United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntsville, AL, Employer
__________________________________________

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

Docket No. 18-0783
Issued: November 8, 2018

Case Submitted on the Record

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

JURISDICTION
On March 1, 2018 appellant filed a timely appeal from an October 27, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish bilateral ankle
conditions causally related to the accepted July 10, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its October 27, 2017 decision.
The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 18, 2017 appellant, then a 56-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that she injured her ankles on July 10, 2017 while carrying parcels in the
performance of her federal employment. She stopped work on that day. Appellant’s supervisor
noted, on the CA-1 form, that appellant told her physician that the alleged injury occurred on
June 27, 2017.3
In a July 10, 2017 note, appellant indicated that she injured both ankles that day while
walking to deliver mail.
In a July 11, 2017 duty status report (Form CA-17), Dr. Rupa B. Shiva, a family
practitioner, reported a July 10, 2017 date of injury. She noted that appellant had a mounted route
and that, while she had to walk some, she drove most of the day. A diagnosis of ankle pain was
provided. Appellant was released to full-duty work with standing and walking restrictions.
In a July 11, 2017 attending physician’s report (Form CA-20), Dr. Shiva reported a
June 27, 2017 date of injury when appellant was walking/lifting. She diagnosed bilateral ankle
sprain. In unsigned July 11 and 25, 2017 visit summaries for the employing establishment,
Dr. Shiva also reported an injury date of June 27, 2017. She diagnosed pain in her bilateral ankles
and joints of both feet. On July 25, 2017 Dr. Shiva referred appellant to physical therapy as a
result of “pain in both ankles.” Medical authorization requests were also received.
In an August 4, 2017 development letter, OWCP advised appellant that additional factual
and medical evidence was necessary to establish her claim. It also provided her with a
questionnaire for completion. OWCP afforded appellant 30 days to provide the requested
information.
In an August 11, 2017 questionnaire, appellant indicated that the injury occurred on
July 10, 2017 at about 11:00 a.m., while she was going up a set of stairs to deliver a heavy package.
She stated that her ankles were unsteady and painful during each step. Appellant noted that the
package delivery for her route had doubled in the prior year and that, while she had felt twinges in
her ankles during the performance of her duties for about two weeks, it had not interfered with her
job duties until July 10, 2017. She described the July 10, 2017 pain as sharp and immediate.
Appellant also noted that it was physically challenging to complete her assignment.
OWCP received an August 11, 2017 job offer, a medical referral dated July 25, 2017, an
unsigned page with miscellaneous data, and a duplicate copy of Dr. Shiva’s July 11, 2017 duty
status report (Form CA-17) which reported a date of injury of July 10, 2017 and diagnosed ankle
pain.
OWCP also received additional evidence from Dr. Shiva which noted a date of injury of
June 27, 2017. This included: a July 11, 2017 Form CA-20; an August 11, 2017 medical note and

3

This statement was repeated in a July 27, 2017 statement from the employing establishment.

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medical authorization request; medical reports dated July 11 and 25, and August 11 and 18, 2017;
and work restriction documents dated July 11 and 25, and August 11 29, 2017.
By decision dated September 7, 2017, OWCP denied appellant’s traumatic injury claim,
finding that she had not provided sufficient medical evidence which diagnosed a medical condition
in connection with the accepted work events of July 10, 2017. It specifically noted that a diagnosis
of pain was a symptom and not a diagnosis of a medical condition.
On September 26, 2017 appellant requested reconsideration.
In a September 18, 2017 note, Dr. Jack M. Englert, a Board-certified family practitioner,
indicated that appellant had been delivering mail and packages for 26 years. On July 10, 2017 a
specific event occurred while she was carrying a heavy package up a flight of stairs. Dr. Englert
noted that both ankles hurt and that they had not gotten better since July 10, 2017. He reported
that bilateral pes planus x-rays showed bilateral degenerative joint disease and bone spur
formation. Examination showed pain and crepitation and bilateral decreased range of motion with
prominent bilateral Achilles tendons. Dr. Englert diagnosed bilateral degenerative joint disease
both feet and bilateral Achilles tendinitis.
A September 19, 2017 physical therapy referral and a September 19, 2017 work restriction
form from Dr. Matthew J. DeOrio, an orthopedic surgeon, diagnosed bilateral nodular
noninsertional Achilles tendinopathy. Dr. DeOrio noted that the condition was considered work
related.
In a September 19, 2017 report, Ashelee Cooper, a certified nurse practitioner, noted the
history of appellant’s July 10, 2017 work incident. She provided an assessment of bilateral nodular
noninsertional Achilles tendinopathy.
Physical therapy reports dated August 28, 30, and 31, and September 5, 6, and 8, 2017
were received. Dr. DeOrio also submitted billing reports which noted diagnoses of bilateral
nodular noninsertional Achilles tendinopathy.
By decision dated October 27, 2017, OWCP modified its September 7, 2017 decision to
find that appellant had established fact of injury, but the claim remained denied as causal
relationship had not been established between the diagnosed medical conditions and the July 10,
2017 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 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

4

Supra note 1.

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employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7 This medical opinion must include an accurate
history of the employee’s employment injury and must explain how the condition is related to the
injury. 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.8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish bilateral ankle
conditions causally related to the accepted July 10, 2017 employment incident.
In support of her claim, appellant submitted medical evidence from Dr. Shiva. For those
reports in which Dr. Shiva referenced a date of injury of June 27, 2017, such evidence is not
applicable to this claim as it refers to a different date of injury. In her July 11, 2017 duty status
report, Dr. Shiva reported a July 10, 2017 date of injury and provided a diagnosis of ankle pain.
Pain is a description of a symptom rather than a clear diagnosis of a medical condition.9
Furthermore, Dr. Shiva’s report is of little probative value in establishing causal relationship as
she failed to describe appellant’s alleged employment incident and offer an opinion on causal
relationship. Medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.10 Thus, these reports are

5

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

6

A.D., id.; T.H., 59 ECAB 388 (2008).

7

A.D., supra note 5; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

9

C.B., Docket No. 09-2027 (issued May 12, 2010); Robert Broome, 55 ECAB 339 (2004) (the Board has
consistently held that pain is a symptom rather than a compensable medical diagnosis).
10

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

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insufficient to establish that the July 10, 2017 work incident caused, contributed to, or aggravated
any ankle or foot condition.
In his September 18, 2017 note, Dr. Englert reported that, on July 10, 2017, appellant hurt
both ankles while she was carrying a heavy package up a flight of stairs. While he diagnosed
bilateral degenerative joint disease both feet and bilateral Achilles tendinitis, he did not address
causal relationship. As previously noted, medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11
In a September 19, 2017 physical therapy referral and September 19, 2017 work restriction
form, Dr. DeOrio provided a diagnosis of bilateral nodular noninsertional Achilles tendinopathy.
While he noted that the condition was work related, Dr. DeOrio failed to provide his medical
reasoning as to how and why the accepted employment incident would result in a diagnosis of
bilateral nodular noninsertional Achilles tendinopathy. Without explaining how, physiologically,
the movements involved in the accepted employment incident caused or contributed to the
diagnosed condition, Dr. DeOrio’s opinion on causal relationship is of limited probative value.12
The remaining evidence, including the nurse practitioner’s September 19, 2017 report and
the physical therapy reports, are insufficient to satisfy appellant’s burden of proof because certain
healthcare providers such as physician assistants, nurse practitioners, physical therapists, and
social workers are not considered “physician[s]” as defined under FECA.13 Consequently, their
medical findings and/or opinions will not suffice for purposes of establishing entitlement to FECA
benefits.14
An award of compensation may not be based on surmise, conjecture, speculation, or on the
employee’s own belief of causal relation.15 Appellant’s honest belief that the July 10, 2017
employment incident caused her medical conditions, however sincerely held, does not constitute
the medical evidence to establish causal relationship.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

11

Id.

12

See L.B., Docket No. 17-1600 (issued March 9, 2018).

13

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

14

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
15

G.E., Docket No. 17-1719 (issued February 6, 2018); D.D., 57 ECAB 734 (2006).

16

G.E., id.; H.H., Docket No. 16-0897 (issued September 21, 2016).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a bilateral ankle
condition causally related to the accepted July 10, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Lagona Niguel, CA, Employer
__________________________________________

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

Docket No. 06-1888
Issued: March 7, 2007

Case Submitted on the Record

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

JURISDICTION
On August 14, 2006 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated June 16, 2006 denying modification of a September 19,
2005 hearing representative’s finding that she had no continuing residuals. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established that she had any continuing employment
residuals or disability after October 17, 2001 due to her accepted March 17, 1988 employment
injury.
FACTUAL HISTORY
On March 17, 1988 appellant, a 57-year-old tax examining clerk, filed a traumatic injury
claim alleging that she injured her lower back on that date while lifting heavy cases. The Office

accepted the claim for low back strain. Subsequently, the Office placed appellant on the periodic
rolls for temporary total disability.
In a report dated January 13, 2000, Dr. Joseph S. Gimbel, a second opinion Boardcertified orthopedic surgeon, diagnosed a lumbosacral and sacroiliac strain due to the March 17,
1988 employment injury. He noted that this should have been a temporary injury. Dr. Gimbel
stated that there were “no positive neurological findings since 1988.” He reported that x-ray
interpretations and computerized axial tomography (CAT) scans showed some degenerative
changes. Dr. Gimbel opined that “[t]he residuals that she suffers from are subjective.” He
indicated that the work restrictions were based upon appellant’s subjective complaints as no
objective findings were present. In an attached Form OWCP-5c, Dr. Gimbel concluded that
appellant was capable of working four hours per day with restrictions.
In a report dated April 22, 2001, Dr. Gary T. Purcell, a treating Board-certified
orthopedic surgeon, diagnosed chronic low back pain. He concluded that appellant was totally
disabled as a result of this condition.
On September 13, 2001 the Office issued a notice of a proposed termination of benefits.
The Office found that the weight of the evidence rested with Dr. Gimbel’s opinion that appellant
had no residuals or disability due to her accepted employment injury.
In a letter dated October 3, 2001, appellant disagreed with the proposed termination of
benefits.
By decision dated October 17, 2001, the Office finalized the termination of appellant’s
wage-loss and medical benefits effective that date.
In a letter dated November 19, 2001, appellant’s counsel requested an oral hearing, which
was held on April 2, 2002.
In a report dated March 18, 2002, Dr. John B. Dorsey, an examining Board-certified
orthopedic surgeon, diagnosed lumbosacral strain/sprain with permanent aggravation of
degenerative disc disease including development of an L3-4 disc herniation. He disagreed with
Dr. Gimbel that appellant’s injury was temporary. Dr. Dorsey opined that the accepted lifting
incident permanently aggravated appellant’s preexisting degenerative disc disease and caused a
L4-5 disc herniation.
In a decision dated July 16, 2002, the Office hearing representative affirmed the
termination of appellant’s benefits effective October 17, 2001. However, he found that a conflict
in the medical opinion subsequently arose between Dr. Dorsey and Dr. Gimbel. The case was
remanded to the Office for referral to an impartial medical specialist to address whether appellant
has any continuing disability or residuals from her March 17, 1988 employment injury.
On August 13, 2002 the Office referred appellant, together with a statement of accepted
facts, list of questions and medical record, to Dr. Michael S. Weng, a Board-certified orthopedic
surgeon, to resolve the conflict in medical opinion.

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In a September 6, 2002 report, Dr. Weng concluded that appellant no longer had any
residuals from her March 17, 1988 employment injury and that any aggravation would have been
temporary. A physical examination revealed “some minimal tenderness along the right SI joint
and buttocks area,” tenderness over the paraspinal muscles at L1 to L4, 80 degrees forward
flexion, 30 degrees lateral bending and 30 degrees rotation. Dr. Weng reported “moans and
groans” when moving her back. A review of x-ray interpretations revealed lumbosacral spine
degenerative changes. A July 26, 1998 magnetic resonance imaging (MRI) scan showed some
areas of mild stenosis involving the lumbosacral spine and degenerative dysethesias, especially
at the L3-4 level. Dr. Weng disagreed with Dr. Dorsey that appellant sustained a permanent
aggravation of her preexisting degenerative lumbosacral spine disease. He noted that the 1988
MRI scan showed herniation into the endplate which he stated was more indicative “of a
degenerative process rather than anything acute.” Dr. Weng opined that appellant’s complaints
of pain were more subjective than based on any objective evidence. He also reported finding no
evidence of any radicular symptoms or neurologic damage. With respect to her ability to work,
Dr. Weng found appellant capable of performing her regular work duties, but “this may not be
possible secondary to her elderly age, as well as the fact that she has not worked since her date of
injury.”
By decision dated December 13, 2002, the Office denied her claim for continuing
disability.
Appellant, through counsel, requested an oral hearing, which was held on
October 22, 2003.
In a supplemental report dated January 13, 2003, Dr. Dorsey stated his disagreement with
Dr. Weng. He opined that Dr. Weng’s conclusion that appellant did not sustain a permanent
injury from the accepted employment injury was speculative “particularly after reviewing the
medical file and the MRI [scan] studies as well as the examinations [he] performed in March of
last year.”
In a decision dated January 4, 2004, the Office hearing representative found that the
report of Dr. Weng required clarification with respect to appellant’s claim that she occasionally
had pain radiating from her knee. The hearing representative noted that reinstatement of
compensation benefits was not warranted as the Office had previously met its burden of proof in
terminating appellant’s compensation benefits.
In a supplemental April 19, 2004 report, Dr. Weng again opined that appellant had no
disability or residuals due to her employment injury. He noted appellant’s complaints of
numbness and pain radiating into her leg were new. Dr. Weng found that appellant lacked
radicular symptoms based upon the medical records dated from 1988 to 1992 the history he took
and his notes. He also reported a 1988 MRI scan showed L4-5 disc “herniations in to the
endplate which would indicate a degenerative condition,” which “would not correspond to any
radicular pattern.” Dr. Weng concluded that the “MRI [scan] reflects a degenerated condition,
rather than a finding related to her injury.” He determined that there was no correlation between
the history, physical findings and the MRI scan findings to support the conclusion that appellant
sustained a permanent back injury. Appellant exhibited a positive Waddell’s sign, which
Dr. Weng noted was a reaction which indicated nonphysiologic responses to pain. He then

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reported three reactions to pain which were inconsistent with the objective evidence. These
included complaint of leg pain on straight leg raising that decrease with foot dorsiflexion, arm
pain which radiated down to her toes and complaints of pain with respect to her degenerative
lumbar spine disease.
By decision dated June 7, 2004, the Office found that the opinion of the impartial medical
examiner, Dr. Weng, constituted the weight of the evidence that appellant had no residuals from
her employment injury.
In a letter dated June 15, 2004, appellant requested an oral hearing, which was held on
June 24, 2005. By decision dated September 19, 2005, the Office hearing representative
affirmed the June 7, 2004 decision.
On March 15, 2006 appellant requested reconsideration and submitted a March 23, 2006
report by Dr. Scott Kreiner, a treating Board-certified physiatrist, in support of her request.
Dr. Kreiner diagnosed lumbar disc displacement, lumbar stenosis, lumbar radiculitis, scoliosis
and lumbar degenerative disc disease. He concluded that appellant’s symptoms were due to her
1988 employment injury. Physical findings included tenderness upon palpitation over midlumbar spine, limited lumbar spine range of motion, negative straight leg raising and slow and
shuffling gait. Dr. Kreiner noted that “[appellant] had no pain prior to the incident.” He also
stated that “[i]t would be inappropriate to deny benefits at this point as her symptoms have not
changed in the 18 years following the injury.” Dr. Kreiner concluded that there was no new
injury but some of the progressive spine deterioration may be age related.
By decision dated June 16, 2006, the Office denied modification of the September 22,
2005 decision.
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.1 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature

1

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).

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of the relationship between the diagnosed condition and the specific employment factors
identified by appellant.2
Section 8123(a), in pertinent part, provides: If there is a 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.3 In situations where
there are opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.4
ANALYSIS
The Office accepted the claim for low back strain. Subsequent to the termination of
appellant’s benefits, a conflict arose between the opinions of appellant’s treating physician,
Dr. Dorsey, who concluded that appellant had a permanent disability due to her March 17, 1988
employment injury and Dr. Gimbel, an Office referral physician, who concluded that her
disability and residuals had ceased. The Office properly referred appellant to Dr. Weng, a
Board-certified orthopedic surgeon, for an impartial medical evaluation.5
The Board finds that Dr. Weng’s reports are sufficiently rationalized to support that
appellant no longer had any residuals from her March 17, 1988 employment injury or any
permanent aggravation of her degenerative disc disease due to her injury. Appellant did not meet
her burden of proof to establish that she had disability or residuals on and after October 17, 2001,
the date the Office terminated her compensation benefits. In a report dated September 6, 2002,
Dr. Weng noted the history of injury, reviewed the medical records and performed a physical
examination. Physical findings included some minimal tenderness along the right SI joint and
buttocks area, tenderness over the paraspinal muscles at L1 to L4, 80 degrees forward flexion, 30
degrees lateral bending and 30 degrees rotation. Dr. Weng reviewed x-ray interpretations which
showed lumbosacral spine degenerative changes. A July 26, 1998 MRI scan showed some areas
of mild stenosis involving the lumbosacral spine and degenerative dysethesias, especially at the
L3-4 level. Dr. Weng noted the 1988 MRI scan showed “herniation into the endplate” which he
stated was more indicative of a degenerative process rather than an acute trauma. He opined that
appellant’s complaints of pain were more subjective than based on any objective evidence.
Dr. Weng also reported finding no evidence of any radicular symptoms or neurologic damage.
With respect to appellant’s ability to work, Dr. Weng indicated that she was capable of
performing her regular work duties, but noted that she had not worked since the date of injury.

2

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

3

5 U.S.C. § 8123(a).

4

Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

5

5 U.S.C. § 8123(a), see Bryan O. Crane, 56 ECAB ___ (Docket No. 05-232, issued September 2, 2005);
Geraldine Foster, 54 ECAB 435 (2003).

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On January 4, 2002 an Office hearing representative concluded that Dr. Weng’s report
required clarification of the issue of appellant’s claim of occasional pain radiating from her
knees. In an April 19, 2004 supplemental report, Dr. Weng concluded that appellant had no
disability or injury from her accepted employment injury. He stated that appellant’s complaints
of numbness and pain radiating into her legs were new. A review of medical evidence from
1988 to 1992, the history he took and his notes showed no radicular symptoms. In addition, the
objective evidence did not support a radicular problem. Dr. Weng noted that the 1988 MRI scan
showed evidence of a degenerative condition which “would not correspond to any radicular
pattern.” He opined that the MRI scan supported that appellant had a degenerative condition
“rather than a finding related to her injury.” Dr. Weng also reported a positive Waddell’s sign
which is a reaction indicating nonphysiologic reactions or responses to pain. Moreover,
appellant’s reactions to pain were inconsistent with the objective evidence.
Appellant submitted a February 23, 2006 progress note by Dr. Kreiner in support of her
request for reconsideration. The Board finds Dr. Kreiner’s report insufficient to create a conflict
with Dr. Weng. Dr. Kreiner’s report contains no history of the employment injury beyond noting
that appellant sustained an injury in 1988. As his medical conclusions are based on an
incomplete factual history they are of diminished probative value.6 Dr. Kreiner also provides no
rationale to support his conclusion that appellant’s disability is employment related besides
noting that she had no pain prior to the 1988 employment injury. The Board has held that the
mere fact that a condition manifests itself after an injury and was not present before an injury is
not sufficient, without supporting medical rationale, to support causal relationship.7 For these
reasons Dr. Kreiner’s opinion is insufficient to create a conflict with Dr. Weng’s opinion as to
whether appellant has any disability or residuals due to her accepted March 17, 1988
employment injury.
Dr. Weng provided a well-rationalized evaluation and supplemental report in which he
clearly advised that appellant did not have any residuals or disability due to her March 17, 1988
employment injury. The Board finds that he is entitled to special weight as an impartial medical
specialist. Appellant, therefore, failed to meet her burden of proof to establish that she had any
continuing disability or residuals after October 17, 2001.8
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she had
any continuing employment-related disability or residuals after October 17, 2001 causally related
to her employment.

6

M.W., 57 ECAB ___ (Docket No. 06-749, issued August 15, 2006).

7

Michael S. Mina, 57 ECAB ___ (Docket No. 05-1763, issued February 7, 2006).

8

Kathryn E. Demarsh, 56 ECAB ___ (Docket No. 05-269, issued August 18, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16, 2006 and September 19, 2005 are affirmed.
Issued: March 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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Appearances:
Roman P. Mosqueda, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1624
Issued: December 5, 2013

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 June 28, 2013 appellant, through her attorney, filed a timely appeal from a January 8,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
untimely request for reconsideration. Because more than 180 days elapsed from the most recent
merit decision dated October 7, 2011 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, counsel contends that the medical evidence submitted in support of
appellant’s request for reconsideration is sufficient to establish clear evidence of error on the part
1

5 U.S.C. § 8101 et seq.

of OWCP. He stated that the medical reports of the attending Board-certified orthopedic surgeon
rebut the findings of OWCP’s referral physician.
FACTUAL HISTORY
OWCP accepted that on June 17, 2008 appellant, then a 57-year-old modified-duty mail
handler, sustained a lumbosacral strain when she reached for mail trays while sitting on a scooter
at work. She stopped work on June 18, 2008. On February 3, 2009 appellant returned to
modified-duty work at the employing establishment. On April 7, 2009 she was sent home
because it no longer had any work available to her within her restrictions. OWCP placed
appellant on the periodic rolls commencing April 11, 2009 and paid total disability
compensation.
In a September 23, 2010 report, Dr. J. Pierce Conaty, a Board-certified orthopedic
surgeon and OWCP referral physician, provided a history of appellant’s employment injuries,
including the June 17, 2008 employment injury and medical and social background. He listed
findings on physical, neurological and x-ray examination of the back and both lower extremities.
Dr. Conaty advised that back surgery was not indicated. Appellant’s current disability was
causally related to her long-standing and preexisting obesity and lumbar conditions. Dr. Conaty
further advised that the accepted lumbosacral strain resulted in a temporary aggravation of her
preexisting condition for only two months, after which time all periods of disability were
attributed to her preexisting condition. He determined that appellant could not perform her usual
job or work eight hours a day. Dr. Conaty stated that she could initially work four hours a day,
then six hours a day in three months and eventually eight hours a day in six months with
restrictions. He concluded that appellant’s potential for vocational rehabilitation and future
reemployment was guarded and problematic, primarily secondary to her marked obesity and
chronic pain which necessitated narcotics. In a supplemental report dated May 16, 2011,
Dr. Conaty advised that her June 17, 2008 employment injury had resolved within six months of
her injury. Appellant no longer had any total disability causally related to the accepted injury.
Dr. Conaty concluded that her work restrictions remained unchanged from the restrictions
provided in his September 23, 2010 report.
On May 24, 2011 OWCP requested that Dr. Michael L. Schiffman, an attending Boardcertified orthopedic surgeon, review Dr. Conaty’s findings. Dr. Schiffman did not respond
within the allotted 30-day time period.
In a notice dated August 22, 2011, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits based on Dr. Conaty’s opinion. It afforded her
30 days to submit additional evidence and argument.
OWCP received reports dated June 6 and July 21, 2011 from Dr. Semon Min and
Dr. Pablo S. Rodriguez, chiropractors, respectively and cosigned by Dr. Schiffman addressed
appellant’s lumbar conditions and disability.
In an August 25, 2011 report, Dr. Schiffman reviewed appellant’s medical records and
disagreed with Dr. Conaty’s findings. He stated that she sustained a soft tissue injury
superimposed on preexisting entities. Appellant’s current lumbar condition, which included disc

2

desiccation and end plate spurring as seen on a magnetic resonance imaging (MRI) scan were
common findings considering her age, weight and employment history. Disc protrusions seen on
a 2008 MRI scan study were not related to preexisting degenerative changes. Dr. Schiffman
related that current findings of limited motion and muscle weakness and atrophy in the left lower
extremity and disc protrusions at T12, Ll, L2-3 and L3-4 were not related to preexisting
degenerative changes, but were related to the 2008 industrial injury. He stated that it could not
be determined whether appellant’s spondylolisthesis occurred before or after the 2008 traumatic
injury as no MRI scan studies were performed prior to her date of injury. Therefore, there was a
possibility that the spondylolisthesis, if preexisting, either became unstable and symptomatic or
occurred with the 2008 injury. Dr. Schiffman advised that the 2008 trauma led to the disc
protrusions at TI2, L1, L2-3 and L3-4. Appellant’s functional limitations resulted from the same
injury and required sedentary activities and work restrictions which accelerated her obesity and
diabetes. Dr. Schiffman advised that her limited mobility and lumbar and left lower extremity
conditions were not related to her degenerative disc disease. They were related to the pathology
at T12, L1, L2-3 and L3-4 which resulted from the June 17, 2008 work injury. Dr. Schiffman
advised that appellant was temporarily totally disabled and not capable of performing her regular
duties as a consequence of the 2008 employment injury. He contended that Dr. Conaty’s
conclusion that appellant could not perform her regular duties contradicted his opinion that her
disability ceased as of September 23, 2010. Dr. Schiffman advised that vocational rehabilitation
was warranted since appellant’s modified duties had not been accepted by the employing
establishment. He recommended continued medical treatment and diagnostic testing for her
work-related lumbar and left lower extremity injuries. Dr. Schiffman stated that the preexisting
degenerative findings were insignificant when the history of the June 2008 industrial injury, MRI
scan findings of disc protrusions, muscle atrophy, functional limitations and appellant’s age,
weight, 19-year employment history and previous industrial injuries were taken into
consideration.
In an October 7, 2011 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that date. It found that the medical evidence submitted by her was
insufficient to outweigh the weight of Dr. Conaty’s opinion that she no longer had any residuals
or disability causally related to her accepted injury.
In an appeal request form dated September 20, 2012 and received by OWCP on
October 10, 2012, appellant requested reconsideration of the October 7, 2011 termination
decision. In a brief dated October 1, 2012 and also received on October 10, 2012, counsel
contended that Dr. Schiffman’s August 25, 2011 report was sufficient to establish appellant’s
entitlement to continuing disability compensation.
Appellant submitted a duplicate copy of Dr. Schiffman’s August 25, 2011 report. She
also submitted reports cosigned by Dr. Min and Dr. Schiffman. In an October 13, 2011 report,
the physicians noted appellant’s complaints, reviewed a September 12, 2011 lumbar MRI scan
and listed findings on physical examination. Appellant was diagnosed as having lumbar spine
sprain/strain, multilevel degenerative disc disease, degenerative facet arthrosis at multiple levels,
a three millimeter posterior disc protrusion at T12, L1, two to three millimeter posterior disc
protrusion with mild foraminal narrowing at L2-3, marked bilateral degenerative facet arthrosis
at L4-5 with minimal grade 1 anterior spondylolisthesis of L4 on L5 based on the September 12,
2011 MRI scan. Dr. Min and Dr. Schiffman advised that she remained totally disabled. In

3

reports dated July 23 and November 26, 2012, the physicians listed physical examination
findings and reiterated their prior opinion that appellant was temporarily totally disabled.
OWCP received reports dated November 10, 2011 through April 19, 2012 and cosigned
by Dr. Peter K. Dawson, a chiropractor, and Dr. Schiffman, who noted appellant’s symptoms and
listed findings on physical examination. Appellant was diagnosed as having the same lumbar
conditions as listed in Dr. Schiffman’s October 13, 2011 report. Dr. Dawson and Dr. Schiffman
advised that she was temporarily totally disabled.
In reports dated February 22 and September 27, 2012, Dr. Schiffman noted appellant’s
complaints related to her back and bilateral lower extremities and listed physical examination
findings. He reiterated his lumbar diagnoses and opinion that she was temporarily totally
disabled. In a March 21, 2012 report, Dr. Schiffman advised that appellant’s lumbar spine strain,
disc protrusions and grade 1 spondylolisthesis at L4 on L5 were work related. He indicated with
an affirmative mark that residuals of her injury had not resolved. Dr. Schiffman stated that
appellant’s expectant recovery date was December 31, 2013. He again opined that she was
temporarily totally disabled. Dr. Schiffman reiterated this opinion in a separate report dated
March 21, 2012 and a report dated May 17, 2012.
Reports dated March 21, April 19 and May 17, 2012 contained an illegible signature and
provided lumbar range of motion measurements.
On March 21, 2012 Dr. Dawson reported that appellant had disc dessication and
anterolisthesis at L4 on L5. He reiterated his opinion that she was temporarily totally disabled.
A June 11, 2012 report cosigned by Dr. Schiffman and Dr. Paul Lin, a Board-certified
internist, noted appellant’s back and bilateral lower extremity symptoms and listed findings on
physical examination. The physicians diagnosed the same lumbar conditions as provided in
Dr. Schiffman’s prior reports.
In a January 8, 2013 decision, OWCP denied appellant’s request for reconsideration,
without a merit review, on the grounds that it was not timely filed and failed to establish clear
evidence of error in its October 7, 2011 decision.2
LEGAL PRECEDENT
Section 8128(a) of FECA3 does not entitle a claimant to a review of an OWCP decision
as a matter of right.4 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing

2

The Board notes that OWCP received new evidence after issuance of its January 8, 2013 decision. The Board
lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.5
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.7 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.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
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on October 7, 2011. OWCP received
appellant’s request for reconsideration on October 10, 2012; thus, the request was outside the

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

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one-year time limit.14 Consequently, appellant must demonstrate clear evidence of error by
OWCP in denying her claim for compensation.15
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s October 7,
2011 decision or shift the weight of the evidence of record in her favor. OWCP terminated her
disability compensation effective October 7, 2011 based on the September 23, 2010 medical
opinion of Dr. Conaty, an OWCP referral physician, who opined that she no longer had any
residuals or disability causally related to the accepted June 17, 2008 employment injury.
Dr. Schiffman’s March 21, 2012 report found that appellant had work-related lumbar
spine strain, disc protrusions and grade 1 spondylolisthesis at L4 on L5. He indicated with an
affirmative mark that residuals of her injury had not resolved. Dr. Schiffman concluded that
appellant was temporarily totally disabled. In another report dated March 21, 2012 and reports
dated February 22, May 17 and September 27, 2012, he reiterated his prior diagnoses and
opinion regarding appellant’s disability. Appellant resubmitted Dr. Schiffman’s August 25, 2011
report which found that she had continuing residuals and total disability causally related to the
accepted employment injury. A detailed, well-rationalized medical report which would have
created a conflict in medical opinion requiring further development if submitted prior to issuance
of the denial decision, does not constitute clear evidence of error.16 While the reports of
Dr. Schiffman are generally supportive of appellant’s continuing residuals and disability, they do
not establish clear error on the part of OWCP in rendering its October 7, 2011 decision. These
reports are insufficient as Dr. Schiffman did not provide adequate medical rationale explaining
how the diagnosed conditions or resultant disability were caused by the accepted June 17, 2008
employment injury17 or raise a substantial question concerning the correctness of OWCP’s
decision. Further, Dr. Schiffman’s August 25, 2011 report was previously in the record.
Similarly, the reports from Drs. Min, Dawson and Lin which were cosigned by
Dr. Schiffman diagnosed appellant’s lumbar conditions and found that she remained temporarily
totally disabled are of limited probative value and insufficient to establish clear evidence. This
evidence does not contain a rationalized opinion explaining how the diagnosed conditions or
resultant disability were causally related to the accepted employment injury.18 The Board notes
that while Dr. Lin’s March 21, 2012 report, which was not cosigned by Dr. Schiffman, diagnosed
appellant’s lumbar conditions and again opined that she was temporarily totally disabled, he is
not considered a physician under FECA with regards to this report as he did not diagnose a
14

See Federal (FECA) Procedure Manual, Part 2 -- Reconsiderations, Time Limitations, Chapter 2.1602(e)(6)
(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting
reconsideration. 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 5; see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

16

Joseph R. Santos, 57 ECAB 554 (2006).

17

F.T., Docket No. 09-919 (issued December 7, 2009); S.S., 59 ECAB 315 (2008); Roma A. Mortenson-Kindschi,
57 ECAB 418 (2006) (a medical opinion not fortified by medical rationale is of diminished probative value).
18

Id.

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spinal subluxation as demonstrated by x-ray to exist. For the stated reasons, the Board finds that
the reports of Drs. Min, Dawson, Merriman, Lin and Schiffman are not sufficient to shift the
weight of the evidence in favor of appellant or raise a fundamental question as to the correctness
of OWCP’s termination decision.
The March 21, April 19 and May 17, 2012 reports containing illegible signatures
provided lumbar range of motion measurements and stated that appellant was temporarily totally
disabled. This evidence lacks probative value as it cannot be determined that it is from a
physician19 and failed to provide a reasoned opinion explaining how appellant’s continuing total
disability was caused by the accepted injury.20
To establish clear evidence of error, it is not sufficient merely to establish that the
evidence could be construed so as to produce a contrary conclusion. The term clear evidence of
error is intended to represent a difficult standard. None of the evidence submitted manifests on
its face that OWCP committed an error in terminating appellant’s compensation. Appellant has
not otherwise submitted evidence of sufficient probative value to raise a substantial question as
to the correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear
evidence of error.
On appeal, counsel contended that Dr. Schiffman’s reports were sufficient to rebut
Dr. Conaty’s medical opinion. As found, Dr. Schiffman’s reports were not prima facie sufficient
to shift the weight of the evidence in appellant’s favor and raise a substantial question as to the
correctness of OWCP’s decision to terminate her compensation as of October 7, 2011.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

19

C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative medical
evidence if there is no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2); reports lacking proper identification do not constitute probative medical evidence).
20

See cases cited, supra note 17.

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ORDER
IT IS HEREBY ORDERED THAT the January 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2013
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aurora, CO, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
No appearance, for the Director

Docket No. 12-1387
Issued: March 5, 2013

Oral Argument February 6, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 11, 2012 appellant filed a timely appeal from a May 16, 2012 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 sustained a recurrence of total disability on April 22, 2010
when his modified position was withdrawn under the National Reassessment Process (NRP).
On appeal and at oral argument, appellant’s representative asserted that appellant had
residuals of the accepted injuries on April 22, 2010 when his modified position was withdrawn
and he therefore established a recurrence of disability.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 30, 2009 appellant, then a 60-year-old letter carrier, filed an occupational
disease claim, alleging that his job duties caused right upper extremity pain and numbness. He
had stopped work on March 12, 2009. Appellant accepted a modified position on May 26, 2009.
Following an initial denial by OWCP on July 1, 2009, on November 23, 2009 OWCP accepted
that appellant sustained right upper extremity conditions of temporary aggravation of thoracic
outlet syndrome, temporary aggravation of medial epicondylitis and temporary aggravation of
ulnar neuropathy.2
On June 4, 2010 appellant filed a recurrence claim, stating that the recurrence of
disability began on April 22, 2010 when his modified position was withdrawn. He indicated that
his pay stopped on May 21, 2010. The employing establishment advised that appellant’s
position was withdrawn under NRP. Appellant thereafter filed Form CA-7 claims for
compensation. In a May 11, 2010 duty status report, Dr. Christopher B. Ryan, an attending
Board-certified physiatrist, advised that appellant continued to have employment-related
residuals and could perform modified duty with physical restrictions.
By decision dated August 31, 2010, OWCP denied the recurrence claim. Appellant
timely requested a hearing and submitted a September 7, 2010 report in which Dr. Ryan
indicated that he began treating appellant in May 2009. Dr. Ryan diagnosed thoracic outlet
syndrome, medial epicondylitis and ulnar neuropathy, and advised that, as long as appellant had
been his patient, he had been partially disabled and had permanent restrictions of lifting no more
than in a sedentary classification, no repetitive use of his upper extremities and no heavy
gripping. He continued to submit reports, including work capacity evaluations, in which he
reiterated appellant’s diagnoses and restrictions.
In a November 17, 2011 decision, an OWCP hearing representative vacated the
August 31, 2010 decision and remanded the case to OWCP for application of OWCP procedures
developed for handling NRP claims, detailed in FECA Bulletin No. 09-05. In letters dated
December 28, 2011 and March 15, 2012, OWCP asked the employing establishment and
Dr. Ryan for information regarding appellant’s job duties and physical condition respectively.
Dr. Ryan continued to submit reports. In April 3, 2012 correspondence, he advised that,
although appellant’s conditions were no longer active and disabling, this was because he was no
longer performing any repetitive motion activities since he had been out of work for some time.
Dr. Ryan indicated that if appellant returned to a repetitive motion job, he would most probably
suffer a recurrence. He concluded that appellant could return to his modified position.

2

This case, adjudicated under OWCP File No. xxxxxx700, includes four subsidiary files: File No. xxxxxx727,
accepted for right elbow epicondylitis; File No. xxxxxx830, accepted for right elbow tendinitis; File No. xxxxxx669
accepted for right lateral epicondylitis and right sprain of elbow and forearm; and File No. xxxxxx304 accepted for
right shoulder thoracic outlet syndrome. Under File No. xxxxxx992, not a subsidiary of this claim, by decision
dated January 10, 2005, OWCP found that appellant’s actual earnings represented his wage-earning capacity and
reduced his compensation.

2

In a second-opinion evaluation dated April 23, 2012, Dr. John D. Douthit, a Boardcertified orthopedic surgeon, noted appellant’s complaints, his review of the medical record and
physical examination findings. He diagnosed functional disorder with psychological overlay;
history of epicondylitis, ulnar neuropathy and thoracic outlet syndrome, diagnosis unconfirmed;
and arthrosis of right wrist from prior fracture. Dr. Douthit advised that on reviewing appellant’s
medical records and based on his physical examination, appellant had no objective physical
findings to substantiate his complaints or that would preclude him from doing any kind of work
at the postal service. He advised that appellant had reached maximum medical improvement. In
an attached work capacity evaluation, Dr. Douthit indicated that appellant could return to work
without restrictions.
In a merit decision dated May 16, 2012, OWCP denied that appellant sustained a
recurrence of disability on April 22, 2010 on the grounds that the medical evidence did not
establish that he continued to have an ongoing injury-related disability or residuals of the
accepted condition.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee, who is disabled from the job that he or she held when injured
because of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.5
In addition to the generally applicable provisions described above, OWCP has issued
specific guidance for employees affected by NRP of the postal service. FECA Bulletin No. 0905 outlines procedures for light-duty positions withdrawn pursuant to NRP. Regarding claims
for total disability when a wage-earning capacity decision has not been issued, FECA Bulletin
No. 09-05 provides that if the claimant has been on light duty due to an injury-related condition
without a loss of wage-earning capacity (LWEC) rating (or if the LWEC rating has been set
3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

4

Id.

5

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

3

aside), payment for total wage loss should be made based on the Form CA-7 as long as the
following described criteria are met. First, the current medical evidence within the file
establishes that injury-related residual conditions continue. There must be sufficient medical
evidence in the record within the last six months to make this determination. In addition, the
evidence in the file must support that light duty is no longer available. There must be no
indication that a retroactive LWEC determination should be made. Where a retroactive LWEC
is considered, an OWCP district director must approve any such decision. In the event OWCP’s
claims examiner finds that the evidence in file is not sufficient to determine whether total wageloss benefits should continue, current medical evidence should be requested from the claimant
and the employer.6
ANALYSIS
The Board finds this case is not in posture for decision because a conflict in medical
evidence has been created between the opinions of appellant’s attending physician, Dr. Ryan,
and that of OWCP’s referral physician, Dr. Douthit, on the issue of whether appellant sustained a
recurrence of disability when the employing establishment terminated his light-duty
employment. The case must therefore be remanded to OWCP for further adjudication.
The facts in this case indicate that appellant’s modified position was withdrawn under
NRP on April 22, 2010 and he thereafter filed claims for compensation. As noted above, FECA
Bulletin No. 09-05 outlines OWCP procedures when limited-duty positions are withdrawn
pursuant to NRP and no wage-earning capacity decision is in place.7 In the instant case, on
November 17, 2011 an OWCP hearing representative remanded the case to OWCP to apply
FECA Bulletin No. 09-05. In addressing FECA Bulletin No. 09-05, in its May 16, 2012
decision, OWCP found that the weight of the medical evidence rested with the opinion of
Dr. Douthit who provided a second-opinion evaluation for OWCP. In an April 23, 2012 report,
Dr. Douthit concluded that appellant had no objective physical findings to substantiate his
complaints or that would preclude him from doing any kind of work at the employing
establishment. Appellant, however, stopped work on April 22, 2010, two years before
Dr. Douthit’s examination. OWCP did not ask Dr. Douthit to provide an opinion regarding
whether appellant had residuals of the accepted condition on April 22, 2010, when his light-duty
job was withdrawn under NRP. In a duty status report dated May 11, 2010, appellant’s attending
physician, Dr. Ryan, advised that appellant continued to have residuals of the employmentrelated condition. Dr. Ryan thereafter submitted a number of reports and was consistent in his
opinion that appellant had continued residuals and restrictions. While he noted on April 3, 2012
that appellant’s condition was no longer active and disabling, he stated that this was because
appellant was no longer performing any repetitive motion activities since he had been out of
work for some time.
If there is disagreement between a physician who provides an opinion for OWCP and the
employee’s physician, OWCP will appoint a third physician who shall make an examination.8
6

FECA Bulletin No. 09-05 (issued August 18, 2009).

7

Id.

8

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

4

For a conflict to arise, the opposing physician’s viewpoints must be of virtually equal weight and
rationale.9 The Board finds the opinions of Dr. Ryan and Dr. Douthit to be of equal weight as to
whether appellant had residuals of the accepted conditions on April 22, 2012 when his modified
position was withdrawn and whether these residuals continued. The Board will set aside the
May 16, 2012 decision and remand the case to OWCP. On remand OWCP shall prepare an
updated statement of accepted facts and a set of questions, instructing the referee physician to
provide an opinion as to whether appellant had employment-related residuals on April 22, 2012
and for any period thereafter. After such further development as it deems necessary, OWCP
shall issue a de novo decision on the merits of appellant’s claim by following the appropriate
criteria in FECA Bulletin No. 09-05.
CONCLUSION
The Board finds that this case is not in posture for decision as a conflict in medical
evidence has been created regarding whether appellant sustained a recurrence of total disability
on April 22, 2010.
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion of the Board.
Issued: March 5, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
9

Darlene R. Kennedy, 57 ECAB 414 (2006).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL DISASTER MEDICAL
SERVICES, Bethesda, MD, Employer
__________________________________________

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

Docket No. 14-1994
Issued: January 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 16, 2014 appellant, through his attorney, filed a timely appeal of an
August 21, 2014 Office of Workers’ Compensation Programs’ (OWCP) nonmerit decision
denying further merit review. The most recent merit decision was issued by the Board on
April 24, 2013, which became final after 30 days of issuance and is not subject to further review.
The Board lacks jurisdiction to review the merits of appellant’s case, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c), 501.3, and 501.6(d).
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board on appeal. A review of the facts follows.
On July 31, 2011 appellant then a 64-year-old health technician/paramedic filed an occupational
disease claim alleging that he had developed necrotizing fasciitis, clostriudium septicum due to
factors of his federal employment. He stated that he returned from a two-week deployment in
Haiti on January 30, 2010 and was diagnosed with strep throat. Appellant stated that
periodically after that he developed multiple episodes of uncontrolled fevers and on July 2, 2011
received a diagnosis of necrotizing fasciitis.
In a report dated September 8, 2011, Dr. Robert E. Hruby, a Board-certified surgeon,
stated that he first examined appellant on July 2, 2011 with necrotizing fasciitis and myonecrosis
secondary to clostridium perfringens infection. He stated that appellant developed multisystem
organ failure and required treatment for respiratory failure, renal failure, and overwhelming
sepsis. Dr. Hruby opined, “From a clinical standpoint, the infectious etiology of his disease may
be related to his deployment to Haiti although deployment occurred months before. The medical
literature suggests that these types of unusual infections mainly remain dormant in the
gastrointestinal tract for extended periods of time.” Dr. Hruby examined appellant on July 3,
2011 and diagnosed necrotizing fasciitis with no clear source, possibly spontaneous, with
multisystem organ failure. On July 22, 2011 he diagnosed clostridium perfringens necrotizing
fasciitis involving the upper back, right flank, and right anterior abdominal wall.
By decision dated November 1, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that his diagnosed condition was due to his
employment. The Board reviewed his appeal in a decision dated November 5, 2012 and reissued
on January 18, 20132 and found that Dr. Hruby did not explain how or why he believed that
appellant developed necrotizing fasciitis, and myonecrosis due to his deployment to Haiti. The
Board found that appellant had not submitted sufficient medical opinion evidence to establish his
occupational disease claim. The facts and circumstances of the case as set forth in the Board’s
prior decision are adopted herein by reference.
Counsel requested reconsideration on August 13, 2013. In a report dated December 1,
2011, Dr. Hruby opined that clostridium perfringens was the etiology of his necrotizing
myonecrosis. He stated that clostridium perfringens was endemic in Haiti. Dr. Hruby
concluded:
“The patient, after his deployment, developed an acute diarrheal illness followed
by fulminant sepsis, and necrotizing myonecrosis. As you are also aware, these
infections may lay dormant in carriers for extended periods of time. Based on
these criteria, it is probable that this unusual life threatening infection from which
[appellant] is recovering may be related to his deployment to Haiti.”

2

Docket No. 12-1169 (issued November 5, 2012). The Board issued an Order reissuing this decision on
January 18, 2013 due to nondelivery. See Docket No. 12-1169 (issued January 18, 2013).

2

By decision dated September 17, 2013, OWCP denied modification of its prior decisions.
It reviewed Dr. Hruby’s December 1, 2011 report and found that it continued to be speculative as
to the relationship between appellant’s condition and his employment. The Board reviewed this
decision on April 24, 20143 and found that appellant had not submitted the necessary medical
opinion evidence to establish his occupational disease claim.
Counsel requested reconsideration on June 6, 2014 and submitted a brief dated
April 24, 2014. In this brief, he argued that OWCP improperly relied on medical journal articles
in denying appellant’s claim. Counsel described the health situation in Haiti prior to and
following the earthquake on January 12, 2010. He opined that appellant was exposed to “an
infectious disease laboratory for tropical illnesses.” Counsel argued that appellant was hundreds
of times more likely to have contracted a severe clostridium infection in Haiti than in the United
States. He stated that the record previously lacked the information regarding the epidemiological
context of Haiti. Counsel also submitted medical publications regarding Haiti and the Haitian
earthquake as well as necrotizing fasciitis and clostridium difficile. He further submitted
diagnostic studies from July 2011.
By decision dated August 21, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found that the opinion on causal relationship between his
diagnosed condition and his employment exposure must be provided by a physician, rather than
by counsel. OWCP further found that the medical evidence submitted did not contain any
medical opinion evidence.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.5 Section
10.608 of OWCP’s regulations provide that when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.6
ANALYSIS
In support of his request for reconsideration, counsel submitted a brief analyzing the
relative health situations in the United States and in Haiti at the time of appellant’s visit. He
3

Docket No. 14-203 (issued April 24, 2014).

4

5 U.S.C. §§ 8101-8193, 8128(a).

5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

3

opined that appellant was hundreds of times more likely to have developed his infections in Haiti
than in the United States. As noted by OWCP, in order to establish appellant’s occupational
disease claim, he must submit medical opinion evidence that his diagnosed conditions were the
result of employment exposures. The opinion of counsel does not constitute medical evidence7
and thus is not relevant to the reasons that appellant’s claim was denied, the lack of medical
reasoning explaining why and how an exposure to conditions in Haiti in January 2010 would
result in his diagnosed conditions of necrotizing fasciitis on July 2, 2011. This brief is not
relevant and pertinent new evidence. Furthermore, counsel’s brief does not offer arguments that
show that OWCP erroneously applied or interpreted a specific point of law nor does it advance a
relevant legal argument not previously considered by OWCP.
The Board further finds that the medical publications are not relevant to the issue for
which resulted in the denial of appellant’s claim. These publications are of general application
and not determinative regarding whether specific conditions are causally related to particular
employment factors in a claim.8 These publications were not reviewed by a physician and
therefore lack any opinion rendering them specific to appellant’s claim. Finally, the medical test
results do not contain any mention of the underlying cause of the conditions demonstrated and
are not relevant and pertinent new evidence supporting appellant’s occupational disease claim.
CONCLUSION
The Board finds that appellant has not met any of the criteria warranting a merit review.
OWCP, therefore, properly declined to reopen his claim for consideration of the merits.

7

A lay person is not competent to render a medical opinion. See James A. Long, 40 ECAB 538 (1989).

8

See P.J., Docket No. 14-498 (issued May 19, 2014); and Gaetan F. Valenza, 35 ECAB 763 (1984).

4

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Mayaguez, PR, Employer
__________________________________________

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

Docket No. 07-2290
Issued: March 4, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal of the January 23 and August 10,
2007 merit decisions of the Office of Workers’ Compensation Programs, finding that he did not
sustain an emotional condition in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d)(2), the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On June 29, 2006 appellant, then a 58-year-old revenue officer, filed an occupational
disease claim. On February 10, 1999 he first became aware of stress, anxiety and depression.
On March 22, 1999 appellant first realized that these conditions were caused by his federal
employment. He stopped work on June 29, 2006.

In an accompanying narrative statement, appellant noted that he had a stressful job and
described his work duties. He alleged that his emotional condition began in 1997 and was
aggravated at the end of 1998. In 1990, he was detailed to the examination division and
performed his duties well for eight years. In 1998, he returned to his original position in the
collection division. Appellant stated that as a revenue examination officer he was required to
conduct examinations in the field at taxpayers’ homes. He alleged that his problems started in
1997 when Michael Morel, a group manager in the collection division, advised him that his
“entrances and exits” from the examination division unbalanced the group. Appellant tried to
explain to Mr. Morel why he was required to split his workday between the field and office. He
alleged that Mr. Morel informed his managers, Luis Colon, Cinthia Vargas and Hector Davila,
and a district director, Robert Keller, that he was not performing his work duties and that he
misused government time. As a result, Mr. Colon conducted an audit of appellant’s desk which
revealed that he was performing outstanding work. On September 30, 1998 appellant was
instructed to return to his revenue officer position in the collection division. He stated that
Mr. Davila tried to convince Mr. Keller to provide an extension for him to remain in his detail
assignment so that he could become a job instructor for a new group of revenue officers.
Mr. Davila informed appellant that the extension was denied due to heavy pressure Mr. Keller
received from Mr. Morel. On October 8, 1998 appellant reluctantly returned to the collection
division. He alleged that the employing establishment did not provide him with any formal
training regarding a new regulation and computer program and that he was only assigned a
revenue officer to help him with the transition. Appellant related that it was difficult for him to
adjust to the new job requirements and his performance appraisal dropped from outstanding and
fully successful to average. He alleged that Gladys Santiago, a group manager, observed him all
the time and supervised his work extensively. Appellant suspected that Ms. Santiago monitored
his work due to Mr. Morel’s prior comments. During this time, he was reported and investigated
by the employing establishment for alleged misuse of government time. Appellant stated that he
was cleared by the investigation. He was not selected for a revenue agent position that he
applied for in 2000. Appellant contended that employees less qualified than him were selected
for the position. He filed a grievance regarding this matter and the employing establishment
determined that he was not best qualified for the position due to a low performance appraisal.
Appellant received low performance appraisals from 1998 to 2004.
In a June 20, 2006 medical report, Dr. Mayra del C. Rosado, a psychiatrist, stated that
appellant sustained a recurrent major depressive disorder that was moderate without psychotic
features, anxiety and acute stress disorders on Axis I. She provided no diagnosis on Axis II
and III. Dr. del C. Rosado listed occupational problems on Axis IV and a global assessment
functioning (GAF) score of 58 on Axis V. She opined that appellant would continue to suffer
from depression and anxiety at work. Dr. del C. Rosado concluded that he was totally disabled
for work.
A June 28, 2006 report of Dr. Ingrid A. Berrios, a psychiatrist, stated that appellant
suffered from recurrent major depression that was secondary to his present job situation.
Appellant advised Dr. Berrios that he performed work that was supposed to be performed by
more than one person.
An undated report of Norma Jean Garcia Trabal, Ph.D., a clinical psychologist, indicated
that appellant was evaluated on June 13, 20 and 26, 2006. She reviewed a history that since

2

1997 appellant had been experiencing emotional discomfort, depression and anxiety, due to
work-related problems. Dr. Trabal noted that he had a score of 34 on the Beck Depression
Inventory test which indicated severe depression. Appellant also had a score of 40 on a de
IDARE Anxiety Questionnaire which represented a high level of anxiety. Dr. Trabal diagnosed
depression disorder on Axis I. She reported no diagnosis on Axis II and III. Dr. Trabal listed
work-related problems on Axis IV. She stated that appellant had a GAF score of 60.
A June 27, 2006 report of Virgilio Rodriguez-Rivera, Ph.D., a clinical psychologist,
reviewed a history that appellant experienced ongoing personal distress and work-related
conflicts and stressors. Dr. Rodriguez-Rivera reported essential normal findings on mental status
examination. He diagnosed acute stress disorder on Axis I and phase of life on Axis II.
Dr. Rodriguez-Rivera deferred a diagnosis on Axis III. He found work-related problems and
retirement on Axis IV and a GAF score of 75 on Axis V.
By letter dated July 6, 2006, the Office requested that the employing establishment
provide comments regarding appellant’s allegations, a copy of his position description and
comments regarding his ability to perform the duties of this position within 30 days. The
employing establishment did not respond within the allotted time period.
On July 6, 2006 the Office also advised appellant that the evidence submitted was
insufficient to establish his claim. It addressed the additional factual and medical evidence he
needed to submit.
In a July 16, 2006 letter, appellant noted the treatment of his emotional condition. He
stated that he experienced no stress outside of work. Appellant was married with children and he
noted his hobbies. By letter dated August 7, 2006, he submitted a list providing intermittent
dates from January 2002 through August 8, 2006 that he used sick leave due to his emotional
condition.
By decision dated January 23, 2007, the Office denied appellant’s emotional condition
claim. It found that his low performance appraisal and the monitoring of his work by his
supervisors constituted administrative matters and that he failed to establish error or abuse. The
Office further found that appellant’s return to the collection division and the denial of the
revenue agent position did not constitute compensable employment factors. However, since the
employing establishment did not respond to the July 6, 2006 developmental letter, appellant’s
allegation that he did not receive adequate training regarding a new regulation and computer
program was established as factual and, thus, constituted a compensable employment factor. The
Office reviewed the medical evidence of record and found that it was insufficient to establish
that his emotional condition was caused by the accepted employment factor.
On February 14, 2007 appellant requested an oral hearing before an Office hearing
representative.
In a March 19, 2007 report, Dr. Trabal noted that appellant was feeling sad and anxious
about his current job situation. She recommended continued psychological treatment.
At the May 3, 2007 hearing, appellant reiterated his contentions as to the cause of his
emotional condition. In a May 3, 2007 statement, he contended that the medical evidence of
3

record was sufficient to establish a causal relationship between his emotional condition and the
accepted employment factor.
In a May 24, 2007 report, Dr. Berrios reiterated the history that appellant was
overworked due to a staff shortage. She noted that he had been performing the same stressful job
for 18 years. Dr. Berrios noted that appellant received outstanding performance appraisals and
awards but, as a result of staff shortages and the amount of work he had to perform, he suffered
anxiety, depression and burnout. She opined that his exposure to job-related stressors for a
prolonged period of time affected his emotional condition and his overall functioning. Appellant
submitted a copy of his July 15, 1998 performance appraisal which indicated low ratings. In a
July 11, 2007 memorandum, he advised an Office hearing representative that he had been
released to return to work by his attending physician. Appellant returned to work on
July 2, 2007.
By decision dated August 10, 2007, an Office hearing representative affirmed the
January 23, 2007 decision. The hearing representative found that the medical evidence failed to
establish that his emotional condition was causally related to the accepted compensable
employment factor, the employing establishment’s failure to provide him with computer program
and regulation training in 1998.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.1 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.2
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,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
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 under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
1

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

2

See Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

4

establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
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 under the Act.
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
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. 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 her frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.11
ANALYSIS
Appellant alleged that he sustained an emotional condition causally related to various
factors of his federal employment. The Office accepted as a compensable factor, the employing
establishment’s failure to provide appellant with adequate training related to a new regulation
and computer program.
Appellant also alleged that he was harassed by his supervisors, Mr. Morel and
Ms. Santiago. He stated that Mr. Morel told him that his “entrances and exits” from the office
6

Lillian Cutler, supra note 3.

7

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

8

Id.

9

Lillian Cutler, supra note 3.

10

Michael L. Malone, 46 ECAB 957 (1995).

11

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

5

unbalanced the group. Appellant further stated that Mr. Morel told Mr. Colon, Ms. Vargas,
Mr. Davila and Mr. Keller that he was not performing well and that he had misused government
time. He tried to explain to Mr. Morel, that as a revenue examination officer, he was required to
spend time in the field to conduct examinations at taxpayers’ homes. Appellant further alleged
that Ms. Santiago observed him constantly and supervised his work extensively. The Board has
held that actions of an employer which the employee characterized as harassment may constitute
a factor of employment giving rise to coverage under the Act, but there must be some evidence
that the harassment did in fact occur.12 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation.13 Appellant did not submit any
witness statements in support of his allegation of harassment by Mr. Morel. The Board,
therefore, finds that appellant has not established a factual basis for his allegation of harassment
by Mr. Morel. He did not provide any probative evidence that harassment occurred as alleged.14
Therefore, appellant did not establish a compensable employment factor with respect to
harassment.15 Appellant’s exception to the monitoring of his work by Ms. Santiago pertains to
an administrative or a personnel matter,16 which is noncompensable unless the employee shows
that she erred or acted unreasonably.17 His adverse reaction to what he described as extensive
scrutiny is not covered under the Act as he did not submit evidence to establish error or abuse on
the part of Ms. Santiago.
Appellant’s allegations regarding the investigations,18 denial of a request for a transfer19
and promotion20 and low performance ratings21 at the employing establishment and his filing of a
grievance22 and the assignment of work23 relate to noncompensable administrative and personnel
matters. He did not submit any evidence substantiating that the employing establishment erred
or acted abusively in these matters. Thus, the Board finds that appellant did not establish
compensable factors of employment.

12

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

13

Reco Roncoglione, 52 ECAB 454, 456 (2001).

14

James E. Norris, supra note 12.

15

Jamel A. White, 54 ECAB 224 (2002).

16

Lori A. Facey, 55 ECAB 217, 224 (2004); Beverly R. Jones, 55 ECAB 411, 416 (2004).

17

Andrew J. Sheppard, 53 ECAB 170, 173 (2001).

18

Garry M. Carlo, 47 ECAB 299 (1996).

19

Ernest J. Malagrida, 51 ECAB 287 (2000).

20

Tanya A. Gaines, 44 ECAB 923 (1993).

21

Felix Flecha, 52 ECAB 268 (2001).

22

Michael A. Salvato, 53 ECB 666, 668 (2002).

23

Barbara J. Latham, 53 ECAB 316 (2002).

6

The Office accepted as compensable that appellant was not provided training regarding a
new regulation and computer software. Appellant’s burden of proof, however, is not discharged
by the fact that he has established a compensable employment factor. To establish his claim for
an emotional condition, appellant must also submit rationalized medical evidence establishing
that he has an emotional or psychiatric disorder and that such disorder is causally related to the
accepted compensable employment factor.24 While it is not disputed that appellant has an
emotional condition, the medical evidence does not explain how or why the accepted
employment factor caused or contributed to the emotional condition.
Dr. del C. Rosado stated that appellant suffered from recurrent major depressive disorder
that was moderate without psychotic fears and anxiety and acute stress disorders. She opined
that he would continue to suffer from these conditions at work. Similarly, Dr. Trabal and
Dr. Rodriguez-Rivera found that appellant’s depression and stress disorders were caused by
work-related problems.
However, the reports of Dr. del C. Rosado, Dr. Trabal and
Dr. Rodriguez-Rivera provide vague, general statements with no details of the specific work
factors that caused or contributed to appellant’s condition. They did not explain how or why the
accepted employment factor caused or contributed to appellant’s emotional condition.
Dr. Berrios opined that appellant’s recurrent major depression was secondary to his work
assignments. However, she did not opine that appellant’s emotional condition was causally
related to the accepted employment factor of receiving inadequate training. Moreover, appellant
did not establish that his work assignments resulted in his being overworked. This is not a
compensable factor of employment.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that his claimed emotional condition is causally related to the accepted compensable
employment factor.
CONCLUSION
Appellant has not met his burden of proof in establishing that he developed an emotional
condition in the performance of duty.

24

William P. George, 43 ECAB 1159, 1168 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the August 10 and January 23, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 4, 2008
Washington, DC

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

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

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

8