United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Tucson, AZ, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1911
Issued: April 6, 2012

Case Submitted on the Record

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

JURISDICTION
On August 17, 2011 appellant, through his representative, filed a timely appeal from the
June 10, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation on the
grounds that he failed without good cause to undergo vocational rehabilitation as directed.
FACTUAL HISTORY
On February 26, 1988 appellant, a 32-year-old criminal investigator, sustained a
traumatic injury in the performance of duty while lifting weights. OWCP accepted his claim for
1

5 U.S.C. § 8101 et seq.

cervical strain with posterior C3-4, C4-5 foraminotomy, right C6 discectomy and consequential
left shoulder impairment. It later expanded its acceptance to include permanent aggravation of
foraminal stenosis, C3-6 and C6 radiculopathy, left.
On March 15, 2010 an impartial medical specialist found that appellant was “certainly
qualified” to perform the duties of a semi-sedentary position. Appellant’s only limitations were
to avoid repeated heavy lifting or bending, repeated overhead work or lifting objects weighing
more than 25 pounds above his shoulders. On June 5, 2010 the impartial medical specialist
completed a work capacity evaluation indicating that appellant could return to his usual job with
limitations.
On November 1, 2010 OWCP directed appellant to undergo and cooperate with
vocational rehabilitation. It identified an online university program that prepared individuals for
an entry-level position in the field of human resources.
On February 15, 2011 appellant notified his rehabilitation counselor that he had no
interest in human resources. He had been through an internship in human resources in 2001 and
had no interest in it. Appellant stated that he would not be able to do human resource work due
to his neck, back and left hip problems, but when asked how that work would be different from
work in which he had expressed an interest (public relations, communication and writing), he
explained that it would not be different as far as the job goes, but the difference would be his
interest. He stated that he did not want to meet with someone at the university. The
rehabilitation counselor reported obstruction.
OWCP informed appellant that he appeared to be impeding rehabilitation efforts. It
notified him of the penalty for obstruction, advising that it would assume vocational
rehabilitation would have resulted in a return to work with no loss of wage-earning capacity and
that it would reduce his wage-loss compensation to zero. OWCP explained that this reduction
would continue until he complied in good faith. Appellant thereafter met with his rehabilitation
counselor and signed an application for admission to the online university program.
The rehabilitation counselor prepared a vocational rehabilitation plan for formal training
and direct placement for two identified jobs: personnel manager and personnel clerk. Based on
the medically determinable residuals of the injury and taking into consideration all significant
preexisting impairments and pertinent nonmedical factors, she found that appellant would be
able to perform the job of personnel manager. The rehabilitation counselor explained how he
would meet the specific vocational preparation for the position once he completed the online
university program. She researched the job market and found that the position was reasonably
available within appellant’s commuting area and she confirmed the pay rate for an entry level
position.
On April 18, 2001 the rehabilitation counselor reported further obstruction. Appellant
advised that his neck was bothering him, he had worked on homework all weekend and he was
taking Codeine. He advised that he “can’t keep doing this” in terms of school; his health came
first. Appellant stated that he had problems sleeping and that he would obtain statements from
his physician. He stated that his books had not yet arrived and if they did, he would return them.

2

On April 29, 2011 OWCP informed appellant that he once again appeared to be impeding
rehabilitation efforts. It notified him of the penalty for obstruction, advising that it would
assume vocational rehabilitation would have resulted in a return to work with no loss of wageearning capacity and that it would reduce his wage-loss compensation based on what he probably
would have earned had he undergone vocational rehabilitation. OWCP asked appellant to
demonstrate compliance by calling both the rehabilitation counselor and OWCP within 30 days
to advise that he was willing to participate with vocational rehabilitation efforts or to show good
cause for not undergoing the training program or participating in vocational rehabilitation.
Otherwise, the rehabilitation effort would be terminated and his compensation reduced.
The university notified OWCP that appellant had dropped his courses.
Appellant’s representative advised OWCP that there was no obstruction. He explained
that appellant contacted him after experiencing significant medical problems as a result of the
computer work required by the courses. The representative told appellant to stop the activity and
be examined by a physician. He submitted appellant’s statement, which was substantially
similar to the rehabilitation counselor’s account of their conversation. The representative also
submitted medical reports from Dr. Bruce M. Pederson, a Board-certified family physician.
Dr. Pederson, who had been on one side of a conflict resolved by the impartial medical
specialist,2 examined appellant on March 15, 2001 and found that his physical examination had
not changed. He stated that appellant’s injuries and disabilities had caused a progressive decline
of function. The right C6 radiculopathy and disabling neck pain and stiffness were progressive,
permanent and directly caused by the February 26, 1988 employment injury.
Dr. Pederson examined appellant again on April 20, 2011 with complaints of pain
radiating down his right arm for one week. He related the history of appellant starting online
courses in human resources for vocational rehabilitation, working on the computer all weekend
and using Acetaminophen with Codeine. Dr. Pederson noted that the representative told
appellant to stop the computer work and document his neck flair. He noted that appellant was
trying to comply with vocational rehabilitation, but his neck had flared with the right arm
radicular pain. Dr. Pederson reported decreased neck motion and a positive Spurling maneuver
to the right. He diagnosed cervical radiculopathy, right, chronic, due to work injury, flaring with
recent computer work. Dr. Pederson also diagnosed chronic neck pain flaring with recent
computer work. He advised rest, warm compresses and daily low-dose aspirin.
The rehabilitation counselor notified OWCP that she had not heard from appellant in
response to the April 29, 2011 warning letter.
In a decision dated June 10, 2011, OWCP reduced appellant’s wage-loss compensation
on the grounds that he failed without good cause to undergo vocational rehabilitation as directed.
2

A conflict arose between a multidisciplinary second-opinion examination and Dr. Pederson on the extent of
appellant’s disability due to the February 26, 1988 work injury. The second-opinion examination concluded that
appellant could be gainfully employed in light to medium work with restrictions. After initially agreeing that he
could perform light work with restrictions, Dr. Pederson reported that appellant was incapable of any work. To
resolve the conflict, OWCP referred appellant to Dr. John F. Burns, a Board-certified orthopedic surgeon who
served as the impartial medical specialist.

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It found that Dr. Pederson did not provide a thorough explanation with clinical objective findings
demonstrating that the accepted condition had materially worsened such that he was incapable of
continuing the rehabilitation program. OWCP reduced appellant’s compensation by what he
would have earned as an entry-level personnel manager had he completed his training.3
Appellant’s representative argues, as he did before OWCP, that there was no obstruction
that he advised appellant to stop his computer work to be examined by his physician. He argues
that Dr. Pederson’s reports established appellant’s inability to perform the computer work
associated with the vocational training program. The representative also argues that the impartial
medical specialist’s opinion on March 15, 2010 had become stale by the time of the reduction,
citing Ruth Churchwell, Docket No. 02-792 (issued October 17, 2002).
LEGAL PRECEDENT
Section 8104(a) of FECA provides: “The Secretary of Labor [i.e., OWCP] may direct a
permanently disabled individual whose disability is compensable under this subchapter to
undergo vocational rehabilitation. The Secretary shall provide for furnishing the vocational
rehabilitation services.”4
Section 8113(b) provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”5
Section 10.519 of OWCP’s regulations provide:
“If an employee without good cause fails or refuses to apply for, undergo,
participate in or continue to participate in a vocational rehabilitation effort when
so directed, OWCP will act as follows-(a) Where a suitable job has been identified, OWCP will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [It] will determine this amount in
accordance with the job identified through the vocational rehabilitation
3

OWCP found that appellant had an 84 percent wage-earning capacity and would continue to receive
compensation for partial disability.
4

5 U.S.C. § 8104(a).

5

Id. at § 8113(b).

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planning process, which includes meeting with OWCP[’s] nurse and the
employer. The reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.”6
ANALYSIS
OWCP directed appellant to undergo and cooperate with vocational rehabilitation. After
starting his online university program, however, appellant advised that he could not keep doing
it. He stated that he had worked on homework all weekend, that his neck was bothering him and
that he was taking Codeine. Appellant also advised that his books had not yet arrived and that he
would return them if they did. The university thereafter notified OWCP that he had dropped his
courses. Appellant made no contact with his rehabilitation counselor following OWCP’s
April 29, 2011 letter of warning.
The Board finds that appellant obstructed vocational rehabilitation. Appellant refused to
continue to participate in a rehabilitation effort when so directed. The question for determination
is whether he showed good cause.
Appellant claimed that working on homework all weekend bothered his neck. To support
this claim, he submitted two reports from Dr. Pederson, the family physician, whose March 15,
2001 report did not address the issue. On April 20, 2011, however, Dr. Pederson noted
appellant’s complaints of pain radiating down his right arm for one week. He related the history
of starting online courses in human resources for vocational rehabilitation, working on the
computer all weekend and using acetaminophen with Codeine. Dr. Pederson diagnosed chronic
cervical radiculopathy, right, flaring with recent computer work. He advised rest, warm
compresses and low-dose aspirin, but he did not specifically prohibit appellant from continuing
the vocational rehabilitation effort. Dr. Pederson did not directly address the issue or explain
how appellant’s prescription was inconsistent with taking an online course.
Medical conclusions unsupported by rationale are of little probative value.7 The Board
thus finds that Dr. Pederson’s reports did not show good cause for appellant’s obstruction. As
appellant, without good cause, failed or refused to apply for, undergo, participate in or continue
to participate in a vocational rehabilitation effort when so directed, OWCP, having identified a
suitable job, properly reduced his future monetary compensation based on the amount that would
likely have been his wage-earning capacity had he undergone vocational rehabilitation. The
Board will affirm OWCP’s June 10, 2011 decision.
Appellant’s representative argues that there was no obstruction. Appellant announced
that he would no longer do his coursework. He dropped his classes. Appellant did not contact
his rehabilitation counselor as instructed. Given an opportunity to comply, he gave no indication
that he was willing to continue his participation in the vocational rehabilitation effort. That was
obstruction. Had appellant shown good cause for his obstruction, he would have avoided the
purely provisional reduction of his compensation under 5 U.S.C. § 8113(b).
6

20 C.F.R. § 10.519.

7

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

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Appellant’s representative also argues that Dr. Pederson’s reports established appellant’s
inability to perform the computer work associated with the vocational training. Dr. Pederson did
not make that finding. The representative’s conclusion cannot be drawn without making medical
assumptions. Appellant reported a single episode of neck pain following an entire weekend of
computer work (he did not report radiculopathy when he first mentioned the episode to his
rehabilitation counselor). Dr. Pederson accepted the history appellant provided and without
offering a rationalized opinion on the matter, effectively allowed appellant to self-certify an
aggravation. He did not conclude that appellant’s cervical condition prevented him from
pursuing any kind of online training.
Appellant’s representative further argues that the impartial medical specialist’s opinion
on March 15, 2010 had become stale by the time OWCP reduced compensation. He cites the
Board’s opinion in Ruth Churchwell, Docket No. 02-792 (issued October 17, 2002), but that case
involved a refusal of suitable work and the permanent termination of entitlement under 5 U.S.C.
§ 8106(c). This case involves a suspension of compensation under 5 U.S.C. § 8113(b). When
the impartial medical specialist found that appellant was not totally disabled for work, OWCP
directed him to undergo vocational rehabilitation later that same year, while the weight of the
medical evidence was still reasonably fresh. Further, and more to the point, once appellant
obstructed the vocational rehabilitation effort, it became his burden to show good cause, which
he failed to do.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation on the
grounds that he failed without good cause to undergo vocational rehabilitation as directed.

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ORDER
IT IS HEREBY ORDERED THAT the June 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVCE, LIVINGSTON POST
OFFICE, Columbus, OH Employer
__________________________________________

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

Docket No. 09-354
Issued: September 3, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant, through counsel, filed a timely appeal from the April 9,
and October 2, 2008 decisions of the Office of Workers’ Compensation Programs denying her
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty, as alleged.
FACTUAL HISTORY
On July 27, 2007 appellant, then a 41-year-old sales and service associate, filed an
occupational disease claim alleging panic attacks and anxiety, which she attributed to her federal

employment. On August 17, 2007 the employing establishment controverted her claim. It noted
that appellant last worked on December 8, 2006.1
On September 18, 2007 the Office requested that appellant submit further information
regarding those factors of her employment to which she attributed her condition. Appellant
responded alleging harassment and discrimination on the part of her supervisor, Marianne
Stewart. She noted that she began work at the Livingston City station in early 2006 and that her
duties included manually sorting and preparing the mail for the letter carriers and recording and
distributing registered mail. During the last week of June 2006, Ms. Stewart began work at the
station. In an individual meeting on July 10 or 20, 2006, she discussed appellant’s uniform,
noting that she was a “stickler” about uniforms. Appellant was advised that her shoes had to be
black and to wear either blue or grey pants. The supervisor also told appellant that her shirt had
to be tucked in, which appellant stated would be uncomfortable as she wore a plus size.
Appellant described Ms. Stewart as a small built woman who, while having this conversation,
lifted what she could of her own midsection, stating: “Well, I have this too and I tucked my shirt
in.” She stated that she was never previously requested to tuck in her shirt and was offended by
her supervisor’s gesture. Appellant went back to work but experienced a panic attack while
helping a customer.
During August 2006, appellant alleged that she had several confrontations with
Ms. Stewart over her work responsibilities. On August 7, 2006 she worked a split shift;
however, her supervisor told her to leave the accountable cart unattended and perform other
duties. Appellant stated that Ms. Stewart pulled her away from the accountable mail and she
returned to find items missing that were not signed out. She contended that her supervisor was
“playing games” with her job and attempted to bait her into arguments. At lunch that day,
appellant went to see her physician, who advised that she was having a panic attack. She
returned to work to close out her cash drawer and alleged that Ms. Stewart started yelling at her
from across the workroom.
On October 10, 2006 appellant’s supervisor rummaged through the mail tubs while
appellant was attempting to retrieve mail. Appellant backed away from the mail tub and, when
asked if there was a problem, responded that she was getting out of the way. She alleged that
Ms. Stewart made a comment about her attitude. On October 14, 2006 appellant alleged that
Ms. Stewart repeatedly told her to keep working the mail while at the tub. She waited until her
supervisor was through, contending that it was unsafe to retrieve mail and she did not want
Ms. Stewart to touch her. Later that day, Ms. Stewart advised appellant that a window clerk
would let her know when she could take her breaks and lunch. Appellant contended that the
clerk was not her supervisor or otherwise qualified. On October 20, 2006 she had a panic attack
following a confrontation with Ms. Stewart concerning some religious clothing left in the
women’s restroom. Appellant noted that the clothes did not belong to her. On the morning of
October 21, 2006, she answered the telephone and was advised by Dominic Allen, a coworker,
that he was calling in sick and would call back to speak to a supervisor. Appellant left a
message; however, Ms. Stewart told her that she was not to get personal information from
1

The employing establishment noted that appellant’s sister also last worked on December 8, 2006, when she was
placed off work pending her removal due to a disciplinary action.

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employees but to just tell them to call back when a supervisor was present. The supervisor noted
that medical and personal information were none of appellant’s business. Appellant also
described panic attacks occurring in November and December 2006 while driving to work,
bowling and attending a private banquet, which her supervisor also attended. On December 7,
2006 she was having a conversation with another clerk when Ms. Stewart allegedly made a snide
remark. On December 8, 2006 Ms. Stewart accused appellant of throwing a $5.00 or $10.00 bill
at her during an audit. When appellant requested that a witness be present to complete the audit,
Ms. Stewart told her to leave the building. Appellant stopped work that day and did not return.2
Appellant submitted statements from various coworkers who noted that they witnessed
several panic attacks. She also made general allegations that her supervisor created a hostile
work environment through constant criticism, humiliating behavior, sabotaging her work
performance and making untrue reports to management. In a December 18, 2006 letter to an
Employee Assistance Program counselor, appellant reiterated that her supervisor created a
hostile work environment.3
In a statement dated January 29, 2008, Patrick A. LaRosa, manager of customer service,
indicated that appellant, her sister and former manager at the station were very good friends,
such that the sisters were given special treatment. He noted that Ms. Stewart addressed proper
attire with appellant as required, even though she had not been made to wear one before.
Although appellant described Ms. Stewart’s gesture of tucking in her own shirt as inappropriate,
Mr. LaRosa noted that she did not state how far the supervisor had raised her shirt. Mr. LaRosa
noted that work assignments were changed to split work loads equally between all the mail
clerks and that Ms. Stewart had delegated tasks in a fair manner. He contended that appellant
was challenged by Ms. Stewart to do her job correctly following a past inappropriate relationship
with the prior manager.4
In a May 18, 2007 memorandum, the employing establishment proposed placing
appellant on a 14-day suspension for improper conduct. It was noted that appellant had
acknowledged using her sister’s computer password to log onto the point of sale machine and
onto the main computer, approximately four to five separate times on each machine. Appellant
was aware that her actions violated employing establishment policy. In a step 2 decision dated
August 6, 2007, the employing establishment denied appellant’s grievance with regard to this
matter.5
2

Appellant subsequently met with postal officials for predisciplinary interviews in April and May 2007. This
concerned a 14-day suspension issued for having used her sister’s password to access computers at the employing
establishment.
3

Appellant submitted medical evidence in support of her claim.

4

On April 1, 2008 Sue Rene Con, a supervisor, noted that postal policy required that registered mail be kept
secure or locked at all time. If a clerk working at the accountable cart was asked to perform other duties, the clerk
would either inform a supervisor to lock the mail in a safe or keep such items in their possession. There was no
record of appellant being disciplined for violating these procedures. The employing establishment could not
confirm appellant’s allegation that items were missing on August 7, 2006.
5

On October 31, 2007 a notice of 14-day suspension was issued for unsatisfactory attendance since June 1, 2007.

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In an April 9, 2008 decision, the Office denied appellant’s claim. It found that she did
not submit sufficient evidence to establish error or abuse on the part of Ms. Stewart in the alleged
administrative actions.
By letter dated April 25, 2008, appellant, through her attorney, requested a telephonic
hearing.6 On June 4, 2008 appellant’s sister stated that she observed her sister have a panic
attack the second week of July 10, 2006. She noted that, when Ms. Stewart came to the
employing establishment, she caused a hostile work environment.
At the August 12, 2008 hearing, appellant testified that Ms. Stewart had numerous issues
with her sister and had difficulty separating them. She discussed the uniform incident, noting
that she had always worn men’s shirts, bought her own pants and wore her shirt outside of her
pants because she was a large woman. Appellant noted that Ms. Stewart made a gesture
“jiggling” her stomach that she found to be very rude. Moreover, the supervisor failed to
properly explain why appellant needed to tuck in her shirt. Appellant reiterated her allegations
concerning Mr. Allen’s telephone call and noted that most clerks just yelled information to a
supervisor. She wrote out a message because she did not want to forget that he called.
Ms. Stewart told her that the message was inappropriate. Counsel contended that appellant was
singled out for harsher, inappropriate discipline.
By decision dated October 2, 2008, an Office hearing representative affirmed the denial
of appellant’s claim.
LEGAL PRECEDENT
To establish that she sustained an emotional condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or stress-related disorder; (2) factual evidence identifying employment factors or incidents
alleged to have caused or contributed to her condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
her stress-related condition.7 If a claimant does implicate a factor of employment, the Office
should then determine whether the evidence of record substantiates that factor.8 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.9
Workers’ compensation law is not applicable 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
6

Appellant submitted a statement from Mr. Allen concerning the telephone message he left when sick. Mr. Allen
noted that appellant took the call but, since no supervisor was yet at work, he called back twice. He stated that he
overheard other clerks telling a supervisor when an employee was sick, but only appellant was reprimanded.
7

Leslie C. Moore, 52 ECAB 132 (2000).

8

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

9

Id.

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concept or coverage of workers’ compensation. When the disability results from an emotional
reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.10 On the other hand, there are situations when an injury has some connection with the
employment, but nonetheless does not come within the coverage of workers’ compensation
because it is not considered to have arisen in the course of the employment.11
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.12 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.13
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.14
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.15 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.16 The issue is whether the claimant has
submitted sufficient evidence to establish a factual basis for the claim by supporting any
allegations with probative and reliable evidence.17 The primary reason for requiring factual
evidence from the employee in support of his or her allegations of stress in the workplace is to
establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,
which in turn may be fully examined and evaluated by the Office and the Board.18
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
10

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

11

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

12

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
13

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

14

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

15

See Michael Ewanichak, 48 ECAB 364 (1997).

16

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

17

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

18

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

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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.19 If a claimant does implicate a factor of
employment, it 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.20
ANALYSIS
Appellant alleged that she sustained an emotional condition due to harassment and
discrimination on the part of her supervisor. The Office denied her emotional condition claim on
the grounds that she did not establish any compensable employment factors. The Board must
review whether the alleged incidents are established as compensable factors under the Act.
The Board notes that appellant did not make any allegations concerning her regular or
specially assigned job duties under Cutler. Rather, appellant made allegations concerning
discrimination or abuse on the part of Ms. Stewart, her supervisor, in several administrative and
personnel matters. She noted having a meeting with her supervisor in July 2006 concerning her
uniform. Appellant alleged that, during the meeting, Ms. Stewart advised her to tuck in her shirt
and made a gesture in the area of her midsection stating “Well, I have this too and tucked my
shirt in.” She noted that she had never been instructed to wear her shirt tucked in and that she
was offended by her supervisor’s gesture. The Board finds that appellant has not established a
compensable factor regarding this allegation. The nature of the gesture attributed to her
supervisor is, at best, vague. The nature of the meeting as described by appellant does not
evidence harassment or discrimination on the part of her supervisor and there is no showing that
any gesture on her part constituted abuse. Appellant noted only that she had not previously been
instructed to wear her shirt tucked into her pants. However, this fact does not establish error on
the part of her supervisor by instructing appellant to do so in the future. While the gesture
attributed to Ms. Stewart may have engendered offensive feelings, the evidence of record does
not establish error or abuse.21
Appellant alleged that on August 7, 2006 her supervisor asked her to perform duties away
from the accountable mail cart. She alleged that upon her return items were missing that were
not signed out. Appellant alleged that her supervisor was “playing games.” However, the
evidence of record does not establish this allegation as factual. The employing establishment
noted that appellant had no record of having items lost from the cart. Moreover, there was no
description of the items that were allegedly removed or taken. Similarly, appellant alleged two
occasions on which Ms. Stewart “rummaged” through the mail tubs while she was working.
When asked if there were any problem, appellant notes that she would wait until her supervisor
19

Dennis J. Balogh, supra note 8.

20

Id.

21

See Cyndia R. Harrill, 55 ECAB 522 (2004).

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was finished. There is no showing how this activity was abusive or in error. Appellant alleged
that Ms. Stewart made a comment about her attitude, but did not provide any description of any
comment allegedly made. She alleged a panic attack on October 20, 2006 after her supervisor
inquired as to whether clothing items found in the women’s restroom belonged to her. Appellant
noted that she took a telephone message from Mr. Allen on October 21, 2006 when he called in
sick. Thereafter, Ms. Stewart told appellant that she was not to take personal information from
coworkers but to tell them to call back when a supervisor was present. She alleged that, on
December 7, 2006, her supervisor made a snide remark while she was talking with another
employee. On December 8, 2006 Ms. Stewart allegedly accused appellant of tossing money at
her during an audit. The Board has recognized the compensability of verbal altercations or
physical abuse when sufficiently detailed by the claimant and support by the record. However,
this does not imply that every statement uttered in the workplace will give rise to compensability
under the Act.22 The evidence submitted by appellant does not contain a description of any
comments made by her supervisor. The statements of her sister and Mr. Allen failed to provide
an account of any conversation they may have heard between appellant and Ms. Stewart. For
this reason, appellant has not established verbal or physical abuse as a compensable factor.
The handling of disciplinary actions and leave requests, the assignment of duties and the
monitoring of work activities are generally related to employment; however, they are
administrative functions of the employer and not duties of the employee.23 Appellant also
alleged that her supervisor told her that another window clerk would be the T6 on a certain
Saturday and that she would assign breaks. She objected to this as she contended that the clerk
was not a T6 and was not trained to perform these duties. This is an administrative action and
not compensable absent a showing of error or abuse, which appellant has not shown.
The Board notes that appellant was disciplined for using her sister’s password on several
work computers. The Board notes that disciplinary actions are administrative functions of the
employer and not duties of the employee and, unless the evidence discloses error or abuse on the
part of the employing establishment, are not compensable employment factors.24 An internal
investigation showed that appellant used her sister’s password on several occasions and that she
knew that this was against the policy of the employing establishment. Accordingly, no error was
shown.
Appellant made general allegations that her supervisor created a hostile work
environment, sabotaged her work performance and made untrue reports to management. For
harassment and discrimination to give rise to compensable disability, there must be evidence that
harassment or discrimination did in fact occur. Mere perceptions of harassment or
discrimination are not compensable.25 There is no proof that appellant was reprimanded for
leaving clothing in the restroom or that her supervisor made an obscene gesture. There is no
evidence to support her allegations that her supervisor could not keep her and her sister separate.
22

See David C. Lindsey, 55 ECAB 263 (2005).

23

See Lori A. Facey, 55 ECAB 217 (2004). See also Janet I. Jones, 47 ECAB 345 (1996).

24

Marvin S. Freeland, 57 ECAB 607 (2006).

25

Doretha M. Belnavis, 57 ECAB 311 (2006).

7

Appellant alleged that her supervisor was an unwelcome guest at a private banquet for a family
member. In addition to the fact that there is no corroborating evidence supporting this allegation,
there is no evidence as to how this related to her federal employment.
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 decisions of the Office of Workers’
Compensation Programs dated October 2 and April 9, 2008 are affirmed.
Issued: September 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, NORTH METRO
PROCESSING & DISTRIBUTION CENTER,
Duluth, GA, Employer
__________________________________________

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

Docket No. 09-840
Issued: October 6, 2009

Case Submitted on the Record

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

JURISDICTION
On February 9, 2009 appellant filed a timely appeal from a January 2, 2009 decision of
the Office of Workers’ Compensation Programs denying his claim for an occupational disease
and a January 21, 2009 decision denying his request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained an injury to his back, lower extremities or
upper extremities in the performance of duty; and (2) whether the Office abused its discretion in
denying his request for reconsideration.
FACTUAL HISTORY
On October 1, 2008 appellant, then a 44-year-old mail handler, filed an occupational
disease claim alleging that he sustained injuries to his lower back, knees, feet and hands due to
standing, pushing, lifting and occasional driving activities required in his job. Raymond Rowe, a

coworker, stated that appellant loaded and unloaded mail trucks for eight or more hours a day.
The job also required pushing and pulling mail containers.
By letter dated November 25, 2008, the Office asked appellant to submit additional
evidence including a comprehensive medical report from his treating physician with a
description of symptoms, the results of tests, a diagnosis and a rationalized medical opinion as to
how the condition was causally related to factors of his employment.
In a form report dated October 23, 2008, Dr. Stephen A. Dawkins, a Board-certified
specialist in preventive medicine, diagnosed bilateral wrist tendinitis, bilateral hand neuropathy
and right elbow epicondylitis. He noted that appellant’s right carpal tunnel syndrome was
diagnosed when he served in the military. The history of injury provided by appellant was that
he performed repetitive lifting and pushing in his job. Dr. Dawkins checked the block marked
“yes,” indicating that the conditions were causally related to appellant’s job. In another report
dated October 23, 2008, he noted the history given by appellant that he had pain and discomfort
from repetitive lifting and pushing in his job. Dr. Dawkins provided findings on physical
examination. He did not provide medical rationale explaining the cause of appellant’s
conditions. In an October 30, 2008 report, Dr. Arlene R. Emmons, a specialist in preventive
medicine, stated that appellant continued to have pain, numbness and tingling in his wrists and
hands and right elbow pain. She did not provide a medical opinion as to the cause of the
conditions.
In a December 9, 2008 report, appellant was seen by an orthopedic surgeon,
Dr. Stephen N. Ha, a specialist in family medicine, who provided findings on examination and
diagnosed carpal tunnel syndrome. Dr. Ha noted appellant’s symptoms, including bilateral wrist
pain radiating to the upper arm, numbness, swelling and wrist instability. He stated that there
was no apparent precipitating injury. Appellant stated his opinion that his bilateral hand
symptoms were due to repetitive movements of his hands at work. Dr. Ha noted, “Possibly
related factors include lifting things.” He did not provide a medical opinion as to the cause of
the condition. A nerve conduction study performed December 9, 2008 revealed mild right
median neuropathy at the wrist and moderate left median neuropathy at the wrist.
By decision dated January 2, 2009, the Office denied appellant’s claim on the grounds
that the evidence did not establish that his bilateral carpal tunnel syndrome, bilateral wrist
tendinitis, bilateral hand neuropathy or right lateral epicondylitis were causally related to factors
of his federal employment.
Appellant requested reconsideration. He did not submit any additional evidence or
argument.
By decision January 21, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not sufficient to warrant further
merit review.

2

LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.1 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.2
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment, nor his belief that his condition was aggravated by his employment, is sufficient to
establish causal relationship.3
ANALYSIS -- ISSUE 1
Dr. Dawkins diagnosed bilateral wrist tendinitis, bilateral hand neuropathy and right
elbow epicondylitis. He noted that appellant’s right carpal tunnel syndrome was first diagnosed
when he served in the military. The history provided by appellant was that he performed
repetitive lifting and pushing in his job. Dr. Dawkins checked the block marked “yes,”
indicating that the conditions were causally related to appellant’s job. The Board has held that a
physician’s opinion on causal relationship which consists only of checking “yes” to a form report
is of diminished probative value on the issue of causal relationship.4 Dr. Dawkins did not
provide medical rationale explaining the cause of appellant’s conditions. Therefore, his reports
are not sufficient to establish that appellant sustained a work-related injury to his upper
extremities. Dr. Emmons stated that appellant had pain, numbness and tingling in his wrists and
hands and right elbow pain. However, she did not provide a medical opinion as to the cause of
the conditions. Therefore, Dr. Emmons’ report is insufficient to establish an employment-related
medical condition.

1

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

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
3

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

See Gary J. Watling, 52 ECAB 278, 280 (2001).

3

Dr. Ha provided findings on examination and diagnosed carpal tunnel syndrome. He
noted appellant’s symptoms, including bilateral wrist pain radiating to the upper arm, numbness,
swelling and wrist instability. Appellant stated that his bilateral hand symptoms were due to
repetitive movements of his hands at work. This is his opinion on causal relationship, not the
physician’s. Dr. Ha noted, “Possibly related factors include lifting things.” The opinion of a
physician must be one of reasonable medical certainty and not speculative. Dr. Ha did not
provide a medical opinion as to the cause of appellant’s condition based on a complete and
accurate factual and medical background and supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by appellant. Therefore, Dr. Ha’s report is not sufficient to establish that appellant
sustained a work-related injury to his upper extremities.
The Board notes that on November 25, 2008 the Office advised appellant of the evidence
necessary to establish his claim, including a comprehensive medical report containing a
description of his symptoms, the results of tests and medical rationale explaining how the
diagnosed conditions were caused or aggravated by specific factors of his employment.
Appellant did not submit such medical evidence. Accordingly, the Office properly denied his
claim for an occupational injury.
With his appeal to the Board, appellant submitted additional evidence. The Board’s
jurisdiction is limited to reviewing the evidence that was before the Office at the time it issued its
final decision.5 The Board may not consider new evidence for the first time on appeal.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act6 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.7 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).8
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.10 To be entitled to a merit
5

See 20 C.F.R. § 501.2(c).

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8128(a).

8

Annette Louise, 54 ECAB 783, 789-90 (2003).

9

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(2).

4

review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.11 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.12
ANALYSIS -- ISSUE 2
Appellant did not submit any additional evidence or argument to the Office with his
request for reconsideration. Because appellant did not submit evidence or argument that showed
that the Office erroneously applied or interpreted a specific point of law, advanced a relevant
legal argument not previously considered or constituted relevant and pertinent new evidence not
previously considered by the Office, the Office properly denied his request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing that he
sustained injuries to his upper extremities in the performance of duty. The Board further finds
that the Office did not abuse its discretion in denying appellant’s request for reconsideration.

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 21 and 2, 2009 are affirmed.
Issued: October 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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Appearances:
Raymond Bermudez, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0478
Issued: July 5, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2017 appellant, through her representative, timely appealed from a
November 2, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted December 16, 2015 employment incident.
FACTUAL HISTORY
On December 19, 2015 appellant, then a 69-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on December 16, 2015 she was picking up a flat tray and felt pain
in her right shoulder while in the performance of duty. She explained that she felt pain in her right
shoulder through the arm and neck.
In a statement dated December 17, 2015, appellant indicated that, while lifting direct
domestic flat trays on December 16, 2015, she felt a slight pain and pulling in her right shoulder.
She advised that the pain subsided only to return the next day, on December 17, 2015, at
approximately 5:30 a.m. Appellant noted that the pain “gyrated into [her] neck” after lifting the
domestic direct trays once again.
OWCP received treatment notes dated December 18, 2015 to February 6, 2016 from
Dr. Anthony S. DeSano, a chiropractor. In his December 18, 2015 report and initial evaluation,
Dr. DeSano noted that appellant complained of neck pain, which radiated to the right trapezius and
to the right posterior forearm, which was described as sharp, stabbing, and tightness. He indicated
that appellant’s pain was a 10 on a scale of 1 to 10 with 10 being the worst level of pain.
Dr. DeSano advised that she indicated that it occurred constantly and started on December 15,
2015 due to severe neck pain radiating into the upper trapezius muscles. He found that palpation
of appellant’s spine and extremities revealed pain and limited segmental range of motion and
subluxation at: C3, C4, C5, C6, C7, T1, T2, and T3, which was confirmed on x-ray of the spine.
Dr. DeSano indicated that palpation revealed spasm in the cervical and upper thoracic areas of her
spine. He conducted range of motion (ROM) testing and found severe pain with ROM and a
normal pin wheel test. Dr. DeSano diagnosed: segmental somatic dysfunction of cervical region;
muscle spasm of the neck; cervical disc disorder with radiculopathy of the mid-cervical region;
and other cervical disc displacement of the mid-cervical region. He continued to treat appellant
and submit reports.
In a development letter dated March 2, 2016, OWCP explained to appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work. Based
on these criteria, the employing establishment did not controvert continuation of pay, or challenge
the merits of the claim, and payment of a limited amount of medical expenses was administratively
approved. OWCP informed appellant of the type of evidence needed to support her claim and
requested that she submit such evidence within 30 days. It also explained that her chiropractor did
not qualify as a physician as there was no diagnosis of a subluxation.3 OWCP explained that, in

3

OWCP’s implementing federal regulations define subluxation to mean an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See 20 C.F.R.
§ 10.5(bb).

2

the absence of a diagnosis of subluxation based on x-rays, he was not considered a physician under
FECA.
OWCP received additional treatment notes and duty status reports (Form CA-17) dating
from February 17 to April 4, 2016 from Dr. DeSano. Dr. DeSano repeated his previous diagnoses
and continued to treat appellant.
In a March 11, 2016 statement, appellant indicated that on the morning of the claimed
incident, she was on the flat tray line. She noted that she prepped the mail in the flat trays as they
came down the conveyor line. Appellant prepped one tray, it weighing approximately 10 to 15
pounds. She explained that she lifted it up, turned around with a full body turn, and put it on the
skid with her knees bent. Appellant indicated that she felt a pulling sensation in her right shoulder,
and the pain radiated down her right arm. She advised that she stopped work immediately and
informed her supervisor of her injury. Appellant also saw her chiropractor, that day.
By decision dated April 8, 2016, OWCP denied appellant’s claim, finding that she failed
to establish causal relationship between her diagnosed condition and the accepted employment
incident. It found the medical evidence submitted was not supported by objective findings as to
how the accepted work incident of December 16, 2015 either indirectly caused or aggravated the
diagnosed medical condition of cervical and thoracic subluxation at C3, C4, C4, C6, C7, T1, T2,
and T3. OWCP reiterated that chiropractors were only permitted to make a medical diagnosis of
a spinal subluxation demonstrated by x-ray. It found that Dr. DeSano failed to provide a wellreasoned medical opinion supported by objective findings.
On April 29, 2016 OWCP received appellant’s request for a hearing, which was held before
an OWCP hearing representative on September 1, 2016.
A February 11, 2016 magnetic resonance imaging (MRI) scan of the cervical spine, read
by Dr. Narayan Paruchuri, a Board-certified diagnostic radiologist, revealed: a broad-based
central disc herniation at C4-5, with severe thecal sac impingement and severe lateral recess
stenosis and bilateral foraminal impingement; a broad-based disc herniation at C5-6 and thecal sac
impingement with impingement upon the cervical cord and severe lateral recess stenosis and
bilateral foraminal impingement; left paracentral disc herniation and left foraminal herniation at
C6-7; with anterior thecal sac impingement on the left with lateral recess stenosis and left
foraminal impingement. Dr. Paruchuri also found right paracentral foraminal herniation at C3-4
and direct impingement upon the right side of the cervical cord with severe right lateral recess
stenosis and right foraminal impingement. He further found a disc bulge and bilateral foraminal
herniation at C7-T1 and significant left lateral recess stenosis and left foraminal impingement on
the right. Dr. Paruchuri’s findings also included lateral recess stenosis and right foraminal
impingement with anterior thecal sac impingement.
In a March 10, 2016 report, Dr. Mehrdad Golzad, a Board-certified neurologist, noted that
appellant was involved in a work-related incident on December 16, 2015. He explained that, on
that date, appellant suffered injuries to her neck and right shoulder after lifting a heavy tray.
Dr. Golzad indicated that since then she was experiencing persistent pain and discomfort in the
neck, right shoulder, and right arm. He noted that her diagnostic studies revealed herniated discs
at C4-C5, C5-C6, and C6-C7, a C7-T1 disc bulge and bilateral foraminal herniations. Dr. Golzad

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found that her past medical history included: hypertension, diabetes, status post lumbar
laminectomy from L2 through S1, severe peripheral vascular disease with femoral and carotid
endarterectomy, arterial bypass of the right lower extremity, angioplasty of the right leg and torn
meniscus of the right knee. He examined appellant and diagnosed cervical spine disorder and right
shoulder disorder. Dr. Golzad requested authorization for additional testing.
In a March 31, 2016 report, Dr. DeSano diagnosed segmental and somatic dysfunction of
the cervical region, muscle spasm of the back, and cervical disc disorder with radiculopathy, midcervical region. His findings included; intensity, and sharp to dull achy pain and no arm pain.
Dr. DeSano recommended a cervical spine MRI scan and continued chiropractic treatment.
In an April 4, 2016 duty status report (Form CA-17) and attending physician’s report (Form
CA-20), Dr. DeSano diagnosed cervical disc disease with myelopathy and cervical disc disorder.
He checked the box marked “yes” in response to whether he believed the condition was caused or
aggravated by an employment activity. Dr. DeSano indicated that “repetitive motion led to
progressive changes.”
In an April 7, 2016 report, Dr. Golzad diagnosed: radiculopathy of the cervical region,
other cervical disc displacement, map of the cervical region; intervertebral disc disorders with
radiculopathy; lumbosacral region; other intervertebral disc displacement, lumbar region. He
advised that appellant could not return to work.
In an April 14, 2016 report, Dr. DeSano explained that he was confused as to how OWCP
could say he could only diagnose subluxation and then indicate that he had not provided medical
evidence of subluxation. He explained that appellant was injured on the job and initially
complained of a shoulder pain. Dr. DeSano examined appellant and found an injury to her neck
that was radiating to her arm and shoulder. He explained that he documented subluxation on xray and also documented muscle weakness in her right extremity. Dr. DeSano indicated that he
clearly listed weak muscles on testing and referenced the right deltoid and triceps “both of which
are innervated by nerves in the cervical spine and could cause pain and weakness in the shoulder.”
He also advised that orthopedic tests were positive, including cervical distraction, foraminal
compression, and Soto hall testing. Dr. DeSano opined that all of these indicated a cervical disc
disorder that could cause neck, shoulder, and arm complaints. He opined that he believed “that
her injury as described to me is the causative factor in [her] complaints.” Dr. DeSano explained
that he diagnosed subluxation and also correctly diagnosed cervical disc and radiculopathy. He
further explained that the CA-17 and CA-20 forms both had small areas for filling in a diagnosis.
Dr. DeSano indicated that he placed the most severe diagnosis in the allowable space which is the
medical standard. He opined that to “only look at this limited form without looking at the diagnosis
as provided on the C4 and C4.2 medical reports as well as my submitted notes is once again
‘selectively choosing what part of my records you wish to see’ and should be corrected.”
In April 20, 2016 report, Dr. DeSano diagnosed segmental dysfunction of cervical region,
muscle spasm of back, cervical disc disorder with radiculopathy of the mid-cervical region, and
other cervical disc displacement of the mid-cervical region. He explained that his evaluation
revealed an underlying right shoulder injury with weakness. Dr. DeSano advised that the neck and
right shoulder were affected by the injury. He requested a right shoulder MRI scan and
electromyography studies of the right upper extremity to rule out internal derangement and noted

4

that appellant was disabled and unable to work. Dr. DeSano continued to treat appellant, repeat
his opinions and diagnoses in his April 28, June 1, 6, 15, 22, 29, July 13, and August 4, 2016
reports, and indicated that appellant remained disabled.
A May 12, 2016 MRI scan of the right shoulder, read by Dr. Anthony Italiano, a Boardcertified diagnostic radiologist, revealed tendinopathy and partial-thickness rotator cuff tear.
In a letter dated May 26, 2016, appellant requested expedited consideration on her hearing
date. She enclosed the MRI scan results of her right shoulder and noted that it revealed two tears
in her right shoulder “rotary cuff.”
In an August 31, 2016 report, Dr. Dante Trovato, a Board-certified orthopedic surgeon,
noted that while appellant was performing work typical to her assigned duties as a mail handler,
flat tray line/flat prepper, she sustained an injury to her right shoulder and “rotary cuff,” which has
proven to be debilitating, preventing her from performing her work. He explained that on
December 16, 2015, appellant was assigned to perform her usual work of prepping mail in flat
trays containing, flats, magazines, etc., weighing anywhere between 10 to 40 pounds. Dr. Trovato
indicated that her mail was sent to her either on a conveyor belt, in a postal container or on a skid,
after she prepped the mail inside the tray, she then placed them either in a postal container or on a
skid. He indicated that this was a task that she has performed regularly during 20 years of
employment. Dr. Trovato explained that on this occasion, appellant “experienced deep, pulling
and lancinating pain which extended from her right shoulder to the right side of her neck and down
to her right arm.” He advised that she immediately discontinued her work and tried to rest in the
hope of relieving the pain. However, appellant had increasing edema and erythema and her
supervisor discontinued her workday. Dr. Trovato noted that appellant then took over-the-counter
anti-inflammatory medications “to no avail.” Furthermore, appellant reported being unable to
sleep as her symptoms continued to increase and the next day she went to see her chiropractor.
Additionally, Dr. Trovato indicated that she saw a neurologist, after her chiropractor obtained xrays. He related that the neurologist suggested a right shoulder MRI scan. Dr. Trovato confirmed
that it revealed a partial tear in the “rotary cuff” of the right shoulder. He also found that there
was no muscle atrophy or muscle edema and no acromial spur or acromial identified. Dr. Trovato
opined that these collective findings were consistent with appellant’s “report of an acute, pulling
injury to the right shoulder occurring under substantial pressure.” He explained that the MRI scan
testing performed on May 12, 2016, confirmed a partial tear to the soft tissue structure about the
right shoulder. Dr. Trovato opined that “[c]onsidering the extent of her injuries and our inability
to achieve an appropriate reduction in symptoms using typical treatment methods, cortisone and
physical therapy, [appellant], was determined to have a fair prognosis for recovery.”
By decision dated November 2, 2016, OWCP’s hearing representative affirmed it April 8,
2016 decision. He noted that Dr. Trovato did not mention that the MRI scan also showed
tendinopathy, which was suggestive of a preexisting condition of the shoulder prior to the
December 16, 2015 employment incident.

5

LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).11
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.12
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.13

4

Supra note 2.

5

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

John J. Carlone, 41 ECAB 354 (1989).

8

Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

13

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

6

Section 8101(2) of FECA14 provides that the term physician, as used therein, includes
chiropractors 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.15 Without a diagnosis of a
subluxation from x-ray, a chiropractor is not a physician under FECA and his or her opinion
on causal relationship does not constitute competent medical evidence.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted December 16, 2015 employment incident as the medical
evidence of record does not contain a reasoned explanation of how the specific employment
incident caused or aggravated appellant’s claimed right shoulder conditions.17 This is especially
important as appellant had preexisting conditions and a confirmed history of prior chiropractic
treatment as she indicated that she went to see her chiropractor on the date of the incident.
OWCP received a February 11, 2016 MRI scan of the cervical spine, read by Dr. Paruchuri,
which revealed a broad-based central disc herniation at C4-5, with severe thecal sac impingement
and severe lateral recess stenosis and bilateral foraminal impingement; a broad-based disc
herniation at C5-6 and thecal sac impingement with impingement upon the cervical cord and
severe lateral recess stenosis and bilateral foraminal impingement; left paracentral disc herniation
and left foraminal herniation at C6-7; with anterior thecal sac impingement on the left with lateral
recess stenosis and left foraminal impingement. Dr. Paruchuri also found right paracentral
foraminal herniation at C3-4 and direct impingement upon the right side of the cervical cord with
severe right lateral recess stenosis and right foraminal impingement. He further found a disc bulge
and bilateral foraminal herniation at C7-T1 and significant left lateral recess stenosis and left
foraminal impingement on the right. Dr. Paruchuri’s findings also included lateral recess stenosis
and right foraminal impingement with anterior thecal sac impingement. OWCP also received a
May 12, 2016 MRI scan of the right shoulder, read by Dr. Italiano, which revealed tendinopathy
and partial-thickness rotator cuff tear. The Board notes that these reports merely reported findings
and did not contain an opinion regarding the cause of the reported condition. The Board has held
that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.18 These reports,
therefore, are insufficient to establish appellant’s claim.

14

5 U.S.C. § 8101(2).

15

See 20 C.F.R. § 10.311.

16

Jay K. Tomokiyo, 51 ECAB 361 (2000).

17

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
18
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

7

OWCP received numerous treatment notes dating from December 18, 2015 to August 4,
2016 from Dr. DeSano, a chiropractor. Section 8101(2) of FECA provides that the term physician
includes chiropractors 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.19 In this case, with regard to a diagnosis of subluxation, Dr. DeSano diagnosed several
subluxations,20 including subluxations at: C3, C4, C5, C6, C7, T1, T2, and T3, which was
confirmed on x-ray of the spine. Thus, he is a physician as defined under FECA. However,
Dr. Sano did not provide a rationalized medical opinion which explained how the lifting of the tray
on December 16, 2015 caused all of these subluxations. It is especially important, as the abovenoted diagnostic tests reveal several conditions, which appear to be preexisting. Thus, while
Dr. DeSano provide multiple reports and explained why the diagnosed conditions were related to
the incident, his opinion is of limited probative value as he did not offer a rationalized opinion
regarding the subluxations. For example, in his April 14, 2016 report, he questioned why he could
not offer a diagnosis other than subluxation. Dr. Sano explained that he diagnosed subluxation
and also correctly diagnosed cervical disc and radiculopathy. He further explained that the CA17 and CA-20 forms both had small areas for filling in a diagnosis. Dr. DeSano indicated that he
placed the most severe diagnosis in the allowable space “(Which is the medical standard).” He
opined that to “only look at this limited form without looking at the diagnosis as provided on the
C4 and C4.2 medical reports as well as many submitted notes is once again ‘selectively choosing
what part of my records you wish to see’ and should be corrected.” In this April 20, 2016 report,
Dr. DeSano diagnosed segmental dysfunction of cervical region, muscle spasm of back, cervical
disc disorder with radiculopathy of the mid-cervical region, and other cervical disc displacement
of the mid-cervical region. He explained that his evaluation revealed an underlying right shoulder
injury with weakness. Dr. DeSano advised that the neck and right shoulder were affected by the
injury. However, his opinion is limited to subluxations and there is no rationale to explain how
they are related to the incident.21
In a March 10, 2016 report, Dr. Golzad noted that appellant was involved in a work-related
accident on December 16, 2015. He explained that on that date, appellant suffered injuries to her
neck and right shoulder after lifting a heavy tray. Dr. Golzad reviewed her diagnostic studies,
which revealed herniated discs at C4-5, C5-6, C6-7, and C7-T1 disc bulge and bilateral foraminal
herniations. He also found that her past medical history included: hypertension, diabetes, status
post lumbar laminectomy from L2 through S1; severe peripheral vascular disease with femoral
and carotid endarterectomy; arterial bypass of the right lower extremity; angioplasty of the right
leg; and torn meniscus of the right knee. Dr. Golzad examined appellant and diagnosed cervical
spine disorder and right shoulder disorder. In his April 7, 2016 report, Dr. Golzad diagnosed:
radiculopathy of the cervical region, other cervical disc displacement, map of the cervical region;
intervertebral disc disorders with radiculopathy; lumbosacral region; and other intervertebral disc
displacement, lumbar region. He advised that appellant could not return to work. However,
19

5 U.S.C. § 8101(2).

20

OWCP’s implementing federal regulations define subluxation to mean an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must be demonstrated on x-ray. See 20 C.F.R.
§ 10.5(bb).
21

Michelle Salazar, 54 ECAB 523 (2003).

8

Dr. Golzad merely provided diagnoses and did not offer any opinion on causal relationship. As
the Board has previously noted, 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.22
In an August 31, 2016 report, Dr. Trovato indicated that the diagnosed conditions were
causally related to the December 16, 2016 incident. He described her mail handler duties and
explained that she sustained an injury to her right shoulder and “rotary cuff,” which prevented her
from performing her work. Dr. Trovato also described what appellant was doing at work on
December 16, 2015. He explained that appellant was assigned to perform her usual work of
prepping mail in flat trays containing, flats, magazines, etc., weighing anywhere between 10 to 40
pounds. Dr. Trovato indicated that her mail was sent to her either on a conveyor belt, in a postal
container or on a skid, after she prepped the mail inside the tray, she then placed them either in a
postal container or on a skid. He indicated that this was a task that she has performed regularly
during 20 years of employment and that on this occasion, appellant “experienced deep, pulling and
lancinating pain which extended from her right shoulder to the right side of her neck and down to
her right arm.” Dr. Trovato confirmed that right shoulder MRI scan revealed a partial tear in the
“rotary cuff” of the right shoulder. He opined that these collective findings were consistent with
appellant’s “report of an acute, pulling injury to the right shoulder occurring under substantial
pressure.” The Board notes that Dr. Trovato did not note her preexisting conditions and explain
how she tore her rotator cuff. In light of her numerous conditions, his conclusion is not sufficiently
rationalized. To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.23 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.24 The Board finds that Dr. Trovato’s report is of
limited probative value.
Because the medical reports submitted by appellant do not address how the December 16,
2015 activities at work caused or aggravated a right shoulder condition, these reports are of limited
probative value and are insufficient to establish that the December 16, 2015 employment incident
caused or aggravated a specific injury.25
On appeal appellant asserts that the claims examiner’s opinion was biased and his judgment
was clouded based on a previous decision. However, as found above, the medical evidence does
22

Supra note 14; K.W., 59 ECAB 271 (2007).

23

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

24

James Mack, 43 ECAB 321 (1991).

25

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

9

not explain how the December 16, 2015 activities at work caused or aggravated a right shoulder
condition and was insufficient to establish that the December 16, 2015 employment incident
caused or aggravated a specific injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted December 16, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, ATLANTIC BRANCH,
Coral Springs, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-2295
Issued: June 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 13, 2010 appellant, through her attorney, filed a timely appeal of the
August 12, 2010 merit decision of the Office of Workers’ Compensation Programs denying her
claim for disability compensation. Pursuant to the Federal Employees’ Compensation Act1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she was disabled from October 15,
2008 to December 10, 2009 due to her September 18, 2008 employment injury.
FACTUAL HISTORY
The Office accepted that on September 18, 2008 appellant, then a 45-year-old casual
clerk, sustained a contusion of the left wrist when a pin from the top of a door fell onto the wrist.
The employing establishment stated that she resigned on October 17, 2008.
1

5 U.S.C. § 8101 et seq.

On December 17, 2009 appellant filed a claim for compensation (Form CA-7) for the
period October 15, 2008 through December 10, 2009. On the CA-7 form the employing
establishment stated that she worked on October 15, 2008 and that October 16, 2008 was her day
off work. In another Form CA-7 dated December 17, 2009, the employing establishment stated
that appellant was out for personal reasons and that her position continued to be available until
she resigned.
A September 18, 2008 medical report from Dr. Edwin Kollinger, an emergency medicine
physician, advised that appellant sustained a work-related left wrist contusion on that date. He
released her to return to light duty as of that date.
By letter dated January 8, 2010, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested medical evidence showing that she was
totally disabled from her employment during the entire claimed period. Appellant was afforded
30 days to submit the requested evidence. She did not respond.
In a February 16, 2010 decision, the Office noted that appellant had not responded to the
January 8, 2010 letter and denied her claim for total disability compensation for the period
October 15, 2008 through December 10, 2009.
By letter dated February 19, 2010, appellant, through counsel, requested a telephonic
hearing with an Office hearing representative.
Appellant submitted medical records from Dr. Laszlo J. Mate, an attending Boardcertified neurologist. In a February 10, 2010 report, Dr. Mate obtained a history of the
September 18, 2008 employment injury and her medical treatment, social and family
background. He noted appellant’s left arm, wrist and hand symptoms and sleeping difficulties.
Dr. Mate listed his findings on physical and neurological examination of the upper and lower
extremities. He advised that appellant most likely had radial neuropathy and possible complex
regional pain syndrome (CRPS) although there were no clear cut signs of atrophy of the skin or
nails and the peripheral pulses were good bilaterally. Dr. Mate recommended diagnostic testing
of the upper extremities. In a February 10, 2010 prescription, he ordered an x-ray of appellant’s
left forearm. In a February 24, 2010 report, Dr. Mate advised that an electromyogram/nerve
conduction study was unremarkable. He reiterated that appellant likely had CRPS. Also, on
February 24, 2010 Dr. Mate prescribed physical therapy to treat her CRPS of the left upper
extremity. In an April 14, 2010 report, he advised that appellant’s examination was
unremarkable and her condition remained unchanged. In a May 13, 2010 report, Dr. Mate
indicated that appellant had a history of left upper extremity pain. He advised that physical
therapy aggravated her condition. Dr. Mate stated that it was hard to discern if appellant really
had limited movement in her thumb as found by a physical therapist or whether she was
describing severe pain. Appellant was extremely tender even to light touch so it was hard for
Dr. Mate to assess whether there was any underlying weakness. Dr Mate advised that a prior
magnetic resonance imaging (MRI) scan of her left forearm was benign apart from swelling. In
prescriptions dated May 13, 2010, he ordered an MRI scan of appellant’s left wrist and referred
her to a hand surgeon.

2

In a February 11, 2010 left forearm x-ray report, Dr. Charles C. Cole, III, a Boardcertified radiologist, found no evidence of fracture or bony abnormality. There appeared to be
some soft tissue swelling that correlated with a physical examination.
Reports from appellant’s physical therapists addressed the treatment of appellant’s left
arm, wrist and hand from March 29 to May 4, 2010.
In a June 1, 2010 left wrist MRI scan report, Dr. Bruce A. Rodan, a Board-certified
radiologist, identified small joint effusions and ulnar negative variance. He advised that the
examination was otherwise unremarkable.
In a partially illegible left upper extremity MRI scan report dated March 3, 2010,
Dr. Larry Burk, a Board-certified radiologist, advised that appellant had mild edema of the
pronator quadratus muscle in the distal forearm. There were no other forearm muscle
abnormalities. Dr. Burk stated that this finding was nonspecific of undetermined chronicity. He
advised that the diagnosed condition may be related to the September 18, 2008 employment
injury and that the pronator quadratus muscle could sometimes be affected by anterior
interosseous nerve syndrome.
At a June 18, 2010 hearing, appellant contended that, following her September 18, 2008
employment injury, she did not miss any time from work until she was fired by the employing
establishment in October 2008. Her employment was terminated because she worked too
slowly. Prior to her termination, appellant performed her regular work duties despite
experiencing left hand symptoms. She indicated that her work hours were subsequently
decreased because work was slow.
In an August 12, 2010 decision, an Office hearing representative affirmed the
February 16, 2010 decision. She found that the medical evidence was insufficient to establish
that appellant was totally disabled during the claimed period due to her accepted condition.
LEGAL PRECEDENT
With respect to a claimed period of disability, an employee has the burden of establishing
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.2 The term disability is defined as the incapacity because of an
employment injury to earn the wages the employee was receiving at the time of the injury, i.e., a
physical impairment resulting in loss of wage-earning capacity.3
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.4 The medical evidence required to establish
2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

a period of employment-related disability is rationalized medical evidence.5 Rationalized
medical evidence is medical evidence based on a complete factual and medical background of
the claimant, of reasonable medical certainty, with an opinion supported by medical rationale.6
The Board, however, will not require the Office to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation is
claimed.7 To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.8
ANALYSIS
The Office accepted that appellant sustained a contusion of the left wrist in the
performance of duty on September 18, 2008. Appellant claimed compensation for disability
from October 15, 2008 to December 10, 2009. On February 16 and August 12, 2010 the Office
denied compensation for the claimed period of disability. Appellant has the burden of
establishing by the weight of the substantial, reliable and probative evidence, a causal
relationship between her claimed disability and the accepted condition.9 The Board finds that
she did not submit sufficient medical evidence to establish employment-related disability for the
period claimed due to her accepted injury.
Reports from appellant’s attending physician, Dr. Mate, are insufficient to establish
appellant’s claim. He listed his findings on physical and diagnostic examination of the upper
extremities. Dr. Mate’s finding that, appellant “most likely” had radial neuropathy and
“possible” CRPS is speculative in nature and, thus, insufficient to establish appellant’s claim.10
Moreover, his reports offer no opinion on whether she was totally disabled during the claimed
period due to the accepted employment injury. Similarly, Dr. Mate’s prescriptions which
ordered an x-ray and MRI scan of appellant’s left forearm and wrist and physical therapy failed
to address whether she was totally disabled during the claimed period due to the accepted injury.
Medical reports not containing rationale on causal relationship are of limited probative value.11
The Board finds that Dr. Mate’s reports and prescriptions are insufficient to establish appellant’s
burden of proof.
Dr. Kollinger’s report found that appellant sustained an employment-related left wrist
contusion on September 18, 2008 and released her to perform light-duty work. Dr. Kollinger did
not address whether she was totally disabled during the claimed period due to the accepted
employment injury. The diagnostic test reports from Dr. Cole, Dr. Rodan and Dr. Burk also did
5

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

6

Leslie C. Moore, 52 ECAB 132 (2000).

7

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

8

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, supra note 4.

9

Alfredo Rodriguez, 47 ECAB 437 (1996).

10

L.R. (E.R.), 58 ECAB 369 (2007); Kathy A. Kelley, 55 ECAB 206 (2004).

11

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

4

not address whether appellant was totally disabled during the claimed period due to the accepted
injury. The Board finds that these reports are insufficient to establish appellant’s claim.
The reports from appellant’s physical therapists are of no probative value because a
physical therapist is not a physician as defined under the Act.12 The Board finds, therefore, that
these reports are insufficient to establish appellant’s claim.
Appellant has failed to submit rationalized medical evidence establishing that her
disability from October 15, 2008 to December 10, 2009 resulted from residuals of her accepted
employment-related contusion of the left wrist.
Appellant contended that she was unjustly terminated because her employment injury
prevented her from performing her job. However, the employing establishment stated that she
resigned from her position on October 17, 2008. It further stated that appellant worked on
October 15, 2008 and was on a scheduled day off work on October 16, 2008. The employing
establishment advised that her position was still available, contrary to her testimony at the
hearing that it reduced her hours to work. The Board finds that there is no evidence that
appellant was terminated due to her physical inability to perform her assigned duties or that she
stopped work due to residuals of her accepted condition. The medical evidence submitted by her
does not establish any employment-related disability. Accordingly, the Board finds that she has
failed to establish that she had any employment-related disability during the claimed period.
On appeal, appellant’s attorney contended, without explanation, that the Office’s decision
was contrary to fact and law. For reasons stated above, the Board finds that appellant did not
submit sufficient evidence establishing her entitlement to disability compensation for the claimed
period.
CONCLUSION
The Board finds that appellant has failed to establish that she was disabled from
October 15, 2008 to December 10, 2009 due to her September 18, 2008 employment injury.

12

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

5

ORDER
IT IS HEREBY ORDERED THAT the August 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6