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

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

Docket No. 14-1860
Issued: June 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 22, 2014 appellant filed a timely appeal from a February 26, 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 has met her burden of proof to establish an emotional
condition while in the performance of duty.
FACTUAL HISTORY
On April 18, 2011 appellant, then a 58-year-old mail processing clerk, filed an
occupational disease claim alleging that on March 16, 2011 she sustained generalized anxiety
and post-traumatic stress disorders in the performance of duty. She stated that she first became
1

5 U.S.C. § 8101 et seq.

aware of her conditions on March 16, 2011 and realized they were caused by her employment on
April 11, 2011. Appellant attributed her conditions to harassment, discrimination, and
disciplinary action related to her use of leave under the Family and Medical Leave Act (FMLA),
changes in her work duties and hours, unreasonable time restraints for handling and submitting
documents, and humiliation by her supervisors. She stopped work on April 23, 2011.
By letter dated May 27, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish her claim. It requested that she submit factual and medical evidence.
In an undated letter, Dean B. Santulli, a customer service supervisor, noted that appellant
had been working in a limited-duty capacity following a March 2005 arm injury. The last job
offer made to appellant was dated August 2010. Due to declining mail volumes, changes in mail
processing (i.e., increases in automated mail), and operational necessity, it was necessary to
modify her assigned duties to ensure that she performed necessary work within her restrictions.
Appellant had not disputed any of these changes. She was unhappy and brooding over the
employing establishment’s failure to give her the work she desired and, as a result, she believed
that she suffered from an emotional condition. Mr. Santulli contended that appellant’s injury did
not constitute an injury in the performance of duty within the meaning of FECA. He noted that
disciplinary action taken against her regarding an FMLA-related condition had been addressed
through the grievance and arbitration process and was now closed.
Medical records dated April 18 to June 2, 2011 diagnosed appellant as having generalized
anxiety and post-traumatic stress disorders, and addressed her work-related disability and
medical treatment.
In a June 27, 2011 decision, OWCP denied appellant’s claim, finding that the weight of
the evidence did not establish that the claimed incidents occurred as alleged.
In an appeal request form dated July 25, 2011 and received by OWCP on August 8, 2011,
appellant requested a telephone hearing with an OWCP hearing representative.
In a June 30, 2011 letter, appellant described her physical symptoms and stated that on or
about March 16, 2011 it was becoming extremely difficult for her to come to work as she was
harassed, intimidated, and discriminated against by management and her coworkers. In a
separate June 30, 2011 letter, she described an alleged pattern of harassment, discrimination
based on her age, disability, and sex, and being subjected to disparate treatment, and alleged
various actions. Appellant claimed that management was trying to force employees out like her
who were in the National Reassessment Program (NRP). Her start time constantly changed.
When appellant requested time to perform her job in accordance with the employing
establishment’s regulations, she was told to do as instructed by her supervisor or she would get a
failure to follow instruction letter. Mr. Santulli, Janine Lapi, a supervisor, and former
postmaster, Bob Weldon, made accusations against appellant and purposefully tried to get her to
yell back at them in her defense, but she refused to do so. Appellant received a letter of warning
for covered FMLA absences which were brought to step 2 of a grievance process. Prior letters of
warning were removed from her record. Appellant was notified less than one week before her
start time was changed from 3:00 a.m. to 9:00 a.m. On April 16, 2011 Ms. Lapi requested that
appellant start work at 2:00 a.m. Employees who had numerous late arrivals were allowed to

2

change their schedules while appellant was verbally disciplined and received letters of warning
for being late. Appellant’s medical and personal paperwork were improperly handled by
management. She never refused to perform any job due to her injury and she did not receive
reasonable accommodation while employees who had nonjob-related injuries or illnesses refused
to perform certain jobs and received accommodation.
Appellant’s supervisors allegedly talked about her personal situation with employees. A
female employee called her a derogatory name as she left the lunch room immediately reported
to the union vice president. Ms. Lapi yelled at appellant on the workroom floor in the presence
of coworkers. Appellant was not afforded time to study a scheme change while other employees
were allowed to do so. Mr. Santulli held a “PDI” discussion with appellant for abusing her
FMLA rights and asked her to provide more paperwork. A March 16, 2011 letter of warning
was issued to appellant, which resulted in step 1 and 2 of a grievance process. She was placed
on restricted sick leave and deemed disabled for FMLA-covered absences. Appellant’s
supervisors refused to remove these restrictions.
In an undated letter, Mr. Santulli informed appellant that she had five days to produce
updated medical documentation explaining her physical status and work capacity. In a separate
undated letter, he informed her that her new tour from 9:00 a.m. to 6:00 p.m. would begin on
April 16, 2011.
In a March 16, 2011 letter of warning, the employing establishment stated that appellant
failed to be in regular attendance from January 3 to February 28, 2011.
A March 28, 2011 document indicated that appellant’s request for leave under FMLA
was approved.
Medical records dated April 18 to June 30, 2011 addressed appellant’s generalized
anxiety and post-traumatic stress disorders, emotional and physical conditions, work capacity,
and medical treatment.
In a September 8, 2011 decision, the Branch of Hearings and Review denied appellant’s
hearing request, finding that it was not filed within 30 days. An OWCP hearing representative
also denied a discretionary hearing, noting that she could instead file a request for
reconsideration.
In a memorandum dated June 28, 2012, appellant, through counsel, requested
reconsideration. Counsel attributed appellant’s emotional condition to several work incidents.
On or about March 29, 2009 the employing establishment used appellant’s scheduled day of
annual leave as an aggravating factor when issuing a letter of warning to her. On or about
March 25, 2011 Mr. Santulli issued a letter of warning to appellant for taking protected leave
under FMLA. Counsel stated that he wrongfully asserted that approved leave could serve as a
basis for disciplinary action. He also argued that, since approximately 2008, appellant worked
beyond her OWCP accepted medical restrictions and limitations despite being offered a limitedduty job by the employing establishment. Ms. Lapi and Postmaster Weldon refused her request
for assistance to perform her regular and specially assigned work. They responded that, if she
could not perform the job, she was not needed on the tour. Since approximately December 2008,

3

Postmaster Weldon, Ms. Lapi, Mr. Santulli, and Ms. Salerno allegedly harassed appellant by
repeatedly and abusively asking about her age and when she was eligible for retirement.
Appellant filed a grievance regarding the March 16, 2011 letter of warning for failure to be in
regular attendance despite her absences being protected under FMLA and as a result, the letter
was expunged from her file. A union steward suggested that management was trying to harass
her into resigning due to her use of the FMLA and previously accepted employment injury.2
Appellant’s supervisor and management discarded or destroyed her submitted medical
documentation and FMLA approval certifications. They also repeatedly asked appellant to
submit medical documentation that she had previously submitted. Her supervisor and
management verbally abused her in front of coworkers by stating that she had the worse
attendance record in the district and that she should retire before being fired. Pompi Nagilia, a
supervisor, Ed Regula, an employee, and Mr. Kirschenbaum had FMLA certification and were
late for work due to their or a family member’s medical condition, but none of them was
repeatedly asked to submit medical documentation and disciplined as appellant.
By letter dated April 11, 2011, Mr. Santulli and Ms. Lapi informed appellant that her start
time was being changed from 3:00 a.m. to 9:00 a.m. which was in violation of a collective
bargaining agreement. They also reassigned her to dispatch duties without assignment through
competitive seniority bidding in violation of the employing establishment’s rules, regulations,
policies, or procedures. The dispatch duties were outside of appellant’s medical restrictions and
limitations related to her accepted claim under File No. xxxxxxx496. Other employees were
accommodated with work within their medical restrictions and limitations. Ms. Lapi told
appellant that she did not want to issue the April 11, 2011 letter or reassign her work duties. The
employing establishment discriminated against appellant based on her sex and age as no males
and no females under the age of 40 were similarly reassigned. In another letter dated April 11,
2011, Mr. Santulli and Ms. Lapi requested that she submit updated medical documentation
within five days while clerks with on-the-job and off-the-job injuries were not required to do so.
On or about April 16, 2011 Ms. Lapi yelled at appellant on the workroom floor in front of her
coworkers about her age, job performance, personal matters, request for and use of leave under
the FMLA, and work ethics in a demeaning, intimidating, condescending, embarrassing, and
humiliating manner. Ms. Lapi invited Mr. Santulli to come nearer to hear her tongue lashing.
Postmaster Weldon failed to reprimand Ms. Salerno who called appellant a profane name during
a meeting.
In letters of warning dated March 24, 2009 and March 16, 2011, the employing
establishment stated that appellant failed to be in regular attendance from February 5 to
March 14, 2009 and January 3 to February 28, 2011, respectively. In a grievance dated April 7,
2009, appellant alleged that she was on scheduled annual leave on at least one of the dates listed
in the March 24, 2009 letter.
Documents dated May 12 and April 19, 2011 indicated that appellant was eligible and
approved for leave under FMLA.

2

Appellant filed a traumatic injury claim for an injury sustained on March 21, 2005 under File No. xxxxxx496.

4

In an undated letter, Mr. Santulli informed appellant that her new work hours from 9:00
a.m. to 6:00 p.m. would begin on April 16, 2011.
Medical records dated June 6, 2011 to March 22, 2012 diagnosed appellant as having
generalized anxiety and depressive disorders, emotional conditions, physical restrictions,
disability, and medical treatment.
In a January 22, 2013 decision, OWCP denied modification of the June 27, 2011
decision, finding that the additional evidence did not establish the claim. It noted that appellant
did not submit probative and reliable evidence to support her allegations.
By letter dated November 6, 2013, appellant, through counsel, requested reconsideration.
In an August 19, 2011 letter, Mr. Santulli informed appellant that her new tour of duty
would begin at 9:00 a.m. effective immediately upon her return to duty.
In a September 17, 2012 witness statement, Quartryce Skyes, an employee, addressed
appellant’s contentions. She related that it was improper for the employing establishment to use
approved leave as a basis for disciplinary action. Ms. Skyes further related that, since appellant’s
work-related shoulder injury under File No. xxxxxx496, appellant had not been given limitedduty work despite having a limited-duty assignment offer signed by a supervisor or management.
Appellant was regularly assigned full-work duties without restrictions or limitations. She told
Ms. Skyes that Mr. Santulli and Postmaster Weldon repeatedly asked her about her age,
eligibility for retirement, and ability to perform her job. Appellant also told her about
Postmaster Weldon’s statement that, if she could not do the job, she was not needed on the tour.
Ms. Skyes stated that appellant was not allowed work time to study a scheme change, while all
male clerks and female clerks younger than her were afforded scheme study time. She was
repeatedly asked to submit FMLA documentation by Ms. Lapi, Mr. Santulli, and the postmaster.
They treated appellant in an abusive manner regarding her FMLA-protected absences.
Mr. Nagilia knew about appellant’s lifting restriction related to her accepted shoulder condition
and her heart condition following a heart attack, but constantly directed her to work outside her
restrictions on a daily basis. The change in her start time and reassignment to another bid
position were in violation of the collective bargaining agreement. No man on appellant’s tour
received a new start time or was reassigned from mail processing duties to dispatch duties. Only
one woman was given a new start time and reassigned from mail processing duties to dispatch
duties. It was clear that these people were accommodated for either OWCP accepted workrelated conditions or FMLA-certified medical conditions while appellant was not
accommodated. Neither the postmaster nor supervisor spoke to them in an abusive, intimidating,
demanding, embarrassing, and harassing manner.
On or about April 16, 2011 Ms. Skyes heard Ms. Lapi speak to appellant in a demanding,
intimidating, condescending, embarrassing, and humiliating manner in the middle of the
workroom floor and while assigning her work duties. Ms. Lapi often spoke to and about her
subordinates in this manner which was clearly condoned and approved by the postmaster.
Appellant was subjected to disparate treatment as she was repeatedly required to submit medical
documentation to her immediate supervisors and postmaster in support of her FMLA
certification while other employees were not required to do the same.

5

Mr. Santulli, Ms. Lapin, and Ms. Salerno responded to appellant’s allegations.
Mr. Santulli and Ms. Lapin stated that they did not remember issuing the March 24, 2009 letter
of warning or appellant working beyond her restrictions and limitations. Mr. Santulli only
remembered asking her for documentation regarding her FMLA absence. He and Ms. Lapi
denied telling appellant that she was not needed on the tour if she could not do her job. Ms. Lapi
stated that she was on a detail in Englishtown, New Jersey at that time. She also denied
harassing appellant about her age, noting that they were the same age. Mr. Santulli stated that he
did not care about appellant’s age and that she did not work for him. Ms. Salerno did not recall
having any conversations with appellant or any other employee about their age. Ms. Lapi stated
that she was not concerned about appellant’s retirement eligibility and Ms. Salerno did not recall
having such a conversation with appellant. Ms. Lapi and Mr. Santulli stated that appellant was
afforded the first two hours of tour to study scheme changes. Ms. Lapi stated, however, that she
continually refused to swipe onto the correct operation code reflecting scheme study time.
Mr. Santulli related that appellant did not apply and receive FMLA until March 2011 and she
had 12 absences up to that point. He further stated that she had used invalid FMLA numbers.
Ms. Lapi stated that she was not privileged to any of appellant’s FMLA information as all
information was sent to appellant from an FMLA coordinator. Mr. Santulli stated that he never
received any FMLA documentation.
Regarding appellant’s allegation of verbal abuse by management regarding her
attendance record since December 2008, Ms. Lapi responded that she was in Englishtown, New
Jersey in 2008. Mr. Santulli stated that he never made a comment about appellant’s attendance.
He and Ms. Lapi stated appellant’s contention that her FMLA paperwork was found to be
inadequate and that she had to repeatedly submit the paperwork was not true. Mr. Santulli stated
that he was not allowed to ask for documentation when someone called out under FMLA
documentation. Ms. Lapi stated that she never asked appellant for documentation. Mr. Santulli
maintained that issuance of the March 16, 2011 letter of warning was not malicious. He further
maintained that it was expunged as an act of good faith that appellant would not abuse her sick
leave. Ms. Lapi stated that she was following Postmaster Weldon’s instructions regarding
issuing the April 11, 2011 letter which changed appellant’s start time. Neither Mr. Santulli nor
Ms. Lapi remembered that this letter changed appellant’s work duties. Ms. Lapi believed she
was on a detail in Lakewood, New Jersey when the letter was allegedly issued. Ms. Salerno did
not recall appellant performing dispatch duties. Mr. Santulli stated that the male employees who
did not have their start time or duties changed were not under NRP. Ms. Lapi stated that no
other employees under NRP who were affected by its guidelines. She and Mr. Santulli denied
treating appellant differently in accomodating the medical restrictions of other employees.
Ms. Lapi was willing to accommodate her, however, she refused to provide all information and
doctor’s notes pertaining to her claim. Mr. Santulli stated that the required documentation was
necessary to assign duties within her restrictions. Ms. Lapi denied that she lashed out at
appellant on April 16, 2011. Mr. Santulli stated that this incident did not occur. Ms. Salerno
stated that she never called appellant or any other employee a derogatory name.
In a February 26, 2014 decision, OWCP denied modification of the January 22, 2013
decision. It found that the evidence submitted failed to establish a compensable factor of
employment.

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LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by factors of his or her federal employment.3 To establish that he or she
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
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.6
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 FECA7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
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.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
3

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

4

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

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

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

7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
8

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

9

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

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providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish an emotional
condition causally related to factors of her federal employment. Appellant has not alleged any
factors that would fall under the Cutler case as primarily, she alleged instances of harassment,
discrimination based on her age, disability, and sex, intimidation, disparate treatment, and verbal
abuse by Mr. Santulli, Ms. Lapi, Postmaster Weldon, and Ms. Salerno. Mere perceptions of
harassment or discrimination are not compensable under FECA.12 Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. A claimant must establish a factual basis for his or her allegations with probative and
reliable evidence.13
Appellant claimed that Ms. Conrad witnessed the employing establishment treat her
differently when she was verbally disciplined and received letters of warning for being late for
work while other employees who had numerous late arrivals were not disciplined. She further
claimed that Ms. Leary, Mr. Kirschenbaum, Mr. Collucci, and Mr. Hamby witnessed that
employees were provided time to study a scheme change while she was not given such time.
The record does not contain witness statements from any of these employees supporting
appellant’s allegations. The record fails to substantiate her allegation that management was
trying to harass her into resigning because of her use of the FMLA and prior accepted
employment injury.
Ms. Skyes generally maintained that appellant told her that Mr. Santulli and
Postmaster Weldon repeatedly asked appellant about her age, retirement eligibility, and ability to
perform her job. Her statements are insufficient to establish these incidents, however, as she did
not claim to have actually witnessed them. Ms. Skyes further maintained that appellant told her
that Postmaster Weldon stated that she was not needed on the tour if she could not perform her
job. Ms. Lapi and Mr. Santulli denied this allegation and Ms. Lapi stated that she was on a detail
in Englishtown, New Jersey when the alleged statement was made. She and Mr. Santulli also
denied harassing appellant about her age or being concerned about her retirement eligibility.
Ms. Lapi noted that she and appellant were the same age and Mr. Santulli stated that he did not
care about appellant’s age. Ms. Salerno did not recall having a discussion with appellant about
her age.
10

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

11

Id.

12

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

13

Id.

8

Ms. Skyes’ claim that Ms. Lapi, Mr. Santulli, and Postmaster Weldon treated appellant in
an abusive manner regarding her FMLA-protected absences is general in nature and does not
identify specific incidents of abuse. She maintained that appellant was subjected to disparate
treatment because her accepted work-related or FMLA-certified medical conditions were not
accommodated by the employing establishment while other employees with the same types of
conditions were accommodated. Ms. Skyes noted that no male employee received a new start
time or was reassigned and that only one other female employee received a new start time and
was reassigned. She further maintained that appellant was repeatedly required to submit medical
documentation to her immediate supervisors and postmaster in support of her FMLA
certification while other employees were not required to do so.
A request for reasonable accommodation and medical documentation relate to
administrative matters14 and are not compensable absent a showing of error or abuse on the part
of the employing establishment. Ms. Skyes’ statements are general in nature and do not provide
specific details sufficient to establish error or abuse by the employing establishment in denying
appellant’s request for reasonable accommodation and in requesting medical documentation.
Ms. Lapi and Mr. Santulli denied disparate treatment of appellant regarding her request for
accommodation of her restrictions. Ms. Lapi expressed her willingness to accommodate
appellant’s restrictions and stated that appellant refused to provide all the necessary medical
documentation related to her claim. Mr. Santulli explained that the required documentation was
necessary to assign duties within her restrictions. He and Ms. Lapi related that certain male
employees were not assigned a new start time or duties as they were not under NRP. Based on
the statements from Ms. Lapi, Mr. Santulli, and Ms. Salerno, the Board finds that appellant has
not established a factual basis for her allegations that she was harassed, discriminated against
based on her age, disability, and sex, intimidated, and subjected to disparate treatment by the
employing establishment. Therefore, appellant has failed to establish a compensable factor of
employment.
Ms. Skyes claimed that she heard Ms. Lapi verbally abuse appellant in front of her
coworkers on April 16, 2011 regarding the assignment of work. She stated that Ms. Lapi often
spoke to her subordinates in this manner. The Board has generally held that being spoken to in a
raised or harsh voice does not of itself constitute verbal abuse or harassment.15 Ms. Skyes’
statements are general in nature and do not describe specific details of verbal abuse by Ms. Lapi
on April 16, 2011 or on any other occasion directed at appellant. Ms. Lapi denied lashing out at
appellant on April 16, 2011 and in December 2008. She stated that she was on a detail
assignment in Englishtown, New Jersey in December 2008 when she allegedly verbally abused
her. Mr. Santulli stated that the April 16, 2011 incident did not occur as alleged. Ms. Salerno
denied calling appellant a profane name. The Board finds that appellant has not established that
she was verbally abused by the employing establishment.16 Appellant has not established a
compensable factor of her employment.
14

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

15

T.G., 58 ECAB 189 (2006).

16

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).

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Appellant’s allegations regarding changes in her work schedule,17 assignment of work,18
dislike of a supervisory or managerial action in being directed to follow instructions,19 issuance
of the March 29, 2009 and March 16 and 25, 2011 letters of warning,20 the handling of her
medical and personal paperwork, requests for medical documentation for her absences from
work,21 the filing of grievances,22 and being placed on restricted sick leave,23 are administrative
matters24 and not compensable absent a showing of error or abuse on the part of the employing
establishment.25 Mere dislike or disagreement with certain supervisory actions will not be
compensable absent error or abuse on the part of the supervisor.26 The Board finds that the
record does not establish error or abuse in these matters and they are not compensable factors of
employment. Ms. Skyes stated that it was improper for management to use approved leave as a
basis for disciplinary action taken against appellant. She further stated that appellant’s new start
time and reassignment to another bid position were made in violation of a collective bargaining
agreement. Ms. Skyes’ statements are general in nature and do not provide specific details
sufficient to establish error or abuse by the employing establishment in handling these
administrative matters. She maintained that appellant’s supervisor and management discarded or
destroyed appellant’s medical documentation and FMLA approval certifications. Ms. Skyes’
statements are insufficient to establish any error or abuse as she did not indicate that she actually
witnessed the employing establishment act erroneously or abusively as alleged by appellant in
handling her submitted documents.
Regarding her statement that the disciplinary letters issued to appellant had been
expunged from her file as a result of a grievance she filed, the Board notes that the mere fact that
personnel actions were later modified or rescinded does not, in and of itself, establish error or
abuse.27 While the March 16, 2011 letter of warning was expunged from appellant’s file, the
record does not contain a final decision finding that the employing establishment committed
error or abuse in issuing this letter or the other disciplinary letters. Mr. Santulli explained that
issuance of the March 16, 2011 letter was not malicious. He further explained that it was
expunged from appellant’s file as an act of good faith that she would not abuse her sick leave.
17

Ernest J. Malagrida, 51 ECAB 287 (2000).

18

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

19

See Marguerite J. Toland, 52 ECAB 294 (2001).

20

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).
21

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

22

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

23

C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, 57 ECAB 611 (2006).

24

J.C., 58 ECAB 594 (2007).

25

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

26

A.K., Docket No. 14-437 (issued June 9, 2014).

27

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

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Mr. Santulli noted that she had 12 absences before she applied and received leave under the
FMLA in March 2011. He also noted that appellant had used invalid FMLA numbers.
Mr. Santulli and Ms. Lapi denied repeatedly asking her to submit FMLA paperwork and
deeming the submitted paperwork as inadequate. Mr. Santulli maintained that he was not
allowed to ask for such documentation. Ms. Lapi stated that she was not privileged to any of
appellant’s information since it was sent to her by an FMLA coordinator.
Regarding the issuance of the April 11, 2011 letter informing appellant that her start time
had been changed from 3:00 a.m. to 9:00 a.m., Ms. Lapi stated that she only followed
Postmaster Weldon’s instructions to do so. Neither she nor Mr. Santulli recalled issuing the
April 11, 2011 letter which informed appellant about her reassignment to a new work position.
Ms. Lapi related that she was on a detail in Lakewood, New Jersey when the letter was allegedly
issued. Mr. Santulli did not recall appellant performing dispatch duties. He noted that her work
duties were last modified in August 2010 due to changes in mail volumes and processing and
operational concerns. Mr. Santulli explained that this modification was also necessary to ensure
that appellant performed work within her restrictions. He stated that she claimed a work-related
emotional condition because she was unhappy and brooding about the employing
establishment’s failure to provide her with the work she desired. As stated, appellant’s desire to
work in a particular work environment does not relate to any requirement of her assigned duties
and, thus, her reaction did not arise in the performance of duty.28 Based on the statements from
Mr. Santulli and Ms. Lapi, the Board finds that appellant has failed to establish that the
employing establishment committed error or abuse in handling the above-noted administrative
matters. Therefore, appellant has failed to establish a compensable factor of employment.
Appellant alleged that since 2008 the employing establishment did not abide by her work
restrictions and management failed to provide assistance with her work duties. Being required to
work beyond one’s physical limitations may constitute a compensable employment factor, but
such allegation must be substantiated by probative and reliable evidence.29 The record does not
contain sufficient evidence to establish that appellant had specific limitations that were not
accommodated by the employing establishment. Ms. Skyes claimed that appellant was assigned
full-work duties despite having a limited-duty job offer related to her accepted shoulder
condition under File No. xxxxxx496 and that Mr. Nagilia directed appellant to work outside her
lifting restriction on a daily basis. The Board finds that Ms. Skyes’ statement is general in nature
and does not specifically identify the nature of appellant’s restrictions and assigned work duties.
Further, appellant did not submit any evidence to support her claim that management failed to
provide assistance with her work duties. She has not submitted evidence sufficient to establish
that her physical restrictions were exceeded or that management failed to provide her with
assistance. The Board finds that appellant has not established a compensable employment factor.
Since appellant has not established a compensable work factor, the Board will not address
the medical evidence.30
28

Supra note 6.

29

Diane C. Bernard, 45 ECAB 223 (1993); Lizzie McCray, 36 ECAB 419, 421 (1985).

30

Karen K. Levene, 54 ECAB 671 (2003).

11

On appeal, appellant has submitted new evidence. The Board lacks jurisdiction to review
evidence for the first time on appeal.31 Appellant may submit new evidence to OWCP with a
written request for reconsideration within one year of this merit decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

31

20 C.F.R. § 501.2(c)(1).

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mechanicsville, NY, Employer
__________________________________________

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

Docket No. 15-88
Issued: February 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JURISDICTION
On October 15, 2014 appellant, through counsel, timely appealed an August 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 the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on or about
May 1, 2012.
FACTUAL HISTORY
On May 15, 2013 appellant, then a 30-year-old rural carrier, filed an occupational disease
claim (Form CA-2) for bilateral carpal tunnel syndrome (CTS), which allegedly arose on or
about May 1, 2012. She attributed her condition to daily sorting, casing, and handling of mail.
Appellant indicated that she performed these task six to nine hours per day, six days per week.
1

5 U.S.C. §§ 8101-8193 (2006).

She reported numbness, stiffness, and pain in her hands and wrists, which had progressively
worsened since May 2012. Appellant’s left hand was more symptomatic than her right.
In a May 22, 2013 attending physician’s report, CA-20 form, Dr. George Zanaros, a
Board-certified orthopedic surgeon with a subspecialty in hand surgery, diagnosed bilateral CTS,
which he attributed to employment-related repetitive activity and fine manipulation. He
recommended surgery.
In a May 31, 2013 development letter, OWCP advised appellant that the medical
evidence was insufficient to establish that her bilateral CTS was caused or aggravated by her
employment. It afforded her at least 30 days to submit additional medical evidence in support of
her occupational disease claim.
OWCP subsequently received the results of a November 5, 2012 electromyography and
nerve conduction study (EMG/NCV), which revealed bilateral median nerve entrapment -- left
more than right, consistent with CTS.
Dr. Katherine J. Herdzik, a family practitioner, submitted a May 28, 2013 attending
physician’s report, CA-20 form. She diagnosed bilateral CTS, which was noted to have been
caused or aggravated by an employment activity. Dr. Herdzik explained that appellant was a
carrier who sorted mail in the morning and delivered mail in the afternoon, and that her
symptoms worsened with repetitive hand motions sorting mail. She further explained that
appellant’s symptoms abated with time off from work.
OWCP also received a June 11, 2013 CA-20 form from Dr. Justin M. Ferrara, a Boardcertified orthopedic surgeon. He diagnosed bilateral CTS. Dr. Ferrara noted that appellant
advised that her condition “[c]ame on with duties of employment.” He checked the “Yes” box
on the CA-20 form indicating that it was his belief that the diagnosed condition was caused or
aggravated by an employment activity. Dr. Ferrara also provided a two-page narrative report
dated June 11, 2013. He noted that appellant was a postal carrier who complained of numbness
and tingling for the past year. Dr. Ferrara also noted that she “feels that her duties of
employment ... have caused this and have made it worse.” Appellant denied any specific injury
at work and stated that she had not missed any time from work because of her condition. She
informed Dr. Ferrara that this was a workers’ compensation claim. Dr. Ferrara diagnosed
bilateral CTS and recommended bilateral surgical releases to be performed separately. In the
interim, he advised that appellant could continue working at her prior level of employment.
In a decision dated August 23, 2013, OWCP denied appellant’s occupational disease
claim because the medical evidence failed to establish a causal relationship between her rural
carrier duties and her diagnosed bilateral CTS.
Appellant timely requested reconsideration and submitted an October 2, 2013 report from
Dr. Ferrara, who indicated that he had a long discussion with appellant regarding her symptoms
and the employment activities that specifically brought on her symptoms. Dr. Ferrara noted that
there was not any one specific event or injury that occurred. Appellant stated that activities
which require repetitive motion and tasks involving the fingers, hand, and wrist caused her
symptoms. These activities included collecting mail from around the office, unbinding bundled

2

flats using scissors to cut plastic bands or wrap them while holding them in the left hand,
grasping and cutting flats and inserting into cells in the mail case, holding bundles with the hand
and the fingers, and having to grasp and insert raw letters into the cells of mail. In addition to
holding bundles of mail, appellant reported having to place letters in curbside boxes, and hold
bundles with the left arm and fingers, and grasping and inserting raw letters into cluster boxes,
pulling mail from cells, pushing carts with a full day’s worth of mail to the truck, loading the
truck, and on-street delivery including opening a mailbox with the right hand, grasping the mail
with the left, and passing to the right hand to insert in the mailbox as well as cluster box delivery.
All of these activities seemed to bring on and worsen appellant’s symptoms.
Dr. Ferrara reiterated his diagnosis of bilateral CTS, and continued to recommend carpal
tunnel releases. He concluded his October 2, 2013 report with the following statement: “I ... feel
with a high degree of medical certainty that this [CTS] is causally related to [appellant’s] duties
of employment which were outlined ... above.”
By decision dated January 6, 2014, OWCP reviewed the merits of appellant’s claim, but
denied modification of the August 23, 2013 initial denial. It found Dr. Ferrara’s October 2, 2013
report insufficient to establish causal relationship. Although Dr. Ferrara indicated that
appellant’s CTS was work related, he failed to provide an explanation as to how he arrived at this
conclusion.
On June 2, 2014 appellant’s counsel requested reconsideration. Counsel submitted a
September 12, 2013 amended copy of Dr. Ferrara’s original June 11, 2013 treatment notes. He
also resubmitted Dr. Ferrara’s October 2, 2013 report.
The September 12, 2013 addendum reads in relevant part:
“[It] was felt that this is a Workers’ Compensation issue as this syndrome
developed and the symptoms developed through [appellant’s] duties of
employment and she had not experienced them outside of her duties of
employment. [Appellant] does a significant amount of repetitive motion in
regards to use of the hands, and this does significantly exacerbate her symptoms.
In my medical opinion with a high degree of medical certainty, I do feel that her
[CTS] is work related....”
OWCP again reviewed the merits of appellant’s claim, but denied modification in an
August 28, 2014 decision. It found that Dr. Ferrara noted a temporal relationship between her
symptoms and her employment duties, but did not otherwise provide a rationalized explanation
of how her employment duties caused her bilateral CTS.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of her claim by the weight of the reliable, probative, and substantial evidence, including

3

that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.2
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.3
ANALYSIS
Appellant claims that her bilateral CTS is employment related. OWCP has denied her
occupational disease claim on the basis that the medical evidence did not adequately establish a
causal relationship between the diagnosed condition and her duties as a rural carrier. The earliest
diagnostic evidence of appellant’s bilateral CTS appears to be the November 5, 2012
EMG/NCV. However, the physician who interpreted the study did not address causal
relationship.
In his May 22, 2013 attending physician’s report, CA-20 form, Dr. Zanaros diagnosed
bilateral CTS, which he attributed to employment-related repetitive activity and fine
manipulation. He also noted that, when on vacation, appellant had no symptoms. Dr. Zanaros
did not identify her as a rural carrier or otherwise exhibit any particular knowledge of her
employment duties. A physician’s opinion must be based on a complete factual and medical
background, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and appellant’s specific employment factors.4
In finding appellant’s bilateral CTS employment related, Dr. Herdzik noted that appellant
“reports” her symptoms worsened with repetitive hand motions sorting mail. She also noted that
appellant gets a bit of relief from symptoms with time off from work. In her May 28, 2013
report, CA-20 form, Dr. Herdzik described appellant’s carrier duties as sorting in the morning
and delivering in the afternoon. In this regard, she exhibited a very limited knowledge of
appellant’s rural carrier duties, and she appears to have based her opinion solely on appellant’s

2

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See also
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors.
3

Victor J. Woodhams, id.

4

Id.

4

representation regarding the cause of her symptoms. The May 28, 2013 CA-20 form does not
constitute a rationalized medical opinion on causal relationship.5
Dr. Ferrara’s June 11, 2013 CA-20 form did not include an explanation regarding causal
relationship. He merely checked the “Yes” box (No. 8) indicating that it was his opinion that the
condition found was caused or aggravated by an employment activity. The Board has
consistently held that merely placing a checkmark in the “Yes” box on a questionnaire form
(8) will not suffice for purposes of establishing causal relationship.6 Dr. Ferrara’s initial June 11,
2013 treatment notes also failed to include an explanation regarding causal relationship. At the
time, he noted that appellant denied any specific injury at work. Dr. Ferrara also reported that
she “feels that [appellant’s] duties of employment ... have caused this and have made it worse.”
He did not express an opinion independent of appellant’s personal belief that her condition was
employment related.
In his September 12, 2013 addendum, Dr. Ferrara stated that he felt appellant’s bilateral
CTS was a workers’ compensation issue because her symptoms and condition developed through
her employment, and she had not experienced them outside of her employment. He described
her job as involving a significant amount of repetitive motion in regards to use of the hands. At
the time, Dr. Ferrara did not exhibit a thorough understanding of appellant’s rural carrier duties.
Furthermore, he merely described a temporal relationship between her work and the onset/
abatement of her bilateral hand and wrist symptoms. The fact that a condition manifests itself
during a period of employment is not sufficient to establish causal relationship.7 A mere
temporal relationship between the employment activity and the reported symptoms will not
suffice.8
Dr. Ferrara’s latest report, dated October 2, 2013, incorporated appellant’s detailed
account of her “repetitive motion and tasks,” such as collecting mail, unbinding flats, holding
bundles of mail, and placing letters in curbside boxes. He noted that all of the reported activities
seemed to bring on and worsen her symptoms. Dr. Ferrara concluded that appellant’s CTS was
causally related to her described employment duties. Although he was aware of her various
duties as a rural carrier, he failed to explain how these reported activities caused or contributed to
her bilateral CTS. As previously indicated, it is not enough to merely conclude that a condition
is employment related. A physician’s opinion must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.9

5

Id.

6

See D.D., 57 ECAB 734, 739 (2006); Deborah L. Beatty, 54 ECAB 340, 341 (2003).

7

20 C.F.R. § 10.115(e).

8

See D.I., 59 ECAB 158, 162 (2007). The fact that a condition manifests itself during a period of employment
does not raise an inference of causal relationship.
9

Victor J. Woodhams, supra note 2.

5

The above-noted medical evidence is insufficient to establish a causal relationship
between appellant’s rural carrier duties and her bilateral CTS. Moreover, her belief that factors
of employment caused or aggravated her condition is insufficient, by itself, to establish causal
relationship.10 Accordingly, the Board finds that appellant failed to establish that her bilateral
upper extremity condition is employment related.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision.11
CONCLUSION
Appellant failed to prove that she sustained an injury in the performance of duty on or
about May 1, 2012.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 25, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

10

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

11

5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

6


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

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

Docket No. 13-100
Issued: March 11, 2013

Case Submitted on the Record

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

JURISDICTION
On October 18, 2012 appellant filed a timely appeal from a September 10, 2012 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 has more than a five percent right arm permanent
impairment.
FACTUAL HISTORY
On November 5, 2010 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a right arm injury on November 2, 2010 from a
motor vehicle accident in the performance of duty. OWCP initially accepted the claim for a right
1

5 U.S.C. § 8101 et seq.

elbow contusion on December 6, 2010. On January 20, 2011 it accepted the claim for
enthesopathy of the elbow region, right flexor tendon tear, and on June 3, 2011 accepted closed
dislocation of the right elbow.
In a report dated November 8, 2011, Dr. Jeremy Johnson, a Board-certified orthopedic
surgeon, indicated that appellant had undergone a right ulnar collateral ligament reconstruction
surgery on June 13, 2011.2 He provided results on examination, including elbow range of
motion and grip strength results. Dr. Johnson reported that the ulnar collateral ligament showed
slight laxity but an excellent end point. He completed a form report stating that appellant had a
20 percent arm impairment.3 No citations to tables or other explanation was provided as to the
calculation.
OWCP referred the case to an OWCP medical adviser for review. In a report dated
January 18, 2012, the medical adviser identified Table 15-4 (elbow regional grid) of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th edition,
hereinafter A.M.A., Guides). He indicated that the default impairment for the ulnar collateral
ligament injury was five percent, and there was no adjustment based on application of the
relevant grade modifiers. The medical adviser reported a date of maximum medical
improvement of November 8, 2011.
By decision dated February 15, 2012, OWCP issued a schedule award for a five percent
right arm impairment. The period of the award was 15.60 weeks from November 20, 2012.4
Appellant requested a hearing before an OWCP hearing representative, which was held
on June 12, 2012. On July 10, 2012 he submitted a June 19, 2012 report from Dr. Johnson, who
stated that his permanent disability rating was “based on the patient’s residual laxity, decreased
range of motion, decreased strength and likely permanent paresthesias in his operative right
elbow.” Dr. Johnson further stated that, based on the sixth edition of the A.M.A., Guides,
appellant was “given a 3 percent permanent partial disability due to mild dysthetic pain of 3
percent as seen on Table 13.7 and a 13 percent upper extremity permanent partial disability
based on instability of his ulnar collateral ligament repair as noted on Table 15.4.” He concluded
that appellant had a 16 percent right arm impairment.
By decision dated August 23, 2012, the hearing representative remanded the case for
review of Dr. Johnson’s report by an OWCP medical adviser. In a report dated September 5,
2012, the medical adviser opined that appellant did not have more than a five percent right arm
permanent impairment. The medical adviser stated that Dr. Johnson’s opinion as to 16 percent
was not a proper application of the A.M.A., Guides.

2

The surgical report of record dated June 13, 2011 reported the surgery was to the left elbow.

3

The form report was a state workers’ compensation form.

4

The decision stated that the impairment was to the right elbow. The elbow is not a scheduled member of the
body under 5 U.S.C. § 8107. The 15.60 weeks of compensation represents five percent of the maximum 312 weeks
of compensation for impairment to the arm.

2

In a decision dated September 10, 2012, OWCP found that appellant was not entitled to
more than the five percent schedule award previously issued.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.5 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.7
With respect to an elbow impairment, the A.M.A., Guides provides a regional grid at
Table 15-4. The class of impairment (CDX) is determined based on specific diagnosis, and then
the default value for the identified CDX is determined. The default value (grade C) may be
adjusted by using grade modifiers for Functional History (GMFH, Table 15-7), Physical
Examination (GMPE, Table 15-8) and Clinical Studies (GMCS, Table 15-9). The adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).8
ANALYSIS
In the present case, the attending orthopedic surgeon, Dr. Johnson, initially provided an
opinion in a November 8, 2011 form report that appellant had a 20 percent right arm impairment.
He provided no reference to specific tables under the A.M.A., Guides. A medical report that
does not describe the basis for the impairment rating or refer to specific tables in the A.M.A.,
Guides is of diminished probative value.9
OWCP referred the case to a medical adviser, who reviewed the findings in
Dr. Johnson’s November 8, 2011 narrative report and identified Table 15-4. Under this table, an
ulnar collateral ligament injury with occasional instability is CDX 1 with a default (grade C) arm
impairment of five percent.10 The medical adviser then identified the grade modifiers: a GMFH
of one (mild problem, pain with vigorous activity), a GMPE of two (moderate problem with
moderate instability). As to clinical studies, the medical adviser found this was not applicable.

5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
6

A. George Lampo, 45 ECAB 441 (1994).

7

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

8

The net adjustment is up to +2 (Grade E) or -2 (Grade A).

9

See Mary L. Henninger, 52 ECAB 408 (2001).

10

A.M.A., Guides 399, Table 15-4.

3

Applying the formula noted above, the correct adjustment would have been +1 (grade D),
as (1-1) + (2-1) = 1. OWCP’s medical adviser attempted to divide 1 by 3, stating that 1/3 = 0, or
no adjustment. This is not a correct application of the formula. Based on the OWCP medical
adviser’s findings, the correct arm impairment was grade C adjusted up one grade due to the
functional history and physical examination resulting in a grade D, or a six percent arm
impairment under Table 15-4.11
With respect to Dr. Johnson’s June 19, 2012 report, OWCP properly found his opinion
that appellant had a 16 percent arm impairment was of little probative value. Dr. Johnson
identified a three percent impairment under Table 13-7, a table that refers to a mental status
examination for neurologically-impaired patients.12 It is not clear what table Dr. Johnson
intended to apply regarding pain. As to Table 15-4, Dr. Johnson provides no explanation as to
how a 13 percent impairment was calculated. For ulnar collateral ligament injuries under Table
15-4, even if Dr. Johnson was referring to “recurrent instability: frequent; resulting in functional
limitation,” the range of impairment is 8 to 12 percent.13 In the absence of a rationalized medical
opinion, Dr. Johnson’s report is not sufficient to establish the degree of permanent impairment.
The Board finds the weight of the medical evidence of record indicates that appellant had
a six percent arm impairment. On return of the case record, OWCP should issue a schedule
award for an additional one percent right arm impairment. Appellant may request at any time an
increased schedule award based on new probative evidence showing an increased employmentrelated permanent impairment.
CONCLUSION
The Board finds that the probative medical evidence of record establishes a six percent
right arm impairment.

11

Id.

12

Id. at 330, Table 13-7.

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2012 is modified to reflect a six percent right arm
impairment and affirmed as modified.
Issued: March 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
BULK MAIL CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 14-586
Issued: September 2, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 23, 2014 appellant, through his attorney, filed a timely appeal from an
October 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his claim for disability compensation and a November 4, 2013 merit decision
terminating his compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s authorization for
medical benefits effective March 19, 2013; and (2) whether appellant sustained intermittent
periods of disability from September 25, 2010 to April 6, 2012 due to his accepted work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated March 20, 2012, the
Board set aside an April 13, 2011 OWCP decision denying appellant’s traumatic injury claim.2
The Board found that he established the occurrence of the August 10, 2010 work incident and
remanded the case for further development of the medical evidence to determine whether he had
sustained an injury as a result of the accepted event. The facts and circumstances as set forth in
the prior decision are hereby incorporated by reference.
In a report dated October 8, 2010, Dr. Charles M. Bolno, an attending orthopedic
surgeon, discussed appellant’s August 10, 2010 employment incident and noted that he had
received treatment on that date at the emergency room. He opined that appellant had not
recovered from a prior neck injury when he returned to work on August 10, 2010. Dr. Bolno
diagnosed an acute glenoid tear of the left shoulder, subacromial impingement of both shoulders,
left shoulder post-traumatic arthritis, acute traumatic cervical radiculopathy, acute traumatic
cervical strain and sprain and bilateral acute traumatic carpal tunnel syndrome. He listed work
restrictions.3
In a report dated February 3, 2011, Dr. Bolno stated:
“The extensive nature of the work that [appellant] was performing at the time o[f]
his injury and the excessive amount of weight that he was lifting and pushing
related to the containers of mail not only aggravated a preexisting condition that
result[ed] in a fusion of his cervical spine but caused a new cervical radiculopathy
in his neck with an acute labral tear in his shoulder. There is no doubt that the
repetitive nature of his work resulted in his carpal tunnel syndrome and ulnar
nerve compression. There is no doubt that [appellant’s] injuries prevent him from
performing his duties at this time…. There is no doubt that the numbness and
parasthesias in the left arm are a direct result of the work-related injury on
August 10, 2010 and the resulting weakness and severe pain in the left shoulder is
related to the heavy lifting and pushing that he was doing on August 10, 2010
resulting in a tear of the glenoid labrum. These injuries prevent [appellant] from
performing his duties now as they have since the initial injury.”
In a report dated August 2, 2012, Dr. Bolno asserted that appellant was totally disabled as
a result of injuries to his bilateral shoulders and cervical spine at work on August 10, 2010. He
diagnosed bilateral rotator cuff injuries and acute cervical radiculopathy as a result of the
August 10, 2010 employment incident.

2

Docket No. 11-1657 (issued March 20, 2012). On August 11, 2010 appellant, then a 45-year-old mail handler,
filed a traumatic injury claim alleging that on August 10, 2010 he felt tingling and pain in his shoulder and neck
when he pulled a container off a truck.
3

Dr. Bolno submitted a similar report on October 25, 2010.

2

On August 28, 2012 OWCP referred appellant to Dr. Robert Allen Smith, a Boardcertified orthopedic surgeon, for a second opinion examination.
In a report dated
September 14, 2012, Dr. Smith diagnosed a soft tissue neck strain due to the August 10, 2010
work incident. He discussed appellant’s history of a prior cervical fusion at C6-7 in 2006 and
surgery on his left shoulder in 2002. Dr. Smith found no evidence of an aggravation of the
preexisting neck arthritis and stated, “I would conclude that his soft tissue injury from the work
incident of August 10, 2010 has resolved without residual.” He attributed appellant’s current
symptoms to the prior neck surgery.
Based on Dr. Smith’s report, on September 24, 2012, OWCP accepted appellant’s claim
for resolved neck sprain.
On October 18, 2012 appellant filed claims for compensation for intermittent dates
beginning September 25, 2010.
In a report dated October 25, 2012, Dr. Bolno discussed appellant’s history of
experiencing pain on August 10, 2010 after pushing mail containers out of a trailer. He
diagnosed acute traumatic cervical sprain and radiculopathy, acute traumatic bilateral carpal
tunnel syndrome, an acute traumatic glenoid tear of the left shoulder, subacromial impingement
syndrome and strains of the bilateral shoulders and post-traumatic left shoulder arthritis.
Dr. Bolno questioned whether Dr. Smith reviewed the abnormal findings on magnetic resonance
imaging (MRI) scan study of the cervical spine and noted that an electromyogram (EMG)
showed carpal tunnel syndrome. He found that appellant was totally disabled.
On November 6, 2012 OWCP requested that Dr. Bolno review Dr. Smith’s report and
indicate whether he concurred with his conclusions. On November 16, 2012 Dr. Bolno found
that appellant was totally disabled due to bilateral cuff injuries and cervical radiculopathy
sustained on August 10, 2010.
OWCP determined that a conflict existed between Dr. Smith and Dr. Bolno regarding
whether appellant had any continuing disability due to his accepted work injury. On
November 29, 2012 it referred appellant to Dr. Joseph A Jelen, Jr., a Board-certified orthopedic
surgeon, for an impartial medical examination.4
On December 18, 2012 Dr. Jelen reviewed the history of the August 10, 2010 work injury
and medical reports of record, including the results of MRI scan studies of the shoulder and
cervical spine. On examination, he found normal sensation and motion with a negative Tinel’s
sign and straight leg raise. Dr. Jelen diagnosed resolved cervical strain and a resolved transient
soft tissue stretch. He found normal range of motion of the neck with only “occasional
paresthesias,” which he advised may result from a preexisting condition. Dr. Jelen found that
appellant had no limitations or residuals of his accepted work injury based on the physical
examination findings. He related that the September 7, 2010 cervical MRI scan study showed
“mostly degenerative changes and findings consistent with his previous cervical fusion” and that

4

The record contains a November 29, 2012 MEO23, Appointment Schedule Notification, referring appellant to
Dr. Jelen for an impartial medical examination and a screen shot showing the selection of Dr. Jelen.

3

an MRI scan study of the left shoulder dated September 3, 2010 showed increased anterior
labrum signal but no tear.
By letter dated January 15, 2013, OWCP advised appellant of its proposed termination of
his compensation and authorization for medical benefits.
By letter dated January 28, 2013, OWCP informed Dr. Bolno that it had only accepted
cervical strain due to the August 10, 2010 work injury. It noted that he had been treating
appellant for cervical radiculopathy, ulnar compression neuropathy and carpal tunnel syndrome
prior to his August 10, 2010 work injury. OWCP requested that Dr. Bolno review the report of
Dr. Jelen and explain why appellant was disabled from work.
On January 29, 2013 appellant’s attorney argued that Dr. Jelen’s report was inconsistent
and unrationalized and thus not entitled to the weight of the evidence.
By decision dated March 20, 2013, OWCP terminated appellant’s authorization for
medical treatment effective March 19, 2013.5 It found that Dr. Jelen’s report constituted the
weight of the evidence and established that he had no further residuals of his August 10, 2010
work injury.
In a decision dated March 21, 2013, OWCP denied appellant’s claim for compensation
from September 25 to November 19, 2010, December 4, 2010 to March 25, 2011, March 26
to October 9, 2012, April 7 to October 9, 2012, October 20 to November 2, 2012 and
September 24 to April 6, 2012. It found that Dr. Bolno, in his reports, diagnosed conditions
unrelated to the August 2010 work injury. OWCP determined that Dr. Jelen’s opinion
represented the weight of the evidence and established that he had no disability due to his
August 10, 2010 employment injury.
On March 25, 2013 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative on the March 20, 2013 decision. On March 26, 2013 counsel also
requested an oral hearing on the March 21, 2013 decision.
At the July 17, 2013 hearing regarding the March 21, 2013 decision, counsel argued that
Dr. Bolno’s opinion supported disability. He questioned whether OWCP properly selected
Dr. Jelen as an impartial medical examiner in accordance with its procedures and noted that
Dr. Jelen did not address when disability ceased.
In a report dated July 30, 2013, Dr. Bolno asserted that on August 10, 2010 appellant
“was pushing heavy containers of mail out of trailers when he sustained trauma to his cervical
spine, shoulders and lumbar spine, with severe radicular pain in both the upper and lower
extremities.” He asserted that a September 2010 cervical MRI scan study showed foraminal
encroachment on the left at C4-5, degenerative joint disease at C3-4 and C5-6, an anterior fusion
at C6-7 and a herniated disc with impingement at C4-5 and C5-6.6 An MRI scan study also
5

OWCP’s March 20, 2013 decision purported to also terminate compensation benefits; however, appellant was
not receiving wage-loss compensation at the time of the termination.
6

In a report dated July 3, 2013, Dr. Bolno expressed his disagreement with Dr. Smith’s opinion.

4

showed an anterior labral tear of the left shoulder and EMG studies showed cervical
radiculopathy and severe carpal tunnel syndrome bilaterally. Dr. Bolno questioned Dr. Jelen’s
findings in view of the fact that appellant worked in his usual employment for five years before
the August 10, 2010 work injury and given the examination findings and results of diagnostic
studies. He asserted that the results of diagnostic studies confirmed that he had sustained more
than a soft tissue injury.
On August 22, 2013 counsel changed his request for an oral hearing on the
March 20, 2013 termination decision to a request for a review of the written record.
By decision dated October 21, 2013, OWCP’s hearing representative affirmed the
March 21, 2013 decision. In a decision dated November 4, 2013, the hearing representative
affirmed the March 20, 2013 decision.
On appeal, counsel argues that Dr. Smith’s opinion is speculative and thus of little
probative value. He also contends that there is no evidence that OWCP properly selected
Dr. Jelen as an impartial medical examiner. Counsel maintains that Dr. Jelen did not address the
significance of a September 7, 2010 MRI scan study finding C3-4 nerve encroachment or the
results of EMG studies. He also argues that Dr. Jelen’s finding that the cervical strain appeared
to be resolved was speculative in nature and that he did not address exactly when the disability
ceased or knowledge of appellant’s work duties.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.7
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.8 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.9 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition which require
further medical treatment.10
Section 8123(a) 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.11 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
7

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

8

Gewin C. Hawkins, 52 ECAB 242 (2001).

9

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

10

Id.

11

5 U.S.C. § 8123(a).

5

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.12
ANALYSIS -- ISSUES 1
The Board finds that the record contains an unresolved conflict regarding whether
appellant sustained conditions other than neck strain as a result of the August 10, 2010
employment injury. In a report dated October 8, 2010, Dr. Bolno, appellant’s attending
physician, advised that on August 10, 2010 appellant sustained an acute labral tear in his left
shoulder and aggravated a preexisting cervical condition which resulted in new cervical
radiculopathy. Dr. Smith, an OWCP referral physician, diagnosed neck strain due to the
August 10, 2010 work injury. He found that appellant had not aggravated preexisting arthritis of
the neck. Based on Dr. Smith’s opinion, OWCP accepted that appellant sustained resolved neck
sprain as a result of his August 10, 2010 work injury.
On October 25, 2012 Dr. Bolno diagnosed an acute cervical sprain with radiculopathy,
acute bilateral carpal tunnel syndrome, an acute glenoid tear of the left shoulder, bilateral
shoulder strains and post-traumatic left shoulder arthritis. On November 16, 2012 he advised
that appellant was totally disabled due to bilateral rotator cuff injuries and cervical radiculopathy
as a result of an injury on August 10, 2010. OWCP determined that a conflict existed between
Dr. Smith and Dr. Bolno regarding whether appellant had any continuing disability due to his
accepted neck strain. It referred appellant to Dr. Jelen for an impartial medical examination.
Based on Dr. Jelen’s report, OWCP purported to terminate his compensation for total disability
as well as his authorization for medical benefits. However, at the time of OWCP’s termination
decision, appellant was not receiving compensation for disability. Further, the Board finds that,
at the time OWCP accepted appellant’s claim for resolved neck sprain, the record contained an
unresolved conflict in medical opinion between Dr. Bolno and Dr. Smith regarding whether
appellant sustained a soft tissue injury or an aggravation of a preexisting cervical condition and
labral tear of the left shoulder due to the August 10, 2010 work injury. Consequently, OWCP
did not meet its burden of proof to terminate appellant’s authorization for medical benefits due to
the August 10, 2010 employment injury.
Given that the Board finds a conflict exists regarding the diagnosed conditions resulting
from the August 10, 2010 employment incident, it is premature to address the issue of whether
appellant sustained intermittent disability from September 25, 2010 to April 6, 2012 due to his
accepted employment injury.13

12

20 C.F.R. § 10.321.

13

If OWCP further develops the record by sending appellant to an impartial medical specialist, he should resolve
the issue of the diagnosed conditions resulting from the August 10, 2001 employment injury and address any periods
of disability resulting from the work injury.

6

CONCLUSION
The Board finds that OWCP improperly terminated appellant’s authorization for medical
benefits effective March 19, 2013.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2013 decision of the Office of
Workers’ Compensation Programs is reversed and the October 21, 2013 decision is set aside.
Issued: September 2, 2014
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
SEYMOUR JOHNSON AIR FORCE BASE, NC,
Employer
__________________________________________

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

Docket No. 18-0408
Issued: August 10, 2018

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant filed a timely appeal from a July 28, 2017 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 his burden of proof to establish a right shoulder and arm
injury causally related to the accepted November 23, 2015 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 12, 2016 appellant, then a 62-year-old school liaison officer, filed a
traumatic injury claim (Form CA-1) alleging that he injured his right shoulder and arm when he
set up and removed 200 chairs and tables on November 23, 2015 while in the performance of duty.
By development letter dated September 21, 2016, OWCP informed appellant that
additional evidence was needed to establish his claim. It advised him that he should submit a
medical report from his physician with an explanation as to how the alleged work incident caused
or aggravated the claimed condition. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a September 21, 2016 statement, appellant reported that on November 19 and 23, 2015
he had to set up chairs and tables for meetings, and thereafter on November 24, 2015 he noticed
pain and stiffness in his right arm. He also indicated that on November 25, 2015, while boarding
an airplane for the Thanksgiving holiday, he felt a sharp pain in his right shoulder when he lifted
his suitcase into the overhead bin. Appellant reported that he continued to experience pain and
saw his family physician on December 29, 2015 who diagnosed bursitis and referred him for
physical therapy. He indicated that he wanted to submit the claim prior to his retirement on
September 30, 2016.
W.J., a coworker, provided a witness statement dated September 22, 2016. He indicated
that on November 23, 2015 he, along with appellant and another coworker, had to set up a meeting
which required placing approximately 200 chairs and large tables for the event. W.J. noted that
appellant mentioned that his arm and shoulder were hurting during the set up process.
On an OWCP claim questionnaire, signed on October 18, 2016, appellant indicated that he
had been seen by Dr. Donald K. Clarke, a family practice physician, on December 29, 2015 for
continuing right shoulder and upper arm pain and stiffness. He related that he had never
experienced right shoulder pain prior to the employment injury.
In an October 18, 2016 report, Dr. Clarke indicated that he saw appellant on December 29,
2015 for shoulder pain. He noted that appellant advised him that the injury occurred on
November 23, 2015 while lifting furniture at work. Dr. Clarke described examination findings of
right shoulder tenderness and pain with abduction against resistance, and good range of motion
and stability. He diagnosed right shoulder bursitis and recommended physical therapy. Dr. Clarke
reported that he next saw appellant again on February 1, 2016 when appellant reported continued
pain when using his computer, and saw him a third time on September 7, 2016 when he reported
worsening shoulder pain. Shoulder examination at that time demonstrated increased tenderness
and pain with movement. Dr. Clarke referred appellant to orthopedics and reported that a magnetic
resonance imaging (MRI) scan was performed. He concluded that appellant’s diagnosed bursitis
was an overuse syndrome, and that appellant’s description of the reported work incident was
consistent with his symptoms and diagnosis. Dr. Clarke attached unsigned treatment notes. On
September 7, 2016 he noted a history that appellant helped someone move over the weekend and
subsequently had a lot of pain.

2

A September 26, 2016 MRI scan of the right shoulder demonstrated minimal undersurface
fraying/tiny partial tear of the anterior fibers of the supraspinatus at insertion, no full-thickness
rotator cuff tear, probable subacromial, subdeltoid bursitis, question tiny amount of calcific
tendinitis within the subscapularis tendon, moderate acromioclavicular joint degenerative
osteoarthrosis, probable superior labral tear, and diminutive posterior labrum.
By decision dated October 26, 2016, OWCP found that the November 23, 2015
employment incident occurred as alleged, but the medical evidence of record was insufficient to
establish causal relationship between the accepted incident and the diagnosed right shoulder
conditions.
On November 1, 2016 OWCP noted that it had not reviewed all of the evidence of record
when it issued the October 26, 2016 decision. On November 4, 2016 appellant requested
reconsideration.
In a subsequent merit decision dated December 12, 2016, OWCP reviewed all evidence
submitted. It found that on November 23, 2015 appellant was required to stack and replace chairs
at work. However, OWCP found Dr. Clarke’s October 18, 2016 report contained insufficient
rationale to establish that this incident caused the diagnosed shoulder bursitis because he also
referenced computer use and indicated that bursitis was an overuse syndrome.
On May 25, 2017 appellant requested reconsideration. He submitted reports from
Dr. Gregory S. Bauer, a Board-certified orthopedic surgeon, who first saw appellant on
September 19, 2016 and reported a history that appellant first felt right shoulder pain when he
unloaded multiple chairs and tables at work on November 23, 2015. Dr. Bauer described
examination findings of mild tenderness over the biceps tendon and greater tuberosity and limited
right shoulder range of motion. He reviewed x-rays that showed mild narrowing of the
glenohumeral joint. Dr. Bauer diagnosed right shoulder pain secondary to adhesive capsulitis. On
October 3, 2016 he reviewed the right shoulder MRI scan, noting no apparent rotator cuff tear and
subacromial and subdeltoid bursitis and likely adhesive capsulitis.
On October 31, 2016 appellant was seen by Dr. Hector M. Pedraza, a Board-certified
orthopedist and associate of Dr. Bauer, who reported that appellant’s shoulder pain had improved.
On May 11, 2017 Dr. L. Davis Frederick, Board-certified in orthopedic surgery and an
associate of Dr. Bauer, noted that appellant’s shoulder had improved with conservative care, which
was continued.
Appellant also forwarded photographs of the chairs and tables that he maintained caused
his injury.
By decision dated July 28, 20017, OWCP reviewed the merits of appellant’s claim and
denied modification of the prior decisions. It found that the medical evidence of record did provide
a rationalized medical opinion causally relating his diagnosed conditions to the accepted
employment incident.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, 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 of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.5 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 employee.6
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.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
and arm injury causally related to the accepted November 23, 2015 employment incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically-sound explanation of how the claimed work

2

Id.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

4

T.H., 59 ECAB 388 (2008).

5

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

6

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

7

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

4

event caused or aggravated the claimed condition.8 The Board finds that no physician did so in
this case.
The September 26, 2016 MRI scan provided diagnostic findings; however, this report is
insufficient to establish appellant’s claim because it did not provide an opinion on the causal
relationship of the conditions found on diagnostic testing and the accepted work injury. Therefore,
this report is of limited probative value in establishing causal relationship.9
Likewise, Dr. Bauer, Dr. Pedraza, and Dr. Frederick did not include an opinion as to the
cause of any diagnosed condition. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal relationship.10
In his report dated October 18, 2016, Dr. Clarke noted that on December 29, 2015 appellant
reported that right shoulder pain occurred on November 23, 2015 while lifting furniture at work.
He diagnosed right shoulder bursitis. When he next saw appellant on February 1, 2016, Dr. Clarke
noted appellant’s complaint of continued pain with using his computer, and that he reported
worsening shoulder pain when seen on September 7, 2016. He concluded that appellant’s
diagnosed bursitis was an overuse syndrome, adding that appellant’s description of the reported
work incident was consistent with his symptoms and diagnosis. Dr. Clarke, however, did not
provide specific rationale as to how the November 23, 2015 employment incident caused
appellant’s right upper extremity condition. Thus, his opinion on causal relationship fails to
provide a sufficient explanation as to the mechanism of injury pertaining to this traumatic injury
claim, namely, how the moving chairs and tables on November 23, 2015 caused a right shoulder
condition, which he described as caused by overuse.11 Moreover, appellant described several
incidents when he felt pain lifting a suitcase and also reported increased pain after he helped
someone to move.
Medical reports without adequate rationale on causal relationship are of diminished
probative value and do not meet an employee’s burden of proof.12 The opinion of a physician
supporting causal relationship must rest on a complete factual and medical background supported
by affirmative evidence, address the specific factual and medical evidence of record, and provide
medical rationale explaining the relationship between the diagnosed condition and the established
incident of employment.13

8

D.D., Docket No. 13-1517 (issued April 14, 2014).

9

See Michael E. Smith, 50 ECAB 313 (1999); S.B., Docket No. 17-0254 (issued July 20, 2018) (diagnostic studies,
on their own, are of limited probative value as they do not address whether the employment incident caused any of
the diagnosed conditions).
10

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

11

S.W., Docket No. 08-2538 (issued May 21, 2009).

12

D.E., Docket No. 17-1874 (issued February 9, 2018).

13

Supra note 5.

5

It is appellant’s burden of proof to establish that a diagnosed condition is causally related
to the accepted November 23, 2015 employment incident. As he submitted insufficient evidence
to establish an injury caused by his accepted employment incident, he has failed to meet his burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
and arm injury causally related to the accepted November 23, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 10, 2018
Washington, DC

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

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

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

6