United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
GREATER LOS ANGELES HEALTH CARE
SYSTEM, Los Angeles, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1164
Issued: February 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 13, 2016 appellant, through counsel, filed a timely appeal from a December 23,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On January 8, 2014 appellant, then a 50-year-staff pathologist, filed an occupational
disease claim (Form CA-2) alleging that he was harassed, belittled, threatened, and yelled at by
his supervisor, F.M., chief of the department of pathology, which caused progressive anxiety and
depression. He became aware of his condition on November 15, 2011 and realized that it was
causally related to his employment on July 15, 2013.
In an undated statement appellant alleged that, after receiving a grant and being selected
as a principal investigator, F.M. called him into his office and yelled at him and told him to keep
his “mouth shut” and “stop bragging” about his accomplishments because the “bragging” would
create jealousies and resentments from colleagues. F.M. asserted that, another investigator,
D.Y., and his staff could find noncompliance with the employing establishment rules and
regulations for human subject research by appellant and the research laboratory staff. Appellant
indicated that the research funding brought in by the selection of an employing establishment
principal investigator was supposed to provide the money necessary to hire other staff members
to cover the clinical service of a principal investigator during his “protected time,” or time he
was working on the grant. This would enable the principal investigator to have time off from
clinical service work in the hospital during his regular scheduled tour of duty to conduct research
and development in the approved studies. Appellant alleged that F.M. denied him “protected
time” and therefore he could not devote sufficient time to his research. He alleged that F.M. was
paranoid about potentially mixing funding between clinical and research spheres and prohibited
him from attending research lab related or other serious research staff meetings during his tour of
duty hours. Appellant alleged that F.M. gave him misguided instruction on how to manage his
research program and advised him that he was too lenient with his research laboratory staff. He
alleged that when F.M. discovered that appellant was not following his instruction he would
summon appellant to meetings and interrogate him, becoming angry and threatening, with words
like I will “not protect you any longer” from the “jealous” and “retaliatory” members of the
committees who would create a negative and hostile environment. This caused appellant to no
longer be able to conduct research. He alleged that he lost his principal investigator status
because of F.M.’s actions. Appellant alleged that F.M. and his subordinates would constantly
call him throughout the day to determine his location and, if he was not at the hospital office,
F.M. would demand that appellant return to his office in the hospital. He alleged that F.M.
would scream at him, humiliate him in front of others, and threaten him with the loss of his job at
least once a day. Appellant alleged that F.M. demanded that appellant move his laboratory to
another building on the other side of the campus which would require a substantial amount of
time to travel between the hospital building and the new laboratory building.
Appellant submitted reports from Dr. Daniel B. Auerbach, a Board-certified psychiatrist,
dated November 5 and December 20, 2013, which reflected that appellant was totally disabled
beginning September 28, 2013 due to work-related stress.

2

On February 18, 2014 OWCP asked appellant to submit additional evidence that included
a detailed description of the employment incidents that contributed to his claimed illness.
Appellant submitted a supplemental statement to his occupational disease claim and a
detailed history and descriptions of the events surrounding his alleged work-related illness,
which reiterated the allegations noted above.
On April 16, 2014 OWCP requested the employing establishment provide comments
from a knowledgeable supervisor on the accuracy of statements provided by the employee
related to the claim and fully explain points of concurrence and disagreement with supportive
evidence.
The employing establishment submitted a May 16, 2014 statement from F.M. who had
worked for the employing establishment since 2004 and hired appellant in 2007 as director of
molecular pathology. F.M. noted that, in 2009, appellant received a $6,000,000.00 grant by the
National Institutes of Health, which had to be administered by the research and development
department. He indicated that to allow appellant to focus on his new research grant he relieved
him of his responsibilities as the director of molecular pathology, but he was still paid as a
clinician. In response to appellant’s allegations, F.M. indicated that, after obtaining the grant
appellant would walk through the building and brag about his grant, he would arrive at work
very late, he fell behind in his clinical duties and research work, and laboratory workers
complained about him. D.Y., chief of research and development service, consulted with F.M.
and requested that he speak with appellant about attending to his research duties. F.M. spoke
with appellant about D.Y.’s concerns, but he did not yell at him, he did not tell appellant that
D.Y. would become jealous and he never implied that D.Y.’s research compliance staff would
have their way with appellant. He indicated that he advised appellant that bragging would cause
jealousy or resentment from his colleagues.
F.M. indicated that due to mounting
mismanagement of appellant’s research he was banned by research and development from going
to his lab and was determined to be out of compliance by an administrative investigation board.
He indicated that neither he nor D.Y. were part of the investigation. F.M. disagreed with
appellant’s allegation that he did not have protected time. He indicated that appellant was
expected to provide clinical services as a pathologist and once he completed his clinical duties he
could focus on research. However, appellant was a low performer, poor time manager, and
frequently reported to work late. F.M. asserted that appellant was consistently allowed time for
research and administrative tasks. There were clear separations between research and clinical
work and he advised appellant and others that they needed to be mindful of this to avoid
allegations of misconduct. F.M. indicated that he did not prevent appellant from attending to
research duties during clinical hours. He noted that he did not manage appellant’s research staff
and the administrative investigation board recommended that he act as appellant’s mentor. F.M.
indicated that appellant’s research problems were the result of his mismanagement of his
laboratory and research and not the result of misguided instruction from him. He noted that the
misconduct substantiated by the board was significant and, as his supervisor, elected the lowest
form of discipline which was an admonishment issued around March 7, 2012. F.M. asserted that
appellant’s statement that he lost his principal investigator status due to F.M.’s actions was
untrue as the principal investigator status was suspended by the research committee and he was
not a participant. He denied having his staff constantly call appellant to find his location. F.M.
further advised that when he met with appellant F.M.’s door was open and he did not scream.

3

He indicated that institutional and laboratory policy required research activities to be carried out
in designated spaces and not in patient care areas. F.M. noted that after appellant was awarded
the grant he was provided temporary research laboratory space, but when permanent space was
identified, appellant’s laboratory was relocated to the research service building where the
majority of research was conducted. He advised that nearly all physicians who worked where
appellant worked had research space in research buildings.
F.M. submitted an August 15, 2011 memorandum, which had been issued to appellant
detailing that the suspension of principal investigator status and laboratory research was due to a
continuing lack of appropriate laboratory oversight and concern over multiple incidences of
noncompliance of laboratory research. The committee requested a detailed plan identifying the
person who would manage his projects on-site. F.M. submitted a November 14, 2011
preliminary administrative investigation board report which examined allegations of research
misconduct, conflict of interest, insubordination, and inappropriate conduct. The preliminary
investigatory report recommended suspension of appellant’s investigator status.
In a decision dated June 10, 2014, OWCP denied appellant’s claim for an emotional
condition as the evidence did not support that he sustained an emotional condition in the
performance of duty.
On July 7, 2014 appellant requested a telephonic hearing which was held on
February 10, 2015. He testified that he was hired as a staff molecular pathologist, but the facility
had numerous needs that he filled, including medical director of the hematology laboratory,
training and rotation for a hemostasis program, medical director of a large research grant,
institutional review board member, and onsite director of the pathology laboratory. Appellant
indicated that he worked an average of 12 to 14 hours a day and sometimes as many as 20 hours
a day and had slept in his laboratory or in his car. He reported being off work from
October 2013 to May 2014 due to health issues. Appellant indicated that when he returned to
work he had even more job duties, including medical director for the immunology laboratory,
comedical director of hemostasis and transfusion medicine, director of outpatient phlebotomy at
North Hills, and medical director of the Core laboratory at the Sepulveda clinic. The record was
held open for 30 days to afford him time to submit additional evidence. A copy of the transcript
was sent to the employing establishment.
Appellant was treated by Dr. James K. Drury, a Board-certified cardiologist, from
February 17 to 21, 2015, who opined that appellant’s excessive workload with 10- to 14-hour
workdays and the medical services for which he was responsible resulted in excessive stress,
hypertension, and palpitations. In February 18 and 21, 2015 work capacity evaluations,
Dr. Drury noted that appellant had an excessive workload and was totally disabled. Appellant
submitted a job description for a clinical anatomical pathologist.
Appellant submitted a March 3, 2015, statement from J.B., a retired medical technologist,
who met appellant in 2007 after he was hired to run the pathology laboratory. J.B. indicated that
appellant worked very hard and was present in the pathology department a majority of the time
during the day, evenings, and on weekends. He noted that appellant was respectful and never
treated anyone negatively. Also submitted was a statement from B.K. who was the chief resident
at an employing establishment training program from 2008 to 2009. He noted that appellant

4

worked as medical director and arrived early and left late every day. B.K. described appellant as
polite and respectful who never yelled or treated anyone badly.
The employing establishment submitted a March 13, 2015 statement from J.W.R., chief
of pathology and laboratory medicine service, who noted that appellant was a full-time clinical
pathologist hired in 2007. J.W.R. indicated that appellant claimed he had numerous medical
directorship titles and an overwhelming amount of responsibility and workload assigned to him.
She described the duties of a medical directorship as providing technical oversight limited to
policy and procedure review, consulting with clinical staff regarding test orders, and rendering
patient diagnosis and interpretation of results. J.W.R. noted that the medical director performed
periodic visits to offsite laboratories and was kept abreast of situations by supervisors, but did
not supervise day to day laboratory operations. Since 2013, appellant was no longer a medical
director as the laboratories were consolidated under one medical director. J.W.R. advised that
appellant was given unsatisfactory performance appraisals by his prior supervisor. She indicated
that, since appellant’s return to work in January 2015, he has been assigned away from the
alleged stressful environment and many of his clinical medical director duties were absorbed by
other pathologists. Appellant’s current clinical duties would require no more than four hours a
day to complete when compared to other clinical pathologists. J.W.R. noted that the employing
establishment could not explain why he spent 12 to 14 hours a day performing clinical duties.
She disagreed with appellant’s claim that he supervised six people and indicated that there was
no one under his supervision and he had no supervisory responsibilities.
Laboratory staff reported to the section supervisors who were medical technologist and
the section supervisors report to the laboratory manager. J.W.R. noted that appellant’s late
arrival to the workplace was witnessed by many laboratory staff and pathologists on many
occasion. She indicated that appellant was counseled by F.M. for tardiness. Although appellant
described duties that, included clinical duties and after hours research, J.W.R. noted that he had
not had research funding since 2012 and was expected to perform only clinical duties. Any
unfunded research that he chose to continue would be on his own time outside of his clinical
time and was completely voluntary and not an employing establishment requirement. J.W.R.
advised that appellant was investigated for research misconduct and noncompliance and an
administrative investigation board substantiated the claims and he was suspended as principal
investigator. She further noted that his impression of having protected research time of 30
percent even without funding was untrue. Appellant was advised that for any physician under
clinical services, if research funding is exhausted, the physician is expected to perform clinical
work until future funding is awarded. J.W.R. indicated that appellant elected to spend an
extraordinary amount of time performing unfunded research outside his clinical duties.
Appellant’s clinical assignments were comparable to assigned responsibilities of other full-time
clinical pathologist. J.W.R. asserted that his illness was not related to work assigned to him and
that any perceived stress due to being overworked was the result of additional duties he chose to
perform outside his assigned duties.
In a decision dated May 18, 2015, an OWCP hearing representative affirmed the prior
decision.
On May 27, 2015 counsel informed OWCP that he had not received a copy of the
employing establishment’s response to the transcript or the March 13, 2015 statement from

5

J.W.R. Based on this, the employing establishment response was sent to counsel and the parties
were permitted 20 days to provide a rebuttal response. In a letter dated July 30, 2015, OWCP
informed appellant that the hearing decision would be amended to allow for consideration of
counsel and claimant responses.
In an amended decision dated December 23, 2015, an OWCP hearing representative
affirmed OWCP’s decision dated June 10, 2014.3
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that
the identified compensable employment factors are causally related to the emotional condition.4
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,5 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.6 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.7 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.8 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.9 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.10 On the other hand the disability is not covered where

3

The hearing representative affirmed the decision dated January 20, 2015; however, OWCP did not issue a
decision dated January 20, 2015. The prior OWCP decision was dated June 10, 2014.
4

George H. Clark, 56 ECAB 162 (2004).

5

28 ECAB 125 (1976).

6

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

7

Supra note 5.

8

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

9

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

10

Roger Williams, 52 ECAB 468 (2001).

6

it results from such factors as an employee’s fear of a reduction-in-force or his frustration from
not being permitted to work in a particular environment or to hold a particular position.11
ANALYSIS
Appellant alleged that he sustained an emotional condition due to a number of
employment interactions and conditions. OWCP denied his emotional condition claim because
he failed to establish any compensable employment factors. The Board must initially review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of FECA.
Appellant has attributed his emotional condition to performing his regular or specially
assigned duties of his position. He alleged that his workload was excessive and he was required
to work long hours. Appellant testified that he was hired as a staff molecular pathologist, but the
facility had numerous needs that he filled including multiple medical directorships. He indicated
that he worked an average of 12 to 14 hours a day and sometimes as many as 20 hours a day, and
had slept in his laboratory or in his car. Beginning in May 2014 appellant had additional duties.
However, he provided insufficient corroborating evidence to establish that he was overworked.
There is no evidence to support appellant’s general allegation of overwork. He submitted a
statement from J.B. who indicated that appellant worked very hard and was present in the
pathology department a majority of the time during the day, evenings, and on weekends. B.K.
noted that appellant worked as medical director and would arrive early and leave late every day.
These general statements from colleagues attesting that appellant was frequently in his office or
laboratory in the evenings and on weekends are insufficient to establish that he was overworked.
There is no evidence that the employing establishment directed him to work beyond his normal
tour of duty.
The employing establishment submitted a statement from J.W.R. who disputed that
appellant had numerous medical directorship titles and an overwhelming amount of
responsibility and workload. J.W.R. explained that a medical directorship provided technical
oversight limited to policy and procedure review, but did not supervise the day to day operations
of the laboratory. Since 2013, appellant was no longer a medical director as the laboratories
were consolidated. J.W.R. indicated that clinical assignments were comparable to assigned
responsibilities of other full-time clinical pathologists and his current clinical duties should
require no more than four hours a day to complete. She indicated that there was no reason for
appellant to spend 12 to 14 hours a day performing his duties and asserted that this additional
time was spent on unfunded research outside of his clinical duties. J.W.R. contended that any
perceived stress was due to additional duties he voluntarily chose to perform outside of his
assigned duties. Thus, to the extent that appellant alleged overwork,12 this is not established by
the evidence. Furthermore, he did not otherwise attribute his emotional condition to performing

11

See supra note 5.

12

The Board has held that overwork, as substantiated by sufficient factual information to support the claimant’s
account of events, may be a compensable factor of employment. Bobbie D. Daly, 53 ECAB 691 (2002).

7

a specific regular or specially assigned duty in his job. Therefore, appellant has not established a
compensable factor under Cutler.13
Appellant made several allegations related to administrative and personnel actions. In
Thomas D. McEuen,14 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under FECA as
such matters pertain to procedures and requirements of the employing establishment and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the factual circumstances surrounding the administrative
or personnel action established error or abuse by the employing establishment superiors in
dealing with the claimant. Absent evidence of such error or abuse, the resulting emotional
condition must be considered self-generated and not employment generated. In determining
whether the employing establishment erred or acted abusively, the Board has examined whether
the employing establishment acted reasonably.15
Appellant alleged that F.M. yelled at him and told him to keep his “mouth shut” and
“stop bragging” about receiving a grant and being selected as a principal investigator because
that would create jealousies and resentments from colleagues. The Board has found that an
employee’s complaints concerning the manner in which a supervisor performs his or her duties
as a supervisor or the manner in which a supervisor exercises his or her supervisory discretion
fall, as a rule, is outside the scope of coverage provided by FECA. This principle recognizes that
a supervisor or manager in general must be allowed to perform his or her duties, that employees
will at times dislike the actions taken, but that mere disagreement or dislike of a supervisory or
management action will not be actionable, absent evidence of error or abuse.16 Appellant has
presented no corroborating evidence to support that the employing establishment erred or acted
abusively with regard to these allegations. F.M. indicated that appellant walked through the
building and bragged about his grant, arrived late to work, fell behind on his clinical duties and
research work, and the laboratory workers complained about him. The chief of research and
development service requested that F.M. speak with appellant about attending to his research
duties. F.M. noted speaking with appellant, but denied yelling at him. Appellant has not
established administrative error or abuse in the performance of these actions and therefore they
are not compensable under FECA.
Appellant alleged that as a principal investigator he was entitled to “protected time” or
time off from his clinical service work in the hospital during his regular scheduled tour of duty to
conduct research in approved studies, but that F.M. denied appellant’s “protected time.” He
alleged that F.M. prohibited him from attending research, or lab-related or other research related
meetings during his duty hours because he did not want to mix funding between the clinical and
research spheres. Appellant also alleged that F.M. gave him misguided instruction on managing
his research program, indicating that appellant was too lenient with his research laboratory staff.
13

See supra note 5.

14

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

15

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

16

See Marguerite J. Toland, 52 ECAB 294 (2001).

8

The Board notes that the assignment of work is an administrative function17 and the manner in
which a supervisor exercises his or her discretion falls outside the ambit of FECA. Absent
evidence of error or abuse, appellant’s mere disagreement or dislike of a managerial action is not
compensable.18 The Board finds that appellant has not offered sufficient evidence to establish
error or abuse regarding his work assignments. The evidence does not establish that the
employing establishment acted unreasonably. F.M. indicated that appellant was expected to
provide clinical services as a pathologist and once he completed his clinical work he could focus
on research. However, he noted that appellant was a low performer, poor time manager, and
frequently reported to work late. F.M. asserted that appellant was consistently allowed time for
research and administrative tasks. He advised that there were clear separations between research
and clinical work and he advised appellant and others that they needed to be mindful of the
separation. F.M. indicated that he did not prevent appellant from attending to research duties
during clinical hours. The employing establishment has either denied appellant’s allegations or
explained the reasons for its actions in these administrative matters. Appellant has presented no
corroborating evidence to support that the employing establishment acted unreasonably.
Appellant alleged that he lost his principal investigator status because of F.M.’s actions.
The Board has held that denials by an employing establishment of a request for a different job,
promotion or transfer are not compensable factors of employment as they do not involve the
employee’s ability to perform his or her regular or specially assigned work duties, but rather
constitute his or her desire to work in a different position.19 The Board also notes that
disciplinary matters are administrative functions of the employing establishment and not duties
of the employee and, unless the evidence discloses error or abuse on the part of the employing
establishment, are not compensable employment factors.20 FM. denied this allegation and
indicated that the principal investigator status was suspended by the research committee.
Appellant has not provided any corroborating evidence that the employing establishment erred in
taking away his principal investigator status.
Appellant alleged that F.M. and his subordinates would constantly call him throughout
the day to monitor his location and, when F.M. discovered that appellant was not in the hospital
office building, he would demand that appellant return to his office in the hospital. Although the
monitoring of activities at work is generally related to the employment, it is an administrative
function of the employing establishment, and not a duty of the employee.21 F.M. denied this
allegation. Appellant has presented no corroborating evidence to support that the employing
establishment erred or acted abusively with regard to these allegations. He also presented no

17

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

18

See Barbara J. Latham, 53 ECAB 316 (2002); see also Peter D. Butt Jr., 56 ECAB 117 (2004) (allegations
such as improperly assigned work duties, which relate to administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties do not fall within the coverage of FECA).
19

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

20

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

21

See Dennis J. Balogh, 52 ECAB 232 (2001); see also John Polito, 50 ECAB 347 (1999).

9

corroborating evidence that he was monitored. The Board finds that the evidence does not show
that the employing establishment acted unreasonably in monitoring appellant’s work.
Appellant alleged that F.M. demanded that he move his laboratory to another building on
the other side of campus, which resulted in appellant having to allocate more time in moving
between the laboratory and the main hospital building. To the extent that appellant has alleged
that the change in the location of his laboratory constituted punishment or was inconvenient this
would be analogous to emotional frustration in not being allowed to work in a particular
environment. It is well established that when disability results from an employee’s frustration
over not being permitted to work in a particular environment, to hold a particular position, or to
secure a promotion, such disability does not arise in the performance of duty.22 Appellant has
not submitted sufficient evidence to establish that the administrative change in the location of his
laboratory constituted administrative error or abuse by employing establishment management.23
F.M. indicated that institutional and laboratory policy requires research activities to be carried
out in designated spaces and not in patient care areas. He noted that after appellant was awarded
the grant he was provided for temporary research laboratory space and when permanent space
was identified his laboratory was relocated to the research service building where the majority of
research is conducted. The record establishes that appellant was not singled out for a laboratory
location change as F.M. advised that nearly all physicians who work in building 500 have
research space in research buildings. The Board finds that the evidence does not establish that
the change in appellant’s laboratory location was unreasonable or that it was a form of
harassment or discrimination.24 Thus, appellant has not established a compensable employment
factor under FECA with respect to the laboratory location change.
Appellant alleged that he was harassed, screamed at, humiliated in front of others, and
threatened with the loss of his job at least once a day. To the extent that incidents alleged as
constituting harassment or a hostile environment by a manager are established as occurring and
arising from appellant’s performance of his regular duties, these could constitute employment
factors.25 However, for harassment to give rise to a compensable disability under FECA, there
must be evidence that harassment did in fact occur. Mere perceptions of harassment are not
compensable under FECA.26 The evidence fails to support appellant’s claim for harassment as a
cause for his emotional condition. F.M. denied that he yelled or screamed at appellant. General
allegations of harassment are not sufficient27 and in this case appellant has not submitted
sufficient evidence to establish disparate treatment by his supervisor.28 Although he alleged that
22

See supra note 5.

23

An administrative or personnel matter will be considered to be an employment factor where the evidence
discloses error or abuse on the part of the employing establishment. Charles D. Edwards, 55 ECAB 258 (2004).
24

See infra, notes 25, 26 and accompanying text regarding harassment.

25

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

26

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991). See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a
claimant must substantiate allegations of harassment or discrimination with probative and reliable evidence).
27

See Paul Trotman-Hall, 45 ECAB 229 (1993).

28

See Joel Parker, Sr., supra note 26.

10

his supervisor harassed and engaged in actions, which he believed constituted harassment, he
provided no corroborating evidence to establish his allegations.29 The factual evidence fails to
support appellant’s claim that he was harassed by F.M.
Appellant alleged that F.M. threatened, yelled and verbally abused him. The Board has
recognized the compensability of verbal abuse and threats in certain circumstances. This does
not imply, however, that every statement uttered in the workplace will give rise to coverage
under FECA.30 The Board finds that the facts of the case do not support any specific incidents of
verbal abuse. Appellant alleged that F.M. threatened to fire him daily. However, his statement
is not specific as to the time or place of any claimed verbal abuse and he did not provide the
context for the statements or when they occurred.31 The Board finds that the evidence does not
support any specific incidents of verbal abuse or threats. Appellant provided no corroborating
evidence to establish any specific incidents.32
Consequently, appellant has not established his claim for an emotional condition as he
has not attributed his claimed condition to any compensable employment factors.33
On appeal, appellant through counsel reiterated his allegations, asserting that he has
established error or abuse by the employing establishment. As explained, the Board finds that
appellant has not established his claim for an emotional condition as he has not established any
compensable employment factors.
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 fails to meet his burden of proof to establish an emotional
condition in the performance of duty.

29

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
30

Charles D. Edwards, supra note 23.

31

See Joe M. Hagewood, 56 ECAB 479 (2005) (without a detailed description of the specific statements made, a
compensable employment factor was not established; the mere fact a supervisor or employee may raise his voice
during the course of a conversation does not warrant a finding of verbal abuse).
32

See supra note 29. See also Judy L. Kahn, 53 ECAB 321 (2002).

33

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

11

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate 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
__________________________________________
M.I., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, Port Huron, MI, Employer
__________________________________________

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

Docket No. 11-1649
Issued: March 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2011 appellant filed a timely appeal from a March 10, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective November 24, 2009 on the grounds that she had recovered with
no disability from a February 21, 2008 employment injury; and (2) whether appellant established
that she had any continuing employment-related disability or condition after November 24, 2009
due to her accepted conditions.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 25, 2008 appellant, then a 36-year-old claims representative, filed a
traumatic injury claim, alleging that she injured her left lower extremity when she slipped on
black ice on February 21, 2008 when she was entering her car to go home from work. She
stopped work on March 21, 2008 and did not return. On May 5, 2008 OWCP accepted that
appellant sustained employment-related sprains of the left knee, lumbar region of the back and
second digit of the left hand.
A March 4, 2008 x-ray of the left knee was normal. An April 25, 2008 magnetic
resonance imaging (MRI) scan of the left knee demonstrated osteoarthritis and findings that
could represent a Baker’s or ganglion cyst. In a June 12, 2008 report, Dr. Nick Reina, a Boardcertified physiatrist, noted the history of injury and appellant’s complaints of constant pain in the
tail area radiating into the left cheek or hip area, constant left knee pain radiating into the foot,
constant pain and numbness in fingers two through four of the left hand and constant pain in the
back of the neck. He provided physical examination findings, noting that she was morbidly
obese with slightly limited neck and shoulder range of motion and a negative straight-leg raising.
Dr. Reina diagnosed neck, left knee, left hand/fingers and low back pain. On June 17, 2008
Dr. D. David Ernst, a Board-certified osteopath specializing in orthopedic surgery, provided
examination findings and diagnosed left knee pain, chondromalacia patella of the left knee and
minimal degenerative osteoarthritis of the left knee.
A June 25, 2008 MRI scan study of the lumbar spine showed minimal circumferential
bulging of the intervertebral disc at L4-5 and was otherwise negative. A June 25, 2008 MRI
scan study of the cervical spine demonstrated minimal posterior bulging of the intervertebral disc
at C6-7 and was otherwise negative. On July 1, 2008 Dr. Reina advised that he had discussed
the bulges found in the cervical and lumbar area and that they could have been present prior to
the fall but were made symptomatic by the fall. He submitted additional reports which noted
appellant’s complaint of neck and low back pain. On October 3, 2008 Dr. Reina advised that she
could not return to work. On October 30, 2008 he stated that he was at a loss to explain why
appellant was actually getting worse with therapy and medication. On November 7, 2008 it was
recommended that appellant get a second opinion. She was placed on the periodic compensation
rolls. In November 2008, OWCP referred appellant to Dr. Bruce D. Abrams, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a December 2, 2008 report, Dr. Abrams
noted his review of the statement of accepted facts and medical record. He described the history
of injury and appellant’s complaints of left hand numbness in the first web space along the index
finger and pain on the left side of her neck, mid portion of the upper back between the shoulders,
top of the left shoulder and in the lower back with radiation into the left upper buttock.
Dr. Abrams found that examination of the cervical and lumbar regions, left knee and left hand
were normal and that she was neurologically intact. He diagnosed left knee contusion/sprain,
resolved, with normal examination; lumbar sprain, resolved, with normal neurologic and
physical examinations and sprain of second digit of the left hand, resolved, with normal
examination. Dr. Abrams advised that appellant’s complaints were subjective in nature and
indicated that her employment injuries had resolved. In an attached work capacity evaluation, he
advised that she could return to full-time work without restrictions.

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By report dated December 15, 2008, Dr. E. Neil Pasia, a Board-certified osteopath
specializing in orthopedic surgery, stated that appellant fell in February and had pain in her neck
and low back and arm and leg numbness. He reviewed diagnostic studies and provided physical
examination findings and diagnosed neck and low back pain and myofascial strain, noting that
her imaging findings were fairly mild despite her significant symptoms. Dr. Pasia recommended
chronic pain management. On January 23, 2009 Dr. Reina noted that appellant felt discomfort
with sitting for any extended period of time and recommended a functional capacity evaluation.
On a January 23, 2009 work capacity evaluation, he advised that she could work one to two
hours daily with a five-pound limitation. In a February 10, 2009 report, Dr. Reina noted that
appellant’s back pain was in the sacrum or coccyx area and that she had left foot numbness that
began on the great toe. Spine range of motion was diminished. Dr. Reina stated that appellant’s
pain problems were beyond “my scope or ability to resolve,” and referred her to Dr. Pasia. A
February 10, 2009 x-ray of the sacrum and coccyx was unremarkable.
OWCP determined that a conflict of medical opinion arose between Dr. Reina and
Dr. Abrams regarding whether appellant had any continuing disability causally related to the
February 21, 2008 employment injury, the extent of the employment-related injury, the degree of
disability associated with the work injury and the physical limitations/restrictions imposed by the
employment injury. On March 16, 2009 it referred appellant to Dr. Zachary J. Endress, a Boardcertified orthopedic surgeon, for an impartial evaluation.
In a March 30, 2009 report, Dr. Endress noted his review of the statement of accepted
facts and medical record and described the history of injury and appellant’s complaint of neck
and low back pain. He advised that no abnormality was demonstrated on examination of the
cervical spine, which had a normal appearance with no torticollis or wry neck deformity.
Cervical spine range of motion was essentially full, including lateral rotation, lateral flexion,
forward flexion and extension. Foraminal closure test was negative. Neurologic testing of both
upper extremities including motor, sensory and deep tendon reflexes, was intact and there was no
atrophy of the shoulder girdle, arm, forearm or hand musculature. Dr. Endress indicated that left
hand examination also demonstrated no abnormality. He stated that the left hand was normal in
appearance with no swelling or deformity and that appellant could clench a tight fist and could
straighten her fingers. Examination of appellant left knee revealed a normal appearance with no
swelling or deformity. Dr. Endress reported that she walked with a normal gait and was able to
get up and down from the examining table without difficulty or assistance. Lumbosacral spine
examination revealed tenderness over the sacral coccygeal junction, which extended all the way
up through the presacral area and into the lower lumbar region. The sciatic notches were
nontender and straight leg raising was negative bilaterally. Patrick’s test was negative and
neurologic testing of both lower extremities, including motor, sensory and deep tendon reflexes,
was intact. Dr. Endress advised that appellant had recovered from the injuries she sustained in
her slip and fall injury of February 21, 2008 and stated that there were no objective physical
findings to corroborate her complaints of pain in the coccygeal area. He opined that she could
return to work as a claims representative, and that he would not place any restrictions on work or
recreational activities. In an attached work capacity evaluation, Dr. Endress advised that
appellant could work eight hours a day without restriction.
On April 17, 2009 OWCP proposed to terminate appellant’s compensation benefits on
the grounds that the medical evidence established that her work-related conditions had resolved.

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On May 5, 2009 Dr. Endress recommended an MRI scan study of the sacrococcygeal junction,
which was authorized by OWCP. By letter dated May 13, 2009, appellant disagreed with the
proposed termination, asserting that she had also injured her neck on February 21, 2008 and that
her condition had worsened. She continued to have constant neck and back pain and that
Dr. Endress’ report did not agree with what he told her at the time of his examination. Appellant
indicated that she called his office and also reported that Dr. Abrams did not perform a thorough
examination.
In a May 13, 2009 report, Dr. Cheryl A. Skarbo, a chiropractor, advised that appellant
had been seen since January 7, 2009 for neck, lower back and left leg pain and numbness. She
stated that she had performed adjustments with some relief but that appellant’s condition had
progressively worsened. A July 11, 2009 MRI scan of the sacrum demonstrated a possible
unfused joint between the first and second coccygeal segments and no evidence of occult bone
trauma to the sacrum or coccyx.
By report dated July 17, 2009, Dr. Endress noted that he had reviewed the July 11, 2009
MRI scan study and reported that it did not show any abnormality that would explain appellant’s
persistent complaint of pain in the tailbone area. He reiterated that she could return to her usual
work as a claims representative. In an August 28, 2009 report, Dr. Reina indicated that appellant
was seen for neck and low back pain and that he had last seen her in March 2009. He reviewed
her medication regimen and an x-ray of the pelvis, stating that the pubis symphysis was slightly
displaced, most likely representing a little rotation of the pelvis when the x-ray was done.
By decision dated November 24, 2009, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Endress who performed the referee examination and
finalized the termination of benefits.
On December 1, 2009 appellant requested reconsideration, asserting that the injuries of
February 21, 2009 had not resolved and that she was in constant pain. In a November 18, 2009
report, Charles Regan, a physician’s assistant, provided examination findings and diagnosed
neck pain likely due to a C6-7 bulging disc with radiculopathy of the left upper extremity, low
back pain related to an L4-5 bulging disc with radiculopathy, sciatica and coccydynia secondary
to unfused coccyx. A November 18, 2009 x-ray of the lumbar spine was normal.
On a December 1, 2009 form report, Dr. Skarbo noted that appellant had complaints of
difficulty walking, headaches and low back, leg and neck pain due to a fall. She diagnosed
subluxations of C5 and L5, lumbalgia, sciatica, muscle spasms and cervicalgia and
recommended corrective care. Dr. Skarbo also submitted very brief, form-type treatment notes
dated November 13, 2007 to December 1, 2009 that were essentially illegible.
Dr. J. Alan Robertson, an orthopedic surgeon, provided a December 15, 2009 report. He
described the history of injury and appellant’s medical care and noted her complaints of
headaches, limited neck range of motion, low back pain, left knee pain and foot numbness.
Dr. Robertson performed physical examination and noted that she was depressed over her
physical status and the chronicity of her pain with associated physical disability. His impression
was that appellant was pathologically obese with equivocal left knee meniscal signs, equivocal
left hip labral signs, weakness of the extensor hallucis longus and tibialis anterior on the left, had

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absolutely no movement of the lower back secondary to pain and had a 50 percent reduction in
neck motion secondary to pain, with equivocal Sperling’s signs bilaterally. After reviewing
cervical and lumbar MRI scan films, Dr. Robertson indicated that there was no evidence of a
neurocompressive mass of the cervical spine and very early-stage desiccation at L4-5 with a
high-intensity zone to the left of midline consistent with an acute annular tear which, in the axial
plane, was represented by an eccentric protrusion or extrusion paracentrally to the left of midline
effacing the thecal sac. He concluded that appellant had extreme restriction of musculoskeletal
function and could not work. A December 28, 2009 MRI scan study of the left knee
demonstrated focal chondromalacia patella, small knee joint effusion and a popliteal cyst.
In a merit decision dated February 11, 2010, OWCP denied modification of the
November 24, 2009 decision.
Appellant was terminated by the employment establishment, effective June 18, 2010.
She again requested reconsideration on October 14, 2010 and submitted reports from
Dr. Robertson dated February 4 to July 22, 2010. Dr. Robertson diagnosed trauma to the low
back with resultant disc joint disruption at L4-5 compressing upon the L5 nerve root on the left
and producing radiculopathy; trauma to the left hip with resultant abnormal-appearing MRI scan
study, labral tear could not be excluded and further investigation was required; polytrauma and
fall on same level from slipping, tripping or stumbling at work. He reiterated that appellant
could not work. A September 13, 2010 computerized tomography (CT) scan and discography of
the lumbar spine demonstrated a concentric disc bulge and congenitally short pedicles at L4-5
with no canal stenosis or neural foraminal compromise. On October 14, 2010 Dr. Robertson
noted his review of the September 13, 2010 studies, advising that they demonstrated an annular
tear on the left at L4-5. In reports dated November 10, 2010 and February 16, 2011, he
continued to advise that appellant’s pain was unbearable and that she was totally disabled.
In a merit decision dated March 10, 2011, OWCP denied modification of the prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.4 When the case is referred to an
2

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

3

Id.

4

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

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impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective November 24, 2009. The accepted conditions in this case are
sprains of the left knee, lumbar region and second digit of the left hand. OWCP determined that
a conflict in medical evidence had been created between the opinions of Dr. Reina, an attending
physician and Dr. Abrams, an OWCP referral physician, regarding whether appellant had any
continuing disability causally related to the February 21, 2008 employment injury, the extent of
the employment-related injury, the degree of disability associated with the work injury, and the
physical limitations/restrictions imposed by the employment injury. It then properly referred
appellant to Dr. Endress, Board-certified in orthopedic surgery, for an impartial evaluation.
In a March 30, 2009 report, Dr. Endress noted his review of the statement of accepted
facts and medical record. He described the history of injury and appellant’s complaint of neck
and low back pain and performed a thorough physical examination. Dr. Endress advised that no
abnormality on cervical spine examination as it had a normal appearance with no torticollis or
wry neck deformity and that the left hand was normal in appearance with no swelling or
deformity. Appellant walked with a normal gait and was able to get up and down from the
examining table without difficulty or assistance. While lumbosacral spine examination revealed
tenderness over the sacralcoccygeal junction through the presacral area and into the lower
lumbar region, the sciatic notches were nontender and straight leg raising was negative
bilaterally. Patrick’s test was negative and neurologic testing of both lower extremities,
including motor, sensory and deep tendon reflexes, was intact. Dr. Endress advised that
appellant had recovered from the accepted conditions caused by the February 21, 2008
employment injury, indicating that there were no objective physical findings to corroborate her
complaints of pain in the coccygeal area. He concluded that she could return to her work for
eight hours daily as a claims representative, with no restrictions to her physical activity.
Dr. Endress reviewed a July 11, 2009 MRI scan study of the sacrum and on July 17, 2009,
reported that the study did not show any abnormality that would explain appellant’s persistent
complaint of pain in the tailbone area. He reiterated that she could return to her usual
employment as a claims representative.
The Board finds that Dr. Endress provided a comprehensive, well-rationalized opinion in
which he clearly advised that any residuals of appellant’s accepted conditions had resolved and
that she could return to her preinjury position as a claims representative. Dr. Endress opinion is
therefore entitled to the special weight accorded an impartial examiner and constitutes the weight
of the medical evidence.6

5

Manuel Gill, 52 ECAB 282 (2001).

6

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

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The medical evidence appellant submitted is insufficient to overcome the weight
accorded Dr. Endress as an impartial medical specialist regarding whether she had residuals of
her accepted conditions. In her May 13, 2009 report, Dr. Skarbo, a chiropractor, did not discuss
the accepted conditions or explain why appellant could not perform her usual job.7 In his
August 28, 2009 report, Dr. Reina merely reported that appellant was seen for complaints of
neck and low back pain and reviewed an x-ray of the pelvis. The Board has long held that
reports from a physician who was on one side of a medical conflict that an impartial specialist
resolved, are generally insufficient to overcome the weight accorded to the report of the impartial
medical examiner or to create a new conflict.8 Dr. Reina had been on one side of the conflict
resolved by Dr. Endress. Furthermore, he did not discuss the accepted sprains and did not
explain why they caused appellant’s total disability.
The Board therefore concludes that Dr. Endress’ opinion that appellant had recovered
from the employment injury is entitled to the special weight accorded an impartial medical
examiner,9 and the additional medical evidence submitted is insufficient to overcome the weight
accorded him as an impartial medical specialist regarding whether appellant had residuals of her
accepted conditions. OWCP therefore properly terminated appellant’s compensation benefits
effective November 24, 2009.10
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits
effective November 24, 2009, the burden shifted to her to establish that she had any continuing
disability causally related to her accepted right upper extremity injury.11 To establish a causal
relationship between the condition, as well as any attendant disability claimed and the
employment injury, an employee must submit rationalized medical evidence, based on a
complete factual and medical background, supporting such a causal relationship.12 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.13 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
7

Under section 8101(2) of FECA, the term “physician” includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist and subject to regulation by the Secretary. D.S., Docket No. 09-860
(issued November 2, 2009). Dr. Skarbo’s May 13, 2009 report did not include a diagnosis of subluxation. See
discussion infra for later submitted reports from the chiropractor.
8

I.J., 59 ECAB 408 (2008).

9

See Sharyn D. Bannick, supra note 6.

10

Manuel Gill, supra note 5.

11

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

12

Jennifer Atkerson, 55 ECAB 317 (2004).

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Id.

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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.14
ANALYSIS -- ISSUE 2
The Board finds that appellant submitted insufficient medical evidence with her
December 1, 2009 and October 14, 2010 reconsideration requests to establish that she continued
to be disabled after November 24, 2009 due to the February 21, 2008 employment injury,
accepted for left knee, low back and finger sprains.
The diagnostic studies are insufficient to meet appellant’s burden as they contain no
opinion as to the cause of the diagnosed conditions and medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.15 The report from Mr. Regan does not constitute competent medical
evidence as a physician’s assistant is not considered a physician under FECA.16 While
Dr. Skarbo submitted a form report in which she diagnosed subluxations at L5 and C5, she did
not indicate that these were diagnosed by x-ray. She would therefore not be considered a
physician under FECA.17
The Board finds the opinion of Dr. Robertson of diminished probative value as his
reports do not contain sound medical reasoning establishing that appellant was totally disabled
after November 24, 2009 due to the accepted conditions caused by the February 21, 2008
employment injury.18 A medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.19 Dr. Robertson submitted a number of reports dated from December 15,
2009 to February 16, 2011 in which he described appellant’s complaint of worsening pain and
diagnosed trauma to the low back with resultant disc joint disruption at L4-5 compressing upon
the L5 nerve root on the left and producing radiculopathy; trauma to the left hip with resultant
abnormal-appearing MRI scan study in which a labral tear could not be excluded; and
polytrauma. These conditions were not accepted as caused by the February 21, 2008
employment injury. Furthermore, Dr. Robertson did not explain the mechanics of how the
February 21, 2008 employment injury, when appellant slipped and fell in the parking lot at work,
caused continuing disability after November 24, 2009 due to the accepted sprains to the left
knee, lumbar region and second digit of the left hand. As such, his opinion is entitled to little
14

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

15

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

16

Ricky S. Storms, 52 ECAB 349 (2001); see 5 U.S.C. § 8101(2).

17

Supra note 7. The Board also notes that certain of Dr. Skarbo’s chiropractic treatment preceded the
February 21, 2008 employment injury.
18

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

19

T.M., Docket No. 08-975 (issued February 6, 2009).

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probative value and is insufficient to meet an employee’s burden of proof to establish that she
continues to have work-related disability due to the accepted conditions.20
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective November 24, 2009 on the grounds that she had no residuals of
an accepted condition, and that she did not establish that she had any continuing employmentrelated disability or condition after that date causally related to the February 21, 2008
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

20

S.S., 59 ECAB 315 (2008).

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

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

Docket No. 18-1494
Issued: April 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 31, 2018 appellant, through counsel, filed a timely appeal from a June 18, 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.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the June 18, 2018 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability for the period August 10 through September 18, 2017 causally related to her accepted
June 29, 2013 employment injury.
FACTUAL HISTORY
On September 10, 2013 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on June 29, 2013 she felt and heard a “pop” followed by
immediate pain in her neck, back, and shoulder when she lifted a box weighing 20 pounds and
placed it under a cart while in the performance of duty.4 OWCP accepted the claim for
displacement of cervical intervertebral disc without myelopathy and sprain of ligaments of cervical
spine. Appellant stopped work on June 29, 2013 and returned to modified duty on
December 6, 2013. As of January 13, 2014, she was sent home by the employing establishment
because no limited-duty work was available. On August 14, 2014 appellant returned to a full-time,
limited-duty position, but immediately stopped work.5
On December 10, 2014 appellant underwent an OWCP-authorized C3-4 discectomy,
arthrodesis, and interbody fusion. She returned to a full-time modified position on
January 26, 2016.
On August 30, 2017 OWCP received claims for compensation (Form CA-7) for leave
without pay (LWOP) commencing August 10, 2017. The time analysis forms (Form CA-7a)
indicated that appellant stopped work after working 5.96 hours on August 10, 2017 and that she
was placed off work by her physician as of August 16, 2017.
In an August 15, 2017 report, Dr. Hugo E. Benalcazar, a Board-certified neurological
surgeon, noted that appellant had worsening neck and low back pain. He diagnosed cervical disc
disorder with radiculopathy and low back pain and ordered diagnostic testing.
In a development letter dated September 1, 2017, OWCP indicated that it appeared that
appellant was claiming disability due to a material change or worsening of her accepted workrelated conditions. It noted that she had returned to work in a full-time, limited-duty capacity on
August 14, 2014 and worked until August 11, 2017, when she stopped work completely.6 OWCP
4

Under OWCP File No. xxxxx184, appellant has an accepted claim from a September 22, 2000 employment injury
for several conditions, including displacement of cervical intervertebral disc without myelopathy. On August 29,
2011 she underwent a three-level anterior cervical discectomy and fusion.
5

In a preliminary notice dated June 16, 2014, OWCP advised appellant that she had been offered a suitable work
position as a city carrier. It advised that if she did not accept the position in 30 days her wage-loss and schedule award
compensation could be terminated pursuant to 5 U.S.C. § 8106(c)(2). On July 31, 2014 OWCP further advised
appellant that she had another 15 days to accept the suitable work position or have her compensation terminated. By
decision dated August 20, 2014, it terminated appellant’s wage-loss compensation, effective August 14, 2014, based
on a refusal of suitable work under 5 U.S.C. § 8106(c)(2). By decision dated February 20, 2015, an OWCP hearing
representative reversed the termination of appellant’s benefits, finding that she had not “neglected suitable work”
offered by the employing establishment.
6

The record indicates that appellant returned to full-time modified work on January 26, 2016.

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advised appellant that no evidence had been submitted with her claim to establish disability during
the claimed time period. It provided appellant with the definition of a recurrence and the evidence
required to establish such a claim. OWCP afforded appellant 30 days to provide the requested
evidence.
In response, OWCP received additional evidence from Dr. Benalcazar. This included an
August 15, 2017 note excusing appellant from work and an August 15, 2017 duty status report
(Form CA-17) placing appellant off work until September 5, 2017.
In a September 14, 2017 report, Dr. Benalcazar provided a history of appellant’s accepted
June 29, 2013 employment injury indicating that she had picked up an extremely heavy small box
and then fell over and dropped it to the floor because of the weight. He noted that appellant had a
previous anterior cervical discectomy and fusion surgery in August 2011 and was seen within two
days of the June 29, 2013 injury when a magnetic resonance imaging (MRI) scan showed
herniations in additional disc spaces. Dr. Benalcazar noted that the August 29, 2017 MRI scan
showed very minimal degenerative disc disease at C2-3 and C7-T1, which appeared unchanged
since the March 31, 2016 MRI scan study, and extensive changes from C3-7 with no significant
change in the overall imaging appearance of the spinal canal or neural foramen at those levels. He
opined that appellant’s disability was caused by the recurrence of herniated discs in her neck due
to her employment injury when she lifted a heavy object. In a September 15, 2017 note,
Dr. Benalcazar returned appellant to work on September 18, 2017 with restrictions.
By decision dated October 20, 2017, OWCP denied appellant’s claim for a recurrence of
disability. It found that appellant had not provided the factual information requested and the record
contained no medical evidence explaining how her alleged total disability for the claimed period
was due to the accepted June 29, 2013 employment injury.
On November 3, 2017 OWCP received counsel’s request for an oral hearing before an
OWCP hearing representative, postmarked November 1, 2017.
In a November 28, 2017 report, Dr. Benalcazar repeated the same history of injury as
reported in his September 14, 2017 report. He also reiterated his opinion that appellant’s disability
had been caused by the recurrence of herniated discs in her neck due to the injury at work lifting a
heavy object. Dr. Benalcazar opined that appellant was able to perform the duties contained in the
current September 27, 2017 job offer. He completed a return to work note and a duty status report
also dated November 28, 2017.
In a December 8, 2017 form report, Dr. Benalcazar diagnosed cervical disc disorder with
radiculopathy and opined that appellant was totally disabled for the period August 10 through
September 18, 2017 due to her “work injury.” He noted that appellant had a previous occurrence
of this condition or similar condition on June 29, 2013.
A telephonic hearing was held before an OWCP hearing representative on April 17, 2018.
Appellant testified that, prior to August 11, 2017, she was working a modified job and that her
work stoppage started midday on August 10, 2017. She also testified that she could not say that
something happened, rather she did not feel right and that something was off in her neck and down
her arms. Appellant indicated that she went directly to the doctor and that she was kept off work
for one month. She explained that she had a spontaneous worsening of her condition and that the

3

time off helped with her recovery. Appellant noted that she returned to modified work for a twohour workday schedule on September 18, 2017 and gradually increased her hours to full-time
hours in early 2018.
By decision dated June 18, 2018, an OWCP hearing representative affirmed OWCP’s
October 20, 2017 decision. The hearing representative found that Dr. Benalcazar’s reports were
of limited probative value and insufficient to meet appellant’s burden of proof.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are altered
so that they exceed his or her established physical limitations.7
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the burden
of proof to establish, by the weight of the reliable, probative, and substantial evidence, a recurrence
of total disability and an inability to perform such limited-duty work. As part of this burden of
proof, 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 limited-duty job requirements.8 To establish a change in
the nature and extent of the injury-related condition, there must be a probative medical opinion,
based on a complete and accurate factual and medical history as well as supported by sound
medical reasoning, that the disabling condition is causally related to employment factors.9 In the
absence of rationale, the medical evidence is of diminished probative value.10 While the opinion
of a physician supporting causal relationship need not be one of absolute medical certainty, it must
not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree
of medical certainty.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability for the period August 10 through September 18, 2017 causally related to her
7

See F.C., Docket No. 18-0334 (issued December 4, 2018); J.F., 58 ECAB 124 (2006). A recurrence of disability
does not apply when a light-duty assignment is withdrawn for reasons of misconduct, nonperformance of job duties,
or other downsizing. 20 C.F.R. § 10.5(x). See also Richard A. Neidert, 57 ECAB 474 (2006).
8

See R.C., Docket No. 18-1695 (issued March 12, 2019); A.M., Docket No. 09-1895 (issued April 23, 2010);
Terry R. Hedman, 38 ECAB 222 (1986).
9

See F.C., supra note 7; Mary A. Ceglia, 55 ECAB 626 (2004).

10

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

11

See F.C., supra note 7; Ricky S. Storms, 52 ECAB 349 (2001).

4

accepted June 29, 2013 employment injury. Appellant has not alleged a change in her light-duty
job requirements. Instead, she attributed her inability to work due to a change in the nature and
extent of her employment-related conditions. Appellant therefore has the burden of proof to
provide medical evidence to establish that she was disabled due to a worsening of her accepted
work-related conditions.12
In support of her recurrence claim, appellant submitted reports from Dr. Benalcazar. In his
September 14, November 28, and December 8, 2017 reports, Dr. Benalcazar opined that
appellant’s disability was caused by the recurrence of her herniated cervical disc conditions due to
her employment injury. He noted that the August 29, 2017 MRI scan showed very minimal
degenerative disc disease at C2-3 and C7-T1 and extensive changes from C3-7, with no significant
change in the overall appearance at those levels. However, OWCP has not accepted degenerative
disc conditions as causally related to the accepted injury. Where an employee claims that a
condition not accepted by OWCP was due to an employment injury, she bears the burden of proof
to establish that the condition is causally related to the employment injury.13
The Board finds that Dr. Benalcazar has not provided medical reasoning explaining why
appellant’s current condition or disability, commencing August 10, 2017 was due to the accepted
June 29, 2013 employment injury.14 Dr. Benalcazar did not relate appellant’s disability to the
conditions from the accepted June 29, 2013 employment injury which included cervical spine
sprain, and displacement of cervical intervertebral disc without myelopathy. Thus, his reports are
of limited probative value to establish appellant’s claim that her recurrence of disability is due to
her accepted employment injury.15 The Board also finds that Dr. Benalcazar opinions regarding
the cause of appellant’s disability were of limited probative value as he provided a medical history,
which was inconsistent with the history provided by appellant regarding the June 29, 2013 injury.
Dr. Benalcazar reported that she had picked up a small box that was extremely heavy and that she
fell. However, appellant has explained that her injury occurred when she lifted a box weighing 20
pounds and placed it under a cart. She did not report a fall. As the reports from Dr. Benalcazar
failed to provide an accurate factual and medical history and sound medical reasoning explaining
how her employment-related conditions worsened such that she was unable to work as of
August 10, 2017, Dr. Benalcazar’s reports are insufficient to meet her burden of proof.16
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.

12

See D.H., Docket No. 18-0129 (issued July 23, 2018); D.L., Docket No. 13-1653 (issued November 22, 2013);
Cecelia M. Corley, 56 ECAB 662 (2005).
13

See C.S., Docket No. 17-1686 (issued February 5, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); Mary A. Ceglia, supra note 9.

15

G.T., Docket No. 18-1369 (issued March 13, 2019).

16

See D.H., supra note 12; K.W., 59 ECAB 271 (2008).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability for the period August 10 through September 18, 2017 causally related to her
accepted June 29, 2013 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 12, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-2118
Issued: March 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 18, 2006 appellant, through counsel, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decisions dated September 27, 2005 and March 23,
2006, denying her claim for recurrences of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained recurrences of disability during the period
May 3, 2000 through August 26, 2005, causally related to her accepted employment injury.
FACTUAL HISTORY
On December 13, 1990 appellant, then a 52-year-old clerk, filed a claim for an
occupational disease (Form CA-2) and assigned Office file number A2-625960.

On December 12, 1990 appellant realized that her carpal tunnel syndrome of the left hand
was caused by factors of her federal employment.1 She stated that her job required typing
approximately four to five hours per day. Appellant was evaluated by a physician on
December 12, 1990. On July 3, 1991 the Office accepted her claim for a left carpal tunnel
syndrome. On January 14, 1995 appellant filed a CA-2 form assigned Office file number A269211 attributing her right hand numbness to her federal employment. The Office accepted
appellant’s claim for right carpal tunnel syndrome. On April 19, 1995 it authorized left carpal
tunnel release which was performed on June 22, 1995 by Dr. Thomas G. Stackhouse, an
attending Board-certified orthopedic surgeon. Dr. Stackhouse performed a right carpal tunnel
surgery on March 2, 1986 with trigger a finger release on January 27, 2000.
On February 27, 1996 the Office doubled the cases assigned file numbers A2-625960 and
A2-692611 into a master case file assigned number A2-625960.2
On February 14, 2003 appellant filed claims, a CA-2a form dated September 18, 2002
and a CA-7 form dated September 11, 2002 alleging that she sustained a recurrence of disability
from January 27, 2000 through September 11, 2002.3 She filed another CA-7 form on
February 25, 2003, alleging that she sustained a recurrence of disability from January 27, 2000
through February 25, 2003.
In letters dated April 9, 2003, the Office accepted that appellant sustained recurrences of
disability from January 27 through May 2, 2000. It found the medical evidence of record was
insufficient to establish disability beyond May 2, 2000.
By letter dated April 25, 2003, appellant’s attorney contended that appellant was totally
disabled from May 3, 2000 to the present. In a May 3, 2000 report, Dr. Stackhouse utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) 57, Table 16 (4th ed. 1993) to determine that appellant had a 10 percent impairment of
the right upper extremity or a 6 percent impairment of the whole person due to her carpal tunnel
1

Appellant retired from the employing establishment on October 2, 1992.

2

By decision dated March 28, 1997, the Office granted appellant a schedule award for a 20 percent impairment of
the left upper extremity. In a decision dated February 9, 2001, the Office granted appellant a schedule award for a
10 percent impairment of the right upper extremity. On February 8, 2002 she requested reconsideration of the
Office’s February 9, 2001 decision. An October 30, 2001 medical report of Dr. David Weiss, a Board-certified
orthopedic surgeon, stated that appellant had an 18 percent impairment of the right upper extremity. By letter dated
April 22, 2002, the Office referred appellant, along with a statement of accepted facts, the case record and a list of
questions to be addressed, to Dr. Howard Zeidman, a Board-certified orthopedic surgeon, for a second opinion
medical examination based on an Office medical adviser’s opinion that the medical opinions of Drs. Stackhouse and
Weiss differed regarding the extent of appellant’s permanent impairment of the right upper extremity. In a May 9,
2002 report, Dr. Zeidman determined that appellant had a five percent impairment each of the right and left upper
extremity. On June 17, 2002 an Office medical adviser agreed with Dr. Zeidman’s findings. By decision dated
June 19, 2002, the Office denied modification of the February 9, 2001 decision. Appellant failed to establish that
she had more than a 10 percent impairment of the right upper extremity.
3

In a letter dated November 19, 2002, appellant’s attorney informed the Office that, on September 18, 2002, he
filed CA-7 and CA-2a forms, alleging that appellant sustained recurrences of disability. By letter dated January 15,
2003, he inquired about the status of these claims. On January 23, 2003 the Office advised counsel that it had not
received either a CA-7 or CA-2a form. It then advised him to submit copies of these forms for review.

2

syndrome. A January 11, 1995 nerve conduction study and electromyogram (EMG) performed
by Dr. David Levy, a Board-certified neurologist, was positive for bilateral carpal tunnel
syndrome. No other peripheral nerve entrapment at the wrist, elbow or brachial plexus was
present. In addition, there was no cervical radiculopathy. A December 12, 1990 nerve
conduction study and EMG report of Dr. George A. Knod, a physiatrist, stated that appellant
sustained moderate left carpal tunnel syndrome. There was no evidence of left cervical
radiculopathy, left ulnar neuropathy or polyneuropathy.
On February 23, 2003
Dr. Ted Gallagher, a physiatrist, performed a nerve conduction study and EMG, which found
evidence of moderate left carpal tunnel syndrome, mild right carpal tunnel syndrome and
borderline ulnar neuropathy at the left elbow level. In a January 26, 2000 EMG report,
Dr. Francis J. Bonner, Jr., a Board-certified physiatrist, stated that appellant had bilateral distal
median motor sensory neuropathy suggestive of and compatible with carpal tunnel syndrome.
On May 29, 2003 appellant filed a CA-7 form alleging that she sustained a recurrence of
disability from May 3, 2000 through May 29, 2003.
By letter dated June 18, 2003, the Office advised appellant that she did not submit
medical evidence sufficient to establish disability beyond May 2, 2000. It addressed the medical
evidence she needed to submit to establish her claim. On July 25, 2003 appellant stated that she
had already submitted sufficient medical evidence and that she did not have any additional
evidence to submit.
On August 31, 2005 appellant filed a CA-7 form alleging that she sustained a recurrence
of disability during the period October 12, 2002 through August 26, 2005.
By decision dated September 27, 2005, the Office found that appellant did not sustain
recurrences of total disability after May 2, 2000 through August 26, 2005 causally related to the
accepted employment-related injury. Appellant failed to submit sufficient medical evidence to
establish her claims. In an October 3, 2005 letter, through counsel, she requested an oral hearing
before an Office hearing representative.
By decision dated March 23, 2006, an Office hearing representative affirmed the
September 27, 2005 decision. The hearing representative found the medical evidence of record
insufficient to establish that appellant sustained disability after May 2, 2000 through August 26,
2005 causally related to her employment-related bilateral carpal tunnel syndrome.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4

4

20 C.F.R. § 10.5(x).

3

A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which she claims
compensation is causally related to the accepted employment injury.5 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between her recurrence of disability and her employment injury.6 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.7 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.8
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.9 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.10 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.11
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome while in the
performance of duty. On April 9, 2003 the Office accepted that she sustained recurrences of
disability from January 27 through May 2, 2000. Appellant sought additional compensation for
her ongoing wrist problems, contending that she was disabled on and after May 3, 2000. The
Board finds that she has failed to submit rationalized medical evidence establishing that she has
disability causally related to her accepted employment-related bilateral carpal tunnel syndrome.
Dr. Stackhouse’s April 18, 1995 medical report stated that appellant’s carpal tunnel
syndrome symptoms were related to her federal employment. Dr. Levy’s January 11, 1995 nerve
conduction study and EMG report stated that appellant sustained bilateral carpal tunnel
syndrome but found no other peripheral nerve entrapment at the wrist, elbow or brachial plexus
or cervical radiculopathy. Dr. Knod’s December 12, 1990 nerve conduction study and EMG
report demonstrated moderate left carpal tunnel syndrome and found no evidence of left cervical
5

Kenneth R. Love, 50 ECAB 193, 199 (1998).

6

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

7

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

8

Alfredo Rodriquez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

9

See Ricky S. Storms, supra note 7; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
10

For the importance of bridging information in establishing a claim for a recurrence of disability, see
Richard McBride, 37 ECAB 748 at 753 (1986).
11

See Ricky S. Storms, supra note 7; Morris Scanlon, 11 ECAB 384, 385 (1960).

4

radiculopathy, left ulnar neuropathy or polyneuropathy. Dr. Bonner’s January 26, 2000
EMG report found that appellant had bilateral distal median motor sensory neuropathy
suggestive of and compatible with carpal tunnel syndrome. This evidence predates the alleged
disability commencing on or after May 3, 2000 and is not relevant to that issue.
Dr. Stackhouse’s May 3, 2000 report stated that appellant had a 10 percent impairment of
the right upper extremity or a 6 percent impairment of the whole person due to her carpal tunnel
syndrome A.M.A., Guides 57, Table 16. However, he failed to address whether appellant was
totally disabled as of that date or thereafter due to her employment-related bilateral carpal tunnel
syndrome.12 The Board finds that Dr. Stackhouse’s report is insufficient to establish appellant’s
claim.
Dr. Gallagher’s February 23, 2003 nerve conduction study and EMG report found
evidence of moderate left carpal tunnel syndrome, mild right carpal tunnel syndrome and
borderline ulnar neuropathy at the left elbow level. This report is insufficient to establish
appellant’s claim because the physician did not address whether appellant had total disability
May 3, 2000 through August 26, 2005 due to her accepted employment-related injury.
Appellant failed to submit rationalized medical evidence establishing that her total
disability from May 3, 2000 through August 26, 2005 resulted from the effects of her
employment-related bilateral carpal tunnel syndrome. The Board finds that she has not met her
burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a recurrence of
disability during the period May 3, 2000 through August 26, 2005 due to her accepted
employment injury.

12

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2006 and September 27, 2005
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2007
Washington, DC

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

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

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

6