United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 19-1256
Issued: July 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On May 13, 2019 appellant filed a timely appeal from a December 4, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On January 24, 2017 appellant, then a 52-year-old registry clerk, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she experienced stress, sleeplessness, anxiety, and
1

5 U.S.C. § 8101 et seq.

depression after she was bullied while in the performance of duty. She asserted that E.G.,
transportation supervisor, instigated a hostile work environment. Appellant further asserted that
G.A., senior manager of distribution operations, pushed and threatened her twice. In addition, she
claimed that M.S., supervisor of distribution operations, threatened her and tried to fight her three
times. On the reverse side of the claim form, W.C., manager of distribution operations, indicated
that appellant stopped work on the date of injury. He contended that she was not in the
performance of duty because she was involved in an altercation and placed in nonpay status.
In an accompanying February 17, 2017 statement, appellant contended that G.A.
intimidated and verbally harassed her about decisions made by management. She recounted being
summoned to his office and when she asked him why she needed to be present, he became irate
and she responded by telling him to speak to her supervisor, C.J. Appellant noted that E.G. and
M.S. did nothing to prevent her from being harassed by G.A. She became anxious and scared and
requested a union steward. Appellant claimed that G.A. then became belligerent and threatened
to “have something waiting” for her when she returned to work that night. She also claimed that
she was afraid of him because on a previous occasion at work he expressed a desire to commit
suicide, but then questioned why he would do that when he could kill people at work. Appellant
indicated that as G.A. begrudgingly walked her to the union office he badgered her and called her
“sorry, lazy, and good-for-nothing.” G.A. also continuously defamed her character. When they
arrived at the union office, he repeated his prior threat to her in the presence of a union steward.
Appellant noted that as she returned to her work unit she noticed G.A. on the dock. She approached
him to smooth things over with him and he screamed at her and told her to get out of his face. As
appellant walked away, M.S. stalked and verbally taunted her. She feared for her life and recalled
the previous two weeks of terror by M.S. which resulted in her developing shingles. Appellant
faced M.S. who verbally threatened her with physical harm. G.A. grabbed M.S. Appellant claimed
that M.S. tried to fight her three times and she wrote a statement to management conﬁrming her
own behavior. She noted that there was only one witness to this incident, but many false statements
were made against her and in favor of M.S. Appellant claimed that no one said anything about
G.A. pushing her during the altercation.
Appellant contended that since 2009 she had been relentlessly harassed, bullied, and
sabotaged by G.A., M.S., and E.G. She alleged that G.A. had made it clear that he was looking
for a reason to remove her from her position, put her off the clock, and possibly force her into
retirement. Appellant asserted that E.G. retaliated against her and constantly cursed at her because
management ruled in her favor to allow “MVS” drivers to get their mail from the registry unit.
Appellant claimed that on January 22, 2017 she informed her supervisor W.C. that M.S.
was interfering with her job duties.
Appellant contended that she spoke to a postal inspector who told her that G.A.’s comment
was not considered a threat and that he could be physically aggressive and push her if he desired.
Appellant further contended that on January 26, 2017 she filed a case with a postal police
sergeant who informed her that obtaining a restraining order against her assailants from the
Coppell Police Department would be null and void since the post office was a federal building.
The police sergeant assured her that she would be protected, but only advised her that ﬁghts and
weapons were not allowed on federal property.

2

Appellant submitted medical evidence.
OWCP, in a March 10, 2017 development letter, advised appellant that the evidence
submitted was insufficient to establish her claim. It requested that she respond to an attached
questionnaire in order to substantiate the factual elements of her claim and provide medical
evidence to establish that she sustained an emotional condition caused by her federal employment.
In a separate development letter dated March 22, 2017, OWCP requested that the employing
establishment respond to appellant’s allegations and provide additional information regarding the
duties and physical requirements of her position. It afforded both parties 30 days to submit the
necessary evidence.
OWCP thereafter received medical evidence.
In an undated statement, W.C. controverted appellant’s claim, noting that according to
witness statements, on January 24, 2017, appellant stepped into M.S.’s personal space and created
a hostile work environment when she put her foot on top of M.S.’s foot and threatened to stab her
with a pen while they were on the dock. He noted that when G.A. separated them and attempted
to find out what caused the incident, appellant continued to act out. G.A. instructed her and M.S.
to end their tour and return to work at their scheduled time on the night of January 24, 2017. W.C.
noted that appellant had not attended an investigation interview that was scheduled to take place
on that night because she called in and requested three days of unscheduled sick leave.
W.C. submitted a January 24, 2017 disciplinary request/just cause worksheet in which he
proposed to take disciplinary action against appellant for her conduct during the incident on that
date. In a letter of even date, he also put her on emergency placement in an off-duty status,
effective that date. In letters dated February 2, 8, and 23, 2017, W.C. requested that appellant
report to a pre-disciplinary interview (PDI) to discuss her employment status.
W.C. also submitted medical evidence. OWCP thereafter continued to receive medical
evidence.
In a letter dated April 7, 2017, OWCP requested that appellant review the evidence
submitted by the employing establishment and provide comments.
On April 11, 2017 appellant responded to OWCP’s March 10, 2017 development letter. In
a handwritten notation on the development letter, she reiterated her allegation that E.G. instigated
the hostile work environment. Appellant also submitted additional medical evidence.
OWCP subsequently received witness statements dated January 24 and 26, 2017 from
appellant’s coworkers who confirmed that she and M.S. were involved in a verbal and physical
altercation. They heard and observed appellant threaten to stab M.S. with a sharp object in her
hand. Appellant’s foot was also observed on top of M.S.’s foot.
In a January 25, 2017 statement, G.A. noted that, around 3:00 a.m. on January 24, 2017
E.G. called him to the transportation office regarding an ongoing problem with appellant. He
called appellant to resolve any issues. When G.A. asked her about the procedure for dispatching
registered mail to “MVS” drivers she became loud and screamed for a union steward. G.A walked
appellant to the union office to conduct an interview. It was impossible to conduct the interview
3

because she talked over him and the union steward, and did not listen to them. G.A. ended the
meeting and advised appellant and the union steward that he would get back to them. He instructed
appellant to return to her assignment. G.A. noted that she subsequently approached him while he
was on a deck with M.S. She asked to speak to him and he responded that she had a chance to talk
to him when they were with the union steward. Appellant then rushed into M.S.’s face and started
to argue with her. G.A. grabbed M.S. He instructed appellant to return to her work area. G.A.
escorted M.S. outside for a walk to calm her down and stop her from crying. About 30 minutes
later, appellant returned to the dock and again argued with M.S. G.A. sent both women home.
OWCP continued to receive medical evidence.
M.S., in a January 24, 2017 statement, indicated that, on that date, appellant argued with
her, touched her foot, and threatened to stab her with a pen.
Additional witness statements dated January 24 and 26, 2017 from appellant’s coworkers
and E.G. continued to confirm that appellant and M.S. were involved in a verbal altercation and
that appellant placed her foot on top of M.S.’s foot and threatened to stab her with a pen on
January 24, 2017. The witnesses who provided statements noted that they were verbally abused
by appellant. E.G. noted that her drivers complained of being harassed by appellant when they
took mail early to stations on the first dispatch. She noted that on many occasions prior to the
January 24, 2017 incident she had to walk drivers to pick up the mail because appellant made
disparaging remarks about them. When E.G. and appellant met in G.A.’s office to discuss this
matter, appellant asked why G.A. was setting her up.
Appellant, in a January 31, 2017 employee’s statement and an undated statement in
response to W.C.’s statement, reiterated that on January 22, 2017 she complained to W.C. about
M.S.’s constant interference with her dispatching mail. She claimed that two days later she was
bullied and harassed by G.A., E.G., and “MVS” drivers. Appellant contended that such harassment
had been going on for two years and resulted in her physical and emotional illness. She noted that
a postal inspector investigated the January 24, 2017 incident, but he refused to listen to her, was
biased, and sided with management.
In another undated statement, appellant denied a witness’ allegation of verbal abuse. She
contended that she had to call management at least three times a week because he refused to take
registry mail. Appellant also contended that she rejected the witness’ request to have a side fling
with him and he became jealous when she talked to other men at work. Two months ago the
witness started an argument with her.
Appellant’s daughter, in an undated statement, noted that on January 26, 2017 she
accompanied her mother to the employing establishment to file a complaint against G.A. and M.S.
regarding their threats and actual acts of physical harm and verbal abuse with a postal police
sergeant.
Appellant submitted a copy of her EEO complaint and an undated step 2 grievance appeal
form regarding the January 24, 2017 verbal altercation. In an undated summary, she indicated that
her EEO complaint was settled on April 26, 2017.
OWCP continued to receive medical evidence.
4

By decision dated September 13, 2017, OWCP denied appellant’s claim finding that she
had not established a factual basis for her claim because the evidence submitted was insufficient
to substantiate that the January 24, 2017 incident occurred as alleged. It concluded, therefore, that
the requirements had not been met to establish an injury as defined by FECA.
On October 6, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
A January 26, 2017 witness statement by appellant’s coworker noted that on January 24,
2017 she heard yelling on the dock. When she went onto the dock she saw G.A. and another
employee trying to calm M.S. down. M.S. was upset because appellant had apparently threatened
her. After appellant was escorted to her work area by an employee she returned and yelled at M.S.
who became upset again. She noted that G.A. sent both women home.
In a June 17, 2017 witness statement, B.P., another coworker, indicated that E.G. had
directed derogatory language towards her and black male drivers and falsely accused her of having
a sexual relationship with drivers. She noted that she had lost a sister who was also harassed by
E.G.
An undated and unsigned summary of appellant’s EEO redress presentation continued to
allege that she was harassed, retaliated against, and intimidated by E.G., M.S., and W.C. on
January 24, 2017 and worked in a hostile and an offensive work environment.
Appellant submitted a document indicating that management settled her grievance and paid
her for time lost from work.
Additional medical evidence was submitted.
An OWCP hearing representative, by decision dated February 5, 2018, vacated the
September 13, 2017 decision and remanded the case because OWCP had not sent documents
submitted by appellant in response to its March 10, 2017 development letter to the employing
establishment for review and comments. He recommended that appellant’s claim should be
converted into an occupational disease claim as the claimed incidents occurred over a period more
than a single workday.
On remand, by letter dated February 6, 2018, OWCP requested that the employing
establishment review appellant’s allegations and provide comments. It was afforded 30 days to
respond. No response was received.
OWCP received additional medical evidence.
By decision dated December 4, 2018, OWCP denied appellant’s emotional condition
claim. It accepted that on January 24, 2017 she was called into the transportation office by G.A.
OWCP also accepted that appellant was instructed to report to W.C.’s office on February 2, 2017
for an investigative interview, on February 8, 2017 for a PDI, on February 23, 2017, and on
March 6, 2017 to discuss her employment status. However, it found that these accepted incidents
were not compensable factors of employment as they involved supervisory actions regarding
investigative and disciplinary matters and no error or abuse was established in the handling of
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these matters. OWCP concluded, therefore, that the requirements had not been met to establish an
injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) medical evidence establishing that he or she has an emotional
or psychiatric disorder; and (3) rationalized medical opinion evidence establishing that the
emotional condition is causally related to the identified compensable employment factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. When the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.6
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.7 However, for harassment to give rise to a
compensable disability under FECA there must be evidence that harassment did, in fact, occur.

2

Id.

3

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
5

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
6

Lillian Cutler, 28 ECAB 125 (1976).

7
See B.S., Docket No. 19-0378 (issued July 10, 2019); M.R., Docket No. 18-0304 (issued November 13, 2018);
David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

6

Mere perceptions of harassment are not compensable under FECA.8 Additionally, verbal
altercations and difficult relationships with supervisors, when sufficiently detailed by the claimant
and supported by the record, may constitute factors of employment. This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under FECA.9
An employee’s emotional reaction to administrative or personnel matters generally falls
outside of FECA’s scope.10 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.11 However, to the extent 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 Harassment and discrimination by
supervisors and coworkers, if established as occurring and arising from the performance of work
duties, can constitute a compensable employment factor.13 A claimant, however, must substantiate
allegations of harassment and discrimination with probative and reliable evidence.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
Appellant has attributed her emotional condition in part to Cutler15 factors. She contended
that M.S. constantly interfered with her job duties. Pursuant to Cutler,16 this allegation could
constitute a compensable employment factor if appellant established that her regular job duties or
special assignment caused an emotional condition. The Board finds, however, that appellant
submitted no evidence in support of her allegation that M.S. interfered with the performance of

8

A.E., Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

9

Y.B., Docket No. 16-0193 (issued July 23, 2018); Marguerite J. Toland, 52 ECAB 294 (2001).

10

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB
566 (1991).
11

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005); McEuen, id.

12

Id.

13
C.B., Docket No. 19-1351 (issued March 25, 2020); D.W., Docket No. 19-0449 (issued September 24, 2019);
E.K., Docket No. 17-0246 (issued April 23, 2018); T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB
311 (2006).
14

D.W., id.; E.K., id.; C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

15

Supra note 6.

16

See id.

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her duty to dispatch mail. Without evidence substantiating her allegation, she has not met her
burden of proof to establish a compensable factor of employment under Cutler.17
Appellant has further attributed her emotional condition to verbal abuse, threat of physical
harm, and harassment by G.A., M.S., and E.G in a hostile and an offensive work environment.
She alleged a series of incidents where G.A. was belligerent and defamed her character. She also
alleged that W.S. verbally taunted her and tried to fight her on several occasions. While the Board
has recognized the compensability of physical threats or verbal abuse in certain circumstances,
this does not imply that every statement uttered in the workplace will give rise to coverage under
FECA.18
The Board finds that the factual evidence of record fails to support appellant’s allegations
of verbal abuse and physical threats. Appellant did not provide statements from witnesses with
further details regarding her own allegation of verbal abuse and physical threats and harm by G.A.
and M.S. Based on the evidence of record, the Board finds that appellant has not established, with
corroborating evidence, that she was verbally abused and physically threatened on January 24,
2017 by G.A. and M.S.19
Appellant has also alleged that since 2009 she had been retaliated against by E.G., G.A.,
and M.S. She asserted that E.G. retaliated against her and constantly cursed at her because
management ruled in her favor to allow “MVS” drivers to get their mail from the registry unit.
Appellant contended that G.A. had made it clear that he was looking for a reason to remove her
from her position and force her into retirement.
The Board finds that the factual evidence of record fails to support appellant’s allegations
of retaliation by E.G., G.A., and M.S. She did not submit any witness statements corroborating
her allegation. E.G. noted that her drivers complained about being harassed by appellant and being
subjected to her disparaging remarks when they took mail early to stations on the first dispatch.
Based on the evidence of record, the Board finds that appellant has not established, with
corroborating evidence, that she was subjected to retaliation by E.G., G.A., and M.S.
The Board further finds that appellant’s allegations regarding being summoned to the
transportation office on January 24, 2017 by G.A.,20 investigations of the allegations of verbal
abuse, physical threat, and harassment on January 24, 2017,21 the filing of an EEO complaint

17

Id.

18

C.B., supra note 13; D.W., supra note 13; E.K., supra note 13; Charles D. Edwards, 55 ECAB 258 (2004).

19

Id.

20

F.W., Docket No. 19-0107 (issued June 10, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
Beverly R. Jones, 55 ECAB 411, 416 (2004).
21
See D.W., supra note 13; M.R., Docket No. 17-1803 (issued February 8, 2019); M.R., Docket No. 18-0304 (issued
November 13, 2018); D.G., Docket No. 17-0514 (issued May 4, 2018).

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regarding the January 24, 2017 verbal and physical altercation with M.S.,22 and the issuance of
disciplinary letters for appellant’s conduct during this incident23 relate to administrative functions
or personnel matters of the employer and not the regular or specially-assigned work duties of the
employee. For an administrative or personnel matter to be considered a compensable factor of
employment, the evidence must establish error or abuse on the part of the employer.24 The Board
finds that appellant did not submit sufficient evidence to establish error or abuse with respect to
administrative/personnel matters. Although she expressed dissatisfaction with the supervisory
actions of G.A., the Board has held that mere dislike or disagreement with certain supervisory
actions will not be compensable absent error or abuse on the part of the supervisor.25
Finally, while the record indicates that appellant’s EEO grievance was settled by the
employing establishment and she was paid for time lost from work, there was no final EEO
decision finding that the employing establishment committed error or abuse.26 The Board finds
that appellant has not established error or abuse in the handling of the above-noted administrative
matters, and thus she has not established a compensable employment factor.
As the Board finds that appellant has not established a compensable employment factor, it
is not necessary to consider the medical evidence of record.27
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

See W.F., Docket No 18-1526 (issued November 26, 2019); B.O., Docket No. 17-1986 (issued January 18, 2019);
E.T., Docket No. 17-0672 (issued April 26, 2018); Michael A. Salvato, 53 ECAB 666, 668 (2002).
23

F.W., supra note 20; G.R., Docket No. 18-0893 (issued November 21, 2018).

24

See D.W., supra note 13; B.O., supra note 22; Judy Kahn, 53 ECAB 321 (2002).

25

F.W., supra note 20; B.S., Docket No. 19-0378 (issued July 10, 2019); T.C., Docket No. 16-0755 (issued
December 13, 2016).
26

J.E., Docket No. 17-1799 (issued March 7, 2018).

27

See R.B., Docket No. 19-0434 (issued November 22, 2019); B.O., supra note 22 (finding that it is not necessary
to consider the medical evidence of record if a claimant has not established any compensable employment factors).
See also Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the December 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 28, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, FEDERAL AIR
MARSHALL SERVICE, DETROIT FIELD
OFFICE, Romulus, MI, Employer
__________________________________________

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

Docket No. 14-1667
Issued: December 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2014 appellant filed a timely appeal from a July 11, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained cellulitis causally related to
travel during his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 14, 2014 appellant, then a 37-year-old federal air marshal, filed an
occupational disease claim. He returned from an international work trip on December 23, 2013
and, two days later, he began to experience shooting pains up his right arm. On
December 26, 2013 the pain grew progressively worse and red streaks shot up appellant’s arm.
He sought medical treatment that day and was diagnosed with a staph infection in his right
thumb and hospitalized for eight days. In a memorandum dated January 14, 2014, appellant
stated that it was his first day back to work and that he had been cleared for full, active status.
Prior to the injury, he traveled from December 13 through 18, 2013 to Asia, including Manila,
and from December 21 to 23, 2013 to London. On the evening of December 24, 2013 appellant
felt a sore sensation in his right hand. On December 25, 2013 the pain became more intense and,
that evening there was a noticeable swelling in his right thumb. On December 26, 2013
appellant went to the nearest urgent care center, and was subsequently admitted to Huron ValleySinai Hospital. He was diagnosed with cellulitis, likely caused by unsanitary conditions.
Appellant noted that, due to the severity of the infection, he was hospitalized for a total of eight
days.
Appellant was treated at Huron Valley-Sinai Hospital by Dr. Catherine C. Guido, an
osteopath. In a December 27, 2013 report, Dr. Guido diagnosed right upper extremity cellulitis
in the right hand and forearm. When discussing appellant’s history, she noted that he was a
federal air marshal who had been to London and Japan in the prior week. Dr. Guido noted that
appellant had a lesion on his thumb which he stated that he induced by picking on a hair follicle,
but that this was after the swelling had already started. She noted that he was previously
hospitalized for hand cellulitis and was treated for Methicillin Resistant Staphylococcus Aureus
(MRSA). In a January 3, 2014 discharge report, Dr. Guido noted that appellant was discharged
in stable condition for outpatient follow-up and dressing changes. She medically cleared him to
return to work as of January 17, 2014.
In a December 27, 2013 consultation report, Dr. James J. Gordon, Board-certified in
infectious diseases and internal medicine, noted that appellant had a three-year history of MRSA
on his left elbow and arm. Appellant recently traveled to Japan and the United Kingdom but
denied any injury to his right arm or thumb. Dr. Gordon listed appellant’s impression as right
hand and arm cellulitis, the possible source was MRSA, and mild leukocytosis. He also noted
soft tissue swelling without fracture, dislocation or radiopaque foreign body.
In a January 7, 2014 treating physician status report, Dr. Barak Tanzman, an osteopath
specializing in plastic and reconstructive hand surgery, diagnosed appellant with cellulitis and a
right thumb abscess. He noted that appellant was placed on oral antibiotics and made good
progress. Dr. Tanzman provided physical restrictions for the right hand.
In a January 23, 2014 incident report, the employing establishment discussed appellant’s
history of injury and treatment. The report noted that appellant started experiencing symptoms
in his hand on December 24, 2013, after he had returned from international travel.
By letter dated April 23, 2014, OWCP informed appellant that he needed to submit
further information in support of his claim.

2

In a May 15, 2014 response to questions, appellant alleged that he was exposed to the
source of the infection while he was in Asia from December 13 to 18, 2013. He noted that he
traveled through airports, airplanes, taxis, hotel rooms, bathrooms and toilets, stores, restaurants,
and outdoor environments where people bathed in the streets. Appellant noted that the locations
were very dirty and unclean.
In an undated report received by OWCP on May 20, 2014, Dr. Jamie Taweel, an
osteopath, advised that she treated appellant during his stay at Huron Valley-Sinai Hospital from
December 25, 2013 through January 3, 2014. Appellant presented with a significant infection to
his right hand that required intravenous therapy antibiotics and surgical intervention. Dr. Taweel
noted that the magnetic resonance imaging scan of the right hand revealed an early abscess
formation. Appellant was also evaluated by an infectious disease physician and a hand surgeon.
Dr. Taweel stated that the etiology of this type of infection was quite broad. She noted the
possibility that appellant’s exposure was the result of his employment and recent travel.
Appellant was diagnosed with MRSA, which was commonly found in infections specific to his
type.
In a decision dated July 11, 2014, OWCP denied appellant’s claim. It found that the
medical evidence of record was not sufficient to establish his infection was causally related to his
international travel for work.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury3 was sustained in the performance of duty. These
are the essential elements of each compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.5

2

Id. at §§ 8101-8193.

3

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
4

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).

3

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, 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 employee.6
ANALYSIS
OWCP accepted that appellant traveled to Asia and Europe as part of his federal
employment from December 13 to 18, 2013. He alleged being exposed to unsanitary conditions
during this trip.
The evidence also establishes that appellant was diagnosed on
December 26, 2013 with cellulitis in his right upper extremity. OWCP denied his claim as he
failed to establish that his cellulitis was causally related to the accepted traveling in his federal
employment.
The Board finds that the medical evidence does not establish that appellant sustained an
injury causally related to factors of his federal employment. Dr. Guido noted that he had
recently traveled to London and Japan, and diagnosed right upper extremity cellulitis. However,
she did not specifically addressed how the diagnosed condition was related to the accepted
factors of appellant’s employment. Similarly, Dr. Gordon did not relate any injury to appellant’s
employment. He noted soft tissue swelling, cellulitis, and mild leukocytosis, but did not relate
these conditions to any exposure from appellant’s travel. Dr. Tanzman diagnosed cellulitis and
an abscess of appellant’s right thumb, but did not discuss his travel or causal relation.
Dr. Taweel noted that he had a significant infection in his right hand. She stated that it was
possible it was a result of appellant’s exposure during recent travel. The Board finds that
Dr. Taweel’s opinion is speculative and equivocal regarding causal relationship and of
diminished probative value.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.8 He did not submit sufficient medical evidence, based on a
reasonable degree of medical certainty, to establish that his medical condition was causally
related to the accepted international travel, OWCP properly denied his claim.
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.
6

See T.W., Docket No. 13-1125 (issued August 27, 2013).

7

Ricky S. Storms, 52 ECAB 349 (2001) (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).
8

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

CONCLUSION
The Board finds that appellant did not establish that he suffered from cellulitis causally
related to travel during his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 11, 2014 is affirmed.
Issued: December 3, 2014
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
G.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
COMMANDS HEADQUARTERS,
Washington DC, Employer
__________________________________________

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

Docket No. 17-0149
Issued: May 11, 2017

Case Submitted on the Record

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

JURISDICTION
On October 31, 2016 appellant filed a timely appeal from a September 7, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated March 31, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this claim.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the September 7, 2016 decision. However,
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. Thus,
the Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt,
57 ECAB 126 (2005).

FACTUAL HISTORY
On October 16, 2013 appellant, then a 49-year-old administrator, filed a traumatic injury
claim (Form CA-1) alleging that on September 16, 2013 he sustained trauma to his back,
shoulder, and neck area and that he suffered from emotional and mental trauma as a result of
racing down three flights of stairs and assisting others in an effort to escape an active shooter at
work. He stopped work and returned on September 23, 2013.
By letter dated November 13, 2013, OWCP advised appellant that no evidence had been
received to support his traumatic injury claim. It requested that he respond to the attached
questionnaire in order to substantiate the factual element of his claim and submit medical
evidence to establish a diagnosed condition causally related to the alleged September 16, 2013
employment incident. Appellant was afforded 30 days to submit the additional information.
Appellant submitted an October 27, 2013 progress note by Dr. Lewis Eberly, Boardcertified in neurology and neurophysiology, who related that appellant had experienced sleep
problems for 13 years. Dr. Eberly reviewed appellant’s medical history and provided physical
and neurological examination findings. He diagnosed daytime hypersomnia, sleep onset, and
sleep apnea.
Appellant also provided emergency room records dated November 6, 2013. In an
arthrogram diagnostic scan report of the left shoulder, Dr. Tammy Lamb, a Board-certified
diagnostic radiologist, noted diagnoses of shoulder joint pain, brachial neuritis or radiculitis,
cervical spondylosis without myelopathy, and cervicocranial syndrome. In a November 6, 2013
magnetic resonance imaging (MRI) scan of appellant’s left shoulder, Dr. Mitali Bapna, a Boardcertified diagnostic radiologist, diagnosed supraspinatus tendinosis with partial bursal surface
tear, mild tendinosis, tendinosis of the long head of the biceps tendon, and narrowing of the
subacromial space with hypertrophic changes of the coracoacromial arch.
In a November 25, 2013 MRI scan report of the lumbar spine, Dr. Mark Cameron
Lopiano, a Board-certified diagnostic radiologist, diagnosed mild degenerative disease with no
findings of central, foraminal, or lateral nerve root impingement.
Appellant submitted reports dated December 2 and 16, 2013 cosigned by Shoshana Katz,
a physician assistant, and Dr. Assaf T. Gordon, a physician Board-certified in physical medicine
and rehabilitation. Dr. Gordon indicated that he examined appellant for complaints of pain in the
neck and left lower extremity. He reviewed appellant’s history and provided physical
examination findings. Dr. Gordon diagnosed cervical disc disruption, lumbar radiculopathy, low
back pain, cervical radiculopathy, and cervical postlaminectomy syndrome.
OWCP denied appellant’s claim by decision dated January 14, 2014. It found that he
failed to establish fact of injury because he did not submit supporting evidence regarding the
details or circumstances of the September 16, 2013 employment incident. OWCP also
determined that appellant had not submitted sufficient medical evidence to establish that his
diagnosed conditions were causally related to the alleged employment incident.
In a statement dated January 28, 2014, appellant explained that on September 16, 2013 he
raced down three flights of stairs to escape an active shooter situation at work. He indicated that

2

he exited on the south side of the building with a large crowd of people, and they realized that
they were trapped by a 10-foot wall, which separated the employing establishment from the river
walk. Appellant related that he and two other male coworkers began to assist several dozen adult
women over the wall. He asserted that, in his efforts to help women over the wall, he sustained
bruises to his shoulder and chest, migraines headaches, and some sleepless nights filled with
night terrors. Appellant noted that he underwent several MRI scans of his neck, shoulder, and
lower back, which showed two herniated discs in his neck, a municipal tear to his left shoulder,
and a herniated disc in his lower back.
On March 11, 2014 OWCP received appellant’s request for a review of the written record
by an OWCP hearing representative. In a letter dated March 6, 2014, appellant noted that he was
providing a copy of his previous January 28, 2014 letter and copies of his physician’s records.
He asserted that he believed that his injuries resulted from the September 16, 2013 shooting at
the employing establishment when he helped several dozen frightened adult women over a wall.
Appellant explained that he experienced sharp, shooting pains through his neck, shoulders, chest,
arms, hands, and lower back area.
Appellant also submitted a November 7, 2013 MRI scan report of his cervical spine by
Dr. Nitin Kumar, a Board-certified diagnostic radiologist. Dr. Kumar observed discogenic
disease at C4-5 and C6-7 resulting in central canal and bilateral neural foraminal narrowing at
each level without cord compression or cord signal abnormality. Appellant also resubmitted
Dr. Eberly’s October 25, 2013 progress note, Dr. Gordon’s October 28, 2013 progress note,
Dr. Lamb’s November 6, 2013 arthrogram report, Dr. Bapna’s November 7, 2013 MRI scan
report, and Dr. Cameron’s November 25, 2013 MRI scan report of the lumbar spine.
In office notes dated October 28, 2013 to February 17, 2014, Dr. Gordon related
appellant’s complaints of pain in the neck and left shoulder since a September 16, 2013 incident
at work. He reviewed appellant’s history and provided examination findings of his cervical
spine and shoulder. Dr. Gordon diagnosed spondylosis without cervical myelopathy, shoulder
pain, cervical radiculopathy, cervical postlaminectomy syndrome, cervicocranial syndrome,
lumbar radiculopathy, low back pain, and cervicalgia. He noted that he administered epidural
steroid injections.
By decision dated April 14, 2014, an OWCP hearing representative denied appellant’s
request for review of the written record because it was not filed within 30 days of the January 14,
2014 decision. She also explained that OWCP, in its discretion, carefully considered his request
and determined that the issue in his claim could equally well be addressed by requesting
reconsideration and submitting evidence not previously considered by OWCP.
In a June 13, 2014 letter, appellant’s representative at the time advised OWCP that he
would be representing appellant regarding his workers’ compensation claim and requested a
copy of appellant’s entire compensation file. OWCP received a June 4, 2014 authorization of
representation signed by appellant.
On December 16 and 29, 2014 appellant, through his representative, requested
reconsideration of the January 14, 2014 decision. The representative asserted that appellant
provided a statement which itemized the actions he performed during the escape from an active
shooter on his work premises. He noted that, even though the statement was not extremely
3

detailed, it sufficiently outlined the events as they occurred. The representative alleged that
appellant had submitted sufficient evidence to establish the elements of fact of injury and
performance of duty. He related that appellant’s treating physicians would forward medical
reports to support causal relationship.
By decision dated March 31, 2015, OWCP affirmed the denial of appellant’s claim with
modification. It found that the evidence of record was sufficient to support that the
September 16, 2013 incident occurred as alleged, but denied his claim because the medical
evidence submitted failed to establish that his diagnosed condition was causally related to the
accepted incident. OWCP mailed the March 31, 2015 decision to appellant and his
representative to their last known addresses of record.
In a letter dated August 25, 2015, appellant’s representative related that appellant had
requested reconsideration of the January 14, 2014 decision, which OWCP acknowledged receipt
of on January 9, 2015. He reported that since then it appeared that no development had taken
place. On September 2, 2015 OWCP resent a copy of the March 31, 2015 OWCP decision to
appellant.
On October 6, 2015 appellant’s then representative resubmitted the August 25, 2015
letter and indicated that it was his second request. In a letter dated October 8, 2015, OWCP
informed him that a decision was originally mailed to his office on March 31, 2015. It noted that
it was attaching a copy of the decision.
On August 29, 2016 appellant again requested reconsideration. In an August 8, 2016
report, Dr. Gordon indicated that he had treated appellant for lumbar spondylosis with
radiculopathy, cervical postlaminectomy syndrome, myofascial pain, shoulder pain, and occipital
neuralgia since October 28, 2013. He described the September 16, 2013 employment incident
and related that appellant sustained these injuries at work on September 16, 2013. Dr. Gordon
noted that the activities of “lifting and assisting several adults over the wall in which [appellant]
engaged would have placed severe strain [on] the bilateral shoulders, neck, and low back.”
By decision dated September 7, 2016, OWCP denied appellant’s August 29, 2016
reconsideration request because it was untimely filed and failed to demonstrate clear evidence of
error. It explained that because his reconsideration request of OWCP’s March 31, 2015 merit
decision was received on August 29, 2016 it was not filed within the one-year time limitation.
OWCP further found that appellant’s reconsideration request and evidence submitted failed to
demonstrate clear evidence that OWCP’s decision was in error.
LEGAL PRECEDENT
OWCP regulations provide that, to be entitled to a merit review of an OWCP decision, an
application for reconsideration must be received within one year of the date of OWCP’s decision
for which review is sought.3 It, however, may not deny an application for review solely because
the application was untimely filed. OWCP may consider an untimely application for
3

20 C.F.R. § 10.607(a); The Board has found that the imposition of the one-year limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA. 5 U.S.C. § 8128(a); Leon D.
Faidley, Jr., 41 ECAB 104, 111 (1989).

4

reconsideration if the evidence or argument contained in the reconsideration request
demonstrates clear evidence of error on the part of OWCP.4 In this regard, it will conduct a
limited review of how the newly submitted evidence bears on the prior evidence of record.5
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to demonstrate clear evidence of error.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.7 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.8 The evidence
submitted must not only be of sufficient probative value to create a conflicting medical opinion
or establish a clear procedural error, but must be of sufficient probative value to shift the weight
of the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision.9 The Board has held that even a detailed, well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical
evidence requiring further development is insufficient to demonstrate clear evidence of error.10
OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard.11 If clear evidence of error has not been presented, it should deny the
application by letter decision, which includes a brief evaluation of the evidence submitted and a
finding made that clear evidence of error has not been shown.12
The Board makes an independent determination of whether a claimant has submitted
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.13
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP received his request for reconsideration on

4

See id. at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

5

Id. at § 10.607(b); Nelson T. Thompson, 43 ECAB 919 (1992).

6

Jimmy L. Day, 48 ECAB 652 (1997).

7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

Annie L. Billingsley, 50 ECAB 210 (1998).

10

A.R., Docket No. 15-1598 (issued December 7, 2015).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration, Chapter 2.1602.5a (October 2011).

12

Id.

13

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765, 770 (1993).

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August 29, 2016, which was outside the one-year time limit from March 31, 2015.14
Consequently, appellant must demonstrate clear evidence of error by OWCP in denying his
claim for compensation.15
The Board has reviewed the record and finds that the evidence submitted in the untimely
request for reconsideration does not raise a substantial question as to the correctness of OWCP’s
March 31, 2015 decision and is therefore insufficient to demonstrate clear evidence of error.
In its most recent merit decision, OWCP denied appellant’s traumatic injury claim
because the medical evidence of record failed to demonstrate a causal relationship between his
diagnosed conditions and the accepted September 16, 2013 employment incident. It determined
that Dr. Gordon did not provide any medical rationale to establish that the September 16, 2013
employment incident caused or contributed to appellant’s various medical conditions. Along
with his most recent reconsideration request, appellant provided an August 8, 2016 report by
Dr. Gordon. Dr. Gordon related that appellant sustained his injuries at work on September 16,
2013 when he physically assisted several dozen women over a wall.
The Board finds that this evidence fails to demonstrate clear evidence of error. Although
Dr. Gordon’s August 8, 2016 report provided a more detailed description of the accepted
incident, this report neither established causal relationship nor raised a substantial question as to
the correctness of OWCP’s decision. As previously noted, even a report such as a detailed, wellrationalized medical report which, if submitted before the denial was issued, would have created
a conflict in medical evidence requiring further development is insufficient to demonstrate clear
evidence of error.16 Consequently, this report is insufficient to demonstrate clear error by OWCP
with respect to the denial of his traumatic injury claim.
The Board has found that the term “clear evidence of error” is intended to represent a
difficult standard.17 It is not enough merely to show that the evidence could be construed so as
to produce a contrary conclusion.18 The evidence submitted must be of sufficient probative
value to shift the weight of the evidence in favor of the claimant and raise a substantial question
as to the correctness of OWCP’s decision.19 For the reasons provided above appellant has failed
to do so.
On appeal, appellant alleges that he did not receive notification of the March 31, 2015
decision. He indicated that he had to request a copy of the case record from OWCP and it took
over one month to receive it. Appellant asserted that he should not be held accountable for the
14

See supra note 11 at Chapter 2.1602(4) (October 2011). For decisions issued on or after August 29, 2011, the
one-year period begins on the date of the original decision, and the application for reconsideration must be received
by OWCP within one year of the date of its decision for which review is sought.
15

Supra note 10; Debra McDavid, 57 ECAB 149 (2005).

16

Supra note 10.

17

James R. Mirra, 56 ECAB 738 (2005); supra note 11.

18

Supra note 14.

19

Supra note 15.

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government’s lack of response. The Board finds, however, that the March 31, 2015 decision was
sent to appellant and his representative at their respective last known addresses of record. In the
absence of evidence to the contrary, a letter properly addressed and mailed in the regular course
of business is presumed to have arrived at the mailing address in due course. This is known as
the mailbox rule.20 The Board finds that the record contains no indication that the March 31,
2015 decision was returned as nondeliverable. Consequently, under the mailbox rule, it is
presumed that appellant and his representative both received their respective copies of the
decision.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2017
Washington, DC

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

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

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

20

See e.g., Kenneth E. Harris, 54 ECAB 502 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
I.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Thousand Oaks, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1684
Issued: January 22, 2019

Case Submitted on the Record

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

JURISDICTION
On July 31, 2017 appellant, through counsel, filed a timely appeal from a July 11, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met his burden of proof to establish total disability for
the period commencing February 24, 2012 and continuing, causally related to his accepted June 2,
2007 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the prior decisions of the Board are incorporated herein by reference. The relevant facts are as
follows.
On September 25, 2007 appellant, then a 45-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed carpal tunnel syndrome and other conditions
due to factors of his federal employment. He noted that he first became aware of his condition on
June 2, 2007 and realized its relation to his federal employment on August 21, 2007. Appellant
stopped work on June 2, 2007 and has not returned to full-duty work.5 By decision dated
October 15, 2008, OWCP accepted his claim for right carpal tunnel syndrome. By decision dated
April 16, 2015, it expanded the acceptance of the claim to include the additional conditions of
bilateral carpal tunnel syndrome, bilateral lesion of ulnar nerve, thoracic or lumbosacral neuritis
or radiculitis not otherwise specified, sprain of neck, and sprain of the lumbar back. In a
February 23, 2012 report, Dr. Mark T. Montgomery, an orthopedic hand surgeon, advised that
appellant was 12 weeks post right cubital tunnel release. He noted that appellant was moving out
of the country to the Philippines in two weeks. Dr. Montgomery examined appellant and found
that he was status post right cubital tunnel and right carpal tunnel release. He also found that
appellant was post left cubital tunnel and left carpal tunnel release and ulnar nerve compression at
the wrist. Dr. Montgomery also diagnosed left shoulder impingement, bilateral forearm tendinitis,
trapezial and paracervical strain, and right thumb carpometacarpal (CMC) synovitis. He indicated
that appellant was moving out of the country and it would take approximately three months for

2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 11, 2017 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 evidence for
the first time on appeal. Id.
4
Docket No. 13-1686 (issued September 29, 2014); Docket No. 11-1808 (issued March 23, 2012); Docket No. 090481 (issued September 14, 2009).
5

The Board notes that an SF-50 form was filed by the employing establishment on August 24, 2009, with an
effective date of July 25, 2009, noting that appellant had separated from federal service due to “separation disability”
as he had exhausted available leave entitlement.

2

him to reach a permanent and stationary status after his most recent surgery. Dr. Montgomery
provided work restrictions to include no heavy, repetitive or forceful use of the hands.
In a July 26, 2012 report, Dr. Montgomery opined that appellant was permanent and
stationary and that he had prophylactic work restrictions of no heavy lifting and no repetitive or
forceful gripping, twisting, pushing, pulling or manipulating with the hands.
On April 28, 2015 appellant filed a claim for compensation (Form CA-7) for total disability
for the period March 19, 2008 to May 30, 2015.
In a letter dated July 23, 2015, OWCP requested that Dr. Montgomery provide an opinion
regarding whether appellant had continuing residuals or disability due to his accepted condition,
whether he was capable of returning to work in any capacity, and whether additional medical
treatment was warranted. It noted that in a report dated July 26, 2012 he had noted that appellant
had reached maximum medical improvement (MMI) for his accepted conditions and was capable
of returning to work with prophylactic restrictions against heavy lifting and repetitive or forceful
gripping, twisting, pushing, pulling, or manipulating with the hands.
In a letter dated July 27, 2015, OWCP notified the employing establishment of appellant’s
April 28, 2015 claim for compensation. It noted that he stopped work on June 2, 2007 and that
Dr. Montgomery had released him to modified duty on February 23, 2012. OWCP requested that
the employing establishment determine whether modified work was available within the
restrictions assigned by Dr. Montgomery in his July 26, 2012 report. It afforded the employing
establishment 30 days to provide a written response to the request.
In an August 14, 2015 memorandum, OWCP accepted that appellant was totally disabled
from work for the period March 19, 2008 to February 23, 2012 and explained that appellant was
entitled to compensation for that period. It noted, however, that, with regard to the period
February 24, 2012 and continuing, further development was needed to determine whether the
employing establishment was able to accommodate his restrictions. OWCP also noted that, if
appellant was receiving OPM benefits, and an election would have to be made as OPM and OWCP
benefits were not payable for the same period of time.
On August 26, 2015 OWCP provided appellant with an election of benefits form (Form
CA-1105).
In an August 18, 2015 report, Dr. Montgomery noted appellant’s history and examined
him, noting the complexity of the issues presented and indicating that he had been living in the
Philippines and receiving treatment in that country. He diagnosed: right ring trigger finger; status
post bilateral carpal tunnel releases, cubital tunnel releases, and ulnar nerve decompression at the
wrists; bilateral forearm tendinitis; right thumb CMC tendinitis; bilateral shoulder impingement;
and trapezial and paracervical strain. Dr. Montgomery noted that appellant had a flare up of his
industrial injury. He opined that appellant’s condition remained permanent and stationary with
regard to his upper extremities. Dr. Montgomery noted that appellant required evaluation of his
ongoing neck and back complaints by a spine specialist, and opined that appellant was not capable
of performing his usual and customary duties. He provided work restrictions including no heavy,
repetitive, or forceful use of the hands.

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In a September 2, 2015 letter, counsel objected to OWCP requesting the employing
establishment provide a response to whether they would have been able to provide modified work
for appellant within the restrictions provided by Dr. Montgomery.
In a September 7, 2015 election form, appellant elected to receive FECA benefits in
preference to OPM benefits and indicated that the effective date of his election was
March 19, 2008.6
In a September 15, 2015 report, Dr. Kamyar Assil, Board-certified in pain management,
noted appellant’s medical history, his review of the medical record, and conducted a physical
examination. He noted that appellant was not currently working, he had been receiving social
security disability, and retirement benefits from OPM. Dr. Assil diagnosed bilateral upper
extremity pain; neck pain and upper back pain; low back pain and right lower extremity pain with
numbness and weakness; history of previous bilateral carpal tunnel release and ulnar nerve release
surgeries at the wrist, and cubital tunnel release at the inner elbows; magnetic resonance imaging
(MRI) scan evidence for cervical disc disease and upper thoracic disc disease; and lumbar
spondylosis, degenerative disc disease. He noted that his ability to return to work is greatly limited
and assigned restrictions of no repetitive bending or lifting, with lifting limited to no more than 15
pounds. Dr. Assil explained that appellant used a cane to ambulate, and any vocation for him
should restrict ambulation.
In a letter dated September 30, 2015, OWCP explained that appellant stopped work in 2007
and officially separated from employment with the employing establishment on July 25, 2009.
Furthermore, the acceptance of appellant’s claim was not expanded until April 16, 2015. OWCP
explained that it was developing the claim to determine entitlement to compensation benefits.
In letters dated November 6, 2015 and December 15, 2016, OWCP again requested that
the employing establishment determine whether light-duty work would have been available within
appellant’s restrictions. In a December 20, 2016 response, S.S., a health and resource management
specialist with the employing establishment, explained that modified duty would have been
available in connection with his work injury. He explained, however, that appellant had
voluntarily elected disability retirement and was officially separated from employment effective
July 25, 2009, as noted on an attached PS Form 50. This form noted that his last day in pay status
was October 5, 2007 and that he was separated due to being in a leave without pay status in excess.
In a January 17, 2017 development letter, OWCP advised appellant of the deficiencies in
his claim. It explained that the employing establishment would have been able to accommodate a
light-/limited-duty assignment within his medical restrictions for the claimed period had he not
voluntarily retired and elected OPM benefits. OWCP requested that appellant provide evidence
to support why he did not work the light-/limited-duty assignment and was now seeking
compensation. It also noted that the record revealed that appellant was separated from his federal
6

By letter dated September 21, 2015, OWCP requested that OPM provide an itemization of the amount of
reimbursement and the period covered by OPM benefits during the period March 19, 2008 to February 23, 2012. OPM
responded by letter dated May 4, 2016 noting that appellant had been paid OPM benefits in the sum of $34,811.80 for
the period March 19, 2008 through February 23, 2012. OWCP made a subsequent retroactive payment of temporary
total disability for the claimed period.

4

employment on July 25, 2009 and had not returned as he was currently receiving OPM benefits.
Appellant was allotted 30 days to submit the additional evidence requested.
In a March 27, 2017 letter, counsel explained that the reason that appellant had not returned
to light or limited duty was because he had not been presented with a written job offer of suitable
work. She argued that he was not afforded the opportunity to accept or decline work, and he was
not notified by OWCP or the employing establishment that suitable work was available. Counsel
also repeated her disagreement with OWCP and its belated request to the employing establishment
inquiring into whether suitable work was available.
In an April 5, 2017 letter, counsel repeated her prior arguments. She also argued that
OWCP should have determined whether the position offered was suitable and consistent with
appellant’s restrictions.
By decision dated July 11, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period February 23, 2012 and continuing.
LEGAL PRECEDENT
OWCP regulations at 20 C.F.R. § 10.500(a) provides:
“Benefits are available only while the effects of a work-related condition continue.
Compensation for wage loss due to disability is available only for any periods during which
an employee’s work-related medical condition prevents him or her from earning the wages
earned before the work-related injury. For example, an employee is not entitled to
compensation for any wage-loss claimed on a CA-7 to the extent that evidence
contemporaneous with the period claimed on a CA-7 establishes that an employee had
medical work restrictions in place; that light duty within those restrictions was available;
and that the employee was previously notified in writing that such duty was available….
(The penalty provision of 5 U.S.C. § 8106(c)(2) will not be imposed on such assignments
under this paragraph.)
Proceedings under FECA are nonadversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden to establish entitlement to compensation; however, OWCP
shares responsibility in the development of the evidence to see that justice is done.7
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that it is unable to make an informed decision as to whether OWCP
properly determined that appellant was not entitled to wage-loss compensation benefits under 20
C.F.R. § 10.500(a) for the period February 24, 2012 and continuing. The record lacks evidence
establishing that light-duty employment within Dr. Montgomery’s restrictions was
contemporaneously made available to appellant and that he was notified in writing that such light7

William J. Cantrell, 34 ECAB 1223 (1983).

5

duty was available. Although the employing establishment contended to OWCP that light-duty
employment would have been available within the physician’s restrictions on February 24, 2012,
there is no evidence documenting a contemporaneous light-duty job offer to appellant. While
OWCP requested that appellant provide evidence to support why he did not work the light/limited-duty assignment and was now seeking compensation, it did not first establish that he was
provided an offer of light-/limited-duty work. Without the evidence set forth above an informed
decision cannot be reached on the relevant issue in this case. Therefore, further development is
required. The case will accordingly be remanded to OWCP for further development of the
evidence. Following this and any such further development as deemed necessary it shall issue a
de novo decision regarding entitlement to disability for the claimed period.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 11, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision.
Issued: January 22, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, TOWNSEND
CARRIER ANNEX, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 17-0856
Issued: July 26, 2017

Case Submitted on the Record

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

JURISDICTION
On March 8, 2017 appellant, through counsel, filed a timely appeal from a January 24,
2017 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 to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an occupational disease causally related to factors of her federal employment.
FACTUAL HISTORY
On January 4, 2016 appellant, then a 61-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on January 4, 2016 she first became aware that her right
arm and shoulder pain was due to factors of her federal employment duties.3 In her
accompanying statement, appellant noted that she performed repetitive movements with her right
arm and shoulder while casing and pulling down mail on her route. She noted that she had
worked at the employing establishment for 31 years. Appellant reported that she was currently
performing limited duty, working only three hours a day, but continued to case and pull down
her route.
Appellant submitted a report dated June 15, 2004 from Dr. Kathryn Raphael, a Boardcertified internist. Dr. Raphael noted at the time of this report that appellant had worked as a
letter carrier for more than 10 years. At that point, appellant attributed her right shoulder
condition to an increased volume of mail on her new route. She asserted that she was carrying
heavier buckets of mail weighing 10 to 25 pounds each. Dr. Raphael diagnosed right shoulder
impingement resolved and mild chronic right shoulder pain of unclear etiology. She found that
appellant was performing her full duties and had reached maximum medical improvement.
In a letter dated January 14, 2016, OWCP requested that appellant provide additional
factual and medical evidence in support of her claim for a work-related right shoulder condition.
It afforded her 30 days for a response.
Dr. Michael Hebrard, a Board-certified physiatrist, examined appellant on
January 15, 2016. He diagnosed adhesive capsulitis of the right shoulder and incomplete rotator
cuff tear of the left shoulder. Dr. Hebrard listed appellant’s job duties as repetitive pushing,
pulling, reaching, and lifting at and above shoulder level, grasping, fingering, and pinching
repetitively, squatting, bending, standing, sitting, climbing, and stooping. He noted that she
attributed her right shoulder condition to casing mail requiring the physical activities of reaching
above and below shoulder level, grasping, pinching, and extending her shoulder. Appellant
performed these activities for three hours a day, five days a week. Dr. Hebrard reviewed a
May 27, 2015 magnetic resonance imaging (MRI) scan which demonstrated a torn supraspinatus
tendon, split tears in the subscapularis and infraspinatus tendons, mild glenohumeral capsulitis,
and acromioclavicular joint arthropathy. He opined that appellant’s right shoulder was
aggravated by the conditions of her employment. Dr. Hebrard explained that the physiologic
3

Appellant has filed several prior occupational disease claims and one prior traumatic injury with OWCP. These
claims include: No. xxxxxx232, OWCP accepted for bilateral wrist conditions; No. xxxxxx433, OWCP accepted
for a right knee condition; No. xxxxxx854 OWCP accepted for bilateral hip degenerative joint disease; No.
xxxxxx583 OWCP accepted a left knee condition; No. xxxxxx230 in which OWCP accepted right shoulder
impingement in 1993; and No. xxxxxx871 in which OWCP accepted internal derangement of adhesive capsulitis of
the left shoulder in 2015. These other claims are not part of the present appeal.

2

mechanism of repetitive reaching at and above shoulder level led to repetitive exposure of
impingement of the supraspinatus tendon which was located underneath the acromion. He
further noted that repetitive reaching, pushing, and pulling at and above shoulder level led to
chronic deterioration of the rotator cuff with microscopic tearing and a subsequent full tear of the
supraspinatus tendon.
Appellant responded to OWCP’s request for information on January 23, 2016 and
described her job duties of repetitively sorting and casing letters and flats on both a straight case
and a right wing case. She also noted that she was required to lift trays, buckets of letters, and
flats. Appellant described pulling down her route as pulling, rubber banding, and placing items
in the buckets for delivery. She asserted in 2015 her route was adjusted and increased resulting
in increasing mail volume. Appellant noted that she had been working three hours a day since
November 2012 and prior to November 2010 she was a full-time letter carrier. In regard to her
previous right shoulder claim, she reported that she received no right shoulder treatment after
June 15, 2004.
On January 15, 2016 Dr. Hebrard provided additional work restrictions for appellant’s
three-hour workday including no reaching overhead and no lifting or carrying more than 10
pounds. He completed a note on March 22, 2016 and described her casing activities as including
150 cases for three hours a day at 18 pieces of mail per minute. Dr. Hebrard calculated that
appellant was repetitively reaching more than 500 times within her three-hour workday. He
provided his findings on examination and diagnosed adhesive capsulitis of the right shoulder.
Dr. Hebrard opined that appellant’s diagnosed condition was causally related to her job duties.
By decision dated April 5, 2016, OWCP denied appellant’s occupational disease claim
finding that she had not submitted the necessary medical opinion evidence to establish that her
right shoulder condition was due to her employment activities. It found that Dr. Hebrard’s
reports did not address her previous shoulder condition and had little probative value.
Counsel requested an oral hearing with OWCP’s Branch of Hearings and Review on
April 15, 2016. Appellant testified at the oral hearing, before an OWCP hearing representative,
on November 30, 2016. She described her activities while casing mail as constantly placing
pieces of mail in the appropriate slot. Appellant alleged that she cased between 800 and 1,000
pieces of mail every work morning. She noted that she was restricted to sitting due to her
previously accepted hip claim. Appellant continued to work three hours a day. She received
compensation for the remaining five hours under an accepted right knee claim.
Following the oral hearing, appellant submitted the May 27, 2015 right shoulder MRI
scan. This scan demonstrated a torn supraspinatus tendon, splits in the subscapularis and
infraspinatus tendons, mild glenohumeral capsulitis, and acromioclavicular joint arthropathy. In
a July 23, 2015 report, Dr. Scott M. Taylor, an orthopedic surgeon, noted that appellant
attributed her bilateral shoulder conditions to cumulative trauma from years of lifting and
reaching at work. He reviewed appellant’s right shoulder MRI scan and diagnosed rotator cuff
syndrome.
Dr. Hebrard, in a June 27, 2016 report, addressed causal relationship between appellant’s
employment activities and her hip, knee, and shoulder conditions. He opined that she had an

3

underlying condition of osteoarthritis and that repetitive activities of her job aggravated these
underlying conditions. Dr. Hebrard noted appellant’s reaching and lifting led to aggravation of
her underlying osteoarthritis and joint disease. He opined that her conditions were due to her
employment activities.
By decision dated January 24, 2017, OWCP’s hearing representative found that appellant
had not submitted the necessary rationalized medical opinion evidence to establish causal
relationship between her diagnosed condition and her accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an “employee of the United States” within the
meaning of FECA and that the claim was timely filed within the applicable time limitation
period of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”6 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.7 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is causal relationship between the claimant’s diagnosed condition and
the implicated employment activity. The opinion of the physician must be based on a complete
factual and medical background of the claim, 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 specific employment activity or factors identified by the claimant.8 The

4

Supra note 2.

5

Kathryn Haggerty, 45 ECAB 383, 388 (1994).

6

20 C.F.R. § 10.5(q).

7

T.F., 58 ECAB 128 (2006).

8

A.D., 58 ECAB 149 (2006).

4

belief of a claimant that a condition was caused or aggravated by the employment is insufficient
to establish causal relationship.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
developed an occupational disease causally related to factors of her federal employment.
OWCP accepted that appellant’s work duties included repetitive reaching and lifting in
casing and pulling down mail. It denied her claim, however, because the medical evidence of
record is insufficient to establish that appellant developed her claimed conditions causally related
to factors of her federal employment as a modified mail handler.
Appellant submitted a series of reports from Dr. Hebrard addressing her right shoulder
condition. On January 15, 2016 Dr. Hebrard diagnosed adhesive capsulitis of the right shoulder
and incomplete rotator cuff tear of the left shoulder. He described appellant’s accepted job
duties and opined that appellant’s right shoulder was aggravated by the conditions of her
employment. Dr. Hebrard failed, however, to provide a detailed medical history of her
preexisting right shoulder condition or prior injuries related to the pain in her right shoulder.10
Moreover, he failed to discuss whether her preexisting injury had progressed beyond what might
be expected from the natural progression of that condition.11 While Dr. Hebrard explained how
appellant’s current duties could contribute to her condition, without a clear understanding of her
complicated history of injury, it is unclear whether appellant’s diagnosed conditions were caused
or aggravated by her occupational employment duties, or were due to a preexisting condition, or
to degenerative changes. A well-rationalized opinion is particularly warranted when there is a
history of a preexisting condition.12
In his March 22 and June 27, 2016 report, Dr. Hebrard opined that appellant had an
underlying condition of osteoarthritis and that repetitive job activities aggravated the underlying
conditions. He noted that her reaching and lifting led to aggravation of her underlying
osteoarthritis and joint disease. Dr. Hebrard opined that appellant’s conditions were due to her
employment activities. His findings on causation, however, failed to provide a sufficient
explanation as to the mechanism of injury pertaining to this occupational disease claim as alleged
by appellant, namely, how repetitive reaching and lifting would cause or aggravate her right
shoulder injury.13 Without explaining how physiologically the movements involved in

9

Lourdes Harris, 45 ECAB 545, 547 (1994).

10

E.W., Docket No. 16-1729 (issued May 12, 2017).

11

R.E., Docket No. 14-868 (issued September 24, 2014).

12

E.W., supra note 10; T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB
379 (2006).
13

E.W., supra note 10; S.W., Docket 08-2538 (issued May 21, 2009).

5

appellant’s employment duties caused or contributed to her diagnosed conditions, Dr. Hebrard’s
opinion on causal relationship is equivocal in nature and of limited probative value.14
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. The record contains a 2004 report from Dr. Raphael and a July 23, 2015 report from
Dr. Taylor. Dr. Raphael’s 2004 report does not address the central issue of whether appellant’s
right shoulder condition on or after January 4, 2016 is due to factors of her federal employment.
Therefore, this report is insufficient to meet appellant’s burden of proof.15 Dr. Taylor noted that
appellant attributed her bilateral shoulder conditions to cumulative trauma from years of lifting
and reaching at work. An award of compensation may not be based on surmise, conjecture, or
speculation. Neither the fact that appellant’s condition became apparent during a period of
employment nor the belief that her condition was caused, precipitated, or aggravated by her
employment is sufficient to establish causal relationship.16 As Dr. Taylor did not provide his
own opinion on causal relationship between appellant’s condition and her employment, his
report is insufficient to meet appellant’s burden of proof.17
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
developed an occupational disease causally related to factors of her federal employment.

14

See E.W., supra note 10; L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued
April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued
November 16, 2012).
15

J.C., Docket No. 14-1673 (issued November 14, 2014).

16

D.L., Docket No. 16-1639 (issued May 8, 2017); Joe T. Williams, 44 ECAB 518, 521 (1993).

17

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2017
Washington, DC

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

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

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

7