United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Sam Dexter, MO, Employer
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___________________________________________ )
K.P., Appellant

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

Docket No. 09-2329
Issued: June 29, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2009 appellant filed a timely appeal from an August 28, 2009 decision
of the Office of Workers’ Compensation Programs affirming a March 12, 2009 decision denying
her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
issues in this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
back condition in the performance of duty.
FACTUAL HISTORY
On November 29, 2008 appellant, then a 50-year-old rural letter carrier, filed an
occupational disease claim alleging that she sustained a pinched nerve in her low back and a

possible L4-5 herniated disc as a result of twisting and turning while in the performance of duty.1
She became aware of her lumbar condition in 2003 and realized it was caused by her federal
employment in November 2008. Appellant did not stop work.
By letters dated December 18, 2008, the Office advised appellant and the employing
establishment that additional factual and medical evidence was needed.
In a November 7, 2008 report, Dr. Franklin Hayward, a Board-certified neurosurgeon and
osteopath, noted that appellant was being treated for cervical pain and paresthesias. He also
noted that she presented with right leg pain, which was present since 2001. Dr. Hayward stated
that appellant’s leg was worse while working as she had to sit in an awkward position in a truck
and bend and twist to distribute mail. Appellant attributed her pain to her work and noticed an
improvement when she was off work for a few weeks. Dr. Hayward recommended a
microdiscectomy, lumbar laminectomy at L4-5 on the right. He stated that “it is reasonable that
her work could have caused this or at least exacerbated her complaint being as [appellant’s] pain
is made worse while at work and [she] noticed an improvement in her pain since being off
work.” In a December 16, 2008 report, Dr. Hayward opined that he was “unsure” of the
causality of a disc herniation at L4-5; however, it appeared that appellant’s condition was “being
aggravated by the continuous bending and twisting at her workplace.” In a December 20, 2008
report, he reviewed a magnetic resonance imaging (MRI) scan that showed disc desiccation at
L4-5 and L5-S1. He explained that appellant did not wish to undergo a surgery as her pain had
improved.
A December 30, 2008 lumbar MRI scan, read by Dr. Vernon W. Barrow, a Boardcertified diagnostic radiologist, revealed a mild broad based disc bulge at L4-5 and L5-S1.
In a statement dated December 30, 2008, appellant noted that her back and leg pain was
worse after unloading, bending and stooping. Her physician advised that staying in a bent
position “probably caused my back to flair up.” Appellant performed limited duties that
included intermittent walking, standing, sitting and lifting no more than 15 pounds. She stated
that her physician advised her that her back condition was likely due to her duties which included
driving and sitting in her mail truck for 28 years.
In a statement dated January 12, 2009, Kelly Miesner, an employing establishment health
and resource management specialist, controverted the claim. She noted that appellant worked
with horses and had participated in competitive barrel racing for years. Ms. Miesner advised that
appellant qualified for the National Barrel Horse Association (NBHA) World Championships as
recently as 2007. She noted that appellant did not address her outside hobbies. Ms. Miesner
stated that appellant had not performed her rural carrier duties since May 23, 2008. She enclosed
a copy of a qualifying sheet for the NBHA World Championships, which revealed that appellant
was listed as being qualified for an open slot. In an undated statement, Michael Pullam, the
postmaster, noted that appellant had an accident earlier in the year, which was not witnessed and
that she rode horses and was a competitive barrel racer.
1

Appellant has a prior accepted claim for a May 23, 2008 employment injury. The Office accepted the claim for
concussion without coma, sprain of the knee and leg, tear of the medial meniscus and cervical disc displacement
(herniated disc). No. xxxxxx166. This other claim is not presently before the Board.

2

By decision dated March 12, 2009, the Office denied appellant’s claim. It found that the
medical evidence did not establish that her claimed back condition was related to the established
work activities.
Appellant requested a hearing that was held on June 5, 2009. In a May 26, 2009
statement, she detailed her experiences with her horses and barrel racing. Appellant explained
that, at most, she lifted a three-pound coffee can to put grain in to feed the horses, they were selfwatered and that hired hands delivered hay. She would have to cut the wire from around the bale
and take a couple flakes of hay at a time. Appellant explained that her barrel racing activities
were purely leisure and not physically stressful. On July 26, 2004 Dr. Neal Garner, a Boardcertified family practitioner and osteopath, noted that appellant related that she “ends up having
to sit in some crazy positions at her work and she states that in thinking about that that there may
be some relationship there.” Dr. Garner determined that she had probable sciatica along the right
leg and hip.
In a June 30, 2009 letter, the employing establishment again controverted the claim. On
August 6, 2009 appellant reiterated that she engaged in bending and twisting at work.
In an August 28, 2009 decision, an Office hearing representative affirmed the Office’s
March 12, 2009 decision. She found that the medical evidence was not sufficient to establish the
claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

3

evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS
The evidence establishes that appellant has a broad-based disc bulge at L4-5 and L5-S1
and engaged in twisting and turning activities while in the performance of duty. However, she
did not submit sufficient medical evidence to establish that her lumbar disc condition was caused
or aggravated by the activities she performed in federal employment.
In a July 26, 2004 treatment note, Dr. Garner noted that appellant related a history of
sitting “in some crazy positions at her work and she states that in thinking about that there may
be some relationship there.” He found that she had probable sciatica along the right leg and hip.
Although Dr. Garner noted that appellant believed that there was a relationship between her back
condition and her federal employment, he did not offer an opinion regarding the cause of her
condition. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.6
Dr. Hayward reported a history of right leg pain since 2001. He noted that appellant
advised that her leg became worse while working as she had sat awkwardly in a truck and bend
and twist to distribute mail. Dr. Hayward recommended a microdiscectomy and lumbar
laminectomy at L4-5 on the right. Regarding the issue of causal relation, he opined that “it is
reasonable that her work could have caused this or at least exacerbated her complaint being as
the patient’s pain is made worse while at work and the patient noticed an improvement in her
pain since being off work.” The Board has held that medical opinions stating that there “could
be” a causal relationship are speculative in nature and diminish the probative value of
Dr. Hayward’s opinion.7 Moreover, Dr. Hayward did not provide a medical opinion based on a
full and accurate history of appellant’s work duties and outside activities, including barrel racing.
A claimant must submit a physician’s report that addresses the employment factors identified as
causing the claimed condition and taking these factors into consideration as well as findings
upon examination, states whether the employment injury caused or aggravated the diagnosed
conditions and presents medical rationale in support of his or her opinion.8 The Board notes that
while appellant stated that her barrel horse racing activities were relaxing, Dr. Hayward did not
relate a history of this activity or explain how this would affect her diagnosed low back
5

Id.

6

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009).

7

Id.

8

D.E., 58 ECAB 448 (2007); J.M., 58 ECAB 303 (2007).

4

condition.9 On December 16, 2008 Dr. Hayward stated that he was “unsure” of the causality of a
disc herniation at L4-5; however, it appeared that appellant’s condition was “being aggravated by
the continuous bending and twisting at her workplace.” This opinion on causal relationship is
also speculative and of limited probative value. Dr. Hayward did not adequately explain how
appellant’s modified work duties caused or aggravated her back condition to a reasonable degree
of medical certainty. He did not discuss the reasons how twisting or turning caused or
aggravated the diagnosed L4-5 herniation.
The December 20, 2008 MRI scan from Dr. Barrow reported findings and did not provide
any opinion on the cause of the reported condition. Other medical evidence provided by
appellant also did not address causal relationship.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.10
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is no reasoned medical evidence based on a full and accurate factual history
explaining how appellant’s employment duties caused or aggravated her back condition.
Appellant has not met her burden of proof to establish that she sustained a lumbar condition in
the performance of duty.12
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained a back condition causally related to factors of her federal employment.

9

See Cowan Mullins, 8 ECAB 155, 158 (1955) (where the Board held that a medical opinion based on an
incomplete history was insufficient to establish causal relationship).
10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

12

The Board notes that appellant submitted evidence subsequent to the August 25, 2008 Office decision. The
Board cannot consider this evidence, however, as its review of the case is limited to the evidence of record which
was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2009 is affirmed.
Issued: June 29, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0338
Issued: July 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 30, 2018 appellant, through counsel, filed a timely appeal from a June 5,
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 lumbar conditions
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On January 14, 2015 appellant, then a 61-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a back injury as a result of her federal
employment duties, which entailed delivering packages using repetitive back and forth motions,
standing and walking for long periods of time, and climbing stairs while carrying heavy packages.
She noted that she first became aware of her condition, and its relationship to her federal
employment, on September 12, 2014. On the reverse side of the claim form the employing
establishment indicated that appellant first reported her condition to her supervisor and was last
exposed to conditions alleged to have caused her disease on January 9, 2015. She did not indicate
whether appellant stopped work.
In a report dated January 4, 2015, Dr. Daniel Edward Gavino, a Board-certified family
practitioner, indicated that a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
showed forward slippage of the L5 vertebrae over the S1 vertebrae and arthritis which contributed
to narrowing of the foramen at the L5 level.
In a supplemental statement dated January 8, 2015, appellant related that her employment
duties required her to place constant pressure and strain on her back due to repetitive motions
throughout the day. Her employment duties included picking, pulling, grabbing, and sorting mail,
and grabbing and lifting cases of mail for delivery. Appellant also explained that she sorted mail
by pulling and placing into cases, following which she picked up and loaded the cases into her
vehicle. She then delivered mail to customers’ mailboxes by walking and climbing stairs
continuously throughout the day. Appellant noted that she had been previously diagnosed with
chronic low back pain with radiation to her right lower leg and foot.
In a development letter dated January 27, 2015, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the medical evidence
needed and afforded her 30 days to submit the necessary evidence.
In a report dated January 8, 2015, Dr. John Madanat, Board-certified in physical medicine
and rehabilitation, indicated that appellant had a history of back pain, and previous diagnoses
including cervical spine radiculopathy, lumbar spine spondylolisthesis, moderate degenerative
disc disease at C5-6, subtle scoliosis, mild posterior subluxation of L4 on L5, grade 2
anterolisthesis of L5 on S1 with bilateral spondylolysis, and grade 1 spondylolosthesis of L4 over
L5. After review of a lumbar spine MRI scan, Dr. Madanat diagnosed grade 2 anterolisthesis of
L5 on S1 with bilateral L5 spondylosis, mild narrowing of the left neural foramen, and mild-tomoderate narrowing of the right neural foramen. He indicated that appellant may return to work.
By decision dated April 13, 2015, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that her diagnosed conditions were causally related
to the accepted factors of her federal employment.

2

On May 4, 2015 appellant requested an oral hearing before an OWCP hearing
representative.
A hearing was held on November 20, 2015 wherein appellant discussed her employment
duties, her history of injury, and her course of treatment regarding her lumbar conditions.
By decision dated January 21, 2016, OWCP’s hearing representative affirmed the April 13,
2015 decision finding that the evidence of record was insufficient to establish that appellant’s
diagnosed conditions were causally related to the accepted factors of her federal employment.
On November 1, 2016 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
In a letter dated June 27, 2016, Dr. Kamran Sahrakar, a Board-certified neurosurgeon,
reviewed appellant’s history of injury and statement regarding her employment duties. Based on
objective studies, including a lumbosacral spine radiograph and a lumbar spine MRI scan, he
diagnosed posterior subluxation of L4 on L5, grade 2 anterolisthesis of L5 on S1 with associated
bilateral spondylolysis, moderate changes of spondylolysis at L5-S1 with disc space narrowing,
eburnation, and osteoarthritis of the facet joints of the lower lumbar spine, and moderate narrowing
of the right L5-S1. Dr. Sahrakar opined that appellant’s job duties required her to perform physical
activities that would aggravate her condition.
By decision dated June 5, 2018, OWCP denied modification of the January 21, 2016
decision finding that the evidence of record was insufficient to establish that appellant’s diagnosed
conditions were causally related to the accepted factors of her federal employment. It also found
that she had not provided rationalized medical evidence explaining how her specific claimed
employment activities aggravated her diagnosed preexisting condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 period of FECA,4 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.5 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.6
3

Supra note 2.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron,41 ECAB 153 (1989).
5

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
6
S.C., id.; 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).

3

To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish lumbar
conditions causally related to the accepted factors of her federal employment.
In his January 8, 2015 medical report, Dr. Madanat diagnosed multiple lumbar conditions
and reiterated appellant’s allegations pertaining to her employment duties. However, he did not
opine as to the cause of her conditions. Such generalized statements do not establish causal
relationship because they merely repeat appellant’s allegations and are unsupported by adequate
medical rationale explaining how the physical activity actually caused the diagnosed conditions.10
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.11 Therefore,
Dr. Madanat’s report is insufficient to establish appellant’s claim.
In his June 26, 2016 letter, Dr. Sahrakar diagnosed multiple conditions, and opined that
appellant’s job duties required her to perform physical activities that would aggravate her
condition. However, his opinion is vague, generalized, and does not address specifically how her
repetitive employment duties caused or contributed to her diagnosed conditions.12 Given the

7

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

8

M.B., Docket No. 17-1999 (issued November 13, 2018).

9

M.L., Docket No. 18-1605 (issued February 26, 2019).

10

S.F., Docket No. 18-1030 (issued April 5, 2019); R.S., Docket No. 18-0120 (issued August 8, 2018).

11

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

12

R.T., Docket No. 18-0581 (issued October 3, 2018).

4

deficiencies of his letter, Dr. Sahrakar’s opinion on causal relationship is equivocal in nature and
of limited probative value.13
OWCP also received a lumbar spine MRI scan report dated January 4, 2015. However, the
Board has held that diagnostic test reports lack probative value as they do not provide an opinion
on causal relationship between his employment incident and a diagnosed condition.14
In her January 8, 2015 personal statement, appellant indicated that the repetitive motions
involved in her duties of federal employment caused her diagnosed conditions. However, an award
of compensation may not be based on surmise, conjecture, or speculation. Neither the fact that
appellant’s condition became apparent during a period of employment nor the belief that her
condition was caused, precipitated, or aggravated by her employment is sufficient to establish
causal relationship.15 Appellant’s honest belief that the factors of her federal employment caused
her medical condition, however sincerely held, does not constitute medical evidence sufficient to
establish causal relationship.16
Appellant may submit new evidence and/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 lumbar
conditions causally related to the accepted factors of her federal employment.

13
S.F., supra note 11; see L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued
April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued
November 16, 2012).
14

T.H., Docket No. 18-1736 (issued March 13, 2019).

15

P.R., Docket No. 18-0737 (issued November 2, 2018); R.B., Docket No. 15-1652 (issued October 9, 2015).

16

I.D., Docket No. 18-1118 (issued December 31, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the June 5, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 9, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.Y., Appellant
and
U.S. POSTAL SERVICE, OAK STREET
STATION, Kissimmee, FL, Employer
__________________________________________

)
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)
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)
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)

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

Docket No. 11-668
Issued: December 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 18, 2011 appellant filed a timely appeal from a July 26, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) that denied his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty causally related to factors of his federal
employment.
On appeal, appellant asserts that he was harassed by employing establishment
management.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 23, 2008 appellant, then a 46-year-old letter carrier, filed an occupational disease
claim alleging that he developed anxiety-induced chest pains as he was constantly harassed by
management. He stopped work on May 27, 2008.
By letter dated July 8, 2008, OWCP informed appellant of the evidence needed to support
his claim. In separate statements, appellant discussed four incidents. The first occurring on
April 24, 2000, when he was harassed by two supervisors, Jenny Merrifield and Linda Phillips.
They rudely questioned appellant as to why he could not finish his route before 7:00 p.m.
Appellant stated he was threatened with discipline, became upset and left to see a doctor. On
May 12, 2000 Ms. Phillips discussed his performance and cursed at him. Appellant stated that
on May 18, 2007, a supervisor and Ernesto Gonzalez, customer services manager, told him to be
back in eight hours, bullied him and threatened him with discipline. He became upset and saw a
doctor. Appellant stated that on May 27, 2008 he became upset after he was singled out and
berated by Supervisor Karen Rodriguez, who harassed him because he was on the workroom
floor before he clocked in. He asked her to not talk with him and to leave him alone but she
ignored his request and continued talking. Appellant related that Manager Aaron Lawson then
stood over him and intimidated him. He told Mr. Lawson that he did not want to talk with
management. Appellant related that this caused anxiety and chest pain. He was diagnosed with
anxiety by two physicians. Appellant submitted information regarding an Equal Employment
Opportunity (EEO) precomplaint counseling.
In an undated statement, Bill Bosweld, a coworker, advised that on April 24, 2000 he
witnessed Ms. Phillips and Ms. Merrifield talking with appellant and the conversation seemed to
get heated. Appellant then left the workroom and did not return. Mr. Bosweld found appellant
outside sitting on the steps, shaking. He then informed a union steward. In a statement dated
June 20, 2008, Eddie Magallanes, a coworker, advised that on May 27, 2008 he heard appellant
request to be left alone to work because someone in management was berating him. Appellant
stated that he was nervous, shaking and could not concentrate and asked management to back
off. In a June 14, 2008 statement, Daniel C. advised that he heard appellant and Ms. Rodriguez
arguing. Appellant asked Ms. Rodriguez to leave him alone because she made him nervous. He
requested a leave slip to go home.2 A statement with an illegible signature advised that on
May 27, 2008 appellant was having a discussion with a supervisor that escalated “to the situation
that happen[ed] that day.”
A May 18, 2007 treatment note with an illegible signature noted impressions of stress and
anxiety. In a May 29, 2008 report, William W. Austin, Psy.D., advised that he had treated
appellant, who reported being hospitalized for two days for an assessment of anxiety. In a
June 12, 2008 disability slip, Dr. Sonny Joseph, a Board-certified psychiatrist, advised that
appellant should not work from May 27 to July 13, 2008 and could return to work on
July 14, 2008.

2

Appellant also submitted a June 2, 2008 statement in which Albert Ramirez, a coworker, advised that he had
observed Ms. Rodriguez’s husband on postal property.

2

The employing establishment controverted the claim. In an August 21, 2008 statement,
Ms. Phillips advised that she had never used profanity with appellant and did not recall the
alleged conversation. She stated that she had never spoken with him in a threatening manner or
harassed him. In an August 27, 2008 statement, Ms. Merrifield advised that she did not recall
any statement made to appellant on April 24, 2000. In an August 25, 2008 statement,
Mr. Gonzalez advised that he informed appellant that, because the mail volume was low, he
should be able to complete his route by 2:00 p.m., not 4:00 p.m. and then could work relief on
another route for 1.5 hours. He related that appellant became upset and stated that he was not
getting enough overtime. Mr. Gonzalez told appellant that the workload on his route that day did
not support an eight-hour delivery, and appellant told him it would take eight hours. He
informed appellant that the supervisor would accompany appellant on his route and appellant
stated that he was going home sick.
In a July 2, 2008 statement, Ms. Rodriguez, delivery operations supervisor, discussed the
May 27, 2008 incident. She stated that at approximately 7:15 a.m., she observed appellant on the
workroom floor and instructed him that he was not to be there until his starting time of 7:30 a.m.
Ms. Rodriguez informed him that for safety, liability and workplace rules he could not be on the
workroom floor. Appellant told her to leave him alone and not talk to him. Ms. Rodriguez
stated that Mr. Lawson observed the incident and addressed the issue with appellant. She then
discussed mail route volume and starting and returning times with each carrier and that appellant
was the last. Appellant became very aggressive towards Ms. Rodriguez, yelled at her to leave
his work area and stated that he did not want to talk with her. Mr. Lawson overheard appellant,
and proceeded to talk with him. Appellant went to the restroom and then told Mr. Lawson that
he wanted to go home sick. Ms. Rodriguez stated that every time she saw an employee on the
workroom floor before being on the clock, she would instruct them to leave. She stated that
appellant had not returned to work. In a second statement dated August 22, 2008, Ms. Rodriguez
advised that it was her duty to communicate with carriers on a daily basis. She again described
the events of May 27, 2008.
By decision dated September 19, 2008, OWCP denied the claim, finding that appellant
did not establish that he sustained an emotional condition in the performance of duty.
On October 13, 2008 appellant requested a hearing, and submitted an informal grievance
settlement dated August 1, 2008 that indicated that management would treat everybody the same,
in a fair manner. In an October 9, 2008 statement, Felix Cruz, a coworker, stated that he had not
been asked by a supervisor to leave the workroom floor before his start time. A May 27, 2010
EEO Commission decision dismissed appellant’s claim regarding the May 27, 2008 incident and
noted that on August 21, 2008 management conducted a practice observation. The case was
remanded regarding an August 25, 2008 letter of warning.
An emergency room report with an illegible signature dated May 27, 2008 indicated that
appellant stated that he had an argument with a supervisor that caused left chest pain with
tightness and shortness of breath. Appellant was admitted to rule-out myocardial infarction. In a
June 12, 2008 report, Dr. Joseph advised that on mental status examination appellant was
depressed and anxious. He recommended continued counseling. A June 15, 2008 report, with
an illegible signature, advised that appellant could not work due to situational anxiety at work
and chest pains.

3

At the hearing held on May 6, 2010, appellant testified regarding the two incidents in
2008. He stated that Ms. Phillips swore at him, and that he filed a grievance about the incident
but the union stated it could not be done. Appellant stated that she later became irritated with
him and had a rude expression on her face and threatened discipline. Regarding the May 18,
2007 incident, he stated that Mr. Gonzalez bullied him about completing his route and threatened
discipline and that on May 27, 2008 Ms. Rodriguez harassed him and unfairly disciplined him
for being on the workroom floor before his shift. Appellant stated that after this incident he was
hospitalized for two days and had returned to work.
By decision dated July 20, 2010, OWCP’s hearing representative affirmed the
September 19, 2008 decision, finding that appellant did not establish that he sustained an
emotional condition in the performance of duty.
LEGAL PRECEDENT
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.3 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.4 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.5
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,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
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 his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
3

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

4

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

5

Id.

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

8

Lillian Cutler, supra note 6.

4

are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.12 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.13
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.14
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEO Commission, which is charged with statutory authority to investigate and evaluate
such matters in the workplace. Rather, in evaluating claims for workers’ compensation under
FECA, the term “harassment” is synonymous, as generally defined, with a persistent disturbance,
torment or persecution, i.e., mistreatment by coemployees or workers. Mere perceptions and
feelings of harassment will not support an award of compensation.15
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a stress-related condition in the performance of duty causally related to factors of his
federal employment.
Appellant has not attributed his emotional condition to the performance of his regular
work duties or to any special work requirement arising from his employment duties under
Cutler.16 Rather, his claim pertains to four occasions dating from April 2000 to May 2008 in
9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

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

13

Kim Nguyen, 53 ECAB 127 (2001).

14

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

15

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

16

See James E. Norris, supra note 14.

5

which he alleged that employing establishment management spoke to him in an abusive manner
or otherwise erroneous manner.
Regarding the April 24, 2000 incident, appellant alleged that he was harassed by two
supervisors regarding the delivery time-table. The Board has held that verbal altercations, when
sufficiently detailed by the claimant and supported by the evidence, may constitute compensable
employment factors. Appellant submitted a statement from Mr. Bosweld, who witnessed the
conversation and stated that it seemed to get heated. Every statement uttered in the workplace,
however, will not give rise to coverage under FECA, and being spoken to in a raised or harsh
voice does not of itself constitute verbal abuse or harassment.17 The witness statement of
Mr. Bosweld is not sufficient to establish verbal abuse in this instance. Appellant also alleged
that Ms. Phillips cursed at him on May 12, 2000 and that Mr. Gonzalez spoke to him in an
abusive manner and threatened him on May 18, 2007. He, however, submitted no factual
evidence to corroborate these allegations and therefore did not establish a factual basis of verbal
abuse by Ms. Phillips on May 12, 2000 or Mr. Gonzalez on May 18, 2007.18
Similarly, appellant failed to establish that Ms. Rodriguez and Mr. Lawson verbally
abused him on May 27, 2008. While he submitted several statements from coworkers,
Mr. Magallanes merely advised that he heard appellant’s request to be left alone and that he
became anxious. The unidentified statement merely noted that appellant was having a discussion
that day.
Generally, complaints about the manner in which a supervisor performs his or her duties
or the manner in which a supervisor exercises his or her discretion fall, as a rule, outside the
scope of coverage provided by FECA. This principle recognizes that a supervisor or manager in
general must be allowed to perform his duties and employees will, at times, dislike the actions
taken. Mere disagreement or dislike of a supervisory or managerial action will not be
compensable, absent evidence of error or abuse.19 Here the supervisors and managers explained
that discussions held with appellant were regarding such supervisory duties as monitoring the
volume of mail and workplace rules. The record contains no evidence that any employing
establishment supervisor or manager committed error or abuse in discharging their management
duties.20
Generally, actions of the employing establishment in administrative or personnel matters,
unrelated to the employee’s regular or specially assigned work duties, do not fall within coverage
of FECA.21 The Board has long held that the assignment of work is an administrative function of
the employer and the manner in which a supervisor exercises his or her discretion falls outside
the ambit of FECA. Absent evidence establishing error or abuse, a claimant’s disagreement or
17

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

18

C.S., 58 ECAB 137 (2006).

19

T.G., supra note 17.

20

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

21

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

6

dislike of such a managerial action is not a compensable factor of employment.22 Appellant’s
general contention that he was harassed by management on these occasions, constitute
perceptions of harassment or discrimination are not compensable under FECA23 and
unsubstantiated allegations of harassment or discrimination are not determinative of whether
such harassment or discrimination occurred. A claimant must establish a factual basis for his or
her allegations with probative and reliable evidence.24 In the case at hand, while appellant
submitted several statements from coworkers, none described specific actions by employing
establishment management to show a persistent disturbance, torment or persecution, i.e.,
mistreatment by employing establishment management.25 While he submitted a copy of a
grievance resolution, this merely advised that management would treat all employees fairly and
is thus insufficient to establish abuse on the part of management.26 Appellant also submitted a
final decision in which EEO Commission dismissed his claim with regards to the May 27, 2008
incident. While the EEO case was remanded regarding a letter of warning issued on August 25,
2008, the letter of warning is not part of the instant claim, filed on June 23, 2008. Appellant,
therefore, did not establish a factual basis for his claim of harassment by probative and reliable
evidence.27
The Board concludes that appellant did not meet his burden of proof to establish that he
sustained a stress-related condition in the performance of duty causally related to factors of his
federal employment.28 Appellant’s emotional reaction must be considered self-generated, in that
it resulted from his perceptions about employing establishment management actions.29
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 did not establish that he sustained an emotional condition
in the performance of duty.

22

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

23

James E. Norris, supra note 14.

24

Id.

25

Beverly R. Jones, supra note 15.

26

Robert Knoke, 51 ECAB 319 (2000).

27

See Robert Breeden, 57 ECAB 622 (2006).

28

Leslie C. Moore, supra note 3.

29

See V.W., 58 ECAB 428 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the July 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 20-1248
Issued: February 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 1, 2020 appellant filed a timely appeal from a May 14, 2020 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
ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 24, 2020, for failure to complete an EN1032 form as requested.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 14, 2020 decision, OWCP received additional evidence. However, the
Board’s 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.

FACTUAL HISTORY
In 1974 appellant, then a 41-year-old air traffic controller, filed an occupational disease
claim (Form CA-2) alleging that he sustained a stress-related condition causally related to factors
of his federal employment. OWCP accepted the claim for an anxiety reaction and hypertension.
It paid appellant wage-loss compensation on the periodic rolls based on his loss of wage-earning
capacity beginning March 28, 1995.
OWCP periodically requested that appellant submit financial disclosure statements (Form
EN1032) which solicited information about his employment, volunteer work, dependent(s) status,
receipt of other federal benefits and/or payments, and third-party settlements.
On April 13, 2020 OWCP provided appellant with a Form EN1032 and informed him that
federal regulations required him to make an affidavit regarding any earnings received or
employment performed during the previous 15 months. It advised that he was required to fully
answer all questions on the EN1032 form and return it within 30 days or his benefits would be
suspended pursuant to 20 C.F.R. § 10.528. OWCP mailed the letter to appellant’s address of
record. Appellant did not respond to OWCP’s request.
By decision dated May 14, 2020, OWCP suspended appellant’s wage-loss compensation
benefits, effective May 24, 2020, due to his failure to submit the EN1032 form as requested. It
noted that he had not responded to its April 13, 2020 letter. OWCP advised that, if appellant
completed and returned an enclosed copy of the EN1032 form, it would reinstate his wage-loss
compensation benefits retroactive to the date of suspension.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work which the employee has performed for the prior 15 months.4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5

3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528; see also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H.., Docket No. 15-241 (issued
April 3, 2015).
5

Id.

2

ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 24, 2020, for failure to complete an EN1032 form as requested.
On April 13, 2020 OWCP provided appellant with the EN1032 form and notified him that
federal regulations required him to complete the form and answer all questions concerning his
employment or earnings. It properly notified him that, if he did not completely answer all
questions and return the form within 30 days, his benefits would be suspended. The record reflects
that OWCP’s letter was sent to appellant’s address of record and there is no indication that it was
returned as undeliverable.6 Under the mailbox rule, a document mailed in the ordinary course of
the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee.7
Appellant failed to timely submit the EN1032 form within 30 days of OWCP’s request.
He was receiving wage-loss compensation and was, therefore, required to complete the EN1032
form.8 Appellant’s failure to file an EN1032 form within 30 days properly resulted in the
suspension of his wage-loss compensation. Thus, the Board finds that OWCP properly suspended
his wage-loss compensation benefits, effective May 24, 2020, pursuant to 20 C.F.R. § 10.528.9
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective May 24, 2020, for failure to complete an EN1032 form as requested.

6

See J.H., Docket No. 20-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

7

Id.

8

See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued November 7, 2017).

9
See R.B., supra note 4; P.M., Docket No. 16-0382 (issued May 19, 2016); M.W., Docket No. 15-0507 (issued
June 18, 2015).

3

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 8, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF THE NAVY, ATLANTIC
ORDNANCE COMMAND, Colts Neck, NJ,
Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1247
Issued: September 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 1, 2010 appellant, through her representative, filed a timely appeal from a
December 9, 2009 decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative which affirmed her schedule award for three percent permanent impairment of
each upper extremity.
OWCP has accepted appellant’s December 8, 2003 injury claim for cervical strain, left
shoulder strain, laceration of the left elbow, olecranon bursitis of the left elbow and lumbar

sprain/strain. On December 21, 2007 it granted her a schedule award for three percent
impairment of each upper extremity.1
On February 20, 2009 OWCP referred appellant to Dr. Ian Fries, a Board-certified
orthopedic surgeon, for an impartial medical evaluation. The record contains a “referee medical
examination (RME)” referral form dated February 20, 2009 which indicates that the “Physician’s
Directory System (PDS)” was the referral source for the selection of Dr. Fries as the impartial
medical examiner (IME). The record also contains an IFECS MEO23 form dated March 5, 2009
which indicates that appellant’s referee examination was scheduled for April 1, 2009 with
Dr. Fries.
In a report dated April 7, 2009, Dr. Fries provided an extensive history of the medical
record, noted appellant’s current complaints and provided examination findings. He did not
evaluate any of appellant’s examination findings pursuant to the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Rather, Dr. Fries concluded that appellant
did not have any objective residuals of the December 8, 2003 injury, beyond a minor left elbow
scar. On May 6, 2009 Dr. Henry Magliato, another OWCP medical adviser Board-certified in
orthopedic surgery, reviewed Dr. Fries’ report and agreed that appellant had no permanent
impairment.
OWCP affirmed the prior schedule award on June 22, 2009. It noted that “[b]y way of
our PDS system, Dr. Ian Blair Fries was randomly selected to perform the examination.”
Appellant’s representative requested a hearing before the Branch of Hearings and Review.
During the hearing held on October 15, 2009 appellant’s representative argued that the record
did not establish that Dr. Fries was properly selected as the IME and that Dr. Fries’ report was
not entitled to the weight of the evidence as it was not based on an accurate statement of
accepted facts and did not evaluate appellant’s examination findings pursuant to the A.M.A.,
Guides.
On December 9, 2009 OWCP’s hearing representative affirmed the June 22, 2009
schedule award decision. The hearing representative found that the “PDS” scheduling sheet was
in the record therefore appellant’s representative’s argument that the IME selection process was
not properly documented had no merit. The hearing representative also found that Dr. Fries’

1

Appellant’s treating physician, Dr. David Weiss, an osteopath, reported on September 27, 2006 that appellant
had a 36 percent left upper extremity impairment, 13 percent left lower extremity impairment and a 4 percent right
lower extremity impairment. This report was reviewed by Dr. Morley Slutsky, an OWCP medical adviser Boardcertified in occupational medicine, who concluded that the medical evidence of record was inconsistent with the
findings made by Dr. Weiss and recommended a second opinion. Appellant was referred for an impartial medical
examination by Dr. Elliott Semet, a Board-certified orthopedic surgeon. On November 6, 2007 Dr. Semet
concluded that appellant had no permanent impairment causally related to her employment. On December 4, 2007
the case was reviewed by a second OWCP medical adviser, Dr. Arnold Berman, a Board-certified orthopedic
surgeon, who found that appellant had 3 percent impairments of both upper extremities due to C5 and C6 sensory
deficits. After OWCP granted the schedule award based upon this finding, appellant requested a hearing before the
Branch of Hearings and Review. On January 9, 2009 the hearing representative found that there was no conflict in
the medical opinion evidence at the time of Dr. Semet’s evaluation; therefore, Dr. Semet was a second opinion
physician. The case was remanded for a new impartial medical evaluation.

2

report was entitled to the weight of the medical evidence as he had conducted a thorough
physical examination.
The Board finds that this case is not in posture for decision as OWCP has not established
that Dr. Fries was properly selected as the impartial medical specialist in this case and his report
is not sufficient to constitute the weight of the medical evidence.
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of impartial medical specialists
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that impartial
medical specialists will be selected on a strict rotating basis in order to negate any appearance
that preferential treatment exists between a particular physician and OWCP.2
OWCP has an obligation to verify that it selected Dr. Fries in a fair and unbiased manner.
It maintains records for this very purpose.3 The current record includes a February 20, 2009
RME referral form which indicates that Dr. Fries was selected as the IME by use of the “PDS.”
The record also includes a March 5, 2009 MEO23 IFECS report which states that appellant’s
referee appointment was scheduled with Dr. Fries. While the record includes IFECS screen
shots pertaining to case referral, the record does not include any IFECS screen shots
substantiating the selection of Dr. Fries.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.
As the record lacks adequate documentation of the selection process in this case, the
Board will remand the case to OWCP for selection of another impartial medical specialist. After
such further development as necessary, OWCP shall issue an appropriate decision.

2

Raymond J. Brown, 52 ECAB 192 (2001).

3

M.A., Docket No. 07-1344 (issued February 19, 2008).

3

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2009 be set aside and the case remanded for further
proceedings consistent with this opinion.
Issued: September 28, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-789
Issued: November 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated January 7, 2008. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award decision.
ISSUE
The issue is whether appellant has more than a three percent permanent impairment to his
right lower extremity and three percent impairment for the left lower extremity.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, a 57-year-old mail processor,
injured his neck, right shoulder, lower back, both knees, both wrists, both hips and left ankle
when he slipped on a wet floor on October 23, 2000. He filed a claim for benefits on
October 26, 2000, which the Office accepted for lumbar sprain, right knee sprain and right leg
sprain.

On February 7, 2006 appellant filed a Form CA-7 claim for a schedule award. By
decision dated June 1, 2006, the Office denied appellant’s claim. Appellant requested
reconsideration and submitted a May 19, 2006 report from Dr. George L. Rodriguez, Boardcertified in physical and rehabilitative medicine, who found that appellant had a 15 percent
bilateral lower extremity impairment pursuant to Table 16-11, at page 484 and 17-37 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (fifth
edition) (A.M.A., Guides), page 556, and a 15 percent deficit for motor nerve impairment at
Tables 16-11 and 17-37. Dr. Rodriguez based his rating on a superior gluteal impairment, which
yielded a 62 percent deficit and resultant 15 percent lower extremity impairment. With regard to
the left side, he advised that appellant experienced bilateral buttock pain, particularly when he
attempted to perform activities in the standing position. Dr. Rodriguez stated that appellant had
difficulty walking and exhibited bilateral antalgia with bilateral Trendelenburg stances, which
represented weakness in the gluteus medius muscles bilaterally.
In a report dated November 8, 2006, an Office medical adviser found that appellant had a
three percent impairment of his right lower extremity and a three impairment of his left lower
extremity based on the A.M.A., Guides. He relied on Dr. Rodriguez’s examination findings for
L5 and S1 nerve root involvement and sensory deficit or pain to derive a three percent bilateral
impairment. However, the Office medical adviser rejected Dr. Rodriguez’s impairment rating
based on a superior gluteal nerve injury, stating that there was no evidence in the record that
appellant had sustained such an injury causally related to employment factors.
On November 28, 2006 the Office granted appellant a schedule award for a three percent
permanent impairment of the right lower extremity and a three percent impairment of the left
lower extremity. In a December 10, 2007 decision,1 the Board set aside the Office’s
November 28, 2006 decision. The Board found that the Office medical adviser properly rated a
three percent bilateral impairment rating for the lower extremity based on Dr. Rodriguez’s
examination findings of L5 and S1 nerve root involvement and sensory deficit or pain. The
Board found, however, that the Office medical adviser did not properly evaluate appellant’s
lower extremity impairments due to his gluteal nerve injury. The Board noted that a gluteal
nerve injury is evaluated pursuant to Table 37, of the A.M.A., Guides2 which evaluates lower
extremity impairments caused by nerve deficits.3 The Board further noted that, in determining
entitlement to a schedule award, preexisting impairments to the scheduled member are to be
included in the permanent impairment evaluation. The Board therefore set aside the Office’s
November 28, 2006 decision and remanded for the Office to ask the Office medical adviser to
clarify whether appellant is entitled to an additional schedule award for the gluteal nerve injury,
if preexisting impairments are to be included in the evaluation of impairment. The complete
facts of this case are set forth in the Board’s December 10, 2007 decision and are herein
incorporated by reference.

1

Docket No. 07-464 (issued December 10, 2007).

2

A.M.A., Guides 552.

3

Michael C. Milner, 53 ECAB 446 (2002).

2

In a December 13, 2007 report, the Office medical adviser rejected any additional
impairment based on the superior gluteal nerve. He stated:
“[D]isc abnormalities have no effect on the superior gluteal nerve. Disc
abnormalities only have pressure on the nerve roots. The superior gluteal nerve
innervates various hip abductors which have no relationship to the disc
abnormality in this claimant. [Appellant] had no abnormality of his hip abductors
and no abnormality of the superior gluteal nerve.
“The superior gluteal nerve is a nerve that was deeply imbedded in the hip
musculature and is not related to the lumbar spine. Although the superior gluteal
nerve is made up of multiple nerve roots of the lumbar spine, it has no
relationship to any direct pressure by any disc herniation or disc abnormality on
the nerve root. Therefore, it was totally incorrect for Dr. Rodriguez to have
recommended an award in regard to the superior gluteal nerve since the only
possible award would be in relationship to the nerve roots.”
The Office medical adviser noted that he had found in his November 8, 2006 report that
appellant had objective findings of S1 nerve root Grade 4 sensory loss and L5 nerve root
compression. He opined, however, that pain in the buttock is referred pain from the lumbar
spine related to the L5 disc and is not related to the superior gluteal nerve which is a total motor
nerve involving the hip musculature and is not related to pain or sensory loss. The Office
medical adviser stated:
“Table 17-37, Impairments Due to Nerve Deficit, page 552, under superior gluteal
nerve, states zero percent for sensory and zero percent for dysesthesias. This is
because there is no sensory component to this nerve, and therefore, cannot be
related to pain. There is also no motor loss involving the hip musculature that
would justify the superior gluteal nerve.
“Therefore, the superior gluteal nerve innervates the gluteus medius hip muscle
and has no relationship to the disc abnormalities or pressure on the nerve roots. In
addition, the superior gluteal nerve has no relationship to any pathology involving
this claimant.”
By decision dated January 7, 2008, the Office denied modification of the November 28,
2006 decision, finding that appellant was not entitled to an award for additional impairment to
his left lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of

4

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

compensation is paid in proportion to the percentage loss of use.5 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.6
ANALYSIS
The Board finds that the case is not in posture for decision.
The Board in its December 10, 2007 decision instructed the Office to ask the Office
medical adviser to further evaluate appellant’s lower extremity impairment, including his gluteal
nerve impairment, if in fact his gluteal nerve impairment preexisted the accepted injury. The
Office medical adviser in his December 13, 2007 report rejected any additional impairment
based on superior gluteal nerve. He evaluated whether appellant could be accorded an
impairment of the superior gluteal nerve by focusing on nerve roots of the lumbar spine, in
conjunction with disc herniation and disc abnormality on the nerve root. The Office medical
adviser also emphasized that the superior gluteal nerve innervates various hip abductors which
have no relationship to the disc abnormality in appellant. He concluded that an award regarding
the superior gluteal nerve was incorrect because the only possible award would be in relationship
to the nerve roots. The Office medical adviser noted that, while appellant had objective findings
of S1 nerve root Grade 4 sensory loss and L5 nerve root compression, pain in the buttock is
referred pain from the lumbar spine related to the L5 disc and is not related to the superior
gluteal nerve which is a totally motor nerve involving the hip musculature and is not related to
pain or sensory loss. He indicated that Table 17-37, Impairments Due to Nerve Deficit, page
552, for superior gluteal nerve, yields zero percent for sensory deficit and zero percent for
dysesthesias because there is no sensory component to this nerve, which therefore cannot be
related to pain. The Office medical adviser further stated that there was also no motor loss
involving the hip musculature which warranted an impairment rating for the superior gluteal
nerve. However, he did not specifically address the issue presented by the Board on prior
appeal, which is whether any impairment of the lower extremities caused by the superior gluteal
nerve was a preexisting impairment, which should have been factored into the schedule award.
The Board notes that at subsection 17.2l of the A.M.A., Guides,7 governing peripheral
nerve injuries, states that peripheral nerve injuries are divided into two components: motor
deficits and sensory deficits. Dr. Rodriguez stated in his May 2006 report that appellant had
bilateral buttock pain which was especially apparent when he attempted to perform activities in
the standing position; appellant also showed difficulty walking with bilateral antalgia/bilateral
Trendelenburg stances. Given these findings on examination, Dr. Rodriguez appeared to be
basing his impairment rating for superior gluteal nerve on a motor deficit, not a sensory deficit.
Thus the Office medical adviser was incorrect in characterizing Dr. Rodriguez’ impairment
5

5 U.S.C. § 8107(c)(19).

6

20 C.F.R. § 10.404.

7

A.M.A., Guides 552.

4

rating as necessarily relying on impairment of nerve roots of the lumbar spine, in conjunction
with disc herniation and disc abnormality on the nerve root. Further, there is nothing in the
A.M.A., Guides which stipulates, as the Office medical adviser stated, that any impairment for
motor loss for the superior gluteal nerve must necessarily involve the hip musculature. The
Board therefore sets aside the January 7, 2008 Office decision and remands for referral of
appellant, the case record and a statement of accepted facts to an appropriate medical specialist
to evaluate the appropriate percentage of impairment in appellant’s left lower extremity based on
his gluteal nerve injury. On remand, the Office should instruct the impartial medical specialist to
clearly indicate the specific background and protocols of the A.M.A., Guides upon which he
based his opinion. After such further development of the record as it deems necessary, the
Office shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 7, 2008 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: November 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Newburgh, NY, Employer
__________________________________________

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

Docket No. 11-223
Issued: September 6, 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 November 4, 2010 appellant, through her attorney, filed a timely appeal from a
May 25, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act
(FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an injury on August 23, 2007 in the performance
of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 21, 2007 appellant, then a 44-year-old automation clerk, filed a traumatic
injury claim alleging that on August 23, 2007 she sustained extreme pain in her left shoulder
after lifting a tray of mail. She stopped work on August 23, 2007.
In a September 10, 2007 evaluation, Dr. Curtis D. Blumenthal, a chiropractor, discussed
appellant’s history of an employment injury on August 23, 2007. He diagnosed cervical and
thoracic sprain and dysfunction.
In a statement dated October 5, 2007, appellant related that on August 23, 2007 she
reached up to put a full mail tray onto the top shelf and “felt [and] heard a pop in my shoulder
creating instant pain in my shoulder.” She put ice on her shoulder and sought chiropractic
treatment.
By decision dated October 29, 2007, OWCP denied appellant’s traumatic injury claim
after finding that she did not factually establish the occurrence of the alleged work incident. It
further determined that Dr. Blumenthal’s chiropractic report did not constitute medical evidence
as he did not diagnose a subluxation by x-ray.
Appellant requested a telephone hearing. In a statement received on December 7, 2007,
she related that for some time she had experienced left shoulder and back tightness but that it
was not severe enough to see a physician. On August 23, 2007 appellant felt a pop in her
shoulder with neck pain and stiffness. She began to complete an occupational disease claim
form but the employing establishment and the union told her she had two separate claims.
Appellant filed her traumatic injury claim instead of the occupational disease claim.
At the telephonic hearing, held on March 12, 2008, appellant related that prior to the
August 23, 2007 incident she felt tightness under her shoulder blade and neck stiffness without
pain. The hearing representative advised her that she should file an occupational disease claim if
she believed her job duties over time contributed to an injury. He explained the limitations of
chiropractors as physicians under FECA.
By decision dated April 24, 2008, the hearing representative affirmed the October 29,
2007 decision. He found that there was no medical evidence supporting her traumatic injury
claim.
In a report dated June 13, 2008, Dr. Andrew D. Brown, a Board-certified physiatrist,
discussed his treatment of appellant beginning April 11, 2008. He related that a magnetic
resonance imaging (MRI) scan study showed disc bulging at C6-7. Dr. Brown reviewed the
hearing representative’s decision and noted that it indicated that she could not work from
August 23, 2007 through January 10, 2008 after injuring her shoulder and neck on August 23,
2007 lifting a tray of mail. He disagreed with the hearing representative’s finding that
Dr. Blumenfeld’s opinion was not competent medical evidence as “the fact that an x-ray of the

2

lumbar spine was not obtained does not in any way affect the diagnosis of her cervical spine.”
Dr. Brown stated:
“When I examined [appellant], there was distinctly cervical pathology, and [her]
presentation was consistent with nerve involvement. The disc herniation noted on
MRI [scan] is consistent with the trauma described, and does result in nerve
involvement.
“In summary, it is my medical opinion, that the event of August 23, 2007 as it has
been described should be considered the competent cause for the claimant’s
subjective complaints, objective findings, and functional limitations referable to
her cervical spine as documented above. The claimant has been cleared to return
to work on a limited capacity (three days per week).”
In a report dated December 12, 2008, Dr. Brown related that, prior to experiencing left
shoulder and neck pain in August 2007; she felt stiffness in the neck and left shoulder. He
provided a detailed description of her work duties and noted that an MRI scan study showed a
bulging disc and that an examination of the left shoulder showed loss of motion, weakness and
signs of impingement.2 Dr. Brown opined:
“It is my medical opinion, that the repetitive motions that [appellant] describes at
work, are the competent producing course for her cervical and left shoulder pain,
dysfunction and pathology. As noted above, [she] has significant repetitive
motions with the upper extremities. [Appellant] also describes positions that
cause more force on the shoulder and neck including overhead activities, and
lifting with her arms fully extended. This places stress on the shoulder girdle
muscles, and, the cervical spine as most of the shoulder girdle muscles are
connected to the cervical spine. Over time this results in breakdown of the soft
tissue, resulting in inflammatory changes. As the soft tissue breaks down, and the
muscles become weaker, her body’s ability to protect itself becomes less,
resulting in further breakdown.”
Dr. Brown noted that appellant had a history of a C1 fracture in a motor vehicle accident
but that an MRI scan study obtained at that time did not reveal disc bulging and that she worked
over seven years after the accident without symptoms. He attributed her cervical and left
shoulder conditions to her work duties.
On December 30, 2008 appellant requested reconsideration.3

2

An MRI scan study of the cervical spine, obtained on April 17, 2008, showed disc bulging at C6-7 causing a
ventral thecal sac deformity. An electromyogram, obtained on June 26, 2008, showed mild bilateral carpal tunnel
syndrome.
3

On March 2, 2009 appellant filed a recurrence of disability claim on August 3, 2008 due to her September 23,
2007 employment injury.

3

In a progress report dated May 9, 2008, Dr. Adam C. Carter, a Board-certified physiatrist,
diagnosed cervical pain syndrome and degenerative disc disease. He found that she was disabled
from employment.
By decision dated March 12, 2009, OWCP modified its prior decision to reflect that
appellant had established the occurrence of the employment incident. It found that the medical
evidence was insufficient to establish that she sustained a diagnosed condition due to the
August 23, 2007 work incident.
On April 16, 2009 appellant requested reconsideration. By decision dated June 30, 2009,
OWCP denied her request after finding that she had not submitted any evidence or raised any
argument warranting reopening her case for further review of the merits under 5 U.S.C. § 8128.
On February 25, 2010 appellant, through her attorney, requested reconsideration. He
argues that the factual and medical evidence established that she sustained an injury in the
performance of duty. Counsel submitted a February 10, 2010 report from Dr. Brown in support
of the reconsideration request.
On February 10, 2010 Dr. Brown discussed appellant’s history of neck and left shoulder
pain beginning around August 2007, with a prior history of stiffness and loss of cervical range of
motion. He provided a detailed description of her work duties, his history of treatment and the
findings on physical examinations. Dr. Brown diagnosed cervical pain syndrome with a bulging
disc and left shoulder strain/impingement syndrome with possible internal derangement. He
concluded that appellant’s “cervical pain, pathology, dysfunction and diagnoses described above
[are] causally related to the work responsibilities that I described in the beginning of this report.
I do believe that [her] left shoulder pathology is consequential[ly] causally related.”
By decision dated May 25, 2010, OWCP denied modification of its March 12, 2009
decision. It determined that Dr. Brown did not specifically find any condition resulting from the
August 23, 2007 work incident or provide any rationale for his opinion. OWCP advised
appellant that she could file an occupational disease claim if she believed that work factors over
time caused her condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing 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 filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

4

5 U.S.C. § 8101 et seq.

4

employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.9
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.10 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.11
ANALYSIS
Appellant alleged that she experienced pain in her left shoulder and neck on August 27,
2007 after lifting a full tray of mail. OWCP accepted that the August 27, 2007 incident occurred
at the time, place and in the manner alleged. The issue, consequently, is whether the medical
evidence establishes that appellant sustained an injury as a result of this incident.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.12 In his
June 13, 2008 report, Dr. Brown provided a clear opinion that appellant’s disc herniation at C6-7
was causally related to the August 23, 2007 work incident. He based his diagnosis on an MRI
scan study of the cervical findings. Dr. Brown evidenced a thorough knowledge of appellant’s
work duties before finding that lifting a tray of mail was a “competent cause” for the subjective
complaints and objective findings. His opinion is supportive, unequivocal, bolstered by
objective findings and based on a firm diagnosis and an accurate work history. Dr. Brown’s
5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

Jimmy A. Hammons, 51 ECAB 219 (1999).

11

20 C.F.R. § 10.121.

12

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

5

opinion lacks only an explanation of why the lifting incident resulted in the disc herniation.
Consequently, while the medical evidence from Dr. Brown is insufficiently rationalized to meet
appellant’s burden of proof, it is sufficient to require further development by OWCP.13
Accordingly, the Board will remand the case to the OWCP. On remand, OWCP should further
develop the medical record to determine whether appellant sustained an injury causally related to
the August 23, 2007 work incident. Following this and such further development as OWCP
deems necessary, it shall issue a de novo decision.14
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 25, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 6, 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
13

Id.

14

An occupational disease or illness is a condition produced by the work environment over a period longer than a
single workday or shift. 20 C.F.R. § 10.5(q); Ellen L. Noble, supra note 6. Appellant is also claiming an
occupational disease claim that occurred over a period of time. She submitted medical reports from Dr. Brown
dated December 12, 2008 and February 10, 2010 supporting that she sustained cervical and left shoulder conditions
due to repetitive work duties. It is well established that a claim for compensation need not be filed on any particular
form. A claim may be made by filing any paper containing words which reasonably may be construed or accepted
as a claim. Barbara A. Weber, 47 ECAB 163 (1995). Upon return of the case record, OWCP should proceed to
adjudicate her occupational disease claim.

6