United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
CORPS OF ENGINEERS, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 08-1534
Issued: December 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 5, 2008 appellant filed a timely appeal from a December 3, 2007 merit decision
of the Office of Workers’ Compensation Programs denying his emotional condition claim and a
March 13, 2008 nonmerit decision denying his request for reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over the
March 13, 2008 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has established that he sustained an emotional
condition in the performance of duty causally related to factors of his federal employment; and
(2) whether the Office properly denied his request for merit review of his claim under 5 U.S.C.
§ 8128.

FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated October 5, 2007,
the Board set aside a January 16, 2007 nonmerit decision denying appellant’s request for further
merit review of his claim.1 The claim was based on appellant’s contention that he sustained a
myocardial infarction while in travel status due to employment-related stress. The Board noted
that the Office accepted as a compensable employment factor that the employing establishment
erred in failing to timely pay him at an accurate rate. The Office determined, however, that the
medical evidence was insufficient to support that appellant sustained a heart attack due to the
compensable employment factor of timely receiving his proper pay. The Board found that he
had submitted relevant and pertinent medical evidence with his request for reconsideration and
remanded the case for the Office to review the merits of the claim. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.
On June 6, 2001 appellant experienced a myocardial infarction while on travel status in
Oregon. He attributed his heart condition and heart attack to stress from learning a new job
under time constraints. Appellant further asserted that he sustained a significant amount of stress
because he was not timely paid due to payroll’s delay in processing his documents. The
employing establishment also listed him at an inaccurate step and payroll paid him at an
incorrect rate. Appellant contended that he sustained increased damage to his heart because he
was in a remote location when he sustained his heart attack.
On July 19, 2001 the employing establishment maintained that new employees were not
under pressure “to learn new material within any specified period of time.” Appellant began
work on May 6, 2001 and should have received his salary on May 31, 2001. He was paid on
June 4, 2001 at an inaccurate pay rate. Appellant received his proper salary on June 14, 2001.
In a September 12, 2002 statement, appellant related that he accepted his position with
the employing establishment because of a promised salary increase. He stated, “Due to an
administrative error, not only was I not paid on time for the first two pay dates scheduled, my
salary level was at a GS-11, Step 1 instead of Step 8 as promised.”
On November 13, 2002 the Office referred appellant to Dr. Satinder Swaroop, a Boardcertified internist, for a second opinion examination. In an accompanying statement of accepted
facts, it listed as compensable employment factors that the employing establishment failed to
timely issue appellant’s paycheck and paid him at an inaccurate rate. The Office indicated that
he began working May 6, 2001 and was eligible for a paycheck on May 31, 2001. When
appellant received his first paycheck on June 4, 2001, his pay rate was inaccurate. He received
his proper salary the next pay date of June 13, 2001. The Office noted that at the time of his
myocardial infarction he and other employees were on a bus trip to the Oregon coast to take a
1

Docket No. 07-1302 (issued October 5, 2007). On July 2, 2001 appellant, then a 52-year-old real estate
specialist filed an occupational disease claim alleging that he sustained a heart attack on June 6, 2001 and a heart
condition causally related to work stress. He attributed his stress to learning a new job under time constraints and a
delay in receiving his pay. Appellant also noted that his pay rate was inaccurate. He was on travel status in Oregon
at the time of his June 6, 2001 myocardial infarction. Appellant argued that working in a remote location three
hours from a hospital contributed to his heart damage.

2

tour of a marina. Appellant experienced symptoms on the bus tour and went to a hospital after
returning to his hotel.
On December 12, 2002 Dr. Swaroop reviewed appellant’s history of chest discomfort on
a trip to Oregon. He sought treatment at a hospital and was diagnosed as having a myocardial
infarction. Dr. Swaroop diagnosed status post old posterior wall myocardial infarction. He
opined that it was “quite unclear” whether appellant’s myocardial infarction was caused or
aggravated by employment factors. Dr. Swaroop noted that “he was not doing any unusual
activity at the time of infarct; however, he stated that he was out of town and he also stated that
his pain was somewhat delayed and he also stated that his treatment was somewhat delayed as he
was at a somewhat remote place from the hospital.” He found that it was unclear whether
appellant’s work conducting negotiations contributed to his heart condition. Dr. Swaroop also
found that is was unclear whether traveling to Oregon caused his heart attack.
On February 11, 2003 the Office noted that Dr. Swaroop was not responsive to its
questions regarding causal relationship. It requested that he provide an opinion regarding
whether the delay in pay contributed to appellant’s heart attack. In a supplemental report dated
July 14, 2003, Dr. Swaroop opined that he was unsure whether a four-day delay in paying
appellant “would have caused such a severe stress to cause a heart attack. Apparently, delay in
payment would be a stressful situation, however, it is difficult to evaluate whether a delay of four
days would have caused such a severe stress to cause a heart attack.” Dr. Swaroop concluded,
“Based on the information provided, I do not think that the work factors caused [appellant’s]
heart attack. However, one factor involved was that the care for his myocardial infarction was
delayed because he was working in a remote area, and that may have delayed his recovery from
his heart attack.”
In a report dated September 26, 2006, Dr. Jerome Pierson, a Board-certified internist,
opined that work stress “was a substantial cause for the myocardial infarction [appellant]
suffered on June 6, 2001 ….” He noted that appellant had other risk factors but that “the only
new and progressive factor identified was the work[-]related stress. [Appellant] clearly felt he
was treated unfairly and the lack of appropriate pay, through no fault of his own, placed
additional psychological and physical stress on him. The timing of his cardiac event had to be
impacted by the work[-]related stress suffered by [him].” Dr. Pierson concluded that the
increased stress due to the failure to obtain pay and other work disputes could “cause increased
coagulation and plaque disruption and lead to myocardial infarction.”
On remand, by decision dated December 3, 2007, the Office denied modification of its
November 8, 2005 decision. It determined that the September 6, 2006 report submitted by
Dr. Jerome Pierson, a Board-certified internist, was insufficient to show that appellant’s June 6,
2001 myocardial infarction causally related to the accepted employment factor.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the

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concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
Proceedings under the Act are not adversarial in nature, nor are the Office a disinterested
arbiter. While the claimant has the responsibility to establish entitlement to compensation, the
Office shares responsibility in the development of the evidence. It has the obligation to see that
9

2

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

3

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

4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
5

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

6

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

7

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

8

Id.

9

Phillip L. Barnes, 55 ECAB 426 (2004); Vanessa Young, 55 ECAB 575 (2004).

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justice is done.10 Accordingly, once it undertakes to develop the medical evidence further, it has
the responsibility to do so in the proper manner.11
ANALYSIS
Appellant attributed his heart condition and myocardial infarction in part to pressure to
learn new material within time constraints. The Board has held that emotional reactions to
situations in which an employee is trying to meet his or her position requirements are
compensable.12 Appellant, however, did not specifically describe the duties he was required to
learn within specific time limitations and also did not submit any evidence to establish that his
allegation was factual.13 The employing establishment controverted his contention that he was
under pressure to “learn new material within any specified period of time.” As appellant
submitted no evidence substantiating his allegation, he has not established a compensable
employment factor.
Appellant attributed his stress to the employing establishment’s failure to timely pay him
and its failure to pay him at an accurate rate. An employee’s reaction to administrative actions or
personnel matters taken by the employing establishment is not covered under the Act as such
matters pertain to procedures and requirements of the employer and do not bear a direct relation
to the work required of an employee.14 However, error or abuse by the employing establishment
in an administrative or personnel matter may afford coverage.15 In its September 14, 2001
decision, the Office properly accepted as a compensable employment factor that the employing
establishment erroneously delayed paying appellant and then paid him as a GS-11, Step 1 instead
of a GS-11, Step 8.
Appellant’s burden of proof is not discharged by establishing compensable employment
factors. He must also submit rationalized medical opinion evidence establishing that his
emotional condition is causally related to the accepted employment factor.16 It is well
established, however, that proceedings under the Act are not adversarial in nature and that, while
the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.17 Once the Office undertakes development of
the medical evidence, it has the responsibility to do in a manner that will resolve the relevant

10

Richard E. Simpson, 55 ECAB 490 (2004).

11

Melvin James, 55 ECAB 406 (2004).

12

Peter D. Butt, Jr., 57 ECAB 117 (2004).

13

Id.

14

Jeral R. Gray, 57 ECAB 611 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

15

Id.

16

Charles D. Gregory, 57 ECAB 322 (2006).

17

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

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issues in the case.18 The Board finds that the opinion of Dr. Swaroop, the Office referral
physician, is speculative and insufficiently rationalized to resolve the medical issue presented.
Dr. Swaroop initially asserted that he was unsure whether appellant’s myocardial infarction was
caused or aggravated by employment factors. In his July 14, 2003 supplemental report, he
generally concluded that he did not believe that work factors caused the myocardial infarction.
Dr. Swaroop, however, further opined that he was “unsure” whether a four-day delay in
receiving pay would constitute sufficient stress to cause in a heart attack. He did not address
whether receiving pay at an inaccurate rate caused or contributed to appellant’s heart condition.
Consequently, Dr. Swaroop’s opinion is insufficient to resolve the pertinent issue developed by
the Office of whether compensable factors of employment caused or contributed to his
myocardial infarction and heart condition. On remand, it should obtain a rationalized medical
opinion addressing whether appellant sustained a heart condition or myocardial infarction caused
or aggravated by the compensable employment factors.
Dr. Swaroop further opined that appellant’s delay in receiving treatment because he was
working in a remote location may have delayed his recovery. If factors of employment caused a
delay in the treatment of his condition which materially affected his condition or aggravated it in
any way that would be covered under the Act.19 In its August 6, 2004 decision, the Office
determined that it was reasonable for appellant to wait until he returned to the area around his
hotel to seek medical treatment. It did not make a specific factual determination regarding
whether his location at the time of his myocardial infarction delayed his receipt of medical
treatment. On remand the Office should make a factual determination regarding whether
appellant’s work location on the Oregon coast at the time of his myocardial infarction delayed
him obtaining medical treatment and, if so, request a reasoned medical opinion regarding
whether the delay aggravated or worsened his condition.
CONCLUSION
The Board finds that the case is not in posture for decision.20

18

See Melvin James, supra note 11.

19

See Rudy C. Sixta, Jr., 44 ECAB 727 (1993).

20

In view of the Board’s disposition of the merits, the issue of whether the Office properly denied appellant’s
request for merit review of his claim is moot.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 13, 2008 and December 3, 2007 are set aside and the case
is remanded for further proceedings consistent with this opinion of the Board.
Issued: December 15, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kingston, TN, Employer
__________________________________________
Appearances:
C.B. Weiser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0325
Issued: July 17, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On November 26, 2019 appellant, through counsel, filed a timely appeal from an
October 22, 2019 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned the appeal Docket No. 20-0325.
On July 9, 2007 appellant, then a 48-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed swelling and pain in her hands and wrist
due to factors of her federal employment including repetitive motions of casing and delivering
mail. OWCP accepted her claim for bilateral carpal tunnel syndrome. On November 7, 2008
appellant underwent right carpal tunnel release surgery and stopped work. OWCP paid wage-loss
compensation on the supplemental rolls from November 7 to December 17, 2008. On
December 18, 2008 appellant returned to full-time limited duty. Appellant stopped work again on

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.

November 21, 2010. OWCP reinstated appellant’s wage-loss compensation and placed appellant
on the periodic rolls, effective November 21, 2010.
By decision dated June 19, 2018, OWCP finalized a May 10, 2018 proposed determination
to terminate appellant’s wage-loss compensation and medical benefits, effective June 24, 2018. It
found that the weight of medical evidence rested with a June 1, 2017 medical report2 of
Dr. Nicholas Grimaldi, a Board-certified orthopedic surgeon serving as an OWCP second-opinion
examiner, who found that she no longer had residuals or disability causally related to her accepted
bilateral carpal tunnel condition.
On July 6, 2018 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review, which was held on November 5, 2018. By decision
dated January 8, 2019, an OWCP hearing representative affirmed the June 19, 2018 termination
decision.
Subsequent to the January 8, 2019 decision, OWCP received additional medical and
diagnostic reports dated February 5 to March 11, 2019.
On August 9, 2019 appellant, through counsel, requested reconsideration. Counsel asserted
that Dr. Grimaldi’s opinion was speculative and not well rationalized as he had not conducted
diagnostic testing to support his conclusion. In support of her claim, appellant submitted medical
and diagnostic reports dated May 30, 2007 to March 11, 2019 and letters dated March 20, 2015 to
June 13, 2018.
By decision dated October 22, 2019, OWCP summarily denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Having duly reviewed the case record submitted by OWCP, the Board finds that this case
is not in posture for a decision as OWCP failed to provide adequate factual findings and legal
conclusions in support of its October 22, 2019 decision.3
Section 8124(a) of FECA provides: OWCP shall determine and make a finding of fact and
make an award for or against payment of compensation.4 Its regulations at section 10.126 of Title
20 of the Code of Federal Regulations provide: “The decision [of the Director of OWCP] shall

2
In a June 1, 2017 report, Dr. Grimaldi reviewed the statement of accepted facts (SOAF) and the medical evidence
of record. He related appellant’s complaints of continued right wrist pain and provided examination findings.
Dr. Grimaldi diagnosed psoriatic arthritis affecting the right wrist that has resulted in auto fusion. He reported that
appellant’s current symptoms conformed more to her history of psoriatic arthritis. Dr. Grimaldi concluded that
appellant had no significant clinical findings to support that she still had residuals of her accepted bilateral carpal
tunnel syndrome and was unable to work due to her accepted condition.
3

See R.C., Order Remanding Case, Docket No. 19-1386 (issued April 7, 2020); G.L., Docket No. 17-1367 (issued
August 17, 2018).
4
5 U.S.C. § 8124(a); see J.J., Docket No. 19-0448 (issued December 30, 2019); see Hubert Jones, Jr., 57 ECAB
467 (2006).

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contain findings of fact and a statement of reasons.”5 Moreover, the Federal (FECA) Procedure
Manual provides that the claims examiner’s “evaluation of the evidence should be clear and
detailed so that the reader understands the reason for the disallowance of the benefit and the
evidence necessary to overcome the defect of the claim.”6
OWCP did not reference nor discuss any of the new medical reports submitted in support
of appellant’s timely August 9, 2019 reconsideration request or the additional evidence submitted
after the most recent January 8, 2019 merit decision.7 In its October 22, 2019 decision, it did not
discharge its responsibility to set forth findings of fact and a clear statement of reasons explaining
the disposition so that appellant could understand the basis for the decision, i.e., why the new
medical evidence had not met any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring
OWCP to reopen the case for review of the merits of the claim.8
Accordingly, the Board will set aside the October 22, 2019 decision and remand the case
for OWCP to review the evidence and argument in support of appellant’s reconsideration request
and make findings of fact and provide reasons for its decision, pursuant to the standards set forth
in section 5 U.S.C. § 8124 (a) and 20 C.F.R. § 10.126. After such further development as OWCP
deems necessary, it shall issue an appropriate decision.9

5

20 C.F.R. § 10.126.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3) (February 2013).

7

See R.T., Docket No. 19-0604 (issued September 13, 2019); T.M., Docket No. 17-1609 (issued December 4, 2017).

8

See J.M., Docket No. 18-0729 (issued October 17, 2019); J.J., Docket No. 11-1958 (issued June 27, 2012).

9

To preserve appellant’s right to file a timely request for reconsideration, and to afford her the ability to present
further evidence or argument to establish her claim, on remand OWCP should consider reviewing the merits of the
evidence of record. See generally E.I., Docket No. 18-0634 (issued January 23, 2019).

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IT IS HEREBY ORDERED THAT the October 22, 2019 nonmerit decision of the Office
of Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 17, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Seattle, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0493
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On February 15, 2021 appellant, through counsel, filed a timely appeal from a
December 17, 2020 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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the December 17, 2020 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedures 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.

ISSUE
The issue is whether appellant has met his burden of proof to expand the acceptance of his
claim to include additional conditions as causally related to the accepted January 1, 2005
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 22, 2005 appellant, then a 65-year-old lead screener, filed a notice of
recurrence (Form CA-2a) alleging that on January 1, 2005 he experienced a recurrence of a
previously accepted cervical spine condition. 5 He stopped work on February 12, 2005 and did not
return. OWCP developed the claim as one for a new occupational disease (Form CA-2). On
May 5, 2005 it accepted a lumbar strain, cervical thoracic strain, and lumbar radiculopathy. On
July 27, 2005 OWCP expanded its acceptance of the claim to include the additional diagnosis of
an L4-5 disc herniation.
On August 29, 2005 appellant underwent an OWCP-authorized laminectomy, facetectomy,
and foraminotomy at L4 and L5. OWCP paid wage-loss compensation. It placed appellant on the
periodic rolls, effective February 19, 2006.
Appellant underwent a series of OWCP-authorized cervical facet block and cervical
epidural injections from January 12 through July 18, 2007, and lumbar epidural steroid injections
on August 28, 2007.6 From December 30, 2014 through January 23, 2017, he also underwent a
series of OWCP-authorized bilateral L3, L4, and L5 medial branch and dorsal ramus blocks,
OWCP-authorized bilateral radiofrequency ablation from L3 through L5, and OWCP-authorized
caudal and bilateral L4-5 transforaminal epidural steroid injections.
On May 30, 2017 OWCP obtained a second opinion regarding appellant’s work capacity
and the etiology of his continuing condition from Dr. Vicki Kalen, a Board-certified orthopedic
surgeon. In a June 21, 2017 report, Dr. Kalen opined that multilevel degenerative disc changes
visible on imaging studies were normal for appellant’s age, and that surgery had resolved the
accepted L4-5 disc herniation. She found that the accepted employment injuries had resolved
4

Docket No. 17-1423 (issued November 8, 2017).

5

Appellant has a previously accepted traumatic injury claim under OWCP File No. xxxxxx865 for a cervical strain.
OWCP administratively combined OWCP File Nos. xxxxxx840 and xxxxxx865, with OWCP File No. xxxxxx840
serving as the master file.
6

A January 23, 2006 cervical magnetic resonance imaging (MRI) scan demonstrated disc narrowing at C4-5, C5-6,
and C6-7 with degenerative disc bulges. A June 3, 2008 lumbar MRI scan demonstrated bilateral posterior
laminectomies at L4-5 with 5 millimeter (mm) anterolisthesis of L4 on L5, increased since a March 4, 2005 study,
resulting in bilateral neural foraminal narrowing, with possible compression of the left exiting L4 nerve root, a
posterior osteophyte at L5-S1 contributing to moderate bilateral neural foraminal narrowing with contact of the exiting
L5 nerve roots bilaterally, mildly increased posterior disc bulge at L2 -3 with mild spinal canal and neural foraminal
narrowing, and moderate-to-severe facet arthropathy at L4-5. June 3, 2008 lumbar x-rays demonstrated a Grade 1
anterolisthesis of L4 on L5 with instability, and prominent degenerative disc disease present at L5 -S1.

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without residuals. In a July 10, 2017 supplemental report, Dr. Kalen noted work restrictions
related to appellant’s age of 78 and age-related spinal complaints, unrelated to the employment
injury.
In a July 20, 2017 report, Dr. Russel R. Kinder, Board-certified in anesthesiology and pain
medicine, diagnosed a sprain of the ligaments of the cervical and lumbar spine. On September 6,
2017 he performed OWCP-authorized bilateral transforaminal epidural steroid injections at L4-5.
Dr. Kinder diagnosed lumbar radiculopathy. 7
On March 6, 2018 OWCP found a conflict of medical opinion between Dr. Kalen, for the
government, and Dr. Kinder, for appellant, regarding the relationship of appellant’s continuing
condition to the employment injury. To resolve the conflict, on March 20, 2018 OWCP referred
appellant for an impartial medical examination with Dr. Lowell Anderson, a Board-certified
orthopedic surgeon. In an April 18, 2018 report, Dr. Anderson, serving as the impartial medical
examiner (IME), reviewed appellant’s history of injury, medical records, and the statement of
accepted facts (SOAF). On examination, he observed restricted range of motion of the cervical
spine, paraspinal tenderness to palpation of the cervical spine, left intrascapular region, and
lumbosacral junction, possible mild weakness of the left lower extremity evident on toe -raise and
step testing, possible mild hamstring weakness in the left lower extremity, subjective dec reased
sensation in the second, third, and fourth fingers of the left hand, minimally decreased sensation
in the fifth finger of the left hand, limited lumbar range of motion, decreased sensation in the entire
left lower extremity, and negative seated straight leg raising tests bilaterally. Dr. Anderson also
noted that thigh circumference at 10 centimeters proximal to the patella was 51/49, right over left.
He diagnosed multilevel cervical spondylosis, cervical spinal stenosis, likely left upper extremity
radiculopathy symptoms related to nerve root irritation at multiple levels of the cervical spine,
central cervical stenosis related to genetic and age-related progression of a preexisting cervical
condition. Dr. Anderson opined that the accepted injury “with likely L4-5 herniated disc” and
surgery had resolved without residuals as it was “likely satisfactorily treated” by surgery. He noted
that appellant’s ongoing cervical and lumbar conditions were due only to age-related degenerative
changes. Dr. Anderson indicated that appellant had attained maximum medical improvement
“many years ago.” He found appellant unable to perform his date-of-injury position due to
nonoccupational, age-related degenerative changes of the cervical and lumbar spine.
On May 9, 2018 OWCP proposed to terminate appellant’s wage-loss compensation as he
was no longer disabled from work as a result of the accepted January 1, 2005 injuries, based on
Dr. Anderson’s opinion as the IME. It afforded him 30 days to respond.
In a letter dated June 6, 2018 appellant, through counsel, contended that Dr. Anderson
failed to differentiate between sequelae of the employment injury and age-related degenerative
changes. Appellant submitted a June 1, 2018 report by Dr. Xi Tian, Board-certified in
anesthesiology and pain medicine, diagnosing a ligamentous cervical spine sprain and chronic
postoperative pain.
By decision dated June 14, 2018, OWCP terminated appellant’s wage-loss compensation,
effective that day, based on the special weight accorded Dr. Anderson’s report as the impartial
7

A December 6, 2017 MRI scan of the cervical spine demonstrated moderate-to-severe spondylosis at C5-6, C6-7,
and C7-T1 with spinal stenosis, multiple areas of facet arthrosis, and neuroforaminal narrowing.

3

medical examiner. It noted that the decision did not affect appellant’s entitlement to medical
benefits.
On June 19, 2018 OWCP received a June 7, 2018 report by Dr. Tian, diagnosing a sprain
of ligaments of cervical spine.
In a June 22, 2018 report, Dr. Richard Wohns, a Board-certified neurosurgeon, noted the
accepted January 1, 2005 occupational injury and diagnosed cervical stenosis, cervical
radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. 8 He opined that the
January 1, 2005 employment aggravated or activated these latent, asymptomatic conditions. 9
On July 3, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review, held November 14, 2018.
In a December 11, 2018 letter, counsel asserted that OWCP should expand its acceptance
of the claim to include an L5-S1 disc herniation, lumbar stenosis, and failed back syndrome.
Appellant submitted additional evidence.
By decision dated January 29, 2019, an OWCP hearing representative affirmed the
June 14, 2018 termination decision.
On February 11, 2019 OWCP received a November 1, 2018 report by Dr. Wohns, in which
he opined that appellant’s cervical and lumbar conditions were caused by repetitive flexion and
extension of the upper and lower body while lifting and throwing heavy luggage at work on
January 1, 2005. Dr. Wohns explained that appellant’s accepted lumbar sprain, cervical-thoracic
sprain, herniated L4-5 disc, and lumbar radiculitis had naturally progressed over time subsequent
to a failed L4-5 laminectomy. He listed additional diagnoses of cervical stenosis, cervical
radiculopathy, and bilateral occipital neuralgia. 10
On April 11, 2019 OWCP received a November 15, 2018 report by Dr. Tian, diagnosing
lumbago, other chronic postoperative pain, and a ligamentous lumbar sprain.
8

A July 11, 2018 MRI scan of the lumbar spine demonstrated central stenosis at L2 -3 with broad-based central
protrusion, L3-4 central stenosis with broad-based bulging, small central canal, and left foraminal and central disc
protrusion, degenerative spondylosis at L4-5 with marked narrowing of the right nerve root and marked flattening of
the existing L4 nerve, L5-S1 broad-based disc bulging and retrolisthesis with bilateral neuroforaminal narrowing, and
right S1 nerve root displacement.
9

Appellant consulted several other physicians in 2018 and 2019. In an October 25, 2018 report, Dr. David
Hoffman, a Board-certified family practitioner, referred him to a pain management clinic. In a January 10, 2019
report, Dr. Darin Blackburn, a Board-certified family practitioner, noted treating appellant since the January 1, 2005
employment injury. He opined that appellant’s injury-related cervical and lumbar spine symptoms had not resolved
and necessitated work limitations. In reports dated January 25 and April 10, 2019, Dr. Michael J. Martin, a Boardcertified orthopedic surgeon, noted a history of the accepted January 1, 2005 employment injury and subsequent
treatment. On examination he noted slightly diminished cervical and lumbar lordosis, and limited range of cervical
and lumbar spine motion. Dr. Martin recommended physical therapy.
10

A March 8, 2019 MRI scan of the cervical spine and April 9, 2019 MRI scans of the thoracic and lumbar spine
demonstrated degenerative changes throughout the spine as evident on prior imaging studies. The April 9, 2019
lumbar MRI scan demonstrated a midline laminectomy with excellent decompression of the spinal canal at L4-5 and
L5-S1.

4

In July 1, 2019 and January 8, 2020 reports, Dr. Wohns opined that appellant required a
C5-6 and C6-7 anterior cervical discectomy and fusion, and extension of the prior lumbar
laminectomy to include L2 and L3 due to severe lumbar stenosis.
On January 16, 2020 appellant, through counsel, requested reconsideration of the
January 29, 2019 decision.
In a January 21, 2020 report, Dr. Wohns noted that the January 1, 2005 L4-5 laminectomy
had relieved appellant’s bilateral lower extremity radiculopathy, but that sharp, persistent lumbar
pain remained. He diagnosed bilateral occipital neuralgia, cervical radiculopathy, cervical
stenosis, cervical pain, lumbar stenosis with neurogenic claudication, mid back pain, and low back
pain.11
By decision dated January 29, 2020, OWCP denied modification of the prior decision.12
In a February 4, 2020 report, Dr. Wohns diagnosed cervical stenosis of the spinal canal,
lumbar stenosis with neurogenic claudication, and mid-back pain. He ordered a cervical MRI scan.
A June 25, 2020 MRI scan of the cervical spine demonstrated left C2-3 facet arthropathy,
a mild C3-4 disc protrusion with facet arthropathy and bilateral bony foraminal stenosis, possible
partial bony fusion of the endplates and right facets at C4-5 with mild bony stenosis of the right
foramen, degenerative disc narrowing at C5-6 with posterior disc protrusion and central canal
narrowing, partial desiccation of the C6-7 disc with diffuse posterior disc protrusion and central
canal narrowing, and mild anterolisthesis of C7 on T1 with mild posterior disc protrusion and facet
arthropathy.
In a July 20, 2020 report, Dr. Wohns opined that the June 25, 2020 MRI scan demonstrated
the need for a C5-6 andC6-7 microdiscectomy and fusion, to be followed by L2 to L4
laminectomies and foraminotomies.
In an August 13, 2020 letter, counsel requested that OWCP expand its acceptance of
appellant’s claim to include additional conditions as noted by Dr. Wohns. She submitted August 4
and November 17, 2020 letters by Dr. Wohns, who related appellant’s account that the January 5,
2005 employment incident caused the sudden onset of excruciating “electric shock-like pain”
throughout his neck and back, radiating into his head and all extremities. Dr. Wohns explained
that the employment injury caused a herniated lumbar disc “due to a mechanical strain between
two vertebrae, as he twisted to throw the luggage.” He opined that the employment incident also
caused spondylosis and radiculopathy at C5-6, C6-7, and C7-T1 due to strain in his spine “and
shoulder as he twisted to throw the heavy luggage.” Dr. Wohns reiterated that the January 5, 2005
employment injury directly caused or aggravated preexisting cervical stenosis of the spinal canal,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain.
11

In a January 17, 2020 report, Dr. Kathy Wang, an osteopathic physician Board-certified in anesthesiology,
administered a discogram with provocative lumbar discography at L2 -3, L3-4, and L5-S1, which demonstrated
nonconcordant pain at L2-3, L3-4, and L4-5.
12

On July 27, 2020 appellant, through counsel, appealed the January 29, 2020 merit decision to the Board. By
decision dated February 9, 2022, the Board reversed the January 29, 2020 decision, finding that IME Dr. Anderson’s
report was inconsistent with the SOAF. Docket No. 20-1442 (issued February 9, 2022).

5

On November 17, 2020 OWCP referred the medical record and SOAF to Dr. Michael M.
Katz, a Board-certified orthopedic surgeon serving as OWCP’s district medical adviser, for an
opinion on whether the accepted employment injury caused additional conditions. Dr. Katz
submitted a November 19, 2020 report in which he reviewed the medical record and SOAF. He
disagreed with Dr. Wohns’ support for causal relationship, as appellant’s cervical spine conditions
were present prior to a January 23, 2006 MRI scan, and the accepted cervical spine sprain was a
self-limiting condition. Dr. Katz opined that appellant’s cervical spondylosis, cervical stenosis,
and bilateral occipital neuralgia were due to the aging process and “natural history of the
degenerative conditions of the cervical spine” rather than a neck sprain. He commented that the
proposed diagnosis of low back pain was vague, and duplicative of the accepted lumbar conditions,
which were known to produce low back pain.
By decision dated December 17, 2020, OWCP denied expansion of the claim to include
additional conditions, as they appeared to be preexisting or degenerative in nature, unrelated to the
accepted January 1, 2005 employment injury. It accorded the weight of the medical evidence to
the opinion of Dr. Katz.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
To establish causal relationship, the employee must submit rationalized medical opinion
evidence.14 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 accepted employment injury. 15 The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested, and the medical
rationale expressed in support of the physician’s opinion.16
Section 8123(a) 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. 17 When there are opposing reports of virtually

13

J.R., Docket No. 20-0292 (issued June 26, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

14

E.W., Docket No. 20-0338 (issued October 9, 2020).

15

L.P., Docket No. 20-0609 (issued October 15, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

16

C.L., 20-0213 (issued September 15, 2021); J.L., Docket No. 20-0717 (issued October 15, 2020); James Mack,
43 ECAB 321 (1991).
17

5 U.S.C. § 8123(a); D.B., Docket No. 19-0663 (issued August 27, 2020); L.T., Docket No. 18-0797 (issued
March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

6

equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence. 18
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his request for claim expansion, appellant submitted reports dated June 22,
2018 through November 17, 2020 by Dr. Wohns. In a June 22, 2018 report, Dr. Wohns opined
that the January 1, 2005 employment injury aggravated or activated latent cervical stenosis,
cervical radiculopathy, cervical pain, bilateral occipital neuralgia, and low back pain. He
indicated, in July 1, 2019, January 8, 2020 and July 20, 2020 reports, that sequelae of the
January 1, 2005 injury required C5-6 and C6-7 anterior discectomy and fusion, and extension of a
prior lumbar laminectomy to L2-3. Dr. Wohns explained in his August 3, 2020 letter that
repetitive flexion and extension of the upper and lower body while lifting and throwing heavy
luggage at work on January 1, 2005 caused the additional cervical and lumbar conditions. In his
November 17, 2020 letter, he attributed C5-6, C6-7, and C7-T1 radiculopathy to a strain in
appellant’s spine and shoulder as he twisted to throw heavy luggage on January 5, 2005.
In a November 19, 2020 report, Dr. Katz advised that Dr. Wohns’ reports failed to support
a causal relationship between the January 1, 2005 employment injury and cervical spondylosis,
cervical stenosis, and bilateral occipital neuralgia. He opined that these diagnoses were preexisting
conditions unrelated to the January 1, 2005 employment injury, and that the diagnosis of low back
pain was vague and duplicative.
As noted above, if there is a disagreement between an employee’s physician and an OWCP
referral physician, OWCP will appoint an impartial medical specialist who shall make an
examination. 19 The Board finds that a conflict exists between the appellant’s treating physician,
Dr. Wohns, and the DMA, Dr. Katz, regarding whether the claim should be expanded to include
additional cervical conditions.
Therefore, the case must be remanded to OWCP for referral of appellant to an impartial
medical specialist for resolution of the conflict in medical opinion evidence in accordance with
5 U.S.C. § 8123(a).20 After this and other such further development as OWCP deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

D.B., id., D.W., Docket No. 18-0123 (issued October 4, 2018).

19

A.R., Docket No. 19-1204 (issued February 25, 2021); see S.S., Docket No. 19-1658 (issued November 12, 2020);
C.S., Docket No. 19-0731 (issued August 22, 2019).
20

A.R., id.; S.M., Docket No. 19-0397 (issued August 7, 2019).

7

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1300
Issued: December 4, 2008

Case Submitted on the Record

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

JURISDICTION
On March 28, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated January 11, 2008 that denied her claim. 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 met her burden of proof to establish that she sustained an
emotional condition causally related to factors of her federal employment.
FACTUAL HISTORY
On May 20, 2005 appellant, then a 55-year-old medical technician, filed a Form CA-2,
occupational disease claim, alleging that employment-related stress caused high blood pressure,
sleeplessness, headaches, diarrhea, vomiting, shaking and generalized tenseness and
nervousness. She stopped work that day. On the claim form, Usha Veeranna, appellant’s
supervisor, advised that appellant stopped work after a safety inspection report that she was

wearing acrylic nails which was against employing establishment policy. By letter dated June 1,
2005, the Office informed appellant of the type evidence needed to support her claim. Appellant
was given 30 days to furnish the requested information.
By decision dated July 1, 2005, the Office denied the claim on the grounds that appellant
had not established that she sustained an injury in the performance of duty. It noted that she had
not responded to the June 1, 2005 letter. Form medical reports dated June 7 and 14, 2005 with
illegible signatures, received on July 5, 2005, noted a history of conflict at work and diagnosed
major depression. In a statement dated June 30, 2005, received by the Office on July 7, 2005,
appellant alleged that she had worked in a hostile environment since February 1999, stating that
she was micromanaged, spied upon and isolated. She listed specific incidents beginning on
December 20, 1999 when a coworker “George” showed her a Christmas card that she considered
pornographic, stating it was full of “low down, filthy, nasty, dirty smut which degraded women.”
Appellant stated that George saw her expression and snatched it from her, and that she
immediately reported this to Glenn Hurley, her supervisor, who told her he had not seen the card
and shook his head and laughed. She stated that this caused an anxiety attack throughout the
entire Christmas holiday. Appellant listed a number of incidents including that Mr. Hurley
inappropriately counseled her about showing a Bible to a coworker, had her sign a statement
regarding discrimination policy but would not give her a copy for several weeks, that labels were
pulled off her blood samples, that she was threatened by Mr. Hurley and “Valarie” who laughed
at her and that on several occasions she had to go to the employing establishment police for
confrontations with coworkers, and that in May 2005 Ms. Veeranna was hostile by asking for a
doctor’s report, medical restrictions and a jury summons, inappropriately requested that she be in
a photograph, and inappropriately changed her shift, and that the safety inspector harassed her
because she was wearing acrylic nails. She stated that she noticed stress symptoms in 1999 but
they had not been present continuously, and that she filed an Equal Employment Opportunity
(EEO) Commission claim that was dismissed because it was untimely. Appellant also submitted
personal statements regarding the incidents that occurred on July 1, September 10, November 1,
2002 and July 12, 2004,1 and a memorandum dated May 10, 2005 in which Ms. Veeranna
notified appellant that her tour of duty was changed due to the needs of direct patient care.
The employing establishment submitted a position description, a May 9, 2005 report in
which Dr. Antoine Roberts, Board-certified in orthopedic surgery, restricted appellant to 20
draws a day, and a May 16, 2005 request that appellant furnish medical documentation to
support Dr. Roberts’ restrictions. A May 14, 2004 employing establishment decision dismissed
an EEO claim as untimely. In a May 20, 2005 memorandum, Ms. Veeranna informed appellant
that a safety inspection had noted that she wore acrylic nails which were prohibited when
performing patient care. Appellant was informed that she had previously been notified of this
policy and was instructed to remove the nails prior to reporting for work on May 23, 2005. A
copy of infection control guidelines was attached.

1

Appellant’s statements were regarding labels being removed from blood specimens, Valarie raising her voice
and looking at appellant in a threatening manner and appellant’s complaint that someone shut her computer down in
her absence.

2

On September 9, 2005 appellant requested reconsideration and submitted an October 29,
1992 letter advising her that her claim had been accepted for major depression, single episode.2
On January 3, 2006 Lucinda Swan, of the employing establishment, advised that the Center for
Disease Control had issued a directive, adopted by the employing establishment, that artificial
nails were not to be worn by employees providing direct patient care, and that appellant had been
informed of this policy in October 2004, again by the safety inspector on May 18, 2005, and that
on May 20, 2005 she was instructed to remove her acrylic nails. Ms. Swan stated that appellant
mainly performed venipuncture her entire shift because she was uncooperative about performing
other duties in her job description, and that she created a hostile environment, causing several
employees to resign and was terminated due to unavailability to work. She continued that staff
members did not ask coworkers not to speak to appellant, who had problems with authority and
taking instructions, and that she had alienated staff due to her bizarre behavior and volatile nature
including continuously leaving her work area and not informing staff, engaging unwilling
patients in prayer, and not providing appropriate medical documentation for her absences.
Ms. Swan specifically noted that “George” was counseled regarding the December 1999
Christmas card incident, and that appellant had been counseled for distributing religious
materials to patients and leaving it around the laboratory. She stated that in May 2005 appellant
was asked to provide medical documentation for her new restrictions which were accommodated
by changing her work shift to one that was less busy, and that, when appellant informed
Ms. Veeranna, her supervisor, of a jury summons for May 17, 2005, she was instructed to follow
the instructions on the summons and call the court the night before to see if she was needed, but
that appellant did not report for work on May 17, 2005, despite the fact that the court indicated
that she did not have jury duty. Ms. Swan described appellant’s workstation, advising that, due
to sterility needs, personal items were discouraged, and that administration would take down
inappropriate personal items and those not in compliance with infection control guidelines. She
stated that proper procedure was followed for all reported incidents, and that appellant was
extremely disruptive when on duty.
The employing establishment also submitted a November 1, 2002 employing
establishment police report noting that appellant reported that she was threatened by a contract
phlebotomist; a March 13, 2003 letter of proposed reprimand for her unprofessional behavior,
disrespectful conduct to and making inappropriate comments about coworkers, and her
inappropriate hymn singing and display of religious material in the laboratory in view of
patients; a July 12, 2004 police report noting that appellant reported that she and another female
employee were involved in a verbal altercation regarding appellant’s computer; and a sign-in
sheet dated October 12, 2004 that noted appellant’s attendance at a meeting in which safety
procedures were discussed, including that acrylic nails were not to be worn. A number of
statements by patients and coworkers complained about appellant’s behavior. This included a
December 20, 1999 statement in which Mr. Hurley noted that appellant complained that she was
shown off-color material, but the person apologized and destroyed “whatever it was.”
Mr. Hurley advised that all parties were counseled and that any further incidents would result in
disciplinary action. A May 20, 2005 letter from the Superior Court of California indicated that
appellant’s jury service was cancelled the evening prior to her scheduled date of appearance on
May 17, 2005 and she did not attend jury service on that day. Leave analysis showed that
2

This claim was adjudicated under file number xxxxxx504.

3

appellant did not work beginning in October 2004, returned briefly in May 2005, stopped on
May 23, 2005 and did not return.
By decision dated February 2, 2006, the Office found that appellant’s reaction to being
shown a Christmas card that she considered pornographic on December 20, 1999 was a
compensable factor of employment. It denied the claim on the grounds that the medical evidence
did not establish that her condition was caused by the accepted factor.
On August 4, 2006 appellant, through counsel, requested reconsideration. In support of
the request, appellant submitted an August 1, 2006 statement in which Michelle Williams stated
that she witnessed “the mistreatment of [appellant] by the supervisors at the employing
establishment and that some of her pictures were torn down and thrown on her workstation and
her blood labels were switched. Alex B. Caldwell, Ph.D., provided psychological testing results
dated May 17, 2006. In a June 6, 2006 report, Dr. Richard A. Greenberg, a psychiatrist, noted
his review of Dr. Caldwell’s testing and appellant’s report of her background, the work
environment and specific work incidents. He performed psychiatric examination and diagnosed
major depressive disorder, recurrent, moderate, with psychotic features. Dr. Greenberg
concluded:
“It is my opinion that the present significant but not severe emotional disability
from which Ms. Lambert suffers is the result of and was precipitated by a hostile
work environment, undue supervisory criticisms and lack of support by her
supervisor, specifically after being shown a pornographic Christmas card which
was demeaning towards women in December 1999. Her disability results entirely
from the industrial stressors.”
By letter dated September 14, 2006, Ken Wendell of the employing establishment noted
that Ms. Williams had been a part-time contract employee for a very short period, and advised
that, beginning with her employment in July 1989, appellant constantly exhibited insubordinate
and inappropriate behavior and created hostile environments, causing coworkers to initial
grievances against her. In an October 31, 2006 decision, the Office denied modification of the
February 2, 2006 decision, finding Dr. Greenberg’s opinion insufficient to establish that
appellant’s condition was caused by the accepted factor.3
On October 21, 2007 appellant, through her attorney, requested reconsideration, and
submitted a December 13, 2006 report in which Dr. Greenberg advised that appellant’s “extreme
emotional upset” was not the result of her supervisor’s failure to take corrective action regarding
the December 1999 card, but being exposed to the card which caused the loss of self-confidence
and feelings of diminished self-worth.
By decision dated January 11, 2008, the Office denied modification of the prior
decisions. It found Dr. Greenberg’s December 13, 2006 report of diminished probative value
because there was no indication that he was aware of the contents of the 1999 Christmas card

3

By order dated September 14, 2007, Docket No. 07-1569, the Board found that no appeal was filed by either
appellant or her representative, and the case was dismissed.

4

and that he did not fully explain how appellant’s condition was a direct result of exposure to the
card.
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 the Federal Employees’ Compensation Act.6
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.7 When an employee experiences
emotional stress in carrying out her employment duties, and the medical evidence establishes that
the disability resulted from her emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability results from her emotional reaction to a special assignment or other
requirement imposed by the employing establishment or by the nature of her work.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.10

4

Ronald K. Jablanski, 56 ECAB 616 (2005).

5

28 ECAB 125 (1976).

6

5 U.S.C. §§ 8101-8193.

7

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

8

Lillian Cutler, supra note 5.

9

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

10

Id.

5

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.11 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.12
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Mere perceptions of harassment or discrimination are not
compensable under the Act. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred. Rather, the issue is
whether the claimant under the Act has submitted sufficient evidence to establish a factual basis
for the claim by supporting his or her allegations with probative and reliable evidence.13 The
term “harassment” as applied by the Board is not the equivalent of harassment as defined or
implemented by other agencies, such as the EEO, which is charged with statutory authority to
investigate and evaluate such matters in the workplace. Rather, in evaluating claims for workers’
compensation under the Act, the term harassment is synonymous, as generally defined, with a
persistent disturbance, torment or persecution, i.e., mistreatment by coemployees or coworkers.
Mere perceptions and feelings of harassment will not support an award of compensation.14
The primary reason for requiring factual evidence from the claimant in support of his or
her allegations of stress in the workplace is to establish a basis in fact for the contentions made,
as opposed to mere perceptions of the claimant, which in turn may be fully examined and
evaluated by the Office and the Board.15
ANALYSIS
The Board finds that appellant did not establish that she sustained any stress-related
condition in the performance of duty. While the Office accepted that being shown a Christmas
card in December 1999 that appellant deemed pornographic was compensable, the Board finds
that this isolated incident does not demonstrate a persistent disturbance, torment or persecution,
such that it would rise to the level of harassment contemplated under the Act.16 The employee
who showed the card to appellant immediately tore it up when noting that appellant was upset by
it. The card is therefore not of evidence, and its contents are not described. Mr. Hurley
11

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

12

Kim Nguyen, 53 ECAB 127 (2001).

13

James E. Norris, 52 ECAB 93 (2000); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
14

V.W., 58 ECAB ____ (Docket No. 07-234, issued March 22, 2007).

15

J.F., 59 ECAB ____ (Docket No. 07-308, issued January 25, 2008).

16

V.W., supra note 14.

6

appropriately counseled the parties regarding the card. Furthermore, appellant did not file a
claim regarding this isolated event until May 2005, well over six years later.
Regarding appellant’s other contentions, generally complaints about the manner in which
a supervisor performs his or her duties or the manner in which a supervisor exercises his or her
discretion fall, as a rule, outside the scope of coverage provided by the Act. This principle
recognizes that a supervisor or manager in general must be allowed to perform his duties and
employees will, at times, dislike the actions taken. Mere disagreement or dislike of a supervisory
or managerial action will not be compensable, absent evidence of error or abuse.17 The record
supports that appellant was notified in October 2004 that safety policy prohibited the wearing of
acrylic nails, and she was again told this in a safety inspection in May 2005. An employing
establishment is responsible for establishing safety policies. It was, therefore, reasonable for the
employing establishment to ask that the nails be removed. Further, when her physician limited
her to 20 draws a day, it was an appropriate exercise of supervisory duty for the employing
establishment to request further explanation from appellant’s physician, and to change her shift.
The assignment of work is an administrative function which, absent error or abuse, would not be
compensable.18 In this case, Ms. Veeranna explained that, because appellant’s physician had
limited her activity, her shift was changed to one that was less busy
The Board also finds that appellant inappropriately took a day off, claiming she had jury
duty, because the record contains May 20, 2005 correspondence from the Superior Court of
California indicating that appellant’s jury service was cancelled the evening prior to her
scheduled appearance.
Regarding her general complaints that she was micromanaged and spied upon by
Ms. Veeranna and other managers, and that coworkers isolated her and were hostile as exhibited
by incidents involving specimen labels and her computer, appellant merely submitted
Ms. Williams statement that she witnessed appellant being mistreated. The Board finds this
statement too general in nature because it does not identify incidents with sufficient specificity to
meet appellant’s burden,19 and there are numerous statements in the record by both patients and
coworkers describing appellant’s unprofessional behavior. Appellant also complained that she
was forced to have her picture taken, but Ms. Veeranna explained that she was merely taking
pictures of those who volunteered for a scrapbook, and appellant’s picture was not taken because
she declined. Finally, her EEO complaint was dismissed. Appellant therefore did not establish
that she sustained an emotional condition in the performance of duty as alleged.20

17

T.G., 58 ECAB ____ (Docket No. 06-1411, issued November 28, 2006).

18

Jeral R. Gray, 57 ECAB 611 (2006).

19

Robert Breeden, 57 ECAB 622 (2006).

20

As appellant failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Katherine A. Berg, 54 ECAB 262 (2002).

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CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 11, 2008 be affirmed, as modified.
Issued: December 4, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 06-1777
Issued: April 19, 2007

Case Submitted on the Record

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

JURISDICTION
On July 31, 2006 appellant filed a timely appeal of a June 8, 2006 merit decision of the
Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
April 21, 2003 causally related to her employment injury.
FACTUAL HISTORY
Appellant filed an occupational disease claim (Form CA-2) on April 1, 2002 alleging that
she sustained a back injury as a result of her federal employment as a letter carrier. The claim
form indicated that she stopped working on March 25, 2002. A May 23, 2002 report from her
attending chiropractor, Dr. Brian Slakman, indicated that appellant was able to return to regular
work as of May 6, 2002.

The Office denied the claim for compensation by decision dated July 10, 2002. By
decision dated May 1, 2003, an Office hearing representative found that appellant had
established fact of injury based on the definition of subluxation and the reports of Dr. Slakman.
The Office accepted the claim for displaced vertebra.
In a report dated April 22, 2003, Dr. Slakman recommended that appellant be excused
from work on April 21 and 22, 2003 “in order to avoid aggravation of her condition.” He
indicated that she could return to work on April 23, 2003 with restrictions. Appellant returned to
work in a light-duty position. Dr. Slakman continued to indicate that she could work with
restrictions. A magnetic resonance imaging (MRI) scan dated May 14, 2003 reported an L5-S1
disc herniation, with smaller herniations at L3-4 and L4-5. By report dated May 27, 2003,
Dr. Slakman again recommended that appellant be off work from May 27 to June 2, 2003 to
avoid aggravation of her condition. He reported that she had increased pain but reduced
numbness.
On July 17, 2003 appellant filed a recurrence of disability claim (Form CA-2a)
commencing April 21, 2003. In a report dated August 5, 2003, Dr. Slakman indicated that
appellant could return to regular duty on August 11, 2003.
By decision dated October 27, 2003, the Office denied the claim for a recurrence of
disability. The Office found that the medical evidence was insufficient to meet appellant’s
burden of proof. Appellant requested a hearing before an Office hearing representative, which
was held on March 26, 2004. She submitted an April 23, 2004 report from Dr. Slakman stating
that she had been treated for some time for injuries “sustained at work.” Dr. Slakman reported
that appellant had made a good recovery, but could aggravate her condition with lifting.
In a decision dated June 8, 2004, the hearing representative affirmed the October 27,
2003 decision. Appellant requested reconsideration of her claim. She submitted a report dated
January 14, 2005 from Dr. Slakman recommending that she maintain a light-duty position.
By decision dated June 8, 2006, the Office reviewed the case on its merits and denied
modification.
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 has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”1
A person who claims a recurrence of disability due to an accepted employment-related
injury 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
injury. This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
1

20 C.F.R. § 10.5(x).

2

disabling condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.2
ANALYSIS
The record indicated that appellant had returned to regular duty and filed a CA-2a form
alleging a recurrence of disability as of April 21, 2003. She was off work on April 21 and 22,
2003, returned to light duty, then was again off work for several days commencing
May 27, 2003. It is appellant’s burden of proof to establish that the claimed periods of disability
were causally related to the employment injury.
With regard to the medical evidence, the Board notes that a chiropractor is only a
physician to the extent that the treatment is for a diagnosed subluxation as demonstrated by
x-rays.3 The Office did accept that Dr. Slakman diagnosed a subluxation and was a physician
under the Act, as the definition of subluxation included a misalignment or dislocation of the
vertebra.4 He is, however, a physician only with respect to a subluxation diagnosis. The record
contains an MRI scan with a diagnosis of herniated discs and any opinion from Dr. Slakman
regarding this diagnosis would be of no probative value.5
Appellant did not submit probative medical evidence to establish a recurrence of
disability on April 21 or May 27, 2003. Dr. Slakman briefly stated in his April 22, 2003 report
that appellant should be off work on April 21 and 22, 2003 in order to avoid aggravation of her
condition. The Board notes that the possibility of a future injury does not constitute an injury
under the Act and therefore no compensation can be paid for such a possibility.6 Dr. Slakman
does not provide additional detail and provide a rationalized opinion on causal relationship
between disability and the employment injury. His May 27, 2003 report noted that appellant had
increased pain, again without providing a rationalized opinion on the relationship between any
disability and the employment injury.
In the absence of probative medical evidence, the Board finds that appellant did not meet
her burden of proof. The Office therefore properly denied the claim for a recurrence of disability
in this case.
CONCLUSION
Appellant did not meet her burden of proof to establish a recurrence of disability
commencing April 21, 2003.
2

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

3

5 U.S.C. § 8101(2).

4

The term subluxation means an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae. 20 C.F.R. § 10.5(bb).
5

See Pamela K. Guesford, 53 ECAB 726 (2002).

6

Gaetan F. Valenza, 39 ECAB 1349, 1356 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 8, 2006 is affirmed.
Issued: April 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4