United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Diego, CA, Employer
__________________________________________

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

Docket No. 16-0895
Issued: December 16, 2016

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 March 26, 2016 appellant filed a timely appeal from a September 30, 2015 nonmerit
decision and an October 20, 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.2
ISSUES
The issues are: (1) whether OWCP properly denied further merit review of appellant’s
case pursuant to 5 U.S.C. § 8128(a) regarding the denial of wage-loss compensation for the

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the October 20, 2015 decision.
However, since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final
decision, the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1);
Sandra D. Pruitt, 57 ECAB 126 (2005).

periods January 1 to July 31, 2012 and July 29 to September 22, 2014; and (2) whether appellant
met her burden of proof to establish that she was entitled to a schedule award.
FACTUAL HISTORY
On August 20, 1998 appellant, then a 39-year-old deportation assistant, filed an
occupational disease claim (Form CA 2) alleging that she developed bilateral wrist and elbow
pain, numbness in fingers, and left shoulder pain as a result of training staff members and
inputting computer data. She did not stop work. The record reveals that in March 1996
appellant had been involved in a nonwork-related motor vehicle accident and sustained a cervical
strain.
On November 20, 1998 OWCP accepted appellant’s claim for bilateral wrist, elbow, and
shoulder sprain. It did not accept a cervical condition. It requested that she provide medical
reports related to her 1996 automobile accident before it made a determination regarding whether
her current cervical symptoms were related to her employment. OWCP subsequently expanded
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, gastritis and
gastroduodenitis, brachial neuritis or radiculitis, and cervical radiculopathy resolved.
This case has a complicated history as to whether appellant’s cervical condition was
causally related to the accepted injury and whether it caused periods of disability. This case has
previously been before the Board.3 The facts and circumstances as presented in the Board’s prior
decisions are incorporated herein by reference. The facts relevant to this appeal are as follows.
On December 8, 1999 appellant stopped work and subsequently filed claims for disability
compensation. OWCP paid wage-loss compensation. Appellant returned to work on
November 13, 2000. She was off work intermittently between December 11, 2000 and
March 19, 2001. In March 2001 appellant resigned from federal employment. In June 2003 she
returned to federal employment with the U.S. Attorney’s Office.
On March 12, 2004 OWCP accepted appellant’s claim for cervical radiculopathy,
resolved.

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On September 1, 2005 the Board issued an order which set aside a February 23, 2004 OWCP decision because
appellant was denied the right to a hearing before an OWCP hearing representative. The Board remanded
appellant’s claim in order for OWCP to provide appellant the opportunity to exercise her right to an oral hearing.
Docket No. 05-844 (issued September 1, 2005). By order dated February 4, 2010, the Board remanded appellant’s
case for OWCP to reconstruct and properly deliver the case record to the Board. Docket No. 09-2350 (issued
February 4, 2010). On May 25, 2011 the Board issued an order that set aside the May 28, 2010 OWCP decision and
remanded appellant’s case for further development of the medical evidence. Docket No. 10-1810 (issued
May 25, 2011). In a decision dated December 18, 2012, the Board determined that appellant’s case was not in
posture for decision as there remained an unresolved conflict in medical opinion regarding whether appellant’s
cervical condition was causally related to her employment. Docket No. 12-1056 (issued December 18, 2012). In a
decision dated September 16, 2014, the Board affirmed OWCP’s decision to deny appellant’s request for
reimbursement of travel expenses on May 22, 2012 because she failed to demonstrate that her travel from California
to Arizona was necessary and reasonable for treatment of her accepted conditions. Docket No. 13-2097 (issued
September 16, 2014).

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Appellant submitted numerous requests for reconsideration of the decision that her workrelated cervical condition had resolved.
On May 10, 2010 appellant was terminated from her federal employment.
OWCP referred appellant’s case to Dr. Ronald Lampert, a Board-certified orthopedic
surgeon, for examination and an opinion as to whether appellant’s currently claimed cervical
condition was causally related to her federal employment. In a July 13, 2011 report, Dr. Lampert
opined that there was no evidence in appellant’s medical history to indicate that she sustained a
neck injury as a result of her federal employment. He concluded that the disc bulges seen on
magnetic resonance imaging (MRI) scan evaluation were consistent with her age and not due to a
traumatic event.
Following years of further development of the medical evidence, and denials of the claim
related to appellant’s cervical condition, OWCP determined that a conflict in medical opinion
existed as to whether appellant’s current cervical condition was causally related to factors of her
employment. It referred appellant’s claim to Dr. R. Richard Maxwell, a Board-certified
orthopedic surgeon, for an impartial medical examination and an opinion to resolve the conflict
in medical opinion evidence.
In a report dated November 18, 2011, Dr. Maxwell discussed appellant’s history and
provided physical examination findings. He opined that appellant’s cervical radiculopathy and
subsequent surgery were not related to her employment. Dr. Maxwell explained that even in an
overuse syndrome, the repetitive motion of rotary and side-to-side bending would not cause a
disc bulge or rupture to the point of requiring surgery. He opined that it was more than likely
that appellant’s flexion extension injury resulted from the 1999 automobile accident.
OWCP denied appellant’s claim for a cervical condition in a decision dated
March 5, 2012. It found that the special weight of medical evidence rested with Dr. Maxwell’s
November 18, 2011 impartial medical examiner’s report.
Appellant underwent cervical disc surgery on May 16, 2012. Dr. Mohammad K. Khan, a
Board-certified surgeon, performed disc resections at C5-6 and C6-7. Appellant underwent
authorized right open carpal tunnel release, left endoscopic carpal tunnel release, and right
de Quervain’s release on August 1, 2012. This procedure was performed by Dr. Mark
Mellinger, a Board-certified hand surgeon.
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
August 1, 2012. Appellant continued to submit claims for continued disability compensation.
On December 13, 2012 OWCP received an October 13, 2012 report from Dr. Travis H.
Calvin Jr., a Board-certified neurosurgeon. In this report, Dr. Calvin related that appellant was
seen at the request of Dr. Mellinger. He related a detailed history of appellant’s medical
treatment and current physical examination findings. Dr. Calvin related that appellant was status
post bilateral carpal tunnel revisions of August 1, 2012, with minimal carpal tunnel symptoms,
and status post anterior cervical fusion C5-6, stable. He opined that appellant would continue to
be disabled for two months, as she had to avoid excessive hand use activities. In a progress
report dated December 4, 2012, Dr. Calvin related that appellant still had residual “tissue edema”
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of the right hand, which may require an additional three months to reach maximum recovery. On
January 15, 2013 he reported that appellant’s carpal tunnel syndrome had improved with no
motor weakness in neither upper extremity and no sensory deficit.
In a letter dated February 6, 2013, OWCP requested that Dr. Maxwell provide a
supplemental report of his November 18, 2011 impartial medical report. Dr. Maxwell was asked
to include a detailed clinical history, detailed examination findings, and an explanation on
whether appellant’s cervical condition was causally related to her employment. No response was
received.
In February 2013 appellant began receiving medical treatment from Dr. James E. Creek,
a family practitioner. In May 8 and 22, 2013 reports, Dr. Creek related that appellant continued
to have bilateral upper extremity pain, numbness, tingling, and grip weakness with persistent
right cervical shoulder pain. Upon examination of appellant’s cervical spine, he observed a
healed anterior surgical scar over the midline, painful range of motion, and tenderness of the
paraspinal musculature, right trapezius muscle, right mid-scapular muscle, and the anterior
scalene muscles. Dr. Creek provided physical examination findings of appellant’s bilateral upper
extremities. He noted tenderness and pain with dorsiflexion of the right wrist and weakness and
tenderness in the right medial epicondyle. Dr. Creek diagnosed cervical degenerative disc
disease postoperative cervical discectomy, right shoulder strain with impingement and tendinitis,
right lateral and medial epicondylitis, and bilateral carpal tunnel syndrome. He recommended
additional diagnostic testing. In various work status reports, Dr. Creek recommended that
appellant remain off work until April 23, 2014.
In a letter dated June 24, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish her claims for disability compensation beginning January 1, 2012. It
requested additional evidence to demonstrate that she was unable to work beginning January 1,
2012 as a result of her accepted conditions.
On August 8, 2013 appellant called OWCP and asked whether it was able to obtain
further clarification and a supplemental report from Dr. Maxwell, the impartial medical
examiner, as instructed by the Board in its December 18, 2012 decision in Docket No. 12-1056.
The claims examiner indicated that he reviewed appellant’s file and noted that a letter was sent to
Dr. Maxwell, but without a response. He noted that he would have to obtain another impartial
medical opinion to resolve the conflict in medical opinion evidence.
On June 13, 2014 OWCP determined that a conflict in medical opinion evidence existed
between Dr. Lampert, an OWCP referral physician, and Dr. Calvin, appellant’s treating
physician regarding whether appellant continued to suffer from a work-related cervical
condition.4 It referred appellant, along with a statement of accepted facts (SOAF), to Dr. Harry
Marinow, a Board-certified orthopedic surgeon for an impartial medical examination in order to
resolve the conflict.
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OWCP specifically pointed out that in Dr. Lampert’s July 13, 2011 report, he opined that appellant had not
sustained an injury to her neck and that there was insufficient evidence to show that ongoing repetitive work had
caused or aggravated a neck condition. Appellant’s treating physician, Dr. Calvin, however, determined in his
February 26, 1999 report that appellant’s cervical condition was caused by overuse and poor positioning at work.

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In a June 19, 2014 letter, appellant indicated that she received OWCP’s letter which
referred her to an impartial medical examiner and expressed her refusal to attend the
examination. She discussed the progression of her claim including the various remands by the
Board and other OWCP-directed examinations which she attended. Appellant also reviewed
various medical reports beginning in 2000 and alleged that various doctors had established that
her cervical injury was work related and that she was unable to work due to her accepted
condition. She pointed out that OWCP had been developing her claim for 16 years and required
four different second opinion evaluations in order to determine whether her current cervical
condition was work related. Appellant related that she had suffered because OWCP had delayed
gathering the evidence needed for a proper decision. She noted that she submitted various
medical reports from Dr. Creek and Dr. Calvin, which demonstrated that she was disabled from
work beginning November 1, 2012 until the present time.
On July 2, 2014 Dr. Marinow’s office informed OWCP that appellant did not attend the
impartial medical examination scheduled for July 1, 2014.
On July 10, 2014 OWCP proposed to suspend appellant’s compensation benefits under 5
U.S.C. § 8123(d) because she failed to report to the examination on July 1, 2014 as directed
pursuant to the December 18, 2012 Board decision. Appellant was provided 14 days to explain
her refusal to attend the examination.
In a July 16, 2014 letter, appellant responded to OWCP’s notice of proposed suspension
of compensation due to her failure to report for examination with Dr. Marinow. She noted that
she sent a letter to OWCP dated June 19, 2014 informing them that she was not going to attend
the examination. Appellant further noted that the Board’s December 18, 2012 decision ordered
OWCP to request a supplemental report from Dr. Maxwell, an impartial medical examiner, but
instead, OWCP referred her for another impartial medical examination. She requested that
OWCP review the medical evidence provided by Dr. Creek and Dr. Calvin and the
September 10, 2013 MRI scan examination report before making a second opinion examination
referral. Appellant also discussed the medical treatment she received and the progression of her
claim. She noted that every OWCP-directed evaluation was deemed to be of “limited probative
value” by the Board. Appellant noted that OWCP had accepted her claim for cervical
radiculopathy, resolved and that she appealed only the “resolved” aspect of that decision. She
related that she was presently in disability status for accepted injuries, but OWCP refused to
authorize additional medical treatment other than pain medicine.
On July 29, 2014 OWCP finalized the suspension of appellant’s wage-loss and medical
compensation benefits. It determined that appellant’s reasons to refuse to attend an OWCPdirected examination in her June 16 and July 16, 2014 letters were without merit.
In an August 11, 2014 letter, appellant expressed her concerns about the delays by
OWCP in the processing of her claim. She alleged that even though the last four OWCPdirected examinations had been deemed of limited probative value, OWCP failed to request the
physician to elaborate or clarify his findings. Appellant asserted that the question of whether her
cervical condition was work related was settled so she did not understand why OWCP continued
to deny her treatment. She discussed her claim and the mistakes and delays by OWCP for the

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past 10 years. Appellant resubmitted OWCP’s March 12, 2004 decision which accepted her
claim for cervical radiculopathy, resolved.
OWCP rescheduled appellant’s impartial medical examination with Dr. Marinow for
September 23, 2014.
In a September 23, 2014 medical report, Dr. Marinow related that appellant worked for
the employing establishment and reviewed her duties as a deportation docket clerk. He
discussed appellant’s employment history and reviewed the extensive record of medical reports
beginning in August 1998 about the medical treatment that appellant received, specifically for
neck and upper extremity symptoms. Dr. Marinow noted appellant’s current complaints of
constant cervical spine pain radiating to her trapezius muscles and shoulders, constant bilateral
shoulder pain aggravated with repetitive movement of her arms, and bilateral elbow pain. He
provided physical examination findings of appellant’s cervical spine and upper extremities.
Dr. Marinow diagnosed chronic cervical spine myofascial pain syndrome, degenerative disc
disease at the C4-5 interspace, bilateral shoulder trapezial myofascitis symptoms with
acromioclavicular (AC) joint degenerative osteoarthritis, bilateral elbow epicondylar, and
myofascial pain symptoms, right wrist chronic tendinitis symptoms with chronic carpal tunnel
syndrome residuals, and left wrist chronic tendinitis symptoms with carpal tunnel syndrome. He
noted that the medical evidence demonstrated that appellant was experiencing and complaining
of neck pain symptoms dating back to at least November 1997. Dr. Marinow opined that
appellant’s cervical condition was causally related to her employment injuries, with subsequent
aggravation as a result of a second nonindustrially-related motor vehicle accident on
April 28, 1999.
OWCP paid wage-loss compensation from November 1, 2012 to July 28, 2014, the date
that OWCP suspended appellant’s disability compensation. It also paid compensation beginning
September 23, 2014, the date that appellant attended her impartial medical examination. OWCP
notified appellant that she would be placed on the periodic rolls.
In a letter dated June 25, 2015, OWCP informed appellant that she was not eligible for
compensation for the period July 29 through September 22, 2014 because she did not report to
the impartial medical examination scheduled for July 1, 2014.
It explained that her
compensation was reinstated following her cooperation with the examination.
On July 3, 2015 appellant requested reconsideration of OWCP’s denial of compensation
benefits for the periods January 1 to July 31, 2012 and July 29 to September 22, 2014. She
alleged that she filed claims for compensation (Form CA-7) for all of 2012, but was not paid for
the period January 1 through July 31, 2012. Appellant asserted that Dr. Mellinger’s medical
reports and requests for surgery evinced that she should be entitled to wage-loss compensation.
She noted that OWCP provided disability compensation for the time period following the
authorized carpal tunnel release surgery from August 1 to October 31, 2012 and asserted that
OWCP should pay her disability for the remaining period in 2012 because she was unable to
return to work and filed timely claims for disability compensation.
Regarding the period June 29 to September 22, 2014, appellant explained that when she
received the June 13, 2014 letter from OWCP informing her of her scheduled second opinion

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examination she began to panic because she had less than two weeks to gather all her medical
documentation. When she realized that she did not have enough time to obtain all her medical
reports before the scheduled examination, she notified OWCP before the seven-day deadline in a
June 19, 2014 letter that she was not able to attend the scheduled examination. Appellant
discussed her various letters to OWCP requesting more time to gather evidence before she
attended the scheduled examination. She alleged that she never obstructed the examination or
refused to cooperate, but merely requested more time to gather medical evidence, specifically a
computerized tomography myelogram, which she believed was crucial for the impartial medical
examiner to review. Appellant believed the denial period was unfair because she sent two letters
requesting to reschedule the appointment.
On July 31, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated July 21, 2015, OWCP informed appellant that no medical evidence was
submitted in support of her schedule award claim. It requested that she submit a medical report
from her treating physician which addressed whether she reached maximum medical
improvement (MMI) and whether her accepted conditions caused permanent impairment
pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).
Appellant continued to be treated by Dr. Creek. In progress reports and work status notes
dated July 29 to September 1, 2015, he noted that appellant complained of constant pain. Upon
examination, Dr. Creek observed decreased sensation of the left second digit and right fifth digit,
positive right cervical neck painful range of motion, and tenderness along the midline and
paraspinal muscles. Tinel’s test was positive, left greater than right, and grip strength was
decreased, left greater than right. Dr. Creek diagnosed spinal stenosis and right cervical
radiculopathy. He indicated that appellant was unable to return to work.
In an August 19, 2015 narrative report, Dr. Creek indicated that he reevaluated appellant
for neck, shoulder, and bilateral arm pain with associated numbness and tingling in the hands and
fingers with increasing pain over the last eight to nine years. He noted that since appellant
underwent several surgeries many physicians had requested authorization for cervical
myelogram, physical medicine rehabilitation evaluation, pain management evaluation, and
psychiatric evaluation. Dr. Creek indicated that appellant had not been able to return to work
because of functional limitations. He diagnosed chronic cervical spine myofascial syndrome,
degenerative disc disease at C4-5 interspace, past history of anterior cervical discectomy with
prosthetic replacement, bilateral shoulder trapezial myofascitis symptoms with AC joint
degenerative osteoarthritis, bilateral elbow epicondylar and myofascial pain symptoms, right
wrist chronic tendinitis symptoms with chronic carpal tunnel syndrome residuals, and left wrist
chronic tendinitis symptoms with carpal tunnel syndrome residual. Dr. Creek explained that the
combination of multiple conditions including the chronic pain syndrome precluded appellant
from returning to meaningful clerical work. He noted that appellant’s current work status would
be total temporary disability pending the recommended evaluations.
Appellant also resubmitted Dr. Marinow’s September 23, 2014 impartial medical report
and Dr. Creek’s progress reports dated February 25 to June 16, 2015.

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In a decision dated September 30, 2015, OWCP denied further merit review of
appellant’s case. It determined that the evidence submitted was repetitive and substantially
similar to evidence previously submitted.
By decision dated October 20, 2015, OWCP denied appellant’s claim for schedule award.
It noted that appellant provided insufficient medical evidence to establish a schedule award.
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.5 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
An employee shall exercise his or her right through a request to the district office.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must also be received within one year of the date of
OWCP’s decision for which review is sought.8 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.9 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.10
ANALYSIS -- ISSUE 1
The Board lacks jurisdiction to review the merits of the underlying issue of whether
appellant has established entitlement to wage-loss compensation for the periods January 1 to
July 31, 2012 and July 29 to September 22, 2014. The Board’s jurisdiction is limited to
determining whether OWCP properly denied a merit review of her request for reconsideration.

5

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

6

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
7

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
8

Id. at § 10.607(a).

9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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Appellant has worked intermittently and has received wage-loss compensation for
periods of disability related to her carpal tunnel syndrome. She has not received wage-loss
compensation associated with her cervical radiculopathy claim. Appellant therefore did not
receive wage-loss compensation during the period January 1 to July 31, 2012, which was a
period associated with her May 16, 2012 cervical disc surgery.
On July 29, 2014 OWCP issued a decision suspending her entitlement to compensation
because she did not attend an OWCP-directed examination scheduled for July 1, 2014.
Appellant attended the rescheduled examination on September 23, 2014. By decision dated
June 25, 2015, OWCP paid appellant disability compensation beginning November 1, 2012,
except for the period July 29 through September 22, 2014. Appellant submitted a request for
reconsideration of that decision, which was received by OWCP on July 3, 2015.
The Board finds that in her application for reconsideration appellant has not shown that
OWCP erroneously applied or interpreted a specific point of law; she has not advanced a
relevant legal argument not previously considered by OWCP; and she has not submitted relevant
and pertinent new evidence not previously considered by OWCP.
Appellant discussed several OWCP-directed examinations that she attended and the
various remands which determined that these examination reports were not well rationalized.
The Board notes that appellant has previously made similar arguments in her June 19 and
July 16, 2014 statements which expressed her refusal to attend the OWCP-directed examination
on July 1, 2014. As appellant’s allegations do not advance a new legal argument nor
demonstrate that OWCP erroneously applied or interpreted a specific point of law, these
allegations do not warrant further review of appellant’s claim.
Appellant also submitted new medical reports from Dr. Creek dated July 29 to
September 1, 2015 regarding treatment for her cervical and upper extremity conditions. These
reports, however, fail to address appellant’s disability during the period January 1 to July 31,
2012 or appellant’s refusal to attend the impartial medical examination on July 1, 2014 and the
suspension of her benefits from July 29 to September 22, 2014. The Board notes that the
submission of evidence that does not address the particular issue involved does not constitute a
basis for reopening a case.11
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3) to warrant a review of the merits. Accordingly, the Board finds that OWCP
properly refused to reopen her case for further consideration of the merits of her claim under
5 U.S.C. § 8128.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA12 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
11

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

5 U.S.C. §§ 8101-8193.

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loss, or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.13
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.14 It is the claimant’s burden to establish that she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.15 Before
an award may be made, it must be medically determined that no further improvement can be
anticipated and the impairment must reach a fixed and permanent state, which is known as
MMI.16 OWCP procedures provide that, to support a schedule award, the file must contain
competent medical evidence which describes the impairment in sufficient detail so that it can be
visualized on review, and computes the percentage of impairment in accordance with the
A.M.A., Guides.17
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained bilateral wrist, elbow, and shoulder strains,
bilateral carpal tunnel syndrome, gastritis and gastroduodenitis, brachial neuritis or radiculitis,
and cervical radiculopathy in the performance of duty as a result of her duties as a deportation
assistant. On July 21, 2015 it received appellant’s claim for a schedule award.
The only contemporaneous medical evidence submitted with appellant’s schedule award
claim are Dr. Creek’s progress reports dated July 29 to September 1, 2015 and a narrative report
dated August 19, 2015. Although Dr. Creek recounted his medical treatment of appellant for her
cervical and upper extremity conditions, he did not address whether appellant sustained a
permanent impairment as a result of her accepted conditions nor opine on whether appellant had
reached MMI. In order to be entitled to a schedule award, a claimant must establish that she is at
MMI and sustained a permanent impairment of a scheduled member of the body due to an
employment injury.18 It is appellant’s burden of proof to submit sufficient evidence to establish
the extent of permanent impairment.19 As she did not submit any probative medical opinion
13

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Thomas P. Lavin, 57 ECAB 353 (2006).

15

Tammy L. Meehan, 53 ECAB 229 (2001).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

17

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.7 (February 2013).

18

C.H., Docket No. 16-0263 (issued March 25, 2016); R.E., Docket No. 14-713 (issued June 26, 2014); D.R., 57
ECAB 720 (2006).
19

See Annette M. Dent, 44 ECAB 403 (1993). C.C., Docket No. 13-1399 (issued April 24, 2014).

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evidence from a physician addressing how her impairment correlated to the appropriate edition
of the A.M.A., Guides and explaining the causal relationship between the findings and her
permanent impairment, the Board finds that appellant did not meet her burden of proof to
establish her entitlement to a schedule award.
Appellant may request a schedule award based on medical evidence showing progression
of an employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied further merit review of appellant’s claim
under 5 U.S.C. § 8128(a). The Board also finds that appellant has not established that she
sustained a permanent impairment causally related to her employment condition.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 nonmerit decision and
October 20, 2015 merit decision of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 16, 2016
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
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-935
Issued: December 8, 2011

Case Submitted on the Record

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

JURISDICTION
On March 4, 2011 appellant, through his representative, filed a timely appeal from the
December 1, 2010 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.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability beginning
March 2, 2010; and (2) whether OWCP properly terminated appellant’s compensation effective
May 13, 2010 on the grounds that he had fully recovered from the accepted work injury.
FACTUAL HISTORY
On April 1, 2006 appellant, a 49-year-old mail carrier, sustained a right knee injury in the
performance of duty when he stepped up into his postal truck and felt severe pain. He received
1

5 U.S.C. § 8101 et seq.

an emergency room diagnosis of meniscus injury. According to the earliest report, appellant was
completely asymptomatic prior to this trauma and had no previous history of injury to his right
knee. An April 14, 2006 magnetic resonance imaging (MRI) scan showed tricompartmental
degenerative joint disease with changes predominating to the medial knee compartment. There
were also small tears to the posterior horns of both the medial and lateral menisci. Appellant
began treatment for degenerative joint disease.
OWCP accepted appellant’s claim for a right medial collateral ligament sprain and a
transient aggravation of preexisting degenerative arthritis of the right knee. Appellant was able
to return to limited duty. OWCP accepted a recurrence of partial disability beginning
December 5, 2009, when the employer reduced his hours because there was not enough work
available.
Dr. Ira C. Sachs, the attending orthopedic surgeon, found that ongoing right knee
complaints were causally related to the April 1, 2006 work injury. It was his opinion that the
April 1, 2006 incident caused meniscal tears. Dr. Sachs diagnosed medial and lateral meniscal
tears superimposed on degenerative joint disease with traumatic exacerbation of degenerative
joint disease with ongoing right knee pain. In the absence of the meniscal tears, he believed that
the exacerbation of degenerative joint disease would naturally return to baseline, but, in light of
the meniscal tears, he concluded that the exacerbation was necessarily ongoing. Because
conservative treatment had failed, Dr. Sachs recommended knee replacement, though he wanted
to wait until appellant was somewhat older. He was clear that the knee replacement would be
secondary to the April 1, 2006 work injury.
Dr. Ronald Krasnick, a second opinion orthopedic surgeon, agreed that appellant
continued to suffer residuals of the accepted work injury. Appellant had morning stiffness,
achiness with exertion, an inability to climb stairs, kneel, squat or crawl and severe pain at the
end of a day’s work. His knee would swell and buckle on occasion. Dr. Krasnick diagnosed
right knee sprain, medial collateral ligament sprain and transient aggravation of preexisting
degenerative arthritis, right knee, all of which were medically connected to the work injury. He
found that appellant’s limitations prevented him from returning to full duty.
OWCP asked its medical adviser whether knee replacement surgery was medically
indicated and causally related to the April 1, 2006 work injury. He noted that the nature of the
injury was fairly minor and could have caused a meniscal tear, but it was not severe enough to
warrant surgery. The medical adviser explained that the osteoarthritic condition would have
required knee replacement in the near future regardless of whether an injury occurred. There
was no evidence of permanent aggravation and no evidence of articular injury, fracture, major
ligamentous injury or other structural damage that would indicate a permanent aggravation. The
medical adviser concluded that the aggravation was temporary and that appellant had fully
recovered, such that the required knee replacement was not causally related to the work injury.
OWCP found a conflict and referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Joseph A. Jelen, Jr., a Board-certified orthopedic surgery, for
a resolution. Dr. Jelen reviewed appellant’s history and medical record. After describing his
examination findings, he diagnosed right knee strain superimposed on severe degenerative
arthritis and meniscus tear. Dr. Jelen noted that appellant continued to complain of pain, which

2

he stated that he did not have prior to April 1, 2006. He found that appellant was currently
reaching a plateau of improvement. All findings of degenerative arthritis were present prior to
the accident, Dr. Jelen stated and there was no indication on examination, x-rays or MRI scan
that the abnormalities and findings were a result of the accident.
Dr. Jelen described appellant’s history of injury as relatively very minor and his
preexisting arthritic condition as very severe. He believed, based on the history of injury and the
lack of any acute findings on x-ray or MRI scan, that appellant’s current symptoms were
overwhelmingly the result of his degenerative arthritis, which was without a doubt present prior
to any minor injuries sustained. Dr. Jelen found that knee replacement surgery was appropriately
recommended for the preexisting osteoarthritis but would not be done to address any injuries or
aggravation caused by the April 1, 2006 employment injury. “The injuries the patient sustained
as a result of the accident have improved and resolved and any symptoms that he has at this time
are from the natural progression of the osteoarthritis that would have occurred without the
accident.”
Dr. Sachs noted that Dr. Jelen was disregarding appellant’s history of being
asymptomatic prior to the April 1, 2006 injury: “The [physician] cannot state within a
reasonable degree of medical certainty that this arthritic condition was causing this patient any
difficulties prior to his claimed injury and, in fact, the patient claims that they were not.” He
agreed with Dr. Jelen that appellant’s current symptoms were secondary to degenerative arthritis,
but found that this was exacerbated by the work injury, to include superimposed meniscal tears.
As appellant was previously asymptomatic and there was no MRI scan predating the
April 1, 2006 injury demonstrating preexisting meniscal tears, Dr. Sachs explained that one had
to conclude that the meniscal tears were secondary to the injury. Further, if one were to assume
that the meniscal tears were preexisting, one had to take into account that appellant was
asymptomatic prior to April 1, 2006 and, therefore, an exacerbation of appellant’s preexisting
condition would still be diagnosed.
Appellant claimed a recurrence of total disability on March 2, 2010 when, while walking
from a store to his personal vehicle, he felt a sharp pain across the front of his right knee, which
caused his knee to buckle. He explained that he was walking normally and carrying nothing.
Dr. Sachs took appellant off work. He diagnosed ongoing right knee symptomatic degenerative
joint disease secondary to the April 1, 2006 employment injury, when appellant sustained medial
and lateral meniscus tears superimposed on preexisting degenerative joint disease with ongoing
exacerbation of degenerative joint disease.
On May 12, 2010 OWCP denied appellant’s recurrence claim. It explained that
Dr. Sachs indicated no material change to support total disability; he merely provided the same
diagnosis he previously provided to support work limitations.
On May 13, 2010 OWCP terminated appellant’s compensation. It found that Dr. Jelen’s
opinion represented the weight of the medical evidence and established that the effects of the
work injury had ceased and that the need for total knee replacement was not causally related to
the work injury.

3

In a December 1, 2010 decision, an OWCP hearing representative affirmed the denial of
appellant’s recurrence claim and the termination of his compensation.
The hearing
representative found Dr. Jelen’s opinion to be sufficiently reasoned to carry the weight of the
medical evidence.
On appeal, appellant’s representative argues that Dr. Jelen’s opinion is not probative on
the issue of recurrence because he did not address it. He also argues that it is not clear there was
a true conflict between Dr. Sachs and Dr. Krasnick or between Dr. Sachs and the medical
adviser. Counsel adds that OWCP erred in not seeking clarification from Dr. Jelen. He asks the
Board to vacate OWCP’s December 1, 2010 decision and remand the case for further
development of the medical evidence.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.3
When an employee who is disabled from the job he held when injured on account of
employment-related residuals returns to a limited-duty position, or the medical evidence of record
establishes that he can perform the limited-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such limited duty. As part of his burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty job requirements.4
ANALYSIS -- ISSUE 1
Appellant claimed a recurrence of total disability beginning March 2, 2010. He has the
burden of proof to show a change in the nature and extent of his injury-related condition or a
change in the nature and extent of his light-duty job requirements.
Appellant did not claim the latter. Rather, he claimed that on March 2, 2010 he was
walking from a store to his personal vehicle. Appellant was walking normally and carrying
nothing when he felt a sharp pain across the front of his right knee. The knee buckled. The issue
is whether it was a change in the nature and extent of the injury-related condition that caused him
to stop work that day.
Dr. Sachs took appellant off work, but he did not mention what happened on
March 2, 2010. He diagnosed ongoing symptomatic degenerative joint disease secondary to the
2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Terry R. Hedman, 38 ECAB 222 (1986).

4

April 1, 2006 injury, but he did not show an objective disabling change in the nature and extent
of that condition. Dr. Sachs offered almost no support for appellant’s claim.
The Board finds that appellant failed to meet his burden to establish a recurrence of total
disability beginning March 2, 2010. The Board will affirm OWCP’s December 1, 2010 decision
on the issue of recurrence.
Appellant’s representative argues that Dr. Jelen, the impartial medical specialist, was not
probative on the recurrence issue. This is true and for good reason. The recurrence issue did not
arise until after Dr. Jelen’s report. OWCP selected Dr. Jelen to resolve a conflict on whether the
accepted employment injury had resolved, not to address a recurrence that was not yet claimed.
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.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 After it has determined that an employee has disability
causally related to federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.6
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7
ANALYSIS -- ISSUE 2
A conflict arose between Dr. Sachs and an OWCP medical adviser on whether appellant
had recovered from the April 1, 2006 work injury. Dr. Sachs remained of the opinion that
appellant continued to suffer residuals of the accepted aggravation of degenerative joint disease,
disabling residuals that would require a total knee replacement. The medical adviser disagreed.
His opinion was that the accepted aggravation was temporary and that appellant had fully
recovered and, therefore, the required knee replacement was not causally related to the work
injury. Under section 8123(a) of FECA, OWCP properly referred appellant to Dr. Jelen to
resolve the conflict.
Dr. Jelen concluded that the injuries appellant sustained on April 1, 2006 had resolved.
He found that any current symptoms were from the natural progression of osteoarthritis and
would have arisen without the accident. Dr. Jelen offered some rationale. The history of injury
5

Harold S. McGough, 36 ECAB 332 (1984).

6

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
7

5 U.S.C. § 8123(a).

5

was relatively very minor; the preexisting arthritis was very severe. There were no acute
findings on x-ray or MRI scan. While such observations might be consistent with the theory he
presented, they do not explain when the natural progression of appellant’s degenerative condition
was suppose to have begun or when the accepted aggravation was suppose to have ended. It may
be, as Dr. Jelen postulated, that without injury appellant’s knee would have become symptomatic
over time, but it had not done so by April 1, 2006. Whether it would have done so over the next
few years appears to be a matter of speculation.8 What is not a matter of speculation is that the
April 1, 2006 employment injury aggravated the underlying and, by history, asymptomatic
degenerative condition, causing disability and the need for continuing medical attention. It is a
well-established principle that to hasten disability is to cause it.9 Dr. Jelen offered nothing to
substantiate the coincidence that appellant’s degenerative condition would have obtained its
current state had the April 1, 2006 aggravation never occurred.
Whether and when the accepted aggravation of appellant’s degenerative condition ceased
is an issue of medical proof. Dr. Jelen offered his opinion on the former but did not provide
sufficient rationale or evidence to support it.10 The depth of the medical reasoning required to
support an opinion may vary from case to case depending on the nature of the condition and the
circumstances presented.11 The evidence required is only that necessary to convince the
adjudicator that the conclusion drawn is rational, sound and logical.12 The evidence for Dr. Jelen’s
opinion appears lacking.
The Board finds, therefore, that Dr. Jelen’s opinion has diminished probative value and is
not entitled to special weight in resolving the conflict between Dr. Sachs and OWCP’s medical
adviser. As that conflict remains unresolved, the Board will reverse OWCP’s December 1, 2010
decision on the issue of termination of compensation. The Board will remand the case for
payment of appropriate compensation retroactive to the date of termination.
On appeal, appellant’s representative asks the Board to vacate OWCP’s December 1,
2010 decision and remand the case for further development of the medical evidence. As OWCP
carries the burden of proof to justify the termination of appellant’s compensation and as it failed
to discharge that burden, the Board will instead reverse the termination and order the
reinstatement of appellant’s benefits.

8

See Philip J. Deroo, 39 ECAB 1294 (1988) (although the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty,
neither can such opinion be speculative or equivocal).
9

Henry L. Price, 3 ECAB 49 (1949); Wilred K. Granger, 2 ECAB 190 (1949).

10

Medical conclusions unsupported by rationale are of little probative value. Ceferino L. Gonzales, 32 ECAB
1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).
11

See, e.g., Anna Strehl (William Strehl), 2 ECAB 74 (1948) (holding that “the common sense of the situation”
called for a finding that the illness was due to conditions of employment).
12

Kenneth J. Deerman, 34 ECAB 641, 645 (1983).

6

CONCLUSION
The Board finds that appellant did not meet his burden to establish that he sustained a
recurrence of total disability beginning March 2, 2010. The Board also finds that OWCP did not
meet its burden to justify the termination of appellant’s compensation.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed on the issue of recurrence and is reversed on the
issue of termination. The case is remanded for further action consistent with this opinion.
Issued: December 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, LA CENTER POST
OFFICE, La Center, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0354
Issued: May 27, 2020

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 December 4, 2018 appellant filed a timely appeal from an October 5, 2018 merit
decision and a November 16, 2018 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a left
shoulder condition causally related to the accepted factors of her federal employment; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of her
claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2018 appellant, then a 58-year-old rural carrier associate, filed an occupational
disease claim (Form CA-2) alleging that she developed a full rotator cuff tear of her left shoulder
due to factors of her federal employment, including falling at work on December 19, 2017, as well
as engaging in repetitive motion, consisting of lifting, required by her job duties. She noted that
she first became aware of her condition on December 20, 2017 and realized its relation to her
federal employment on June 26, 2018. Appellant stopped work on June 27, 2018.
Appellant submitted a June 27, 2018 statement in which she indicated that, on
December 19, 2017, she fell on slippery steps at work and landed on her left side with her left
shoulder, hand, and knee bearing the brunt of the fall. She advised that she continued to work
thereafter as a rural carrier associate and noticed that she experienced increased difficulty with her
left shoulder over time.2 In a separate June 27, 2018 statement, appellant indicated that her federal
employment duties included pushing carts, lifting/handling mail trays weighing up to 20 pounds,
casing/sorting mail, loading and cleaning her mail truck, and delivering mail (including packages
and parcels). She submitted a job description for her rural carrier associate position.
Appellant also submitted a June 27, 2018 report from Dr. Nina Upham, Board-certified in
family and sports medicine, who noted that appellant had been treated on June 13, 2018 and had a
magnetic resonance imaging (MRI) scan of her left shoulder performed on June 26, 2018.
Dr. Upham recommended work restrictions of no lifting, pushing, or pulling more than 10 pounds,
and no engaging in overhead activities with her left arm until she was released for work by an
orthopedic surgeon.
In a development letter dated July 20, 2018, OWCP informed appellant that it had not
received a medical report containing a diagnosis of a medical condition resulting from her claimed
employment factors. It requested that she submit additional factual and medical evidence,
including a physician’s opinion supported by a medical explanation as to how her federal
employment activities caused, contributed to, or aggravated her medical condition. OWCP
afforded appellant 30 days to submit the requested evidence.3
Appellant subsequently submitted a May 1, 2018 x-ray of her left shoulder which contained
an impression of suspected small faintly calcified intra-articular loose bodies.
In a report dated August 6, 2018, Dr. Casey Cornelius, an osteopath Board-certified in
orthopedic surgery, provided a history of appellant’s left shoulder problems. He noted that she
related that her symptoms had begun approximately eight months prior when she fell at work,
landing on her left shoulder. Appellant further related experiencing pain along the lateral aspect
of her left shoulder. Dr. Cornelius also provided a separate history of her left shoulder problems

2

Appellant noted that, during this period, she also worked on a part-time basis delivering parcels for a private
employer.
3
On July 20, 2018 OWCP requested that the employing establishment provide comments regarding the accuracy
of appellant’s statements within 30 days.

2

which he represented as having been taken from a June 13, 2018 report of Dr. Upham.4 He noted
that Dr. Upham had indicated in her June 13, 2018 report that appellant had arthroscopic surgery
on September 22, 2016 to repair a right rotator cuff tear, and that she reported experiencing aching
left shoulder pain because she compensated with her left arm during the period of recovery from
her right shoulder surgery. Dr. Cornelius also indicated that Dr. Upham noted that appellant
reported that she recently commenced working at the employing establishment in a job which
involved repetitive overhead lifting and carrying heavy mail trays, and that her left shoulder pain
had worsened.5 Dr. Cornelius then reported the findings of his own physical examination of
appellant’s left shoulder on August 6, 2018, noting that appellant exhibited tenderness to palpation
lateral to the acromion, and positive results upon testing for Neer, Hawkins, and empty can signs.
Appellant also had positive O’Brien’s and Speed’s tests. Dr. Cornelius reviewed the June 26, 2018
MRI scan of appellant’s left shoulder and diagnosed rotator cuff tear of the left shoulder.
In an August 3, 2018 letter, appellant’s immediate supervisor indicated that on
December 19, 2017 appellant informed her that she had fallen on that date, and that in June 2018
she advised that she could not work due to effects of the December 19, 2017 fall.
By decision dated October 5, 2018, OWCP accepted the employment factors as alleged.
However, it denied appellant’s occupational disease claim because the medical evidence of record
failed to establish a left shoulder condition causally related to the accepted factors of her federal
employment. OWCP noted that “requirements have not been met for establishing that you
sustained an injury and/or medical condition causally related to the accepted work event(s).”
On October 29, 2018 appellant requested reconsideration of the October 5, 2018 decision.
In an October 29, 2018 statement, she noted that Dr. Upham’s June 13, 2018 report “was an
opinion discussed with her before the MRI [scan]” and that, subsequent to the MRI scan, she knew
her left shoulder problems initially occurred when she fell at work on December 19, 2017.
Appellant indicated that subsequent to this fall, her repetitive work duties, including loading
trucks, making deliveries, and reaching, had worsened her original left shoulder injury. She
indicated that she was attaching a November 2, 2016 report from Joseph Mathias, a physician
assistant, who noted that her right shoulder had healed after surgery. Appellant contended that she
had no further problems with either shoulder until the December 19, 2017 fall. She advised that
she experienced left shoulder pain after the fall, but noted that her repetitive work activities
worsened this pain and she then became convinced that she had to file a Form CA-2.
With her reconsideration request, appellant submitted a November 2, 2016 report from
Mr. Mathias who detailed his examination of appellant’s right shoulder and discussed a treatment
plan.
By decision dated November 16, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

4

The case record does not contain a copy of a June 13, 2018 report of Dr. Upham.

5
Dr. Cornelius also noted that Dr. Upham reported administering a corticosteroid injection to appellant’s left
subacromial bursa.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,7 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.8 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.9
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.10
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.11 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.12 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).13
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment.

6

Supra note 1.

7
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

12

M.V., Docket No. 18-0884 (issued December 28, 2018).

13

Id.; Victor J. Woodhams, supra note 10.

4

Appellant submitted a June 27, 2018 report from Dr. Upham who recommended temporary
work restrictions, but did not provide an opinion on the cause of a diagnosed medical condition.
The Board has held that medical evidence offering no opinion about the cause of an employee’s
medical condition is of no probative value on the issue of causal relationship.14 Therefore, the
June 27, 2018 report from Dr. Upham is of no probative on causal relationship and is insufficient
to establish appellant’s occupational disease claim. Similarly, standing alone, the diagnostic report
dated May 1, 2018 lacks probative value as it did not provide an opinion on causal relationship
between appellant’s accepted employment duties and a diagnosed medical condition.15
In his August 6, 2018 report, Dr. Cornelius detailed the findings of his own physical
examination and diagnosed rotator cuff tear of the left shoulder. The Board finds that this report
also is of no probative value in establishing the present occupational disease claim because,
although Dr. Cornelius mentioned that appellant related her left shoulder problems to both a
December 19, 2017 fall at work and her repetitive job duties as a rural carrier associate, he did not
provide his own opinion that it was caused or aggravated by the accepted employment factors.16
As such, Dr. Cornelius’ August 6, 2018 report is insufficient to establish appellant’s occupational
disease claim.
As appellant has not submitted rationalized medical evidence establishing causal relationship
between a diagnosed medical condition and the accepted factors of her federal employment, she has
not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his or her own motion or on application.17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

See S.G., Docket No. 17-1054 (issued September 14, 2017).

16

See supra note 14.

17
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); V.P., Docket No. 17-1287 (issued
October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21 The Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.22
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant made a timely request for reconsideration of OWCP’s October 5, 2018 denial of
her occupational disease claim and submitted a statement in which she discussed the history of her
left shoulder symptoms and her belief that her left shoulder problems were due to both a
December 19, 2017 fall at work and her repetitive job duties. However, she did not show that
OWCP erroneously applied or interpreted a specific point of law, or advance a new and relevant
legal argument not previously considered by OWCP. Consequently, appellant was not entitled to
a review of the merits based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).23
Appellant submitted a November 2, 2016 report which was authored by Joseph Mathias, a
physician assistant. The Board has held that certain healthcare providers, including physician
assistants, are not considered to be physicians as defined under FECA. Consequently, their

18

20 C.F.R. § 10.606(b)(3); see M.S., Docket No. 18-1041 (issued October 25, 2018); L.G., Docket No. 09-1517
(issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
19
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.608(a); see D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); see T.V., Docket No. 19-1504 (issued January 23, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
22

M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

23

See supra note 19.

6

medical findings and/or opinions are insufficient to establish entitlement to FECA benefits.24 The
underlying issue on reconsideration was whether appellant had submitted sufficient medical
evidence to establish a causal relationship between her left shoulder condition and the accepted
factors of her federal employment. Because the November 2, 2016 report was not from a physician
as defined under FECA, it is irrelevant to the underlying issue of causal relationship.25 The
submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case.26 Consequently, appellant was not entitled to a review of
the merits based on the third above-noted requirement under 20 C.F.R. § 10.606(b)(3).27
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition causally related to the accepted factors of her federal employment. The Board further
finds that OWCP properly denied appellant’s request for reconsideration of the merits of her claim
pursuant to 5 U.S.C. § 8128(a).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); B.K., Docket No. 19-0829 (issued September 25, 2019) (physician
assistants are not physicians under FECA); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such
as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
24

25

Id.

26

See supra note 23. See also E.G., Docket No. 18-0270 (issued August 24, 2018); Eugene F. Butler, 36 ECAB
393, 398 (1984).
27

See supra note 19.

7

ORDER
IT IS HEREBY ORDERED THAT the November 16 and October 5, 2018 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 27, 2020
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0965
Issued: November 19, 2018

Case Submitted on the Record

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

JURISDICTION
On April 10, 2018 appellant, through counsel, filed a timely appeal from a March 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 her burden of proof to establish an emotional
condition in the performance of duty on July 20, 2017, as alleged.
FACTUAL HISTORY
On July 25, 2017 appellant, then a 56-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on July 20, 2017 she sustained an emotional condition at work.
On the Form CA-1, she indicated that reference should be made to an attached statement regarding
the cause of the claimed emotional condition. Appellant stopped work on July 27, 2017.
In a July 25, 2017 statement, appellant indicated that on July 19, 2017 a coworker, T.R.,
arrived at the health unit with documentation dated July 17, 2017 which outlined his work
restrictions. She informed T.R. that the documentation was insufficient according to employee
labor relations manual and advised him he would need additional documentation from his
physician that included a medical diagnosis and rationale for his work restrictions. T.R. returned
with a Family and Medical Leave Act (FMLA) form and appellant told him that the form had to
be submitted to another office for FMLA authorization. On July 20, 2017 P.R., a human resources
management specialist and acting human resources management manager, who was T.R.’s wife,
arrived at the health unit and inquired as to why T.R.’s restrictions were not in the health unit log.
Appellant advised P.R. that she could not and would not discuss T.R.’s medical information with
her. P.R. left the office and then returned with T.R. and stated that T.R. would give appellant
permission to talk to her about the medical information. T.R. then provided such permission, but
appellant refused to discuss T.R.’s medical information with P.R. and she asked her to leave so
that she could discuss the information with T.R. alone. Appellant asserted that P.R. started yelling
at her and inquiring why T.R.’s restriction was not in the health unit log. At that time, T.R. also
began to raise his voice when speaking to appellant about his medical documentation.
Appellant further noted that, J.Y., a nurse in the health unit, then walked up to her cubicle
during this exchange of conversation and witnessed what was taking place. She indicated that she
informed P.R. and T.R. that it was an ethical issue for her to discuss T.R.’s medical information
with her. Appellant also advised that there was a conflict of interest given that P.R. was the acting
human resources management manager, and she asked P.R. to control her voice when addressing
her. She advised P.R. and T.R. that there were three nurses in the health unit who could work on
the health unit log and only one person could work on the log at a time. Appellant then asked P.R.
and T.R. to leave her office. She asserted that the conversation was extremely loud, intimidating,
and quite threatening. Appellant asserted that P.R. and T.R. were both standing in her cubicle,
which was a very small area, and they stood over her and yelled at her. She indicated that the
situation made her feel harassed, intimidated, threatened, and unsafe. Appellant noted that she had
been physically and verbally harassed by another employing establishment manager in the past.
Appellant submitted various documents, including witness statements and e-mail
communications, in which individuals discussed their knowledge, or lack of knowledge about the
events of July 20, 2017.

2

In a July 24, 2017 e-mail, J.Y. indicated that she heard P.R. and T.R. speaking in “loud
voices” with appellant on July 20, 2017 while she was working in her cubicle near them. She
noted that P.R. asked appellant questions about T.R.’s medical documentation, but that appellant
refused to talk with her about it due to ethical concerns. In a July 26, 2017 statement, R.S., a
human resources specialist, indicated that appellant and J.Y. reported to her that P.R. and T.R.
spoke in a tone “that they did not like” on July 20, 2017.
In a July 24, 2017 e-mail, N.L., a nurse in the health unit, indicated that on July 20, 2017
she heard appellant tell P.R. that she could not discuss T.R.’s medical documentation with her due
to ethical issues. She noted that she did not hear P.R. raise her voice or become intimidating
towards appellant. In a July 31, 2017 statement, L.N., indicated that she did not hear any
communication between appellant and P.R. on July 20, 2017. In an August 1, 2017 statement,
S.O. indicated that she did not hear anything even though she was at her desk most of the day on
July 20, 2017.
In a July 20, 2017 e-mail, P.R. indicated that she approached appellant about T.R.’s
medical records on that date, and appellant refused to discuss the subject, citing ethical issues. She
discussed her summoning of her husband, T.R., to speak to appellant and give her permission to
speak to her about the matter. P.R. then discussed the remainder of the conversation that she and
T.R. had with appellant on July 20, 2017. In a July 27, 2017 e-mail, T.R. discussed the portion of
the July 20, 2017 conversation in which he participated, noting that appellant indicated that she
would not discuss his medical records with P.R. due to a conflict of interest.
Appellant submitted a July 17, 2107 disability note of Dr. Lauri Lowenbraun, an attending
Board-certified psychiatrist.
In an August 14, 2017 development letter, OWCP requested that appellant submit
additional factual and medical evidence in support of her emotional condition claim. In another
August 14, 2017 letter, it asked the employing establishment to respond to appellant’s allegations.
In an August 14, 2017 statement, appellant provided a discussion of her July 20, 2017
conversation with T.R. and P.R. which was substantially similar to that contained in her July 25,
2017 statement. She also submitted handwritten responses to the August 14, 2017 development
letter in which she asserted that P.R. and T.R. yelled at her and harassed her on July 20, 2017.
In a September 5, 2017 statement, T.P., manager of health and resource management, noted
that on July 24, 2017 a coworker, J.A., advised about her attempts to obtain appellant’s version of
the July 20, 2017 incident. J.A. told T.P. that she approached appellant about the July 20, 2017
incident, but appellant stated that she was fine and declined to discuss the matter. T.P. spoke with
P.R. on July 25, 2017 and P.R. acknowledged that she approached appellant regarding T.R.’s work
restrictions. On July 26, 2017 appellant came to T.P.’s office, provided a description of the
July 20, 2017 incident, and submitted the traumatic injury claim form.
Appellant also submitted reports from Dr. Lowenbraun and Marisa Rodriguez, a clinical
psychologist.
By decision dated September 13, 2017, OWCP denied appellant’s emotional condition
claim because appellant failed to establish a compensable employment factor. It found that P.R.
3

and T.R. spoke to appellant loudly on July 20, 2017, but such occurrence did not rise to the level
of verbal abuse.
On September 20, 2017 counsel requested a telephone hearing with a representative of
OWCP’s Branch of Hearings and Review.
During the hearing held on January 31, 2018, appellant testified about her conversation
with P.R. and T.R. on July 20, 2017, noting that J.Y was in an adjacent cubicle and N.L. also was
present when P.R. and T.R. were in the health unit. She testified that P.R. and T.R. came close to
her inside of her cubicle and yelled at her. Appellant indicated that she did not file an Equal
Employment Opportunity (EEO) claim regarding the claimed incident, but she did file a complaint
with T.P. Counsel argued that reports by treating physicians established that appellant’s exposure
to loud voices at work caused post-traumatic stress disorder.
Appellant submitted additional reports from Dr. Lowenbraun and Ms. Rodriguez.
By decision dated March 16, 2018, OWCP’s hearing representative affirmed OWCP’s
September 13, 2017 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.3 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.4
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.6
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
3

Lillian Cutler, 28 ECAB 125 (1976).

4

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

5

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

6

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

4

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, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, OWCP must base its decision on an analysis of the medical evidence.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty on July 20, 2017, as alleged.
Appellant alleged that she sustained an emotional condition due to an incident at work on
July 20, 2017. The Board must initially review whether this incident is a covered employment
factor under the terms of FECA. The Board notes that appellant’s claim does not directly relate to
her regular or specially assigned duties under Lillian Cutler.9 Rather, appellant primarily claimed
that she was subjected to harassment and discrimination on July 20, 2017.
Appellant claimed that harassment and discrimination occurred on July 20, 2017 when
P.R., the acting human resources management manager, and T.R., a coworker and P.R.’s husband,
yelled at her when discussing T.R.’s medical documentation relating to his work restrictions. She
indicated that P.R. attempted to get her to discuss T.R.’s medical documentation with her, but that
she refused because she felt that it would be unethical to do so. Appellant claimed that she felt
threatened, intimidated, and unsafe due to P.R. and T.R. speaking loudly to her in a confined space
on July 20, 2017.
The Board has held that unfounded perceptions of harassment do not constitute an
employment factor.10 Mere perceptions are not compensable under FECA and harassment can
constitute a factor of employment if it is shown that the incidents constituting the claimed
harassment actually occurred.11
The Board notes that appellant has submitted evidence showing that P.R. and T.R. spoke
loudly to her on July 20, 2017. The record contains a statement from a coworker, Y.P., who was
in close proximity for most of the time the conversation was held. She indicated that she heard
P.R. and T.R. speaking loudly with appellant. However, the Board has held that speaking loudly
is not by itself sufficient to establish a compensable work factor.12 The Board further notes that
7

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

8

Id.

9

See supra note 3.

10

See F.K., Docket No. 17-0179 (issued July 11, 2017).

11

See id.

12

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

5

appellant has not submitted sufficient evidence to show that the actions or statements of P.R. and
T.R. on July 20, 2017 rose to the level of harassment or discrimination. She has not submitted
evidence that they made any particular threatening or abusive comments.13 The Board has held
that, while some statements may be considered abusive and constitute a compensable factor of
employment, not every statement uttered in the workplace will be covered by FECA.14
For these reasons, appellant has not established a compensable employment factor with
respect to the claimed harassment and discrimination.
The Board further notes that, given P.R.’s role as a manager, the July 20, 2017 discussion
about medical documentation relating to the development of work restrictions could be considered
to be an administrative or personnel matter. Administrative and personnel matters, although
generally related to the employee’s employment, are administrative functions of the employer
rather than the regular or specially assigned work duties of the employee and are not covered under
FECA.15 However, the Board has held that, where the evidence establishes error or abuse on the
part of the employing establishment in what would otherwise be an administrative matter, coverage
will be afforded.16 In determining whether the employing establishment has erred or acted
abusively, the Board will examine the factual evidence of record to determine whether the
employing establishment acted reasonably.17
The Board notes, however, that appellant did not substantiate any error or abuse committed
by P.R. on July 20, 2017 in her role as a manager. Appellant did not present a final holding of a
grievance or other form of complaint showing that such error or abuse occurred. Therefore, she
did not establish a compensable employment factor with respect to administrative or personnel
matters.
For these reasons, the Board finds that appellant has not established a compensable
employment factor. Given the Board’s finding on the factual aspect of her case, it is unnecessary
to consider the medical evidence of record.18

13

Moreover, appellant did not present a final holding of a grievance or other form of complaint alleging harassment
or discrimination which showed that such harassment or discrimination actually occurred. During the January 31,
2018 hearing, appellant indicated that she filed a complaint with T.P., the human resources management manager, but
the record does not contain any documents concerning such a grievance.
14

See generally C.T., Docket No. 08-2160 (issued May 7, 2009).

15
Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
16

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

17

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

18
See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors).

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty on July 20, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 16, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2018
Washington, DC

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

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

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

7