’s claim for other specified disorder of bursae and tendons in the right shoulder
region, right shoulder joint pain, and sprain of the right shoulder, upper arm, and rotator cuff.
4

A.M.A., Guides 403.

2

brought the rating to a 12 percent right arm impairment. The medical adviser related that it was
not possible, for the full thickness rotator cuff tear with residual dysfunction under Table 15-5
(the shoulder impairment grid) to reach a 12 percent rating.5 As a result, he found Dr. Gold’s
rating inconsistent with the A.M.A., Guides.
OWCP medical adviser found a grade modifier 1 for functional history under Table 15-7
as the right shoulder was still symptomatic but there was no documentation that appellant had to
perform functional modifications for self-care activities.6 Using Table 15-8, he found a grade
modifier of 1 for physical examination due to tenderness to palpation and positive impingement
signs.7 The medical adviser found a grade modifier of 2 for clinical studies based on the results
of appellant’s 2008 and 2009 MRI scan studies. Utilizing the net adjustment formula, the grade
moved from the default C to grade D. This resulted in six percent impairment of the right arm
for a full thickness rotator cuff tear with residual loss.
In considering impairment due to loss of range of motion (ROM), OWCP medical adviser
explained that the ROM measurements in the record were inconsistent. He also explained that
the reports noting ROM measurements, including the FCEs, only documented performing one
ROM per joint motion, which was inconsistent with the validity criteria in the A.M.A., Guides,
section 15.7, which required three separate ROM efforts.8 The medical adviser opined that the
most impairing diagnosis in the right shoulder region was a full thickness rotator cuff tear with
residual dysfunction. He opined that appellant reached MMI on March 12, 2014 the date of
Dr. Gold’s examination.
By decision dated September 5, 2014, OWCP found that appellant had failed to establish
more than 12 percent permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,9 and its implementing federal regulations,10 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 for all claimants, OWCP has adopted

5

Id. The maximum rating is three to seven percent for a class 1.

6

Id. at 406

7

Id. at 408.

8

Id. at 464.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions issued
after May 1, 2009, the sixth edition will be used.12
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment for the Class of Diagnosis (CDX) condition, which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS).13 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.15
ANALYSIS
OWCP previously issued appellant a schedule award for 12 percent impairment of his
right arm due to his accepted right shoulder condition. Following the Board’s previous decision,
it referred appellant for a second opinion examination with Dr. Gold.
In a March 12, 2014 report, Dr. Gold described appellant’s history, noted findings, and
opined that, under the A.M.A., Guides, appellant had 12 percent impairment of the right arm for
a full thickness rotator cuff tear. He noted that appellant had a class 1 impairment for the full
thickness tear of the rotator cuff. Dr. Gold explained that he assigned a grade D impairment due
to his residual loss of function, taking into account his loss of motion. He determined that the
calculated impairment of the right upper extremity would be 12 percent. Dr. Gold referred to
Table 15-5,16 and noted that the maximum allowable impairment for the injury was 13 percent.
The Board notes that, while he referenced the A.M.A., Guides, his impairment finding does not
correlate with the impairment values in the A.M.A., Guides. Dr. Gold rated 12 percent
impairment for a class 1 grade D full thickness rotator cuff tear, noting that the maximum rating
was 13 percent. However, page 403 of the A.M.A., Guides provides that the maximum arm
impairment for a class 1 full thickness rotator cuff tear with residual loss is seven percent. Thus,
Dr. Gold’s opinion was not based upon a correct application of the A.M.A., Guides. He also did

11

Id. at § 10.404(a).

12

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

13

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

14

Id. at 521.

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
16

Supra note 3.

4

not clearly explain how he applied grade modifiers. Thus, Dr. Gold’s rating is of diminished
probative value as he did not properly follow the A.M.A., Guides.17
OWCP properly referred the case to OWCP medical adviser who on May 17, 2013
utilized the findings provided by Dr. Gold and determined that appellant had no more than six
percent impairment of the right upper extremity. The medical adviser, as noted, explained the
deficiencies in Dr. Gold’s rating under Table 15-5. He explained that a proper application of
grade modifiers and the net adjustment formula for a full thickness rotator cuff tear under Table
15-5 yielded a class 1 grade D rating of six percent impairment of the arm.18 Furthermore, the
medical adviser also explained why the ROM method of calculating impairment was not
applicable, noting that there was no indication that the ROM measurements of record met the
validity criteria in the A.M.A., Guides, section 15.7, which requires three separate range of
motion efforts.19
The Board finds that OWCP medical adviser correctly utilized the A.M.A., Guides and
determined that appellant had an impairment of six percent of the right upper extremity due to
his right shoulder condition. As appellant has already received an award for 12 percent to the
right arm that was also attributable to his right shoulder condition, he is not entitled to an
additional award. He has not submitted any current medical evidence, conforming with the
A.M.A., Guides, establishing a greater impairment.
On appeal, appellant argued that the August 9, 2010 FCE should be used to rate his
impairment. He asserted that he performed to the best of his ability during his functional
capacity evaluations and that he continues to suffer from his condition. However, as noted,
OWCP medical adviser explained why ROM measurements in that FCE were not valid under the
A.M.A., Guides. Appellant may request a schedule award or increased schedule award based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 12
percent permanent impairment of his right upper extremity, for which he received a schedule
award.

17

See Carl J. Cleary, 57 ECAB 563, 568 n.14 (2006) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little probative value in
determining the extent of a claimant’s impairment).
18

See infra. The medical adviser referred to Table 15-5, page 403, and found that appellant had a class 1 full
thickness rotator cuff tear, for a grade C default impairment of five percent. He applied grade modifiers to the net
adjustment formula to arrive at a net adjustment of one which moved the grade one place to the right, for grade D,
which yields six percent right arm impairment.
19

Supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 08-2502
Issued: September 23, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 22, 2008 appellant filed a timely appeal from the November 20, 2007 and
June 3, 2008 schedule award decisions of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the
merits of this case.
ISSUE
The issue is whether appellant has more than 13 percent impairment of her right upper
extremity, for which she received a schedule award.

FACTUAL HISTORY
On January 1, 2000 appellant, then a 52-year-old clerk, sustained injury when her
supervisor snatched a telephone from her right hand causing her right arm to be reinjured.1 The
Office accepted a right hand contusion and post-traumatic stress disorder. Appellant stopped
work and received wage-loss compensation.
On July 20, 2005 appellant filed a claim for a schedule award. On October 1, 2005 she
elected to receive retirement benefits and wage-loss compensation and was terminated on
October 2, 2005.
By letter dated January 12, 2006, the Office asked appellant to submit a medical report in
support of her claim for a schedule award. In a February 16, 2006 note, Dr. Alan Butler Clark, a
neurologist, indicated that appellant had severe pain in the right upper extremity and right hand.
He noted positive findings for thenar atrophy, difficulty with thumb movements, swelling,
sensation and a surgical scar on the elbow. Dr. Clark also noted a decrease in grip. He listed his
impressions as weakness in the right arm, wrist, hand and fingers. In a February 21, 2006
follow-up report, Dr. Clark gave measurements for loss of function, flexion and radial deviation
and noted that appellant had pain and that her strength was impaired. He stated that she was “not
yet maximally helped.”
On March 10, 2006 the Office referred appellant’s case to the Office medical adviser for
an evaluation of impairment under the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th edition) (A.M.A., Guides). On March 16, 2006 the Office
medical adviser noted that there was no range of motion findings in Dr. Clark’s report. When
asked to list the date of maximum medical improvement, he did not answer the question.
On April 21, 2006 the Office referred appellant to Dr. Daniel J. Feuer, a Board-certified
neurologist, for an impartial medical examination. In a report dated June 7, 2006, Dr. Feuer
found clinical evidence of bilateral carpal tunnel syndrome affecting the right greater than left
side. He noted hypoactive reflexes and that appellant had a diffuse peripheral neuropathy
syndrome consistent with diabetes mellitus. Dr. Feuer diagnosed superimposed bilateral median
neuropathy. He advised that appellant’s peripheral neuropathy and carpal tunnel syndrome
preexisted the injury of January 1, 2000 and that there were no objective clinical deficits.
Dr. Feuer did not address the issue of maximum medical improvement.
By decision dated January 4, 2007, the Office denied appellant’s claim for a schedule
award, finding that the evidence was not sufficient to establish that she sustained any permanent
impairment due to the accepted work injury.

1

Previously, appellant filed an occupational disease claim on January 19, 1995 which was accepted for right
carpal tunnel syndrome. The Office also accepted that claim for ulnar nerve decompression and anterior
transposition surgical procedures. Appropriate compensation and medical benefits were paid. By decision dated
February 3, 1998, the Office terminated appellant’s compensation and medical benefits. The Board affirmed the
termination on June 19, 2001. Docket No. 99-1663 (issued June 19, 2001).

2

On January 19, 2007 appellant, through her attorney, requested an oral hearing. At the
May 17, 2007 hearing, appellant noted that she commenced employment with the employing
establishment on September 9, 1987 and had no prior trouble with either of her hands. She
described her duties on the job and the injury of January 2000
By decision dated July 20, 2007, an hearing representative remanded the case for further
development. The hearing representative found that the Office erred by considering Dr. Feuer to
be an impartial medical examiner as the Office medical adviser’s brief comments were
insufficient to create a conflict in medical opinion. However, the hearing representative found
that Dr. Feuer’s opinion was sufficient to create a conflict with the opinion of Dr. Clark, who
described impairment resulting from severe pain, numbness, weakness and swelling while
Dr. Feuer found no impairment. The hearing representative instructed the Office to refer
appellant for an impartial medical examination.
In a September 19, 2007 report, Dr. David Weiss, an osteopath, conducted a physical
examination and reviewed appellant’s medical reports. He diagnosed: cumulative and repetitive
trauma disorder; ulnar nerve neuropathy at the cubital tunnel of the right elbow; chronic medial
epicondylitis to the right elbow; status post right ulnar nerve decompression with anterior
decompression, July 19, 1995 and right carpal tunnel syndrome. Dr. Weiss stated that appellant
reached maximum medical improvement on September 19, 2007. He opined that appellant had a
61 percent impairment of the right upper extremity. Dr. Weiss based this on three to four motor
strength deficit in the right biceps in which he found a 12 percent impairment pursuant to the
A.M.A., Guides,2 30 percent impairment for right lateral pinch deficit,3 6 percent for a Grade 2
sensory deficit right ulnar nerve4 and 32 percent for Grade 1 to 2 sensory deficit right median
nerve.5 He stated that he combined these impairments to total 61 percent.
By letter dated October 1, 2007, the Office referred appellant to Dr. Noel Rogers, a
Board-certified orthopedic surgeon, for an impartial examination. On October 19, 2007
Dr. Rogers diagnosed carpal tunnel syndrome, for which appellant had not undergone surgery,
and status post ulnar nerve transposition right. He advised that he could not answer any
questions regarding an impairment rating until electrical studies have been obtained. Dr. Rogers
noted that once he reviewed the results of such studies, he would complete his report. In a
November 8, 2007 report, he noted that he had received the results of the electrical studies.
Dr. Rogers indicated that appellant’s electrical studies showed that she had bilateral carpal tunnel
syndromes and should be considered for surgery. He indicated that appellant had not reached
maximum medical improvement.
By letter dated November 14, 2007, the Office referred the record to Dr. Arnold T.
Berman, an Office medical adviser, who found that appellant had 13 percent impairment to the
right upper extremity. Dr. Berman advised that the date of maximum medical improvement
2

A.M.A., Guides 484, Table 16-11; 492, Table 16-15.

3

Id. at 509, Table 16-34.

4

Id. at Table 16-10; 509, Table 16-34.

5

Id.

3

“was the date that Dr. Rogers completed his forms on February 21, 2006.” Under Table 16-15,
Dr. Berman noted that the maximum upper extremity impairment allowed for sensory deficit or
pain of the median nerve below mid forearm was 39 percent.6 Under Table 16-10, appellant had
a Grade 4 sensory deficit of 25 percent.7 Dr. Berman multiplied the 25 percent deficit by 39
percent to find 9.75 percent impairment, which he rounded to 10 percent to the right upper
extremity. As Dr. Rogers found no abnormality of the ulnar nerve, no impairment rating was
recommended for the right ulnar nerve based upon decreased sensation. Dr. Berman noted that
appellant was reported as having chronic pain in the area of the elbow as described by
Dr. Rogers. Therefore, he recommended that an additional three percent impairment be granted
for right elbow pain associated with the prior ulnar nerve transposition. The Office medical
adviser found a total 13 percent right upper extremity impairment.
On November 20, 2007 the Office granted a schedule award for a 13 percent impairment
of the right upper extremity.
By letter dated November 26, 2007, appellant, through her attorney, requested an oral
hearing which was held on March 25, 2008. Counsel argued that the report of Dr. Weiss should
be given the weight.
By decision dated June 3, 2008, an Office hearing representative affirmed the
November 20, 2007 decision. He noted that a conflict in medical opinion did not exist between
Dr. Clark and Dr. Feuer and determined that a conflict was not created between Dr. Clark and
Dr. Feuer as neither physician addressed the issue of permanent impairment due to the accepted
work injury. Therefore, Dr. Rogers was a second opinion physician. The hearing representative
found that Dr. Rogers did not specifically address permanent impairment in his reports and
concluded that the weight of the medical evidence was represented by the opinion of
Dr. Berman. The hearing representative noted that the report of Dr. Weiss did not conform to the
A.M.A., Guides and was of diminished probative value.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing regulations9 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, the Act 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. Office
procedures provide that to support a schedule award, the file must contain competent medical
6

Id. at 492, Table 16-15.

7

Id. at 482, Table 16-10.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404 (1999).

4

evidence which shows that the claimant has reached a permanent and fixed state and which
establishes a date of maximum medical improvement.10
ANALYSIS
The Office granted appellant a schedule award for 13 percent impairment of the right
upper extremity. The Board finds, however, that the medical evidence of record is insufficient to
establish that she has reached maximum medical improvement.
It is well established that a schedule award cannot be paid until a claimant has reached
maximum medical improvement.11 The medical evidence of record does not support that
appellant has reached maximum medical improvement. Dr. Clark, while listing some findings
on examination, never addressed permanent impairment. Moreover, he specifically stated in a
February 21, 2006 report that appellant had not yet reached maximum medical improvement.
The Office medical adviser, upon review of Dr. Clark’s report, noted deficiencies in this report
including the fact that there was no range of motion information. He did not address the issue of
maximum medical improvement. Rather, the Office medical adviser left the answer to the
question with regard to appellant’s date of maximum medical improvement blank. At the time
that the Office referred appellant to Dr. Feuer there was no conflict between Dr. Clark and the
Office medical adviser with regard to extent of impairment. In evaluating Dr. Feuer’s opinion as
a referral physician, he opined that appellant had no objective clinical deficits referable to the
nervous system directly causally related to the work-related accident. He did not make any
permanent partial impairment rating nor did address whether she had reached maximum medical
improvement.
Dr. Weiss, is the only physician of record to state that appellant reached maximum
medical improvement as of September 19, 2007. However, his impairment rating did not
properly conform to the A.M.A., Guides. Dr. Weiss found that appellant had a Grade 1 to 2
sensory deficit of the right ulnar nerve for 6 percent impairment and a Grade 1 to 2 sensory
deficit of the right median nerve for 32 percent impairment.12 However, he provided no
explanation as to how he determined the grade under the A.M.A., Guides. Dr. Weiss also
improperly added a 12 percent impairment for motor strength deficit and a 30 percent
impairment for right lateral pinch deficit to the impairment for the median and ulnar nerves when
the A.M.A., Guides state that decreased strength can be combined with other impairments only if
based on unrelated etiologic or paramechanical causes, otherwise the impairment ratings based
on anatomic findings take precedence. Decreased strength cannot be rated in the presence of
decreased motion, painful condition or deformities.13 The A.M.A., Guides further state that in
compression neuropathies, additional impairment values are not given for decreased grip

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(b)
(August 2002).
11

See Joseph R. Waples, 44 ECAB 936 (1993).

12

See A.M.A., Guides 482, Table 16-10; 509, Table 16-34.

13

Id. at 508.

5

strength.14 As Dr. Weiss did not properly apply the A.M.A., Guides, his opinion is of diminished
value.15 There was a conflict in medical opinion at the time of referral to Dr. Rogers.
On examination, Dr. Rogers stated that appellant had not reached maximum medical
improvement. He noted that diagnostic studies showed that she had bilateral carpal tunnel
syndromes and should consider surgery. Dr. Rogers did not provide any specific findings on
examination. This opinion does not establish a schedule award.
Thereafter, Dr. Berman reviewed the reports of record and concluded that appellant had
13 percent impairment of the right. He listed the date of maximum medical improvement as
February 21, 2006, indicating that he obtained it from the report completed by Dr. Rogers.
However, Dr. Rogers did not find that appellant reached maximum medical improvement on
February 21, 2006. As noted, he stated that appellant had not reached maximum medical
improvement. Moreover, the Board notes that the report of Dr. Rogers was not sufficiently
detailed for the Office medical adviser to utilize in determining the extent of impairment.
The medical evidence of record is insufficient to establish that appellant reached
maximum medical improvement. The Board finds that the Office erred by issuing a schedule
award for 13 percent impairment to her right arm.16 The case will be remanded for further
development of the medical evidence in conformance with this decision. After such further
development of the medical evidence as the Office deems necessary, it shall issue a de novo
decision on appellant’s eligibility for a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision as the medical evidence does
not establish that appellant reached maximum medical improvement.

14

Id. at 494.

15

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
16

Joseph R. Waples, supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 3, 2008 and November 20, 2007 are set aside and the case is
remanded for proceedings consistent with this opinion.
Issued: September 23, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
J.H., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Torrance, CA, Employer
__________________________________________

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

Docket No. 11-1368
Issued: December 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 11, 2011 appellant, through her attorney, filed a timely appeal from a
January 14, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty on March 3, 2007.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 16, 2009 appellant, then a 60-year-old air traffic control specialist, filed an
emotional condition claim alleging that she developed severe hypertension and post-traumatic
stress disorder (PTSD) with neurosis over the years as she witnessed plane crashes and near
misses.2 She noted the date of injury as July 7, 2007 and the date she realized her condition was
related to her employment as March 18, 2008. The employing establishment reported that
appellant had not worked since June 18, 2007 and was on Office of Personnel Management
(OPM) disability retirement since July 5, 2008.
In a statement, appellant explained that she had worked as an air traffic controller since
April 1974 and that she experienced two dramatic incidents that resulted in severe emotional
injuries. The first incident occurred in November 2004 when a plane crashed at the airport and
the second incident occurred on March 3, 2007 when a helicopter nearly missed another aircraft.
Appellant explained that she developed stress and fear of more aircraft crashes. She stopped
work on July 7, 2007.
In a November 19, 2004 report, Dr. Donald Wallens, a psychiatrist, stated that he
examined appellant that day and reviewed her medical history. Appellant was an air traffic
controller who complained of symptoms of depression, crying and difficulty sleeping after a
traumatizing November 4, 2004 plane crash that occurred while she was on duty. Upon
examination, Dr. Wallens noted that she presented with considerable anxiety, depression, low
self-esteem, a diminution in her sense of confidence and concern of what others thought about
her. He concluded that appellant suffered from acute stress reaction with attendant anxiety and
depression and opined that it appeared to result from the employment events.
In a January 12, 2005 work capacity evaluation form, Dr. Wallens stated “yes” that
appellant was competent to work eight hours a day and perform her usual job. He also noted that
she had fully recovered and could assume her previous duties.
In a February 14, 2005 second opinion psychiatric evaluation, Dr. David Bedrin, a
psychiatrist, provided a review of appellant’s medical records and an accurate history of injury
regarding the November 2004 incident. Upon examination, appellant was well developed, alert,
and cooperative and appeared to be in no acute distress. Dr. Bedrin noted that her acute stress
disorder had resolved and advised that no further mental health treatment was needed. He
provided a work capacity evaluation form authorizing appellant to return to her regular duties.
In a March 18, 2008 report, Dr. Tyron C. Reece, a family practitioner, stated that he
initially examined appellant on November 12, 2007 and subsequently examined her on a monthly
basis for uncontrolled blood pressure and traumatic-related stress. He reviewed her social and
medical history, conducted a physical examination, and diagnosed post-traumatic stress disorder,
malignant hypertension, depressive neurosis and menopausal syndrome. Appellant stated that
she was an air traffic controller for many years and that a pilot died from a catastrophic accident
as she commanded the operation. She also related that in March 2007 two helicopters nearly
2

The record reflects that OWCP previously accepted an emotional condition claim resulting from a November 4,
2004 incident. Appellant stopped work on November 5, 2004 and returned to her regular duties in 2005.

2

collided over the runway when she was on duty. Dr. Reece explained that with the two major
events as stressor agents, appellant had increasing hypertension and headaches. He noted that,
prior to the major catastrophic events, she did not have problems with her blood pressure and
explained that she had been exposed to two major traumatic and catastrophic events of stressful
origin which left a “lasting subconscious implant in her psychological nature.”
In a June 10, 2008 report, Dr. Reece recommended that appellant undergo treatment
modality with psychotherapy and support with psychotropic and anxiolytic intervention.
On June 24, 2009 OWCP advised appellant that the evidence received was insufficient to
support her claim and requested additional factual and medical evidence. It also noted that she
had a separate claim resulting from a November 4, 2004 incident and informed her that this
particular incident could not be the factual basis for her current claim.
In a July 7, 2009 statement, appellant described the November 4, 2004 and March 3,
2007 incidents. She explained that as a result of these incidents she became extremely anxious
during periods of heavy aircraft and helicopter traffic, experienced increased blood pressure, and
severe migraine headaches and nausea. Appellant noted that there were no outside stressors in
her life and that she had no previous conditions of depression, anxiety or sleeplessness.
In a decision dated November 4, 2009, OWCP denied appellant’s claim finding that the
record did not contain rationalized medical evidence demonstrating that the March 3, 2007
incident caused her emotional condition.3
On March 15, 2010 appellant, through her representative, submitted a request for
reconsideration. She explained that as an air traffic controller she witnessed three aircraft
incidents that resulted in her multiple medical conditions. Appellant described the accepted
November 4, 2004 injury, the March 3, 2007 incident and a May 11, 2004 crash. She reviewed
her medical records and contended that the evidence, especially Dr. Reese’s March 18, 2008
report, supported causal relationship.
In a March 11, 2010 statement, appellant described the alleged May 11, 2004 incident
when two helicopters collided over the south runway and exploded in a ball of fire. She
explained that she was on her way home when the crash occurred, but when she returned to work
the runway had a huge black burn mark and the grass on the infield was burned. An airport
support staff worker told appellant that he ran into the infield to help the pilots out of the burning
wreckage by grabbing their upper bodies and pulling them, but he fell down because their upper
torsos had melted and become dislodged. He screamed in horror when he realized that one of the
pilots was a veteran helicopter instructor and friend.
In a January 7, 2010 psychiatric evaluation report, Dr. E. Richard Dorsey, a psychiatrist,
reviewed appellant’s medical, social, and work history and conducted an examination. He
diagnosed post-traumatic stress disorder, depressive disorder, panic disorder with agoraphobia
and hypertension. Dr. Dorsey related the March 3, 2007 near-miss incident and described that in
3

OWCP pointed out that appellant’s November 4, 2004 injury had resolved and was not being considered as part
of this claim.

3

November 2004 appellant witnessed a small plane crash. He noted that she exhibited no mental
symptoms or impairment prior to the first occupational aircraft incident and opined that the latter
incident exacerbated her symptoms, particularly because, unlike the first incident, she was at
fault for the second one. Dr. Dorsey concluded that the two incidents cumulatively led to the
symptoms listed above and disability from employment. He explained that, in the absence of
any preexisting mental illness or significant identified nonoccupational stressors, the two
occupational aircraft incidents described above clearly constituted the predominant cause of her
mental disorders.
By decision dated June 9, 2010, OWCP denied modification of its November 4, 2009
decision finding that the new medical evidence was insufficient to establish a causal relationship
between appellant’s conditions and the March 3, 2007 incident. It noted that the medical reports
relied more on the absence of preexisting conditions as evidence of causal relationship, and not
based on a direct relationship to the incidents. OWCP found that Dr. Dorsey’s report relied on
an inaccurate history regarding the November 4, 2004 incident and did not adequately explain
how the March 3, 2007 incident was related to her condition.
On October 13, 2010 appellant, through her representative, submitted a request for
reconsideration. She related the November 4, 2004 and March 3, 2007 incidents and stated that
these two traumatic incidents resulted in her multiple psychiatric and stress conditions.
Appellant refuted the June 9, 2010 decision and stated that the claims examiner either
misunderstood or misread the information.
Appellant resubmitted Dr. Reece’s March 18 and June 10, 2008 reports.
In a June 27, 2007 report, Paul R. Fox, M.D., noted appellant’s complaints of stress,
anxiety and memory problems. He related the March 2007 incident when two helicopters nearly
collided under her control and also mentioned an aircraft crash two years ago. Dr. Fox reviewed
appellant’s medical and social history and conducted a mental status examination. He was
unable to determine whether her disability was permanent or whether she could return to work.
Appellant resubmitted Dr. Dorsey’s January 7, 2010 report. In an October 6, 2010
supplemental statement, Dr. Dorsey stated that he reviewed his January 7, 2010 examination
notes and realized that he misinterpreted her statements regarding the November 4, 2004
incident. He clarified that appellant did not witness the crash itself.
In a decision dated January 14, 2011, OWCP denied modification of its June 9, 2010
decision on the grounds of insufficient medical evidence. It determined that the new medical
report submitted still failed to explain how the March 3, 2007 incident was related to appellant’s
diagnosed conditions.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence5
including that she sustained an injury in the performance of duty and that any specific condition
or disability for work for which she claims compensation is causally related to that employment
injury.6
To establish that an emotional condition arose in the performance of duty, a claimant
must submit the following: (1) medical evidence establishing that she has an emotional or
psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged to
have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the emotional condition is causally related to the identified compensable
employment factors.
Once the claimant has established the factual component of her claim, she must also
establish that the employment incident caused a personal injury and that generally requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.7 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.8 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.9 The weight of the medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.10

4

5 U.S.C. §§ 8101-8193.

5

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

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989); M.M., Docket No. 08-1510 (issued
November 25, 2010).
7

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

8

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

9

B.B., 59 ECAB 234 (2007); Victor J. Woodhams, supra note 8; D.S., Docket No. 09-860 (issued
November 2, 2009).
10

James Mack, 43 ECAB 321 (1991).

5

ANALYSIS
The record reflects that OWCP previously accepted an emotional condition claim for
acute stress reaction, anxiety and depression causally related to a November 4, 2004 helicopter
crash and that her condition had resolved.11 Appellant returned to work in 2005.
On April 16, 2009 appellant filed another emotional condition claim alleging that she
developed severe hypertension and post-traumatic stress disorder with neurosis over the years as
she witnessed plane crashes and near misses, specifically November 4, 2004 and March3, 2007
incidents. OWCP has accepted the November 4, 2004 crash and the March 3, 2007 near-miss
incident as compensable work factors.
In her March 2010 reconsideration request and statement, appellant also described a
May 11, 2004 helicopter crash. As part of her burden of proof, she must provide a detailed
description of the employment factors or conditions that she believes caused or adversely
affected the condition or conditions for which compensation is claimed.12 Appellant did not
provide any witness statements, did not further mention the May 11, 2004 helicopter crash in her
subsequent statements and did not describe how this incident caused her condition. Her
unsupported allegation alone is insufficient to establish a factual basis for this incident.13
Therefore, the Board finds that appellant failed to establish the May 11, 2004 incident as a
compensable factor of employment with respect to her current emotional condition claim.
As appellant has established the November 4, 2004 and March 3, 2007 incidents as
compensable factors of employment, the Board must review the medical evidence.14
In a June 27, 2007 report, Dr. Fox noted appellant’s complaints of stress, anxiety and
memory problems. He reviewed her medical and social history and related the March 2007
incident. Dr. Fox, however, did not provide any opinion on the cause of appellant’s medical
conditions. The Board has found that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15 Although Dr. Fox mentioned the March 2007 incident he did not explain whether
the March 2007 incident caused such conditions. Thus, his report is insufficient to establish
appellant’s claim.

11

In a January 12, 2005 work capacity form, Dr. Wallens noted that appellant had fully recovered and was able to
perform her usual job duties. In a February 14, 2005 second opinion report, Dr. Bedrin concluded that her acute
stress disorder had resolved and authorized her to return to regular duties.
12

Janet L. Terry, 53 ECAB 570, 577 (2001).

13

See D.A., Docket No. 07-2398 (issued April 15, 2008).

14

Tina B. Francis, 56 ECAB 180 (2004); C.E., Docket No. 10-461 (issued November 23, 2010).

15

K.W., 59 ECAB 271 (2007); R.E., Docket No. 10-679 (issued November 16, 2010).

6

In a March 18, 2008 report, Dr. Reece noted that he treated appellant for uncontrolled
blood pressure and traumatic-related stress. He related that in March 200416 a pilot died from an
accident as she commanded the operation and that in March 2007 two helicopters nearly collided
when she was on duty. Dr. Reece stated that these two major events were stressor agents to
appellant’s increasing hypertension and headaches and left a “lasting subconscious implant in her
psychological nature.” He also pointed out that she did not have any problems with her blood
pressure before these major catastrophic events.
While Dr. Reece opined that the
November 2004 and March 2007 were “stressor agents” to appellant’s emotional conditions, he
did not provide any explanation or rationale establishing a causal relationship between these
incidents and her condition. Instead, his opinion is based on the fact that she did not have
problems before these events occurred. The Board has held, however, that the fact that a
condition arises after an injury and was not present before an injury is not sufficient to support
causal relationship.17 Without supporting medical rationale, Dr. Reece’s opinion on causal
relationship is insufficient to meet appellant’s burden of proof.
In January 7 and October 6, 2010 psychiatric and supplemental reports, Dr. Dorsey
provided an accurate history of injury regarding the November 4, 2004 and March 3, 2007
incidents, conducted an examination and diagnosed post-traumatic stress disorder, depressive
disorder, panic disorder with agoraphobia and hypertension. He noted that appellant exhibited
no mental symptoms prior to the first occupational aircraft incident and opined that the latter
incident exacerbated her symptoms. Dr. Dorsey concluded that the two incidents cumulatively
led to her current emotional conditions and disability and clearly constituted the predominant
cause of her mental disorders as listed. While he concluded that both incidents were the
predominant cause of appellant’s condition and his opinion supports causal relationship, he did
not support his conclusion with medical rationale.18 The Board has held that a medical report is
of limited probative value on the issue of causal relationship if it contains a conclusion regarding
causal relationship which is unsupported by medical rationale.19 Accordingly, Dr. Dorsey’s
report is insufficient to establish appellant’s claim.
Furthermore, both Dr. Reece and Dr. Dorsey attribute appellant’s conditions to both the
November 4, 2004 and March 3, 2007 incidents even though both Dr. Wallens and Dr. Bedrin
stated that appellant’s November 4, 2004 emotional injury had resolved. On appeal, appellant
alleges that the medical evidence supports causal relationship. None of the physicians, however,
provided a medical opinion to explain how her emotional conditions were causally related to the
March 3, 2007 incident. As appellant has failed to submit the necessary evidence to establish her
claim, she did not meet her burden of proof in this case.20

16

It appears that Dr. Reece erroneously referred to a March 2004 incident, instead of the November 2004 aircraft
crash.
17

Michael S. Mina, 57 ECAB 379 (2006).

18

See David Apgar, 57 ECAB 137 (2005).

19

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

20

See Vitaliy Y. Matviv, 57 ECAB 193 (2005).

7

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 failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty on March 3, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 14, 2011 is affirmed.
Issued: December 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8