United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Perry Point, MD, Employer
__________________________________________

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

Docket No. 15-1583
Issued: February 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 16, 2015 appellant, through counsel, filed a timely appeal from an April 7, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established disability for the period July 26 to
December 17, 2011 causally related to her March 23, 2009 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a December 23, 2014 decision, the
Board set aside a January 9, 2014 OWCP decision and remanded the case for further
development of the medical evidence. The Board found that a conflict existed in the medical
evidence as to whether lumbar surgery was medically necessary to treat the effects of her
March 23, 2009 employment injury. OWCP also determined that the medical evidence required
further development as to whether appellant was unable to work modified duty from July 26 to
December 17, 2011 as a result of her accepted injury. The facts and circumstances as set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are
summarized below.
OWCP accepted that on March 23, 2009 appellant, then a 44-year-old part-time,
intermittent licensed practical nurse, slipped and fell on a wet floor at work. Her claim was
accepted for left side herniated disc at L4-L5 and associated radiculopathy. Appellant received
disability wage-loss compensation on March 24, 2009 and from May 12 to 20, 2009.3 She began
to work part-time modified duty on May 21, 2009.
In a February 8, 2011 work status note, Dr. Hugo Benalcazar, a Board-certified
neurological surgeon, indicated that appellant had been under his professional care for lumbar
degenerative disc disease. He noted that appellant could work with restrictions of no pushing,
pulling, or lifting over 10 pounds and no pushing, pulling, lifting, standing, stooping, or bending
for more than 45 minutes.
On February 21, 2011 appellant returned to full-time work with restrictions. On July 25,
2011 she was separated from federal employment. Appellant filed various disability
compensation claims for the period July 26 to December 17, 2011.4
Appellant continued to be treated by Dr. Benalcazar. In an August 22, 2011 report, he
related appellant’s complaints of persistent pain in the lower back and gluteal area since a
March 23, 2009 injury when she fell down at work. Dr. Benalcazar noted that appellant’s pain
initially improved with physical therapy but had now worsened. Upon examination, he observed
normal lumbar spine evaluation and diagnosed lumbar degenerative disc disease, lumbar disc
displacement, and cervical degenerative disc disease with myelopathy. In a November 17, 2011
work status note, Dr. Benalcazar indicated that appellant was unable to work from November 17
to December 17, 2011.
In a December 15, 2011 narrative report, Dr. Henry A. Spindler, Board-certified in
physical medicine and rehabilitation, related that appellant complained of neck and low back
2

Docket No. 14-1148 (issued December 23, 2014).

3

Appellant also worked several other part-time jobs in addition to working for the employing establishment.

4

The record reveals that appellant also filed a September 30, 2011 disability claim for the period January 1 to
June 28, 2011. Appellant indicated that she worked light duty at a school. As OWCP has not issued a formal
decision regarding disability compensation during this period, this claim for disability for the period January 1 to
June 28, 2011 is not before the Board. See 5 U.S.C. § 501.2(c).

2

pain as a result of a March 23, 2009 slip-and-fall injury at work. Upon examination, he reported
that appellant complained of pain on the left at 45 degrees in the sciatic distribution with straight
leg raising test. Sensation appeared intact and strength was normal. Dr. Spindler noted that
diagnostic findings were compatible with a left L5 radiculopathy. In a medical status form, he
noted that appellant was unable to work from December 14, 2011.
In a decision dated January 20, 2012, OWCP denied appellant’s claim for disability
compensation for the period July 26 to December 17, 2011. It determined that the evidence
failed to provide medical rationale sufficient to explain that any disability was due to the
March 23, 2009 employment injury.
By letter dated January 27, 2012 appellant, through counsel, requested a telephone
hearing, before an OWCP hearing representative, which was held on April 9, 2012. She asserted
that she had been unable to work since July 28, 2011 as a result of her accepted work injury.
On March 13, 2012 OWCP referred appellant’s claim to Dr. Willie Thompson, a Boardcertified orthopedic surgeon, for a second-opinion examination to determine the nature and
extent of appellant’s disability. In an April 13, 2012 report, he reviewed the medical record,
including the statement of accepted facts (SOAF), and noted that appellant’s claim was accepted
for herniated lumbar disc on the left side at L4-L5. Dr. Thompson provided findings on
examination and opined that based on the medical records and his evaluation, appellant suffered
soft tissue injuries to the lower back in the hip region. He explained that there were no findings
on physical examination to support that appellant had a herniated disc and no objective evidence
to indicate the need to place any physical limitations on appellant. Dr. Thompson found no
continued effects of the March 2009 work injury and opined that she could return to work
without restrictions immediately.
By decision dated July 9, 2012, an OWCP hearing representative affirmed the
January 20, 2012 denial decision.
On August 10, 2012 OWCP determined that a conflict in medical opinion existed
regarding appellant’s current condition and the extent of her work-related disability. It referred
her to Dr. Raymond D. Drapkin, a Board-certified orthopedic surgeon, as an impartial medical
examiner to resolve the conflict. In a September 24, 2012 report, Dr. Drapkin reviewed
appellant’s history and diagnosed lumbar disc protrusion at L4-L5. He opined that appellant’s
disc protrusion resulted from the March 23, 2009 employment injury. Dr. Drapkin reported that
appellant was able to work and was not a capable candidate for surgery.
In a February 26, 2013 report, Dr. Benalcazar related appellant’s continued complaints of
low back and leg pain since a March 23, 2009 work injury. He reported that the low back pain
caused her to lose days at work and eventually stop work completely in 2011. Dr. Benalcazar
opined that appellant’s fall at work was the cause of her low back and leg pain. He noted that
appellant would require a lumbar fusion surgery at L4-L5, including discectomy and
decompression in order to have any meaningful recovery. On March 5, 2013 Dr. Benalcazar
requested authorization for lumbar spine fusion surgery.

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On July 9, 2013 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel requested that OWCP accept as timely his reconsideration request by
enclosing a March 5, 2013 reconsideration request OWCP had not received.
OWCP referred appellant’s claim to Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and district medical adviser (DMA), to determine whether surgery was medically
appropriate and causally related to the March 23, 2009 work injury. In an August 10, 2013
report, he reviewed appellant’s medical records and opined that there were no objective clinical
findings to establish that low back surgery would improve appellant’s condition.
In a decision dated August 19, 2013, OWCP denied modification of the July 9, 2012
decision. It determined that the weight of the medical evidence rested with Dr. Drapkin’s
impartial medical report.
On October 11, 2013 OWCP received appellant’s request for reconsideration.
By decision dated January 9, 2014, OWCP denied modification of its August 19, 2013
decision.
Appellant filed an appeal before the Board, which it docketed as No. 14-1148. By
decision dated December 23, 2014, the Board remanded appellant’s disability claim for further
development of the medical evidence. The Board found that OWCP’s referral physicians,
Drs. Thompson, Drapkin, and Berman failed to address the issue of whether appellant was
disabled from work beginning July 2011 as a result of her March 23, 2009 employment injury.
The Board further noted that a conflict in medical opinion existed between Dr. Berman, OWCP’s
referral physician, and Drs. Benalcazar and Valentino, appellant’s treating physicians, regarding
whether lumbar surgery was medically necessary to treat the effects of appellant’s accepted work
injury.5
Following the Board’s decision, OWCP referred appellant to Dr. Chad Rutter, a Boardcertified orthopedic surgeon, for an impartial medical examination to opine as to whether
appellant continued to suffer residuals of her March 23, 2009 employment injury and whether
the recommended lumbar surgery was necessary to treat the effects of her work injury.6
In a March 2, 2015 referee medical report, Dr. Rutter reviewed appellant’s medical
records and accurately described the March 23, 2009 employment injury. He related that
appellant currently complained of pain in the low back and right buttocks and numbness in both
feet. Upon examination of appellant’s lumbar spine, Dr. Rutter observed pain across the lower
lumbar area with palpation, both in the midline and sacroiliac (SI) regions bilaterally, and pain
into the trochanteric region as well. He noted that appellant was able to forward flex reaching
down just past the knee level before experiencing increased back pain. Sagittal alignment of the
cervical, thoracic, and lumbar areas was normal. Straight leg raise testing on the left
demonstrated left buttocks, thigh, and calf pain and testing on the right revealed reproduced
5

Docket No. 14-1148 (issued December 23, 2014).

6

The record contains a ME023 printout and a bypass history report.

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minimal right-sided calf pain. Dr. Rutter observed no pain to palpation throughout the lower
extremities and no asymmetries from the right to the left leg.
Dr. Rutter diagnosed foraminal disc herniation L4-L5 on the left, degenerative disc
changes of the L4-L5 level, and left leg radiculopathy. He reported that based on his review of
appellant’s medical records, the disc herniation in the foraminal position at the L4-L5 on the left
was related to appellant’s March 23, 2009 employment injury. Dr. Rutter also noted that
appellant’s left leg radiculopathy was caused by the disc herniation. He indicated that appellant
had some minor improvement through treatment and epidural injections, but she could not
tolerate activities without medication. Dr. Rutter reported that despite the pain, appellant would
be able to function in the workplace. He explained that he completed a work capacities
evaluation of appellant’s musculoskeletal conditions and determined that appellant could sit up
to three hours, walk up to two hours, and stand up to one hour a day. Dr. Rutter also limited
appellant to twisting, bending, stooping, operating a motor vehicle, and pushing, pulling, and
lifting up to 10 pounds for 2 hours a day. He opined that the recommended discectomy at the
L4-L5 level was necessary to treat the effects of appellant’s March 23, 2009 employment injury
and would be an appropriate type of treatment.
By letter dated March 9, 2015, OWCP advised Dr. Rutter to provide a supplemental
report addressing whether appellant was totally or partially disabled as a result of her accepted
lumbar herniated disc during the period July 26 to December 17, 2011. It informed Dr. Rutter
that at the time appellant stopped work on July 26, 2011 she was working modified duty with
restrictions of lifting, pushing, and pulling up to 10 pounds.
On March 23, 2015 OWCP authorized L4-L5 discectomy and fusion surgery for
appellant.
In a supplemental report dated March 19, 2015, Dr. Rutter opined that, based on a review
of appellant’s medical records and the March 2, 2015 examination, appellant would have been
able to work between July 26 to December 17, 2011 with restrictions against lifting, pushing, or
pulling over 10 pounds.
In a decision dated April 7, 2015, OWCP affirmed, but modified the August 19, 2013
decision. It determined that lumbar surgery was medically necessary to treat the effects of
appellant’s March 23, 2009 employment injury, but denied appellant’s claim for disability
compensation for the period July 26 to December 17, 2011 finding that the medical evidence
failed to establish that appellant was unable to work light duty during that time period.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that she was disabled for work as a result of the accepted
employment injury.
Whether a particular injury causes an employee to become disabled for work and the
duration of that disability are medical issues that must be proved by a preponderance of reliable,

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probative, and substantial medical opinion evidence.7 Findings on examination and a physician’s
opinion, supported by medical rationale, are needed to show how the injury caused the employee
disability for her particular work.8 For each period of disability claimed, the employee must
establish that she was disabled for work as a result of the accepted employment injury. The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify her disability and entitlement to
compensation.9
ANALYSIS
OWCP accepted appellant’s claim for left side herniated disc at L4-L5 and associated
radiculopathy as a result of the March 23, 2009 employment injury. Appellant received
disability compensation for short periods of time. On February 9, 2011 she began modified
work, pursuant to Dr. Benalcazar’s restrictions. On July 25, 2011 appellant stopped work. She
filed various disability compensation claims for the period July 26 to December 17, 2011.
OWCP denied appellant’s claims finding insufficient medical evidence to establish that she was
unable to work light duty for the period July 26 to December 17, 2011 as a result of the
March 23, 2009 employment injury. The Board finds that appellant failed to meet her burden of
proof to establish total disability for the claimed period due to the accepted lumbar injury.
Appellant was treated by Dr. Benalcazar. In his February 8, 2011 work status note,
Dr. Benalcazar opined that appellant could work with restrictions of no pushing, pulling, or
lifting over 10 pounds and no pushing, pulling, lifting, standing, stooping, or bending for more
than 45 minutes. In an August 22, 2011 report, he related appellant’s complaints of persistent
pain in the lower back and gluteal area since a March 23, 2009 work injury when she fell down
at work. Upon examination, Dr. Benalcazar observed normal lumbar spine evaluation and
diagnosed lumbar degenerative disc disease, lumbar disc displacement, and cervical degenerative
disc disease with myelopathy. In a November 17, 2011 work status note, he indicated that
appellant was unable to work from November 17 to December 17, 2011. The Board notes that,
although Dr. Benalcazar recommended that appellant not work from November 17 to
December 17, 2011, he failed to provide any rationale as to why she could not work during that
period nor did he opine that any disability was due to her accepted lumbar injury. Because
Dr. Benalcazar failed to provide any medical rationale for his conclusion, his opinion is of
diminished probative value.10 Furthermore, the Board notes that Dr. Benalcazar did not address
disability beginning July 26, 2011. Because Dr. Benalcazar’s reports fail to explain, based on
medical rationale, how appellant was unable to work modified duty from July 26 to
December 17, 2011 as a result of her accepted injury, his opinion is insufficient to establish
appellant’s claim.
7

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

8

Dean E. Pierce, 40 ECAB 1249 (1989).

9

Amelia S. Jefferson, supra note 7.

10

S.B., Docket No. 13-1162 (issued December 12, 2013).

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In the December 15, 2011 narrative report, Dr. Spindler noted appellant’s March 23,
2009 slip-and-fall injury at work. Upon examination, he reported that appellant complained of
pain on the left at 45 degrees in the sciatic distribution with straight leg raising test. Sensation
appeared intact and strength was normal. Dr. Spindler noted that diagnostic findings were
compatible with left L5 radiculopathy. In a medical status form, he noted that appellant was
unable to work from December 14, 2011, but he did not address the relevant issue of disability
from employment for the period July 26 to December 17, 2011. Thus, Dr. Spindler’s reports are
of diminished probative value.11
The Board finds that the evidence fails to establish that appellant was disabled for the
claimed period because of her accepted lumbar injury. Moreover, the March 19, 2015 report of
Dr. Rutter noted that appellant was able to work modified duty from July 26 to
December 17, 2011.12 Appellant failed to submit any medical reports from a physician who, on
the basis of a complete and accurate factual and medical history, concluded that she was disabled
for the period July 26 to December 17, 2011 due to her March 23, 2009 employment injury.
Accordingly, she has failed to meet her burden of proof to establish an employment-related
disability and has not proven wage-loss compensation for the claimed period.
On appeal, appellant’s counsel alleges that Dr. Rutter’s opinion was of diminished
probative value because it was based on an inaccurate history. Specifically, he asserted that
appellant stopped working as of January 2011, and not July 26, 2011. The record, however,
contains a form from the employing establishment to OWCP which noted that on July 25, 2011
appellant was voluntarily terminated from employment. In addition, during the April 9, 2012
telephone conference she asserted that she was unable to work since July 28, 2011 as a result of
her accepted work injury. Appellant, therefore, has failed to demonstrate that Dr. Rutter’s
opinion was based on an inaccurate background.
Counsel further asserts on appeal that OWCP abused its discretion by not issuing a
de novo decision as required by the Board’s December 23, 2014 decision.13 The Board notes,
however, that OWCP properly evaluated the evidence on record and reviewed the merits of
appellant’s claim. Accordingly, the Board does not find that OWCP abused its discretion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

11

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

12

The Board notes that Dr. Rutter was selected as an impartial medical specialist to resolve the conflict in
medical opinion regarding authorization for low back surgery. As no conflict in medical opinion existed about
appellant’s claim for disability for the period July 26 to December 17, 2011, Dr. Rutter’s opinion regarding the
disability issue is one of a second-opinion examiner.
13

Counsel also alleged that OWCP never adjudicated appellant’s claims for wage-loss compensation claim for the
period January 1 to June 28, 2011. As OWCP has not issued a final decision regarding this issue, the Board does not
have jurisdiction over appellant’s alleged disability from January 1 to June 28, 2011.

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CONCLUSION
The Board finds that appellant has failed to establish disability for the period July 26 to
December 17, 2011 causally related to her March 23, 2009 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket No. 19-1855
Issued: March 10, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 6, 2019 appellant filed a timely appeal from a July 30, 2019 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 30, 2019 decision, OWCP received additional evidence. However, the
Boards Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation, effective July 30, 2019, as she no longer had disability causally related to the
accepted December 2, 1999 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are as follows.
On September 14, 2000 appellant, then a 40-year-old claims examiner, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome due to factors of her federal employment, including repetitive work duties. OWCP
assigned the claim OWCP File No. xxxxxx040 and accepted it for bilateral carpal tunnel syndrome
and paid wage-loss compensation benefits. Appellant stopped work on March 6, 2001. On
April 24, 2001 she was released to return to work four hours per day with restrictions, and on
May 7, 2001 she was released to work eight hours per day with restrictions.
On March 14, 2002 appellant filed an occupational disease claim for depression due to
being forced to work outside of her medical restrictions and being unable to meet her performance
standards. At the time she filed her claim, she was performing a modified position as a result of
previous work-related injuries under OWCP File No. xxxxxx040. OWCP developed that claim
under OWCP File No. xxxxxx176. On May 10, 2005 OWCP accepted that claim for depressive
disorder. It administratively combined OWCP File Nos. xxxxxx040 and xxxxxx176.
On August 24, 2004 appellant filed a claim for an occupational disease (Form CA-2)
alleging that she developed bilateral cubital tunnel syndrome, neck, bilateral shoulder, and low
back pain as a result of performing repetitive duties. OWCP assigned that claim OWCP File No.
xxxxxx374 and later combined it with OWCP File Nos. xxxxxx040 and xxxxxx176.
Appellant came under the treatment of Dr. Olayinka Ogunro, a Board-certified orthopedist,
beginning in 2007. On December 8, 2015 Dr. Ogunro continued to treat her for bilateral hand
numbness and paresthesia. He diagnosed bilateral carpal tunnel syndrome. Dr. Ogunro noted that
appellant had not worked since September 5, 2001 and was capable of working with restrictions
of typing no more than four hours a day. He further noted that she could use a “voice activated
machine to accommodate restrictions in an eight-hour workday.”
Appellant continued to receive medical treatment from Dr. Ogunro. In a report dated
December 29, 2016, Dr. Ogunro noted that she still complained of numbness in her hands, but she
did not wish to undergo surgical treatment. He reviewed appellant history and provided
3

Docket No. 17-0990 (issued June 12, 2018); Docket No. 08-1043 (issued April 8, 2009); Docket No. 06-1309 &
06-1153 (issued June 14, 2007); Docket No. 05-1722 (issued July 11, 2006); Docket No. 05-1623 (issued April 3,
2006); Docket No. 04-1197 (issued April 13, 2005); Docket No. 03-1592 (issued August 13, 2004); Docket No.
03-1447 (issued December 4, 2003); Docket No. 02-0127 (issued August 2, 2002).

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examination findings similar to his previous reports. Dr. Ogunro diagnosed bilateral carpal tunnel
syndrome. He noted that “this patient stated that [appellant] can do her work, but with a voice
activated system since this will not bother her wrist.” Dr. Ogunro recommended follow-up in one
year.
By letter dated February 7, 2017, OWCP proposed to reduce appellant’s compensation,
based on her capacity to earn wages as a customer complaint clerk, Dictionary of Occupational
Titles 241.367.014.
By decision dated March 13, 2017, OWCP reduced appellant’s wage-loss compensation,
effective March 14, 2017, finding that appellant had 52 percent wage-earning capacity based on
her capacity to earn wages as a customer complaint clerk.
On April 5, 2017 appellant appealed to the Board.
By decision dated June 12, 2018, the Board affirmed OWCP’s March 13, 2017 decision.
The Board found that OWCP met its burden of proof to reduce appellant’s compensation benefits
based on her capacity to earn wages in the selected position of customer complaint clerk.4
On January 7, 2019 OWCP requested that appellant respond to a series of questions from
her physician providing objective clinical findings, test results, and medical rationale. It afforded
her 30 days to submit the necessary evidence.
In a report dated January 17, 2019, Dr. Ogunro noted that appellant presented for a followup evaluation for bilateral carpal tunnel syndrome. He reported last seeing her in 2017 at which
time she was released to work with restrictions involving data entry for four hours a day and other
activities for the remaining four hours a day with the use of a voice activated system. Dr. Ogunro
related that appellant’s symptoms were limited to occasional numbness and tingling in both hands.
Findings on physical examination on the bilateral hands revealed negative Tinel’s sign, diminished
sensation over the median distribution, and negative Phalen’s test. Dr. Ogunro advised that
appellant could return to regular-duty work without restrictions.
On January 24, 2019 appellant reported that on January 17, 2019 Dr. Ogunro’s released
her to work without restrictions because her accepted conditions resolved. She related that due to
the change in her condition she would like to return to her date-of-injury position as an OWCP
claims examiner in the Dallas district office.
On January 30, 2019 Dr. Ogunro reported last seeing appellant on September 21, 2017 for
pain and numbness in the right hand due to bilateral carpal tunnel syndrome. Appellant related
that her finger tips were most severely affected, but otherwise she had full use of her right hand
and left hand with only occasional numbness and tingling. Dr. Ogunro diagnosed bilateral carpal
tunnel syndrome and opined that it was causally related to her work due to continuous data entry
throughout the working period and over several years. He found that the work-related symptoms
of carpal tunnel syndrome almost completely resolved and the reason for not achieving total

4

Supra note 3.

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resolution was because appellant was treated nonsurgically. Dr. Ogunro again advised that at this
time she could return to work without restrictions and periodic use of the splints.
In a March 1, 2019 letter, OWCP, relying on Dr. Ogunro’s January 17, 2019 report,
notified appellant that it proposed to terminate her wage-loss compensation as her accepted
condition had ceased without residuals. It afforded her 30 days to submit additional evidence or
argument.
In a letter dated March 5, 2019, appellant responded to the proposed notice to terminate
her wage-loss compensation benefits and asserted that OWCP only referenced Dr. Ogunro’s
January 17, 2019 report and did not mention his January 30, 2019 report. She asserted that the
January 30, 2019 report was significant because it noted the diagnosed condition of bilateral carpal
tunnel syndrome and addressed causal relationship noting that her symptoms have “almost”
completely resolved except for occasional numbness and tingling. The report further relayed that
appellant did not achieve complete resolution because she was treated nonsurgically. She
indicated that the employing establishment made a job offer on November 7, 2017 and she inquired
as to whether the position was still available.
By decision dated July 30, 2019, OWCP terminated appellant’s wage-loss compensation,
effective the same date. It found that the weight of the evidence was represented by her treating
physician Dr. Ogunro.
LEGAL PRECEDENT
According to FECA,5 once OWCP accepts a claim and pays compensation, it has the
burden of proof to justify termination or modification of an employee’s benefits.6 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no longer
related to the employment.7 Its burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.8 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.9 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.10

5

Supra note 1.

6

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

7
A.G., Docket No. 18-0749 (issued November 7, 2018); see I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB
734 (2003).
8

R.R., Docket No. 19-0173 (issued May 2, 2019); Del K. Rykert, 40 ECAB 284 (1988).

9

L.W., Docket No. 18-1372 (issued February 27, 2019); Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

R.P., Docket No. 17-1133 (issued January 18, 2018); A.P., Docket No. 08-1822 (issued August 5, 2009).

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ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits, effective July 30, 2019, as she no longer had disability causally related to
the accepted December 2, 1999 employment injury.
In his comprehensive reports dated January 17 and 30, 2019, Dr. Ogunro, appellant’s
treating physician, noted his review of the medical record and treatment of her work-related
conditions. He described her work duties including continuous data entry over several years which
caused her bilateral carpal tunnel syndrome. Appellant’s physical examination findings included
negative Tinel’s sign, diminished sensation over the median distribution, and negative Phalen’s
test. Dr. Ogunro noted that her symptoms were only occasional numbness and tingling in both
hands otherwise she had full use of her right hand and left hand. He opined that appellant had no
ongoing residuals or disability as a result of the accepted bilateral carpal tunnel syndrome as the
accepted conditions had resolved and she was clinically stable. Dr. Ogunro further opined that she
had no physical limitations due to the accepted bilateral carpal tunnel syndrome and that she could
work in a full-time, full-duty capacity. He concluded that the work-related symptoms of carpal
tunnel syndrome almost completely resolved and the reason for not achieving total resolution was
because appellant was treated nonsurgically. Dr. Ogunro found that she could return to work
without restrictions and periodic use of the splints.
The Board finds that OWCP properly accorded the weight of medical opinion to
Dr. Ogunro, appellant’s treating physician, who reported that appellant no longer had residuals or
disability as a result of the accepted bilateral carpal tunnel syndrome. Dr. Ogunro based his
opinion on a proper factual and medical history and physical examination findings and provided
medical rationale for his opinion that she did not have residuals or work limitations as a result of
the employment injury. Accordingly, OWCP properly relied on his report in terminating
appellant’s wage-loss compensation benefits.11
As the evidence of record establishes that appellant no longer has disability due to her
accepted employment conditions, the Board finds that OWCP properly terminated her wage-loss
compensation benefits, effective July 30, 2019.
On appeal appellant asserts that OWCP’s termination decision was premature because it
did not determine if the job offer was still available, there was a discrepancy as to how the medical
evidence was applied, and a question as to whether the loss of wage-earning capacity decision
should be recalculated. The Board finds her arguments without merit.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits, effective July 30, 2019, as she no longer had disability causally related to
her accepted employment injury.

11

R.B., Docket No. 19-0204 (issued September 6, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Halfmoon Bay, CA, Employer
)
___________________________________________ )
A.M., Appellant

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

Docket No. 07-1819
Issued: April 21, 2008

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 June 28, 2007 appellant filed a timely appeal from an April 4, 2007 Office of
Workers’ Compensation Programs’ merit decision which affirmed the denial of appellant’s claim
for an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed an emotional condition while in the performance of duty.
FACTUAL HISTORY
On April 8, 2008 appellant, then a 44-year-old clerk, filed an occupational disease claim
alleging stress due to being understaffed and overworked. She alleged that, on April 7, 2005, she
worked a total of 12 minutes, from 8:30 a.m. to 8:42 a.m., at the retail window and assisted 10
customers without the help of Nancy Ellison, the relief clerk. After appellant finished serving
customers, she went to the workroom floor where her coworker, Ms. Ellison, nagged her. She

informed Barbara Massey, the postmaster, of the incident. Ms. Massey allegedly stated in an
inappropriate tone “I’ll deal with you later.” Appellant became sick and asked to leave the
premises. Ms. Massey yelled loudly at her. Appellant stopped work on April 7, 2005.
The employing establishment submitted a statement from Ms. Massey dated
April 11, 2005. Ms. Massey advised that, on April 7, 2005, appellant was working the retail
window by herself and a line of customers developed. Appellant rang the bell for assistance;
however, her coworkers did not hear the bell. Ms. Massey indicated that appellant subsequently
approached her and yelled at her in a loud manner. She advised appellant that she was acting
inappropriately and she would deal with her later. Ms. Massey indicated that appellant twice
ignored her request to speak with her in her office after the incident.
In an April 7, 2005 treatment note, Dr. Gary Huey, a Board-certified psychiatrist, advised
that appellant would be off work through April 15, 2005.
An April 9, 2005 statement from Glenn P. Asty, a coworker, noted that he witnessed
appellant being followed by Ms. Ellison and appellant complaining to the postmaster about her
behavior. He indicated that he heard appellant speak in a frustrated tone to the postmaster
requesting permission to go home.
On May 12, 2005 the Office asked appellant to submit a detailed description of the
employment incidents that she believed contributed to her claimed illness. It also requested a
comprehensive medical report from her treating physician explaining how specific work
incidents contributed to her claimed emotional condition.
In a May 12, 2005 statement, appellant described the April 7, 2005 incident, noting that
the employing establishment policy mandated that for every three customers in line you need to
ring the bell for a back-up clerk. She requested that Ms. Ellison assist her. After appellant
finished serving the customers she went to the workroom floor where Ms. Ellision insulted and
harassed her. After informing Ms. Massey of the incident, she responded in an inappropriate
tone. Appellant told Ms. Massey she was sick and wanted to go home and Ms. Massey stated
“Okay fine but you are AWOL [absent without leave].” She submitted reports from Dr. Huey
dated April 7 to June 10, 2005. Dr. Huey treated appellant for hypertension aggravated by acute
stress and headaches occurring after a work event. Appellant reported that she was working with
a long line of customers and her coworker failed to assist her. She reported that she exchanged
remarks with her coworker and her coworker proceeded to nag her. Dr. Huey treated appellant
on July 6 and 27, 2005, for stress-related problems and advised that appellant could return to
work on August 1, 2005 at another work site.
On May 27, 2005 Ms. Massey noted that, on April 7, 2005, Ms. Ellison and the other
clerks did not hear the bell when appellant rang for assistance. Appellant subsequently walked
onto the workroom floor and yelled at her. She instructed Ben Vasquez, the supervisor, to
ascertain the problem at the window. Appellant informed Mr. Vasquez that she was going home
sick. Ms. Massey indicated that, with appellant’s absence, her unit would be short staffed. She
instructed appellant, in a voice loud enough to be heard over the office noise, to speak with her
before she left the office. Appellant ignored her request and proceeded to exit the building.
Because her leave slip was not signed, she did not have permission to leave and would be

2

considered AWOL. Ms. Massey contended that appellant violated employing establishment
regulations by yelling at her supervisor, leaving work without prior approval, failing to follow a
direct order and presenting an incomplete doctor’s note. In a July 19, 2005 statement,
Ms. Ellison noted having a good working relationship with appellant since 1997. On April 7,
2005 the employing establishment received a drop shipment of late parcels and at 8:30 a.m. the
postmaster requested that appellant distribute the parcels to the carriers so that they would not be
delayed in delivering their routes. Ms. Ellison noted that appellant confronted her about not
responding to the bell for assistance. She stated that she did not hear the bell and appellant
became angry. Ms. Ellison stated “get off your high horse and work faster.”
In a decision dated August 15, 2005, the Office denied appellant’s claim finding that the
claimed emotional condition did not arise in the performance of duty.
Appellant requested an oral hearing that was held on December 14, 2005. She submitted
January 9 and 13, 2006 statements reiterating her allegations. In reports dated August 4 to
December 3, 2005, Dr. Robert A. Kaplan, a clinical psychologist, advised that appellant was
totally disabled from April 7 to August 8, 2005. Appellant could return to work with the
restriction that she not work under Ms. Massey. On December 3, 2005 Dr. Kaplan noted that
appellant had worked at the employing establishment since 1997 and had a good relationship
with Ms. Massey until 2004 when Ms. Massey began assigning Ms. Ellison’s job duties to
appellant. Appellant reported that she discussed this problem with Ms. Massey; however, she
did not change the situation. Dr. Kaplan diagnosed major depression and adjustment disorder
with anxiety and depression and opined that appellant’s emotional condition was caused by the
manner in which she was treated by Ms. Massey.
In a January 4, 2006 statement, Ms. Massey advised that Ms. Ellison usually relieved
appellant at the retail window for 30 minutes on Wednesday and Thursday between 8:30 a.m.
and 9:00 a.m. and another full-time window clerk reported for duty at 9:00 a.m. During this 30minute period, the window traffic was generally minimal. Ms. Massey noted that there were four
window clerks at the employing establishment and two clerks were on the window at all times.
In a March 2, 2006 decision, the hearing representative vacated the August 15, 2005
decision and remanded the case for further medical development. The hearing representative
found that appellant established the following compensable employment factors: on April 7,
2005 appellant assisted 10 customers who were waiting in line at the retail window from 8:30
a.m. to 8:42 a.m. and Ms. Ellison failed to provide assistance after appellant rang the bell; once
appellant finished serving the customers she entered the workroom floor and became involved in
an argument with Ms. Ellison, who stated to appellant “get off your high horse and work faster;”
and that Ms. Ellison was occasionally nonresponsive or late in providing appellant with
assistance at the window and appellant had to deal with a long line of customers without
assistance. The hearing representative directed the Office to refer appellant for a second opinion
to determine if the accepted work factors caused or contributed to her psychiatric condition.
On March 23, 2006 the Office referred appellant to Dr. Robert A. Kimmich, a Boardcertified psychiatrist. In an April 10, 2006 report, Dr. Kimmich reviewed the records and noted
appellant’s history. He reported findings on psychiatric evaluation. Dr. Kimmich diagnosed
adjustment disorder with depression and anxiety, hypertension and an occupational problem

3

involving discord with coworkers and the postmaster. He noted that the events of April 7, 2005
caused confusion, fear and humiliation and appellant felt deserted by the action of her coworkers.
Dr. Kimmich noted the diagnoses were medically connected to the accepted work factors listed
in the statement of accepted facts. He opined that appellant had no further residuals of her work
injury and no work limitations.
In an undated letter, Dr. Kaplan wrote to Dr. Kimmich, prior to the second opinion
examination, and described the procedural history of appellant’s compensation claim before the
Office. He provided a copy of his December 3, 2005 report and the Office’s March 2, 2006
decision. Dr. Kaplan also provided his observations of appellant’s condition from December 5,
2005 to the present.
On March 30, 2006 appellant underwent the Minnesota Muliphasic Personality
Inventory, which was determined to be invalid due to the extremely exaggerated manner with
which appellant responded to the questionnaire.
In an April 24, 2006 letter, the Office requested that Dr. Kimmich provide a supplemental
report providing a medical explanation as to how appellant’s emotional condition was related to
the accepted work factors. In a May 11, 2006 response, Dr. Kimmich advised that the episode at
work on April 7, 2005 struck a sensitive chord for appellant resulting in fear, anger, depression
and anxiety. He indicated that appellant’s reaction was maladaptive.
In a letter dated June 5, 2006, the Office advised Dr. Kaplan that he had inappropriately
contacted Dr. Kimmich, the second opinion physician, prior to appellant’s examination. The
Office advised Dr. Kaplan that his contact with Dr. Kimmich tainted the second opinion
physician’s report and conclusions. The Office noted that a new second opinion evaluation
would be obtained.
On July 12, 2006 the Office referred appellant to Dr. Charles Seaman, a Board-certified
psychiatrist. In a July 14, 2006 report, Dr. Seaman reviewed appellant’s history of injury and
treatment. He evaluated appellant with Dr. Kaplan present. Dr. Seaman diagnosed adjustment
disorder with mixed anxiety and depressed mood, resolved; hypertension; and occupational
problem, having to work at the employing establishment under Ms. Massey. He opined that
appellant’s interpersonal conflict with Ms. Massey was the predominant cause of an adjustment
disorder with mixed anxiety and depressed mood with an onset of April 7, 2005. Dr. Seaman
advised that she was temporarily disabled from April 7 to August 2005. He opined that the
predominant stressor and cause of appellant’s psychiatric condition was her ongoing problems
with Ms. Massey. Although appellant was emotionally upset by her interaction with Ms. Ellison,
the cause of her condition was how Ms. Massey responded to her and ignored her complaints
about Ms. Ellison. Dr. Seaman noted that appellant stated that the primary problem she had
while working at the employing establishment was how she was treated by Ms. Massey and cited
specific instances and actions by Ms. Massey to illustrate their conflict. He concluded that
appellant’s primary stressor was her interpersonal conflicts with Ms. Massey instead of
Ms. Ellison. Dr. Seaman indicated that appellant’s conflict with Ms. Massey was not listed in
the amended statement of accepted facts as an accepted work factor. He found that appellant did
not have any residual psychiatric impairment, that her adjustment disorder with mixed anxiety
and depressed mood had resolved and that she would return to her job without any restrictions.

4

In a decision dated August 29, 2006, the Office denied appellant’s claim, finding that her
emotional condition did not arise in the performance of duty.
On September 11, 2006 appellant requested an oral hearing which was held on
January 23, 2007. Appellant submitted a January 20, 2007 statement from Jose Cisneros, a
coworker, who noted that, on April 7, 2005, he witnessed a discussion between appellant and
Ms. Massey in which appellant inquired as to why she was not provided with assistance at the
retail window when she rang the bell for help. Mr. Cisneros stated that appellant asked to go
home and proceeded to leave and Ms. Massey yelled that she would be “AWOL.”
In a decision dated April 4, 2007, the hearing representative affirmed the August 29,
2006 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out her employment duties, and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.5
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an

1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

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

5

Lillian Cutler, supra note 2.

5

employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS
Appellant alleged that she was harassed by her postmaster, Ms. Massey, and a coworker,
Ms. Ellison. She outlined several specific instances of alleged harassment, noted above. To the
extent that incidents alleged as constituting harassment by a supervisor are established as
occurring and arising from appellant’s performance of her regular duties, these could constitute
employment factors.9 However, for harassment to give rise to a compensable disability under the
Act, there must be evidence that harassment did in fact occur. Mere perceptions of harassment
are not compensable under the Act.10
The factual evidence fails to support appellant’s claim of harassment. In a statement
from Ms. Massey dated April 11, 2005, she advised that, on April 7, 2005, appellant was
working the retail window by herself and a line of customers developed. She indicated that
appellant rang the bell for relief; however, her coworkers did not hear the bell. Ms. Massey
indicated that appellant walked onto the workroom floor and yelled at her, acted inappropriately
and ignored two requests to speak with her in her office to discuss the incident. Likewise, a
statement from Ms. Ellison dated July 19, 2005, noted that, on April 7, 2005, she did not hear
appellant’s request for assistance at the retail window and appellant subsequently confronted her
and initiated an angry exchange of words. The factual evidence fails to support appellant’s claim
that she was harassed by Ms. Massey and Ms. Ellison.11 Appellant did not submit evidence or
witness statements in support of her allegation and her supervisor and coworker denied harassing
appellant. Although she alleged that her supervisor and coworker engaged in actions which she
6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

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

8

Id.

9

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

10

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

11

See Michael A. Deas, 53 ECAB 208 (2001).

6

believed constituted harassment, she provided no corroborating evidence, or witness statements
to establish her allegations.12 Additionally, Ms. Massey and Ms. Ellison have refuted such
allegations. Thus, appellant has not established a compensable employment factor under the Act
with respect to the claimed harassment.
To the extent that appellant alleged a verbal or physical threat by Ms. Massey, the Board
has recognized the compensability of physical threats or verbal abuse in certain circumstances.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under the Act.13 Appellant specifically alleged that, on April 7, 2005, Ms. Massey
stated in an inappropriate tone “I’ll deal with you later.” She also alleged that she requested to
leave the premises and Ms. Massey yelled at her in a threatening manner “Okay fine but you are
AWOL.” Appellant submitted an April 9, 2005 statement from Mr. Asty, a coworker, who noted
that appellant, in a frustrated tone, asked permission from the postmaster to go home. However,
this statement does not support that appellant was threatened or verbally abused. Appellant also
submitted a statement from Mr. Cisneros, a coworker, dated January 20, 2007, who noted that,
on April 7, 2005, he witnessed a discussion between appellant and Ms. Massey in which
appellant requested permission to leave and then proceeded to walk away and Ms. Massey
responded by screaming that appellant would be “AWOL.” The Board notes that, in a statement
dated May 27, 2005, Ms. Massey indicated that, on April 7, 2005, appellant informed her that
she was leaving the premises and Ms. Massey instructed appellant, in a voice loud enough to be
heard over the office noise, to meet her in her office prior to leaving the building because her
leave slip was not signed and she did not have permission to leave and would be considered
AWOL. The Board finds that the facts of the case, noted above in the analysis of the allegation
of harassment, does not reveal that appellant’s superior made any threats to her or otherwise
acted unreasonably in view of appellant’s conduct. Ms. Massey also denied acting improperly.
Appellant has not otherwise shown how Ms. Massey’s actions rose to the level of verbal abuse or
otherwise fell within coverage of the Act.
Other allegations by appellant relate to administrative or personnel actions. In
Thomas D. McEuen,14 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.15
12

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
13

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

14

See Thomas D. McEuen, supra note 6.

15

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

7

Regarding appellant’s allegation that Ms. Massey improperly placed her on AWOL status
on April 7, 2005, the Board notes that the handling of leave requests and attendance matters are
generally related to the employment, they are administrative functions of the employer and not
duties of the employee.16 The Board finds that the employing establishment acted reasonably in
this administrative matter. Ms. Massey explained that she followed employing establishment
procedures in the matter and noted that appellant did not have a signed leave slip, did not have
permission to leave and, as such, was considered to be AWOL. Appellant has presented no
corroborating evidence to support that the employing establishment erred or acted abusively with
regard to this matter. Instead, the evidence indicates that the employing establishment acted
reasonably in its administrative capacity.
In the instant case, the Office accepted that appellant established compensable factors of
employment under Cutler. On April 7, 2005 appellant assisted 10 customers who were waiting
in line at the retail window from 8:30 a.m. to 8:42 a.m. She did not receive a response from
Ms. Ellison, the relief clerk, after ringing a bell for assistance. After appellant finished serving
the customers she entered the workroom floor and became involved in an argument with
Ms. Ellison, who stated to appellant “get off your high horse and work faster.” The Office also
accepted that Ms. Ellison was occasionally nonresponsive or late in providing appellant with
assistance at the window and she had to work with customers without any assistance.
The record supports this finding, specifically, in letters dated April 11 and May 27, 2005,
Ms. Massey advised that, on April 7, 2005, appellant was working the retail window by herself
and a line of customers developed. Ms. Massey indicated that appellant rang the bell for relief;
however, her coworkers did not provide assistance. Additionally, in a letter dated July 19, 2005,
Ms. Ellison indicated that, on April 7, 2005, she failed to respond to appellant’s call for
assistance and after an angry exchange Ms. Ellison told her to “get off your high horse and work
faster.”
However, appellant’s burden of proof is not discharged by the fact that she has
established employment factors which may give rise to a compensable disability under the Act.
To establish her occupational disease claim for an emotional condition, appellant must also
submit rationalized medical evidence establishing that she has an emotional or psychiatric
disorder and that such disorder is causally related to the identified compensable employment
factor.17
The Board finds that the weight of the medical evidence rests with the well-rationalized
opinion of Dr. Seaman, a Board-certified psychiatrist to whom appellant was referred for a
second opinion examination and who reviewed the statement of accepted facts prepared by the

16

See Judy Kahn, 53 ECAB 321 (2002).

17

See William P. George, supra note 12.

8

Office.18 The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value and its convincing quality and the factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.19 The Board has carefully reviewed Dr. Seaman’s July 14, 2006 report and notes that it
has such reliability, probative value and convincing quality. Prior to reaching his conclusions, he
extensively detailed appellant’s factual and medical history and reported the findings of his
examination of appellant. Dr. Seaman had the benefit of a statement of accepted facts which
delineated those employment-related incidents and conditions accepted as compensable
employment factors. Moreover, he provided a proper analysis of the factual and medical history
and the findings on examination and reached conclusions regarding appellant’s condition which
comported with this analysis.
In his report, Dr. Seaman diagnosed adjustment disorder with mixed anxiety and
depressed mood, resolved, hypertension and occupation problem, having to work at the
employing establishment under the supervisor of the postmaster, Ms. Massey. He opined that
appellant’s interpersonal conflict with the postmaster, Ms. Massey, was the predominant cause of
an adjustment disorder with mixed anxiety and depressed mood with an onset of April 7, 2005.
Dr. Seaman further opined that the stressor for each episode of disability was appellant’s
perceived problems with Ms. Massey not Ms. Ellison. He indicated that, although appellant was
emotionally upset by her interaction with her coworker, Ms. Ellison, the cause of her condition
was how Ms. Massey responded to her and ignored her complaints about Ms. Ellison.
Dr. Seaman advised that appellant was very clear that her primary problem while working at the
employing establishment was how she was treated by Ms. Massey. He indicated that appellant
did not have any psychiatric residuals, as her condition had resolved and that she could return
work without restrictions.
Appellant submitted reports from Drs. Huey and Dr. Kaplan which noted that appellant
had an employment-related emotional condition but these reports are of limited probative value
as they do not contain adequate medical rationale in support of their conclusions.20 In reports
dated April 7 to June 10, 2005, Dr. Huey treated appellant for certain symptoms and conditions
after a work event in which a coworker failed to assist her and nagged her and her postmaster
was not supportive of her. However, Dr. Huey did not provide a rationalized medical opinion
explaining why appellant has an emotional or physical condition causally related to the accepted
compensable employment factor.21 Specifically, the treatment notes fail to reference the
18

The Board notes that the Office initially referred appellant for a second opinion examination with Dr. Kimmich,
who issued April 10 and May 11, 2006 reports. The Office determined that another opinion was necessary as
Dr. Kimmich did not properly resolve the issue before him, specifically whether the specific accepted compensabale
factors of employment were causally related to the diagnosed condition. See Ayanle A. Hashi, 56 ECAB 234 (2004)
(when the Office refers a claimant for a second opinion evaluation and the report does not adequately address the
relevant issues, the Office should secure an appropriate report on the relevant issues).
19

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1959).

20

Id.; see also Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical
reports not containing rationale on causal relationship are entitled to little probative value).
21

Id.

9

accepted employment factors or explain how such factors caused or contributed to appellant’s
claimed condition.
Dr. Kaplan’s reports of August 4 to December 3, 2005, who noted that appellant had a
good working relationship with Ms. Massey until 2004 when she began assigning a coworkers’
job duties to her. He diagnosed major depression and adjustment disorder with anxiety and
depression. However, Dr. Kaplan did not attribute appellant’s emotional exacerbation to the
established compensable factors of employment.22 Instead, in his report dated December 3,
2005, Dr. Kaplan opined that appellant’s emotional condition was caused by the manner in
which she was treated by Ms. Massey.
Dr. Kimmich’s reports provided some general support for causal relationship but his
reports are deficient as he did not specifically explain how any of the accepted employment
factors caused or aggravated a diagnosed condition. He noted that the April 7, 2005 “episode” at
work “struck a particularly sensitive chord” causing fear, anger depression and anxiety but he did
not explain how this was caused by any of the specific factors accepted by the Office.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed conditions are causally related to the accepted compensable
employment factors.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition causally related to factors of her federal employment.

22

See Jimmie H. Duckett, supra note 20.

10

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2008
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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
DEPARTMENT OF THE ARMY,
DIRECTORATE OF LOGISTICS,
JOINT BASE LEWIS-McCHORD, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 10-2251
Issued: June 14, 2011

Case Submitted on the Record

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

JURISDICTION
On September 8, 2010 appellant filed a timely appeal from an August 18, 2010 merit
decision of the Office of Workers’ Compensation Programs. 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on June 24, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 8, 2010 appellant, then a 53-year-old materials handler, filed a traumatic injury
claim alleging that her left knee locked up on June 24, 2010 after she unloaded a truck,
dismounted a forklift and walked toward a door. She did not stop work. The employing
establishment controverted the claim on the grounds that appellant filed two weeks after the
purported incident and there was no evidence of causal relationship.
A June 25, 2010 report from an employing establishment registered nurse diagnosed a
medial collateral ligament strain and a partial medial meniscal tear. Physical capacity reports
dated June 28 and 30, 2010 and signed by a physician’s assistant at the employing establishment
released appellant to full duty.
The Office informed appellant on July 12, 2010 that additional evidence was needed to
establish her claim. It gave her 30 days to submit medical reports describing the history of
injury, examination findings, diagnosis and course of treatment as well as offering a physician’s
reasoned opinion as to how the employment incident caused or aggravated the injury.
By decision dated August 18, 2010, the Office denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that the June 24, 2010 work incident caused or
aggravated a left knee condition.
LEGAL PRECEDENT
An employee seeking compensation under the Act has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,2
including that she is an “employee” within the meaning of the Act and that she filed her claim
within the applicable time limitation.3 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

2

evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, 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.6
ANALYSIS
The evidence supports that appellant unloaded a truck, dismounted a forklift, and walked
toward a door on June 24, 2010. However, she did not furnish medical opinion evidence to
establish that this employment incident caused a left knee injury. While appellant provided a
June 25, 2010 report from a registered nurse, which assessed both a medial collateral ligament
strain and meniscal tearing, and physical capacity reports signed by a physician’s assistant,
medical opinion can only be given by a qualified physician.7 Since neither a nurse nor a
physician assistant is a “physician” as defined under the Act,8 the submitted records cannot
constitute competent medical evidence. To establish her claim, appellant must submit evidence
from a physician that explain how the June 24, 2010 employment incident caused or aggravated
an injury.
Appellant contends on appeal that her supervisor was notified about her injury on
June 24, 2010 rather than July 8, 2010. However, this is not the reason that the claim was
denied. As noted, appellant failed to provide medical reports from a qualified physician
explaining how the June 24, 2010 employment incident caused a left knee condition. In the
absence of such well-reasoned medical opinion, she failed to meet her burden.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on June 24, 2010.

6

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

7

See Charley V.B. Harley, 2 ECAB 208, 211 (1949).

8

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238, 242 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the August 18, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kings Park, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0446
Issued: July 10, 2019

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 December 20, 2018 appellant, through counsel, filed a timely appeal from a
November 16, 2018 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 this 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 his burden of proof to establish a recurrence of total
disability commencing February 12, 2018 causally related to his accepted February 19, 2014
employment injury.
FACTUAL HISTORY
On February 19, 2014 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging on that date he sustained a left knee injury when he bent down to pick
up a letter he had dropped while in the performance of duty. He stopped work on the date of injury.
OWCP accepted appellant’s claim for left knee medial meniscus tear and authorized a left knee
arthroscopy which was performed on April 8, 2014 by Dr. Stuart B. Cherney, an attending Boardcertified orthopedic surgeon. It paid appellant temporary total disability compensation on the
supplemental rolls commencing April 8, 2014.
A medical report dated February 5, 2018 from Dr. Cherney indicated that appellant
presented for a follow-up examination of his left knee condition. He provided findings on physical
examination and reviewed x-ray results. Dr. Cherney diagnosed a progression of patellofemoral
chondrosis/arthrosis.
On February 26, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that he
sustained a recurrence of disability on February 12, 2018 due to his accepted employment injury.
On the reverse side of the claim form, an employing establishment supervisor indicated that
appellant returned to full-time, full-duty work without restrictions on September 13, 2014. The
supervisor also indicated that he had been out of work since the date of the alleged recurrence of
disability. A copy of appellant’s official position description as a city carrier was submitted.
In a development letter dated March 8, 2018, OWCP requested that appellant submit
additional factual and medical evidence in support of his recurrence of disability claim. It provided
a questionnaire and asked him to submit a narrative statement from his attending physician.
OWCP afforded appellant 30 days to respond.
OWCP subsequently received a report dated February 19, 2018 by Dr. Cherney who noted
a history of the February 19, 2014 employment injury and appellant’s left knee symptoms and
provided findings on physical examination. Dr. Cherney indicated that he had requested
authorization for a left knee magnetic resonance imaging (MRI) scan to assess a possible retorn
medial meniscus and progression of chondritic lesions. He opined that appellant’s current ﬁndings
and level of symptoms were attributable to his February 19, 2014 employment injury. Dr. Cherney
also noted that he had requested authorization for left knee injections to help control his persistent
pain and inﬂammation. He concluded that, due to the progression of appellant’s symptoms, he
was unable to return to his letter carrier position.
In a completed development questionnaire dated March 13, 2018, appellant noted that on
February 12, 2018 he was seen by his physician who had treated him since January 12, 2018 due
to his February 19, 2014 employment injury. He related that since his return to work on
September 13, 2014 until the date of his questionnaire, his left knee had not improved. Appellant

2

contended that now his right knee was starting to bother him. He believed that his disability was
due to his original injury because his knee kept giving “in,” which caused him to fall many times.
Appellant also experienced difficulty with going up and down stairs. He had not sustained other
injuries or illnesses on or off work since his original injury. Appellant also had no hobbies and/or
activities that may have affected his work-related condition.
By decision dated April 10, 2018, OWCP denied appellant’s claim for an employmentrelated recurrence of disability commencing February 12, 2018. It found that the medical evidence
submitted was insufficient to establish that he was totally disabled from work on or after
February 12, 2018 due to his accepted February 19, 2014 employment injury.
OWCP received additional reports dated March 26 and June 27, 2018 from Dr. Cherney.
In these reports, Dr. Cherney reexamined appellant’s left knee and advised that his symptoms were
consistent with exacerbation of patella chondrosis or possible retorn medial meniscus. He
attributed these symptoms to appellant’s February 19, 2014 employment injury and to early
chondritic/arthritic changes in the medial and patellofemoral compartments. Dr. Cherney opined
that he was permanently and totally disabled from work. He advised that appellant’s long-term
prognosis was poor with expected progression of degenerative changes in the knee.
On August 21, 2018 appellant, through counsel, requested reconsideration of OWCP’s
April 10, 2018 decision and submitted an additional report dated July 18, 2018 from Dr. Cherney.
Dr. Cherney reiterated appellant’s history of injury. He noted appellant’s medical treatment,
including his own treatment. Dr. Cherney listed as final left knee diagnoses displaced bucket
handle tear of the medial meniscus, patella chondrosis/arthrosis, and three compartment synovitis
all of which appellant had undergone arthroscopy surgery on April 8, 2014. He also listed as final
left knee diagnoses of a Baker’s cyst and medial chondrosis/arthrosis. Dr. Cherney opined that
appellant’s left knee injuries, including medial meniscus tear and patella chondrosis, were the
result of his February 19, 2014 employment injury. He indicated that, following the April 8, 2014
surgery, he had persistent daily pain and stiffness which had worsened over the past four years.
Dr. Cherney opined that appellant’s long-term prognosis was that he would continue to have pain
and stiffness of varying degrees of severity and post-traumatic arthritic changes. He would also
have functional impairment which included difficulty ascending and descending stairs and an
inability to kneel or squat. Dr. Cherney noted that a May 2, 2018 MRI scan showed early posttraumatic degenerative changes in the patellofemoral joint and medial and lateral compartments.
He maintained that these changes were consistent and attributable to the meniscus tear and patella
chondrosis. Dr. Cherney further maintained that the degenerative changes were attributable to a
delay in surgery while awaiting authorization and prolonged physical therapy in an attempt to
restore maximal range of motion. He related that the result of the medial meniscus which could
not be repaired also increased the probability of progressive post-traumatic osteoarthritic changes
in the medial compartment which would cause additional knee pain, stiffness, and pain with all
weight-bearing activities. Dr. Cherney advised appellant against performing work duties that
required prolonged standing, walking, lifting, stair climbing, kneeling, and squatting. He indicated
that appellant had begun to experience right knee pain which was attributable to compensation for
his left knee injury. Dr. Cherney concluded that, as appellant had daily pain which limited weightbearing and overall functional activity, he was totally disabled.

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By decision dated November 16, 2018, OWCP denied modification of its prior decision.
It found that Dr. Cherney’s reports were insufficient to establish appellant’s recurrence claim.
LEGAL PRECEDENT
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.3 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.4 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.5 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for loss of wages.6
OWCP’s implementing regulations define a recurrence of disability as an inability to work
after an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment.7
When an appellant claims a recurrence of disability due to an accepted employment-related
injury, he or she has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the recurrence of disability is causally related to the original injury. This
burden includes the necessity of furnishing evidence from a qualified physician who, on the basis
of a complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury and supports this conclusion with sound medical reasoning.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 12, 2018 causally related to his accepted February 19, 2014
employment injury.
OWCP accepted appellant’s original claim for left knee medial meniscus tear as a result of
the February 19, 2014 employment injury. Appellant underwent authorized arthroscopic left knee
3

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

4

See L.W., Docket No. 17-1685 (issued October 9, 2018).

5

See D.G., Docket No. 18-0597 (issued October 3, 2018).

6

See D.R., Docket No. 18-0232 (issued October 2, 2018).

7

Supra note 3 at § 10.5(x).

8
D.S., Docket No. 17-1401 (issued March 23, 2018); Ricky S. Storms, 52 ECAB 349 (2001); Helen Holt, 50 ECAB
279 (1999).

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surgery on April 8, 2014. He returned to full-time, full-duty work on September 13, 2014.
Appellant stopped work on February 12, 2018 and claimed a recurrence of total disability
commencing on that date due to the accepted February 19, 2014 employment injury.
Appellant submitted a series of reports from his attending physician, Dr. Cherney. In
reports dated February 19, March 26, June 27, and July 18, 2018, Dr. Cherney provided a history
of the February 19, 2014 employment injury. He diagnosed several left knee conditions, including
displaced bucket handle tear of the medial meniscus, patella and medial chondrosis/arthrosis, three
compartment synovitis, and a Baker’s cyst. Dr. Cherney found that appellant was permanently
and totally disabled from work and listed his physical restrictions. He opined that the diagnosed
conditions and resultant total disability were caused by the accepted February 19, 2014
employment injury. The Board finds that while Dr. Cherney’s opinion is generally supportive of
causal relationship, he has not provided adequate medical rationale explaining the basis of his
opinion. Dr. Cherney indicated that his diagnoses of meniscus tear and patella chondrosis were
based on May 2, 2018 MRI scan results, which revealed degenerative changes in the
patellofemoral joint and medial and lateral compartments of the left knee, delayed surgical repair
of the meniscus tear, and prolonged physical therapy to attempt to restore maximal range of
motion. However, he has failed to explain the mechanism by which the February 19, 2014
employment injury caused or aggravated these conditions, as well as, appellant’s other diagnosed
conditions and recurrence of disability. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how the
claimed medical condition/disability was causally related to an employment incident.9 Therefore,
the Board finds that Dr. Cherney’s reports are insufficient to establish appellant’s recurrence
claim.10
Furthermore, Dr. Cherney’s remaining report dated February 5, 2018 lacks probative value
as it predates the time of the claimed February 12, 2018 recurrence and does not address the
relevant time period.11
As appellant has not submitted medical evidence sufficient to establish a recurrence of total
disability commencing February 12, 2018 causally related to his February 19, 2014 employment
injury, the Board finds that he has not met his burden of proof.12
On appeal, counsel contends that Dr. Cherney’s July 18, 2018 medical report is sufficient
to establish continuing employment-related disability as of February 12, 2018. However, for the
reasons noted above, Dr. Cherney’s medical report failed to contain a rationalized medical opinion
explaining how appellant’s inability to work beginning February 12, 2018 resulted from his
accepted February 19, 2014 employment injury. Therefore, his opinion is insufficient to establish
that appellant’s disability was caused by the accepted employment injury.

9

G.G., Docket No. 18-1788 (issued March 26, 2019); E.W., Docket No. 17-1988 (issued January 29, 2019).

10

G.G., id.; K.G., Docket No. 15-0669 (issued April 8, 2016).

11

G.G., id.; C.S., Docket No. 17-1345 (issued May 24, 2018).

12

G.G., id.; J.D., Docket No. 18-0616 (issued January 11, 2019); Alfredo Rodriguez, 47 ECAB 437 (1996).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 12, 2018 causally related to his accepted February 19, 2014
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Freedom, CA, Employer
__________________________________________

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Appearances:
Howard Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-344
Issued: May 6, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On November 15, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 24, 2007 denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a cervical or other condition causally
related to factors of his federal employment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated March 10, 2006, the
Board affirmed a July 12, 2005 Office decision denying the claim for compensation.1 As the
Board noted, appellant had filed an occupational disease claim on June 20, 2004 alleging that he
1

Docket No. 05-1858 (issued March 10, 2006).

sustained right shoulder and arm injuries as a result of his job duties as a letter carrier. Appellant
indicated that he had worked at the employing establishment for 32 years and noted that recently
he worked six days a week for a month due to a staffing shortage. The Board found the medical
evidence was insufficient to meet appellant’s burden of proof. The history of the case is
contained in the Board’s prior decision and is incorporated herein by reference.
By letter dated January 9, 2007, appellant requested reconsideration of his claim and
submitted additional medical evidence. In a report dated March 28, 2006, Dr. Srini Sundarum, a
physiatrist, noted that on May 29, 2004 appellant had been treated by Dr. Kenneth Blumenfeld, a
neurosurgeon, for right scapular pain after working a six-day shift. Dr. Sundarum stated that he
talked to appellant about his job and explained that some of the magnetic resonance imaging
(MRI) scan findings of the cervical spine “show evidence of arthritis, which could have been
evolving over many years of exposure to cumulative stress. It is likely that on that one particular
day in May 2004, when he had to work a long shift, the patient started having radiating pain to
the neck and shoulder blade area, which is consistent with a C7 type of root lesion.”
Dr. Sundarum indicated that an August 7, 2004 MRI scan showed a right paracentral disc bulge,
and he opined “on a more probable than not basis the condition of cervical dis[c] herniation in
the setting of preexisting arthritis could have most likely occurred following intense work
exposures the days preceding the condition becoming symptomatic.”
According to
Dr. Sundarum a November 30, 2005 electrodiagnostic study showed chronic C7 radiculopathy.
He concluded, “I do agree that the preexisting arthritis in the cervical spine could have occurred
over many years of natural progression of the condition, though the condition of cervical disc
herniation can be due to a one-time injury event as described by the patient in May 2004.”
Appellant also submitted an October 21, 2004 treatment note from Dr. Blumenfeld and
form reports from Dr. Brian Karvelas, a physiatrist, from 2004 providing results on examination.
By decision dated April 24, 2007, the Office reviewed the case on its merits and denied
modification of the prior decisions.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his 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.3
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

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and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.4
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.5 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.6
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.7
ANALYSIS
Appellant filed an occupational disease claim identifying casing and delivering mail as
contributing to a right shoulder, arm or neck condition. The Board considered the medical
evidence of record before the Office at the time of the July 12, 2005 decision. The evidence
submitted after this decision includes the March 28, 2006 report from Dr. Sundarum. In this
report, Dr. Sundarum primarily discusses two conditions: cervical arthritis and a cervical disc
herniation based on an August 7, 2004 MRI scan. As to the arthritis, Dr. Sundarum initially
stated that it could be related to years of “cumulative stress,” and then he indicated that it could
be related to years of natural progression of the condition. It is not clear whether he believed an
arthritis condition was causally related to specific factors of appellant’s federal employment.
Dr. Sundarum did not provide a rationalized medical opinion with respect to arthritis and the
identified employment factors.
As to a cervical disc herniation, it appeared that Dr. Sundarum believed a disc bulge
revealed on the August 7, 2004 MRI scan was related to appellant’s work sometime prior to
May 29, 2004, when he was treated by Dr. Blumenfeld. He stated that it “could have most likely
occurred following intense work exposures” prior to May 29, 2004. This is a speculative
statement that is of diminished probative value without medical rationale in support of the
opinion.8 With respect to a factual background, while Dr. Sundarum stated that he talked with
appellant about his job, he did not discuss the specific job duties or the repetitive activities
identified by appellant. He referred to “intense” work, but it is not clear whether he is referring
to an extra day of work per week, or other factors. Moreover, he did not explain how the specific
work duties caused a disc bulge or herniation.
4

Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

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

6

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

7

Id.

8

Medical opinions such as the implant “may have ruptured” and the condition is “probably” related, “most
likely” related or “could be” related are speculative and diminish the probative value of the medical opinion
evidence. Kathy A. Kelley, 55 ECAB 206, 211 (2004).

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The Board finds that the medical evidence is not sufficient to meet appellant’s burden of
proof. The record does not contain a rationalized medical opinion, based on a complete
background, on causal relationship between a diagnosed cervical condition and the identified
employment factors.
CONCLUSION
Appellant did not meet his burden of proof to establish a diagnosed cervical or other
condition causally related to identified employment factors.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 24, 2007 is affirmed.
Issued: May 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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