United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, New Cumberland, PA,
Employer
__________________________________________

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Docket No. 15-700
Issued: June 18, 2015

Appearances:
Jason M. Weinstock, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2015 appellant, through counsel, timely appealed the August 14, 2014
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 the claim.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
FACTUAL HISTORY
Appellant, a 54-year-old distribution process worker, was injured on March 16, 2010
while operating a forklift. OWCP accepted his March 16, 2010 traumatic injury claim for
1

5 U.S.C. §§ 8101-8193 (2006).

lumbar sprain. At the time of injury, the record included contemporaneous medical evidence of
lumbar degenerative disc disease.2 To date, OWCP has not accepted any other lumbar-related
diagnoses as being causally related to the March 16, 2010 forklift incident. Appellant resumed
work following his March 2010 lumbar sprain, but suffered recurrences of disability on June 11,
2010, May 26, 2011, and February 29, 2012. After his latest recurrence, OWCP placed appellant
on the periodic compensation rolls.
Dr. Robert F. Draper Jr., a Board-certified orthopedic surgeon and OWCP referral
physician, examined appellant on July 31, 2012. He diagnosed low back pain syndrome, which
included two components: (l) lumbosacral strain; and (2) degenerative bulging lumbar disc
disease and osteoarthritis of the facet joints at L3-4 and L4-5. Dr. Draper indicated that
appellant’s employment-related lumbosacral strain had resolved. As to the other lumbar-related
diagnoses, he found no evidence of permanent aggravation of appellant’s preexisting pathology.
Dr. Draper further explained that currently appellant complained of low back pain due to
nonaccident-related degenerative lumbar disc disease, bulging disc disease, and facet
osteoarthritis. He advised that appellant was capable of performing full-time, modified-duty
work with occasional lifting up to 50 pounds and frequent lifting up to 25 pounds. Dr. Draper
further advised that appellant could be treated with nonnarcotic analgesics only. He saw no need
for chiropractic manipulations, physical therapy, decompression therapy, or further testing.
OWCP referred Dr. Draper’s report to appellant’s treating physician, Dr. Bernard I.
Zeliger.3 In an August 23, 2012 report, Dr. Zeliger questioned the validity of some of
Dr. Draper’s findings, noting that the July 31, 2012 examination reportedly took less than five
minutes and appellant did not remove either his pants or shoes. He questioned how Dr. Draper
could adequately test muscle motion and sensation while appellant was clothed. Additionally,
Dr. Zeliger noted that appellant had shown improvement, but still complained of pain in the low
back and left leg, radiating into the left groin (inguinal) area. He recommended that appellant
return to work part time (four hours/day) on a “desk job” and then gradually increase to an eighthour workday. However, Dr. Zeliger continued to keep appellant off work pending further
diagnostic studies.
In a supplemental report dated September 27, 2012, Dr. Draper clarified that the
previously reported work restrictions were due solely to appellant’s preexisting degenerative
bulging lumbar disc disease and osteoarthritis of the facet joints at L3-4 and L4-5.
In a November 8, 2012 report, Dr. Zeliger again questioned the thoroughness of
Dr. Draper’s second opinion evaluation based on appellant’s report that the entire examination
took a total of five minutes. He indicated that he disagreed with Dr. Draper’s findings.

2

A March 31, 2010 lumbar magnetic resonance imaging (MRI) scan revealed mild degenerative disc disease at
L3-4 and L4-5 with neuroforaminal narrowing.
3

Dr. Zeliger is a Board-certified orthopedic surgeon. He first examined appellant on April 13, 2010, at which
time he diagnosed lumbar strain/sprain. Dr. Zeliger reported an episode on March 16, 2010 where appellant was
operating a forklift and jarred his back, resulting in immediate pain to his low back, left buttock, and left leg. He
also reviewed appellant’s March 31, 2010 lumbar MRI scan and noted, inter alia, broad-based disc bulges at L2-3,
L3-4, and L4-5, which he characterized as mild.

2

Dr. Zeliger also provided a work capacity evaluation form (OWCP-5c) indicating that appellant
was able to perform part-time, limited-duty work.
The results of a November 20, 2012 electrodiagnostic study (NCV/EMG) were
compatible with left L4 and L5 radiculopathy.
Dr. Zeliger reexamined appellant on April 11, 2013, and noted that he continued to suffer
from lumbar strain/sprain, with evidence of left L4-5 radiculopathy. He further noted that
appellant was unable to perform gainful work and was permanently disabled.4 Dr. Zeliger also
noted that the Social Security Administration (SSA) approved appellant for disability, but thus
far appellant had nothing in writing regarding his SSA disability status.
OWCP declared a conflict in medical opinion and referred appellant for an impartial
medical evaluation (IME). Dr. Thomas D. DiBenedetto, a Board-certified orthopedic surgeon,
examined appellant on July 16, 2013. He also reviewed various medical records, including
appellant’s diagnostic studies and Dr. Zeliger’s treatment records from April 2010 through
April 2013. Based upon the history provided, appellant’s current physical examination, and a
review of his medical records, Dr. DiBenedetto diagnosed lumbar sprain/strain and nonindustrial,
preexisting degenerative disease and lumbar disc disease. He explained that the latter conditions
were not directly caused, aggravated, precipitated, or accelerated in any way by appellant’s
accepted employment exposure. Dr. DiBenedetto placed no physical limitations on appellant’s
work-related back sprain. He found that appellant could work without restrictions and did not
require any further care. Dr. DiBenedetto explained there were no hard, objective findings to
support appellant’s continued subjective complaints. Physical examination showed signs of
symptom magnification, and appellant’s MRI scans were benign and showed no compressive
lesions.5 Dr. DiBenedetto further commented that appellant’s current narcotics usage was
excessive. Lastly, he stated that he did not find any disabling condition due to appellant’s workrelated. Dr. DiBenedetto also provided a work capacity evaluation form (OWCP-5c), which
indicated that appellant was capable of performing his usual job.
In a September 3, 2013 report, Dr. Zeliger noted that he reviewed Dr. DiBenedetto’s
July 2013 work capacity evaluation form (OWCP-5c) and disagreed that appellant was capable
of resuming his prior duties as a distribution process worker. He believed that appellant was
only capable of a sit-down, sedentary desk job doing paperwork, without any lifting, pushing,
pulling, or twisting.
On December 19, 2013 OWCP issued a notice of proposed termination of benefits based
on Dr. DiBenedetto’s July 16, 2013 report. It afforded appellant 30 days to respond.
OWCP subsequently received a January 14, 2014 report from Dr. Zeliger who noted
continuing complaints of low back and left leg pain. Dr. Zeliger also noted that appellant
4

Dr. Zeliger also provided an April 11, 2013 work capacity evaluation (OWCP-5c), which included a workrelated diagnosis of lumbar sprain (ICD-9 Code 847.2). He indicated that appellant was permanently disabled from
performing gainful work due to back pain.
5

Dr. DiBenedetto referenced appellant’s March 31, 2010 lumbar MRI scan, as well as a June 8, 2011 MRI scan
of the thoracic spine, which was normal.

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reported dragging his left foot and although appellant appeared to be slowly improving, he was
far from being well. Dr. Zeliger advised that appellant could return to a light-duty job where he
could sit and perform light work with his hands, such as shuffling papers or keeping track of
orders. He precluded heavy lifting, and pushing or pulling in excess of 10 pounds. Dr. Zeliger
recommended that appellant begin working half days, and then eventually increase his work as
tolerated. If light-duty work was unavailable, then appellant was currently unable to resume
working.
On February 18, 2014 OWCP issued a final decision terminating appellant’s wage-loss
compensation and medical benefits.
Appellant timely requested a hearing. OWCP scheduled a telephonic hearing for
June 11, 2014, and notified both appellant and his counsel. However, they failed to call in at the
designated time. The Branch of Hearings & Review did not reschedule, and instead provided
appellant a review of the written record.
OWCP received additional reports from Dr. Zeliger dated February 20, March 20, and
May 6, 2014. In the February 20, 2014 report, Dr. Zeliger noted appellant’s condition had not
changed since he last saw him on January 14, 2014. He also noted that appellant had not yet
been offered a position in accordance with the January 14, 2014 work restrictions.
Dr. Zeliger’s March 20, 2014 report indicated that appellant complained of increasing
pain in the mid-thoracic area, as well as pain in the low back and down the left leg. His pain had
gradually worsened over the last couple days without any specific event having taken place.
Dr. Zeliger also noted that appellant had not yet returned to work in any capacity. He
recommended obtaining a new lumbar MRI scan to assess the status of appellant’s complaints of
increased pain. Dr. Zeliger did not see any changes on examination, and in fact, commented that
appellant currently looked better on examination than previously.
During a May 6, 2014 follow-up examination, appellant complained of severe low back
and left leg pain. Dr. Zeliger noted that appellant came in almost dragging his left leg.
Appellant reported a recent increase of pain without further injury. According to Dr. Zeliger,
appellant was unable to stand and bend because of severe pain in his low back and left leg. He
ordered a new lumbar MRI scan and bilateral lower extremity electromyography.
By decision dated August 14, 2014, the Branch of Hearings and Review affirmed
OWCP’s decision terminating wage-loss compensation and medical benefits. The hearing
representative relied on Dr. DiBenedetto’s July 16, 2013 impartial medical evaluation as the
basis for terminating all FECA benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to his federal employment, OWCP may not terminate compensation without
6

Curtis Hall, 45 ECAB 316 (1994).

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establishing either that the disability has ceased or that it is no longer related to the employment.7
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.8 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.9
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.10 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”11 Where OWCP has referred the case to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well-reasoned and based upon a proper factual background, must be given special
weight.12
ANALYSIS
The only accepted condition arising from the March 16, 2010 forklift incident is a lumbar
sprain. In a July 31, 2012 report, OWCP’s referral physician, Dr. Draper, found that appellant’s
employment-related lumbosacral strain had resolved. He also diagnosed degenerative bulging
lumbar disc disease and osteoarthritis of the facet joints at L3-4 and L4-5. However, these
conditions were not employment related. Dr. Draper indicated that he found no evidence of
permanent aggravation of appellant’s preexisting pathology. Although appellant was unable to
resume his regular duties as a distribution process worker, Dr. Draper explained that the work
restrictions were solely the result of preexisting degenerative bulging lumbar disc disease and
osteoarthritis of the facet joints at L3-4 and L4-5. A subsequent electrodiagnostic study revealed
left L4 and L5 radiculopathy. Appellant’s physician, Dr. Zeliger, reexamined him on April 11,
2013 and noted that appellant continued to suffer from lumbar strain/sprain, with evidence of left
L4-5 radiculopathy. He further noted that appellant was unable to perform gainful work, and
was considered permanently disabled. Based on the above-noted disagreement between
Dr. Zeliger and Dr. Draper, OWCP properly declared a conflict in medical opinion. Because of
this conflict, OWCP referred appellant to an impartial medical examiner (IME).
Dr. DiBenedetto, the IME, diagnosed employment-related lumbar sprain/strain and
nonindustrial, preexisting degenerative disease and lumbar disc disease. Apart from the lumbar
sprain/strain, appellant’s other lumbar-related conditions were not directly caused, aggravated,
precipitated, or accelerated in any way by his accepted employment exposure. With respect to
appellant’s accepted lumbar sprain/strain, Dr. DiBenedetto found no physical limitations. He
7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

11

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

12

Gary R. Sieber, 46 ECAB 215, 225 (1994).

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was able to work without restrictions and did not require any further care. Moreover, appellant’s
lumbar degenerative disc disease was not disabling. Dr. DiBenedetto stated that he found no
hard objective evidence to support appellant’s continued subjective complaints. Also, there were
signs of symptom magnification on physical examination and appellant’s MRI scans were
benign. Dr. DiBenedetto’s work capacity evaluation form (OWCP-5c) found appellant capable
of performing his usual job.
As noted, when a case is referred to an IME to resolve a conflict, the resulting medical
opinion, if sufficiently well-reasoned and based upon a proper factual background, must be given
special weight.13 The Board finds that OWCP properly deferred to Dr. DiBenedetto’s July 16,
2013 opinion. Dr. DiBenedetto provided a well-reasoned report based on a proper factual and
medical history. He accurately summarized the relevant medical evidence, and relied on the
statement of accepted facts. Dr. DiBenedetto also examined appellant and provided a thorough
review of the relevant medical records. His report included detailed findings and medical
rationale supporting his opinion. As the IME physician, Dr. DiBenedetto’s July 16, 2013
opinion is entitled to determinative weight.14
The record includes at least four additional reports from appellant’s physician,
Dr. Zeliger, which cover the period January 14 through May 6, 2014. During this time frame,
appellant reported mid and low back pain, and various left lower extremity complaints.
Dr. Zeliger’s January 14 and February 20, 2014 reports indicated that appellant was able to
return to work in a part-time, light-duty capacity. The March 20 and May 6, 2014 reports did not
specifically address appellant’s work capacity.
Subsequent reports from a physician who was on one side of a medical conflict would
generally be insufficient to overcome the weight accorded the IME’s report and/or insufficient to
create a new medical conflict.15 As a party to the original conflict, Dr. Zeliger’s follow-up
reports from January through May 2014 are insufficient to overcome the weight properly
accorded Dr. DiBenedetto July 16, 2013 opinion, and are similarly insufficient to create a new
conflict in medical opinion. Accordingly, the Board finds that OWCP satisfied its burden in
terminating appellant’s wage-loss compensation and medical benefits.
On appeal, counsel notes that OWCP’s termination of FECA benefits is contrary to the
SSA’s finding of disability. The determination of an employee’s rights or remedies under
another statutory authority does not establish entitlement to benefits under FECA.16

13

Id.

14

Id.

15

I.J., 59 ECAB 408, 414 (2008).

16

J.F., 59 ECAB 331, 339 (2008); H.S., 58 ECAB 554, 560 n.22 (2007); Dianna L. Smith, 56 ECAB 524,
527 (2005).

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CONCLUSION
The Board finds OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 18, 2015
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Crestline, OH, Employer
__________________________________________

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

Docket No. 09-490
Issued: December 15, 2009

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 December 10, 2008 appellant timely appealed a November 3, 2008 merit decision of
the Office of Workers’ Compensation Programs which affirmed the termination of her
compensation benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has any injury-related residuals after June 9, 2006.
FACTUAL HISTORY
This case was previously on appeal. Appellant, a 47-year-old letter carrier, was involved
in an employment-related motor vehicle accident (MVA) on February 5, 2000. The Office
accepted her claim for cervical sprain. She received wage-loss compensation and medical
benefits. Appellant resumed work in a full-time, limited-duty capacity shortly after her injury
and continued to perform limited-duty work for approximately six years thereafter. She also has
cervical degenerative disc disease (C5-6), which the Office has not accepted as being causally

related to the February 5, 2000 injury. Additionally, appellant was involved in another MVA on
or about May 6, 2002.
Effective June 9, 2006, the Office terminated appellant’s compensation benefits. The
decision was based on the October 28, 2005 report of Dr. Alan H. Wilde, a Board-certified
orthopedic surgeon and Office referral physician, who found that her cervical strain had resolved
and that her cervical disc degeneration (C5-6) was not related to the February 5, 2000
employment injury. By decision dated January 16, 2007, the Branch of Hearings and Review
affirmed the Office’s June 9, 2006 decision. The Office subsequently denied modification in a
decision dated October 1, 2007. On appeal, the Board affirmed the Office’s October 1, 2007
decision.1
On September 28, 2008 appellant requested reconsideration before the Office. In an
August 27, 2008 report, Dr. Mark A. Hnilica, a Board-certified neurosurgeon, advised that he
had since performed the recommended C5-6 discectomy and fusion surgery, but she continued to
experience neck and shoulder pain as well as some chronic arm and hand discomfort. He stated
that appellant’s chronic arm discomfort and reactive cervical muscular guarding would limit her
activity and her return to employment as a letter carrier. As to the cause of her current
complaints, Dr. Hnilica explained that plain x-rays at the time of the February 2000 MVA
showed no significant bone spurs or degeneration within the cervical spine, but by
December 2001, appellant’s x-rays showed degeneration at C5-6 with spondylosis or bone spurs.
He explained that this progression was evident prior to her May 2002 MVA. Dr. Hnilica stated
that the rapid progression of degeneration over a one and one-half-year period was entirely
consistent with the injury to the disc causing precocious wear and tear leading to the
degeneration with bone spurs. He concluded that appellant sustained a C5-6 injury at the time of
her February 2000 employment-related MVA. He also advised that, because the December 2001
cervical x-ray already showed degeneration, he did not find that the subsequent May 2002
accident “was likely contributory to this process.”2
By decision dated November 3, 2008, the Office reviewed the claim on the merits, but
denied modification of the prior decisions terminating benefits.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.3 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
1

Docket No. 08-660 (issued July 9, 2008).
reference.

The Board’s July 9, 2008 decision is incorporated herein by

2

A cervical magnetic resonance imaging (MRI) scan also obtained on December 5, 2001 showed mild disc
degeneration at C5-6, a disc bulge at C5-6 with a small amount of central protrusion and minimal cervical canal
stenosis at C5-6. Appellant underwent another cervical MRI scan on June 8, 2006, which revealed a slight
progression of her C5-6 degenerative disc disease since December 5, 2001.
3

Curtis Hall, 45 ECAB 316 (1994).

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employment.4 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.5 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.6 Once the Office has properly modified or
terminated benefits, the burden of reinstating benefits shifts to the employee.7
ANALYSIS
As noted, the Board previously affirmed the Office’s decision to terminate appellant’s
compensation benefits effective June 9, 2006. The issue is whether appellant has demonstrated
that she has employment-related residuals after June 9, 2006.
Appellant does not claim that she continues to experience residuals of her accepted
cervical strain. However, she maintains that her February 5, 2000 employment-related MVA
was responsible for the development of her cervical degenerative disc disease. The Office
denied appellant’s C5-6 degenerative disc disease as employment related. Where an employee
claims that a condition not accepted or approved by the Office was due to an employment injury,
she bears the burden of proof to establish that the condition is causally related to the employment
injury.8
The only relevant medical evidence submitted since the Board’s prior review was
Dr. Hnilica’s August 27, 2008 report, who attributed appellant’s C5-6 disc degeneration to the
February 5, 2000 MVA. He also excluded her May 2002 MVA as a possible contributing factor
to her cervical degenerative disc disease. However, Dr. Hnilica’s August 27, 2008 report lacks
adequate rationale to support his opinion on causation. His opinion described the “rapid
progression of degeneration” reportedly exhibited between appellant’s February 5, 2000 and
December 5, 2001 cervical x-rays. The former x-ray was interpreted as exhibiting a normal
cervical spine and the latter film revealed “[m]ild cervical spondylosis” at C5.
Dr. Hnilica’s characterization of the noted progression as rapid degeneration appears
inconsistent with what one Board-certified radiologist characterized as “mild” or “minimal”
degeneration. The August 27, 2008 report is also of reduced probative value because other than
noting a temporal relationship between the February 5, 2000 MVA and the development of
4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

6

Calvin S. Mays, 39 ECAB 993 (1988).

7

Joseph A. Brown, Jr., 55 ECAB 542, 544 n. 5 (2004).

8

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). The physician’s opinion must be expressed in terms of a reasonable degree of medical certainty
and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factors. Id.

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cervical degenerative disc disease, Dr. Hnilica did not offer a reasoned explanation on how the
MVA contributed to appellant’s C5-6 degenerative disc disease. He also failed to offer any
clarification about the previously reported history of appellant having lost consciousness during
the February 5, 2000 MVA. For the above-noted reasons, the Board finds that Dr. Hnilica’s
August 27, 2008 report is insufficient to establish that appellant’s cervical degenerative disc
disease was caused or contributed to by the February 5, 2000 employment-related MVA.
CONCLUSION
The Board finds that appellant failed to establish that she has any injury-related residuals
after June 9, 2006.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2009
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
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clearwater, FL, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 10-2388
Issued: July 26, 2011

Oral Argument April 7, 2011

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 24, 2010 appellant timely appealed the April 23, 2010 merit decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of her claim for an
employment-related emotional condition. Pursuant to the Federal Employees’ Compensation
Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty on May 2, 2009.
FACTUAL HISTORY
Appellant, a 49-year-old letter carrier, filed a May 7, 2009 claim (Form CA-1) for both
physical and psychological injuries that occurred on May 2, 2009. She claimed she experienced
tremors and a panic attack due to a discussion with her supervisor, Robert “Danny” Chavez.
1

5 U.S.C. §§ 8101-8193 (2006).

During the May 2, 2009 meeting, Mr. Chavez allegedly bullied, belittled, verbally harassed and
threatened her. Appellant claimed he repeatedly told her she was not a “team player” because
she had an eight-hour medical restriction.2 She claimed she experienced anxiety and depression.
Appellant also claimed physical injuries that included headache, tremors, abdominal pain,
irritable bowel and sleeplessness. She stopped working on May 2, 2009 and returned to work on
May 15, 2009.
The May 2, 2009 discussion with Mr. Chavez stemmed from a work-related incident the
previous day. On the afternoon of May 1, 2009, appellant contacted Mr. Chavez to advise him
that she would not likely finish delivering her assigned mail route within eight hours. Because of
right leg and groin pain, she was limited to an eight-hour workday. On the afternoon of May 1,
2009, appellant needed approximately 20 minutes of assistance to complete the day’s mail
deliveries. She was prepared to return her undelivered mail to the postal facility so as not to
exceed her eight-hour work restriction. When first contacted it was unclear whether Mr. Chavez
would be able to provide the requested relief. He specifically advised appellant not to bring her
mail back to the facility. Appellant then contacted a union representative who reportedly advised
her to work only eight hours and to return the mail to the postal facility to ensure that she
clocked out within the eight-hour time frame imposed by her physician.
Mr. Chavez and appellant spoke again that afternoon and during this latter conversation
he asked if another carrier had contacted her. When appellant replied no, he told her that the
other carrier would be looking her up. She responded that the union advised her to return to the
facility in a couple minutes so that she could clock out in eight hours. Mr. Chavez again told
appellant not to bring back any mail. Appellant replied she would see him in a couple minutes
and then hung up.
As appellant was en route to the postal facility, she received a telephone call from another
carrier, Kenny Dawkins, who Mr. Chavez had dispatched to retrieve her undelivered mail. She
advised Mr. Dawkins of her location, pulled over to the side of the road and awaited his arrival.
After giving him her undelivered mail, appellant drove back to the postal facility. When
appellant arrived, she encountered Mr. Chavez who asked if she had turned the mail over to
Mr. Dawkins. She “jokingly” told him she brought the mail back to the facility with her.
Afterwards, appellant told Mr. Chavez she was just kidding. She then clocked out so as not to
exceed her eight-hour work restriction and proceeded to telephone the union. Appellant stated
that she intentionally placed the call in earshot of Mr. Chavez who overheard her say that she and
her coworkers were “‘treated like shit around here’” and that it was the worst office she had ever
been in.
On Saturday, May 2, 2009 at approximately 8:30 a.m., Mr. Chavez approached appellant
and asked if she could meet with him in the supervisor’s office. He wanted to go over the
previous day’s mail delivery and to correct any confusion regarding management’s instructions
and her performance. Appellant inquired whether she should have a union steward present.
Mr. Chavez told her it was a discussion and she was not entitled to union representation. During
the meeting he asked appellant to explain what a team player was. Appellant allegedly replied
2

As of April 21, 2009, appellant was restricted to an eight-hour workday due to right groin and right leg pain.

2

that it was “an individual that went above and beyond duty.” Mr. Chavez indicated that he asked
appellant if she believed that her performance, including her notification of bringing back mail,
personified her as a team player. Appellant reportedly did not respond. Mr. Chavez showed
appellant the employee labor manual and explained that she was to obey her supervisor’s
instructions even if she disagreed. He again informed her that she was not authorized to bring
back mail as she had attempted to do the previous day, and that the union was not management.
Mr. Chavez also stated that he reviewed with appellant the carriers’ handbook and explained
how all carriers were accountable for both their performance and their conduct.
Appellant alleged that the repeated statement that she was not a “team player” by
Mr. Chavez constituted harassment. She also stated that the discussion turned out to be
demeaning and that he bullied and belittled her. Mr. Chavez denied raising his voice, denied
making any threats and denied bullying or belittling appellant. He stated that he explained to her
his expectations based on her previously demonstrated ability. Mr. Chavez also stated “team”
player only once.
After the meeting appellant returned to her case and reported what had just happened to a
coworker, Pamela Murtha. She asked several coworkers if she was a team player. Appellant
stated that her hands were trembling so badly she thought she was having a panic attack.
Mr. Chavez stated that appellant started raising her voice once again in the work floor so he
approached her and asked if anything was wrong. Appellant advised him she was going home.
Mr. Chavez then asked her to step outside. Appellant requested a union steward and Mr. Chavez
granted her request. She, Joseph L. Spencer, a steward, and Mr. Chavez stepped outside to the
dock area. Mr. Chavez stated that he told her that he found it coincidental that she was now
threatening to go home as prior to their discussion she had clocked in and was ready to go to
work. He instructed appellant that upon returning to work she should provide proper medical
documentation to substantiate her absence.
Appellant characterized this second meeting with Mr. Chavez as bullying and belittling
her. She denied having raised her voice upon returning to the workroom floor following their
first discussion. Appellant decided to go home because her hands were shaking, she was stressed
and it was not safe to continue work that day. She alleged that Mr. Chavez told her again that
she was not a team player, and he tried to make her feel guilty for going home and for leaving
her mail route for her coworkers to deliver.
Mr. Spencer, appellant’s union steward, signed her Form CA-1 as a witness and also
provided a separate statement. He indicated that Mr. Chavez tried to make appellant feel guilty
about leaving by noting that her coworkers would have to carry her route. Mr. Spencer stated
that Mr. Chavez had no communication skills.
Ms. Murtha, appellant’s coworker, provided a statement. She indicated that, Jeanette
Thornton, another coworker, was standing next to the office door on May 2, 2009 and overheard
Mr. Chavez chastising appellant harshly and asking her if she was a “team player.” Ms. Murtha
and Ms. Thornton walked back to their respective cases and Ms. Thornton reportedly stated that
what she overheard was a verbal attack, not an official discussion. Ms. Murtha stated that, when
appellant returned to her own case, it was obvious she was upset. Appellant’s case was a few
cases over from Ms. Murtha’s and she reportedly raised her voice just enough to ask Ms. Murtha

3

for a telephone number where she could contact the union. Ms. Murtha went to appellant’s case
to help her with the numbers as appellant’s hands were trembling so bad she could not even dial.
She told appellant she was in no condition to drive a postal vehicle. Ms. Murtha stated that at no
time did appellant raise her voice or draw attention on the workroom floor “even though she had
just been verbally attacked by [Mr.] Chavez.” When appellant advised Mr. Chavez she was
leaving, he told her he wanted to talk. Appellant asked for a union representative and
Mr. Spencer joined appellant and Mr. Chavez on the dock. Approximately 10 minutes later,
appellant came into the office and clocked out. Ms. Murtha stated that appellant was visibly
upset and shaking from the morning’s incident with Mr. Chavez.
Four coworkers signed a typewritten statement attesting that appellant did not raise her
voice or yell upon entering the workroom floor following her initial May 2, 2009 meeting with
Mr. Chavez. In a supplemental statement dated June 15, 2009, Mr. Chavez reiterated that
appellant raised her voice once their discussion was over. She reportedly went over to
Ms. Murtha’s case and mockingly asked if she was a “team player.”
Appellant filed both a grievance and an Equal Employment Opportunity (EEO)
complaint. She alleged that on May 1, 2009 her employer attempted to force her to work beyond
her medically-documented limitations. Appellant also accused Mr. Chavez of belittling, berating
and yelling at her during an official discussion. She described the May 2, 2009 meeting with
Mr. Chavez as a malicious personal attack. The record does not include information regarding a
final resolution of appellant’s EEO complaint. As to her grievance, it was denied. During the
grievance process, the employer acknowledged that Mr. Chavez spoke in a militaristic tone. It
was prepared to have Mr. Chavez work on his tone and the way he talked to carriers. Appellant
also demanded that Mr. Chavez be removed from supervision. With respect to this latter
demand, the employer did not accommodate her request. Consequently, her grievance was
denied at step 2.
Appellant sought medical treatment at a local emergency room on May 2, 2009. She had
a follow-up appointment on May 7, 2009 with Dr. Eva Rachocka-Kaszuba, a Board-certified
internist, who diagnosed mood disorder with anxiety. Dr. Rachocka-Kaszuba excused appellant
from work for the period May 2 to 14, 2009. On May 19, 2009 appellant saw Dr. Mitchell B.
Cannell, a Board-certified psychiatrist, who diagnosed adjustment disorder with depressed mood,
chronic. Appellant also had a June 11, 2009 counseling session through the employee assistance
program (EAP).
In a June 22, 2009 decision, OWCP denied the claim finding appellant had not
established a compensable employment factor. It noted that Mr. Chavez denied that he had
threatened, bullied or belittled appellant. OWCP further found that the May 2, 2009
performance counseling discussion was an administrative matter and appellant had not
established that Mr. Chavez either erred or acted in an abusive manner. By decision dated
April 23, 2010, the Branch of Hearings and Review affirmed the June 22, 2009 decision.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting

4

employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.4 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or to hold a particular position.5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside the scope of FECA.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.8
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with
probative and reliable evidence.9 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter, the Office must base
its decision on an analysis of the medical evidence.10
ANALYSIS
Appellant filed a traumatic injury claim (Form CA-1) alleging that her interactions with
Mr. Chavez on May 2, 2009, caused or contributed to her anxiety/depression, tremors and
irritable bowel. She did not implicate the previous day’s events as a contributing cause or factor
3

See Kathleen D. Walker, 42 ECAB 603 (1991).

4

Pamela D. Casey, 57 ECAB 260, 263 (2005).

5

Lillian Cutler, 28 ECAB 125, 129 (1976).

6

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

7

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

8

Id.

9

Kathleen D. Walker, supra note 3.

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).

5

in her claimed psychological and physical conditions. Appellant did not attribute her emotional
condition to her regular or specially assigned duties. Appellant did not allege, nor is there
evidence to suggest that she was either required to or did in fact work beyond her eight-hour
medical restriction on May 2, 2009.11 The record indicates that she reported to work on the
morning of May 2, 2009, and briefly performed some of her duties at her workstation prior to
meeting with Mr. Chavez. After meeting with Mr. Chavez, appellant did not resume her letter
carrier duties, but instead took sick leave and ultimately left the employing establishment
premises. She did not allege that the claimed emotional and/or physical conditions were a
consequence of performing her regularly or specially assigned duties on May 2, 2009. Appellant
has not established a compensable employment factor under Cutler.12
The meeting between appellant and Mr. Chavez at approximately 8:30 a.m. on Saturday,
May 2, 2009 was an administrative matter. The purpose of the meeting was to review
appellant’s performance the previous day. Assigning work and monitoring performance are
administrative functions of a supervisor.13 The manner in which a supervisor exercises his
discretion generally falls outside FECA’s coverage. This principle recognizes that supervisors
must be allowed to perform their duties, and at times employees will disagree with their
supervisor’s actions. Mere dislike or disagreement with certain supervisory actions will not be
compensable absent error or abuse on the part of the supervisor.14
Appellant did not challenge Mr. Chavez’s authority to evaluate her job performance. She
attributed her condition to his demeanor or comportment during the course of the May 2, 2009
meeting, not the subject matter of their discussion. Appellant alleged that Mr. Chavez verbally
harassed, threatened, bullied and belittled her. Verbal altercations and difficult relationships
with supervisors, when sufficiently detailed and supported by the record, may constitute
compensable factors of employment.15 This does not imply that every ostensibly abusive or
threatening statement uttered in the workplace will give rise to coverage under FECA.16 For
appellant to prevail on her claim, she must support her allegations with probative and reliable
evidence.17
Other than claiming that Mr. Chavez repeatedly asked her if she was a “team player,”
appellant has not provided sufficient evidence to support her allegation that he verbally harassed,
threatened, bullied and belittled her on May 2, 2009. Mr. Chavez acknowledged asking
11

The Board has held that being required to work beyond one’s physical limitations may constitute a
compensable employment factor if such activity is substantiated by the record. See D.L., 58 ECAB 217, 220 (2006).
12

Supra note 5.

13

Donney T. Drennon-Gala, 56 ECAB 469, 475 (2005); Beverly R. Jones, 55 ECAB 411, 416 (2004); Charles D.
Edwards, 55 ECAB 258, 270 (2004).
14

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

15

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

16

Fred Faber, 52 ECAB 107, 109 (2000).

17

See Kathleen D. Walker, supra note 3.

6

appellant about being a team player, but he denied doing it repeatedly. He also denied raising his
voice or making any threats. Moreover, Mr. Chavez denied bullying or belittling appellant.
In her statement, Ms. Murtha indicated that appellant had “been verbally attacked by
[Mr.] Chavez.” However, she did not personally witness any incidents of verbal abuse. A
coworker, Ms. Thornton, was reportedly standing next to the office door and overheard
Mr. Chavez chastising appellant harshly and asking her if she was a “team player.” There is,
however, no statement from Ms. Thorton. Ms. Murtha’s second-hand account of what transpired
that morning does not establish verbal abuse. Under the circumstance, inquiring whether
someone is a “team player” does not by itself establish verbal abuse. The Board finds that
appellant has not demonstrated that Mr. Chavez was verbally abusive during their initial meeting
on the morning of May 2, 2009.
The second meeting with Mr. Chavez regarding appellant’s anticipated early departure
also pertained to an administrative matter. Although time and attendance issues are generally
related to the employment, they are administrative functions of the employer, and not duties of
the employee.18 Again, appellant alleged that Mr. Chavez was belittling and tried to make her
feel bad for leaving by noting that her coworkers would have to carry her route. She also noted
that Mr. Chavez asked that she provide medical documentation upon returning to work.
Mr. Spencer, who was present during this latter conversation, did not corroborate appellant’s
allegation of verbal abuse. He did not provide a statement describing any specific abusive
language or behavior. Mr. Spencer confirmed that Mr. Chavez requested medical documentation
to support appellant’s unscheduled leave request and that he also mentioned that appellant’s
coworkers would have to carry her route that day. Other than expressing his opinion that
Mr. Chavez was trying to make appellant feel guilty for leaving work early, Mr. Spencer did not
provide evidence of verbal abuse. He commented generally that Mr. Chavez had no
communication skills when it came to talking to employees, but did not elaborate.
Appellant has not demonstrated that Mr. Chavez was verbally abusive during either of
their two meetings on May 2, 2009. Her allegations that he harassed, threatened, bullied and
belittled her are both vague and unsubstantiated. The record does not support a finding of verbal
abuse, and the mere fact that appellant filed an EEO compliant and a grievance does not establish
error or abuse on the part of her employer.19 Because appellant failed to establish a compensable
factor of employment, OWCP properly denied her claim without addressing the medical
evidence of record.20

18

T.G., 58 ECAB 189, 197 (2006); Joe M. Hagewood, 56 ECAB 479, 488 (2005).

19

Grievances and EEO complaints do not establish that workplace harassment or unfair treatment occurred.
Charles D. Edwards, 55 ECAB 258, 266 (2004). Furthermore, absent an admission of fault, a settlement agreement
does not establish error or abuse on the part of the employing establishment. Kim Nguyen, 53 ECAB 127,
128 (2001).
20

Garry M. Carlo, supra note 10.

7

CONCLUSION
Appellant failed to establish that she sustained an emotional condition in the performance
of duty on May 2, 2009.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Corpus Christi, TX
Employer
__________________________________________

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

Docket No. 19-0148
Issued: May 16, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 26, 2018 appellant filed a timely appeal from an October 3, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted August 30, 2017 employment incident.
FACTUAL HISTORY
On November 3, 2017 appellant, then a 59-year-old customer logistics site specialist, filed
a traumatic injury claim (Form CA-1) alleging that on August 30, 2017 he sustained a lower back
1

5 U.S.C. § 8101 et seq.

muscle strain when picking up debris from the floor while in the performance of duty. On the
reverse side of the claim form, the employing establishment indicated that he stopped work on
August 30, 2017 and returned to work on August 31, 2017.
In a development letter dated November 9, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish his claim and advised him of the medical evidence
needed to establish his claim. It afforded him 30 days to submit the necessary evidence.
By decision dated December 13, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis causally related
to the accepted August 30, 2017 employment incident.
In a report dated August 30, 2017, received by OWCP on January 11, 2018 Angela M.
Kastl, a nurse practitioner, examined appellant and noted a primary impression of back pain.
On January 22, 2018 appellant requested reconsideration of OWCP’s December 13, 2017
decision.
Appellant submitted a discharge summary dated August 30, 2017, received by OWCP on
January 22, 2018, from Dr. Steven Kastl, Board-certified in internal medicine, who indicated in
the “diagnoses” section of the report that appellant suffered from back pain. In discharge
instructions dated August 30, 2018, received by OWCP on January 22, 2018, Dr. Harold L.
Schwab III, an osteopathic physician Board-certified in emergency medicine, indicated that
appellant suffered from back pain.
By decision dated January 31, 2018, OWCP denied modification of its December 13, 2017
decision, finding that the medical evidence submitted did not contain a firm diagnosis causally
related to the accepted August 30, 2017 employment incident.
On April 3 and July 6, 2018 appellant twice resubmitted the report and discharge
instructions dated August 30, 2017 from Dr. Schwab and the nurse practitioner.
On July 6, 2018 appellant requested reconsideration.
By decision dated October 3, 2018, OWCP denied modification of its January 31, 2018
decision, finding that the record did not contain medical evidence in which a physician described
a complete and accurate history of the injury, with a definitive diagnosis and unequivocal medical
opinion outlining causal relationship between the claimed employment-related incident and a
diagnosis, supported with medical rationale.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
2

Id.

2

time limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established. A
fact of injury determination is based on two elements. 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 sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal
injury. An employee may establish that the employment incident occurred as alleged, but fail to
show that a medical condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.6 Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on whether there is causal
relationship between the employee’s diagnosed condition and the compensable employment
factors.7 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 30, 2017 employment incident.
In a report dated August 30, 2017, Ms. Kastl, a nurse practitioner, examined appellant and
noted a primary impression of back pain. The Board has held that medical reports signed solely
by a nurse practitioner are of no probative value as a nurse practitioner is not considered a
physician as defined under FECA and, therefore, is not competent to provide a medical opinion.9
3

L.C., Docket No. 18-1134 (issued January 17, 2019); see T.H., 59 ECAB 388, 393 (2008).

4

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

5

Id.

6

E.J., Docket No. 18-0207 (issued July 13, 2018); A.D., 58 ECAB 149 (2006).

7

L.C., supra note 3; see J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB
379 (2008).
8

P.R., Docket No. 18-0737 (issued November 2, 2018).

9

K.C., Docket No. 18-1330 (issued March 11, 2019); see 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 only if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013).

3

Consequently, Ms. Kastl medical findings will not suffice for purposes of establishing entitlement
to FECA benefits.10
In addition, appellant submitted a discharge summary dated August 30, 2017, from
Dr. Kastl, and discharge instructions from Dr. Schwab who related that appellant suffered from
back pain. Neither Dr. Kastl nor Dr. Schwab offered further diagnoses or opinion as to the cause
of appellant’s condition. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 Thus, the Board finds that the reports from Drs. Kastl and Schwab are insufficient
to meet appellant’s burden of proof.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to the accepted August 30,
2017 employment incident. Appellant, therefore, has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted August 30, 2017 employment incident.

10
5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law);
20 C.F.R. § 10.5(t). See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); K.S., Docket
No. 18-0954 (issued February 26, 2019); K.W., id.
11

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

4

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, FORT POINT POST
OFFICE, Boston, MA, Employer
__________________________________________

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Appearances:
John L. Degeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1634
Issued: August 25, 2020

Case Submitted on the Record

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

JURISDICTION
On July 29, 2019 appellant, through counsel, filed a timely appeal from a February 11,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 20,
2020, the Board exercised its discretion and denied the request finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 19-1634 (issued
August 20, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral
osteoarthritis of the knees causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On November 27, 2017 appellant, then a 67-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed osteoarthritis of his knees due to factors of
his federal employment. In a separate statement, he indicated that his job required him to be on
his feet essentially all day while moving mail, packages, and tubs weighing up to 70 pounds;
operating a riding jack for loading and unloading postal vehicles; and moving heavy pallets and
postal containers. Appellant noted that he first became aware of his condition and its relation to
his federal employment on October 26, 2017. On the reverse side of the claim form, the employing
establishment indicated that he had voluntarily retired on August 31, 2016.
In a report dated September 28, 2015, Dr. Owen R. McConville, a Board-certified
orthopedist, noted that appellant reported being an avid racquetball player who injured his knee
and experienced episodic pain. He diagnosed degenerative arthritis of the right knee by x-ray. On
November 16, 2015 and March 21, 2016 Dr. McConville reevaluated appellant for recurrent right
knee swelling, occasional popping, and catching. Appellant reported experiencing discomfort
while performing activities at work. Dr. McConville diagnosed possible meniscal injury and mild
degenerative arthritis.
On February 6, 2016 Dr. Justin W. Kung, a Board-certified radiologist, reviewed x-rays of
appellant’s right knee dated September 28, 2015 revealing mild spurring in the lateral
compartment reflecting degenerative change. On July 13, 2016 he reviewed a left knee radiograph
which revealed mild degenerative changes in the left medial compartment.
A magnetic resonance imaging scan of the right knee dated March 25, 2016 revealed a
complete anterior cruciate ligament tear, lateral meniscal posterior horn tear, medial translocation
of the femur, chondromalacia, and joint effusion.
In an April 5, 2016 report, Dr. McConville noted that appellant had a right knee injury he
apparently sustained while playing golf. He diagnosed degenerative arthritis of the knee, meniscal
tear, and osteoarthritis. On April 21, 2016 Dr. McConville performed a right knee arthroscopy
with partial medial and lateral meniscectomy and diagnosed medial meniscus tear, degenerative
arthritis, and lateral meniscal tear. He evaluated appellant in follow up on April 29, 2016 and
diagnosed status post right knee arthroscopy with partial medial and lateral meniscectomy.
Dr. Byron V. Hartunian, a Board-certified orthopedist, treated appellant on October 26,
2017 for complaints of pain in both knees, stiffness with restriction in mobility, occasional
3

5 U.S.C. § 8101 et seq.

2

instability of the right knee, and status post arthroscopic surgery on April 21, 2016. Appellant
reported injuring his right knee while playing racquetball and underwent repair of the medial
meniscus. He described working on his feet most of the day, lifting, carrying and moving up to
70 pounds, pulling postal containers weighing up to 1,000 pounds, and operating a riding jack for
loading and unloading postal vehicles. Appellant also noted that his job required repetitive
stooping, squatting, twisting, bending, and lifting. Dr. Hartunian diagnosed primary right and left
knee joint arthritis with 3 millimeter cartilage interval at medial femorotibial joint. He opined that
appellant had degenerative osteoarthritis of both knees that was most likely permanently
aggravated by his work activities including lifting, stooping, squatting, twisting, and bending.
Dr. Hartunian found that, over time, appellant’s bilateral knee cartilage was degraded to the point
that he lost significant joint space causing a permanent alteration in his anatomy. He further opined
that the job of a mail handler, over a 26-year career, hastened appellant’s osteoarthritis because of
the continuous walking, stooping, and squatting. Dr. Hartunian indicated that arthritis was caused
by a biological/chemical process where excessive impact loading and repeated local stresses on
the cartilage surface result in chronic inflammation which causes a chemical change in the cartilage
resilience. The cartilage becomes more susceptible to wear and tear from impact loading activities
which results in accelerated loss of articular cartilage as a result of those activities as was
documented in appellant’s case. Dr. Hartunian concluded that the high impact loading work
activities engaged in by appellant contributed to the development and progression of his bilateral
knee arthritis.
In a February 6, 2018 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested that he submit additional factual and medical evidence and provided a
questionnaire for his completion. In a separate letter of even date, OWCP also requested additional
information from the employing establishment. It afforded both parties 30 days to respond.
In reports dated July 28 and September 14, 2017, Dr. Iraj Aghadasi, a Board-certified
internist, diagnosed unspecified osteoarthritis, asthma, and inflammatory spondylopathy. An xray of the right knee dated July 20, 2017 revealed mild tricompartmental degenerative changes.
On August 16, 2017 Dr. McConville diagnosed mild osteoarthritis of both knees, status
post arthroscopic surgery on the right knee in 2016 with improved knee function.
In an office visit note dated August 16, 2017, Dr. Kung reviewed right knee radiographs
taken that day which revealed medial compartment joint space interval measuring 3 millimeters,
lateral compartment joint space interval measuring 4 millimeters, with mild spurring. The left
knee radiograph revealed medial compartment joint space interval measuring 3 millimeters, and
lateral compartment joint space interval measuring 5.5 millimeters.
A March 2, 2018 statement from J.R., supervisor of distribution operations, indicated that
appellant’s duties consisted of operating a motorized riding pallet jack which did the majority of
lifting and moving containers of mail and he had a break every two hours.
In a March 2, 2018 response to OWCP’s February 6, 2018 development letter, appellant
indicated that he had injured his right knee while playing racquetball 20 to 30 years prior. He
underwent arthroscopic surgery for that injury and remained asymptomatic until 2014 to 2015. On
March 23, 2018 appellant responded to J.R.’s statement and indicated that while operating a riding

3

pallet jack appellant would bend his knees, twist to steer the jack, and stoop and squat when
entering trucks with a low overhead.
By decision dated June 4, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence of record was insufficient to establish causal relationship
between his bilateral knee osteoarthritis and the accepted factors of his federal employment.
On June 15, 2018 appellant, through his then-counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on
November 29, 2018. In support of his request he submitted a November 20, 2018 report from
Dr. Hartunian who indicated that as a mail handler and equipment operator appellant moved large
volumes of mail in tubs and containers which required lifting, stooping, squatting, twisting, and
bending, and contributed to the progression of his knee arthritis. He diagnosed bilateral
degenerative osteoarthritis.
On November 24, 2018 appellant further described his work duties and reported operating
a motorized pallet jack that did not have a seat and constantly bending his knees and twisting to
operate the steering column. He submitted a statement from R.K, a retired supervisor of
distribution operations, who advised that appellant’s position required him to bend, flex, stoop,
and twist in a repetitive manner. Another statement from R.A., a mail handler, advised that
appellant was required to unload and load trucks, breakdown mail, lift, bend, twist, and stoop on
hard surfaces.
By decision dated February 11, 2019, an OWCP hearing representative affirmed the
June 4, 2018 decision.
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 timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
4

Id.

5

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).

4

employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In his report dated October 26, 2017, Dr. Hartunian opined that appellant had bilateral
osteoarthritis that was permanently aggravated by his work activities including lifting, stooping,
squatting, twisting, and bending. He opined that over time the cartilage of appellant’s knees was
degraded to the point that appellant lost significant joint space which was a permanent alteration
in his anatomy. Dr. Hartunian provided a proper factual and medical history of injury, noting that
appellant’s 26-year history as a mail handler hastened his osteoarthritis because of the continuous
walking, stooping, and squatting. He explained that arthritis was caused by a biological/chemical
process where excessive impact loading and repeated local stresses on the cartilage surface resulted
in chronic inflammation and caused a chemical change in the cartilage resilience. Dr. Hartunian
indicated that the cartilage became more susceptible to wear and tear from impact loading activities
which resulted in accelerated loss of articular cartilage as a result of those activities as was
documented in appellant’s case. In conclusion he opined that the high impact loading work

8

See T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
9

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

E.W., supra note 5; Gary L. Fowler, 45 ECAB 365 (1994).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

5

activities in which appellant engaged in contributed to the development and progression of his
bilateral knee arthritis.
The Board finds that this report from Dr. Hartunian is sufficient to require further
development of the medical evidence. Dr. Hartunian is a Board-certified physician in orthopedics
who is qualified in his field of medicine to render rationalized opinions on the issue of causal
relationship and he provided a comprehensive understanding of the medical record and case
history. His report provides a pathophysiological explanation as to how appellant’s lifting,
stooping, squatting, twisting, and bending at work resulted in his diagnosed bilateral knee
osteoarthritis. The Board has long held that it is unnecessary that the evidence of record in a case
be so conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.13 Accordingly, Dr. Hartunian’s medical opinion is well-rationalized and
logical and is therefore sufficient to require further development of appellant’s claim.14
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 OWCP has an obligation to see that justice is
done.16
On remand OWCP shall refer appellant, a statement of accepted facts, and the medical
record to an appropriate specialist. The chosen physician shall provide a rationalized opinion as
to whether the diagnosed conditions are causally related to the accepted factors of appellant’s
federal employment. If the physician opines that the diagnosed conditions are not causally related,
he or she must explain, with rationale, how or why the opinion differs from that of Dr. Hartunian.
Following this and such other further development as deemed necessary, OWCP shall issue a de
novo decision on appellant’s claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
14

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
15

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
16
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 25, 2020
Washington, DC

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

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

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

7