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

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

Docket No. 14-1901
Issued: January 28, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 26, 2014 appellant filed a timely appeal from a July 28, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty on November 19, 2013.
FACTUAL HISTORY
On February 26, 2014 appellant, then a 39-year-old rural carrier, filed a Form CA-1
traumatic injury claim alleging that during the performance of duties on November 19, 2013 she
was rear-ended by a private vehicle.
1

5 U.S.C. § 8101 et seq.

November 19, 2013 discharge instructions from Orange Park Medical Center were issued
for knee sprain, arm pain, and motor vehicle accident.
In a March 5, 2014 letter, OWCP advised appellant of the deficiencies in her claim and
provided her the opportunity to submit additional factual and medical evidence, including a
physician’s opinion supported by a medical explanation as to how the reported work incident
caused or aggravated a medical condition.
OWCP received a March 5, 2014 statement from appellant in which she explained that
she had gone to see a doctor because of pain, he told her that it was normal to have pain after an
accident. Appellant stated that the pain lasted about 10 days, and that she was better now. A
March 5, 2014 statement from her manager noted that appellant had declined an offer of medical
treatment on the day of the accident and had continued to deliver her route. OWCP also received
a March 5, 2014 letter from the employing establishment regarding third-party liability and a
December 18, 2013 letter from Orange Park Medical Center regarding an account balance.
By decision dated April 9, 2014, OWCP denied the claim on the grounds that the medical
component of fact of injury had not been met. It found that appellant filed a timely claim for a
November 19, 2013 work event, but she failed to submit any medical evidence containing a
medical diagnosis in connection with the event. OWCP noted that even if she submitted medical
evidence containing a diagnosis, there must also be medical evidence which establishes causal
relationship.
On July 18, 2014 OWCP received appellant’s request for reconsideration.
In a November 19, 2013 emergency provider report, Dr. Jitendra G. Patel, a Boardcertified family practitioner, noted that appellant is a postal worker who was rear-ended on the
left side of the car today. She indicated that appellant had right forearm and bilateral knee pain
due to the motor vehicle accident. Examination findings were provided. Primary impression
was knee pain and secondary impression was forearm pain, motor vehicle traffic accident.
An accident report from the employing establishment and from Florida Traffic Crash
Driver Information Exchange were provided.
By decision dated July 28, 2014, OWCP denied modification of its prior decision.
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 are causally related to the

2

employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
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.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the specified employment factors or incident. The opinion
of the physician must be based on a complete factual and medical background of the employee,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.6
ANALYSIS
OWCP accepted that the employment incident of November 19, 2013 occurred at the
time, place, and in the manner alleged. Appellant alleged that the car she was driving was rearended by a private vehicle while she was in the performance of duty. She went to Orange Park
Medical Center and was discharged the same day. The issue is whether she sustained any injury
in connection to the accepted employment incident. The Board finds that appellant did not meet
her burden of proof to establish that this incident caused an injury.
In the November 19, 2013 Orange Park emergency room report, Dr. Patel noted
appellant, a postal worker who was rear-ended on the left side of the car today. Her primary
impression was knee pain and secondary impression was forearm pain, motor vehicle traffic
accident. The Board notes that pain is a description of symptoms, rather than a clear diagnosis of
a medical condition.7 Dr. Patel fails to provide any rationale as to whether appellant’s knee pain
2

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

3

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

4

Elaine Pendleton, supra note 2 at 1143.

5

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. C.F.,
Docket No. 08-1102 (issued October 10, 2008).

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or forearm pain resulted in a medical condition. While appellant was subsequently issued
discharge instructions for knee sprain, discharge instructions are general application to the public
about certain medical conditions and are not determinative of whether the specific employment
incident caused the specific condition.8 This evidence is also not relevant to the grounds upon
which OWCP denied appellant’s claim. Thus, Dr. Patel’s report and the discharge instructions
are insufficient to support appellant’s claim.
Thus, the medical evidence submitted by appellant was insufficient to establish an
employment-related traumatic injury on November 19, 2013. Because the medical evidence fails
to establish that appellant had been diagnosed with a specific medical condition related to the
November 19, 2013 employment incident, the Board finds that appellant has not met her burden
of proof to establish that she sustained an injury in the performance of duty. The Board will
therefore affirm OWCP’s July 28, 2014 decision.
Appellant may submit new evidence or argument as part of a formal 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.
On appeal appellant alleges that her hospital bill from the emergency room treatment she
received on the same day as the accident, November 19, 2013, should be paid. Ordinarily, the
employing establishment will authorize treatment of a job-related injury by providing the
employee a properly executed Form CA-16 within four hours. See 20 C.F.R. § 10.300; Val D.
Wynn, 40 ECAB 666 (1989); a Form CA-16, authorization of medical care, was not issued in this
case. However, under 5 U.S.C. § 8103, OWCP has broad discretionary authority to approve
unauthorized medical care which it finds necessary and reasonable in cases of emergency or
other unusual circumstances. Upon return of the case record, it should consider whether
appellant’s initial medical care in the hospital emergency room should be authorized pursuant to
20 C.F.R. § 10.304, which provides that in cases involving emergencies or unusual
circumstances, OWCP may authorize treatment in a manner other than as stated in this subpart.
See M.A., Docket No. 14-1071 (issued October 3, 2014); J.D., Docket No. 14-936 (issued
August 8, 2014).
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on November 19, 2013.

8

See Gaetan F. Valenza, 35 ECAB 763 (1984); Kenneth S. Vansick, 31 ECAB 1132 (1980).

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ORDER
IT IS HEREBY ORDERED THAT the July 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 28, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Ogden, UT,
Employer
__________________________________________

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Appearances:
Jimmy Roberts, for the appellant
Office of the Solicitor, for the Director

Docket No. 09-379
Issued: September 10, 2009

Case Submitted on the Record

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

JURISDICTION
On November 21, 2008 appellant filed a timely appeal from a September 9, 2008
decision of the Office of Workers’ Compensation Programs affirming a January 30, 2008 denial
of her emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On August 11, 2007 appellant, a 55-year-old clerk, filed an occupational disease claim
(Form CA-2) alleging that she suffered anxiety, depression and a nervous breakdown as a result
of her employment. She stated that her first and second line supervisors harassed her for several
weeks and that her first line supervisor looked for reasons to give her written counseling.

Appellant first realized her condition was caused or aggravated by her employment on
July 6, 2007 when she stopped work. She returned on July 10, 2007. The employing
establishment noted that appellant had received performance counseling three days prior to filing
a January 19, 2007 workers’ compensation claim that was disallowed. The employing
establishment advised that she continued to perform at an unacceptable level and that she
received normal progress counseling. It also stated that appellant received notification of an
adverse action being taken against her for filing a falsified claim.
On August 22, 2007 letter the Office requested that appellant describe in detail the
employment-related conditions or incidents which she believed contributed to her illness. It also
requested that she provide a comprehensive medical report from a treating physician regarding
her condition and its cause.
The Office received a September 20, 2007 nine-page statement from appellant’s husband,
who noted that appellant fractured her right fibula on December 19, 2006 and returned to limited
duty on May 7, 2007. From May 7 through 22, 2007, Brian Wood, appellant’s supervisor, issued
written counseling to her for her job performance. He noted that appellant had been off duty for
over four months and that she was in her job for less than two months before her leg injury. On
May 7, 2007 Mr. Wood trespassed into and rifled through the cabinets and desk drawers in her
office and issued written counseling to her for a computer system security violation. Appellant’s
husband asserted that Mr. Wood did not state a reason for violating appellant’s privacy. On
May 8, 2007 appellant reported a security violation by Mr. Wood to Hilda Brown, a supervisor,
and, afterwards, Mr. Wood gave appellant extra work and became very critical of her actions.
She received written counseling nearly everyday. On July 2, 2007 Ronald Vorwaller, a second
level manager, verbally proposed an adverse action against her for filing an on-the-job injury
claim. Appellant did not receive a written copy of the proposal until July 5, 2007, which was
forwarded to her through Mr. Wood, which she alleged was a Privacy Act violation. Mr. Wood
noted that Mr. Vorwaller told appellant that she could not be accommodated and could not be on
limited duty since the Office had denied her leg injury claim. On July 6, 2007 he sent appellant
home because of her leg injury and inability to perform her full duties. Appellant received a
motorized wheel chair on July 9, 2007, but her private insurance carrier refused to finance a
wheel chair for workplace use. On July 9, 2007 she sought medical treatment for stress. Due to
the effects of medication, appellant could not contact Mr. Wood of her absence from that day
although her husband sent an e-mail to Mr. Wood. On July 10, 2008 Mr. Wood issued written
counseling to her for failure to notify him of her July 9, 2007 absence, despite acknowledging
receipt of her husband’s e-mail. Appellant’s husband also asserted that Mr. Wood took unlawful
disparate action against appellant in her semi-annual performance appraisal.
On August 9, 2007 Mr. Wood abusively demanded that appellant provide him a
supervisor report for her current claim. Appellant’s husband had sent Mr. Wood a blank copy of
the CA-2 supervisor report along with a designation of representative form indicating that he was
to be appellant’s contact. Upon receiving the documents, Mr. Wood violently slammed them
onto appellant’s desk and demanded that she complete it. Appellant was in tears, was consoled
by a coworker and had to leave her work area. Her husband alleged that she was not trained for
her current position and that Mr. Wood substantially increased her workload and made tight
demands for her to complete several tasks, even though her position description did not have
production quotas or rates. Appellant was denied overtime and voluntarily worked credit hours

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to keep up with her assigned duties. Her husband indicated that Mr. Wood stopped her from
using credit hours. He noted that several grievances and Equal Employment Opportunity (EEO)
complaints were currently pending. Appellant’s husband advised that, since July 1, 2007,
appellant’s migraine headaches increased substantially due to workplace stress. He alleged that
appellant’s supervisory line of command implemented a systematic process to remove appellant
and that the actions taken against her were in retaliation for a civil action he had filed against the
employing establishment.
In a July 24, 2007 e-mail from appellant to her husband, she stated that Mr. Wood
erroneously told her that she did not control one of the documents she completed the night
before. She stated that, when she pointed out that she did the task properly, Mr. Wood just
marched away. Appellant also stated that she had made a mistake, but was afraid to tell
Mr. Wood about it as he was always angry with her.
In a September 12, 2007 statement, Mr. Wood noted counseling appellant on her
performance three days before she filed her workers’ compensation claim for a leg injury on
January 19, 2007. After the claim was disallowed, appellant was given a letter of intent to
suspend her for filing a false claim. After she returned to work, Mr. Wood noted that she was
provided very light duty as well as coaching and instruction on her duties. After repeated
instruction and time for improvement, Mr. Wood gave appellant performance counseling and, in
her mid-year performance review, informed her that she was failing or minimally successful in
several critical job elements. He indicated that counseling regarding her performance was
provided on January 16, May 7, 17, 18 and 22, July 18 and August 28, 2007. On July 2, 2007
appellant was told that she needed to be mobile to perform her duties and that a physician’s
documentation on her restrictions was needed.
She then filed a formal reasonable
accommodation request. Mr. Wood confirmed receiving an e-mail from appellant’s husband
noting that she would be absent. However, this was unacceptable and that appellant was
provided written counseling. Appellant was given training upon being hired for her job in
November 2006 but was not performing up to expectations when she took extended leave for her
January 2007 injury. Mr. Wood noted that he and Julie Varnell, another manager, along with
other clerks in the unit, provided appellant coaching and assistance when she returned to work.
Since appellant returned to work, she received counseling for unacceptable performance but,
after the counseling and her mid-year review, he began to see improvements in her work.
Mr. Wood noted that appellant filed a grievance over her January 2007 evaluation, but advised it
was dismissed. He noted that she filed a grievance for absence without leave charges as well as
an EEO complaint for discrimination on the basis of her disability.
In a July 9, 2007 report, a physician’s assistant diagnosed recurring migraine and
depression anxiety (situational). The Office also received materials pertaining to a right fibula
fracture of December 19, 2006, for which appellant filed a claim.1
By decision dated January 30, 2008, the Office denied the claim, finding that appellant
failed to submit a statement identifying the specific employment factors she believed caused her
condition. Appellant also failed to submit any medical evidence supporting a diagnosed medical
1

The Office denied the December 19, 2006 claim in file number xxxxxx767.

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condition. The Office advised that a third party could not file statements on her behalf and that
there was no documentation of record to establish that she had appointed her husband to be her
representative.
Appellant requested an oral hearing, which was held July 8, 2008. On August 5, 2008
she reiterated the allegations her husband made on September 20, 2007. The only discrepancy
noted was that appellant alleged that she reported Mr. Wood for a security violation on June 10,
2007, while her husband listed May 8, 2007. The Office also received copies of material of
record and with a February 22, 2008 letter from a physician’s assistant.
In a September 9, 2008 decision, an Office hearing representative affirmed the denial of
appellant’s claim finding that she did not establish any compensable work factors.
LEGAL PRECEDENT
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
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 the Federal Employees’ Compensation Act. 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 the Act.5 However, the Board
2

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

3

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

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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).

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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 the Act,
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
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 the Office and the Board.10
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. 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.11

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).
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

D.L., supra note 2; T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); C.S., 58 ECAB ___
(Docket No. 06-1583, issued November 6, 2006); A.K., 58 ECAB ___ (Docket No. 06-626, issued
October 17, 2006).

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ANALYSIS
Appellant alleged that her emotional condition resulted from certain employment
incidents and conditions. The Office denied the claim on the grounds that she did not establish
any compensable employment factors. The Board must review whether the alleged incidents and
conditions of employment are compensable employment factors under the Act.
Appellant attributed her emotional condition to administrative and personnel actions
taken by management. She was in her position for approximately two months before she injured
her leg and was off work for approximately four months. The employing establishment stated
that appellant had received performance counseling prior to being off work for her leg injury and
continued to perform at an unacceptable level when she returned to work. The record reflects
that appellant received written counseling concerning her job performance and other matters,
such as a security violation on May 7, 2007 and failure to properly notify her supervisor of a
July 9, 2007 absence from duty. In general, actions of the employing establishment in matters
involving assessments of job performance,12 use of leave13 and disciplinary matters consisting of
counseling sessions, discussions or letters of warning for conduct14 are not considered
compensable factors of employment absent evidence of error or abuse. In this case, there is no
evidence of error or abuse by the employing establishment. Appellant’s supervisor noted the
reasons for the actions taken and the evidence of record does not establish error. While appellant
characterizes these actions as harassment, she has submitted no evidence substantiating her
allegations or otherwise showing that her supervisors erred in discharging their duties or were
abusive towards her. Without persuasive evidence corroborating that her supervisors did in fact
harass her, here mere perception of harassment is insufficient to establish a factual basis for her
claim. Appellant’s receipt of written counseling on matters concerning job performance, security
matters and procedures for requesting leave and letters concerning proposed disciplinary matters
are not compensable factors as the evidence does not establish error or abuse in these
administrative actions.
Although appellant contends that she was discriminated against due to her physical
disability in her semi-annual performance appraisal, her reaction to her performance appraisal is
not compensable in the absence of evidence showing error or abuse on behalf on the employing
establishment in carrying out that administrative function. She has not shown that she received
her rating in error or that the employing establishment acted abusively in issuing rating
performance rating. For harassment or discrimination to give rise to a compensable disability
under Act, there must be some evidence that the harassment or discrimination did in fact occur.15
Appellant alleged that Mr. Wood acted abusively towards her and harassed her
concerning the completion of her workers’ compensation claim as he should have been dealing
12

See Kathleen D. Walker, 42 ECAB 603 (1991); Thomas D. McEuen, supra note 5 (holding that an
unsatisfactory performance, without more, is insufficient to provide coverage).
13

Gracie A. Richardson, 42 ECAB 850 (1991).

14

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

15

Anna C. Leanza, 48 ECAB 115 (1996).

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with her husband. The handling of a workers’ compensation claim is not related to the
employee’s job duties and is not considered a compensable work factor.16 Appellant’s
frustration with Mr. Wood’s in handling of her workers’ compensation claim does not arise from
a compensable work factor.
Appellant alleged that she received inadequate training to perform her duties. Training is
a personnel matter and is not compensable absent error or abuse.17 Mr. Wood stated that
appellant was provided training upon being hired for the position in November 2006 and was
provided coaching and instruction to familiarize her with her duties again when she returned to
work following her leg injury. Appellant has submitted no evidence to support her allegation
that she was inadequately trained for her position. As such, this assertion is not established as
factual.
Appellant stated that she was monitored and criticized by Mr. Wood after she reported
him for a security violation. Although the handling of security matters and monitoring of
activities at work are generally related to the employment, they are administrative functions of
the employer and not duties of the employee.18 Appellant has not shown that her supervisor
acted abusively in monitoring appellant’s work.
Appellant also alleged that Mr. Wood substantially increased her workload and made
demands on her time to complete the tasks even though her position description had no
production quotas and was not subject to an individual production rate. She also asserted that
she was denied overtime and not permitted to work credit time to keep up. The Board has held
that emotional reactions to situations in which an employee is trying to meet his or her position
requirements are compensable.19 The Board has also held that the assignment of work is an
administrative or personnel matter of the employing establishment and not a duty of the
employee and, absent evidence to support a finding of error or abuse by her supervisor, there no
compensable employment factor alleged.20 Appellant did not assert that her actual work duties
caused her stress. Rather, she disagreed with the job assignments. Appellant has not submitted
any evidence that she had difficulty completing her position requirements. She did not provide
any evidence to establish that her workload or Mr. Wood’s estimate of time to complete such
tasks were erroneous. For this reason, the Board finds that appellant has not established that her
emotional condition arose from the performance of her regular or specially assigned duties.21
Appellant’s reaction to such conditions and incidents at work must be considered self-generated
in that it resulted from her frustration in not being permitted to work in a particular environment
16

David C. Lindsey, Jr., 56 ECAB 263, 270 (2005); George A. Ross, 43 ECAB 346 (1991). The handing of a
compensation claim is an administrative function and is not compensable absent evidence of error or abuse by the
employing establishment.
17

James E. Norris, 52 ECAB 93 (2000).

18

David Cuellar, 56 ECAB 626 (2005).

19

Trudy A. Scott, 52 ECAB 309 (2001).

20

See Janet D. Yates, 49 ECAB 240 (1997).

21

See Lillian Cutler, supra note 3.

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or to hold a particular position.22 While she alleged that she was denied overtime and not
permitted to work credit hours to keep up, these are administrative functions of a supervisor.23
The mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.24 Appellant has not submitted any
evidence to establish error or abuse by Mr. Wood in denying overtime or not allowing her to
work credit hours to complete her assigned work. As she has not established error or abuse on
the part of Mr. Wood in these actions, these implicated actions are not compensable factors of
employment.
Appellant has alleged that the employing establishment has undertaken a systematic
process to remove her from service. However, she provided no evidence to support this
allegation. Thus, this is an unsubstantiated claim and any reaction appellant may have would not
be considered in the performance of duty.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.25
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty causally related to factors of
employment.

22

Tanya A. Gaines, 44 ECAB 923, 934-35 (1993).

23

Beverly R. Jones, 55 ECAB 411 (2004).

24

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

25

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. Karen K. Levene, 54 ECAB 671 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the September 9 and January 30, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: September 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
ARCHITECT OF THE CAPITOL, RAYBURN
HOUSE OFFICE BUILDING, Washington, DC,
Employer
__________________________________________

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

Docket No. 07-320
Issued: June 22, 2007

Case Submitted on the Record

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

JURISDICTION
On November 15 2006 appellant filed a timely appeal from an August 23, 2006 decision
of the Office of Workers’ Compensation Programs which denied his claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
employment-related injury on August 10, 2005.
FACTUAL HISTORY
On September 30, 2005 appellant, then a 63-year-old electrician, filed a Form CA-1,
traumatic injury claim, alleging that on August 10, 2005 he sustained back pain when pulling
cable. In an attached statement, appellant stated that the problem was sharp, intermittent
stomach pain which began approximately August 10, 2005 and continued until Friday,
August 19, 2005. He reported a hospital diagnosis of muscle strain and that he was given

medication. An undated statement reported that on August 10, 2005 appellant notified Kevin
Banks, a supervisor, that he injured himself while pulling wire and that on August 12, 2005 he
told Mr. Banks that his stomach hurt. The employing establishment controverted the claim.
In support of his claim, appellant submitted an August 15, 2005 report in which Dr. Nissa
Novas, an emergency medicine physician, diagnosed abdominal pain of uncertain cause and
provided home care instructions. She advised that appellant could not work on August 15
and 16, 2005. Computerized tomography (CT) scan of the abdomen and pelvis on August 15,
2005 demonstrated diverticula disease of the colon without diverticulitis. On August 19, 2005
Dr. Ranjit S. Risam advised that appellant could not work August 17 through 19, 2005 but could
return to his regular duties on August 21, 2005.1 A September 1, 2001 colonoscopy report
advised that the colonic mucosa was normal with no masses or polyps and numerous scattered
diverticula and internal hemorrhoids were present. A September 18, 2005 Doctors’ Community
Hospital report identified Dr. James H. Shero, a Board-certified internist, as the care provider
and provided generic medical instructions for abdominal pain and gastritis. CT scan of the chest,
abdomen and pelvis on August 25, 2005 demonstrated a left paratracheal mass at the thoracic
inlet suggestive of thyroid goiter, mild bilateral hilar lymph nodes, a contracted gallbladder and
diverticulosis with possible mild diverticulitis of the distal descending colon. In an October 5,
2005 report, Dr. Mauricio J. Acebey and Dr. Thomas S. Lee, both Board-certified physiatrists,
noted a chief complaint of right-sided lower abdominal pain, a past medical history of
diverticulitis and a history that appellant was pulling wire at work when he developed a sharp
pain in the lower back. Physical examination of the spine and the right lower quadrant of the
abdomen revealed tenderness. Straight-leg raising test was negative. A September 7, 2005
magnetic resonance imaging (MRI) scan of the lumbar spine was discussed and the report stated
that following the employment incident, appellant had lumbar facet arthropathy and some
myofascial pain which was improving. Physical therapy and continuation of appellant’s
gastrointestinal workup for his abdominal pain were recommended. Abdominal x-ray on
October 5, 2005 was read as unremarkable. In a disability slip dated October 12, 2005,
Dr. Novas advised that appellant could return to regular duty on October 17, 2005.
An unsigned accident report dated October 19, 2005 stated that appellant strained
stomach muscles. No date of injury was listed. An employing establishment injury investigation
report dated October 25, 2005 advised that appellant was injured on August 10, 2005 while
working on wiring. Safety recommendations were made. The record also contains copies of
photographs of the implicated worksite and an article regarding diverticulitis.
By letter dated January 9, 2006, the Office informed appellant of the evidence needed to
support his claim. In an undated statement appellant advised that he did not work August 15
through October 14, 2005 except for August 22 through 25, 2005. He submitted reports
regarding emergency room treatment dated August 24 and 25, 2005. By report dated August 25,
2006, Dr. Ryan Kramer, Board-certified in emergency medicine, noted that a CT scan revealed
diverticulitis. He advised that appellant could not work and provided home care instructions. A
telephone follow-up report dated August 27, 2005 advised that a left paratracheal mass was not
noted on an initial CT reading. A September 7, 2005 MRI scan of the lumbar spine
1

Dr. Risam’s credentials are unknown.

2

demonstrated L4-5 facet arthropathy and a right foraminal and lateral disc bulge impinging on
the L4 nerve root. An emergency room report dated September 18, 2005 stated that appellant
had a four-week history of abdominal pain and diagnosed acute abdominal pain and gastritis.2
By decision dated February 24, 2006, the Office found the August 10, 2005 employment
incident occurred but denied the claim on the grounds that the medical evidence did not establish
that appellant sustained an injury causally related to this incident. On March 21, 2006 appellant
requested a telephonic hearing that was held on July 7, 2006. He discussed the employment
incident and his medical treatment. The Office hearing representative explained that the issue
was medical and that appellant needed to submit a medical report with a firm diagnosis and an
opinion that the diagnosed condition was causally related to the August 10, 2005 employment
incident. Appellant submitted an abdominal CT scan report dated March 9, 1999 that
demonstrated diverticulitis. By report dated August 30, 2005, Dr. Mushtaq A. Shah, a Boardcertified internist, advised that appellant was seen for severe right upper and lower quadrant pain
and scheduled tests. Esophogastroduodenoscopy (EGD) on September 22, 2005 demonstrated a
normal esophagus and gastroesophageal junction with evidence of acute gastritis of the antrum
and body of the stomach. The duodenum appeared normal. Disability slips indicated that
appellant could not work October 9 through 17, 2005 when he could return to his regular duties.3
In an undated report, Dr. Robert J. Wagner, a Board-certified osteopath surgeon, noted that
appellant was seen for abdominal pain in a dermatomal pattern. He advised that appellant got
better after being treated with medication for postherpetic neuralgia or neuropraxia, stating:
“Now that neuropraxia could be secondary to herpes zoster, could be secondary to
a muscle strain ... could be secondary to herniated dis[c]. I am not quite sure what
is the cause of all of that; however, it is neurologic in nature. There is nothing
intra-abdominal that is causing this pain.... Therefore, I cannot give you a
definitive idea as to the nature of his illness. I can just say that it is
musculoskeletal/neurologic in its etiology.”
By decision dated August 23, 2006, an Office hearing representative affirmed the
February 24, 2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether

2

The signatures are illegible.

3

The signature is illegible.

4

5 U.S.C. §§ 8101-8193.

3

the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.5
Office regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.6 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.7
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10
Under the Act, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in the Act.11 Furthermore, whether a
particular injury causes an employee to be disabled for employment and the duration of that

5

Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

7

Gary J. Watling, supra note 5.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.12
ANALYSIS
The Office found and the Board agrees that the August 10, 2005 incident occurred.
Appellant, however, failed to meet his burden of proof to establish that he sustained an injury
caused by this incident. When he filed his claim, appellant stated that he sustained back pain on
August 10, 2005 and in an attached statement, alleged that the problem was sharp, intermittent
stomach pain. The Board finds that appellant submitted no probative medical evidence to
establish that he sustained either a back or stomach condition causally related to the August 10,
2005 employment incident.
Regarding the article submitted on diverticulitis, newspaper clippings, medical texts and
excerpts from publications are of no evidentiary value in establishing the causal relationship
between a claimed condition and a claimant’s federal employment as such materials are of
general application and are not determinative of whether the specific condition claimed is related
to particular employment factors or incidents.13 Furthermore, the objective studies of record
including CT scans, x-rays, MRI scans, EGD and colonoscopy and the generic instructions did
not provide an opinion regarding the cause of any diagnosed condition and 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.14
In the August 15, 2006 emergency room report, the evidence most contemporaneous with
the claimed injury, Dr. Novas diagnosed abdominal pain of unknown origin and advised that
appellant could not work on August 15 and 16, 2005. While Dr. Risam also advised that
appellant could not work on August 17 through 19, 2005, neither physicians stated a reason for
the work disability. Likewise, neither Drs. Shah, Kramer, nor Drs. Lee and Acebey provided a
cause for either a diagnosed condition or disability.15 Dr. Wagner advised that appellant’s
neuropraxia could be secondary to a herpes zoster, a muscle strain or a muscle sprain, stating that
he could not be sure of what was the cause. The Board has long held that medical opinions that
are speculative or equivocal in character have little probative value.16
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual

12

Fereidoon Kharabi, 52 ECAB 291 (2001).

13

Allen C. Hundley, 53 ECAB 551 (2002).

14

Willie M. Miller, 53 ECAB 697 (2002).

15

Id.

16

Kathy A. Kelley, 55 ECAB 206 (2004).

5

background of the claimant.17 Appellant submitted no such evidence in this case and, thus, did
not establish the critical element of causal relationship. He, therefore, did not meet his burden of
proof to establish that he sustained an injury on August 10, 2005.18
CONCLUSION
The Board finds that, while appellant met his burden of proof to establish that he
sustained an employment incident on August 10, 2005 he did not meet his burden of proof to
establish that he sustained an injury causally related to this incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2006 be affirmed.
Issued: June 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

17

Patricia J. Glenn, 53 ECAB 159 (2001).

18

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cedar Rapids, IA, Employer
__________________________________________

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

Docket No. 11-1002
Issued: March 5, 2012

Case Submitted on the Record

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

JURISDICTION
On March 15, 2011 appellant, through her attorney, filed a timely appeal from a
February 10, 2011 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration. 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 nonmerit decision by OWCP. The last merit decision of record was OWCP’s
November 16, 2009 decision. Because more than 180 days elapsed between the last merit
decision to the filing of this appeal, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
On January 25, 2007 appellant, then a 43-year-old window clerk, filed an occupational
disease claim (Form CA-2) alleging that she developed severe pain and muscle spasms in her
right arm and shoulder along with swelling and tingling in her right hand and fingers. She
reported that her left hand and arm had medical restrictions which resulted in overuse of her right
arm in the repetitive motion of sorting and casing mail which irritated her tendons. Appellant
also noted that looking and reaching to grab case mail irritated her neck and shoulder. She
reported that she first became aware of her condition and of its relationship to her employment
on January 9, 2007. Appellant notified her supervisor on January 9, 2007, received medical care
on January 15, 2007 and stopped work on January 16, 2007.
In a January 25, 2007 narrative statement, appellant described her employment duties
noting that her right arm began hurting her while sorting letters on January 9, 2007.3
In a January 19, 2007 medical report, Dr. David Nacos, a treating physician, reported that
appellant complained of right arm pain but the x-rays of her arm and hand did not reveal any
abnormalities. He recommended a magnetic resonance imaging (MRI) scan due to a prior
history of herniated disc.
In a January 23, 2007 MRI scan report, Dr. Chad Abernathy, a treating physician,
reported that appellant’s cervical spine showed either left paracentral hard disc, herniated disc or
osteophyte at C5-6 with encroachment on the thecal sac and possible cervical cord. He also
noted spinal stenosis at C5-6, C6-7 and a somewhat lesser degree of osteophytes in the midline.
In a January 28, 2007 attending physician’s report (Form CA-20), Dr. Nacos reported that
appellant had right arm pain. He checked the box marked “yes” when asked if the condition was
caused or aggravated by appellant’s employment activity.
In a February 15, 2007 medical report, Dr. Nacos reported that appellant’s right arm had
improved and noted cervical disc herniation with right radicular symptoms. In a duty status
report of the same date, he placed her on limited duty for impaired right side.
On February 21, 2007 appellant accepted an offer for modified duty.
By letter dated March 8, 2007, 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 undated narrative statement, appellant described her activities outside of her federal
employment. She noted that she had a history of cervical problems beginning from February 4,
1984 when she fell at work.
In support of her statement, appellant submitted a January 22, 2003 MRI scan of her
cervical spine. Dr. Thomas D. Berg, Board-certified in diagnostic radiology, noted multilevel
degenerative disc disease, most severe at C5-6 and C6-7.
3

Appellant also noted that on November 12, 1997 she experienced muscle spasms in her right arm and tenderness
in her right elbow for which she underwent surgery, claim No. xxxxxx991.

2

In a February 19, 2003 narrative statement, appellant documented her past cervical spine
history from 1984 to 2003.
In medical reports dated March 2 and 16, 2007, Dr. Nacos reported that appellant’s MRI
scan showed a large disc just off the midline. He diagnosed herniated disc with subsequent right
radicular-type pain.
Appellant also submitted physical therapy notes dated January 15 to 17, 2007 from Amy
Michels, a physical therapist (PT).
By decision dated April 26, 2007, OWCP denied appellant’s claim because the evidence
failed to establish that a diagnosed medical condition was related to the accepted work-related
events.
On April 23, 2008 appellant requested reconsideration of OWCP’s decision. She stated
that Dr. Nacos read her medical history since 1984 and related her injury to a fall at work on
February 4, 1984. Appellant noted that she was enclosing an April 22, 2008 medical report from
Dr. Nacos, as well as other medical reports documenting her original injury from 1984.
In support of her request, appellant submitted various medical records dated April 23,
1984 to January 13, 2007 documenting her previous cervical spine history. In an October 21,
1985 medical report, Dr. G.W. Howe, Board-certified in orthopedic surgery, reported that
appellant initially hurt her neck when she was taking a flag down outside of work when the rope
whipped back at her and caused her to fall in February 1984. Appellant complained of pain in
her neck and left scapular area. Dr. Howe diagnosed degenerative disc changes of the cervical
spine and noted that her injury was aggravated by the incident at work.
In a February 10, 1992 medical report, Dr. Edward Lash, Board-certified in orthopedic
surgery, reported that appellant was stretching when she heard a pop and developed sudden pain
in her left deep neck and down into the left shoulder blade area. He diagnosed cervical disc
disease.
In a January 21, 2003 medical report, Dr. Wayne Janda, Board-certified in orthopedic
surgery, reported that appellant complained of back, shoulder and arm pain. He noted that her
pain began in October 2002 and was aggravated by riding in vehicles and sitting. Dr. Janda also
noted that she had right elbow surgery in November 1999. He diagnosed cervical radicular
syndrome, left upper extremity, with suspected C6-7 radiculopathy. Dr. Janda also noted
cervical spondylosis and arthritic spurring with impingement or a potential new disc problem.
In a January 31, 2007 medical report, Dr. Abernathy reported that appellant complained
of neck pain with intermittent radiation into the right upper extremity since January 9, 2007. He
noted that she presented neck and intermittent right arm pain consistent with the C5-6 and C6-7
degenerative changes as demonstrated by MRI scan. In medical notes dated April 16 to
September 21, 2007, appellant had follow-up visits with Dr. Abernathy. In his September 21,
2007 note, Dr. Abernathy noted that he did not have any work restrictions for her from a
neurological standpoint.
On June 26, 2008 appellant accepted an offer of modified assignment.

3

By decision dated July 25, 2008, OWCP denied appellant’s claim finding that the
evidence did not contain a physician’s opinion which established a condition in her neck causally
related to factors of her federal employment. It specifically noted that no medical report from
Dr. Nacos dated April 22, 2008 was received.4
On July 6, 2009 appellant requested reconsideration of OWCP’s July 25, 2008 decision.
She reported that her current condition related back to her injury which started in 1984.
Appellant stated that, although she had surgery on May 16, 2007, she received physical therapy
both before and after her surgery. She also noted that she was released from light duty until
July 9, 2007. Appellant stated that she was resubmitting Dr. Nacos’ April 22, 2008 letter along
with a letter from Postmaster Larry Sanders who would verify that she fell at work at the
employing establishment.
In a July 6, 2009 statement, Mr. Saunders reported that appellant fell on the morning of
February 4, 1984 because the rope of a flagpole broke when she was taking the flag down. He
noted that she had missed several periods of work since that date due to neck and shoulder pain.
Appellant submitted an October 11, 1985 x-ray report from Dr. Gardner who noted
narrowing of the C5-6 disc space consistent with degenerative disc disease. She also submitted
physical therapy notes dated May 1 and September 7, 2007.
In an April 22, 2008 medical report, Dr. Nacos reported that appellant sustained a neck
injury in February 1984 and was diagnosed with cervical disc disease at C4-5, C5-6 in
October 1985 by Dr. Howe. He noted that she later had herniated cervical discs. Dr. Nacos
opined that appellant’s cervical instability and disc disease had continued to be a problem and
subsequently lead to more cervical problems with her herniated discs in 2007.
By decision dated November 16, 2009, OWCP affirmed its July 25, 2008 decision
finding that the medical evidence submitted did not support a condition that resulted from
appellant’s work exposure. It also noted that the system did not contain any record of a
traumatic injury claim filed from 1984.
By letter dated November 13, 2009, the employing establishment controverted the claim.
It stated that appellant had seven claims since her employment with the postal service over the
past 29 years.
On November 12, 2010 appellant, through her representative, requested reconsideration
of OWCP’s decision dated November 16, 2009. She stated that Dr. Howe’s October 17, 1985
medical report provided a diagnosis and that Dr. Nacos’ letters were sufficient to meet her
burden of proof. In support of her request, appellant submitted a position description for her
employment as a mail processing clerk and distribution clerk. She also noted that she was
enclosing copies of medical reports from Dr. Howe and Dr. Lash.
By decision dated February 10, 2011, OWCP denied appellant’s request for
reconsideration finding that she neither raised substantive legal questions nor included new and
relevant evidence.
4

The senior claims examiner also noted that she reviewed all of appellant’s other case files, claim Nos.
xxxxxx991, xxxxxx854 and xxxxxx971. No report from Dr. Nacos was present in any of the files.

4

LEGAL PRECEDENT
To reopen a case for merit review under section 8128(a), the evidence or argument
submitted by a claimant must: (1) show that OWCP erroneously applied or interpreted a specific
point of law; (2) advance a relevant legal argument not previously considered by OWCP; or
(3) constitute relevant and pertinent new evidence not previously considered by OWCP.5
Section 10.608(b) of OWCP regulations provide that when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2),
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.6
ANALYSIS
The Board finds that the refusal of OWCP to reopen appellant’s case for further
consideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an
abuse of discretion.
In her November 12, 2010 request for reconsideration, appellant stated that Dr. Howe’s
October 17, 1985 medical report provided a diagnosis and that Dr. Nacos’ letters were sufficient
to meet her burden of proof. In support of her request, she submitted a position description for
her employment as a mail processing and distribution clerk. Appellant also noted that she was
enclosing copies of medical reports from Dr. Howe and Dr. Lash. She has not otherwise
provided argument or evidence of sufficient probative value to show that Dr. Howe and
Dr. Lash’s medical reports were sent and received by OWCP. The record before the Board
contains no such report.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In her November 12, 2010 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant apparently failed to submit any medical evidence addressing
a medical diagnosis causally related to her accepted employment factors as a mail clerk. There is
no indication that a medical report concerning causal connection was received by OWCP.
Appellant’s argument was that her injury was employment related and she referenced the
medical reports of Dr. Howe and Dr. Nacos. OWCP had already considered this evidence in its
previous merit decisions. Appellant also submitted a position description for a mail and
distribution clerk. This position description, however, is not relevant to the issue at hand. The
underlying issue in this case was whether appellant established a diagnosed condition causally
related to her accepted employment factors. That is a medical issue which must be addressed by
relevant medical evidence.7 A claimant may obtain a merit review of an OWCP decision by
submitting new and relevant evidence. In this case, appellant did not submit any new and
relevant medical evidence.

5

D.K., 59 ECAB 141 (2007).

6

K.H., 59 ECAB 495 (2008).

7

See Bobbie F. Cowart, 55 ECAB 746 (2004).

5

The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review in the February 10, 2011 decision.8
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 10, 2011 is affirmed.
Issued: March 5, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Sherry A. Hunt, 49 ECAB 467 (1998).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
O’Fallon, MO, Employer
__________________________________________

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

Docket No. 10-1947
Issued: May 9, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal of a January 22, 2010 Office of
Workers’ Compensation Programs’ merit decision. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider
the merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits on the grounds that the temporary aggravation of her
underlying extrinsic asthma and allergic rhinitis had ceased.
On appeal, appellant argued that the Office did not consider all the relevant evidence
contained in the impartial medical examiner’s report.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 26, 2009 appellant then a 56-year-old letter carrier, filed an occupational
disease claim alleging that she developed recurrent and prolonged bronchitis, chronic cough and
bronchiospasms and moderate chronic obstructive asthma due to heavy lifting, constant exposure
to temperature extremes and unhealthy air quality which aggravated her condition.
Appellant submitted a report dated March 6, 2009 from Dr. Frank S. Calandrino, a
Board-certified pulmonologist, who noted her history of moderate chronic obstructive asthma, as
well as intermittent bronchiospams and cough that began in December 23, 2008. Dr. Calandrino
found that she had scattered wheezes and a decrease of 17 to 20 percent of her best spirometry
from October 2006. He recommended that appellant work in an environment where she was not
exposed to the elements. Dr. Calandrino stated:
“Sudden or acute changes in temperature or humidity as well as the extremes of
temperature and humidity are often triggers for asthma and I do n[o]t think
[appellant’s], long-term, will do well if she works in an outdoor environment.
Additionally, carrying heavy weights (approximately 30 to 45 pounds of mail in a
bag) is also likely to trigger an asthma attack in an outdoor environment with
wide swings of temperature and humidity.
“[Appellant’s] current occupation as a letter carrier, while not the cause of
asthma, is an aggravating and potentially triggering factor because of the heavy
weights that she carries in the face of wide swings in temperature and humidity.”
On July 7, 2009 the Office referred appellant for a second opinion evaluation by
Dr. Richard Parcinski, an osteopath and Board-certified pulmonologist. A pulmonary function
report dated July 30, 2009, indicated that appellant had severe small airway obstructive disease
with significant reversibility associated with increased airway resistance. In a report dated
August 6, 2009, Dr. Parcinski diagnosed reversible obstructive airway disease or asthma which
was related to multiple environmental allergens. He stated that appellant’s work environment
was neither the cause nor associated with a natural progression of the underlying disease.
Dr. Parcinski stated that she had a permanent condition which was not caused by her
employment, but may be aggravated by her job. Appellant continued to have symptoms outside
of the work environment and her present condition would have occurred even if she was never
employed by the Federal Government. Dr. Parcinski stated that she could not return to her
position at the employing establishment.
The Office found a conflict of medical opinion between Drs. Parcinski and Calandrino
regarding the causal relationship of appellant’s current condition to her employment and referred
her to Dr. Richard Summa, a Board-certified pulmonologist, to resolve the conflict.
In a report dated October 22, 2009, Dr. Summa diagnosed obstructive lung disease with
components of asthma and chronic obstructive pulmonary disease (COPD). He noted that
appellant’s asthma had allergy and exercise-induced components and that her COPD was due to
a history of smoking cigarettes. Dr. Summa stated that her asthma was exacerbated by allergen
exposure, exercise and environmental condition such as extremes of temperature and humidity.

2

He stated, “[Appellant’s] asthma and allergic rhinitis were precipitated, aggravated and
perpetuated by her job as a letter carrier due to extremes of temperature, humidity exposure,
allergen exposure and the level of physical activity required for her federal employment.”
Dr. Summa further found that although the exacerbation of [her] obstructive lung disease and
allergic rhinitis was temporary and that her lung conditions stabilized and improved once she
was removed from her job as a letter carrier; but had not returned to her preemployment baseline.
He did not feel that appellant’s employment resulted in any permanent change in her lung
function. Dr. Summa stated:
“It is my medical opinion that [appellant’s] asthma and allergic rhinitis would not
have worsened or become persistent with frequent exacerbation if she had not
been exposed to the conditions of her federal employment as a letter carrier. This
clearly moved her disease from an intermittent to persistent pattern and
precipitated frequent exacerbation that required an aggressive increase in her
respiratory maintenance and rescue treatment regimen.”
In a letter dated December 28, 2009, the Office accepted appellant’s claim for temporary
aggravation of extrinsic asthma, ceased and temporary aggravation of allergic rhinitis, ceased.
In a letter dated December 30, 2009, the Office provided appellant with a notice of
proposed termination finding that she no longer had medical residuals or wage loss due to her
accepted conditions. It relied upon Dr. Summa’s report.
By decision dated January 22, 2010, the Office terminated appellant’s compensation and
medical benefits effective February 27, 2009.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability.4 To
terminate authorization for medical treatment, the Office must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.5
Which require further medical treatment.6

2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

4

Furman G. Peake, 41 ECAB 361, 364 (1990).

5

Id.

6

Id.

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When employment factors cause an aggravation of an underlying physical condition, the
employee is entitled to compensation for the periods of disability related to the aggravation.
However, when the aggravation is temporary and leaves no permanent residuals, compensation is
not payable for periods after the aggravation has ceased. This is true even though the employee
is found medically disqualified to continue in such employment because of the effect which the
employment factors might have on the underlying condition. Under such circumstances, her
disqualification for continued employment is due to the underlying condition, without any
contribution by the employment.7 The fact that the Office accepts appellant’s claim for a
specified period of disability does not shift the burden of proof to her to show that he or she is
still disabled. The burden is on the Office to demonstrate an absence of employment-related
disability during the period subsequent to the date when compensation is terminated or
modified.8 It’s burden includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.9
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of the Act which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.10 This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty
and who has no prior connection with the case.11
In situations were there are 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 on a proper
factual background, must be given special weight.12
ANALYSIS
Appellant’s physician, Dr. Calandrino, supported appellant’s claim that she sustained an
aggravation of asthma due to her exposures to extremes of temperature and humidity as well as
exertion as a letter carrier. The Office referred her to Dr. Parcinski for a second opinion
evaluation. Dr. Parcinski opined that appellant’s asthma was not caused or permanently
aggravated by her work environment, but noted that her underlying condition may be aggravated
by her job. Due to the disagreement between the physician on the nature and extent of the
aggravation of appellant’s asthma by her employment duties, the Office properly determined that
a conflict of medical opinion existed.
7

Raymond W. Behrens, 50 ECAB 221, 222 (1999); T.E., Docket No. 07-2227 (issued March 19, 2008).

8

Id.

9

Id.

10

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

11

R.C., 58 ECAB 238 (2006).

12

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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The Office referred appellant to Dr. Summa to resolve the conflict. The Board finds that
he provided several inconsistent statements regarding the degree of aggravation of her
underlying condition caused by her employment duties. Dr. Summa stated, “[Appellant’s]
asthma and allergic rhinitis were precipitated, aggravated and perpetuated by her job as a letter
carrier due to extremes of temperature, humidity exposure, allergen exposure and the level of
physical activity required for her federal employment.” He also opined that the employmentrelated aggravation was temporary and had not resulted in any permanent changes in her lung
function, but her asthma did not appear to have returned to her preemployment baseline.
Dr. Summa noted “asthma and allergic rhinitis would not have worsened or become persistent
with frequent exacerbation if she had not been exposed to the conditions of her federal
employment as a letter carrier. This clearly moved appellant’s disease from an intermittent to
persistent pattern and precipitated frequent exacerbation that required an aggressive increase in
her respiratory maintenance and rescue treatment regimen.”
The Board finds that Dr. Summa’s opinion on causal relation requires clarification. As
Dr. Summa initially stated employment factors had temporarily aggravated her underlying
condition in one sentence but concluded that her condition had worsened since such exposure in
another. He did not provide a detailed opinion with medical reasoning supporting either the
aggravation of appellant’s asthma was temporary with no change in the underlying condition or
that the aggravation of appellant’s asthma was permanent, resulting in a change in the underlying
condition rather than merely a temporary increase in symptoms. When the Office secures an
opinion from an impartial medical specialist and the opinion of the specialist requires
clarification, it has the responsibility to secure a supplemental report from the specialist for the
purpose of correcting the defect in the original report.13 Unless this procedure is carried out by
the Office, the intent of section 8123(a) of the Act, will be circumvented when the impartial
specialist’s medical report is insufficient to resolve the conflict of medical evidence.14
Dr. Summa’s report is not sufficient to resolve the conflict of medical opinion. The Office
should have requested a supplemental report and provided him the definition of temporary and
permanent aggravations. Dr. Summa failed to provide a well-reasoned report as to whether the
aggravation of appellant’s asthma was temporary or permanent and, if temporary when this
aggravation ceased.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to terminate appellant’s
compensation benefits due to an unresolved conflict of medical opinion evidence.

13

L.R. (E.R.), 58 ECAB 369, 375 (2007); Raymond A. Fondots, 53 ECAB 637, 641 (2002).

14

L.R. (E.R.), id. at 376; Harold Travis, 30 ECAB 1071 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2010 is reversed.
Issued: May 9, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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