United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Leo Glover, for the appellant
Office of the Solicitor, for the Director

Docket No. 10-2136
Issued: July 19, 2011

Case Submitted on the Record

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

JURISDICTION
On August 20, 2010 appellant filed a timely appeal from a February 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her emotional
condition claim and an April 23, 2010 nonmerit decision denying her request for an oral hearing
as untimely. 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 appellant met her burden of proof to establish that she
sustained an emotional condition in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for a hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 15, 2009 appellant, then a 45-year-old security specialist, filed an
occupational disease claim for a job-related stress/illness commencing October 8, 2009. She
claimed that she was repeatedly harassed by her supervisor and forced to leave her job to seek
immediate medical attention. Appellant stopped work October 8, 2009 and returned to work
November 10, 2009 as a management analyst.
In a December 21, 2009 letter, OWCP advised appellant that additional factual and
medical information were necessary to support her claim.
In response, appellant submitted a workers’ compensation package detailing her claim.
On October 8, 2009 Margaret Rodeheaver, appellant’s supervisor, held a meeting with her and a
coworker to discuss a checklist. During the meeting, appellant stated that she was questioned on
security material and whether she had attended the security manager’s meetings. Her supervisor
requested verification of her attendance as well as the minutes of the meetings. Appellant stated
that, after her coworker was allowed to leave the meeting, her supervisor continued to question
her about the remainder of the checklist items. She contended these were the responsibility of
her coworker and for which she had no information. When appellant questioned her supervisor
on why her coworker, who was the newest member of security, could attend the security
trainings as he was not a security manager, she was told it was management’s decision.
Appellant’s supervisor denied appellant’s request for leave due to mission requirements and
indicated that medical documentation was needed to support her sick leave request the next day,
Friday, October 9, 2009 as it appeared appellant was abusing her leave prior to a three-day
weekend. Appellant became upset and told her supervisor that the medical appointment was
scheduled at her physician’s request. She indicated that her requests for leave the following
Tuesday and Wednesday were denied as her supervisor wanted the checklists completed.
Appellant thereafter scheduled a meeting with the Equal Employment Opportunity (EEO) office
and, as she left her office, began to experience shortness of breath. She related that a coworker
took her to the hospital as she was having shortness of breath and crying.
In an October 27, 2009 EEO complaint form, appellant alleged that she was
discriminated against on the basis of race and reprisal for past EEO activity when she was
harassed by management. She alleged on September 10 and 18, 2009, she received oral
counseling about her perfume; on October 2, 2009, she was accused of signing in at an earlier
time; October 8, 2009, she was verbally denied sick leave but then she was informed by
electronic mail that her sick leave was approved but she must bring in a physician’s excuse; on
October 8, 2009, she was denied restored leave; and on October 8, 2009, she was denied training
after she was directed to research the location of and provide a cost analysis of such training.
Appellant submitted copies of medical documentation from her physician and specialists,
including diagnostic testing and copies of leave requests. The October 8, 2009 discharge
instructions from the Houston Medical Center Emergency Department provided a final diagnosis
of anxiety-related symptoms.
In a December 16, 2009 letter, the employing establishment controverted appellant’s
claim. It submitted a copy of a November 24, 2009 FECA Fraud Investigative Unit report,

2

which concluded that her problems appeared to be self-generated and not the result of her work
environment. The employing establishment also submitted October 9 and November 17, 2009
statements from Ms. Rodeheaver, branch chief, Force Development and Training.
In an October 9, 2009 letter, Ms. Rodeheaver related that a review of the self-inspection
checklist and other program documents, which needed to be completed before the deadline of
October 16, 2009 took place on the afternoon of October 8, 2009 with appellant, the primary
security program manager and another security manager. A review of the checklist progress
indicated that many checklist items needed attention and other program materials were not fully
in order or inspection ready. Ms. Rodeheaver stated that, after the other program manager left,
she continued the progress review with appellant. When the review was completed, she
informed appellant that her request for 16 hours of restored annual leave for October 13 to 14,
2009 was denied. Ms. Rodeheaver indicated that Donna Mills, division chief, concurred on the
denial based on the mission requirements of the agency. She also informed appellant that
medical documentation was required for eight hours of sick leave requested for the next day,
October 9, 2009. Ms. Rodeheaver stated that the reason medical documentation was requested
was due to appellant’s previous use of leave which seemed to correspond with office deadlines,
holidays or other planned leave. Appellant told Ms. Rodeheaver that she would be visiting the
EEO office.
On November 17, 2009 Ms. Rodeheaver stated that appellant was assigned as primary
security manager and responsible for numerous programs for the communications directorate as
well as self-inspection of those programs. Before the October 8, 2009 incident, appellant had
taken leave related to high blood pressure testing. Ms. Rodeheaver stated that appellant sought
medical attention for stress-related symptoms on October 8, 2009 after being denied annual leave
for October 13 and 14, 2009, which had been requested earlier on the afternoon of
October 8, 2009. She stated that appellant was on leave from October 9 to November 9, 2009,
with no lost pay.
In a February 23, 2010 decision, OWCP denied appellant’s claim for an emotional
condition finding that she failed to establish a compensable employment factor.
In a March 30, 2010 appeal request form, postmarked April 1, 2010, appellant requested
an oral hearing. In a letter also dated March 30, 2010, she provided authorization for her
representative to represent her at the oral hearing.
By decision dated April 23, 2010, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds it was not timely filed. It found that she
could have her claims further addressed by requesting reconsideration.
On appeal, appellant alleged that her April 1, 2010 request for an oral hearing was timely
as OWCP’s February 23, 2010 decision was postmarked March 5, 2010.
LEGAL PRECEDENT -- ISSUE 1
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional

3

or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.2
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of FECA. The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of her work or her fear and anxiety regarding her
ability to carry out her work duties.3 By contrast, there are disabilities having some kind of
causal connection with the employment that are not covered under workers’ compensation law
because they are not found to have arisen out of employment, such as when disability results
from an employee’s fear of reduction-in-force or frustration from not being permitted to work in
a particular environment or hold a particular position.4
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by the
evidence.8 Mere perceptions and feelings of harassment or discrimination will not support an
2

D.L., 58 ECAB 217 (2006).

3

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

4

Id.

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon.,
42 ECAB 556 (1991).
6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).

4

award of compensation. The claimant must substantiate such allegations with probative and
reliable evidence.9 The primary reason for requiring factual evidence from the claimant in
support of her allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by OWCP and the Board.10
ANALYSIS -- ISSUE 1
Appellant alleged an emotional condition commencing October 8, 2009 causally related
to factors of her federal employment. She attributed her emotional condition to administrative
and personnel actions taken by management. As noted, administrative and personnel matters are
not covered under FECA absent evidence which establish that appellant’s employer either erred
or acted abusively in the administrative or personnel action.11
On October 8, 2009 appellant together with another coworker, was questioned by her
supervisor regarding a progress review of the self-inspection checklist and related program
documents which needed to be completed by October 16, 2009. She was instructed to provide
additional material and evidence with regard to certain checklist items. Appellant characterized
her treatment by Ms. Rodeheaver as harassment and discrimination. She expressed her
frustration over being questioned about the progress review of the self-inspection checklist.
Appellant did not attribute her condition to any requirement involving her assigned duties under
Cutler.12 Appellant did not provide details about this allegation or supporting evidence to
establish as factual that she was being treated differently than her coworker with regard to the
material her supervisor requested. The Board finds that she has not established a compensable
employment factor.13
On October 8, 2009 appellant stated that she was denied annual leave for October 13
and 14, 2009 due to mission requirements and that she was requested to submit medical
documentation for her sick leave for October 9, 2009. The Board has held that matters regarding
the use of leave are generally not considered compensable factors of employment as they are
administrative functions of the employer and not duties of the employee.14 This allegation is
unrelated to appellant’s regular or specially assigned work duties. In her October 9, 2009 letter,
appellant’s supervisor indicated that annual leave was denied due to mission requirements of the
October 16, 2009 deadline for completing a self-inspection checklist for a unit compliance
9

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
10

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

11

Kim Nguyen, 53 ECAB 127 (2001).

12

Peter D. Butt, Jr., 56 ECAB 117 (2004); Cutler, supra note 3.

13

Sherry L. McFall, 51 ECAB 436 (2000).

14

C.T., Docket No. 08-2160 (issued May 7, 2009).

5

program. The supervisor further indicated that medical documentation was requested for
appellant’s use of sick leave as her previous leave use habits corresponded with office deadlines,
holidays or other planned leave. Ms. Rodeheaver provided a reasonable explanation for her
decisions regarding appellant’s use of leave. Appellant did not establish a compensable work
factor in this matter.
Appellant also expressed her dissatisfaction over why her coworker, who was the newest
member of security, was allowed to attend security trainings as he was not a security manager.
The Board has held that frustration with the policies and procedures of the employing
establishment are administrative matters and are not compensable factors of employment.15 In
this case, appellant provided nothing to substantiate employing establishment error with respect
to its decision to have her coworker attend the security trainings. She therefore failed to show
error or abuse with the policies and procedures of the employing establishment. Thus, appellant
failed to establish a compensable employment factor.
In her EEO complaint form, appellant asserted that she was harassed by and retaliated
against by management, when she received oral counseling on September 10 and 18, 2009 about
her perfume a coworker complained about; on October 2, 2009, when she was accused of signing
in at an earlier time; and on October 8, 2009, when she was denied training. These matters are
administrative as they relate to discipline, investigating and monitoring an employee’s activities
and training.16 Appellant did not provide evidence, apart from her assertions, that the employer
acted unreasonably in these administrative matters. She did not submit any final determinations
from the EEO process tending to support that the employer acted unreasonably in its
administrative capacity.17 Thus, appellant has not established a compensable factor of
employment in this regard.
As the record lacks probative evidence to support appellant’s claim, the Board finds that
she has not established a compensable factor of employment. Appellant therefore did not
establish that she sustained a stress-related condition in the performance of duty as alleged.18
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the

15

See William Karl Hansen, 49 ECAB 140 (1997).

16

See V.W., 58 ECAB 428 (2007) (the handling of disciplinary actions and the monitoring of work activities are
generally related to the employment but are administrative functions of the employer and not duties of the
employee); James E. Norris, 52 ECAB 93 (2000) (training of employees is an administrative matter); C.F., Docket
No. 08-1102 (issued October 10, 2008) (investigations and reactions to disciplinary matters are administrative in
nature and not compensable unless it is established that management erred or acted abusively).
17

James E. Norris, id. (grievances and EEO complaints, by themselves, do not establish that workplace
harassment or unfair treatment occurred).
18

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

6

issuance of the decision, to a hearing on her claim before a representative of the Secretary.19
Section 10.617 and 10.618 of the federal regulations implementing this section of FECA
provides that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.20 Although there is no right to a review of the
written record or an oral hearing if not requested within the 30-day time period, OWCP may
within its discretionary powers grant or deny appellant’s request and must exercise its
discretion.21
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim on February 23, 2010. Appellant’s request for an oral
hearing was dated March 30, 2010 and postmarked April 1, 2010. The date of filing of her
hearing request is determined by the date of the postmark.22 Appellant’s April 1, 2010 hearing
request was made more than 30 days after the date of OWCP’s February 23, 2010 decision. She
contends on appeal that her April 1, 2010 request was timely as the February 23, 2010 decision
was postmarked March 5, 2010.23 The evidence of record at the time of OWCP’s April 23, 2010
decision reflects that the decision denying her claim was issued on February 23, 2010 therefore
the Board finds that her hearing request was not timely. The 30-day time period for determining
the timeliness of appellant’s request for an oral hearing or review commences on the first day
following the issuance of OWCP’s decision.24 As OWCP’s decision was issued February 23,
2010, the 30-day period for requesting an oral hearing began to run on February 24, 2010 and the
last or 30th day was March 25, 2010. Since appellant’s request for an oral hearing was
postmarked April 1, 2010, it is untimely. Accordingly, she was not entitled to a hearing as a
matter of right.
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled as a matter of right. In its April 23, 2010 decision, it properly exercised its discretion.
OWCP considered the issue involved and had denied appellant’s request for a hearing on the
basis that her claim on the issue of whether she established an injury in the performance of duty
could be adequately addressed through the reconsideration process and the submission of
additional evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

22

See N.M., 59 ECAB 511 (2008) (a hearing request must be sent within 30 days of the date of the decision for
which a hearing is sought as determined by postmark or other carrier’s date marking).
23

A copy of an envelope postmarked March 5, 2010 was submitted on appeal and is of record after OWCP’s
April 23, 2010 decision. However, the Board may not consider new evidence for the first time on appeal or
evidence that was not before OWCP at the time of its decision. 20 C.F.R. § 501.2(c); see Robert H. St. Onge,
43 ECAB 1169 (1992).
24

See also John B Montoya, 43 ECAB 1148, 1151-52 (1992); see Donna A. Christley, 41 ECAB 90, 91 (1989).

7

deduction from established facts.25 In the present case, OWCP did not abuse its discretion in
denying a discretionary hearing. For these reasons, it properly denied appellant’s request for an
oral hearing under section 8124 of FECA.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty. The Board also finds that OWCP
properly denied her request for an oral hearing as untimely.
ORDER
IT IS HEREBY ORDERED THAT the April 23 and February 23, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 19, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

25

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0857
Issued: August 8, 2016

Case Submitted on the Record

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

JURISDICTION
On March 14, 20161 appellant filed a timely appeal from the September 18, 2015 merit
decision and a January 19, 2016 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from September 18, 2015, the date of OWCP’s last merit decision was
March 16, 2016. Since using March 22, 2016, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is March 12, 2016. However, as March 12, 2016 was a Saturday, the period for filing
the appeal ran to the next business day, Monday, March 14, 2016, thereby rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1)-(f)(2).
2

The Board notes that on appeal appellant submitted new evidence. The Board is precluded from reviewing
evidence which was not before OWCP at the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a right shoulder
injury causally related to the April 30, 2015 employment incident; and (2) whether OWCP
properly denied his request for a review of the written record as untimely filed pursuant to 5
U.S.C. § 8124.
On appeal appellant contends that the medical evidence of record establishes that he
sustained an employment-related right shoulder injury that required surgery.
FACTUAL HISTORY
On May 2, 2015 appellant, then a 56-year-old manager of distribution operations, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right shoulder strain when he
tripped over a nut and bolt protruding from the base of a pole at work. He did not initially stop
work.
In a May 14, 2015 right shoulder magnetic resonance imaging (MRI) scan report, Dr. J.
Kenneth Allen, a Board-certified radiologist, provided an impression of large bony Bankart
fracture of the anterior inferior glenoid, Hill-Sachs impaction fracture, superior labral tear from
the anterior to posterior (SLAP) extending into the posterior labrum and posterior aspect of the
inferior labrum, longitudinal split tear of the biceps tendon, small rim rent tear of the
supraspinatus tendon, small joint glenohumeral effusion, fluid in the subcoracoid bursa
compatible with bursitis, and mild arthropathic changes in the acromioclavicular joint.
In a June 16, 2015 note, Dr. Barton H. Reutlinger, a Board-certified orthopedic surgeon,
advised that appellant may not return to work from June 3 to August 16, 2015. He reported that
appellant had a shoulder injury that required surgery. Appellant would be unable to work for at
least two and one-half months.
On July 8, 2015 Dr. Ryan J. Krupp, a Board-certified orthopedic surgeon, reported a
diagnosis of Bankart lesion of the right shoulder and a Hill-Sachs closed fracture of the right
humerus. He indicated that appellant was scheduled for surgery.4
A prescription bearing an unknown signature and date ordered a right ace brace. An
April 30, 2015 letter contained the printed name of Denise Wilburn, a nurse practitioner, and
noted that appellant could return to work on May 1, 2015. In a report of the same date, Lucretia
Hovell, also a nurse practitioner, provided findings on physical examination and diagnosed,
among other things, right shoulder pain.
On July 21, 2015 appellant requested authorization for his proposed right shoulder
surgery.
By letter dated August 10, 2015, OWCP notified appellant that initially his claim was
administratively handled to allow medical payments, as it appeared to be a minor injury resulting
4

The record indicates that appellant was scheduled to undergo right shoulder surgery on August 27, 2015.

2

in minimal or no lost time from work. It had not formally considered the merits of appellant’s
claim and noted that it had been reopened because he requested authorization for surgery.
OWCP advised appellant of the type of evidence needed to establish his claim, including a
physician’s opinion explaining how the accepted work incident caused or aggravated the claimed
injury. It allotted him 30 days to respond.
Appellant did not respond to OWCP within the allotted time.
In a September 18, 2015 decision, OWCP accepted that the April 30, 2015 incident
occurred as alleged. However, it denied appellant’s claim and determined that the medical
evidence did not establish a clear history of injury or a rationalized opinion on the causal
relationship between his right shoulder condition and the accepted employment incident.
In an appeal request form dated December 12, 2015, postmarked December 16, 2015, and
received by OWCP’s Branch of Hearings and Review on December 21, 2015, appellant
requested a review of the written record by an OWCP hearing representative. In an
accompanying letter dated December 12, 2015, he responded to OWCP’s August 10, 2015
development letter, contending that his treating physicians had concluded that he sustained a
right shoulder injury due to the April 30, 2015 employment incident. Appellant submitted
additional medical evidence which addressed his right shoulder conditions.
By decision dated January 19, 2016, the Branch of Hearings and Review denied
appellant’s request for a review of the written record as it was untimely filed. It found that the
request was not postmarked within 30 days of the issuance of the September 18, 2015 OWCP
merit decision. After exercising its discretion, the Branch of Hearings and Review further found
that the issue in the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.8
5

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

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

3

The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 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 the
identified factors.10 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury caused by the accepted April 30, 2015 employment incident as he failed to submit
sufficient medical evidence in support of his claim.
Dr. Krupp’s July 8, 2015 report found that appellant had a Bankart lesion of the right
shoulder and a Hill-Sachs closed fracture of the right humerus and recommended surgery. He
did not provide a medical opinion relating that the diagnosed conditions and need for surgery due
to the accepted April 30, 2015 employment incident. Medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.12
Likewise, Dr. Allen’s May 14, 2015 diagnostic test results are of limited probative value.
He addressed appellant’s right shoulder conditions, but failed to provide an opinion addressing
whether the diagnosed conditions were caused or aggravated by the accepted employment
incident.13
Dr. Reutlinger’s June 16, 2015 note found that appellant could not work from June 3 to
August 16, 2015 and that surgery was indicated. He related that appellant would not be able to
work for at least two and one-half months. Dr. Reutlinger did not provide a firm diagnosis of a
particular medical condition,14 any history of injury,15 or a specific opinion on causal relationship

9

John J. Carlone, 41 ECAB 354 (1989); 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

12

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
13

Id.

14

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
15

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).

4

between a diagnosed condition, appellant’s need for surgery and resultant disability, and the
accepted work incident.16
The reports completed by Nurse Practitioners Ms. Wilburn and Ms. Hovell are
insufficient to establish appellant’s claim. These reports are of no probative value as a nurse
practitioner is not considered a physician as defined under FECA17 Likewise, the prescription
for a right ace brace, without a legible signature, has no probative medical value, as it cannot be
established that the author is a physician.18
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained a right shoulder injury causally related to the accepted April 30, 2015
employment incident.
On appeal appellant contends that the medical evidence of record establishes that he
sustained an employment-related right shoulder injury that required surgery. The Board finds
that the weight of the medical evidence does not establish that appellant sustained a right
shoulder condition that warranted surgery causally related to the accepted April 30, 2015 work
incident.
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 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.19 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.20 A claimant is entitled to a hearing or
review of the written record as a matter of right only if the request is filed within the requisite 30
days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration.21 Although there is no right to a review of the written record or an
oral hearing if not requested within the 30-day time period, OWCP may within its discretionary
16

Supra note 12.

17

Section 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); S.H., Docket No. 15-336 (issued April 14, 2015).
18

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

19

5 U.S.C. § 8124(b)(1).

20

20 C.F.R. §§ 10.616, 10.617.

21

Id. at § 10.616(a).

5

powers grant or deny appellant’s request and must exercise its discretion.22 OWCP procedures
require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).23
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant’s request for a review of
the written record was untimely filed as it was made more than 30 days after the issuance of
OWCP’s September 18, 2015 merit decision. The December 12, 2015 form, on which appellant
requested the review, was postmarked on December 16, 2015. The time limitation to request a
review of the written record from OWCP’s Branch of Hearings and Review expired 30 days after
OWCP’s September 18, 2015 decision.24 Section 8124(b)(1) sets an unequivocal time limitation
for requesting a review of the written record.25 Because the request was untimely filed, appellant
was not entitled to a review of the written record as a matter of right under section 8124(b)(1) of
FECA.
Although appellant’s request for a review of the written record was untimely, OWCP has
the discretionary authority to grant the request and it must exercise such discretion. In its
January 19, 2016 decision, it properly exercised its discretion by notifying appellant that it had
considered the matter in relation to the issue involved and that additional argument and evidence
could be submitted with a request for reconsideration. The Board has held that the only
limitation on OWCP’s authority is reasonableness. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.26 In this case,
there is no evidence of record that OWCP abused its discretion by denying appellant’s request
for a review of the written record. Accordingly, the Board finds that OWCP properly denied
appellant’s December 12, 2015 request for a review of the written record.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a right
shoulder injury causally related to the April 30, 2015 employment incident. The Board further
finds that OWCP properly denied appellant’s request for a request of the written record as
untimely filed pursuant to 5 U.S.C. § 8124.

22

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

23

See R.T., Docket No. 08-408 (issued December 16, 2008).

24

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
25

See William F. Osborne, 46 ECAB 198 (1994).

26

Samuel R. Johnson, 51 ECAB 612 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2016 and September 18, 2015
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 8, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, SHAKER HEIGHTS
POST OFFICE, Cleveland, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 21-1141
Issued: March 10, 2022

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 July 20, 2021 appellant, through counsel, sought an appeal from a purported July 20,
2021 decision of the Office of Workers’ Compensation Programs (OWCP). 2 The Clerk of the
Appellate Boards assigned Docket No. 21-1141.
The Board has duly considered the matter and notes that the Board has jurisdiction to the
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act
(FECA).3 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
1

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

Counsel did not appeal from OWCP’s June 7, 2021 merit decision, which affirmed OWCP’s November 30, 2020
forfeiture decision. He identified only the purported July 20, 2021 decision on the application for review (AB-1
Form). Therefore, the Board will not consider the June 7, 2021 OWCP decision in this appeal. See 20 C.F.R. § 501.3;
see also D.E., Docket No. 21-0531 (issued June 16, 2021).
3

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

the date appellant filed her appeal. 4 While there is correspondence dated July 20, 2021, that letter
is purely informational in nature and does not constitute a final adverse decision of OWCP from
which she may properly appeal.5 As there is no final adverse decision issued by OWCP that
counsel has appealed from over which the Board may properly exercise jurisdiction, the Board
lacks jurisdiction over the appeal. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-1141 is dismissed. 6
Issued: March 10, 2022
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

Id. at § 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 OWCP.”
4

5

See Order Dismissing Appeal, K.S., Docket No. 20-1401 (issued March 17, 2021); Order Dismissing Appeal,
S.U., Docket No. 20-0636 (issued December 3, 2020).
6

The Board’s decisions and orders are final upon the expiration of 30 days from the date of their issuance. 20
C.F.R. § 501.6(d).

2


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

)
)
)
)
)
)
)
)

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

Docket No. 21-1185
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 29, 2021 appellant filed a timely appeal from an April 15, 2021 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2021, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 15, 2021 decision, OWCP received additional evidence. The Board’s
Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 9, 2021 appellant, then a 29-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that she suffered a “traumatic injury” on February 18, 2021 when she was
robbed at gun point by two male suspects while in the performance of duty. On the reverse side
of the claim form the employing establishment acknowledged that she was injured in the
performance of duty and that its knowledge of the facts of her injury was consistent with her
statements. Appellant stopped work on February 19, 2021.
A February 18, 2021 police report noted that appellant was robbed at gun point by two
male suspects who fled the scene.
In a development letter dated March 12, 2021, OWCP informed appellant that it had
received no medical evidence in support of her traumatic injury claim. It advised her of the type
of factual and medical evidence needed to establish her claim and provided a questionnaire for her
completion. OWCP also requested a narrative medical report from appellant’s treating physician,
which contains a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to submit the necessary evidence. Appellant did not submit a response.
By decision dated April 15, 2021, OWCP denied appellant’s traumatic injury claim,
finding that she had not established the factual component of her claim, as she had not provided
evidence or a statement explaining how she was injured as a result of the alleged employment
incident. It noted that she had not responded to the March 12, 2021 development letter. OWCP
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6

3

Supra note 1.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

2

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7
Generally, fact of injury consists of two components that must be considered in conjunction with
one another. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time and place, and in the manner alleged. 8 Second,
the employee must submit sufficient evidence to establish that the employment inc ident caused a
personal injury. 9
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action. The employee has not met his or her
burden when there are such inconsistencies in the evidence as to cast serious doubt on the validity
of the claim. 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 the employee’s
statements in determining whether a prima facie case has been established. 10 An employee’s
statement alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on February 18, 2021, as alleged.
In her Form CA-1, appellant indicated that she was robbed at gunpoint on February 18,
2021 by two male suspects, which was confirmed by a police report of even date. However, she
did not provide an explanation as to how she was injured or what body part was injured as a result
of the alleged employment incident. In a development letter dated March 12, 2021, OWCP
requested that appellant submit clarifying information describing how and when her claimed injury
occurred and provided a questionnaire for her completion. However, appellant did not complete
and return the March 12, 2021 development questionnaire. Therefore, she has failed to present a
clear factual statement in the record describing the specific alleged employment-related incident
alleged to have caused or contributed to her claimed medical condition.12 As she has not responded
to the request for factual information to describe the employment incident and circumstances

7

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

C.M., Docket No. 20-1519 (issued March 22, 2021); Betty J. Smith, 54 ECAB 174 (2002).

11

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

12

See D.C., Docket No. 18-0082 (issued July 12, 2018).

3

surrounding her alleged injury, the Board finds that appellant has not established that a traumatic
injury occurred in the performance of duty on February 18, 2021, as alleged.13
The Board further finds that, because appellant failed to establish the first component of
fact of injury, it is unnecessary to discuss whether she submitted medical evidence sufficient to
establish that a medical condition existed and whether the condition was causally related to the
employment factors as alleged. 14 Thus, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty, as alleged.

13

See H.B., Docket No. 18-0278 (issued June 20, 2018); John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40
ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
14

See R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997)
(as appellant failed to establish that the claimed event occurred as alleged, it is unnecessary to discuss the probative
value of medical evidence).

4

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, 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
__________________________________________
G.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chesapeake, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0773
Issued: August 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a January 23, 2019 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted November 20, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

2
The Board notes that, following the January 23, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On December 13, 2018 appellant, a 50-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured her lower back on November 20, 2018 walking up a
driveway with a package while in the performance of duty. She explained that she had removed
the package from the back of her vehicle and, as she started walking up the driveway with the
package, she felt shooting pain in her back and could barely walk. On the reverse side of the claim
form the employing establishment indicated that appellant stopped work on November 20, 2018
and received medical treatment that same day.
A November 20, 2018 workers’ compensation visit summary indicated that Dr. Alan J.
Vanderweele, a family practitioner, saw appellant for complaints of low back pain. Appellant was
reportedly injured that same day. Dr. Vanderweele diagnosed low back pain and placed her on
light duty with a 20-pound lifting restriction, and no stooping/bending. He noted that appellant
could resume full-duty work on November 27, 2018.
A December 6, 2018 duty status report (Form CA-17), signed by an unknown healthcare
provider, noted employment-related left lumbar spasm and tenderness, and advised that appellant
was disabled for work. The Form CA-17 noted a November 20, 2018 history of injury due to
lifting a 30-pound package at work.
In a December 20, 2018 development letter, OWCP notified appellant of the type of
evidence needed to establish her traumatic injury claim. It requested that she provide a narrative
report from her attending physician, which included a diagnosis and an explanation as to how the
reported work incident either caused or aggravated a medical condition. OWCP afforded appellant
30 days to submit the requested information.
In an office visit summary dated November 23, 2018, Dr. Mark E. Skees, a Board-certified
family practitioner, noted that appellant had an acute onset of lower back pain that occurred on
November 20, 2018 while at work delivering a 30-pound package. Appellant was initially seen at
an urgent care facility on the date of her injury. Dr. Skees noted that, since then, appellant had
persistent pain radiating up the left side of her back and tingling down her left leg. Although there
was no weakness in her left leg, appellant had trouble walking due to her lower back pain. The
pain worsened with walking, bending, or lifting, and was alleviated with heat, sitting, or laying
down. Dr. Skees diagnosed left lumbar strain/spasm with no evidence of disc disease at present.
He referred appellant to physical therapy. Dr. Skees also excused her from work.
Appellant followed up with Dr. Skees on December 13, 2018 and January 7, 2019. The
follow-up treatment notes indicated that she had been participating in physical therapy and her
lower back pain had improved. Appellant no longer experienced pain into her legs, but there was
some shooting pain into her buttocks. Her latest clinical assessment was status post lower back
injury at work, lumbar spasm, and left lumbar radiculopathy. Dr. Skees ordered lumbar x-rays and
a magnetic resonance imaging scan, and advised that appellant should remain off work.
By decision dated January 23, 2019, OWCP denied appellant’s traumatic injury claim.
While it accepted that the November 20, 2018 employment incident occurred, as alleged, it found
that no valid diagnosis had been produced in connection with the injury. Thus, appellant had not
met the requirements for establishing an injury as defined by FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every claim, regardless of
whether it is predicated upon a traumatic injury or an occupational disease.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury” has been established.7 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
An employee may establish that an injury occurred in the performance of duty, as alleged, but fail
to establish that the disability or specific condition for which compensation is being claimed is
causally related to the injury.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 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 factor(s).13

3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
G.D., Docket No. 19-0256 (issued May 20, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

10

J.P., supra note 4; L.T., supra note 8; Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

E.M., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

13

Id.

3

ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP denied appellant’s traumatic injury claim because the record purportedly did not
contain a medical diagnosis in connection with the accepted employment incident, noting that
“pain” was not a diagnosis. However, the Board finds that the evidence of record establishes that
Dr. Skees’ November 23, 2018 report diagnosed left lumbar sprain.14 Accordingly, the Board
finds that appellant has established the medical component of fact of injury. The case shall be
remanded for OWCP to address whether appellant’s lumbar condition is causally related to the
accepted November 20, 2018 employment incident. On remand, following any further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds the case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: August 19, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

14

F.P., Docket No. 19-0159 (issued May 7, 2019); T.J., Docket No. 16-0325 (issued June 22, 2016).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Jamaica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1037
Issued: September 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 17, 2012 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs (OWCP) dated December 5, 2011 and March 15, 2012
denying his claim for reimbursement for travel expenses. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are:
(1) whether OWCP properly denied appellant’s request for
reimbursement of travel expenses; and (2) whether it properly denied his requests for subpoenas.
1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. By letter dated May 26, 2012, appellant indicated that
he would not be able to appear in person for an oral argument. Thus, the Board has decided the appeal on the
record.

FACTUAL HISTORY
Appellant, then a 42-year-old air traffic controller, alleged that he sustained an emotional
condition on August 24, 1976 while investigating an airplane crash. OWCP accepted his
November 1976 occupational disease claim for acute chronic depressive reaction and chronic
anxiety with neurosis.3 Appellant retired on disability in 1976.
OWCP paid appropriate wage-loss and medical benefits. By letter dated September 29,
2011, appellant informed OWCP that he had been treated by Andrea Malow, a social worker, for
the previous 10 years and that he would be submitting a printout of his visits in order to receive
reimbursement for his travel expenses for the last three years.
By decision dated December 5, 2011, OWCP denied appellant’s claim for reimbursement
of travel expenses incurred to and from meetings with the social worker on the grounds that she
was not a medical professional and visits with Ms. Malow had not been previously approved.
On December 30, 2011 appellant requested a review of the written record.
In a letter dated January 10, 2012, appellant stated that he desired an oral hearing to
contest the findings on his medical and physical condition. In a February 2, 2012 letter, OWCP
informed him that an oral hearing could not be approved because he had previously requested a
review of the written record.
By decision dated March 15, 2012, OWCP’s hearing representative affirmed the
December 5, 2011 decision. He found that appellant had not requested the services through
proper channels and that there was no evidence that appellant had been referred to Ms. Malow
for the treatment of an accepted condition.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability or aid in lessening the amount of monthly compensation.4
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.5 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment or actions taken which are contrary to
3

Appellant filed three traumatic injury claims: December 4, 1965 (File No. xxxxxx414); April 4, 1971 (File No.
xxxxxx103); and May 6, 1975 (File No. xxxxxx530). These claims were administratively combined with the instant
case, with File No. xxxxxx677 serving as the master file. The case was modified to accept the conditions of
dysthymic disorder, bulimianervosa, obesity, left hip and thigh contusion, osteoarthritis and left medial meniscus
tear.
4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

Joseph P. Hofmann, 57 ECAB 456 (2006); James R. Bell, 52 ECAB 414 (2001).

2

both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.6 In order to be
entitled to reimbursement for medical expenses, a claimant must establish that the expenditures
were incurred for treatment of the effects of an employment-related injury.7
The employee may initially select a physician to provide medical services, appliances and
supplies, in accordance with such regulations and instructions as OWCP considers necessary,
and may be furnished necessary and reasonable transportation and expenses incident to the
securing of such services, appliances and supplies.8
The employee is entitled to reimbursement of reasonable and necessary expenses,
including transportation needed to obtain authorized medical services, appliances or supplies.9
OWCP has broad discretion to authorize necessary and reasonable transportation incident to the
securing of services, appliances and supplies recommended for the treatment of accepted medical
conditions.10 It may authorize medical treatment but determine that the travel expense incurred
for such authorized treatment was unnecessary or unreasonable.11
OWCP procedures describe the circumstances under which various types of services may
be authorized.12 In addition to treatment in a physician’s office, OWCP may authorize nursing
services; physical therapy; occupational and speech therapy; lip reading services; pain clinics;
palliative treatment; acupuncture; chymopapaine treatment; hernia treatment; substance abuse
treatment and dental services. It may also authorize nonmedical services, when recommended
by a physician as likely to cure or give relief, including health club membership, seeing eye and
hearing dogs and a move to a different locality.13
ANALYSIS
The Board finds that OWCP properly denied appellant’s claim for reimbursement of
travel expenses to and from his appointments with his social worker.
Appellant has requested reimbursement for expenses related to his transportation to and
from visits with his social worker. As noted, OWCP has discretion to reimburse a claimant for
6

Claudia L. Yantis, 48 ECAB 495 (1997).

7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

5 U.S.C. § 8103(a).

9

20 C.F.R. § 10.315.

10

A.O., Docket No. 08-580 (issued January 28, 2009) (travel from Florida to New York to obtain medical
treatment).
11

Dr. Mira R. Adams, 48 ECAB 504 (1997).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.5.8
(April 1992).
13

Id.

3

transportation related to authorized medical expenses.14 A social worker is not a physician as
defined by FECA.15 Travel to and from the social workers’ office would therefore not be travel
related to an authorized medical expense.
Furthermore, there is no evidence that appellant’s visits with the social worker were
authorized as nonmedical care. OWCP’s procedures specify nonmedical services which may be
approved. The exhaustive list of nonmedical services covered does not include those of a social
worker.16 Therefore, appellant is not entitled to reimbursement for the claimed travel-related
expenses as an authorized medical or nonmedical expense.
On appeal, appellant contends that it is unreasonable for OWCP to deny reimbursement
for travel expenses related to visits to a social worker. For reasons stated, the Board finds that he
is not entitled to reimbursement for the claimed travel-related expenses.
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 OWCP properly denied reimbursement of travel expenses.

14

See supra note 9 and accompanying text.

15

A social worker is not a physician under FECA. 5 U.S.C. § 8101(2). See George H. Clark, 56 ECAB 162
(2004); Earnest St. Pierre, 51 ECAB 623, 626 (2000) (reports of a social worker do not constitute competent
medical evidence as a social worker is not a physician as defined by 5 U.S.C. § 8101(2), which provides that a
physician includes, surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by state law).
16

See supra note 11 and accompanying text.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 15, 2012 and December 5, 2011 are affirmed.
Issued: September 10, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, HEALTH SERVICE
ADMINISTRATION, Oklahoma City, OK,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 13-1164
Issued: September 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 15, 2013 appellant, through counsel, filed a timely appeal from a March 7, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
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 over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed a
low back, left hip and left knee condition causally related to factors of her federal employment as
a registered nurse.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 19, 2011 appellant, then a 60-year-old registered nurse, filed an
occupational disease claim (Form CA-2) alleging that she developed a low back, left hip and left
knee injury as a result of constant lifting and pulling and frequently repositioning and turning a
patient.2 She first became aware of her condition and of its relationship to her employment on
August 11, 2011. Appellant stopped work and notified her supervisor on August 11, 2011. She
was last exposed to the conditions from her employment on August 26, 2011.
In an attached narrative statement, appellant reported that she began to experience pain in
her low back, abdomen and left hip area around August 6, 2011. The pain became progressively
worse and she sought treatment on August 11, 2011. Appellant’s physician informed her that
she had injured her lower back. Appellant recalled lifting and pulling the week before but did
not experience any discomfort at that time. Her physician informed her that symptoms might not
appear until the injured area becomes swollen and inflamed.
In support of her claim, appellant submitted medical reports dated August 11, 17 and 25,
2011 from Dr. Charles C. Smith, a Doctor of Osteopathic Medicine, who reported that she
complained of pain in the lower abdomen, lower back and right side of her back since Monday.
Dr. Smith reported that a computerized tomography (CT) scan of the lumbar spine revealed
partially occluded nerve root at L5-6 to the left. He diagnosed acute low back pain, lumbar disc
herniation and nerve root compression at L5-S1 left. Dr. Smith reported that appellant could
return to work on August 17, 2011 with limited duties. Appellant could walk and serve patients
but could not lift or turn patients, squat, bend, rotate or lift more than 10 to 15 pounds. Dr. Smith
recommended a magnetic resonance imaging (MRI) scan of the lumbar spine and a neurosurgical
consult.
In a September 16, 2011 memorandum, Cindy Omary, appellant’s supervisor, reported
that appellant informed her that she did not think her condition was work related and she initially
believed that she had a urinary tract infection (UTI).
By letter dated November 7, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In an August 11, 2011 CT scan of the lumbar spine, Dr. Nina C. Jones, a treating
radiologist, reported that appellant revealed L5-S1 broad-based disc bulge with abutment of the
exiting left nerve root. She further noted degenerative facet arthropathy at L4-5, L5-S1 and
osteopenia.
In an August 17, 2011 progress note, Beverly Beatty, a Registered Nurse (RN), reported
that appellant was evaluated regarding the work restrictions provided to her by Dr. Smith.
2

The Board notes that appellant also filed a traumatic injury claim (Form CA-1) for an injury sustained on
August 11, 2011. By letter dated November 22, 2011, OWCP provided clarification on what constitutes a traumatic
injury and occupational disease claim. By letter dated November 30, 2011, appellant pursued her claim as an
occupational injury, stating that her injury was not known until one to two weeks after it occurred.

2

RN Beatty reported that appellant was initially evaluated for a UTI but was told by Dr. Smith
that she had a back injury and was placed on light duty. RN Beatty stated that specific
information was required to assess what type of light-duty restrictions appellant needed and
referred her to a walk-in clinic.
In a November 21, 2011 narrative statement, appellant reported that she believed her
injury occurred while she was caring for a 49-year-old male Down’s Syndrome patient who was
very lethargic and required total care. She stated that she was assigned to this patient on July 30
and July 31, 2011 from 7:30 a.m. to 8:00 p.m. each day. Appellant assisted with all aspects of
his care including turning, repositioning, pulling him up in bed, and cleaning him when he was
incontinent. She also assisted the x-ray technician to obtain a portable chest x-ray at his bedside.
Appellant reported that she did not recall feeling any incidence of pain during the times she cared
for this patient. Approximately one week later on August 6, 2011, she began to experience pain
in her low back, low abdomen and left hip area which worsened over the next few days.
Appellant suspected she was developing a UTI and went to Claremore Indian Hospital Adult
Walk-In Clinic on August 11, 2011 for treatment. She stated that she was examined by
Dr. Charles Smith who ordered labs which revealed normal limits. Dr. Smith then ordered a CT
scan of appellant’s lumbar spine and informed her that she had injured her lower back. He asked
her if she had been lifting or pulling a patient and she informed him that she had done so a week
ago but did not recall experiencing any pain or discomfort at that time. Dr. Smith informed
appellant that her injury was the type where she may not have known when it happened, as the
symptoms for this type of injury commonly did not show until the affected area became swollen
and inflamed as she was experiencing. Appellant reported no prior history of back pain or
problems and no hobbies which could cause her condition.
By decision dated December 21, 2011, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the diagnosed condition was causally related to factors
of her federal employment.
By letter dated December 29, 2011, appellant, through counsel, requested an oral hearing
before the Branch of Hearings and Review.
At the March 21, 2012 hearing, appellant testified as to the prior allegations made in her
narrative statement, arguing that her condition was caused by lifting and pulling patients and that
her symptoms did not appear until a week later. She reported that Dr. Smith had not responded
to her letter and that she was awaiting an additional report from him.
In an April 12, 2012 report, Dr. Smith reported that appellant felt a sudden onset of low
back pain on or about August 11, 2011 after helping to move a patient who was in a hospital bed.
Appellant’s first symptoms seemed to be abdominal fullness. Upon physical examination and
review of a CT scan of the lumbar spine, Dr. Smith diagnosed significant disc bulge at L5-S1
with apparent nerve root compression of the left nerve root. He noted that his initial diagnosis
was that of L5-S1 radiculitis, acute. Appellant was treated with medication and returned on
August 17 and 25, 2011 for follow-up visits when her pain continued. Dr. Smith noted that
appellant had been off work for two weeks until August 25, 2011 but had recently somewhat
increased her nursing work and contact with patients at the hospital. He also noted that an
incidental emergency room (ER) record was found dated January 10, 2012 where appellant had

3

fallen out of a chair in which she was sitting and struck her buttocks on the floor. Diagnosis was
only that of contusion to the buttocks area. Dr. Smith reported that his current impression as of
the date of his April 12, 2012 report was that the LS-S1 left nerve root radiculitis seemed to have
cleared leaving some apparent spinal cord pain issues that as of yet, were unaddressed. He noted
that the pain pattern was of relatively low grade at the time and an MRI scan would clarify the
issue. Dr. Smith recommended that appellant stay with relatively sedentary work without lifting,
pushing or pulling more than 10 pounds on a repetitive basis.
By decision dated May 11, 2012, the Branch of Hearings and Review affirmed OWCP’s
December 21, 2011 decision finding that the evidence of record failed to establish that
appellant’s diagnosed conditions were causally related to factors of her federal employment.
By letter dated June 7, 2012, appellant, through counsel, requested reconsideration of the
May 11, 2012 decision. Counsel stated that he was enclosing Dr. Smith’s April 12, 2012 report
and records from Dr. Troy A. Glaser, Board-certified in family medicine.
In a January 5, 2012 medical report, Dr. Glaser reported that appellant was a new patient
who presented for low back pain which had been present for five months. Associated symptoms
included tingling, stiffness, limited range of motion and catching. Appellant recalled no specific
injury which was causing her pain and was currently employed as a nurse. Dr. Glaser noted that
appellant was previously treated by Dr. Smith and underwent a CT scan of her lumbar spine in
August 2011. He reviewed the August 2011 lumbar spine x-ray and agreed with the report of
L5-S1 herniated disc compressing left S1 nerve root. Upon physical examination, Dr. Glaser
diagnosed lumbar pain and radiculitis and recommended that appellant take two days off work.
In a January 6, 2012 report, Dr. Glaser reported that appellant underwent an MRI scan of
the lumbar spine on January 5, 2012 which revealed L4-5 small disc protrusion into the left
neuroforamen and L5-S1 disc protraction compressing thecal sac. He diagnosed lumbar
radiculitis and lumbar disc displacement. Dr. Glaser provided appellant with treatment options
and recommended that she return to work light duty with a weight restriction of 10 pounds.
By decision dated March 7, 2013, OWCP affirmed its May 11, 2012 decision finding that
the evidence of record failed to establish that appellant’s diagnosed conditions were causally
related to factors of her federal employment as a registered nurse.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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

4

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted appellant’s factors of federal employment as a registered nurse. It
denied her claim, however, on the grounds that the evidence failed to establish a causal
relationship between those activities and her diagnosed conditions. The Board finds that the
medical evidence of record is insufficient to establish that appellant developed a lumbar
condition causally related to factors of her federal employment as a registered nurse.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

5

In an August 11, 2011 diagnostic report, Dr. Jones reported that a CT scan of the lumbar
spine revealed L5-S1 broad-based disc bulge with abutment of the exiting left nerve root,
degenerative facet arthropathy at L4-5, L5-S1 and osteopenia. While Dr. Jones provides a
diagnosis of appellant’s condition, her report fails to state any opinion on causal relationship and
is of limited probative value.9
In medical reports dated August 11 to 25, 2012, Dr. Smith reported that appellant first
sought treatment on August 11, 2011 with complaints of pain in the lower abdomen, lower back
and right side of back. He reported that a CT scan of the lumbar spine revealed partially
occluded nerve root at L5-6 to the left. Dr. Smith diagnosed acute low back pain, lumbar disc
herniation and nerve root compression at L5-S1 left. In an April 12, 2012 report, he reported that
appellant felt a sudden onset of low back pain on or about August 11, 2011 after helping to move
a patient who was in a hospital bed. Upon physical examination and review of a CT scan of the
lumbar spine, Dr. Smith diagnosed significant disc bulge at L5-S1 with apparent nerve root
compression of the left nerve root. He noted that his initial diagnosis was that of L5-S1
radiculitis, acute. Dr. Smith also noted that an incidental ER record was found dated January 10,
2012 where appellant was diagnosed with contusion to the buttocks area after she had fallen out
of a chair in which she was sitting. He reported that his current impression as of this letter was
that the LS-S1 left nerve root radiculitis seemed to have cleared leaving some apparent spinal
cord pain issues that as of yet, were unaddressed. Dr. Smith recommended appellant stay with
relatively sedentary work without lifting, pushing or pulling more than 10 pounds on a repetitive
basis.
The Board finds that the opinion of Dr. Smith is not well rationalized. While Dr. Smith
provided a diagnosis, none of his reports mentioned a work-related cause or aggravation of
appellant’s injuries. His statement that appellant felt a sudden onset of low back pain on or about
August 11, 2011 after helping move a patient who was in a hospital bed is an insufficient opinion
that appellant’s employment factors caused or aggravated her conditions. Moreover, Dr. Smith
did not adequately describe appellant’s work duties and did not specify how often she was
required to perform these tasks and the frequency of other physical movements. He merely
recounted the incident as described by appellant and did not state how helping move a patient
would cause the onset of low back pain. Dr. Smith also failed to provide a detailed and adequate
medical history, only noting an ER visit in January 2012. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.10 Without medical reasoning
explaining how appellant’s employment factors caused her injuries, Dr. Smiths’ reports are
insufficient to meet appellant’s burden of proof.11
In medical reports dated January 5 and 6, 2012, Dr. Glaser reported that appellant was a
new patient who presented for low back pain which had been present for five months. Appellant
recalled no specific injury which caused her pain. Dr. Glaser reviewed the August 2011 lumbar
9

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

10

Id.

11

C.B., Docket No. 08-1583 (issued December 9, 2008).

6

spine x-ray and agreed with the report of L5-S1 herniated disc compressing left S1 nerve root. A
January 5, 2012 MRI scan of the lumbar spine revealed L4-5 small disc protrusion into the left
neuroforamen and L5-S1 disc protraction compressing thecal sac. Dr. Glaser diagnosed lumbar
radiculitis and lumbar disc displacement. He provided appellant with treatment options and
recommended she return to work light duty with a weight restriction of 10 pounds.
The Board notes that Dr. Glaser failed to provide an opinion on the cause of appellant’s
lumbar radiculitis and lumbar disc displacement or explain how her condition was caused or
aggravated by her federal employment duties. Moreover, he did not provide an adequately
detailed medical history or describe appellant’s employment duties as a registered nurse.
Medical reports without any rationale on causal relationship are of diminished probative value
and do not meet an employee’s burden of proof.12 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.13 Dr. Glaser’s reports do not meet that standard and are
insufficient to meet appellant’s burden of proof.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s lumbar condition and factors of her federal employment as a
registered nurse. Thus, appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
lumbar condition is causally related to factors of her federal employment as a registered nurse.

12

Id.

13

See Lee R. Haywood, 48 ECAB 145 (1996).

7

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8