United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-1117
Issued: October 24, 2008

Case Submitted on the Record

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

JURISDICTION
On March 5, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 17, 2008 merit decision denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 21, 2007 appellant, then a 50-year-old supervisor of distribution operations,
filed a claim alleging that work-related stress aggravated her preexisting post-traumatic stress
disorder. She first stopped work on October 26, 2006. Appellant submitted numerous
statements dated October 30 to May 9, 2007, in which she discussed incidents and conditions at
work which she felt contributed to her emotional condition.

Appellant alleged that on October 12, 2006 there was a liquid spill at the worksite and
several employees, including herself, became nauseated. She had to wait outside for 45 minutes
until Cathy Rutledge, a supervisor, showed up with the hazardous materials team. After
10 minutes in the building, Ms. Rutledge informed the employees that the liquid was apple juice
and then laughed about the matter. Appellant claimed that Ms. Rutledge told her that she needed
to be a stronger leader and that, if she was sick from the smell, she should have acted like it did
not bother her. Ms. Rutledge allegedly questioned her about what kind of supervisor she was
and continued to belittle her. Appellant claimed that on December 4, 2006 she was attending to
Jun Tuazon, the shop steward, while he was in medical distress and Ms. Rutledge stated in a loud
voice that she was not checking his pulse properly.
On October 26, 2006 appellant called in sick following an anxiety attack during an
end-of-the-year ceremony the night before. She claimed that Ms. Rutledge pressured her to
attend the ceremony and that she became upset that she was one of the few employees who did
not receive an award. Appellant’s physician recommended that she reduce her work hours to six
hours a day until December 31, 2006.
She claimed that, on November 28, 2006,
William Hubacker, a supervisor at a lower level, told her that Mateo Quintanilla, a coworker, had
“flipped him off.” Appellant met with Mr. Hubacker, Mr. Quintanilla and Mr. Tuazon and
claimed that when she asked Mr. Hubacker why they were meeting he shouted “shut up” at her.
Mr. Hubacker then turned toward Mr. Quintanilla and asked him if he had flipped him off and
Mr. Quintanilla responded that he had just swatted at a fly.
Appellant claimed that the employing establishment mishandled her leave requests on
numerous occasions. On October 26 and 27, 2006 she was incorrectly placed on leave without
pay (LWOP). On December 25, 2006 appellant was scheduled to work her second Christmas
despite the fact that she had seniority. On January 22, 2007 she received a letter concerning her
use of leave under the Family and Medical Leave Act (FMLA). Appellant was informed that her
supervisor had input wrong information and mischaracterized her claim. On March 15, 2007
Wesley Tokushige, the acting plant manager, told her that he was not honoring a leave form
signed by Ms. Rutledge.
Appellant alleged that she was paid for six hours on January 8, 2007 rather than eight
hours even though she had worked six hours that day. She asserted that Pat Spencer, the
manager of distribution operations, told her that a coworker was paid for eight hours per day
even though he only worked four hours per day. On February 23, 2007 appellant was informed
by her supervisor that she was not getting paid for two days because she did not use the time
clock. She asserted that she should not have been required to use the time clock. Appellant
noted that Shirley Rankin, an acting plant manager, advised her on November 3, 2006 that she
was not going to pay her a cash advance.
On October 31, 2006 appellant was told by Ms. Rutledge that there would be a change in
her assignment. She contended that improper changes were made to her schedule on
December 29, 2006 and January 18 and March 8, 2007. Appellant asserted that management
failed to respond to her requests to remove her from working Tour 3. She had received a call
from the postal inspectors who wanted to talk to her about an allegation that her supervisor was
asking for Vicodin on the workroom floor from the employees. On November 17, 2006
appellant’s supervisor evaluated her for “pay for performance” purposes and incorrectly

2

indicated that everyone got the same scores when appellant later found out that her scores were
lower.
Appellant submitted several statements in which coworkers noted a strong odor in the
workplace on October 12, 2006. In a November 28, 2006 statement, Mr. Quintanilla stated that
during a meeting on that date appellant asked Mr. Hubacker why they were meeting and
Mr. Hubacker “told her to shut up.” In another November 28, 2006 statement, Mr. Tuazon
asserted that during the same meeting appellant asked Mr. Hubacker what the meeting was about
and he responded “shut up.”
In a March 24 and May 1, 2007 statements, Ms. Rutledge indicated that appellant had
been working eight hours per day for five days per week but, following a work stoppage, her
physician returned her to work in late 2006 for six hours a day, five days per week.1 Due to her
reduction in hours, appellant was unable to supervise the priority mail operation and was
assigned to supervise manual operations at the North Bay work unit. Ms. Rutledge stated that
she met with appellant on March 1, 2007 regarding her application for personal absence time
leave including time covered by the FMLA. After she reviewed appellant’s request, she
discovered that it was “inaccurate and distorted” and explained to appellant that she was not
eligible to take personal absence time leave. Ms. Rutledge described how she handled the liquid
spill incident on October 12, 2006. When she arrived at the spill site, she noticed that the vast
majority of the employees were inside the building working and that appellant was one of only
three employees outside of the building. Ms. Rutledge stated that most of the employees never
left the building. She told appellant that she should have shown more leadership by not playing
the victim and by making sure that her employees were taken care of.2 Appellant was paid sick
leave for October 26 and 27, 2006 and was not placed on LWOP.3 Ms. Rutledge stated that
Mr. Hubacker informed her that he did not tell appellant to “shut up,” but rather told her to “be
quiet.” On December 4, 2006 Mr. Tuazon suffered a heart attack and she told appellant that
using her thumbs was not the proper way to check for a pulse. Ms. Rutledge denied yelling at
appellant.4 She indicated that in March 2007 Mr. Tokushige reviewed appellant’s leave request
and determined that she was not eligible for personal time.
Appellant submitted October 30, 2006 and May 23, 2007 medical reports of Dr. Emily
Keram, an attending Board-certified psychiatrist, who indicated that appellant’s post-traumatic
stress disorder was periodically exacerbated by work stressors, particularly since October 2006.
In a January 17, 2008 decision, the Office denied appellant’s emotional condition claim
finding that she did not establish any compensable employment factors. It found that appellant
1

Appellant had previously worked 4:30 p.m. to 1:00 a.m. but that her shift was changed to 6:30 p.m. to 1:50 a.m.

2

In a May 1, 2007 statement, Darryl Backman provided a similar count of the events of October 12, 2006. He
indicated that the area of the spill was smaller than his hand and that it was discovered to be caused by spoiled apple
juice. Mr. Backman stated that he did not observe anyone having an adverse reaction to the liquid.
3

Ms. Rutledge submitted a pay record which supported this assertion.

4

In a May 1, 2007 statement, John Wong, a supervisor, stated that Ms. Rutledge told appellant that she was
improperly taking Mr. Tuazon’s pulse. He provided no indication that Ms. Rutledge yelled at appellant.

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had not shown that the employing establishment harassed her or that it committed error or abuse
with respect to any administrative matters.5
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.6 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction- in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.7
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11

5

On April 24, 2007 the Office advised appellant that she needed to submit more factual and medical evidence in
support of her claim and provided her an opportunity to do so.
6

5 U.S.C. §§ 8101-8193.

7

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
8

Pamela R. Rice, 38 ECAB 838, 841 (1987).

9

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

10

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

11

Id.

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ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that she did not establish any compensable employment factors. The Board must,
thus, initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant alleged that harassment on the part of her supervisors contributed to her
claimed stress-related condition. To the extent that disputes and incidents alleged as constituting
harassment by supervisors are established as occurring and arising from a claimant’s
performance of her regular duties, these could constitute employment factors.12 However, for
harassment or discrimination to give rise to a compensable disability under the Act, there must
be evidence that harassment did in fact occur. Mere perceptions of harassment are not
compensable under the Act.13
Appellant alleged that on October 12, 2006 after a liquid spill at the worksite,
Ms. Rutledge, a supervisor, told her that she needed to be a stronger leader and that, if she was
sick from the smell, she should have acted like it did not bother her. Ms. Rutledge questioned
her about what kind of supervisor she was and continued to belittle her. Appellant claimed that
on December 4, 2006 she was attending to Mr. Tuazon, the shop steward, while he was in
medical distress and Ms. Rutledge stated in a loud voice that she was not checking the pulse
properly. She asserted that her superiors pressured her to attend an end-of-the-year ceremony
held on October 25, 2006. Appellant claimed that during a meeting on November 28, 2006 she
asked Mr. Hubacker, a supervisor at a lower level, why they were having a meeting and he
shouted “shut up” at her.
In the present case, the employing establishment denied that appellant was subjected to
harassment and appellant has not submitted sufficient evidence to establish that she was harassed
by supervisors.14 Appellant alleged that supervisors made statements and engaged in actions
which she believed constituted harassment, but she provided insufficient corroborating evidence,
such as witness statements, to establish that the statements actually were made or that the actions
actually occurred.15
Although verbal altercations and difficult relationships with supervisors may constitute
compensable factors of employment, they must be sufficiently detailed by the claimant and
supported by the record.16 Appellant claimed that Ms. Rutledge belittled and unreasonably
12

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

13

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

14

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
15

See William P. George, 43 ECAB 1159, 1167 (1992).

16

David C. Lindsey, Jr., 56 ECAB 263 (2005).

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criticized her on October 12, 2006 regarding her handling of a liquid spill at the worksite.
However, she did not explain in detail why she felt Ms. Rutledge belittled her and did not submit
witness statements to support her assertions. Ms. Rutledge indicated that she told appellant that
she should have shown more leadership by not playing the victim and by making sure that her
employees were taken care of. The Board finds that it was a reasonable exercise of supervisory
discretion for Ms. Rutledge to counsel appellant for her handling of the matter and her reaction
to these comments would be considered self-generated and not be a compensable factor of
employment.17 Moreover, there is no evidence that Ms. Rutledge harassed appellant by yelling
at her when she was attending to Mr. Tuazon. She indicated that she told appellant that using her
thumbs was not the proper way to check for a pulse but she denied yelling at her.18
Ms. Rutledge’s account of the incident was supported by a statement of Mr. Wong, another
supervisor.19
As noted above, verbal altercations with supervisors may constitute employment factors
if adequately documented. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under the Act.20 Appellant submitted witness statements
which lend some support to her assertion that during a meeting on November 28, 2006
Mr. Hubacker told her to “shut up.” However, Mr. Hubacker denied telling appellant to shut up
and indicated that he only told her to “be quiet.” The atmosphere at the November 28, 2006
meeting was charged as Mr. Hubacker believed that Mr. Quintanilla, a subordinate, had “flipped
him off” and the witness statements do not provide a detailed account of the meeting prior to the
alleged comment by Mr. Hubacker. Therefore, the case record does not contain adequate
evidence describing the context of the alleged comment. Even if it were determined that
Mr. Hubacker used the phrase “shut up,” such an isolated comment, under the circumstances of
the present case, would not rise to the level of harassment.21 For these reasons, appellant has not
established her claims of harassment by supervisors.
Appellant claimed that the employing establishment mishandled her leave requests on
numerous occasions. For example, she claimed that she was improperly placed on LWOP for
October 26 and 27, 2006, that supervisors mishandled her application for leave under the FMLA
and that Mr. Tokushige, the acting plant manager, told her that he was not honoring a leave form
signed by Ms. Rutledge. Appellant also alleged that she received improper pay including an
occasion when she was not paid because she did not use the time clock and another occasion
when appellant felt that she should have been paid for eight hours per day even though she
worked six hours per day. She asserted that Ms. Rutledge improperly changed her work shift
17

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

18

In a May 1, 2007 statement, Mr. Wong, a supervisor, stated that Ms. Rutledge told appellant that she was
improperly taking Mr. Tuazon’s pulse. He provided no indication that Ms. Rutledge yelled at appellant.
19

Appellant also did not submit evidence supporting her assertion that her superiors pressured her to attend an
end-of-the-year ceremony held on October 25, 2006.
20

See Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L. White, 42 ECAB 666, 669-70 (1991).

21

See Joe M. Hagewood, 56 ECAB 479 (2005) (finding that the mere fact a supervisor or employee may raise his
voice during the course of a conversation does not warrant a finding of verbal abuse).

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and work assignments on several occasions and management failed to respond to her requests to
remove her from working Tour 3. Appellant claimed that a supervisor misinformed her when
she was evaluated her for “pay for performance” purposes and suggested that she should have
received a performance award in October 2006. She asserted that Ms. Rutledge mishandled the
liquid spill incident on October 12, 2006 and that she should not have been questioned in
connection with an employing establishment investigation of a superior.
Regarding appellant’s allegations that the employing establishment wrongly handled
leave requests and pay matters, improperly changed work duties and work shifts, unfairly denied
transfer requests, wrongly denied performance awards and mishandled safety matters and
investigations, the Board finds that these allegations relate to administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties and do not fall within the
coverage of the Act.22 Although such matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee.23 However, the Board
has also found that an administrative or personnel matter will be considered to be an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board has
examined whether the employing establishment acted reasonably.24
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. For example,
she did not submit evidence such as the findings of grievances showing that the employing
establishment engaged in wrongdoing regarding the above-described administrative matters.
Moreover, the employing establishment disputed appellant’s accounts of various matters. For
example, Ms. Rutledge submitted evidence showing that appellant was paid sick leave for
October 26 and 27, 2006 and was not placed on LWOP. She also explained that appellant’s
work shift and work duties were changed in October 2006 because work restrictions received
from her own physicians prevented her from performing her former work. Ms. Rutledge
indicated that appellant’s application for personal absence time leave (including time covered by
the FMLA) was “inaccurate and distorted” and explained that Mr. Tokushige, the acting plant
manager, reviewed her leave request and determined that she was not eligible for personal time.
Thus, appellant has not established a compensable employment factor under the Act with respect
to administrative matters.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.25

22

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).
23

Id.

24

See Richard J. Dube, 42 ECAB 916, 920 (1991).

25

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 17, 2008 decision is affirmed.
Issued: October 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Hueytown, AL,
Employer
__________________________________________

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

Docket No. 13-185
Issued: April 4, 2013

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 November 5, 2012 appellant filed a timely appeal of the September 7, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his recurrence
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant sustained a recurrence of a medical condition commencing
December 1, 2011 causally related to his March 30, 2004 employment-related injury.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received. The Board, in its
discretion, will give no further consideration to the request and will decide the appeal on the record.

On appeal, appellant contends that he sustained a recurrence of a medical condition
because his injury is in the same location as his March 30, 2004 employment injury. He further
contends that he was being treated by the same physician who treated him in 2004 and stated in a
2012 statement that he had a preexisting fracture at C5 that was caused by the accepted injury.
Lastly, appellant contends that his employment injury was sparked by crawling.
FACTUAL HISTORY
OWCP accepted that on March 30, 2004 appellant, then a 49-year-old coal mine
inspector, sustained subluxation of the cervical spine at C7 while transporting respirable dust
pumps at work.3
On January 19, 2012 appellant filed a claim for a recurrence of medical condition (Form
CA-2a) on January 3, 2012. He noted that there was no time lost from work due to the
recurrence. Appellant checked the box marked no when asked if he was in any way limited in
performing his usual duties after returning to work following the original injury. He stated that
since his return to work he had minor pain that recurred once a month during the last year with
tingling in his arms and hand and muscle difficulty in his arm. A home remedy prescribed by
Dr. Redus did not work. Appellant stated that his current medical condition was related to his
2004 original injury because he had the same symptoms in his neck, shoulders and arms that
occurred more often. His pain had elevated since December 2011 with crawling and lifting
heavy objects.
By letter dated February 8, 2012, OWCP requested that appellant submit additional
factual and medical evidence including, a rationalized medical opinion from an attending
physician explaining causal relationship between his current condition and the accepted
employment injury. Appellant was afforded 30 days to submit the requested evidence. He did
not respond.
In a March 14, 2012 decision, OWCP denied appellant’s claim for a recurrence of a
medical condition, finding that he did not submit medical evidence to establish the claimed
recurrence was causally related to his accepted March 30, 2004 work injury.
On April 2, 2012 appellant requested a telephone hearing with an OWCP hearing
representative. During the July 16, 2012 hearing, he stated that he received chiropractic
treatment for cervical and thoracic injuries he sustained in 2004. Appellant was released from
further medical care but his shoulder and arm numbness and tingling gradually recurred. On
January 4, 2012 his symptoms were so bad he could not sleep and he sought treatment from
Dr. Redus. Appellant’s symptoms in the C6 and C7 areas were the same as his 2004 symptoms.
He did not seek treatment between 2004 and 2011 because he used home remedies. Appellant
3

In an April 21, 2004 medical report, Dr. John Cleve Redus, an attending chiropractor, advised that appellant had
subluxation of C7 based on x-ray findings. Section 8101(2) of FECA provides that chiropractors are considered
physicians only to the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject to regulation by the
Secretary. 5 U.S.C. § 8101(2). As Dr. Redus diagnosed a subluxation as demonstrated by x-ray he is a physician as
defined under FECA. Id.

2

stated that the location of his job changed but, he still performed the same regular duties of a coal
miner inspector that he performed in 2004. He contended that his work duties probably
reaggravated his condition, noting that he continued to have difficulty because this area of his
body was weakened from his prior injury. Appellant requested payment of chiropractic
treatment.
In reports dated January 4 through 27, 2012, Dr. Redus listed findings on examination
and addressed treatment of appellant’s cervical and thoracic conditions, which included cervical
and thoracic sprain/strain, cervical and thoracic subluxation and cervicobrachial syndrome. In an
August 3, 2012 report, he stated that appellant was initially treated on April 1, 2004 in the areas
of C2, C5, C7, T3 and T4. Dr. Redus returned to work after therapy which corrected his
conditions. In January 2012 appellant returned for treatment. After a comprehensive
examination and x-rays were obtained, it was determined that chiropractic care was needed for
C2, C6 and T3. X-rays showed a healed compression fracture of the C5 vertebrae. After review
of documentation from the March 30, 2004 accident and appellant’s January 4, 2012 visits, the
areas in question were located in the same initial area as of April 1, 2004. The report contained
the following conclusion, “[t]herefore January 2012 could or can be a result of the prior accident
dated March 30, 2004.” Dr. Redus signed this report. Unsigned treatment notes dated April 1
through 30, 2004 addressed the chiropractic treatment of appellant’s cervical and thoracic
subluxations.
In a September 7, 2012 decision, an OWCP hearing representative affirmed the
March 14, 2012 decision, finding that Dr. Redus’ August 3, 2012 report was speculative and
lacked adequate rationale to establish that appellant sustained a recurrence of a medical condition
commencing in December 2011 causally related to his March 30, 2004 employment injury.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.4 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to effect the purposes specified in FECA.5 The
only limitation on OWCP’s authority is that of reasonableness.6
A recurrence of medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original condition or injury is not

4

5 U.S.C. § 8103(a).

5

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
6

Daniel J. Perea, 42 ECAB 214 (1990).

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considered a need for further medical treatment after release from treatment, nor is an
examination without treatment.7
To establish a recurrence of medical condition, a claimant must furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that the claimed condition is causally related to the employment injury, and who
supports that conclusion with sound medical rationale. Where no such rationale is present, the
medical evidence is of diminished probative value.8
OWCP procedures state that, after 90 days of release from medical care (as stated by the
physician or computed from the date of the last examination or the physician’s instruction to
return as needed), a claimant is responsible for submitting an attending physician’s report that
contains a description of the objective findings and supports a causal relationship between the
claimant’s current condition and the accepted condition. The medical evidence on causal
relationship should be as conclusive as the evidence required to establish the original claim.9
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition commencing December 1, 2011. OWCP accepted
that on March 30, 2004 he sustained a subluxation of the cervical spine at C7. Following this
injury, appellant returned to his regular work duties. On January 19, 2012 he filed a recurrence
claim, contending that his current cervical and thoracic conditions were causally related to the
accepted condition. Appellant requested payment of chiropractic treatment. The Board finds,
however, that he did not submit sufficient rationalized medical opinion evidence to establish that
his medical treatment was for residuals of his accepted cervical condition.
In an August 3, 2012 report, Dr. Redus provided a history that on April 1, 2004 appellant
was initially treated in the areas of C2, C5, C7, T3 and T4,10 and stated that his conditions were
corrected with therapy. He noted that after appellant’s return to work, he sought treatment in
January 2012. Dr. Redus determined that chiropractic care was needed for C2, C6 and T3 based
on a comprehensive examination and x-rays. He noted that x-rays showed a healed compression
fracture of the C5 vertebrae. Dr. Redus advised that the areas in question were located in the
same area as on April 1, 2004 based on his review of documentation from the March 30, 2004
employment injury and appellant’s January 4, 2012 visits. He concluded, “[t]herefore
January 2012 could or can be a result of the prior accident dated March 30, 2004.” The Board
notes that Dr. Redus was not specific as to the diagnosis for which treatment was rendered.
Moreover, his opinion on causal relation is speculative regarding how appellant’s current
cervical and thoracic conditions relate to the 2004 cervical subluxation. In order to be of
7

20 C.F.R. § 10.5(y).

8

T.Y., Docket No. 12-393 (issued August 3, 2012).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5.b (May 2003).

10

Although this report was prepared by appellant, it was signed by Dr. Redus and as such is considered medical
evidence from a physician under FECA. See L.B., Docket No. 09-1989 (issued April 9, 2010).

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probative value, medical opinions should be expressed in terms of a reasonable degree of
medical certainty.11 The Board has held that medical opinions which are speculative or
equivocal are of diminished probative value.12 Dr. Redus did not provide adequate medical
rationale explaining the nature of the relationship between appellant’s current cervical and
thoracic conditions and the accepted employment injury.13 While his other reports addressed
appellant’s cervical and thoracic conditions, they failed to address how these conditions and
appellant’s recurrence of a medical condition were caused by the accepted injury.14 For the
stated reasons, the Board finds that Dr. Redus’ reports are insufficient to establish appellant’s
burden of proof.
The unsigned treatment notes dated April 1 through 30, 2004 have no probative value in
establishing that appellant sustained a recurrence of medical condition commencing December 1,
2011 due to the accepted employment injury. It is well established that medical evidence lacking
proper identification is of no probative medical value.15
On appeal, appellant contended that he sustained a recurrence of medical condition
because his symptoms were in the same location as his March 30, 2004 employment injury. He
further contended that he was being treated by the same physician who treated him in 2004 and
contended that he had a preexisting fracture at C5 that was caused by the accepted injury.
Appellant’s claim for recurrence of medical condition commencing December 1, 2011 was
denied due to the lack of rationalized medical evidence addressing causal relationship to the
accepted employment injury. As this issue is medical in nature, it can only be resolved through
the submission of medical evidence. The medical evidence appellant submitted is not
sufficiently rationalized to establish his need for further medical treatment of a continuing
employment-related condition.
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.

11

See Roy L. Humphrey, 57 ECAB 238 (2005) (to be probative, the medical opinion must be of reasonable
medical certainty and supported by medical rationale).
12

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related or could be related are speculative and diminish the probative value
of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
13

Robert Broome, 55 ECAB 339 (2004).

14

A.D., 58 ECAB 159 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).
15

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

5

CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
medical condition commencing December 1, 2011 causally related to his accepted employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2013
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE NATIONAL
OFFICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 14-948
Issued: September 4, 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 March 17, 2014 appellant, through counsel, filed a timely appeal from a February 6,
2014 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained more than a 10 percent permanent impairment of
the left eye for which she received a schedule award.
FACTUAL HISTORY
On September 17, 1999 appellant, then a 26-year-old criminal investigator, sustained an
injury to her left eye when she was hit with a rubber bullet. OWCP accepted the claim for left
1

5 U.S.C. § 8101 et seq.

superficial injury to cornea, unspecified wound of left eyeball, left hemophtalmos and left
posterior subcapsular polar nonsenile cataract. On June 15, 2011 appellant underwent cataract
surgery which was approved by OWCP. Following her surgery, appellant continued working
without restrictions.
On April 2, 2012 appellant filed a claim for a schedule award.
In an April 3, 2012 report, Dr. Bonnie J. Brooks, a Board-certified ophthalmologist,
reported uncorrected visual acuity of the right eye at 20/400 and 20/200 for the left eye.
Uncorrected visual acuity for near was noted as Jaeger 3 for the right eye and Jaeger 1 for the left
eye. Visual acuity for corrected near vision with contact lenses was documented as 20/20.
In an April 9, 2012 medical report, Dr. Brooks noted that appellant had full
accommodation for near vision in her unaffected right eye because of her young age.
Historically, appellant was myopic and would wear contact lenses to see clearly at a distance.
Since her injury, appellant was provided with an artificial lens implant for the left eye to keep her
myopic in an effort to avoid an uncomfortable imbalance between the two eyes; however, when
wearing this contact lens for distance in the left eye, appellant could no longer see clearly at near.
Therefore, she adapted to wearing her distance correction lens in the right eye and leaving her
left eye uncorrected so that she could read. Appellant also attempted to wear a bifocal contact
lens in her left eye but did not adjust to it. Although appellant’s corrected visual acuity and field
vision were technically 100 percent, she sustained some degree of impairment as a result of her
injury due to adapting to the limited range of vision supplied by an artificial lens. Appellant
diligently tried to find an adequate refractive solution with glasses and contact lenses with
modest success. Dr. Brooks determined that appellant had a 25 percent permanent impairment of
the left eye as she was relegated to functioning as a monovision patient, thereby using one eye
for near vision only while the fellow eye functioned at distance and near adequately.
OWCP routed Dr. Brooks’ report, a statement of accepted facts (SOAF) and the case file
to Dr. Eric Puestow, a district medical adviser Board-certified in internal medicine. In an
April 27, 2012 report, Dr. Puestow disagreed with Dr. Brooks’ impairment rating and found that
appellant had zero percent (no) impairment of the left eye. He also found that she had reached
maximum medical improvement (MMI). Dr. Puestow stated that appellant could wear contact
lenses for distance correction in both eyes and for reading, could wear glasses with correction in
the left eye that would allow clear close vision.
By decision dated May 18, 2012, OWCP denied appellant’s claim for a schedule award.
On May 29, 2012 appellant, through counsel, requested a hearing before the Branch of
Hearings and Review.
By decision dated August 31, 2012, a hearing representative vacated the May 18, 2012
schedule award denial. He instructed OWCP to remand the case for a second opinion on
permanent impairment under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides).2
2

A.M.A., Guides (2009).

2

By letter dated September 12, 2012, counsel for appellant noted that appellant had
cataract surgery on her left eye. He argued that when she removed her left contact lens, she
became blind and had total loss of vision. Counsel submitted an August 2012 visual acuity,
visual depth perception and visual field examination by Dr. J. Chris Huffman, Board-certified in
internal medicine. Dr. Huffman noted uncorrected visual acuity of the right eye (OD) at 20/600
and 20/400 for the left eye (OS). Visual acuity for both eyes (OU) was not legible as a xerox
stripe was blocking the figures.
On November 5, 2012 OWCP referred appellant to Dr. Gene Johnson, a Board-certified
ophthalmologist, for a second opinion examination.
In a November 18, 2012 report, Dr. Johnson reported that appellant’s corrected vision for
both eyes was 20/20. Visual fields were full, the cornea was normal and the anterior chamber of
the eye was within normal limits except for the old iris root tear and changes of the angular
structures of the eye in the 2 to 3 o’clock area. Dr. Johnson noted that appellant had been
functioning at monovision due to failure of bifocal contact lenses and glasses. Appellant used
her left eye for near because of her failure to tolerate contact lens correction on that side.
Dr. Johnson noted that appellant’s visual discomfort from the monovision, as well as the need for
consistent monitoring due to the iris root tear, would increase the chance for unilateral glaucoma
in the left eye due to disruption of the angular structures. He opined that appellant had 25
percent impairment of the left eye.
In a December 18, 2012 addendum report, Dr. Johnson reported that the date of MMI was
August 12, 2011, two months postcataract surgery when appellant’s eye had stabilized. He
further stated that appellant’s uncorrected visual acuity of the left eye was poor at 20/400.
Dr. Johnson noted that, from a refractive standpoint, appellant’s left eye was the same as her
right eye because she was nearsighted in both eyes. Regarding the visual impairment rating, he
opined that appellant had 15 percent permanent impairment based on Table 12-3 of the A.M.A.,
Guides.3
In a January 4, 2013 report, Dr. James G. Ravin, a medical consultant Board-certified in
ophthalmology, reviewed a history of injury and the medical reports. He stated that appellant’s
conditions had been accepted for left eye corneal abrasion, left eye iris tear and left eye
hemorrhage but that the cataract, which was the major issue, was not an accepted condition.
Dr. Ravin noted that uncorrected visual acuity was 20/600 right eye, 20/400 left eye and 20/3
with the stripe obscuring the remainder of the number for both eyes. He utilized the visual acuity
data from Dr. Brooks’ April 3, 2012 examination as the basis for his impairment rating.
Dr. Ravin noted that the uncorrected visual acuity of the right eye was 20/400 and the left eye
was 20/200. He noted that, at near, appellant’s vision was excelled at Jaeger 3 right eye and
Jaeger 1 left eye. Dr. Ravin stated that, in calculating appellant’s impairment rating, he was
using data for uncorrected vision in one eye and corrected vision in the other eye, which was
inconsistent with the standards of the A.M.A., Guides which instructed use of the best corrected
visual acuity for each eye. Using Table 12-2, Impairment of Visual Acuity, Dr. Ravin noted that
the unimpaired eye with 20/20 vision had no impairment and a visual acuity score of 100. The
injured eye with visual acuity of 20/200 had a visual acuity score of 50 and an impairment rating
3

Id. at 288-89.

3

of 50.4 Using Table 12-3 for calculation of the acuity-related impairment rating, Dr. Ravin
calculated that appellant’s OU rating was 100, representing the excellent vision of the uninjured
eye, so that 3 x 100 equaled 300. He then added the uninjured eye of 100 and the injured eye of
50 for a total of 450. This amount was divided by 5 which totaled 90 for appellant’s functional
acuity score (FAS). Subtracting the acuity impairment rating of 100 from appellant’s FAS of 90
resulted in a 10 percent permanent impairment of the left eye.5 Dr. Ravin concluded that he
agreed with Dr. Johnson regarding the August 11, 2011 date of MMI, two months postcataract
surgery.
By decision dated January 28, 2013, OWCP granted appellant a schedule award claim for
10 percent permanent impairment of the left eye. The award covered a period of 112 days from
November 6, 2012 to February 25, 2013. The date of maximum medical improvement was noted
as August 12, 2011. OWCP found that the weight of the medical evidence regarding the
percentage of impairment rested with Dr. Ravin.
By letter dated January 31, 2013, appellant, through counsel, requested a hearing before
the Branch of Hearings and Review. In a January 31, 2013 report, Dr. William C. Christie, a
Board-certified ophthalmologist, reported that he examined appellant on January 16, 2013 and
reviewed prior medical records. He provided a history of injury and noted a June 15, 2011
cataract surgery. On examination, Dr. Christie noted uncorrected vision of 20/400 in the right
eye and 20/400 in the left eye, with corrected vision of 20/20 in both eyes. He stated that
appellant had no accommodation in the left eye due to having a pseudophakic or false lens which
was only seeing for distance with glasses and the current bifocal kept her right and left eye from
being able to work in tandem. Dr. Christie opined that this was because her right lens did not
have an implant and had the more typical 1.25 add for the bifocal power while the left eye
having the pseudophakic lens would require a 2.75 add if she were to have optimal reading. He
advised that appellant would never regain the ability to accommodate with the two eyes together.
Dr. Christie noted that the iris dehiscence made appellant more sensitive to bright lights due to
the fact that the iris was not touching the chamber angle. Appellant also remained at high risk
for glaucoma in the left eye, risk of her bridging blood vessels breaking with even a tiny amount
of trauma causing a hyphema or bleeding into the left eye, risk for retinal detachment and risk of
sunset syndrome. Dr. Christie concluded that appellant’s impairment of the left eye ranged from
25 to 35 percent.
By decision dated April 9, 2013, a hearing representative vacated the January 28, 2013
schedule award determination. OWCP was directed to remand the case for further development.
The hearing representative noted that appellant’s June 15, 2011 cataract surgery was approved by
OWCP which was not listed as an accepted condition in the SOAF.6

4

Id. at 288.

5

Id. at 289.

6

The hearing representative noted that Dr. Ravin, serving as the district medical adviser, made mention that the
diagnosis of cataract was not listed as an accepted condition in his January 4, 2013 report.

4

On remand, OWCP advised Dr. Ravin that appellant’s cataract surgery was approved as
an accepted condition. It provided him with a copy of Dr. Christie’s report for review and
comment on the extent of appellant’s left eye impairment.
In a June 4, 2013 supplemental report, Dr. Ravin reported that he reviewed Dr. Christie’s
report and disagreed with her hypothetical present and future impairment rating of 25 to 35
percent. Although there was a risk of glaucoma with appellant’s angle recession, the longer she
continued without evidence of this, the less likely that this form of glaucoma would arise in the
future. Dr. Ravin stated that the risk of bleeding from fragile blood vessels had not proven to be
an event that had taken place, nor had there been any difficulty as of the date of his letter
regarding the health of the optic nerve or retina. He opined that appellant’s risk of present and
future impairment was far lower than the 25 to 35 percent range. Dr. Ravin noted that he was
instructed to use the sixth edition of the A.M.A., Guides and stated, “You have asked that
corrected visual acuity be used.” He noted that Table 12-2 indicated that appellant’s 20/20
vision indicated zero percent loss.7 Dr. Ravin concluded that appellant had achieved 20/20
vision and though both eyes had different refractions, this could be treated with glasses or
contact lenses.
By decision dated June 28, 2013, OWCP denied appellant’s claim for an increased
schedule award of the left eye. It found that the medical evidence of record failed to establish
that she had more than 10 percent impairment to the left eye.
By letter dated July 2, 2013, appellant, through counsel, requested a telephone hearing
before the Branch of Hearings and Review.
At the November 20, 2013 hearing, counsel for appellant argued that she was entitled to a
schedule award for 100 percent impairment of the left eye. He argued that appellant’s corrected
vision was improperly used to determine her impairment rating when her uncorrected vision
should have been used, citing A.G., Docket No. 11-1512 (issued April 9, 2011). Counsel
contended that appellant’s replacement lens was analogous to a prosthetic device.
By decision dated February 6, 2014, the hearing representative affirmed the June 28,
2013 OWCP decision. She found that appellant was not entitled to an increased schedule award.
LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss or loss of
use of specified members, organs or functions of the body. For 100 percent loss of an eye, as
with blindness, FECA provides a maximum 160 weeks of compensation.8 Compensation for

7

Supra note 4.

8

5 U.S.C. § 8107(c)(5).

5

loss of binocular vision is the same as for loss of the eye.9 Partial losses are compensated
proportionately.10
Such loss or loss of use is known as permanent impairment. OWCP evaluates the degree
of permanent impairment according to the standards set forth in the specified edition of the
A.M.A., Guides.11 For impairment ratings calculated on and after May 1, 2009, it should advise
any physician evaluating permanent impairment to use the sixth edition and to report findings in
accordance with those guidelines.12
Although the A.M.A., Guides provides that impairment ratings should be based on the
best-corrected visual acuity,13 FECA mandates that the degree of loss of vision must be
determined without regard to correction.14
ANALYSIS
OWCP accepted appellant’s claim for left superficial injury to cornea, unspecified wound
of left eyeball, left hemophtalmos and left posterior subcapsular polar nonsenile cataract. It
approved left eye cataract surgery on June 15, 2011. The issue is whether appellant has more
than a 10 percent permanent impairment of the left eye, for which she received a schedule award.
The Board finds that this case is not in posture for decision.
OWCP referred appellant for a second opinion examination with Dr. Johnson, a Boardcertified ophthalmologist, for an opinion on permanent impairment of the left eye. The only
visual acuity rating provided by Dr. Johnson was corrected 20/20 OU vision. He opined that
appellant had 25 percent impairment of the left eye. The Board finds that Dr. Johnson did not
make his impairment rating with reference to the applicable sections of the A.M.A., Guides. In a
December 18, 2012 supplemental report, Dr. Johnson reported that appellant’s uncorrected left
eye visual acuity was poor at 20/400. He opined that appellant had a 15 percent impairment
based on Table 12-3 of the A.M.A., Guides.15 Dr. Johnson failed to explain how he calculated
this impairment rating.
In a January 4, 2013 report, Dr. Ravin made reference to Dr. Huffman’s August 2012
examination which documented uncorrected visual acuity of 20/600 right eye and 20/400 left
9

Id. at § 8107(c)(14). See Russell E. Wageneck, 46 ECAB 653 (1995) (holding there is no provision under
section 8107 of OWCP for the combination of each eye into a schedule award for both eyes together, as there is for
loss of hearing in both ears; therefore, schedule awards are issued for each eye individually).
10

Id. at § 8107(c)(19).

11

20 C.F.R. § 10.404.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(a) (January 2010).
13

A.M.A., Guides 283, 284, Chapter 12.2b.

14

Supra note 10.

15

Supra note 3.

6

eye. He utilized the visual acuity data from Dr. Brooks’ April 3, 2012 report which found
uncorrected visual acuity of 20/400 right eye and 20/200 left eye, with corrected binocular visual
acuity of 20/20. Using 20/400 uncorrected left eye visual acuity, 20/20 corrected right eye visual
acuity and 20/20 corrected binocular visual acuity, he rated 10 percent left eye impairment.
OWCP granted appellant’s schedule award for 10 percent permanent impairment of the left eye
based upon Dr. Ravin’s January 4, 2013 report.
Subsequent to Dr. Ravin’s report, appellant submitted a January 31, 2013 report from
Dr. Christie who examined her on January 16, 2013. He documented uncorrected visual acuity
of 20/400 left eye and 20/400 right eye and corrected visual acuity of 20/20 in each eye.
Dr. Christie’s report was forwarded to Dr. Ravin for review, together with an amended
SOAF which noted that appellant’s left eye cataract surgery was approved by OWCP. In a
June 4, 2013 supplemental report, Dr. Ravin stated, “You have asked that corrected visual acuity
be used.” Using appellant’s corrected visual acuity of 20/20 in accordance with Table 12-2 of
the A.M.A., Guides, Dr. Ravin opined that appellant had zero percent (no) impairment of the left
eye.
OWCP denied appellant’s claim for an increased schedule award based on Dr. Ravin’s
conclusion that she had a zero percent visual system impairment rating. The Board finds that
Dr. Ravin’s report is insufficient to determine the extent of permanent impairment. The
February 6, 2014 decision will be set aside and the case remanded for further development.
The Board notes that Dr. Ravin failed to properly calculate appellant’s impairment rating.
Dr. Ravin’s January 4, 2013 report utilized uncorrected left eye visual acuity of 20/200,
corrected 20/20 right eye visual acuity and corrected 20/20 binocular visual acuity to rate 10
percent impairment. His June 4, 2013 report utilized corrected visual acuity scores of 20/20 to
determine that appellant had no impairment of the left eye. Although the A.M.A., Guides
provide that impairment ratings should be based on the best-corrected visual acuity,16 the Board
notes that FECA provides at section 8107(c)(19) that the degree of loss of vision is to be
determined without regard to correction.17 Dr. Ravin incorrectly utilized appellant’s corrected
visual acuity to rate her left eye impairment and failed to use the uncorrected vision
measurements in assessing the degree of vision loss.18

16

Id. at Section 12.2c, 287.

17

For a total loss of use of an eye, an employee shall receive 160 weeks’ compensation. 5 U.S.C. § 8107(c)(5).
Compensation for loss of 80 percent or more of the vision of an eye is the same as for loss of the eye. 5 U.S.C.
§ 8107(c)(14). The degree of loss of vision under this schedule is determined without regard to correction. 5 U.S.C.
§ 8107(c)(19).
18

D.F., Docket No. 09-1104 (issued November 24, 2009) (the Board affirmed the district medical adviser’s
calculations establishing 35 percent impairment of the left eye which used uncorrected visual acuity results for both
eyes). See also D.F., Docket No. 07-1607 (issued December 21, 2007) (the Board remanded appellant’s claim
finding that the medical reports failed to provide an impairment rating for the left eye based on measurements of
appellant’s uncorrected vision, rather than corrected vision).

7

The Board further notes that visual acuity loss may not account for all of appellant’s left
eye impairment.19 Dr. Brooks’ report noted that appellant was relegated to functioning as a
monovision patient, thereby using one eye for near vision only while the fellow eye functioned at
distance and near adequately. Dr. Johnson noted that appellant had been using her left eye for
near and functioning at monovision due to failure of bifocal contact lenses and glasses.
Dr. Christie noted that appellant had no accommodation in the left eye due to having a
pseudophakic or false lens which was only seeing for distance with glasses and even the current
bifocal kept her right and left eye from being able to work in tandem. He opined that appellant
would never regain the ability to accommodate the two eyes together. Dr. Christie also stated
that the iris dehiscence would make appellant more sensitive to bright lights due to the fact that
the iris was not touching the chamber angle. The Board notes that it appears that significant
factors remain that affect appellant’s functional vision which were not accounted for through
visual acuity loss.20 Dr. Ravin’s reports failed to discuss whether there was evidence of visual
field impairment or whether individual adjustments for functional vision were appropriate
pursuant to page 305 of the A.M.A., Guides.21 Therefore, his opinion is of diminished probative
value.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.22 Once
OWCP undertakes development of the record, it must do a complete job in procuring medical
evidence that will resolve the relevant issues in the case.23
On remand, OWCP should further develop the medical evidence of record by referring
appellant to an appropriate Board-certified ophthalmologist for a second opinion examination
regarding the extent of her left eye impairment. Following this and any other further
development as deemed necessary, OWCP shall issue an appropriate merit decision on
appellant’s schedule award claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.

19

Michele Tousley, Docket No. 05-1156 (issued October 12, 2005) (the Board held that appellant was entitled to
an increase of 15 percent impairment for individual adjustments because of her monocular pseudophakia, glare
disability and decreased contrast sensitivity which were not accounted through visual acuity or visual field loss).
20

Gary A. Guillory, Docket No. 03-1872 (issued November 21, 2003).

21

Adjustments for such functions as contrast sensitivity, glare sensitivity, color vision defects and binocularity,
stereopsis, suppression and diplopia are permitted, although they must be well documented and should be limited to
an increase in impairment by, at most, 15 points. A.M.A., Guides 305. See also C.B., Docket No. 11-1937 (issued
April 6, 2012); S.G., Docket No. 10-1405 (issued February 17, 2011).
22

See LL, Docket No. 10-16 (issued October 1, 2010); Phillip L. Barnes, 55 ECAB 426 (2004); Horace L. Fuller,
53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB 1223 (1983).
23

Richard F. Williams, 55 ECAB 343, 346 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: September 4, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 10-249
Issued: October 8, 2010

Case Submitted on the Record

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

JURISDICTION
On November 2, 2009 appellant filed a timely appeal from a September 8, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 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 the Office met its burden of proof to terminate appellant’s
monetary compensation and medical benefits for accepted shoulder and back conditions on
August 1, 2008 on the grounds that these conditions had resolved; (2) whether appellant
established that she had any continuing employment-related disability after August 1, 2008 due
to the orthopedic conditions; and (3) whether she met her burden of proof to establish that she is
entitled to disability compensation for the accepted emotional condition.

FACTUAL HISTORY
On January 6, 2003 appellant, then a 40-year-old transportation security screener, filed a
traumatic injury claim alleging that on January 5, 2003 she injured her back and shoulder lifting
luggage. She stopped work that day. The Office accepted that she sustained employment-related
right shoulder sprain and impingement, right rotator cuff tendinitis, and back sprain, and she was
placed on the periodic compensation rolls. On November 4, 2003 Dr. Andrew Limbert, a Boardcertified osteopath specializing in orthopedic surgery, performed arthroscopic repair of an
anterior labral tear and debridement of a rotator cuff tear with subacromial decompression. The
claim was later expanded to include aggravation of lumbar degenerative disc disease.
In May 2004 the Office referred appellant to Dr. Norman L. Pollak, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a June 9, 2004 report, the physician
advised that there were no objective findings on physical examination to show that the workrelated conditions were presently active, noting that there were multiple subjective findings, most
of which were inconsistent, unrealistic or nonanatomical, strongly suggesting a promotion of
symptoms. Dr. Pollak concluded that appellant could return to her date-of-injury job without
restrictions.
By report dated July 26, 2004, Dr. Limbert disagreed with Dr. Pollak’s statement that
appellant had no objective findings regarding her right shoulder because she had persistent
limitation of motion and local tenderness. He advised that appellant could never return to her
date-of-injury job.
The Office determined that a conflict in medical opinion had been created between
Dr. Limbert and that of Dr. Pollak regarding whether appellant continued to have residuals or
disability due to her employment-related conditions, and referred her to Dr. Charles Xeller, a
Board-certified orthopedist, for an impartial evaluation. In a September 27, 2004 report,
Dr. Xeller noted the history of injury and appellant’s complaint of frequent, constant and sharp
right shoulder and back pain and his review of the medical record. He provided physical
examination findings and diagnosed injury to the right shoulder with apparent labral tear and
impingement and surgery to her shoulder was indicated and would not be work related, and low
back strain with possible aggravation of preexisting degenerative disc disease. In an attached
work capacity evaluation, Dr. Xeller advised that appellant could work eight hours daily with
lifting limited to less than 25 pounds and overhead lifting to 20 pounds.
On October 25, 2004 Dr. Limbert provided permanent work restrictions that appellant
could not use her right arm and had a maximum lifting restriction on the left of five pounds. In a
supplementary report dated November 29, 2004, Dr. Xeller advised that appellant’s work
activities did not aggravate her preexisting shoulder condition, noting that prior to the work
injury she had surgical shoulder repair, and that any restrictions were prophylactic so that she
could avoid additional injury to the shoulder. He further advised that the employment-related
back strain aggravated her underlying disc disease.
In January 2005, appellant was referred for vocational rehabilitation, and by letter dated
June 6, 2005, appellant informed the Office that the positions being suggested by the
rehabilitation specialist were an insult. On June 2, 2005 appellant was terminated by the

2

employing establishment because she was unable to perform the essential functions of a
transportation security screener. In a number of reports dated from June 8, 2004 to August 3,
2005, Dr. Walter Culver, an attending Board-certified internist, diagnosed sacroileitis, right
shoulder impingement, and lumbar herniated disc. He advised that appellant was totally
disabled.
By letter dated January 30, 2006, the Office referenced Dr. Xeller’s opinion and proposed
to reduce appellant’s compensation based on her capacity to earn wages as a receptionist. In a
February 16, 2006 report, Dr. Culver advised that appellant could not return to any kind of work,
noting that she could not sit for more than 30 minutes or walk more than 20 minutes, and was
unable to write legibly. On March 2, 2006 the Office reduced appellant’s monetary
compensation, based on her capacity to earn wages as a receptionist. She timely requested a
review of the written record, and submitted a March 20, 2006 report in which Dr. Rahul Vaidya,
a Board-certified orthopedic surgeon, noted his review of a December 6, 2005 discogram study.
He advised that appellant was in constant pain and was unable to work in any capacity due to
unstable gait, pain, and bowel incontinence, that she could not lift greater than five pounds, and
could not twist, bend, or stoop with no prolonged sitting and walking. He recommended spinal
fusion surgery at L4-5 and L5-S1.
By decision dated June 5, 2006, an Office hearing representative reversed the March 2,
2006 wage-earning capacity determination, finding that Dr. Xeller’s report was not reasonably
current. The Office was instructed to refer appellant to Dr. Xeller for an opinion regarding
appellant’s current work abilities, the need for surgery, and whether her complaint of bowel
incontinence was causally related to the accepted employment injuries. Compensation was to be
reinstated retroactively. The Office noted that Dr. Xeller had moved to Texas, and on
February 1, 2007 referred appellant to Dr. Robert Levine, Board-certified in orthopedic surgery,
for an impartial evaluation regarding the degree of disability and physical restrictions due to the
accepted conditions.
In a March 20, 2007 report, Dr. Levine described the history of injury, a previous motor
vehicle accident in which she injured her right shoulder, right shoulder and bariatric surgery, and
appellant’s subsequent treatment and her complaints of pain and bowel incontinence. He
reviewed the extensive medical record and noted that she had a flat affect and used a cane that
was too long. On physical examination, Dr. Levine noted diminished lumbar spine range of
motion and advised that she had difficulty walking on heels and toes with a positive Waddell’s
sign, a half inch calf atrophy on the left, and decreased sensation to pinprick in the stocking
distribution of her left leg, starting about mid thigh, going to her toes with grossly normal
sensation in the right lower extremity. He advised that she was tender to examination of the right
shoulder with decreased range of motion. No gross muscle atrophy was present in either upper
extremity. Dr. Levine diagnosed right rotator cuff tendinosis, status post surgical repair, and
status post resection of her distal right clavicle; degenerative disc disease, lumbar spine with
depression and significant nonorganic factors present. He advised that, based on his record
review, the right shoulder problem was not related to work, rather it was an ongoing problem
from the prior shoulder injury, and that the diagnosed degenerative disc disease was primarily
related to aging. Dr. Levine opined that appellant’s complaints were significantly influenced by
nonorganic factors, rather than by the straining type of injury sustained at work. He found it
significant that she had no relief from any intervention and had a positive Waddell’s sign which

3

indicated that there was most likely a significant nonorganic factor present. Dr. Levine
recommended evaluation by a psychologist or psychiatrist who was experienced in the
management of patients who had chronic pain and depression. He advised that, based on his
evaluation, there were no objective findings directly attributable to the 2003 employment injury
and, based on the documented accepted conditions, she could return to her regular job duties but
would need a general lifting restriction because of the documented and accepted degenerative
disc disease. Dr. Levine recommended a functional capacity examination but thought it would
mostly likely be invalid due to appellant’s inability to function. In answer to specific Office
questions, he stated that any bowel incontinence was most likely the result of a psychiatric
problem rather than any spinal disease because damage to the spinal cord or cauda equina would
cause retention rather than incontinence, and appellant’s medications would cause constipation
rather than incontinence. Dr. Levine advised that with the significant psychological factors
present, it was unlikely that the requested spinal fusion would help her condition and concluded
that she only needed supportive management regarding the accepted orthopedic conditions.
In a supplementary report dated June 14, 2007, Dr. Levine advised that, based on
objective findings, he could find no residual abnormalities resulting from the accepted conditions
of right shoulder strain, right shoulder tendinitis, right shoulder impingement, and sacral strain,
and that there was no objective abnormality that would indicate any continued objective
impairment resulting from the accepted injuries, stating that the accepted aggravation of lumbar
degenerative disc disease had ceased and appellant had returned to her baseline condition. He
again noted the significant, ongoing nonorganic factors present and placed a general 15-pound
lifting restriction due to her documented degenerative disc disease, which was preventive in
nature, rather than due to any accepted work-related condition.
In July 2007, the Office referred appellant to Dr. Saul Z. Forman, a Board-certified
psychiatrist, to determine if she had a work-related psychiatric condition, and in a report dated
November 2, 2007 and revised on December 5, 2007, Dr. Forman noted his review of the record,
the statement of accepted facts, and appellant’s complaints of severe bowel incontinence and
severe shoulder and radiating low back pain with occasional numbness and tripping. He
performed psychiatric examination including mental status examination and diagnosed mood
disorder due to general medical condition with depressive features and advised that there was a
direct relationship between some of the bone and joint pain and the subsequent life changes
associated with her employment injury. He further stated that the emotional components could
have some causal relationship and that her mood disorder was aggravated and accelerated by the
employment injury which remained present and active. Dr. Forman recommended a course of
supportive psychotherapy and concluded that appellant was not disabled from a psychiatric
standpoint in terms of performing her regular work duties as a transportation security screen and
would accept the recommendation of Drs. Levine and Pollak regarding her physical capacity to
perform work duties. In a supplementary report dated April 1, 2008, Dr. Forman advised that
appellant was neither disabled nor restricted from working eight hours a day from a psychiatric
standpoint.
On June 10, 2008 the Office proposed to terminate appellant’s monetary and medical
benefits for the accepted orthopedic conditions on the grounds that the medical evidence, as
characterized by Dr. Levine’s report, established that she no longer suffered residuals or
disability due to these accepted conditions. It noted that a mood disorder was now accepted but

4

that, based on the opinion of Dr. Forman, she was not disabled from her regular job from a
psychiatric standpoint but remained entitled to medical treatment for the accepted emotional
condition.
Appellant disagreed with the proposed termination, and submitted reports dated April 24
and June 27, 2008 in which Dr. Martin Glowacki, Board-certified in anesthesiology, provided
examination findings and diagnosed thoracic or lumbosacral radiculopathy, lumbosacral
spondylosis with myelopathy and sacroileitis. Dr. Glowacki recommended lumbar steroid
injections and opined that appellant’s current condition was due to chronic degenerative changes
but that her pain possibly resulted from acute exacerbation of the chronic condition and advised
that her depression compounded her pain perception. He stated that she could perform duties as
a transportation security screener with some restrictions. Drs. Culver and Limbert continued to
submit reports advising that appellant was totally disabled, and on July 1, 2008, Maria Linsalata,
a licensed social worker, advised that she began treating appellant in October 2007 for a mood
disorder and recommended psychiatric treatment.
By decision dated August 1, 2008, the Office reviewed the medical evidence submitted
and finalized the termination of monetary compensation and medical benefits for appellant’s
back and right shoulder condition. It noted that the case remained open for medical treatment for
the accepted mood disorder. On August 27, 2008 appellant requested a review of the written
record, and submitted additional medical evidence. In reports dated from August 14 to
December 12, 2008, Dr. Janet Heasley, an osteopath practicing psychiatry, diagnosed major
depression, recurrent, severe, without psychosis. She noted that appellant had complete loss of
use of the right arm and L4 radiculopathy with chronic pain. In a January 15, 2009 decision, an
Office hearing representative affirmed the August 1, 2008 decision.
On July 30, 2009 appellant requested reconsideration and submitted reports dated from
February 10 to August 1, 2009 in which Dr. Heasley noted diagnoses of chronic right shoulder
and low back pain and depression, remarked that appellant had complete loss of use of the right
arm and L4 radiculopathy and advised that she was totally disabled. In a June 27, 2009 letter,
Dr. Heasley advised that appellant believed that her painful right shoulder and lower back
prevented her from returning to her previous job and that her depression developed as a result of
continuous pain. In reports dated from May 28 to July 1, 2009, Dr. Culver provided examination
findings, reiterated his diagnoses, and advised that appellant still suffered from pain and
decreased strength due to the employment-related right shoulder and lower back injuries and
from depression, secondary to the injuries. He stated that she could not return to work in any
capacity, and that sending her back to work would be detrimental to her physical and emotional
health.
By report dated May 26, 2009, Dr. Brian Rill, a Board-certified orthopedic surgeon,
noted appellant’s complaint that her right shoulder was getting worse with grinding, clicking and
popping, but that she could not reproduce this in his office. Right shoulder examination
demonstrated tenderness, mild weakness and positive impingement signs. Dr. Rill reviewed a
May 26, 2009 x-ray and diagnosed possible ongoing biceps pathology, chronic shoulder pain and
status-post arthroscopic surgery times two and referred her to the pain clinic. On June 26, 2009
he diagnosed chronic pain of multifactorial etiology and recommended a functional capacity
evaluation, noting that appellant’s shoulder pain and dysfunction had not ceased. In a June 30,

5

2009 report, Dr. Vaidya, noted that appellant was last seen in July 2006, and reported occasional
bowel incontinence, left foot drag and tripping. He provided physical examination findings and
diagnosed low back pain with left radicular symptoms. Dr. Vaidya advised that it was hard to
determine if appellant could return to work. By report dated July 14, 2009, he noted his review
of magnetic resonance imaging (MRI) studies which he interpreted as showing degenerative disc
disease of the lumbar spine. Dr. Vaidya advised that it was difficult to say whether appellant’s
symptoms were progressive and that the findings on MRI scan did not correlate with the level of
her symptoms. He recommended epidural injections and electromyographic studies. An
epidural injection at L4-5 on the left was performed on August 21, 2009.1
In a merit decision dated September 8, 2009, the Office reviewed the evidence submitted
and denied modification of the August 1, 2008 and January 15, 2009 decisions.
LEGAL PRECEDENT -- ISSUE 1
Once the Office 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.2
The Office’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
Section 8123(a) of the Federal Employees’ Compensation Act4 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.5 When the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based on
a proper factual background, must be given special weight.6
ANALYSIS -- ISSUE 1
The Office determined that a conflict in medical evidence had been created between the
opinions of appellant’s treating physician Dr. Limbert and Dr. Pollak, an Office referral
physician, regarding the extent of appellant’s work-related disability and limitations. It then
referred appellant to Dr. Levine, Board-certified in orthopedic surgery, for an impartial
evaluation.
1

Appellant submitted numerous objective studies and additional medical reports both before and after the
August 8, 2008 termination of benefits. This evidence is not relevant to the instant case as the reports do not discuss
the cause of any diagnosed condition or provide an opinion regarding appellant’s ability to work.
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Id.

4

5 U.S.C. § 8101-8193.

5

Id. At § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

6

Manuel Gill, 52 ECAB 282 (2001).

6

The Board finds that, as Dr. Levine provided a comprehensive, well-rationalized opinion
in which he clearly advised that any residuals of appellant’s accepted orthopedic conditions had
resolved his opinion is entitled to the special weight accorded an impartial examiner and
constitutes the weight of the medical evidence.7 In his March 20 and June 14, 2007 reports,
Dr. Levine described the history of injury, appellant’s subsequent treatment, her complaints of
pain and bowel incontinence, reviewed the medical record, provided physical examination
findings, and diagnosed right rotator cuff tendinosis, status post surgical repair, and status post
resection of her distal right clavicle; degenerative disc disease, lumbar spine with depression and
significant nonorganic factors present. He opined that appellant’s right shoulder problem was
not related to work but was an ongoing problem from her prior shoulder injury, that the
diagnosed degenerative disc disease was primarily related to aging, and that her complaints were
significantly influenced by nonorganic factors, noting a Waddell’s sign which indicated that
there is most likely a significant nonorganic factor present.
Dr. Levine stated that any bowel incontinence was most likely the result of a psychiatric
problem rather than any spinal disease. He advised that, based on his evaluation, there were no
objective findings or residuals directly attributable to the 2003 employment injury and that the
aggravation of lumbar disc disease had ceased, stating that she could return to her regular job
duties but would need a 15-pound lifting restriction that was preventive in nature, rather than due
to any accepted work condition. Dr. Levine noted that with the significant psychological factors
present, it was unlikely that the requested spinal fusion would help her condition, and although
he recommended a functional capacity examination, he thought it would most likely be invalid
due to appellant’s inability to function and concluded that she only needed supportive
management regarding the accepted orthopedic conditions.
The Board further finds that the additional relevant medical evidence submitted by
appellant is insufficient to overcome the weight accorded Dr. Levine as an impartial medical
specialist regarding whether appellant had residuals of her accepted orthopedic conditions.
Dr. Limbert submitted several reports in which he noted his disagreement with
Dr. Pollak’s conclusions and reiterated his prior findings and opined that appellant was totally
disabled. Reports from a physician who was on one side of a medical conflict that an impartial
specialist resolved, are generally insufficient to overcome the weight accorded to the report of
the impartial medical examiner, or to create a new conflict.8
In a June 27, 2008 report, Dr. Glowacki advised that appellant’s pain possibly resulted
from an acute exacerbation of her chronic degenerative changes and that depression compounded
her pain perception, and that she could return to the transportation security screen with some
unidentified restrictions. While the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute
certainty, neither can such opinion be speculative or equivocal. The opinion of a physician
supporting causal relationship must be one of reasonable medical certainty that the condition for
which compensation is claimed is causally related to federal employment and such relationship
7

See Sharyn D. Bannick, 54 ECAB 537 (2003).

8

I.J., 59 ECAB ____ (Docket No. 07-2362, issued March 11, 2008).

7

must be supported with affirmative evidence, explained by medical rationale and be based upon
a complete and accurate medical and factual background of the claimant.9 As Dr. Glowacki
couched his opinion regarding causal relationship in speculative language, it is of diminished
probative value.
Dr. Culver was consistent in his opinion that appellant was disabled from work
indefinitely because she had difficulty with back and right shoulder pain but did not provide a
sufficient narrative medical report to support his conclusion. A medical opinion not fortified by
rationale is of diminished probative value.10 The Board therefore finds that Dr. Culver’s reports
are insufficient to overcome the weight accorded Dr. Levine.
The Board therefore concludes that Dr. Levine’s opinion is entitled to the special weight
accorded an impartial medical examiner,11 and the additional reports submitted by appellant are
insufficient to overcome the weight accorded him as an impartial medical specialist regarding
whether appellant had residuals of her accepted orthopedic conditions. The Office therefore
properly terminated appellant’s compensation benefits for the accepted orthopedic conditions on
August 1, 2008.12
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits on
August 1, 2008, the burden shifted to her to establish that she had any continuing disability
causally related to her accepted right upper extremity injury.13 To establish a causal relationship
between the condition, as well as any attendant disability claimed and the employment injury, an
employee must submit rationalized medical evidence, based on a complete factual and medical
background, supporting such a causal relationship.14 Causal relationship is a medical issue and
the medical evidence required to establish a causal relationship is rationalized medical
evidence.15 Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

9

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

10

Cecelia M. Corley, 56 ECAB 662 (2005).

11

See Sharyn D. Bannick, supra note 7.

12

Manuel Gill, supra note 6.

13

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

14

Jennifer Atkerson, 55 ECAB 317 (2004).

15

Id.

8

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.16
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her July 30,
2009 reconsideration request to establish that she continued to be disabled after August 1, 2008
due to the accepted orthopedic conditions. Dr. Culver merely reiterated his opinion that
appellant was totally disabled without providing any supporting rationale to support his
conclusion.17 Dr. Rill advised that appellant’s right shoulder pain and dysfunction had not
ceased and recommended an FCE. Dr. Vaidya advised that it was hard to determine if appellant
could return to work and noted that the MRI scan findings did not correlate with the level of her
symptoms. Neither, however, discussed whether any disability was caused by employment
factors, and the issue of disability for work is an issue that must be resolved by competent
medical evidence.18 Here there is no medical evidence with sound medical reasoning
establishing that appellant was totally disabled after August 1, 2008 due to her orthopedic
conditions.19
LEGAL PRECEDENT -- ISSUE 3
Under the Act, the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in the Act.20 Whether a particular injury
causes an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by a preponderance of the reliable, probative and substantial
medical evidence.21
ANALYSIS -- ISSUE 3
The Board finds that appellant is not entitled to monetary compensation for the accepted
mood disorder. In his reports dated November 2, 2007 and April 1, 2008, Dr. Forman clearly
advised that, while appellant had an employment-related mood disorder, she was neither disabled
nor restricted from working eight hours a day from a psychiatric standpoint. He deferred to the
opinions of Drs. Levine and Pollak regarding her orthopedic conditions. Ms. Linsalata’s July 1,
16

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

17

Cecelia M. Corley, supra note 10.

18

R.C., 59 ECAB ____ (Docket No. 07-2042, issued June 3, 2008).

19

Sandra D. Pruitt, 57 ECAB 126 (2005).

20

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

21

Fereidoon Kharabi, 52 ECAB 291 (2001).

9

2008 report is of no probative value as the reports of a social worker do not constitute competent
medical evidence, as a social worker is not a “physician” as defined by section 8101(2) of the
Act.22 In reports dated from August 14, to December 12, 2008, Dr. Heasley provided no opinion
regarding appellant’s disability status, and medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.23 While the physician generally advised that appellant was totally disabled
in reports dated from February 10 to August 1, 2009, she provided no rationale to explain why
appellant could not work or exhibit any knowledge of her job duties. The issue of whether a
claimant’s disability is related to an accepted condition is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that
conclusion with sound medical reasoning.24 Appellant submitted insufficient evidence to support
that she is totally disabled due to the accepted emotional condition.
Appellant is therefore not entitled to monetary compensation for the accepted emotional
condition but remains entitled to medical benefits.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits for the accepted orthopedic conditions on August 1, 2008 on the grounds
that she had no employment-related residuals, that she did not establish that she had any
continuing employment-related disability or condition after that date due to these conditions, and
that she did not meet her burden of proof to establish entitlement to disability compensation for
the accepted emotional condition.

22

5 U.S.C. § 8101(2); Sedi L. Graham, 57 ECAB 494 (2006).

23

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

24

Sandra D. Pruitt, supra note 19.

10

ORDER
IT IS HEREBY ORDERED THAT the September 8, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11