United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
SOUTHERN ARIZONA MEDICAL CENTER,
Tucson, AZ, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1336
Issued: September 25, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 20, 2013 appellant, through his attorney, filed a timely appeal of an April 2,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed an
occupational disease due to factors of his federal employment.
On appeal, counsel argued that appellant had submitted sufficient medical evidence for
his claim to be accepted or, in the alternative to be remanded for further development.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 29, 2012 appellant, then 54-year-old nursing assistant, filed an occupational
disease claim alleging that on March 15, 2011 he developed lumbar pain due to lifting, bending,
transferring and repositioning patients over many years. He stopped work on March 20, 2011.
In a letter dated June 20, 2012, OWCP requested additional factual and medical evidence
in support of appellant’s claim. Dr. Kal-Uwe Lewandrowski, a Board-certified orthopedic
surgeon, examined appellant on April 19, 2012. By history appellant’s lumbar spinal stenosis
symptoms were brought on and exacerbated by standing and walking. Dr. Lewandrowski
recommended surgery for a transforaminal lumbar interbody fusion. He performed an L4-5
hardware removal on March 12, 2012. Dr. Lewandrowski released appellant to return to work
on April 23, 2012 with restrictions. On May 14 and 30, 2012 he diagnosed a nonunion
arthrodesis, spinal stenosis and degenerative disc disease. On June 5, 2012 Dr. Lewandrowski
noted that appellant was three months post an L4-5 hardware removal due to myofascial low
back pain. He diagnosed degenerative disc disease of the lumbar spine, spondylolisthesis and
spinal stenosis with low back pain, radiculopathy and myofascial pain syndrome.
Appellant attributed his condition to 30 years of standing, walking, bending, stooping,
lifting and transferring patients. In a note dated July 9, 2012, Dr. Alan K. Rogers, a Boardcertified internist, diagnosed lumbar spondylosis and chronic pain syndrome. He stated,
“Reasonable that current back problems related to his lifetime occupation.”
On July 6, 2012 the employing establishment stated that appellant had been performing
light duty since May 2011.
By decision dated September 5, 2012, OWCP denied appellant’s claim finding that he did
not submit sufficient medical evidence to establish a causal relationship between his diagnosed
lumbar condition and his employment duties.
Appellant requested an oral hearing before an OWCP hearing representative on
September 18, 2012.
On April 21, 2011 Dr. Lewandrowski performed an L4-5 transforaminal lumbar
interbody fusion. He listed a history that in 1990 appellant sustained a low back injury and
accepted claim. Appellant was able to resume his normal duties and activities. He stated that he
had spinal fusion surgery in April 2011 and returned to his full-time light-duty job. Appellant
noted a second surgery on March 8, 2012 to remove hardware and a third surgery on
June 20, 2012 to repair his spinal fusion. He submitted the June 20, 2012 surgical report noting
that Dr. Lewandrowski performed an L5-S1 transforaminal lumbar interbody fusion, exploration
of spinal fusion L4-5 and L4-S1 posterolateral fusion.
In a report dated January 7, 2013, Dr. Rogers stated that appellant’s prior low back pain
since 1990 resolved such that he could perform his duties as a nursing assistant. He diagnosed
lumbar stenosis and stated that the back and leg symptoms were exacerbated by lifting, walking
and standing as required by a nursing assistant. Dr. Rogers stated that the wear on appellant’s
low back as demonstrated by magnetic resonance imaging (MRI) scan and due to lifting,

2

pushing, carrying and walking as a nursing assistant. He noted that Dr. Lewandrowski
performed three spinal surgeries between April 2011 and June 2012 including an L4-5 interbody
fusion, hardware installation and removal and revision.
Appellant testified at the February 5, 2013 oral hearing. He noted that he initially missed
some work due to his 1990 back injury, but returned to full-duty work and did not stop due to his
back until March 2011. In March 2011, on a Sunday event at 8:00 p.m., appellant lifted a patient
up in bed and felt intense pain down his right leg. He sought medical treatment and
Dr. Lewandrowski saw him on a Tuesday in April. Surgery was performed the following
Thursday on April 21, 2011. Appellant stated that he returned to light duty after each of his
surgeries and that in 2012 he received a new light-duty assignment. The employing
establishment noted that appellant began work after a March 29, 1999 preemployment physical
and became a permanent employee in 2000.
By decision dated April 2, 2013, OWCP’s hearing representative found that appellant did
not submit sufficient medical evidence to establish that his lower back condition or surgeries
were causally related to his nursing assistant duties beginning in 2000.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2
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 evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon a complete factual and medical background, showing a causal relationship
between the claimed condition and identified factors. The belief of a claimant that a condition
was caused or aggravated by the employment is not sufficient to establish causal relation.3
ANALYSIS
Appellant described his work activities between 2000 and May 2011 that included lifting,
bending, transferring and repositioning patients over many years. He submitted medical
evidence that he was treated for lumbar spondylosis, chronic pain syndrome and lumbar stenosis.

2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

OWCP denied appellant’s claim finding that the medical evidence was not sufficient to establish
a causal relationship between his diagnosed back condition and his employment duties.
Dr. Rogers also provided a general opinion that there was a causal relationship between
appellant’s employment and his back condition stating that it was “reasonable” that appellant’s
current back problems related to his lifetime occupation. Appellant’s back and leg symptoms
were exacerbated by lifting, walking and standing as required by a nursing assistant and
demonstrated by MRI scan. While Dr. Rogers concluded that appellant’s work duties caused or
aggravated appellant’s back condition, he did not provide adequate medical reasoning explaining
the basis for his opinion. In order to meet his burden of proof in establishing an occupational
disease claim, appellant must submit rationalized medical opinion evidence in support of a causal
relationship between his condition and his employment. Such medical rationale should include a
physician’s detailed opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment activities. The opinion must be
based on a complete factual and medical background of the claim, must be one of reasonable
medical certainty and must be supported by an explanation of the nature of the relationship to the
specific employment activities identified by the claimant.4 Dr. Rogers did not provide sufficient
medical reasoning to support of his conclusion on causal relation.
Dr. Lewandrowski noted that by history appellant’s lumbar spinal stenosis symptoms
were brought on and exacerbated by standing and walking. He did not offer a clear opinion that
appellant’s back condition was either caused or permanently aggravated by his employment
duties. Dr. Lewandrowski’s report suggests at most a temporary aggravation of appellant’s
symptoms due to his employment duties. Furthermore, he did not provide any medical reasoning
in support of his opinion that appellant’s symptoms were brought on and exacerbated by standing
and walking.
In regard to counsel’s arguments, the Board notes as described above that appellant has
not submitted the necessary rationalized medical opinion evidence to establish his claim. Due to
the lack of a detailed report with a clear history of injury and a clear opinion on the causal
relationship between his employment and his diagnosed condition, the Board further finds that
the medical evidence does not require additional development by OWCP.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish an occupational disease claim.

4

A.D., 58 ECAB 149 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the April 2, 2013 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: September 25, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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

Docket No. 13-1064
Issued: September 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On March 27, 2013 appellant, through her attorney, filed a timely appeal from a
January 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.
FACTUAL HISTORY
On January 23, 2012 appellant, then a 53-year-old postmaster, filed an occupational
disease claim alleging that she sustained stress and depression causally related to factors of her
federal employment. She attributed her condition to a threatening employee, being robbed at
1

5 U.S.C. § 8101 et seq.

gunpoint, a former postmaster stalking her and having a customer die in her lobby. Appellant
stopped work on December 23, 2011.
In a psychiatric evaluation dated December 28, 2011, Dr. Lois Urick, a Board-certified
psychiatrist, noted that appellant related that during her employment she had “experienced quite
a number of traumatic and stressful events which have upset her a great deal. She reports that
her anxiety about what might happen next is affecting her personally, and also affecting her
ability to perform her job efficiently....” Dr. Urick diagnosed an anxiety disorder.
In a January 3, 2012 progress report, Dr. Urick diagnosed anxiety disorder and recurrent
major depressive disorder and noted that appellant did “not appear to be doing well at this time at
all….” She recommended that she remain off work December 27, 2011 to January 29, 2012. In
a January 17, 2012 work restriction evaluation, Dr. Urick advised that appellant was disabled
from work due to a lack of stress tolerance, depression and anxiety.
In a statement dated received February 9, 2012, appellant related that she began
experiencing problems completing simple tasks about a year and a half ago. She stated, “I
became short with my employees; avoided customers, and avoided leaving the office even for
lunch.” From June to October 2011, appellant did not have a clerk. She worked without lunch
breaks and several Saturdays to perform her own work and her clerk’s tasks. Appellant related
that from April 2010 until the present Bill Kelly, a former postmaster, stalked her because she
“asked his sister to move her mail box due to a safe hazard.” Mr. Kelly called her at work and
followed her at lunch, when she left work and when she performed driver observations.
Appellant stated, “I began driving different vehicles to work and parking behind the [employing
establishment], he would then call my [manager] and report me off work. I called the inspection
service and asked them to please call Mr. Kelly and get the stalking stopped. This did not help;
he made statements in town that he was going to get me fired.” Mr. Kelly wrote a newspaper
editorial about appellant which the newspaper refused to print. Appellant tried to get a copy but
the newspaper refused and stated, “the man was not in his right state of mind just by the contents
of the letter.” She related that she was afraid of Mr. Kelly.
Appellant further related that around 2007 one of her customers died in her lobby. She
stated, “I called the 911 twice as I watched him turn blue while lying in the lobby.” In 2000
appellant was robbed at gunpoint while working at the window. She related, “I was moved out
of state to work at another post office until they apprehended the man because I made a positive
identification on the suspect. It took them three weeks to locate the man.” Appellant maintained
that in 1998 there was a fire at her post office. She entered the office to get the mail with
fireman spraying around her. In 1991 an employee related that he was going to shoot his wife
and then return to work and kill all the employees. Inspectors came to investigate and found a
holster and gun cleaning kit in his locker but no weapon.
In February 13, 2001 a crime victim’s compensation fund application indicates that
appellant was robbed at gunpoint on January 10, 2001.
In an e-mail dated January 27, 2011, appellant informed management that it was “hard to
do everything needed in this office and carry mail also.” She stated, “I am averaging 10 hours a

2

day without a lunch and have worked Holidays to Saturdays. MLK [Martin Luther King] Day, I
cased two route and broke down the mail.”
In an e-mail message dated February 3, 2012, David Hamrick, a postmaster, related that
from April to August 2010 he was the manager for appellant’s area. Appellant called him
repeatedly about Mr. Kelly. Mr. Hamrick stated that he tried to talk with Mr. Kelly about the
need for his sister to move her mailbox but he cancelled the meeting. He stated, “Mr. Kelly
would also tell me that [appellant] was late for work and not in her office a lot of the time. I
know that he was keeping tabs on her and possibly following her around, but I do [not] think
there was ever any threat of violence.” Mr. Hamrick confirmed that appellant had spoken with
inspectors about the matter and told him that she felt threatened.
On February 9, 2012 the employing establishment asserted that parts of all jobs could be
considered stressful. Appellant’s duties as postmaster included “managing employees along with
service and financial responsibilities.”
In a statement dated February 13, 2012, J.L. (Mike) Glass, a retired postmaster, related
that on January 1, 1999 appellant telephoned him and told him that her work location was on
fire. When he arrived there were fire trucks at the scene and smoke coming from the building.
Mr. Glass stated that he “entered the building and assisted [appellant] and her [employee]
recover all the mail, although some was scorched and some was wet.” They took the mail to
another location and made a temporary office for residents to get mail. Mr. Glass stated, “It was
a very stressful time, but after all that day and most of the evening, we were at least able to
distribute mail to the customers….”
On February 13, 2012 Robin Hendershot, a postmaster who was appellant’s coworker
and friend, described changes in her emotional state. She stated:
“She has had a lot of things happen to her at the [employing establishment] that I
think have really affected her and finally become too much to handle. One of her
favorite customers, Sammy, died in her lobby. She locked herself in her office
and called me crying and all torn up asking ‘What do I do?’ To compound this
situation she had a clerk off for something like [six] months during this time. She
was working to the point where she could not even take a lunch. She missed
[doctor’s] appointments during this time because she could not get a day off.
“Then, a former [p]ostmaster, a Mr. Kelley began constantly harassing her. This
started from [appellant’s] decision as to where a mailbox needed to be located.
Mr. Kelley escalated the situation to the point of following her when she left the
[employing establishment] and for all practical purposes stalking her.
“He would call her manager and tell him that she left early or came in late. She
got to the point where she did [not] even want to leave the [employing
establishment] due to his harassment.”
In a statement dated February 14, 2012, Vicky Parnell, a postmaster, related that when
appellant was postmaster several years ago her office was robbed at gunpoint and another office
burned down. Appellant also told her about a former postmaster who stalked her.
3

In a February 13, 2012 statement, Cyndi Smith, an employing establishment employee,
asserted that a customer died of a heart attack on December 5, 2006 in the lobby of the
employing establishment.
In a form report dated February 15, 2012, Dr. Urick diagnosed major depressive disorder
and anxiety disorder and checked “yes” that the condition was caused or aggravated by
employment. She related that many work stressors precipitated the condition and worsened
symptoms.
In a statement received February 22, 2012, appellant related that in the last year her
symptoms increased. She experienced difficulty completing tasks. Appellant transferred to
another location to escape Mr. Kelly but in the new office she had to carry mail and work as a
postmaster, resulting sometimes in 10- to 12-hour days. When she returned to her usual office
her mind wandered and her employees suggested counseling. Appellant stated, “Starting in
2010, I have [had] six different bosses, who each changed the requiring reports to do daily. This
would be stressful to any employees.” She worked six days a week from 8:00 to 5:00 without
lunch.2 Appellant related, “I tried to get help from neighboring offices to loan in a clerk for
relief but no one was available. The Appalachia District allows postmasters to take personal
time if you have worked long hours but I was unable to take any time because I was the only
employee available to work my office. There were several Saturdays that I worked during
June 2000 through Oct[ober] 2001.” Appellant became upset and confused after taking her
father to Florida and after making it through the December holidays was unable to return to
work. She attributed her condition to long work hours, the “history of tragic events” during her
career and Mr. Kelly’s actions.
In a report dated June 27, 2012, Dr. Urick discussed appellant’s history of a customer
threatening her life in 1987, witnessing a drug transaction delivering mail in the early 1990s, a
fire in the building where she was postmaster, being robbed at gunpoint in the early 2000s and
having a customer die in front of her in the mid-2000s. He stated:
“During 2010 and 2011, [appellant] was stalked by a former postmaster (the
stalking occurred at her place of employment as well as her home). [She] was
traumatized by each event, but was able to get through most of them eventually
with good social support. However, it appears that around mid-2011 she was
experiencing significant difficulty dealing with the stressor of being stalked, and
was having emotional problems which affected her ability to perform her job
duties; our treatment team believes that these problems were due not simply to the
stalking itself, but also to the cumulative effect of her past employment-related
traumas.”
Dr. Urick discussed appellant’s symptoms and diagnosed major depressive disorder and
anxiety disorder and opined that “her emotional problems are the result of her numerous
employment-related traumatic events.”

2

The record contains e-mail messages dated 2008 and 2009 between appellant and the employing establishment
regarding her work hours in 2008 and 2009.

4

By decision dated July 31, 2012, OWCP denied appellant’s claim after finding that the
medical evidence did not establish that she sustained an emotional condition due to the
compensable work factor of being robbed at gunpoint.
On August 3, 2012 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative.
On December 5, 2006 appellant telephoned the Employee Assistance Program (EAP)
requesting help with recent trauma, including fire in her work location, being robbed at gunpoint
and having that day one of her customers died in the lobby. The counselor noted that she was
“crying and unable to speak….”
At the telephone hearing, held on November 2, 2012, appellant related on January 10,
2011 she was robbed at gunpoint while working in the lobby and later had to testify against the
robber. She indicated that she had to drive pass that post office all the time, which caused
anxiety and panic. Appellant had six different bosses between 2008 and 2011 or 2012 and each
had different reporting rules. She had difficulty complying with the rules because of the
changes. On December 7, 2006 a customer died in front of appellant. Appellant kept working
but always thought about the customer. In 1999 she received a call at 4:00 a.m. that her location
was on fire. Appellant went into the burning building to get the first of the month checks for her
elderly customers. A former postmaster who retired because of “anger issues” began stalking
her in 2010 after she asked his sister to move her mailbox. He would watch her at work and tell
her supervisor if she left for anything, such as a doctor’s appointment. Appellant drove three
different vehicles to avoid the stalking. The stalking lasted more than a year. Appellant took a
transfer to get away from the stalking. At the new office, two carriers were hurt so she assisted
with the mail as well as performing postmaster duties. Appellant maintained that she was
frustrated trying to carry out her duties as she could not get any help was the only person in the
office and worked all day at the window without lunch. She had to work on Martin Luther King
day and knew the next day she would have no help. Appellant apprised management of the
situation. She had difficulty completing her duties and told her boss that if he could find
someone to work 10 to 12 hours a day without lunch to please replace her. Appellant was sent
back to Richwood, where the stalker was, and found that he had changed vehicles. The stalking
continued. In 1987 a coworker threatened to kill all employees. In the 1990s appellant saw an
illegal drug deal and was afraid for her safety. Appellant’s attorney argued that she was
frustrated trying to perform her work duties and that her condition deteriorated until she could
not supervise or properly perform her duties.
In a statement dated November 28, 2012, Dawna Greathouse, with the employing
establishment, related that managers did not change the rules and that a fire marshal’s report and
newspaper article did not mention anyone entering the building while still burning.3 She related
that the former postmaster retired on regular retirement not due to anger issues and that appellant
had an ill father.
3

A January 1, 1999 fire marshal’s form report indicated that a building housing a post office and three apartments
were destroyed by fire. A short clip from a newspaper article noted that a nightclub and apartments were destroyed
in a fire and that the police were guarding the mail that was not destroyed. In a statement dated November 26, 2012,
an employing establishment employee related that appellant went to Florida because her father was ill.

5

In an e-mail dated November 27, 2012, Mr. Hamrick related that Mr. Kelly reported
appellant as late for work and followed her. He notified the inspection service at which point, to
the best of his knowledge, the former postmaster stopped the harassment. Mr. Hamrick
speculated that Mr. Kelly “could not entirely let the [employing establishment] go” as the reason
for his actions.
By decision dated January 23, 2013, an OWCP hearing representative affirmed the
July 31, 2012 decision as modified to show that appellant had established compensable work
factors. She found that appellant had not established as compensable work factors that she
witnessed a drug sale, that she was unable to take a lunch break and had to work long hours and
that the reporting requirements were constantly changing. The hearing representative found that
appellant had established the following compensable work factors: that she was robbed at
gunpoint on January 10, 2001; that she called for emergency care when a customer had a seizure
and then died in the lobby of the employing establishment on December 5, 2006; that she was
called to the scene of a fire at the employing establishment on January 1, 1999 and entered the
building to recover the mail; and that Mr. Kelly, a former postmaster and current customer of the
employing establishment, repeatedly called appellant’s supervisor in 2010 to report her actions at
work and watched her coming and going for reasons related to her work duties. The hearing
representative further found, however, that the medical evidence was insufficient to establish that
appellant sustained a diagnosed condition causally related to the compensable work factors. She
determined that Dr. Urick appeared unaware that the former postmaster was no longer stalking
appellant by the middle of 2011 and did not provide a sufficiently detailed description of each
identified work factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
4

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

5

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

6

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

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employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.7
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.8 The nonadversarial policy of proceedings under
FECA is reflected in OWCP’s regulations at section 10.121.9
ANALYSIS
OWCP accepted that appellant established as compensable work factors that on
January 1, 1999 she was called to the scene of a fire at the employing establishment and entered
the building to recover mail; that she was robbed at gunpoint on January 10, 2001; that on
December 5, 2006 she sought medical assistance for a customer who subsequently died in the
lobby of the employing establishment; and that Mr. Kelly, a former postmaster and current
customer, monitored her movements, called her supervisor and generally engaged in stalking
behavior. The Board finds that OWCP properly determined that the above incidents were
compensable factors of employment. In a February 13, 2012 statement, Mr. Glass, a retired
postmaster, confirmed that on January 1, 1999 appellant telephoned him stating that the
employing establishment was on fire. They both entered the building to recover mail. On
February 14, 2012 Ms. Parnell, a postmaster, advised that appellant was robbed at gunpoint. The
record also indicates that she sought compensation from a crime victim’s fund for a robbery at
gunpoint on January 10, 2001. Ms. Hendershot, another former postmaster, related that appellant
was very upset when a customer died in her lobby. On December 5, 2006 appellant called a
counselor with the employing establishment because she was distraught over a customer who
had died on that date in her lobby. On February 3, 2012 Mr. Hamrick, a postmaster, advised that
Mr. Kelly called him repeatedly about appellant’s whereabouts and was “keeping tabs on her and
possibly following her around….” He further noted that she had told him that she felt threatened
by Mr. Kelly. As the record establishes the factual basis for appellant’s contentions and as the
above-described incidents occurred in the performance of her work duties, they constituted
compensable employment factors.10
Appellant has further established that she experienced stress in the performance of her
regular work duties. She maintained that when she transferred to a new location as postmaster in
2011 she had trouble completing her work duties. Appellant related that two of her clerks were
off work so she had to do both their work and her own work. She asked management for
assistance. Appellant alleged that she worked long hours without taking a lunch break and had
difficulty completing her duties. The record contains a January 27, 2011 e-mail message from
7

Id.

8

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

9

20 C.F.R. § 10.121.

10

See Lillian Cutler, supra note 4.

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appellant to management stating that she found it difficult to do all the office work and carry
mail. She told management that she was averaging 10-hour days and worked on a holiday. The
Board has held that emotional reactions to situations in which an employee is trying to meet his
or her position requirements are compensable.11 Where a claimed disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties or to an imposed
employment requirement, the disability comes within the coverage of FECA.12 Therefore,
appellant has identified an additional compensable employment factor under FECA.
The Board finds that OWCP properly determined that appellant had not factually
established that she witnessed a drug sale that her life was threatened in 1987 or that
management repeatedly changed her reporting requirements. Appellant has the burden to
establish a factual basis for her allegations with reliable and probative evidence.13 As she did not
submit any evidence supporting that these allegations occurred as alleged, she has not met her
burden of proof.
Appellant’s burden of proof, however, is not discharged by establishing a compensable
factor of employment. She must also submit rationalized medical opinion evidence establishing
that she has an emotional or psychiatric disorder and that such disorder is causally related to the
accepted compensable employment factor.14
In support of her claim, appellant submitted a December 28, 2011 report from Dr. Urick,
who diagnosed an anxiety disorder and noted that appellant had experienced a number of
traumatic events at work. On January 3, 2012 Dr. Urick diagnosed an anxiety disorder and
recurrent major depressive disorder and found that she was disabled from employment. In a
February 15, 2012 form report, she diagnosed major depressive disorder and anxiety disorder.
Dr. Urick checked “yes” that the condition was employment related due to many work stressors.
In a narrative report dated June 27, 2012, she reviewed appellant’s complete history of
witnessing a drug transaction in the early 1990s, a fire in the building where she was the
postmaster being robbed at gunpoint in the early 2000s and seeing a customer die in front of her
in the mid-2000s. Dr. Urick further discussed the history of a former postmaster stalking
appellant in 2010 and 2011. She diagnosed major depressive disorder and anxiety disorder due
to “her numerous employment-related traumatic events.” Dr. Urick indicated that, although
appellant had made progress, she had not fully recovered and still suffers from setbacks which
are stressors involved with her employment. She further opined that appellant will need
continual medical treatment, including medication and psychotherapy.
The Board finds that, although Dr. Urick did not provide sufficient medical rationale
explaining how the compensable work factors resulted in appellant’s emotional condition, her
reports are generally supportive of appellant’s claim and raise an uncontroverted inference of
11

Trudy A. Scott, supra note 4.

12

Robert Bartlett, 51 ECAB 664 (2000); Ernest St. Pierre, 51 ECAB 623 (2000).

13

See Pamela D. Casey, 57 ECAB 260 (2005) (allegations alone are insufficient to establish a factual basis for an
emotional condition claim).
14

See Dennis J. Balogh, supra note 6.

8

causal relationship sufficient to require further development by OWCP.15 The case, therefore, is
remanded to OWCP for preparation of an updated statement of accepted facts and further
development of the medical evidence. After such further development deemed necessary, it shall
issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: September 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See E.J., Docket No. 09-1481 (issued February 19, 2010); John J. Carlone, 41 ECAB 354 (1989).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harlingen, TX, Employer
__________________________________________

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Appearances:
Kenneth W. Claxton, for the appellant
Office of Solicitor, for the Director

Docket No. 10-1184
Issued: November 10, 2010

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant, through his representative, filed a timely appeal from a
September 30, 2009 nonmerit decision of the Office of Workers’ Compensation Programs
denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this nonmerit decision. The last merit decision of the Office was an
August 10, 2009 decision denying appellant’s occupational disease claim. Because more than
180 days elapsed from issuance of the most recent merit decision to the filing of this appeal, the
Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether the Office properly declined to reopen appellant’s case for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s representative contends that the Office failed to fully develop his
claim or provide guidance on how to get approval of his claim. He requested that the Board
remand the case for further development and approval of his claim.

FACTUAL HISTORY
On January 18, 2009 appellant, then a 40-year-old letter carrier, filed an occupational
disease claim alleging that the loss of sensation in his left leg, foot and toes, stomach ulcers,
bladder problems and gastrointestinal problems were due to standing, driving, walking, twisting
and lifting. He first became aware of his conditions and their relationship to his employment on
May 29, 2001.
Appellant submitted medical evidence from 2002 to 2008 concerning treatment for back
problems, fatigue, nocturia and a bladder condition. The medical evidence includes various
reports from Dr. Cynthia A. Garcia, a treating Board-certified internist and physiatrist, and from
Dr. Brian O’Donnell, a treating Board-certified family practitioner. Appellant was diagnosed
with lumbosacral or thoracic neuritis, L4-5 left radiculopathy L4-5 radicular pain. In a
January 7, 2002 report, Dr. Garcia reported that he injured himself on May 29, 2001 while lifting
a tray of mail from his truck. On a June 25, 2002 form she checked “yes” to the question of
whether the condition was employment related and noted “heavy lifting in awkward position.”
In a December 2, 2008 report, Dr. O’Donnell diagnosed chronic low back pain.
By letter dated February 20, 2009, the Office informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence required to support his claim, to be submitted within 30 days.
Appellant submitted a February 5, 2009 x-ray report, a statement, a March 3, 2009
Family Medical and Leave Act application and duty status reports dated May and July 6, 2009
diagnosing leg pain and radiculopathy.
By decision dated August 10, 2009, the Office denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish a causal relationship between his
employment duties as a letter carrier and the conditions he alleged.
On September 14, 2009 appellant requested reconsideration. No evidence was submitted
with his request.
By decision dated September 30, 2009, the Office denied appellant’s request for a merit
1

review.

1

The Board notes that, following the September 30, 2009 decision, the Office received additional evidence. The
Board may not consider new evidence on appeal. See 20 C.F.R. §§ 501.2(c); M.B., 60 ECAB ___ (Docket No. 09176, issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi,
57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) submit relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
Appellant’s September 14, 2009 request for reconsideration did not allege or demonstrate
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Appellant did
not submit any evidence with his request for reconsideration. Consequently, he is not entitled to
a review of the merits of his claim based on the above-noted requirements under section
10.606(b)(2).
The Board finds that the Office properly determined that appellant was not entitled to
further consideration of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(2) and thus the Office properly denied his September 14, 2009 request for
reconsideration.
Appellant contends on appeal that the Office offered no assistance in the development of
his claim. The Board notes that the Office’s February 20, 2009 letter informed appellant of the
evidence required to support his occupational disease claim. Appellant has the burden of proof
to establish the essential elements of his claim.6 While he contends that his claim should have
been accepted, the Board does not have jurisdiction over the merits of the case. The only issue
on appeal is whether the Office abused its discretionary authority by denying appellant’s request
for further merit review.

2

5 U.S.C. §§ 8101-8193. Section 8128(a) of Federal Employees’ Compensation Act provides that the Secretary
of Labor may review an award for or against payment of compensation at any time on his own motion or on
application.
3

20 C.F.R. § 10.606(b)(2). See J.M., 60 ECAB ___ (Docket No. 09-218, issued July 24, 2009); Susan A. Filkins,
57 ECAB 630 (2006).
4

Id. at § 10.607(a). See S.J., 60 ECAB ___ (Docket No. 08-2048, issued July 9, 2009); Robert G. Burns,
57 ECAB 657 (2006).
5

Id. at § 10.608(b). See Y.S., 60 ECAB ___ (Docket No. 08-440, issued March 16, 2009); Tina M. Parrelli-Ball,
57 ECAB 598 (2006).
6

Sedi L. Graham, 57 ECAB 494 (2006).

3

CONCLUSION
The Board finds that the Office properly declined to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 30, 2009 is affirmed.
Issued: November 10, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Winston Salem, NC, Employer
__________________________________________

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

Docket No. 18-0784
Issued: November 9, 2018

Case Submitted on the Record

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

JURISDICTION
On March 1, 2018 appellant filed a timely appeal from a November 30, 2017 merit decision
and a February 8, 2018 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish an
occupational disease causally related to the accepted factors of his federal employment; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its February 8, 2018 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On October 5, 2017 appellant, then a 49-year-old sales and service associate
(SSA)/distribution clerk, filed an occupational disease claim (Form CA-2) alleging that he
developed plantar fasciitis in both feet due to factors of his federal employment. He explained that
he stood while sorting letters up to three hours a day and stood at the retail window for up to four
hours a day. Appellant did not stop work. No evidence was submitted in support of his claim.
By development letter dated October 16, 2017, OWCP informed appellant that additional
information was necessary to support his claim. It noted that no diagnosis of any condition
resulting from his employment had been received and that a physician’s opinion explaining how
his alleged employment factors caused, contributed to, or aggravated any diagnosed condition had
not been provided. OWCP requested that appellant provide a comprehensive narrative medical
report from his physician which contained medical rationale as to whether the work-related
exposure resulted in a medically diagnosed condition. It afforded him 30 days to submit the
requested information.
No further evidence was received. By decision dated November 30, 2017, OWCP denied
appellant’s occupational disease claim. It found that he had not submitted any medical evidence
containing a diagnosis in connection with the accepted employment factors.
On January 30, 2018 appellant requested reconsideration of the merits of his claim. He did
not submit additional evidence.
By decision dated February 8, 2018, OWCP denied appellant’s request for reconsideration
of the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
OWCP’s regulations define an occupational disease as a condition produced by the work
environment over a period longer than a single workday or shift.6 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit the
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

5

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

6

20 C.F.R. § 10.5(q).

2

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 diagnosed condition is causally related to the
employment factors identified by the claimant.7
A physician’s opinion on whether there is causal relationship between the diagnosed
condition and the implicated employment factors must be based on a complete factual and medical
background.8 Additionally, the physician’s opinion must be expressed in terms of a reasonable
degree of medical certainty and must be supported by medical rationale, explaining the nature of
the relationship between the diagnosed condition and appellant’s specific employment factors.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment.
Appellant alleged that he developed bilateral plantar fasciitis due to the standing required
in the performance of his position. OWCP accepted that appellant’s work duties required standing.
However, appellant failed to submit medical evidence which diagnosed a foot condition and which
offered an opinion regarding causal relationship. In an October 16, 2017 development letter,
OWCP informed him that the evidence of record was insufficient as he had not submitted medical
evidence which diagnosed a condition resulting from the accepted employment factors. It asked
appellant to provide such medical evidence, but he did not respond to its request. Accordingly, as
he failed to submit medical evidence identifying a medical condition in relations to the standing
requirement of his position, he has not met his burden of proof to establish his claim.10
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.11
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
7

T.C., Docket No. 17-0872 (issued October 5, 2017).

8

Victor J. Woodhams, supra note 5.

9

Id.

10

See J.K., Docket No. 16-1850 (issued January 9, 2017); K.G., Docket No. 15-1139 (issued September 28, 2016).

11

5 U.S.C. § 8128(a).

3

specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.12
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.13 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.14 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.15
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not offer a legal argument in support of his request for reconsideration, nor
did he submit any evidence. Accordingly, the Board finds that appellant did not show that OWCP
erroneously applied or interpreted a specific point of law or advance a relevant legal argument not
previously considered by OWCP. Moreover, appellant did not submit relevant and pertinent new
evidence not previously considered by OWCP. The Board finds, therefore, that appellant has not
met the regulatory requirements and OWCP properly declined his request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).16
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an occupational
disease causally related to the accepted factors of his federal employment. The Board further finds
that OWCP properly denied appellant’s request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

13

Id. at § 10.607(a).

14

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

15

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

16
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the February 8, 2018 and November 30, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 9, 2018
Washington, DC

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

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

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

5


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

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

Docket No. 11-1447
Issued: December 22, 2011

Case Submitted on the Record

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

JURISDICTION
On June 2, 2011 appellant filed a timely appeal from a January 25, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) terminating her compensation benefits,
and February 22 and March 8, 2011 nonmerit decisions denying further merit review. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s wage-loss benefits
and; (2) whether OWCP properly refused to reopen appellant’s case for merit review.
FACTUAL HISTORY
On July 2, 2010 appellant, then a 48-year-old mail handler, filed a claim for traumatic
lumbosacral strain sustained while lifting mail on July 2, 2010. She stopped work on July 2,
1

5 U.S.C. § 8101 et seq.

2010 and did not return. OWCP accepted appellant’s claim for lumbar sprain by decision dated
August 17, 2010.
Appellant was initially treated on July 2, 2010 at the Nassau University Medical Center.
She was seen by a physician’s assistant, J. Kielty, who diagnosed low back pain and noted that
appellant could return to work on July 6, 2010 with lifting restrictions. A duty status report
dated July 2, 2010, with an illegible signature, noted a diagnosis of thoracic and lumbosacral
strain and indicated that appellant could return to work on July 7, 2010, with restrictions. On
July 7, 2010 Dr. Jason Shevets, Board-certified in orthopedic surgery, completed a duty status
report noting that appellant could not return to work due to low back pain and radiculopathy.
On August 20, 2010 appellant was examined by Dr. Carl Paulino, an orthopedic surgeon,
who noted history of her July 2, 2010 lifting injury, provided findings on physical examination,
including a straight-leg test reproduction of pain at the L5-S1 nerve distribution, and diagnosed
low back strain. Dr. Paulino recommended that she continue physical therapy and remain out of
work. On August 27, 2010 he noted that appellant was slowly improving, but again indicated
that she should remain out of work. In an October 27, 2010 report, Dr. Paulino referenced a
magnetic resonance imaging (MRI) scan dated October 7, 2010. He diagnosed low back sprain
with disc bulge and recommended physical therapy, as well as steroid injections if pain persisted.
Dr. Paulino concluded that appellant continued to be totally disabled and could not return to
work.
Appellant submitted duty status reports from Dr. Paulino dated October 15 and 27, 2010
diagnosed low back strain and concluded that she remained totally disabled. She also submitted
various physical therapy bills and nurses’ notes.
On November 3, 2010 OWCP referred appellant to Dr. Robert Orlandi, a Board-certified
orthopedic surgeon, for a second opinion examination. Dr. Orlandi was provided with a
statement of accepted facts, a copy of appellant’s date-of-injury job description and copies of all
available medical reports.
Dr. Orlandi examined appellant on November 17, 2010. He reviewed appellant’s history
of injury and test results. Regarding appellant’s October 7, 2010 MRI scan examination, he
stated that the scan was normal, showing only bulges at L2 through L5. Dr. Orlandi also noted
that disc bulges frequently extended into foramina because of their broad-based configuration.
He concluded that appellant’s lumbar strain condition had resolved, that she did not have a
musculoskeletal disability and that she could return to work without restrictions. Dr. Orlandi
concluded:
“The claimant does not have muscular spasms and she has a normal lumbar
lordotic curvature. She is making no claim for radicular symptoms into either
lower extremity and reflexes, sensation and motor function are intact at this time
and there is no calf atrophy. While today, she chooses to forward flex to just 60
degrees, the straight leg raising test was negative with her knees extended as the
calf circumference were measured and as the heel reflexes were checked.”

2

On December 1, 2010 Dr. Paulino examined appellant and diagnosed herniated nucleus
pulposus (HNP) at L2-3, L3-4 and L4-5. He referred appellant to Dr. Sanjeev Agarwal, Boardcertified in physical medical and rehabilitation. Dr. Paulino concluded that appellant’s condition
was improving, and that he was confident that appellant would return to full active duty in two or
three months. He also signed a duty status report (Form CA-17), in which he indicated
appellant’s diagnosis as HNP L2-3, L3-4, and L4-5 and recommended that she not resume work.
In a report dated December 16, 2010, Dr. Agarwal noted appellant’s history of injury,
diagnosed appellant with lumbosacral spondylosis as well as degenerative disc disease, rule out
lumbar radiculopathy. He recommended lumbar epidural steroid injections and reported that
appellant remained temporarily totally disabled. On December 16, 2010 Dr. Agarwal also
completed a form report wherein he stated appellant’s diagnosis as sprains and strains of
sacroiliac region; lumbosacral. He concluded that appellant could not return to work.
On January 14, 2010 OWCP forwarded appellant’s case record to the district medical
adviser (DMA). It asked him to address whether the history and mechanism of injury was
consistent with the diagnosed conditions, whether the claim should be accepted for other claimed
conditions, whether the positive findings in the lumbar MRI scan were due to trauma, structural
defect or degenerative changes and whether OWCP should authorize spinal epidural injections.
OWCP issued a notice of proposed termination of compensation on January 20, 2011.
The notice advised appellant that entitlement to wage-loss compensation and medical benefits
would be terminated as the weight of the medical evidence no longer demonstrated injury-related
residuals or disability.
In a January 25, 2011 decision, OWCP terminated compensation based upon a finding
that appellant no longer had any disability that prevented her from returning to her date-of-injury
position.
On January 22, 2011 the medical adviser opined that appellant’s history and mechanism
of injury were in fact consistent with the diagnosed conditions, that the claim should be accepted
for additional conditions, that the positive findings were due to degenerative changes with
radiculopathy by aggravation, and that OWCP should grant authorization for the procedure
requested.
In a response dated January 26, 2011, the medical adviser stated that the history and
mechanism of injury was consistent with the diagnosed conditions, that the claim should not be
expanded to include other medical conditions, that the MRI scan findings of October 7, 2010
were due to degenerative changes, with radiculopathy by aggravation, and that authorization
should be granted for spinal injection of fluoroguide. He concluded that “[appellant] is clearly
suffering from symptomatic radiculopathy which has been thus far recalcitrant to conservative
care, management, and treatment. At this point in time I would agree with and authorize the
procedure as indicated.”
In a February 2, 2011 letter, Dr. Paulino again recommended epidural steroid injections,
which he believed would alleviate appellant’s pain. In addition, he stated that her “lifting injury
likely resulted in bulging of her lumbar discs.”

3

Appellant filed a request for reconsideration on February 8, 2011.
In a decision dated February 22, 2011, OWCP denied appellant’s request for
reconsideration, without further merit review. On March 8, 2011 it again denied reconsideration
of her claim.2
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits. Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has cased or that it is no longer related to the
employment.3
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.4
ANALYSIS -- ISSUE 1
OWCP terminated appellant’s wage-loss compensation and medical benefits on
January 25, 2011 based upon a finding that her lower back strain condition had resolved. It
relied on Dr. Orlandi’s November 17, 2010 second opinion medical report. Dr. Orlandi stated
that upon examination appellant did not have muscle spasms with a normal lumbar lordotic
curvature. Appellant’s treating physician, Dr. Paulino, however, found that appellant had low
back sprain based upon her examination findings of limited forward flexion and extension of her
lumbar spine. He advised that appellant was totally disabled. The Board notes that Dr. Paulino
referred appellant to Dr. Agarwal, who supported the diagnosis of a lumbosacral sprain/strain
and that she was totally disabled from work. The Board finds that a conflict exists in medical
opinion as to appellant’s residuals and disability for work due to her accepted low back strain.5

2

It appears that OWCP issued this decision based again on appellant’s February 8, 2011 request for
reconsideration.
3

E.J., 59 ECAB 695 (2008); Jason C. Armstrong, 40 ECAB 907 (1989).

4

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; see I.J., 59 ECAB 408 (2008); Shirley L. Steib, 46 ECAB
309 (1994).
5

In this case, OWCP undertook additional development of appellant’s claim by referring the evidence to
OWCP’s medical adviser on January 14, 2010 to address whether appellant’s claim should be accepted for other
claimed conditions and whether the findings from appellant’s MRI scan were related to trauma or degenerative
changes. OWCP however did not wait for the medical adviser’s response; rather it terminated appellant’s
compensation benefits as of January 25, 2011.

4

CONCLUSION
The Board therefore finds that OWCP did not meet its burden of proof to terminate
appellant’s wage-loss benefits as of January 25, 2011.6
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6

Given the disposition of the first issue the second issue is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION, Tampa, FL,
Employer
__________________________________________

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Appearances:
Capp P. Taylor, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1885
Issued: September 27, 2010

Case Submitted on the Record

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

JURISDICTION
On July 15, 2009 appellant filed a timely appeal from an April 2, 2009 decision of the
Office of Workers’ Compensation Programs that affirmed the denial of her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
occupational disease due to factors of her federal employment.

FACTUAL HISTORY
This case has previously been before the Board.1 In an August 14, 2008 decision, the
Board affirmed Office decisions of February 23, June 29 and October 11, 2007, finding that
appellant did not establish that she sustained an occupational disease while in the performance of
duty. The facts of the case are set forth in the Board’s prior decision and are incorporated herein
by reference.
Following the Office’s October 11, 2007 decision, appellant submitted an August 27,
2007 attending physician’s report from Dr. Alamelu Murugappan, a Board-certified neurologist.
Dr. Murugappan noted treating appellant for bilateral carpal tunnel syndrome. Appellant
reported no history of injury but indicated that she experienced neck pain and pain in both hands
since 2005 while at work. Dr. Murugappan diagnosed bilateral carpal tunnel syndrome, C4-5
disc protrusions and a ganglion cyst on the right hand. He noted with a checkmark “yes” that
appellant’s condition was caused by her employment activity and indicated that repetitive
movements of the hands aggravated and precipitated her conditions.2
On December 29, 2008 appellant requested reconsideration and submitted the
December 12, 2008 report of Dr. Diana Roque, an attending Board-certified internist, who noted
that she had treated appellant for over 10 years and stated that appellant’s bilateral carpal tunnel
syndrome and cervical spondylosis began in 2001 and was aggravated by her work duties which
included repetitive use of the upper extremities, lifting and carrying. Dr. Roque based her
opinion on an October 16, 2007 magnetic resonance imaging (MRI) scan of the left wrist which
revealed degenerative and repetitive trauma changes and an MRI scan of the cervical spine
which revealed moderate osteoarthritis, but no evidence of trauma. She noted that appellant was
involved in a nonwork-related motor vehicle accident in 2004, but advised that this incident did
not cause her cervical spondylosis or carpal tunnel syndrome because her symptoms predated the
accident and the MRI scans did not reveal an onset of new trauma. Dr. Roque opined that the
fast progression of appellant’s carpal tunnel syndrome was indicative of the degree of stress on
her neck and hands due to her work duties. She identified appellant’s work activities of lifting
and carrying heavy files, repetitive use of her hands typing, keying and making computer data
entries as having caused bilateral carpal tunnel syndrome and aggravating the cervical
spondylosis, which were permanent conditions and worsening.3
In a December 15, 2008 report Dr. Donna Saatman, a Board-certified neurologist, noted
that she treated appellant since July 2005. She performed a right carpal tunnel release on
January 9, 2006, and a left wrist release and C5-6 anterior cervical discectomy and fusion on
December 6, 2006. Dr. Saatman reviewed her treatment records and advised that, to a
reasonable degree of medical certainty, appellant’s cervical spine and carpal tunnel conditions
1

Docket No. 08-472 (issued August 14, 2008). On November 29, 2005 appellant, then a 49-year-old wage and
hour compliance specialist, filed an occupational disease claim alleging carpal tunnel syndrome, arthritis and a low
back condition from performing repetitive duties at work. She did not stop work.
2

The Board has held that physician’s opinion which consists of a checkmark on a form medical report is of
diminished probative value. See Sedi L. Graham, 57 ECAB 494 (2006).
3

Appellant previously submitted a job description of her duties as a wage and hour compliance specialist.

2

were caused or exacerbated by her occupational duties. Appellant had a five-year history of
cervical and wrist symptoms before Dr. Saatman treated her. Dr. Saatman stated that appellant
experienced pain after working eight hours a day, repetitively using her hands, driving, carrying
a briefcase or using a phone. She reported the onset of appellant’s cervical and bilateral
extremity complaints while she was performing her office duties. Dr. Saatman advised that
appellant’s 2004 motor vehicle accident temporarily exacerbated her preexisting cervical
condition and opined that appellant’s occupational duties beginning in 2000 caused a permanent
aggravation of appellant’s condition.
In an April 2, 2009 decision, the Office denied modification of its October 11, 2007
decision on the grounds that medical evidence of record was insufficient to establish that
appellant’s cervical or bilateral carpal tunnel conditions were caused or worsened by her
accepted work duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the 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. 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.4
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) 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 claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5

4

Gary J. Watling, 52 ECAB 357 (2001).

5

Solomon Polen, 51 ECAB 341 (2000).

3

ANALYSIS
It is not disputed that appellant’s duties as a wage and hour compliance specialist
included repetitive activities using her hands including typing, keyboarding, transcribing and
sitting for long periods of time. The Office denied her claim finding that the medical evidence
submitted from her attending physicians provided insufficient medical rationale in support of
their stated opinions on causal relation. The Board finds that the case is not in posture for
decision.
In the prior appeal, the Board noted deficiencies in the medical reports from Dr. Roque
and Dr. Saatman. The Board noted that the opinion of Dr. Saatman was speculative in nature as
to the cause of appellant’s cervical and carpal tunnel conditions. On December 15, 2008 she
provided an addendum report addressing her treatment of appellant since 2005. Dr. Saatman
discussed the surgeries performed and concluded to a reasonable degree of medical certainty that
appellant’s cervical condition at C5-6 and bilateral carpal tunnel was caused or exacerbated by
her duties at work. She provided a description of the duties performed by appellant and
addressed the nonemployment-related automobile accident of 2004 as causing an exacerbation of
appellant’s preexisting pathology. Dr. Saatman concluded that appellant’s work duties since
2000 had resulted in a permanent aggravation to her cervical spine and both wrists.
Dr. Roque also reviewed her treatment of appellant since 2001 for bilateral carpal tunnel
and cervical spondylosis. She reiterated that appellant’s symptoms preexisted the 2004 motor
vehicle accident and that an MRI scan performed two months following the accident showed
already moderate osteoarthritis with no evidence of trauma to the cervical spine. Dr. Roque
attributed appellant’s condition on diagnostic testing to degeneration from repetitive activities at
work rather than the motor vehicle accident. She attributed the fast progression of appellant’s
conditions to the stress on her neck and hands at work and the duties she performed. Dr. Roque
noted that appellant continued to perform the same work activities. She characterized the nature
of appellant’s condition as permanent and described the nature of the work performed.
Dr. Roque noted that she incorporated her prior reports and that her opinion was made to a
reasonable degree of medical certainty.
The Board notes that appellant has submitted medical evidence from two attending
physicians that cure deficiencies noted in their prior reports of record. Both physicians advised
that to a reasonable degree of medical certainty appellant’s work duties of lifting files, keying
and typing and data entry caused or exacerbated her cervical spondylosis and bilateral carpal
tunnel condition. The nature of the relationship was described as an aggravation of her
conditions, which both physicians stated was permanent. Both physicians addressed the history
of treatment, with Dr. Roque noting symptoms of the claimed conditions since 2001 and
Dr. Saatman addressing treatment of appellant since 2005 and the surgeries performed. Both
physicians addressed the 2004 nonemployment-related automobile accident and advised that it
caused a temporary exacerbation of appellant’s preexisting conditions. The Board finds that
appellant has submitted sufficient medical evidence to support further development of the claim.6
The case will be remanded to the Office to refer appellant for examination by a second opinion
6

See Phillip L. Barnes, 55 ECAB 426 (2004); John J. Carlone, 41 ECAB 354 (1989).

4

specialist and opinion on whether her claimed cervical and bilateral wrist conditions were caused
or aggravated by her work as a wage and hour compliance specialist. The Office should prepare
a statement of accepted facts that sets forth the nature and extent of appellant’s accepted work
duties. After such further development as necessary, it should issue an appropriate decision on
her claim for compensation.
CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant
developed an occupational disease condition due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
action in conformance with this decision.
Issued: September 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)
)

Docket No. 20-1516
Issued: May 28, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 10, 2020 appellant sought an appeal from two July 29, 2020 merit decisions of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 20-1516.
The Board, having duly considered the matter, notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.1
The case record as transmitted to the Board does not contain a final adverse decision of OWCP
issued within 180 days from the date of docketing of the current appeal.2
As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 20-1516 must be
dismissed. Accordingly,
1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2
20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”

IT IS HEREBY ORDERED THAT the appeal docketed as No. 20-1516 is dismissed.
Issued: May 28, 2021
Washington, DC

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Beaufort, NC, Employer
)
_________________________________________ )
F.H., Appellant

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

Docket No. 10-1359
Issued: April 18, 2011

Case Submitted on the Record

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

JURISDICTION
On April 20, 2010 appellant filed a timely appeal of a January 25, 2010 merit decision of
the Office of Workers’ Compensation Programs denying her claim for an employment injury.
Pursuant to the Federal Employees’ Compensation Act,1 and 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on August 29, 2006, as alleged.
On appeal, appellant contends that her doctors told her that she injured her back and
stated that she told them the date of onset. She noted that she continued to work until she could
no longer stand the pain and surgery was her only option.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2009 appellant, then a 48-year-old rural mail carrier, filed a claim for
traumatic injury alleging that, on August 29, 2006, while picking up a heavy box from the
bottom of a hamper, she felt a pain in her back. She alleged that, as a result, she sustained
bulging discs on the bottom of her back. On the claim form, Jane D. Ellis, appellant’s
supervisor, disputed appellant’s version of the facts, noting that there was reasonable doubt that
an on-the-job injury occurred. She indicated that appellant left work on December 8, 2008 due
to a nonwork-related mental condition, that she exhausted all her leave, and that no injury was
reported until almost three years after the alleged injury. Furthermore, in a supervisor’s
statement dated July 27, 2009, Ms. Ellis stated that appellant left work suddenly on December 8,
2008 after receiving word that her son passed away unexpectedly. She noted that appellant has
been off work since that date. Ms. Ellis indicated that she reviewed the employee files and found
no record that appellant ever reported a job-related back injury and further noted that appellant
had taken time off work intermittently for nonwork-related back problems. She further noted
that appellant’s retired supervisor indicated that appellant never reported a lifting accident to
him. Ms. Ellis noted that, due to appellant’s current nonjob-related mental condition, appellant
had exhausted all her sick and annual leave as well as donated leave.
By letter dated August 6, 2009, the Office asked appellant to submit further information.
It noted that the evidence was insufficient in that it did not establish that she actually experienced
the incident or employment factor alleged to have caused the injury. The Office also noted that
there was no diagnosis of a medical condition arising out of the alleged employment incident. In
response to this letter, appellant submitted reports by a nurse practitioner, including an
August 30, 2006 note wherein she indicated that appellant complained of pulling a muscle in her
back while lifting a 45-pound box at work “yesterday.” She also submitted the results of a
magnetic resonance imaging (MRI) scan conducted on October 1, 2007 which was interpreted as
showing multilevel disc degenerative disease in the upper lumbar spine as well as L3-4. The
MRI scan also showed an asymmetric narrowing of the right neural foramina at L3-4 with nerve
root impingement.
By decision dated September 11, 2009, the Office denied appellant’s claim for
compensation as she had not established fact of injury.
On November 25, 2009 appellant requested reconsideration.
Appellant continued to submit evidence, including a September 17, 2009 note from
Dr. Stephen J. Dalrymple, a Board-certified neurosurgeon, indicating that appellant, a mail
carrier, injured her back three years ago lifting something heavy. Dr. Dalrymple noted that
appellant had a bulging at L2-3 and L3-4 and to a lesser degree at L4-5, for which she had
surgery on August 24, 2009. He noted that appellant would be out of work approximately three
months post operation.
Appellant also submitted progress notes by Dr. Angelo Tellis, a Board-certified
physiatrist, indicating that he treated appellant from January 29, 2008 to September 11, 2009 for,
inter alia¸ low back pain. In his initial consultation dated January 29, 2008, Dr. Tellis noted,
when discussing the history of appellant’s illness, that appellant stated that she lifted a package

2

on the job two years ago and felt a sharp pain in her back. He also noted chronic pain in the neck
and shoulders with numbness/pain in her hands.
By decision dated January 25, 2010, the Office denied modification of its September 11,
2009 decision.
LEGAL PRECEDENT
An employee who claims benefits under the Act2 has the burden of establishing the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact
that an employee sustained an injury in the performance of duty, but the employee’s statements
must be consistent with the surrounding facts and circumstances and his or her subsequent course
of action.8 An employee has not met his or her burden of proof of establishing the occurrence of
an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.9 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.10
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009).

4

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

5

B.F., Docket No. 09-60 (issued March 17, 2009).

6

D.B., 58 ECAB 464 (2007).

7

D.G., 59 ECAB 734 (2008); C.B., Docket No. 08-1583 (issued December 9, 2008).

8

M.H., 59 ECAB 461 (2008); George W. Glavis, 5 ECAB 363, 365 (1953).

9

S.P., supra note 4; Gus Mavroudis, 9 ECAB 31, 33 (1956).

10

Barbara R. Middleton, 56 ECAB 634 (2005).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
Appellant alleged that she sustained a back injury on August 29, 2006 while she was
lifting a heavy box out of the hamper and felt a pain in her back. The Office found that she
failed to establish that the incident occurred. It noted that appellant did not file a claim until over
two years after the August 29, 2006 alleged incident, that there were no witnesses to the incident
and that she did not stop work until December 8, 2008 when she stopped work for personal
reasons.
The Board finds that appellant failed to establish that the incident occurred as alleged.
Although an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value, the Board finds that her delay, of 2 years and 11 months, in
filing the claim caused serious damage to the Office’s ability to properly develop the claim and
further cast doubts as to whether the incident occurred as alleged.
On July 24, 2009 appellant filed a claim for a traumatic back injury allegedly caused by
lifting a box at work on August 29, 2006. In support of her claim, she relies on a report from a
nurse practitioner dated August 30, 2006 in which appellant stated that she had pulled a muscle
in her back lifting a box a day earlier. However, this single report is insufficient to meet
appellant’s burden of proof. There were no witnesses to this alleged incident. Further,
appellant’s supervisor, Ms. Ellis, and her retired unnamed supervisor, found no report or other
evidence of a work-related injury on or about the claimed date. There is no evidence in the
record that appellant reported this incident on or about that date. Pursuant to the statement by
Ms. Ellis, appellant worked until December 8, 2008 until she stopped working for personal
reasons. These circumstances cast serious doubt on the validity of the claim.12
The Board also finds that appellant has not established that she sustained an injury as she
has not submitted medical evidence sufficient to support a diagnosed injury resulting from the
alleged employment incident. Although the nurse practitioner’s notes are sufficient to establish
that appellant sought medical treatment contemporaneously with the established work incident,
the Board finds that these reports are not sufficient to constitute competent medical evidence
establishing a diagnosed condition causally related to appellant’s accepted work incident. The
Board has held that a nurse practitioner is not a physician under the Act and therefore any report
from such individual does not constitute competent medical evidence which, in general, can only
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 354 (1989).

12

Joseph A. Fournier, 35 ECAB 1175 (1984); P.K., Docket No. 09-1953 (issued July 8, 2010).

4

be given by a qualified physician.13 Appellant also submitted progress notes from Dr. Tellis
detailing her treatment of appellant from March 9 through September 11, 2009 for, inter alia,
lower back pain. Although Dr. Tellis notes that appellant stated in the initial consultation on
January 29, 2008 that she felt a sharp pain in her lower back while lifting a package on the job,
he never connects this incident with appellant’s current condition in a rationalized medical
opinion. Appellant also submitted a September 17, 2009 note by Dr. Dalrymple indicating that
appellant injured her back three years ago lifting something heavy. He noted that appellant had a
bulging at L2-3 and L3-4 and to a lesser degree at L4-5, for which she had surgery on
August 24, 2009. However, Dr. Dalrymple also did not provide a reasoned medical opinion
linking the work incident to appellant’s injury. Accordingly, there is no rationalized medical
opinion establishing that appellant sustained an injury causally related to the alleged employment
incident of August 29, 2006.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.14 As appellant has not submitted medical evidence sufficient to
show that she sustained an injury causally related to the alleged August 29, 2006 employment
incident, the Board finds that appellant has not met her burden of proof.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on August 29, 2006, as alleged.

13

5 U.S.C. § 8102(2); Sean O’Connell, 56 ECAB 195 (2004).

14

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997). D.W., Docket No. 10-598 (issued October 6, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 25, 2010 is affirmed.
Issued: April 18, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6