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

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Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1905
Issued: March 26, 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 September 1, 2017 appellant, through counsel, filed a timely appeal from a March 10,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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.
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 March 10, 2017, the date of OWCP’s last decision was Wednesday,
September 6, 2017. Since using September 11, 2017, 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 September 1, 2017, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

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.
ISSUE
The issue is whether appellant has established a cervical condition causally related to her
April 10, 1996 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The facts relevant to this appeal
are set forth below.
On April 22, 1996 appellant, then a 35-year-old letter sorting machine operator, filed a
traumatic injury claim (Form CA-1) alleging that, on April 10, 1996, a machine door struck her
left arm. OWCP accepted the claim for left upper arm contusion, left rotator cuff sprain, and a
closed dislocation of the left shoulder.
Following her injury, appellant worked limited duty until the employing establishment
withdrew her job in September 2010 under the National Reassessment Process. OWCP paid her
wage-loss compensation beginning September 2010.
A magnetic resonance imaging (MRI) scan of the cervical spine, obtained on February 12,
1997, showed no evidence of a disc herniation. An electromyogram (EMG) and nerve conduction
velocity (NCV) study dated March 22, 2002 showed no evidence of cervical radiculopathy,
brachial plexopathy, or distal mononeuropathy. A July 27, 2006 cervical MRI scan revealed
reversal of the cervical lordosis and disc protrusions at C4-5 and C5-6. A cervical MRI scan dated
February 18, 2010 demonstrated a disc herniation on the left at C6-7 flattening the thecal sac and
disc protrusions from C3 through C6.
In a report dated October 26, 2010, Dr. Alfredo Sardinas, an attending Board-certified
orthopedic surgeon, described appellant’s April 10, 1996 employment injury. He opined that the
“force of impact injured her left shoulder and caused her neck to turn rapidly causing a flexion and
extension injury to her cervical spine.” Dr. Sardinas diagnosed a cervical herniated disc and
internal derangement of the left shoulder due to the April 10, 1996 work injury. He noted that
appellant complained of neck pain at the time of his initial evaluation on September 13, 1996.
On December 11, 2012 Dr. Sardinas again opined that appellant sustained a herniated
cervical disc due to her accepted work injury as the impact of the door caused her neck to quickly
turn resulting in a flexion and extension injury.

3

5 U.S.C. § 8101 et seq.

4

Docket No. 14-1845 (issued December 29, 2014); Docket No. 16-1072 (issued July 19, 2016).

2

An OWCP medical adviser reviewed the evidence on March 5, 2013. He noted that a
February 12, 1997 MRI scan showed no evidence of a cervical disc herniation and that there was
no evidence of cervical radiculopathy on a March 22, 2002 EMG/NCV studies. The medical
adviser opined that appellant’s cervical condition was unrelated to her April 10, 1996 left shoulder
injury, noting that there was no evidence of cervical disc herniations until a July 2005 MRI scan.
By letter dated April 17, 2013, OWCP referred appellant to Dr. James E. Butler, a Boardcertified orthopedic surgeon, for a second opinion examination. It requested that he address
whether her cervical condition was caused or aggravated by the April 10, 1996 employment injury.
Dr. Butler, on May 6, 2013, described appellant’s complaints of pain in her left arm, left
shoulder, and left hand. He diagnosed cervical degenerative disc disease without neurological
deficits and a resolved left shoulder injury. Dr. Butler noted that a February 12, 1996 MRI scan
did not show a cervical disc herniation and that electrodiagnostic studies performed on March 22,
2002 failed to demonstrate radiculopathy. He related that a July 25, 2005 MRI scan showed C4-5
and C5-6 disc protrusions and a February 18, 2010 MRI scan showed herniations/ protrusions at
C3 through C7. Dr. Butler advised that appellant’s cervical conditions were not related to the
accepted employment injury, but were instead degenerative in nature.
OWCP determined that a conflict in medical evidence existed regarding whether appellant
sustained a cervical condition causally related to her employment injury. It referred her to
Dr. Frank Barnes, a Board-certified orthopedic surgeon, for an impartial medical evaluation.
In a report dated March 6, 2014, Dr. Barnes reviewed the history of the April 10, 1996
work injury and the medical evidence of record. He diagnosed a partial rotator cuff tear of the left
shoulder with subacromial impingement and cervical degenerative disc disease based on two MRI
scans showing “progression over the years, compatible with the condition’s natural history.”
Dr. Barnes noted that appellant complained of numbness in her left hand to Dr. Sardinas on
September 2, 1996, and he had obtained a cervical spine MRI scan. He opined that appellant’s
cervical condition was unrelated to her April 10, 1996 employment injury, noting that she did not
receive treatment for a neck condition until several years after her injury. Dr. Barnes concluded
that her degenerative disc disease of the cervical spine was not related to her accepted employment
injury.
By decision dated June 18, 2014, OWCP denied appellant’s request to expand her claim to
include a cervical condition causally related to the April 10, 1996 employment injury. It found
that Dr. Barnes’ report constituted the weight of the evidence and established that she did not
sustain cervical degenerative disc disease due to her accepted work injury.
Appellant appealed to the Board. By decision dated December 29, 2014, the Board
affirmed the June 18, 2014 decision.5 It found that Dr. Barnes’ opinion, as the impartial medical
examiner (IME), represented the special weight of the evidence and was sufficient to resolve the
conflict in medical opinion regarding whether appellant sustained an employment-related cervical
condition. The Board discussed counsel’s argument that the statement of accepted facts (SOAF)
did not disclose that she had complained of neck pain after the April 10, 1996 injury, that
5

Docket No. 14-1845 (issued December 29, 2014).

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Dr. Barnes was not properly selected, and that he did not resolve the conflict in medical opinion.
The Board found that Dr. Barnes was provided a complete and accurate background, was properly
selected as a referee physician, and provided a rationalized medical opinion that resolved the
conflict.
On December 17, 2015 appellant, through counsel, requested reconsideration. She again
argued that she complained of cervical pain at the time of her September 13, 1996 evaluation with
Dr. Sardinas. Counsel maintained that the SOAF was incomplete as it failed to indicate that
appellant alleged a neck condition in addition to a left shoulder condition due to her work injury
and that consequently the opinions of Dr. Butler and Dr. Barnes were not based on a complete
background. She further asserted that Dr. Barnes’ opinion was not rationalized or based on a
complete review of the record as he did not review medical evidence regarding her cervical injury
until years after her April 10, 1996 injury.
In support of her reconsideration request, appellant submitted photographs of the work area
where she alleged that the April 10, 1996 employment injury occurred. She resubmitted medical
evidence of record, including cervical MRI scans dated February 12, 1997 and July 27, 2005, an
October 26, 2010 report from Dr. Sardinas, and the March 6, 2014 report from Dr. Barnes.
Appellant also submitted a February 3, 2015 cervical x-ray report from Dr. Lorenzo Farolan, a
radiologist, diagnosing straightening of the cervical lordotic curve consistent with muscle spasms
and osteophytes at C3-7.
By decision dated February 4, 2016, OWCP denied modification of its prior decision.6 It
determined that appellant had not submitted sufficient evidence to show that she sustained a
cervical condition due to her April 10, 1996 work injury.
Appellant appealed to the Board. By decision dated July 19, 2016, the Board affirmed the
February 4, 2016 decision, finding that she had not established a cervical condition as a result of
her April 10, 1996 work injury.7 It noted that it had previously found that Dr. Barnes based his
opinion on a complete factual background and declined to review the evidence and arguments
addressed in its prior decision. The Board found that the newly submitted evidence was
insufficient to establish that appellant sustained a cervical condition due to her April 10, 1996
employment injury.
On December 12, 2016 appellant, through counsel, requested reconsideration. Counsel
asserted that she complained of cervical pain at the time of her initial evaluation with Dr. Sardinas
on September 13, 1996 and discussed the findings on the 2005 cervical MRI scan study. She
further argued that Dr. Butler provided no rationale for his opinion and that Dr. Barnes relied upon
an incomplete SOAF as it did not indicate that appellant complained of neck pain
contemporaneous with her injury. Counsel additionally asserted that Dr. Barnes did not have a
6
The Board notes that OWCP denied modification of the Board’s December 29, 2014 decision. OWCP, however,
is not authorized to review Board decisions, which are final after 30 days and are not subject to review except by the
Board. Although the December 29, 2014 decision was the last merit decision of record, OWCP’s June 18, 2014
decision is the appropriate subject of possible modification by OWCP. See 20 C.F.R. § 501.6(d),
7

Docket No. 16-1072 (issued July 19, 2016).

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complete record to review. She maintained that Dr. Barnes relied upon an inaccurate history of
appellant not complaining of neck symptoms until several years after her injury. Counsel
summarized new evidence submitted with the reconsideration request.
Appellant submitted treatment notes dated February 6 through July 8, 1997, a bone density
scan dated October 20, 2016, and the February 12, 1997 and July 27, 2005 cervical MRI scan
studies. She also submitted a November 11, 2010 report from Dr. Sardinas.
In a report dated December 13, 2016, Dr. Sardinas opined that appellant’s April 10, 1996
work injury resulted in a neck injury as the force caused quick flexion and extension of her neck.8
He related, “It is in all medical probability that both the left shoulder and the cervical spine were
injured as a result of this injury….” Dr. Sardinas requested that OWCP expand acceptance of the
claim to include a herniated cervical disc and also noted that appellant sustained left shoulder
internal derangement.
By decision dated March 10, 2017, OWCP denied modification of its prior decision.9 It
found that appellant had not submitted a reasoned report bolstered by objective findings
demonstrating that she sustained a cervical condition due to her April 10, 1996 employment injury.
On appeal counsel asserts that appellant’s attending physician submitted a reasoned report
sufficient to establish causal relationship between her cervical condition and her April 10, 1996
employment injury. She notes that she complained of neck pain on September 13, 1996 and
Dr. Sardinas obtained a cervical MRI scan study and related that she probably injured her neck at
the time of her work injury.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.10 To establish 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.11 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
8

Dr. Sardinas, in a progress report dated December 8, 2016, treated appellant for left arm tenderness. On
December 13, 2016 he indicated that she could not return to work without limitations.
The Board notes that OWCP denied modification of the Board’s July 19, 2016 decision. OWCP, however, is not
authorized to review Board decisions, which are final after 30 days and are not subject to review except by the Board.
Although the July 19, 2016 decision was the last merit decision of record, OWCP’s February 4, 2016 decision is the
appropriate subject of possible modification by OWCP. See 20 C.F.R. § 501.6(d),
9

10

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

11

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

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the claimant.12 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.13
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14
ANALYSIS
As noted, this case has previously been before the Board. In its prior decisions, the Board
found that the opinion of Dr. Barnes, an IME, represented the special weight of the evidence and
established that appellant did not sustain an employment-related cervical condition. It considered
counsel’s arguments that the SOAF was incomplete as it failed to set forth that she had complained
of neck pain soon after the April 10, 1996 injury, that Dr. Barnes was not properly selected as
IME, and that his opinion was not rationalized and thus, insufficient to resolve the conflict in
medical opinion. On reconsideration counsel again asserted that she complained of neck pain at
the time of her initial evaluation with Dr. Sardinas, that the SOAF provided to Dr. Butler and
Dr. Barnes was incomplete, and that Dr. Barnes’ report was insufficient to resolve the conflict in
medical opinion. The Board, however, previously considered these arguments. The Board will
not review evidence and argument previously addressed, as those matters are res judicata absent
any further review by OWCP.15
On reconsideration appellant submitted treatment notes and the results of diagnostic studies
which were previously considered. She also submitted an October 20, 2016 bone density scan.
However, diagnostic reports which offer no opinion regarding causal relationship are of limited
probative value.16
In a report dated December 13, 2016, Dr. Sardinas asserted that appellant sustained a
cervical condition due to her April 1996 employment injury and explained the mechanism by
which the force of impact caused injury due to rapid flexion and extension of the cervical spine.
He opined that she probably sustained a neck injury in addition to her shoulder injury on April 10,
1996 and requested expansion of the claim to include a herniated cervical disc. Dr. Sardinas,
however, was on one side of the conflict resolved by Dr. Barnes. A medical report from a
physician on one side of a conflict resolved by an impartial medical examiner is generally
insufficient to overcome the special weight accorded the report of an IME or to create a new

12

See John W. Montoya, 54 ECAB 306 (2003).

13

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

14

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

15

See Robert G. Burns, 57 ECAB 657 (2006).

16

See E.B., Docket No. 17-0305 (issued July 10, 2017).

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conflict.17 Dr. Sardinas’ report is thus insufficient to overcome the special weight accorded to
Dr. Barnes’ opinion or to create a new conflict in medical opinion.18
On appeal counsel contends that the opinion of Dr. Sardinas is well reasoned and thus,
sufficient to demonstrate that she sustained a cervical condition due to her April 10, 1996
employment injury. As discussed, however, Dr. Sardinas was on one side of the conflict resolved
by the IME, and thus, his additional report is insufficient to meet her burden of proof.19
Counsel notes that appellant complained of neck pain on September 13, 1996 and
Dr. Sardinas obtained a cervical MRI scan study and related that she probably injured her neck at
the time of her work injury. As noted, however, the Board specifically addressed this argument in
its December 29, 2014 decision and found that the SOAF provided a proper factual background.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a cervical condition causally related to
her April 10, 1996 employment injury.

17

See Jaja K. Asaramo, supra note 10; Michael Hughes, 52 ECAB 387 (2001).

18

See K.R., Docket No. 16-0542 (issued December 21, 2016).

19

See M.O., Docket No. 17-0096 (issued December 15, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the March 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Memphis, TN, Employer
__________________________________________

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

Docket No. 07-624
Issued: June 1, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 3, 2006 merit decision concerning his entitlement to schedule
award compensation for hearing loss and a November 16, 2006 nonmerit decision denying his
request for further review of the merits of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over these decisions.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he has
more than a 29 percent binaural hearing loss for which he received schedule award
compensation; and (2) whether the Office properly denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

FACTUAL HISTORY
On October 14, 2005 appellant, then a 54-year-old crane operator, filed an occupational
disease claim alleging that he sustained hearing loss due to exposure to hazardous noise at work
since 1974, including noise from stream machines with winches, generators, air compressors and
engines.
In December 2005, the Office referred appellant to Dr. Edgar Franklin, a Board-certified
otolaryngologist, for otologic and audiologic testing. On December 8, 2005 Dr. Franklin
determined that appellant had a bilateral sensorineural hearing loss due to exposure to noise.
Testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
(cps) revealed decibel losses of 15, 25, 45 and 55 respectively. Testing for the left ear at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed decibel losses of
more than 100 at these frequency levels which Dr. Franklin identified as NR or no reaction. He
noted that appellant reported having hearing loss in the left ear since serving in Vietnam. On
December 13, 2005 an Office district medical adviser determined that appellant had a 15 percent
binaural hearing loss. He did not include any rating for the left ear.
The Office accepted that appellant had a noise-induced bilateral hearing loss. In a
February 24, 2006 decision, the Office granted appellant a schedule award for a 15 percent
binaural hearing loss. The award ran from December 5, 2005 to February 18, 2006.
Appellant requested a review of the written record by an Office hearing representative.
In a decision dated and finalized July 10, 2006, the Office hearing representative set aside the
February 24, 2006 decision and remanded the case to the Office for further development. The
hearing representative determined that the Office should have included hearing loss of
appellant’s left ear in the calculation of binaural hearing loss because, when determining the
amount of a schedule award for a member of the body that sustained an employment-related
permanent impairment, preexisting impairments of the body are to be included. He directed the
Office to request that Dr. Franklin provide a supplemental report which evaluated appellant’s left
and right hearing losses.
On August 24, 2006 Dr. Franklin stated that the hearing loss of appellant’s right ear was
15 percent, the hearing loss of his left ear was 100 percent and the binaural hearing loss was
29.2 percent. On September 25, 2006 the Office district medical adviser concluded that appellant
had a 29 percent binaural hearing loss. He noted that, under the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001), if hearing loss at a given
frequency level is more than 100 decibels then the figure of 100 decibels should be used in hearing
loss calculations.
By an October 3, 2006 award of compensation, the Office granted appellant a schedule
award for an additional 14 percent binaural hearing loss such that he was compensated for his
total binaural hearing loss of 29 percent.1

1

Appellant received a total of 58 weeks of compensation.

2

By letter dated October 22, 2006, appellant requested reconsideration and argued that he
was rated for a 100 percent hearing loss in his left ear but only received an award for a
14 percent hearing loss in his left ear.
In a November 16, 2006 decision, the Office denied appellant’s request for further review
of the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulation3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.4
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
the ability to hear everyday speech under everyday conditions.7 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural
loss is determined by calculating the loss in each ear using the formula for monaural loss; the
lesser loss is multiplied by five, then added to the greater loss and the total is divided by six to
arrive at the amount of the binaural hearing loss.9 If hearing loss at a given frequency level is
more than 100 decibels or beyond the range of the audiometer the level should be taken as 100 for
hearing loss calculations.10 The Board has concurred in the Office’s adoption of this standard for
evaluating hearing loss.11 It is well established that, in determining the amount of a schedule award
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404 (1999).

4

Id.

5

A.M.A., Guides 224-25 (4th ed. 1993); A.M.A., Guides at 226-51 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

10

A.M.A., Guides 247.

11

Donald Stockstad, 53 ECAB 301 (2002); petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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for a member of the body that sustained an employment-related permanent impairment, preexisting
impairments of the body are to be included.12
ANALYSIS -- ISSUE 1
On September 25, 2006 the Office medical adviser reviewed the otologic and audiologic
testing performed on appellant by Dr. Franklin, a Board-certified otolaryngologist and applied
the Office’s standardized procedures to this evaluation. Testing for the right ear at the frequency
levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 25, 45 and 55
respectively. These decibel losses were totaled at 140 decibels and were divided by 4 to obtain
the average hearing loss of 35 decibels. This average loss was then reduced by 25 decibels
(25 decibels being discounted as discussed above) to equal 10 which was multiplied by the
established factor of 1.5 to compute a 15 percent hearing loss in the right ear. For the frequency
levels of 500, 1,000, 2,000 and 3,000 cps in the left ear, decibel losses of 100 were used for each
level.13 These decibel losses total 400 decibels and when divided by 4 result in an average
hearing loss of 100 decibels. This average loss when reduced by 25 decibels (25 decibels being
discounted as discussed above) equals 75, which when multiplied by the established factor of
1.5 equals 112.5, which would translate into a 100 percent hearing loss in the right ear. To
compute the binaural hearing loss, the lesser loss in the right ear, 15 percent, is multiplied by the
established factor of 5 and added to the 100 percent loss in the left ear. This sum is divided by
the established factor of 6 to equal 29.17, which when rounded down to the nearest whole figure
equals a 29 percent binaural hearing loss.
On appeal, appellant contends that the schedule award he received was not adequate
compensation for his binaural hearing loss. The schedule award provision of the Act provides
for compensation to employees sustaining permanent impairment from loss of use of specified
members of the body.14 The Act establishes a maximum of 200 weeks of compensation as the
award for total binaural hearing loss.15 A partial loss of hearing is compensated at a
proportionate rate.16 Appellant’s award of compensation for a 29 percent binaural hearing loss
entitled appellant to 29 percent of 200 weeks of compensation or 58 weeks of compensation.
The record indicates that he has already received this amount of compensation. Because
appellant has been fully compensated for the binaural hearing loss and his condition has not
worsened since that time under the Office’s standards for evaluating hearing loss, he is not
entitled to any additional compensation.
12

Howard P. Lane, 36 ECAB 107, 108-09 (1984).

13

The medical adviser properly included hearing loss of appellant’s left ear in the calculation of binaural hearing
loss because, when determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be included. He also properly
noted that if hearing loss at a given frequency level is more than 100 decibels, as is the case for appellant at the relevant
levels, the level should be taken as 100 for hearing loss calculations. See supra notes 11 and 12 and accompanying text.
14

5 U.S.C. § 8107(c).

15

Id. at § 8107(c)(13)(B).

16

Id. at § 8107(c)(19).

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LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulation provides that the evidence or argument submitted by 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) constitute
relevant and pertinent new evidence not previously considered by the Office.18 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his application for review within one year of the date of that decision.19 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.20 While a reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.21
17

ANALYSIS -- ISSUE 2
In support of his October 22, 2006 reconsideration request, appellant argued that he was
rated for a 100 percent hearing loss in his left ear but only received an award for a 14 percent
hearing loss in his left ear. The advancement of this argument would not require reopening of
appellant’s claim for further review of the merits because his argument does not present a legal
contention with a reasonable color of validity. He argues that he received incorrect schedule
award compensation based on the hearing loss rating for his left ear. However, appellant did not
receive schedule award compensation based on hearing loss ratings for each ear, but rather
received such compensation based on a rating for binaural hearing loss which combined the
hearing loss for each ear according to the formula described above.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its October 3, 2006 decision under section 8128(a) of the Act, because the
argument he submitted did not show that the Office erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by the Office or
constitute relevant and pertinent new evidence not previously considered by the Office.

17

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

21

John F. Critz, 44 ECAB 788, 794 (1993).

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CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a 29 percent binaural hearing loss for which he received schedule award
compensation. The Board further finds that the Office properly denied appellant’s request for
further review of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 16 and October 3, 2006 decisions are affirmed.
Issued: June 1, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, NORTH VIEW
ANNEX, Lincoln, NE, Employer
__________________________________________

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

Docket No. 08-1529
Issued: July 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 5, 2008 appellant filed a timely appeal from the March 28, 2008 merit decision
of an Office of Workers’ Compensation Programs hearing representative, finding that he did not
sustain an emotional condition in the performance of duty and an April 22, 2008 nonmerit
decision, denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that he sustained an emotional
condition in the performance of duty; and (2) whether the Office properly denied appellant’s
request from further merit review of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 1 and 2, 2006 appellant, then a 56-year-old mail carrier, filed occupational
disease claims alleging that on July 20, 2005 he became aware of his emotional condition. On
July 25, 2005 he realized that his condition was caused by work-related stress. Appellant stated

that management compared his “office time against a computer” and required him to carry his
route faster than he was capable of doing.
In an April 4, 2006 letter, Michael Davidson, a union steward, stated that appellant was
concerned about the delivery operations information system (DOIS) projections. He stated that
every carrier’s mail volume was counted by line or feet on a daily basis to calculate an average
piece count that was entered into a computer. Based on a combination of letters, flats and fixed
office time, an estimate was made of how many hours and minutes it should take a carrier to
complete a route. Mr. Davidson contended that the DOIS projections left out several important
items. Management entered an average parcel and accountable total which was essentially the
same everyday but which varied on certain days. When this occurred, a carrier had to inform a
supervisor that the route may not be completed within DOIS projections. Mr. Davidson stated
that this caused carriers and management to disagree about how long it should take to deliver a
route and resulted in undo stress for carriers.
Appellant submitted medical records dated January 9 through June 29, 2006, which stated
that his heart problems, emotional condition and disability were due to work-related stress.
In a letter dated September 6, 2006, Kathi Fensky, an employing establishment injury
compensation specialist, controverted appellant’s claims. She stated that carrier supervisors used
DOIS calculations as the standard of measurement for daily supervision of productivity. These
calculations were used to determine the daily volume of mail so that management could make a
decision on whether overtime, help or undertime was warranted. Ms. Fensky related that, despite
appellant’s dislike for being managed in this manner, it was the only way management could
effectively and fairly manage the operation. She argued that management had the authority to
question and direct conduct and work. Ms. Fensky contended that appellant’s reaction was
clearly self-generated and he did not submit evidence establishing that management had
committed error or abuse.
In narrative statements dated September 18 and 24, 2006, appellant contended that he
was harassed by his managers even though they were aware of his medical problems. He noted
that management strictly followed the computer figures. On June 21 and 22, 2006 a supervisor
trainee informed appellant that he had quite a bit of undertime based on computer data.
Appellant replied that he was doing the best he could and that if he had any undertime, he would
use sick leave. The supervisor trainee insisted that he perform more work. Appellant became
stressed and started shaking. He called in sick on June 23 and 24, 2006. When appellant
returned to work on June 27, 2006, a supervisor asked him for a statement from an attending
physician regarding his absence from work. He was unaware of this policy. Appellant stated
that the supervisor made a bet with another supervisor that he would call in sick. On August 1
and 24, 2006 a station manager repeatedly informed him that he had undertime. Appellant
responded that he could not work fast due to his age. He stated that his heart problems only
arose at work due to stress from management. On October 6, 2006 appellant added that
managers were going to put him in a stressful situation by following him on his route all day.
By letter dated October 11, 2006, the Office requested that the employing establishment
respond to appellant’s allegations. It also advised him that the evidence submitted was
insufficient to establish his claim. The Office requested additional factual and medical evidence.

2

Appellant submitted medical records dated January 29, 2002 to September 26, 2006, which
stated that his heart and emotional conditions were work related.
In an October 16, 2006 letter, Todd N. Case, a manager, and Tami Adams, a supervisor,
disagreed with appellant’s allegations. Mr. Case stated that Ms. Adams did not actually bet him
that appellant would call in sick. She stated, “what do you wanna bet [appellant] calls in sick
tomorrow,” which was a figure of speech. Mr. Case stated that Ms. Adams made the statement
because appellant had previously called in sick after they discussed his work performance with
him. He denied repeatedly visiting appellant’s case. Mr. Case and Ms. Adams visited each
carrier once daily to discuss the plan for the day based on a DOIS data report. He addressed
appellant’s questions regarding DOIS figures in a nonconfrontational manner. Mr. Case noted
that appellant was not being pushed to work while on the street as the DOIS report showed that
he experienced difficulty getting out of the office on time. The only time he questioned him
about being under time was when a large amount of it was projected. Mr. Case stated that
appellant was rarely challenged and management was very hesitant to discuss anything with him
because he would react by filing a workers’ compensation claim. He stated that proper
procedures for managing carriers was followed in planning the one-day mail count and street
observation of appellant. Since September 2006, no other carriers who had their routes counted
alleged harassment or filed a workers’ compensation claim. Mr. Case denied committing any
error or abuse.
In an undated letter, appellant stated that he did not take his two 10-minute breaks or
lunch in order to perform his work duties.
Narrative statements dated October 16 to December 18, 2006 were submitted from
appellant’s coworkers, Marlowe M. Polen, Diane Sorenson, Mrs. Mayer, Pat Campbell, Rex
Anderson and one person whose signature is illegible. Each stated that their work was stressful
as it was demanding and their job performance was evaluated by DOIS data. Supervisors and
managers demanded that they follow the rules regarding their delivery responsibilities.
Mr. Polen stated that on June 21 and 22, 2006 he heard appellant tell Dick Pavlish, an acting
supervisor, that he could not rely on undertime data. On a later date, appellant sounded stressed
when Mr. Pavlish again informed him about his undertime. Mr. Polen related that appellant
responded that he was doing his best. Mr. Campbell stated that verbal confrontations between
letter carriers and supervisors ranged from unpleasant to rude and demoralizing to insulting.
Mr. Anderson stated that employees were allowed two 10-minute breaks in the morning before
they delivered the mail and one 30-minute lunch break. He related that appellant may have taken
a break three times. Appellant told Mr. Anderson that he seldom took breaks so that he could
complete his work on time.
In an October 15, 2006 statement, Mr. Davidson related that appellant called in sick on
June 23 and 24, 2006 and returned to work on June 27, 2006. Ms. Adams requested that he
submit a note from an attending physician before he could return to work. Mr. Davidson stated
that appellant was not aware of this policy and became upset about the request. Ms. Adams
informed him that a physician’s note was not necessary but, he stated that he wanted to submit it
anyway. Mr. Davidson also noted that prior to this incident appellant had several disagreements
with Mr. Pavlish which caused him to become upset.

3

In a November 8, 2006 statement, appellant related that he had stopped taking his lunch
break because management wanted good statistics no matter the cost. When he tried to take his
lunch break at the end of the day, a manager instructed him to take it on his route at his regular
time. On December 15, 2006 appellant stated that he could not talk to management because he
was afraid of being verbally abused. He contended that Mr. Case failed to follow proper safety
procedures while following him on his route. Appellant backed up his vehicle several times
while carriers were only allowed to do so when parking a truck at the station. He received a
suspension letter for a safety violation committed on his route. Appellant contended that he was
verbally and mentally harassed by the supervisor trainee on June 21 or 22, 2006 for being
undertime.
On October 31, 2006 the employing establishment advised appellant that he was entitled
to leave under the Family and Medical Leave Act (FMLA) during the period October 23 through
29, 2006 for his cardiac and emotional conditions. Appellant contended that he was entitled to
additional leave for the period June 23 through July 2, 2006 but, it was not offered to him.
By decision dated January 5, 2007, the Office denied appellant’s claim, finding that he
did not sustain an emotional condition in the performance of duty. The evidence failed to
establish a compensable factor of his employment.
On January 11, 2007 appellant requested an oral hearing before an Office hearing
representative. In an undated statement, he alleged that on January 19, 2007, Mr. Case denied
his request for emergency sick leave to attend a medical appointment with Dr. Pitsch to discuss
his aneurism. Mr. Case told appellant that no one was available to cover his route. He again
denied his request for leave in the presence of Kelly Wood, a union steward, which caused him
to become stressed. Ms. Wood noted on the statement that she witnessed the conversation
between appellant and Mr. Case. On June 23, 2007 appellant contended that the DOIS count did
not consider the employing establishment’s regulations regarding route examination.
Appellant also contended that he became stressed after Jeff Duba, an employing
establishment family medical leave coordinator, informed him that his request for leave under
the FMLA for five days per month had been denied by management. He stated that management
expected him to produce more work in the Office on May 29, 2007. On that date, appellant
experienced heart problems while working on his route and he called the office around
12:00 p.m. Mr. Case came out to his route and took him to a hospital emergency room.
Appellant related that on February 26, 2007 he was at his case separating mail that he had
brought back from his route when Mr. Pavlisch told him to stop. He contended that Mr. Pavlisch
discriminated against him because he did not require Brian Spale, a coworker, to stop sorting his
returned mail.
In a July 5, 2006 letter, Michael Holloway, a district manager, note that the DOIS
projections were used throughout the United States. He contended that the request for medical
documentation in support of appellant’s absence from work did not constitute discrimination.
On June 21, 2007 Ms. Wood stated that plenty of eligible employees were available to
work overtime to cover appellant’s route on January 19, 2007.

4

On July 9, 2007 appellant contended that Mr. Case had plenty of employees to cover his
route, but he did not want to pay overtime.
Appellant subsequently contended that work-related stress caused his heart condition. He
stated that on July 20, 2005 a personnel staffer informed him that he could not wear shoes that
supported his ankles despite receiving prior approval to wear them from Mr. Case. On
October 5, 2005 appellant received approval to wear the shoes after he discovered they were
allowed to be worn at another post office. On April 14, 2007 a FMLA coordinator lied to him in
stating that his request for leave under the FMLA had been disapproved on April 13, 2007.
In a February 15, 2008 letter, Louise M. Crooks, a safety and injury compensation
specialist, stated that appellant received special treatment from his manager due to his reaction to
administrative functions he did not like. She related that managers were concerned about his
medical condition and immediately provided him with assistance when he requested it.
Ms. Crooks stated that they used their own vehicles to transport him to the emergency room.
She recommended that appellant seek a light-duty job to accommodate his medical conditions as
set forth in his union contract.
On February 12, 2008 Mr. Case denied appellant’s allegations of harassment. He stated
that managers were trained to treat employees with dignity and respect. Mr. Case noted that
scores from an employee survey over the last quarters revealed an improved workplace
environment. He implemented weekly “good news” talks to become more proactive in
recognizing employees and their contributions. Mr. Case denied that he or any other manager
verbally abused appellant. He attributed appellant’s emotional condition to nonwork-related
stressors, which included arguments with his wife, mother and siblings, being a recovering
alcoholic and receiving psychiatric treatment for seasonal depression during the winter.
Mr. Case expressed his concern for appellant by going out to his route and taking him to the
emergency room. He denied any knowledge of his heart condition. Mr. Case stated that the
DOIS was not used to harass appellant and that it was not the sole tool used to determine work
hours. Managers asked for carrier input, looked at mail mix, weather conditions, parcel volumes
and other carrier projections. Unlike other carriers, appellant received special treatment.
Although he stated on numerous occasions that he would use sick leave for his undertime,
Mr. Case stated that the majority of the time he never did so and he was not challenged the next
day. He related that the DOIS was an approved tool and it projected work hours based on an
individual’s demonstrated performance. Mr. Case indicated that the program was adjusted to
reflect appellant’s most recent performance. He discussed appellant’s performance with him on
several occasions.
On February 14, 2008 Kerry Kowalski, postmaster, stated that the DOIS was a
management tool used to estimate carriers’ daily workload. Postmaster Kowalski stated that it
did not change a letter carrier’s reporting requirements or a supervisor’s scheduling
responsibilities. The DOIS projections were not the sole determinant of the time a carrier left or
returned or daily workload and could not be used as the sole basis for corrective action.
On February 18, 2008 appellant stated that he did not know that he could request a
light-duty job based on the union contract and denied receiving special treatment from
management. He filed a complaint against management on February 5 and 11, 2007 with the

5

Equal Employment Opportunity Commission (EEOC). Appellant stated that his family stressors
occurred 7 to 10 years prior and contended that the discussions with Mr. Case regarding his work
performance constituted harassment.
In a February 27, 2008 statement, Jon D. Vance, president of the union, stated that as a
result of numerous grievances filed against the employing establishment regarding the DOIS, a
settlement agreement had been reached recently. Under the agreement, the DOIS was not the
sole determinant of a carrier’s leaving or return time or daily workload. It was also not the sole
basis for corrective action. Mr. Vance related that prior to the agreement, management informed
carriers about their leaving time and total workload for the day without discussion. He stated
that management refused the union’s request to “lay off” appellant due to his heart condition.
By decision dated March 28, 2008, an Office hearing representative affirmed the
January 5, 2007 decision. She found that appellant did not sustain an emotional condition in the
performance of duty because he failed to establish a compensable factor of his employment.
In an April 6, 2008 letter, appellant requested reconsideration, questioning advice he
received from the Office hearing representative. She noted that he could either appeal her
decision or file a complaint with the EEOC. An undated partial decision from the EEOC denied
appellant’s complaint alleging harassment by management on the grounds that it was untimely
filed and failed to state a claim. A letter from a law firm addressed his possible membership in a
class action suit filed against the employing establishment.
By decision dated April 22, 2008, the Office denied appellant’s request for
reconsideration. It found the personal evidence submitted to be irrelevant and insufficient to
warrant further merit review of his claim.
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.1 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his 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. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
1

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

2

See Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

6

compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
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 the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or his frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.11

4

5 U.S.C. §§ 8101-8193.

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

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

8

Id.

9

Lillian Cutler, supra note 3.

10

Michael L. Malone, 46 ECAB 957 (1995).

11

Charles D. Edwards, 55 ECAB 258 (2004).

7

ANALYSIS -- ISSUE 1
Appellant attributed his emotional condition to harassment discrimination by postal
management. He contended that his work performance was compared to DOIS projections that
did not consider the employing establishment’s regulations regarding route examination.
Management required appellant to work faster than his physical capabilities although it was
aware of his medical problems. He also alleged that Mr. Pavlish, a supervisor trainee, and
Mr. Case, a station manager, verbally abused him about having undertime and insisted that he
perform more work. Ms. Adams also bet Mr. Case that he would call in sick. Upon his return to
work, management requested that he submit medical documentation for his two-day absence.
Appellant was followed on his route by a manager. He also alleged that his work duties
prevented him from taking his breaks. Appellant received a suspension letter for committing a
safety violation yet Mr. Case committed a safety violation by backing up his vehicle while
monitoring appellant on his route. The employing establishment failed to offer him leave under
the FMLA for the period June 23 through July 2, 2006. Mr. Duba informed him that his request
for five days of leave per month under the FMLA had been denied by management. Mr. Case
denied appellant’s request for emergency sick leave to attend a medical appointment with
Dr. Pitsch concerning his aneurism, stating that no one was available to cover his route.
Appellant contended that there were plenty of employees to cover his route. A FMLA
coordinator lied to him in stating that his request for leave under the FMLA had been
disapproved on April 13, 2007. Appellant stated that Mr. Pavlish instructed him to stop
separating the mail returned from his route while he did not require Mr. Spale to stop sorting his
returned mail. A personnel staffer denied his request to wear special shoes although he had
received prior approval to wear them. Appellant also filed an EEOC complaint against the
employing establishment alleging harassment.
The Board notes that verbal abuse or harassment may give rise to coverage under the Act.
However, there must be evidence that the implicated acts of harassment did, in fact, occur. Mere
perceptions of harassment or discrimination are not compensable under the Act. A claimant
must establish a factual basis for allegations that the claimed emotional condition was caused by
factors of employment.12 The Board finds that appellant has not established that he was
harassed, verbally abused or discriminated against by his management or supervisors. Although
Mr. Davidson stated that disagreement between carriers and management about DOIS
projections caused undue stress on carriers, he did not state that management used the
projections to harass appellant. Appellant’s statement that verbal abuse by a postmaster towards
a union steward caused him to resign does not substantiate his allegation that he was verbally
harassed by management. Mr. Campbell’s statement that verbal confrontations between letter
carriers and supervisors ranged from unpleasant to insulting does not describe any specific
instances in which appellant was verbally abused by supervisors. Mr. Calson’s statement did not
substantiate the stressful working conditions alleged by appellant. Appellant did not submit any
evidence to corroborate his allegation that he was treated differently than Mr. Spale when he was
ordered to stop separating his returned mail by Mr. Pavlisch. Ms. Crooks and Mr. Case denied
12

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).

8

harassing him, stating that managers were concerned about appellant’s medical condition and
helped him when requested. When appellant became sick on his route Mr. Case took him to the
emergency room. Ms. Crooks recommended that he seek a light-duty job and assistance from
the EAP. Mr. Case stated that he trained managers to treat employees with dignity and respect
and implemented weekly talks to recognize employees and their contributions. The evidence
submitted from appellant’s coworker does not address with any specificity the allegations of
abuse or harassment related in this claim. The Board finds that appellant has not established a
compensable employment factor under the Act with respect to the claimed harassment or
discrimination.
Appellant took exception to the monitoring of his work by managers. This pertains to an
administrative or a personnel matter, which is noncompensable unless the employee shows that it
erred or acted unreasonably.13 His reaction to what he described as scrutiny is not covered under
the Act as he did not submit evidence to establish error or abuse. Ms. Fensky explained that
DOIS projections were used to determine carriers’ daily mail volume. She stated that this was
the only way management could effectively and fairly manage the delivery operation. Mr. Case
stated that appellant’s projected work hours were based on his demonstrated performance and
adjusted to account for variables such as weather, mail mix and carrier input. He discussed his
job performance with him on several occasions and he had no animosity towards him. Mr. Case
denied excessively visiting his case, noting that he and Ms. Adams visited each carrier once daily
to discuss their workload based on DOIS data. He stated that appellant was not pushed to work
on his route as the DOIS data showed that he had difficulty getting out of the office on time.
Mr. Holloway stated that the DOIS was used throughout the United States. Based on the
statements of Ms. Fensky, Mr. Case and Mr. Holloway, the Board finds that appellant has not
established a compensable employment factor under the Act with respect to the administrative
matter of monitoring his work performance.
Appellant’s allegations regarding a request for medical documentation,14 the issuance of a
disciplinary letter,15 the denial of leave16 and appropriate equipment such as shoes and the filing
of a grievance17 also relate to administrative and personnel matters. Regarding Ms. Adams’
request for medical documentation, Mr. Case noted that her comment to him on whether
appellant was going to call in sick was a figure of speech. He stated that Ms. Adams made the
statement because appellant had previously called in sick following discussions held with him
about his work performance. Mr. Davidson stated that Ms. Adams withdrew her request for
medical documentation after appellant became upset. Mr. Holloway denied that he was harassed
13

Beverly R. Jones, 55 ECAB 411, 416 (2004); Lori A. Facey, 55 ECAB 217, 224 (2004).

14

James P. Guinan, 51 ECAB 604, 607 (2000); John Polito, 50 ECAB 347, 349 (1999).

15

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
16

T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006) (actions of the employing establishment
in matters involving 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).
17

Michael A. Salvato, 53 ECB 666, 668 (2002).

9

by being required to submit medical documentation to support his use of sick leave. Regarding
Mr. Case’s denial of appellant’s request for emergency sick leave to attend a medical
appointment, Ms. Wood stated that there were employees available to cover appellant’s route in
his absence. Post master Kowalski and Mr. Vance both noted that DOIS projections could not be
the sole determinant of when a carrier left or returned or daily workload or the sole basis for
corrective action. The settlement argument does not provide any admission or acknowledgment
of error by the employing establishment in using the DOIS projectors. Appellant has not
submitted any evidence establishing that the employing establishment committed error or abuse
in issuing a disciplinary letter or denying his request to wear special shoes. Accordingly, the
Board finds that he has not established a compensable factor of employment with respect to
administrative matters.18
Appellant contended that his emotional condition was caused by overwork. He stated
that management insisted that he perform more work even though he had a worsening medical
condition. Appellant further stated that he was unable to take his breaks. The Board has held
that overwork may be a compensable factor of employment.19 The Board finds that appellant
made general allegations of overwork that are nonspecific and not supported by the evidence of
record. Mr. Polen, Ms. Sorenson, Mrs. Mayer, Mr. Campbell and Mr. Anderson generally
advised that their jobs were stressful due to a demanding workload and their work performance
was evaluated under DOIS data. They did not specifically address appellant’s assigned duties or
allegations. Mr. Polen stated that he heard him tell Mr. Pavlish that he could not rely on
undertime to evaluate his work performance. On another occasion appellant sounded stressed
when Mr. Pavlish again informed him about his undertime. This evidence is insufficient to
establish error or abuse on the part of Mr. Pavlish in discussing his work. Mr. Anderson stated
that appellant may have taken a break three times. Appellant told him that he seldom took
breaks so that he could complete his work. Mr. Case stated that his projected work hours were
based on his demonstrated performance. Appellant has not submitted sufficient evidence
supporting his allegation of overwork. The Board, therefore, finds that he has failed to establish
a compensable factor of employment in this regard.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,20
the Office’s regulation 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) constitute relevant and pertinent new evidence not
previously considered by the Office.21 To be entitled to a merit review of an Office decision
18

As appellant has not substantiated a compensable factor of employment as the cause of his emotional condition,
the medical evidence regarding appellant’s emotional condition need not be addressed. Karen K. Levene, 54 ECAB
671 (2003).
19

Bobbie D. Daly, 53 ECAB 691 (2002).

20

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
21

20 C.F.R. § 10.606(b)(1)-(2).

10

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.22 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 of the merits.
ANALYSIS -- ISSUE 2
By letter dated April 6, 2008, appellant disagreed with the denial of his emotional
condition claim on the grounds that the evidence of record did not establish any compensable
work factors. The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant new argument not previously considered
nor did he provide any relevant or pertinent new evidence regarding whether he sustained an
emotional condition in the performance of duty.23
Appellant expressed frustration in trying to confirm the Office hearing representative’s
advice to him about filing either an appeal of her decision or an Equal Employment Opportunity
claim. The partial EEOC decision denied appellant’s harassment complaint as it was not timely
filed and failed to state a claim. This evidence is not relevant to the underlying issue in this case,
as it does not pertain to the specific allegations raised by appellant. The Board has held that the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.24
Similarly, an August 23, 2008 letter from a law firm that addressed appellant’s possible
membership in a class action suit is not relevant to the underlying issue. This evidence does not
pertain to the allegations raised below. Therefore, the Board finds that the August 23, 2008 letter
does not warrant reopening appellant’s case for merit review.25
The Board finds that appellant did not submit argument or evidence showing that the
Office erroneously applied or interpreted a specific point of law; advancing a relevant legal
argument not previously considered; or constituting relevant and new pertinent evidence not
considered previously by the Office. As appellant did not meet any of the necessary regulatory
requirements, the Board finds that his claim is not entitled to further merit review.26

22

Id. at § 10.607(a).

23

See L.H., 59 ECAB ___ (Docket No. 07-1191, issued December 10, 2007) (section 10.608(b) of Office
regulations provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).
24

Patricia G. Aiken, 57 ECAB 441 (2006).

25

Id.

26

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

11

CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition while in the performance of duty. The Board further finds that the Office properly
denied appellant’s request for a merit review of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 22 and March 28, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 13, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, AIRPORT STATION,
Mobile, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-363
Issued: November 7, 2014

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 December 6, 2013 appellant, through her attorney, filed a timely appeal from the
June 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established a bilateral elbow injury causally related to
factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 11, 2012 appellant, then a 59-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she first became aware of medial
epicondylitis of the right and left elbows caused by her repetitive work duties in June 2011.2
In an August 15, 2012 statement, appellant related that in June 2010 her left elbow
became swollen and very tender to the touch in the bone at the bottom of her elbow. As time
passed, she developed the same symptoms in her right elbow. Appellant stated that her rural
route had increased by 400 or more mailboxes which overburdened her route and exceeded her
work restrictions. Three sets of apartment buildings were added to her route. Appellant worked
long hours every day trying to perform her job within her restrictions. She also claimed that she
was harassed about her work performance. Appellant had a 96-hour-a-week route. She
contended that her supervisor falsified the count on her route to keep the overburdened route
“under the radar.” Appellant contended that her right shoulder condition for which she
underwent surgery in October 2010 was caused by her work. When she returned to work in
January 2011 following surgery, appellant’s route grew to 1,200 mailboxes. The stress and
strain on her arms caused damage to her arms and elbows.
Appellant submitted a May 6, 2010 job offer from the employing establishment for a
modified rural carrier position which she had accepted on that date. The position was based on
the permanent restrictions recommended by Dr. William A. Crotwell, III, an attending Boardcertified orthopedic surgeon, and Dr. Edward M. Schnitzer,3 an internist and Board-certified
physiatrist.4 The position noted appellant’s limitations which included lifting 10 to 15 pounds
frequently (two-thirds of the day), lifting 25 pounds occasionally (one-third of the day), bending,
stooping and squatting frequently (two-thirds of day), sitting, standing and walking frequently
(two-thirds of the day) and performing overhead work frequently (two-thirds of the day) and
kneeling frequently (two-thirds of the day). The position also noted that there was no engaging
in excessive twisting, torqueing or repetitive motion of the elbows and working at unprotected
heights. The physical requirements of the position involved standing, walking, heavy carrying,
climbing, pushing, pulling, repeated bending, shoulder level reaching and overhead reaching, use
of both arms, ability to distinguish colors and shades of colors, vision, hearing and operating a
motor vehicle.
Appellant submitted narrative statements from Kelly Bechtal and Darlene McGrew, coemployees. She was involved in a motor vehicle accident while driving a long-life vehicle
2

In a prior claim under OWCP File No. xxxxxx698, OWCP accepted that appellant sustained a contusion and left
lateral epicondylitis on December 30, 2002. In another claim under OWCP File No. xxxxxx391, it accepted that she
sustained right lateral epicondylitis on October 6, 2004.
3

The Board notes that Dr. Schnitzer’s report is not contained in the case record.

4

In his March 12, 2009 report, Dr. Crotwell diagnosed postoperative right elbow pain and lateral epicondylitis of
the bilateral elbows from a Boyd-McLeod procedure with residual pain. He also diagnosed medial epicondylitis of
the left elbow. Dr. Crotwell advised that appellant could return to light-duty work with permanent restrictions which
included no twisting or torqueing with the right arm, lifting more than 12 to 15 pounds frequently and lifting more
15 to 20 pounds occasionally.

2

(LLV) for which she underwent back surgery. At the time of the accident, appellant’s route had
435 mail stops and it grew to 643 by May 2010. By the end of 2010, her route had over 1,000
mail stops and an abundance of mail volume. Three sets of apartments had been built on
appellant’s route. Her route was also a heavy business route that required over 100 dismounts a
day from her LLV and opening heavy glass doors of at least 180 businesses. Due to the stress,
strain and amount of repetitive motions, appellant’s route should have been cut two years ago. In
October 2010, her shoulder had to be rebuilt due to her route. Appellant’s requests to have her
route adjusted back to her modified route were continuously denied.
In clinic notes dated June 9 and September 12, 2011, Dr. Crotwell listed findings on
physical and x-ray examination of the elbows. He reiterated the diagnoses of postoperative right
elbow pain and lateral epicondylitis of both elbows from a Boyd-McLeod procedure with
residual pain, and medial epicondylitis of the left elbow. On May 24, 2012 Dr. Crotwell clarified
appellant’s light-duty work restrictions. Appellant could not lift anything heavier than a pencil,
fork or telephone, 3 to 5 pounds frequently or 5 to 10 pounds occasionally, five to seven times a
day. Dr. Crotwell stated that these restrictions were based on appellant’s chronic epicondylitis
and medial epicondyle. He advised that any twisting or torqueing aggravated her conditions and
caused swelling and severe pain.
By letter dated September 25, 2012, the employing establishment controverted
appellant’s claim. In a March 15, 2011 e-mail, Bill R. Johnston, a health and resource
management specialist, noted that appellant’s physician restricted her from repetitive motion of
the right elbow. In May 2010, appellant accepted a route under the National Reassessment
Program (NRP) which was 45 hours and 29 miles with 700 deliveries. Mr. Johnston stated that it
was now apparently an overburdened route that was 48 hours and 29 miles with possibly 999
deliveries. He questioned whether a substitute would be used to deliver some of the mail.
Mr. Johnston also noted the route was overburdened with 1,000 mailboxes. Appellant was
advised that her route would be adjusted by May 31, 2011.
In a September 20, 2012 letter, Marjorie A. Hines, a manager, noted appellant’s May 6,
2010 acceptance of a rehabilitation modified position based on her permanent restrictions. She
described appellant’s route as a business route which became overburdened when apartment
buildings were constructed. On March 16, 2011 Ms. Hines and Mr. Johnston provided her with a
substitute to carry some of her route so that she would not violate her restrictions. She denied
appellant’s allegations of harassment or that she worked 96 hours a week. Ms. Hines concluded
that, when appellant made management aware of the growth of her route, a substitute was
assigned to carry the load so that she could stay within her restrictions.
By letter dated October 15, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional factual and medical evidence.
OWCP requested that the employing establishment submit any medical evidence regarding
treatment she received at its medical facility.
In an October 19, 2012 statement, Ms. McGrew denied writing, signing or reading the
letter dated August 15, 2012. She noted that she had no knowledge of appellant’s medical
conditions.

3

In a November 1, 2012 decision, OWCP denied appellant’s occupational disease claim.
It found that the evidence was insufficient to establish the factual component of her claim, i.e.,
working outside of her assigned work limitations.
In a November 5, 2012 statement, appellant attributed her medial epicondylitis to
performing repetitive work duties on an overburdened route and not working outside her
limitations. She described her work activities, which included casing, lifting, unloading and
pulling mail, opening and closing her vehicle and business doors and driving. Appellant
contended that the employing establishment did not adhere to the modified job that she accepted
on May 6, 2010. The assistance she received on her route consisted only of one and one-half
hours of delivery to two sets of apartments.
In progress and clinic notes dated October 21, 2011 to January 24, 2013, Dr. Crotwell
reiterated the diagnosis of postoperative right elbow pain and lateral epicondylitis of the bilateral
elbows from a Boyd-McLeod procedure with residual pain and medial epicondylitis of the left
elbow. He increased her ability to lift to 10 pounds. In a July 16, 2012 progress note,
Dr. Crotwell reiterated that appellant’s chronic lateral and medial epicondylitis were aggravated
by twisting and torqueing. He advised that this was related to her lateral epicondylitis from her
elbow contusion.
In a November 5, 2012 letter, Ms. Bechtal also denied any knowledge of the statement
that contained her printed name. She noted that her name was misspelled on the letter.
Ms. Bechtal commented that the route was overburdened, but she had no knowledge of the
route’s day-to-day functions.
On November 7, 2012 appellant requested a telephone hearing before an OWCP hearing
representative regarding the November 1, 2012 decision.
At the March 14, 2013 hearing, appellant reiterated her contentions that her route became
overburdened and it caused her conditions to worsen. By March 2011, her route consisted of
over 1,200 mailboxes and it was evaluated at 98 hours a week. Appellant worked on this route
until December 2011 when she stopped due to nonwork-related brain surgery performed on
February 9, 2012. She reiterated that she only received assistance from one employee who
delivered mail to two sets of apartments on her route. Appellant did not case or organize mail,
and spent approximately one and one-half hours a day delivering mail. She stated that casing
and organizing her mail took approximately four hours and delivery of the mail took four to six
hours, depending on mail volume. Appellant related that when she returned to work in
June 2012 following brain surgery the employing establishment would not allow her to work as
it could not accommodate her new lifting restriction.
In an April 15, 2013 e-mail, Gregory A. Wegener, customer services supervisor,
addressed appellant’s work hours and route evaluation from March 2011 through August 2012.
Appellant was limited to working no more than a 45-hour route which was from 53 hours and 24
minutes to 54 hours and 35 minutes, six days a week or 45.48 for five days a week. Contrary to
her assertions, Mr. Wegener stated that she did not work over 46 hours in any week. Appellant
was given 2.50 hours of auxiliary assistance every day that she worked. Another carrier
delivered to the two sets of new apartments to keep the route under her limitation hours and close

4

to her previous number of deliveries. Mr. Wegener stated that appellant’s claim that her route
was evaluated at 98 hours a week was incorrect. The 2011 annual route count indicated that her
route was 64 hours and 36 minutes a week and the 2012 count was 52 hours and 41 minutes per
week.
In a May 29, 2013 letter,5 appellant stated that Mr. Wegener’s count should have started
from March 2010 and not March 2011 to August 2012 as it would have shown the additional
hours she worked due to the growth of her route.
In a June 12, 2013 decision, an OWCP hearing representative affirmed the November 1,
2012 decision. He found that the medical evidence was insufficient to establish that appellant
sustained a bilateral elbow condition causally related to her work duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.8 To establish fact of injury in an
occupational disease claim, 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.9
An employee’s statement 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.10
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
5

The Board notes that it appears appellant inadvertently dated her letter as May 29, 2012 rather than May 29,
2013 as the letter directly responds to route count information contained in Mr. Wegener’s April 15, 2013 e-mail.
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

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

8

S.P., 59 ECAB 184, 188 (2007).

9

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

10

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

5

occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such 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 doubt on an
employee’s statement in determining whether a prima facie case has been established.11
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.12
ANALYSIS
Appellant claimed that she sustained a bilateral elbow condition due to performing
repetitive work duties. OWCP found that she failed to establish the factual component of her
claim. The Board finds, however, that the evidence establishes that appellant was a rural mail
carrier and that no evidence disputes that she was engaged in duties related to a letter carrier.
Appellant’s employer acknowledged that her route included business stops and became an
overburdened route with the addition of new apartment buildings. The Board notes that the
physical requirements of the modified rural carrier position included, standing, walking, heavy
carrying, climbing, pushing, pulling, repeated bending, shoulder level reaching, use of both arms,
and operating a motor vehicle. The employing establishment has acknowledged appellant’s
exposure to these work factors. For the stated reasons, the Board finds that she has established
the claimed employment factors in the present case.
The Board further finds, however, that appellant has not submitted sufficient medical
opinion evidence to establish a causal relationship between the accepted work activities and her
diagnosed condition. The mere manifestation of a condition during a period of employment does
not raise an inference that there is a causal relationship between the condition and the
employment. Neither the fact that the condition became apparent during a period of employment
nor the belief that the employment caused or aggravated a condition is sufficient to establish
causal relationship.13
Dr. Crotwell’s May 24 and July 16, 2012 progress notes found that appellant’s chronic
lateral and medial epicondylitis were aggravated by twisting and torqueing. He stated that this
was related to the lateral epicondylitis from her elbow contusion. Dr. Crotwell also addressed
appellant’s restrictions. While he provided an opinion on causal relationship, he did not
adequately address how the diagnosed conditions were aggravated by the established
employment factors or the accepted employment-related contusion under OWCP File No.
xxxxxx698. Medical reports without adequate rationale on causal relationship are of diminished
11

Betty J. Smith, 54 ECAB 174 (2002).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 7.

13

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

6

probative value and are insufficient to meet an employee’s burden of proof.14 The opinion of a
physician supporting causal relationship must be based on a complete factual and medical
background with affirmative evidence. The opinion must address the specific factual and
medical evidence of record and explain the relationship between the diagnosed condition and the
established incident or factor of employment.15 The remaining clinic and progress notes from
Dr. Crotwell do not address how appellant’s diagnosed bilateral elbow conditions were caused or
aggravated by her federal employment. Medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.16 The Board finds
that Dr. Crotwell’s reports are insufficient to establish appellant’s claim.
Dr. Crotwell’s clinic and progress notes found that appellant had postoperative right
elbow pain and lateral epicondylitis of the bilateral elbows from a Boyd-McLeod procedure with
residual pain and medial epicondylitis of the left elbow. He addressed her light-duty work
restrictions. The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a bilateral elbow condition causally related to the accepted
employment factors. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a bilateral elbow
injury causally related to factors of her federal employment.

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

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

16

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).

7

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2014
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

8