United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE NAVY, U.S. NAVAL
ACADEMY, Annapolis, MD, Employer
__________________________________________

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Appearances:
Stephen J. Dunn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1991
Issued: January 27, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 26, 2013 appellant, through her counsel, timely appealed the February 25,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has greater than 32 percent impairment of the lungs.

1

An appeal is considered filed upon receipt by the Clerk of the Board. 20 C.F.R. § 501.3(f). The notice of
appeal must be filed within 180 days from the date of issuance (February 25, 2013) of an OWCP decision. Id. at
§ 501.3(e). In this instance, the 180th day fell on a weekend; Saturday, August 24, 2013. Under the circumstances,
the period for filing is extended to the “close of the next business day,” which is Monday, August 26, 2013. Id. at
§ 501.3(f)(2). The notice of appeal was received by the Clerk of the Board on August 26, 2013, which renders the
appeal timely. Id.
2

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
Appellant, a 74-year-old retired laundry worker, has an accepted occupational disease
claim for aggravation of intrinsic asthma, which arose on or about October 1, 1992.3 As a result
of prolonged asthma-related steroid (Prednisone) usage, appellant developed aseptic necrosis in
her hips and knees, which OWCP accepted as a consequential injury. OWCP granted schedule
awards totaling 56 percent bilateral lower extremity impairment.4
By decision dated March 10, 2010, OWCP granted appellant an award for 32 percent
impairment of both lungs.5 The schedule award covered a period of 49.92 weeks. OWCP based
its decision on an August 2, 2009 report.6 Applying Table 5-5, Asthma, A.M.A., Guides 90 (6th
ed. 2008), the DMA found class 3 impairment based on appellant’s regular steroid usage, which
represented a (default/grade C) whole person impairment of 32 percent.
On November 4, 2011 appellant filed a claim for an additional schedule award. OWCP
received a September 22, 2011 impairment rating from Dr. Jeffrey D. Gaber, a Board-certified
internist. With respect to appellant’s asthma, he found 50 percent whole person impairment
under Table 5-5, A.M.A., Guides 90 (6th ed. 2008). Dr. Gaber explained that appellant was
steroid dependent and her asthma was not controlled by treatment, thus representing class 4
impairment. He obtained a pulmonary function study with a best effort forced expiratory volume
(FEV1 ) that was 35 percent of predicted. Dr. Gaber characterized the spirogram as consistent
with severe restriction and obstruction.
In a December 20, 2011 letter, appellant’s counsel challenged the previous schedule
award on the basis that OWCP incorrectly calculated the number of weeks’ compensation
appellant was entitled to receive. Based on the 32 percent whole person impairment rating,
appellant should have received 99.84 weeks’ compensation instead of 49.92 weeks. Counsel
argued that OWCP erroneously based the March 10, 2010 award on impairment of a single lung
(0.32 x 156 weeks) rather than both lungs (0.32 x 312 weeks).7 He also argued that appellant’s
asthma-related impairment had since worsened, citing to Dr. Gaber’s September 22, 2011 rating
of 50 percent whole person impairment.

3

Appellant worked as a presser at the employing establishment’s laundry and dry cleaning facility. She attributed
her respiratory distress to exposure to dry cleaning fumes, mist and dust.
4

OWCP’s latest bilateral lower extremity award was dated July 13, 2012, and included a combination of
impairments affecting appellant’s hips and knees.
5

The award was based on the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2008).
6

Dr. Arnold T. Berman, a Board-certified orthopedic surgeon and district medical adviser (DMA), reviewed,
inter alia, the April 8, 2008 examination findings of Dr. Natvarlal K. Rajpara, a Board-certified internist with a
subspecialty in pulmonary disease. OWCP referred appellant to Dr. Rajpara.
7

The applicable regulation provides that compensation for total loss of use of one lung is 156 weeks. 20 C.F.R.
§ 10.404(b).

2

After referring Dr. Gaber’s report to the DMA, OWCP issued a February 28, 2012
decision denying appellant’s claim for additional impairment due to asthma.8 OWCP also found
it had properly calculated the weeks of compensation payable under the March 10, 2010
schedule award.
By decision dated July 13, 2012, OWCP again denied an additional schedule award for
pulmonary/lung impairment.9
Appellant’s counsel requested an oral hearing which was held on October 23, 2012.
Following the hearing, counsel submitted a November 1, 2012 report from Dr. Gaber who
recently examined appellant and found 55 percent whole person impairment due to asthma under
Table 5-5, A.M.A., Guides 90 (6th ed. 2008).10 He noted having previously examined appellant
on at least five occasions between October 2004 and September 2011. With respect to
appellant’s pulmonary situation, Dr. Gaber indicated that she continued to go to the emergency
room periodically and required increasing amounts of various inhalers. He also noted that
appellant frequently used Prednisone for flare-ups. Appellant reportedly used her inhalers that
same morning. Her chest examination revealed markedly diminished breath sounds and
background wheezing. Dr. Gaber also administered a pulmonary function study (PFS) that
revealed a best effort FEV1 of 69 percent of predicted.11 The results were consistent with
moderate restriction. Dr. Gaber reiterated that appellant had used her inhalers that morning and
was on Prednisone.
In finding 55 percent whole person impairment under Table 5-5, A.M.A., Guides 90 (6th
ed. 2008), Dr. Gaber explained that appellant best fit a class 4 impairment because she was
basically steroid dependent and her asthma was “noncontrolled.” The 55 percent whole person
rating represented the default grade C for class 4 asthma impairment under Table 5-5. Dr. Gaber
commented that there was no such thing as rating each lung individually. He also noted that
appellant’s situation had declined since he last saw her. Lastly, Dr. Gaber indicated that
appellant reached maximum medical improvement and that her current condition remained
related to her 1992 employment exposure.

8

In a report dated February 5, 2012, Dr. Berman reaffirmed his August 2, 2009 finding of 32 percent whole
person impairment. He explained that the rating represented 16 percent impairment for each lung. While
Dr. Berman acknowledged Dr. Gaber’s 50 percent whole person impairment rating, he did not otherwise explain
why there was no change in his prior recommendation of 32 percent impairment.
9

In separate decisions also dated July 13, 2012, OWCP expanded appellant’s claim to include bilateral aseptic
necrosis of the hip and awarded an additional (6 percent) bilateral lower extremity impairment for a total of 56
percent for each lower extremity. See supra note 4.
10

Dr. Gaber also provided an impairment rating regarding appellant’s lower extremities. His specific findings in
this regard have been omitted because the extent of appellant’s bilateral lower extremity impairment is not currently
at issue.
11

Dr. Gaber’s narrative report incorrectly noted the November 1, 2012 FEV1 as 60 percent of predicted. The
accompanying PFS report reveals that Dr. Gaber mistakenly switched the latest FVC (60 percent) and FEV1 (69
percent) results.

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In a decision dated December 18, 2012, the hearing representative set aside OWCP’s
July 13, 2012 decision and remanded case for further medical development in light of
Dr. Gaber’s November 1, 2012 impairment rating.12
On February 10, 2013 Dr. Berman reviewed Dr. Gaber’s November 1, 2012 impairment
rating. He disagreed with Dr. Gaber’s assessment of class 4 impairment under Table 5-5,
A.M.A., Guides 90 (6th ed. 2008). One of the criteria for class 4 designation is that the
individual’s asthma is “not controlled by treatment.”13 Dr. Berman indicated that appellant’s
asthma was controlled by treatment and, therefore, Dr. Gaber’s 55 percent award was
unacceptable. Consequently, he saw no basis for changing his previous rating of 32 percent
impairment of the lungs.
By decision dated February 25, 2013, OWCP denied an additional schedule award. It
found that the medical evidence did not support an increase in the impairment already
compensated.
On appeal, counsel argued that OWCP improperly based its 32 percent award on
impairment of a single lung (0.32 x 156 weeks) rather than both lungs (0.32 x 312 weeks). He
also argued that appellant’s pulmonary impairment worsened as evidenced by Dr. Gaber’s
November 1, 2012 finding of 55 percent whole person impairment due to uncontrolled asthma.
Counsel did not specifically challenge OWCP’s finding with respect to appellant’s bilateral
lower extremity impairment.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.14 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.15 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).16

12

The hearing representative also set aside OWCP’s July 13, 2012 bilateral lower extremity award based on the
mistaken belief that OWCP had not yet accepted appellant’s bilateral hip condition and associated impairment. See
supra notes 4 and 9.
13

A.M.A., Guides 90 (6th ed. 2008) Table 5-5.

14

5 U.S.C. § 8107(c).

15

20 C.F.R. § 10.404.

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (February 2013).

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No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.17 The list of schedule members includes
the eye, arm, hand, fingers, leg, foot and toes.18 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.19 By authority granted under FECA, the
Secretary of Labor expanded the list of schedule members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina and skin.20 Neither FECA nor
the regulations provide for the payment of a schedule award for the permanent loss of use of the
back or the body as a whole.21 Compensation for total loss of use of a single lung is 156
weeks.22
Although FECA does not specifically provide for compensation for whole person
impairment, the measurement of lung function warrants special consideration. Table 5-5,
Asthma, A.M.A., Guides 90 (6th ed. 2008), provides whole person impairment ratings based on a
designated class (0-4) of impairment. Depending on the assigned class, the range of whole
person impairment due to asthma is 0 to 65 percent. The procedure manual provides that lung
impairment should be evaluated in accordance with the A.M.A., Guides insofar as possible. It
further provides that schedule awards are based on the loss of use of both lungs, and the
percentage for the particular class of whole person respiratory impairment will be multiplied by
312 weeks (twice the award for loss of function of one lung) to obtain the number of weeks
payable.23
ANALYSIS
In March 2010, OWCP granted a schedule award for 32 percent impairment of both
lungs. In his August 2, 2009 report, Dr. Berman, the DMA, found 32 percent whole person
impairment under Table 5-5, Asthma, A.M.A., Guides 90 (6th ed. 2008). He determined that
appellant had class 3 impairment due to asthma based on her regular steroid usage. Under Table
5-5, the default grade C for class 3 impairment is 32 percent whole person impairment. Counsel
does not contest Dr. Berman’s August 2, 2009 impairment rating, but instead takes issue with
OWCP’s award of only 49.92 weeks’ compensation based on the DMA’s finding. He also
argues that appellant’s lung impairment has worsened since the March 10, 2010 schedule award.

17

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

18

5 U.S.C. § 8107(c).

19

Id.

20

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(b).

21

Id. at § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

22

20 C.F.R. § 10.404(b).

23

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(c)(1); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.4d(1)(c).

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Appellant’s physician, Dr. Gaber, provided impairment ratings dated September 22, 2011
and November 1, 2012. He initially found 50 percent whole person impairment under Table 5-5,
A.M.A., Guides 90 (6th ed. 2008), but based on his most recent November 1, 2012 rating,
appellant’s asthma-related impairment had increased to 55 percent. In both instances, Dr. Gaber
found class 4 impairment on the basis that appellant’s asthma was not controlled by treatment.24
Dr. Berman reviewed Dr. Gaber’s latest impairment rating and found it unacceptable because
appellant’s asthma was controlled by treatment. The basis for Dr. Gaber’s finding that
appellant’s asthma is “noncontrolled” is not readily apparent from either of his reports. Absent a
rationalized explanation for Dr. Gaber’s assignment of class 4 impairment, appellant has failed to
establish that she has greater than 32 percent impairment of the lungs.
While the current medical evidence does not support impairment in excess of the prior 32
percent award, the Board finds that OWCP improperly calculated appellant’s March 10, 2010
schedule award based on loss of function of one lung (156 weeks). Schedule awards are based
on the loss of use of both lungs, and the percentage for the particular class of whole person
respiratory impairment will be multiplied by 312 weeks (twice the award for loss of function of
one lung) to obtain the number of weeks payable.25 As noted, Dr. Berman previously found 32
percent whole person impairment under Table 5-5, A.M.A., Guides 90 (6th ed. 2008).
Multiplying the 32 percent whole person impairment by 312 weeks, appellant is entitled to
receive 99.84 weeks’ compensation. OWCP paid her 49.92 weeks’ compensation. Accordingly,
appellant is entitled to an additional 49.92 weeks’ compensation.
Appellant has not submitted sufficient medical evidence to establish greater than 32
percent impairment of the lungs. She may request a schedule award or increased schedule award
based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
CONCLUSION
Appellant failed to establish that she has greater than 32 percent impairment of the lungs.
Based on her previously demonstrated level of impairment due to employment-related asthma
(32 percent whole person), appellant is entitled to 99.84 weeks’ compensation.

24

The default grade C for class 4 impairment is 55 percent whole person impairment. See Table 5-5, A.M.A.,
Guides 90 (6th ed. 2008).
25

See supra note 24.

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ORDER
IT IS HEREBY ORDERED THAT the February 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: January 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
D.H., Appellant
and
DEPARTMENT OF LABOR, EMPLOYEE
BENEFITS SECURITY ADMINISTRATION,
Atlanta, GA, Employer
________________________________________

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

Docket Nos. 20-0041 & 20-0261
Issued: February 5, 2021

Case Submitted on the Record

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

JURISDICTION
On October 4, 2019 appellant filed a timely appeal from a July 26, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP) and the Clerk of the Appellate Boards
assigned Docket No. 20-0041. On October 16, 2019 she filed a timely appeal from a
September 30, 2019 merit decision of OWCP and the Clerk of the Appellate Boards assigned
Docket No. 20-0261. 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 30, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issue are: (1) whether appellant has met her burden of proof to establish that the
acceptance of her claim should be expanded to include an emotional condition causally related to
the accepted April 9, 2013 employment injury; and (2) whether appellant has met her burden of
proof to establish a recurrence of total disability commencing March 6, 2014 causally related to
her accepted April 9, 2013 employment injury and an expansion of the accepted work-related
conditions in her shoulders and neck.
FACTUAL HISTORY
On April 10, 2013 appellant, then a 44-year-old pension investigator, filed a traumatic
injury claim (Form CA-1) alleging that on April 9, 2013 she developed soreness on her right side
after she was involved in a motor vehicle accident while in the performance of duty. On the reverse
side of the claim form, appellant’s supervisor acknowledged that she was injured while in the
performance of duty and that she stopped work at 12:00 a.m. on April 10, 2013.
OWCP subsequently received a statement from a supervisory investigator who recounted
that while appellant was operating a government vehicle, a tire blew out on “18-wheeler” in front
of her, causing her to hit some large truck tire debris. The supervisory investigator further noted
that appellant nearly lost control of her vehicle and hit the median wall.
On May 14, 2013 OWCP accepted the claim for neck sprain and bilateral shoulder sprain.
In a May 16, 2013 report, Dr. Rashante Harris, a family medicine specialist, noted
appellant’s history of injury and diagnosed muscle spasms and strains. She noted that appellant
had not been able to work since the date of her injury; however, she was capable of returning to
work on May 13, 2013 without limitations. Appellant returned to full-time, regular-duty work on
May 17, 2013.
In reports dated February 17 and 24, 2014, Dr. Aly Ahmed, a psychiatrist, indicated that
appellant had been receiving treatment since June 2013 for severe depression, post-traumatic stress
disorder (PTSD), and severe anxiety with panic attacks.3 He opined that the onset of her symptoms
began during a traumatic accident which had left appellant with bilateral shoulder, neck, and upper
back pain. Dr. Ahmed noted that appellant had suffered from chronic pain daily and that due to
the severity of her symptoms he opined that her cognitive and psychological level of functioning
had declined.4 He indicated that due to her work-related conditions that she was unable to work.
In a March 5, 2014 narrative statement, appellant indicated that she was undergoing
treatment for severe depression, PTSD, and severe anxiety with panic attacks. She requested that
the acceptance of her claim be expanded to include these additional conditions.

3

Dr. Ahmed indicated that appellant also received counseling from Dorothy Watts, a licensed clinical social
worker, and he cosigned her reports.
4

Appellant submitted physical therapy notes in support of her claim.

2

On March 7, 2014 appellant filed a claim for compensation (Form CA-7) for disability
from work for the period March 6 to 7, 2014.
In a March 19, 2014 letter, OWCP advised appellant of the deficiencies of her wage-loss
claim. It noted that she had returned to full-time, regular-duty employment on May 17, 2013 and
if she was claiming a total disability from work from March 6 to 7, 2014, then she should have
filed a notice of recurrence (Form CA-2a). OWCP indicated that no further action would be taken
on her request for wage-loss compensation.
On March 21, 2014 appellant filed a Form CA-7 wage-loss compensation claim for
disability from work for the period March 10 to 21, 2014.
In a report dated March 6, 2014, Dr. Sharrona S. Williams, a Board-certified orthopedic
surgeon, diagnosed shoulder strain, neck sprain, rotator cuff syndrome, and cervical radiculopathy
due to an April 9, 2013 employment injury.
In a letter dated March 25, 2014, OWCP again advised appellant of the deficiencies of her
wage-loss compensation claims, noting that she had returned to full-time, regular duty on
May 17, 2013. It again advised that she should have filed a notice of recurrence (Form CA-2a)
and thus no further action would be taken on her requests for wage-loss compensation.
OWCP subsequently received progress reports dated February 17, 2014 and February 4,
2015 by Dr. Ahmed who diagnosed major depressive disorder and panic disorder. Dr. Ahmed
noted that the onset of her symptoms began during her traumatic accident which led to bilateral
shoulder, neck, back pain. He explained that she suffered from chronic, daily pain and due to the
severity of her symptoms her cognitive and psychological level of functioning declined such that
she was unable to complete any job functions and was thus totally disabled from work.
On April 26, 2014 appellant filed a notice of recurrence (Form CA-2a) claiming wage-loss
compensation for total disability commencing January 6, 2014, and indicating that she had stopped
work on March 6, 2014.5
In support of her claimed recurrence, appellant submitted a narrative status report dated
March 6, 2014, in which Dr. Williams advised that appellant was totally disabled from work as of
that date. In a visit status report dated March 27, 2014, Dr. Williams advised that appellant was
capable of returning to work with restrictions of no lifting over five pounds and no reaching or
working above shoulder level. Appellant also submitted a March 31, 2014 note, from Ms. Watts
who indicated that she was totally disabled from work for the period February 19 to July 19, 2014.
In an April 10, 2014 development letter, OWCP advised appellant of the deficiencies of
her recurrence claim. It requested additional factual and medical evidence and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to respond.

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A time analysis form (Form CA-7a) dated March 31, 2014 indicated that appellant had not worked from March 6
to 27, 2014, per her physician’s orders.

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In a statement dated April 22, 2014, appellant indicated that while working there was no
particular reason why her injury had worsened, but it did so without any intervening cause, and
she experienced constant chronic pain in both shoulders and her neck.
Thereafter, in support of her recurrence claim, appellant submitted a March 27, 2014 report
by Dr. Williams who diagnosed cervical degenerative disc disease with cervical strain with
bilateral upper extremity radiculopathy, left greater than right; cervical trigger points; bilateral
subacromial impingement with rotator cuff tendinitis; and bilateral acromioclavicular (AC) joint
arthritis.
Appellant also submitted a March 12, 2014 magnetic resonance imaging (MRI) scan of the
left shoulder which demonstrated a small, full-thickness nonretracted tear of the supraspinatus,
tendinosis of the infraspinatus, mild osteoarthritis/fibrosseous expansion of the AC joint, and small
subacromial enthesophyte/spur. A March 17, 2014 MRI scan of the cervical spine revealed an
essentially unremarkable cervical spine with no evidence of disc extrusion, stenosis, or facet
arthropathy.
By decision dated May 13, 2014, OWCP denied appellant’s claimed recurrence, finding
that the evidence of record was insufficient to establish a recurrence of disability, commencing
March 6, 2014, causally related to the accepted April 9, 2013 employment injury.
Appellant subsequently submitted a May 1, 2014 report from Dr. Williams who reiterated
her prior diagnoses and a February 4, 2015 report from Dr. Ahmed who indicated that appellant
was unable to complete any job functions due to her emotional conditions.
On May 12, 2015 appellant, through her then-counsel, requested reconsideration.
In support of the reconsideration request, appellant submitted a report dated August 21,
2014, in which Dr. Williams reiterated her diagnoses and the factual and medical history of
appellant’s accepted April 9, 2013 employment injury. Dr. Williams reported that appellant’s
neck sprain had improved and her cervical radiculopathy had resolved, but she did not have full
resolution of her subacromial impingement and rotator cuff tendinitis and recommended surgical
intervention for these conditions. She also opined that appellant was able to return to work in a
modified-duty position with restrictions on overhead activities, but once treatment was allowed,
she would be able to return to full duty without restrictions.
By decision dated August 3, 2015, OWCP denied modification of its May 13, 2014
recurrence decision.
On August 2, 2016 appellant requested reconsideration and submitted an August 7, 2014
report in which Dr. Williams reiterated the diagnoses contained in her prior reports.
On August 2, 2016 OWCP received a report dated August 20, 2014, in which Dr. Timothy
Ghattas, a Board-certified orthopedic surgeon, diagnosed full-thickness rotator cuff tear, arthritis
of AC joint, impingement syndrome of the shoulder region, and biceps tendinitis. Dr. Ghattas
indicated that appellant was seen for a surgical evaluation of her left shoulder following an injury
which had occurred in April 2013.

4

In an August 22, 2016 report, Dr. Mark W. Feeman, an osteopath Board-certified in
physiatry, diagnosed left shoulder full-thickness tear of the supraspinatus with tendinosis and some
osteoarthritis at the AC joint, subacromial bone spur (left rotator cuff tear), bilateral C5-6
radiculopathy (cervical radiculopathy), impingement syndrome of right shoulder, impingement
syndrome of the left shoulder, and carpal tunnel syndrome of the right and left upper limb. He
indicated that her chronic pain in the cervical spine and both shoulders were sudden in onset and
began more than three years prior.
In a work capacity evaluation (Form OWCP-5c) dated November 23, 2016 and a report
dated December 8, 2016, Dr. Walter Hill, a psychiatrist, diagnosed major depressive disorder and
panic disorder due to a chronic back and shoulder injury. He opined that appellant’s emotional
conditions arose out of and in the course of her employment which contributed to her injuries and
impairments. Dr. Hill identified severe depression symptoms and severe anxiety. Based upon the
medical record and history of injury he identified PTSD which had symptoms including
flashbacks, insomnia, panic attacks, hopelessness, and crying spells.
On January 3, 2017 appellant, through her then-counsel, requested reconsideration.
In a letter dated February 3, 2017, OWCP notified appellant that it had received a request
for expansion of her claim on March 5, 2014, however, that it was mis-indexed and as such
afforded appellant 30 days to submit evidence in furtherance of her expansion claim. It indicated
that it was her burden to submit evidence sufficient to establish any additional conditions. OWCP
requested additional evidence in support of appellant’s claim, including a medical report with a
physician’s rationalized medical opinion fully explaining how any current diagnosis of an
emotional condition was causally related to the accepted employment injury. It afforded her 30
days to submit additional evidence.
Appellant subsequently submitted a series notes dated October 22, 2013 through
November 30, 2015 from Ms. Watts regarding treatment for her emotional conditions.
Appellant also submitted a February 8, 2017 report from Dr. Hill who indicated that since
2013 appellant had reported severe anxiety, panic attacks, flashbacks, insomnia, and feeling
overwhelmed from environmental and psychosocial stressors. Dr. Hill reiterated that she had been
diagnosed with major depressive disorder, panic disorder, and PTSD and further indicated that she
suffered from significant symptoms, such as severe depressed mood, poor concentration, low
energy, crying spells, diminished appetite, flashbacks, night terrors, insomnia, panic attacks,
feelings of hopelessness, as well as chronic shoulder and back pain. He opined that due to
appellant’s symptoms, she had had significant deficits in her cognitive, emotional, and
psychological functioning. Dr. Hill explained that as a result of her emotional conditions she
experienced loss of energy, limited interest in activities of living, poor concentration, and isolation
from friends and family. He further explained that appellant’s emotional distress was causally
related to the conditions from her workplace injury which had caused her to experience chronic
pain daily and isolated her from her family and friends.
By decision dated May 10, 2017, OWCP denied expansion of appellant’s claim to include
an emotional condition as caused or aggravated by her accepted work-related conditions of neck

5

sprain and bilateral shoulder sprain. It found the record did not contain medical evidence to
support causal relationship between the accepted compensable factor and diagnosed conditions.
By decision dated May 11, 2017, OWCP denied modification of its August 3, 2015
decision which denied her claimed recurrence of disability.
In a narrative statement dated July 26, 2017, appellant indicated that she had returned to
work on May 17, 2013 and realized that her return might not have been the best decision for her
because she was not ready to physically handle the demands of her job. After returning to work,
she indicated that she had continued to experience significant pain in her shoulders and neck that
was not improving and was significantly impacting her ability to carry out her activities of daily
living, including performance of her job duties.
Appellant also submitted an addendum report dated January 16, 2018 from Dr. Feeman,
wherein he noted that the jerking motion she had to make with her arms to swerve, along with
breaking created enough force on the rotator cuff tendon when combined with a jerking motion to
cause it to tear completely. Dr. Feeman further indicated that the mechanics of the accident caused
the tendons in her shoulders to swell causing impingement syndrome and radiculopathy.
Therefore, it was his medical opinion that the resulting impact of appellant having to hit the brake,
swerve, and jerk the steering wheel while driving on the highway to avoid debris caused additional
cervical and bilateral shoulder conditions. Dr. Feeman was also noted his agreement with
Dr. Williams that appellant was totally disabled from work as of March 6 to 27, 2014 pending
results of her diagnostic studies and that she was unable to perform any overhead activities as of
March 27, 2014 and continuing due to her ongoing functional deficits from her work-related neck
and shoulder conditions.
On January 11, 2018 appellant requested reconsideration of the May 10, 2017 expansion
decision and reiterated the factual history of her claim in a narrative statement dated July 26, 2017.
She contended that her psychological symptoms from her employment injury had become so
severe and debilitating that she finally sought help for these issues in September 2013, and she was
forced to take time off from work using the Family and Medical Leave Act after that time.
In support of her reconsideration request, appellant submitted an October 10, 2017 report
by Dr. Hill who continued to diagnose major depressive disorder, panic disorder, and PTSD and
opined that appellant’s conditions started shortly following the employment injury on
April 9, 2013. Dr. Hill opined that her emotional conditions were caused as a direct result of the
employment injury, both from the trauma of the accident itself as well as the chronic pain she
developed from the injuries she suffered to her shoulders and neck during the accident. He noted
that PTSD was triggered by experiencing or witnessing a traumatic event that involved actual or
threatened death or serious injury, such as a motor vehicle accident. Dr. Hill opined that
appellant’s PTSD triggered depression and anxiety symptoms such as panic attacks and led to the
development of her major depressive disorder and panic disorder. He further opined that her
chronic pain limited her mood, her activities, and her lifestyle, which contributed to her
development of depression and exacerbated her PTSD and panic disorder. Dr. Hill concluded that
appellant was totally disabled for work due to her emotional conditions.

6

Appellant also submitted an October 10, 2017 report from Dr. Ahmed who reiterated his
diagnoses and opinions regarding her emotional conditions.
On March 23, 2018 appellant, through her then-counsel, requested reconsideration of the
May 11, 2018 decision regarding the denial of her recurrence claim. The request was resubmitted
on April 2, 2018.
By decision dated July 26, 2019, OWCP denied modification of its May 11, 2017 decision
regarding the denial of her recurrence claim.
By decision dated September 30, 2019, OWCP denied modification of its May 10, 2017
decision regarding the denial of appellant’s request to expand the acceptance of her claim to
include additional conditions.
LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6
The claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, establishing causal relationship. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 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.10
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that,

6

V.S., Docket No. 19-1370 (issued November 30, 2020); M.M., Docket No. 19-0951 (issued October 24, 2019);
Jaja K. Asaramo, 55 ECAB 200 (2004).
7

I.S., Docket No. 19-1461 (issued April 30, 2020).

8

K.W., Docket No. 18-0991 (issued December 11, 2018).

9

G.R., Docket No. 18-0735 (issued November 15, 2018).

10

Id.

7

a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.11
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted a series of medical reports from Dr. Hill who
opined that appellant’s diagnosed emotional conditions were a direct cause of the chronic pain she
had developed and suffered from following the April 9, 2013 employment injury because it had
limited her mood, her activities, and her lifestyle. Dr. Hill explained how the accepted conditions
were sufficient to have resulted in the development of the emotional conditions he had diagnosed.
Further, he diagnosed PTSD and explained how appellant’s injury during a motor vehicle incident
triggered depression and anxiety symptoms such as panic attacks and led to the development of
her major depressive and panic disorders due to her fear and the trauma associated with the motor
vehicle incident which was sufficient to have caused physical injury.
The Board finds that the opinion of Dr. Hill is sufficient to require further development of
the medical evidence on the issue of whether the acceptance of the claim should be expanded to
include emotional conditions as causally related to the accepted April 9, 2013 employment injury.
Dr. Hill is a psychiatrist qualified in the appropriate 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. He provided consistent diagnoses of mental health conditions
and directly opined that they were causally related to the accepted injury explaining how each
condition had developed as a result of the employment injury. Accordingly, the medical opinion
of Dr. Hill is sufficient to require further development of appellant’s claim.12
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.13 OWCP has an obligation to see that justice is
done.14
On remand OWCP shall follow its procedures for the development of emotional condition
claims and refer appellant to an appropriate specialist, along with the case record and a statement
of accepted facts, for an examination and a rationalized medical opinion as to whether the
acceptance of her claim should be expanded to include emotional conditions as causally related to

11

K.S., Docket No. 17-1583 (issued May 10, 2018).

12

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).
13

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
14
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).

8

her accepted employment injury.15 If the second opinion physician disagrees with the opinion
provided by Dr. Hill, he or she must provide a fully-rationalized explanation explaining why the
accepted employment injury and the previously accepted conditions are insufficient to have caused
or aggravated emotional conditions. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision regarding expansion of the acceptance of the
claim to include additional conditions.
LEGAL PRECEDENT -- ISSUE 2
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 resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.16 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.17
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.18
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.19 Where no such rationale is present,
the medical evidence is of diminished probative value.20

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).
16

20 C.F.R. § 10.5(x); see J.D., Docket No. 18-1533 (issued February 27, 2019).

17
See id. A recurrence does not occur when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties, or a reduction-in-force. Id.
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
19

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018).

20

H.T., Docket No. 17-0209 (issued February 8, 2018).

9

ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision.
In support of her claim, appellant submitted an addendum report dated January 16, 2018
from Dr. Feeman who noted that the jerking motion she had to make with her arms to swerve,
along with breaking created enough force on the rotator cuff tendon when combined with a jerking
motion to cause it to tear completely. Dr. Feeman further indicated that the mechanics of the
accident caused the tendons in her shoulders to swell causing impingement syndrome and
radiculopathy. Therefore, it was his medical opinion that the resulting impact of appellant having
to hit the brake, swerve, and jerk the steering wheel while driving on the highway to avoid debris
caused additional cervical and bilateral shoulder conditions. Dr. Feeman was also in agreement
with Dr. Williams that appellant was totally disabled from work as of March 6 to 27, 2014 pending
results of her diagnostic studies and that she was unable to perform any overhead activities as of
March 27, 2014 and continuing due to her ongoing functional deficits from her work-related neck
and shoulder conditions.
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.21 While Dr. Feeman’s reports do not contain
sufficient rationale to discharge appellant’s burden of proof by the weight of the reliable,
substantial, and probative evidence that her neck and bilateral shoulder condition were caused or
aggravated by the accepted employment factors, these reports raise an inference of causal
relationship sufficient to require further development of the case record by OWCP.22
The Board, therefore, finds that the case must be remanded for further development of the
medical evidence. On remand OWCP shall prepare a statement of accepted facts and refer
appellant, together with the case record, to a specialist in the appropriate field of medicine for a
reasoned opinion as to whether her accepted employment factors either caused or aggravated her
neck and bilateral shoulder conditions and whether those conditions caused her to be disabled from
work commencing March 6, 2014.23 If the physician opines that the diagnosed condition is not
causally related to the accepted employment factors, he or she must explain with rationale how or
why their opinion differs from that of Dr. Feeman. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision with regard to expansion of
emotional conditions. The Board further finds that the case is not in posture for decision with

21

J.H., Docket No. 18-1637 (issued January 29, 2020). See also A.P., Docket No. 17-0813 (issued January 3,
2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).
22

See T.K., Docket No. 20-0150 (issued July 9, 2020); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne,
29 ECAB 820 (1978).
23

Supra note 15 at Chapter 2.805.3e (January 2013). See R.D., Docket No. 18-1551 (issued March 1, 2019).

10

regard to the claim of recurrence of disability and expansion to include neck and bilateral should
conditions.
ORDER
IT IS HEREBY ORDERED THAT the September 30 and July 26, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: February 5, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 06-1738
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On July 24, 2006 appellant filed a timely appeal from a merit decision of an Office of
Workers’ Compensation Programs’ hearing representative dated March 6, 2006 which affirmed a
schedule award. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this schedule award decision.
ISSUE
The issue is whether appellant has more than an eight percent permanent impairment to
her right lower extremity.
FACTUAL HISTORY
Appellant, a 46-year-old mail handler, injured her right hip, back and right leg on
April 18, 1989 when she stepped on an object and fell to the ground. She filed a claim for
benefits, which the Office accepted for lumbosacral strain and contusion of the right hip.
In a report dated December 7, 2004, Dr. David Weiss, an osteopath, found that appellant
had a 30 percent right lower extremity impairment pursuant to the American Medical

Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (the A.M.A.,
Guides). He measured a gastrocnemius circumference of 38 centimeters on the right as opposed
to 39 centimeters on the left; and a quadriceps circumference of 54 centimeters on the right as
opposed to 55 centimeters on the left. Dr. Weiss derived his 30 percent impairment rating from a
4/5 motor strength deficit of the right quadriceps for a 12 percent impairment pursuant to Table
17-8 at page 532 of the A.M.A., Guides; a 4/5 motor strength deficit of the right gastrocnemius
(ankle plantar/flexion), for a 17 percent impairment pursuant to Table 17-8 at page 532 of the
A.M.A., Guides; in addition to a 3 percent impairment for pain under Table 18-1 at page 574 of
the A.M.A., Guides.
On March 29, 2005 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right lower extremity.
In a report dated May 21, 2005, an Office medical adviser concluded that appellant had
an eight percent impairment under the A.M.A., Guides. He noted Dr. Weiss’ findings of one
centimeter of atrophy on the right compared to the left thigh and one centimeter of atrophy on
the right compared to the left calf. The Office medical adviser stated:
“Based on the A.M.A., Guides, my schedule award is calculated on atrophy rather
than weakness because atrophy is more effective -- no surgery [was performed].”
The Office medical adviser derived three percent impairment for atrophy of the right thigh and
right calf pursuant to Table 17-6, page 530, in addition to a two percent component for pain at
Table 18-1, page 574.
On July 12, 2005 the Office granted appellant a schedule award for an eight percent
permanent impairment of the right lower extremity for the period December 4, 2004 to May 30,
2005, for a total of 23.04 weeks of compensation.
By letter dated July 18, 2005, appellant’s attorney requested an oral hearing, which was
held on December 19, 2005.
By decision dated March 1, 2006, an Office hearing representative affirmed the July 12,
2005 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.2 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

5 U.S.C. § 8107(c)(19).

2

adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.3
ANALYSIS
The Board notes that both Dr. Weiss and the Office medical adviser failed to explain the
impairment rating for pain under Chapter 18. Section 18.3b, page 571 of the A.M.A., Guides,
specifically states that examiners should not use Chapter 18 to rate pain-related impairments for
any condition that can be adequately rated on the basis of the body and organ rating systems
found in the other chapters.4 The current record does not support an award for pain under
Chapter 18.
In the present case, there is a conflict in the medical evidence between Dr. Weiss,
appellant’s treating physician, and the Office medical adviser, as to the percentage of permanent
impairment to which appellant is entitled based on her accepted conditions in her right lower
extremity. Dr. Weiss found that appellant had a 30 percent right lower extremity impairment
based on a 27 percent impairment for weakness of the right quadriceps and ankle and a 3 percent
impairment for pain. In contrast, the Office medical adviser accorded a five percent impairment
based on atrophy, which he determined was a more appropriate basis than weakness because
appellant did not undergo surgery, and a two percent impairment for pain.
Furthermore, while Dr. Weiss rated appellant for weakness of the right lower extremity,
the Office medical adviser stated that he believed a rating for atrophy would be more appropriate
because appellant had not undergone surgery. The A.M.A., Guides, however, do not require that
the claimant undergo a surgical procedure before an impairment rating can be given for
weakness of the lower extremity.
When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the Office to
appoint a third or “referee” physician, also known as an “impartial medical examiner.”5 Where
there exists a conflict of medical opinion and the case is referred to an impartial specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, is entitled to special weight. On remand, the Office
should instruct the referee medical examiner to provide a well-rationalized opinion, to
specifically refer to the applicable tables and standards of the A.M.A., Guides in making his

3

20 C.F.R. § 10.404.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003).
5

Section 8123(a) of the Act provides in pertinent part, “(i)f 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.” See Dallas E. Mopps, 44 ECAB 454 (1993).

3

findings and conclusions and in rendering his impairment rating and to clearly indicate the
specific background upon which he based his opinion. After such development as it deems
necessary, the Office shall issue a de novo decision.6
CONCLUSION
The Board finds that the case is not in posture for decision with regard to an impairment
based on the right lower extremity and the case is remanded for further development. After such
development as it deems necessary, the Office shall issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2006 decision is set aside and the case
is remanded to the Office of Workers’ Compensation Programs for further action consistent with
this decision of the Board.
Issued: April 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6

The Board notes that both physicians accorded appellant an impairment based on pain pursuant to section 18 of
the A.M.A., Guides. According to section 18.3b of the A.M.A., Guides, however, “examiners should not use this
chapter to rate pain-related impairment for any condition that can be adequately rated on the basis of the body and
organ impairment systems given in other chapters of the [A.M.A.,] Guides.” This chapter is not to be used in
combination with other methods to measure impairment due to sensory pain (Chapters 13 and 17). The evidence of
record does not explain why appellant would be entitled to an additional rating for pain pursuant to Chapter 18.
Therefore, on remand, the referee medical examiner should be instructed to provide an explanation as to why and
how appellant’s pain may be rated pursuant to Chapter 18.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 13-585
Issued: November 18, 2013

Case Submitted on the Record

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

JURISDICTION
On January 15, 2013 appellant filed a timely appeal of a December 17, 2012 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 case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition while in the performance of duty.
FACTUAL HISTORY
On March 23, 2012 appellant, then a 47-year-old rating veterans service representative,
filed a Form CA-2 for occupational disease. She alleged that her federal employment aggravated
1

5 U.S.C. § 8101 et seq.

her preexisting post-traumatic stress disorder (PTSD).2 Appellant also claimed that she was
subjected to harassment and retaliation because she filed grievances and equal employment
opportunity (EEO) complaints.3 She stopped work on April 8, 2012.
Appellant submitted a September 26, 2012 statement, as well as additional documents
that detailed numerous work factors and incidents that she alleged contributed to her claimed
condition. Ena Lima, the veterans service center manager, submitted a November 2, 2012
statement responding to appellant’s assertions.
Appellant’s primary duty was to adjudicate veterans’ disability claims, including those
relating to service-connected PTSD. She asserted that, review of these particular claims, in light
of her own personal experience, induced emotional reactions that adversely affected her job
performance. From August 7 to September 30, 2010, appellant worked 49 hours of mandatory
overtime to dispose of claims older than 125 days. Due to office renovations in September and
October 2010, she was temporarily transferred to a different worksite. On May 19, 2011
appellant requested a quieter work space and modified caseload to accommodate her PTSD
symptoms. She was moved to a new work area in early June 2011.
Appellant received a 14-day suspension effective October 17, 2011 for her failure to
process a claim in a timely manner. She had submitted a draft work product on August 19, 2010.
The document, along with a two-page synopsis of proposed revisions, was returned to appellant,
on September 16, 2010. A corrected draft was submitted almost nine months later on
June 9, 2011.
On February 3, 2011 following a three-day snowstorm, appellant requested 12 hours of
administrative leave for travel, citing inclement weather, county traffic advisories and aggravated
PTSD symptoms. She stated that Ms. Lima, the veterans service center manager, denied the
request and found her unwelcoming and unfairly critical. In a January 25, 2012 statement,
Christina Clark, a union representative, alleged that Ms. Lima stated that disabled veteran
employees exploit service-connected injuries to receive extended time off. By statement dated
November 2, 2012, Ms. Lima denied this accusation.
In June 2011, appellant received a 10-day suspension for disclosing medical information
belonging to Adam Smith, a coworker, to another employee without his consent. She conceded
in a May 5, 2011 statement that she had violated the employing establishment’s policy regarding
personally identifiable information. Appellant alleged that, in an August 31, 2011 meeting,
Ms. Lima told appellant that Mr. Smith had been promised a “clean” Standard Form 50
Notification of Personnel Action (SF-50) if he testified that appellant did not have permission to
disclose his medical information to a third party. Ms. Lima denied this accusation in her
November 2, 2012 statement.
2

Appellant sustained PTSD in the mid-1980s while in active military service.

3

Appellant filed multiple EEO complaints since June 7, 2011. She incorporated allegations that were outlined in
the November 30, 2012 statement of accepted facts and are to be addressed in this decision. Appellant also provided
transcripts of depositions that replicated testimony found in the evidence of record. The case record, however, does
not contain any final agency dispositions on the merits of her complaints.

2

On May 17, 2011 appellant’s husband visited Mr. Smith’s home and told Mr. Smith’s
fiancé that appellant and Mr. Smith “had some type of romantic involvement at work.”
Mr. Smith subsequently went to appellant’s residence and threatened her, her husband and her
children.4 Appellant thereafter obtained a protection order and asked management to allow her
to telecommute or to transfer either her or Mr. Smith to another team. On May 18, 2011
Ms. Lima informed appellant that her husband, who did not work for the employing
establishment, was not allowed near the premises. Appellant’s request to telecommute was also
denied because of her recent suspension. In her statement, Ms. Lima specified that she did not
move appellant to another team because Mr. Smith was no longer an employee.
On June 24, 2011 appellant requested unpaid leave under the Family and Medical Leave
Act, donated leave under the voluntary leave transfer program and leave without pay for laser
eye surgery. After she was advised that she first needed to exhaust her current annual and sick
leave balance, she reapplied on July 13, 2011. On October 31, 2011 Anthony Coltrane,
appellant’s first-line supervisor, denied her request because the surgery was elective and she had
ample opportunity to accrue enough leave to cover her absence.
In early August 2011, appellant filed for disability retirement on the grounds that
management continued to harass her and attempted to terminate her employment. In late
August 2011, she alleged that Mr. Coltrane informed her that her disability retirement
application would be expedited if she withdrew her EEO complaint. In an October 25, 2011
statement, appellant’s husband attested that he was “called in” and informed about this offer by
Mr. Coltrane in a meeting. Ms. Lima advised that Mr. Coltrane denied discussing the agency
influencing the outcome of her disability claim.
Throughout 2011, appellant alleged that she never received special recognition for her
job performance pursuant to the employing establishment’s Blue Ribbon Employee Program.
On January 5, 2012 she was denied her share of a monetary award for her involvement in a pilot
project for claims processing.
On December 27, 2011 Mr. Coltrane informed appellant that she needed to complete a
complex case before he would approve five hours of official time for an EEO investigation.
Appellant was then also told on January 9 and 25, 2012 that Ms. Clark would not be allowed to
help her gather documents for the investigation. On February 6, 2012 she was unable to meet
with Ms. Clark because the latter was limited to one hour of assistance. In separate statements,
Ms. Clark asserted that the employing establishment did not allow her to assist with appellant’s
EEO investigation while Ms. Lima maintained that official time for the investigation was denied
due to operational needs.
On February 9, 2012 Debra Street, an assistant manager, asked appellant for an updated
statement from her physician certifying self-medication. After appellant submitted a statement
on February 12, 2012 Mr. Coltrane informed her that the document did not include a physician’s
signature block. She provided additional forms, which Mr. Coltrane accepted. In a November 2,
2012 memorandum, Ms. Lima stated that Ms. Street and Mr. Coltrane acted in accordance with
4

Appellant clarified that she did not hear Mr. Smith’s threats, but “did see how out of control his behavior was”
toward her husband.

3

administrative procedures. On March 15, 2012 Mr. Coltrane warned appellant that she would be
placed on a performance improvement plan effective May 1, 2012 unless she improved her work
quality and production. On March 23, 2012 he reproached her for entering information related to
her grievances and EEO complaints into the time and attendance system. Ms. Lima determined
that appellant’s actions violated the employer’s rules regarding proper use of software and
devices.
Appellant further contended that mishandling of her workers’ compensation claim
aggravated her service-connected PTSD.
The case record contains numerous medical records authored by Dr. David L. Wagner, a
psychiatrist. In an October 7, 2010 report, Dr. Wagner diagnosed service-connected PTSD and
depression, inter alia. He related that appellant had mental fatigue due to compulsory overtime
and a temporary move to a new worksite. On February 23, 2011 Dr. Wagner noted that her
symptoms worsened in anticipation of driving after a winter storm. In April 29 and May 12,
2011 reports, he opined that appellant’s job duties, namely working more than 40 hours of
mandatory overtime and adjudicating veterans’ PTSD and Nehmer claims, aggravated her PTSD.
Dr. Wagner advised that she be limited to a 40-hour workweek and exempt from reviewing
PTSD and Nehmer claims. In a series of August 12, 2011 reports, he detailed that appellant’s
PTSD symptoms, including stress, anxiety, suicidal ideation, fear, guilt, panic attacks,
disassociation, social isolation, hypervigilance and mistrust of authority, were exacerbated by an
unsafe and hostile work environment. Specifically, appellant received threats from a coworker
and was treated unfairly by management. As a result, she was reluctant to leave her house,
unable to concentrate on her cases and prone to simple mistakes. Dr. Wagner authorized her to
self-medicate at home and recommended that she telecommute.5 In March 20 and September 13,
2012 reports, he reiterated that workplace stressors aggravated appellant’s PTSD and depression,
leading to mood swings, irritability, anhedonia, insomnia, recurrent nightmares, weight gain,
lethargy, low self-esteem, impaired concentration and memory, feelings of hopelessness and
helplessness, avoidance, hypervigilance and fleeting suicidal ideation.
Following a review of the November 30, 2012 statement of accepted facts, Dr. Wagner
maintained in a December 4, 2012 report that appellant’s job duties worsened her serviceconnected PTSD and depression. He opined that mandatory overtime and adjudication of
veterans’ PTSD claims “likely as not” elevated her stress. Dr. Wagner remarked that appellant
remained symptomatic after she left the employing establishment in early April 2012 and
concluded that she was unlikely to return to any competitive employment.6
By decision dated December 17, 2012, OWCP denied appellant’s emotional condition
claim, finding: (1) the medical evidence insufficient to establish that 49 hours of compulsory
overtime for the period August 7 to September 30, 2010 and adjudication of veterans’ PTSD and
5

Dr. Wagner restated his opinion in a December 16, 2011 report.

6

Appellant provided additional medical records for the period January 30, 2007 to February 13, 2012. However,
these documents either: (1) addressed physical conditions not presently before the Board; (2) predated the period
during which she allegedly aggravated her PTSD on the job; or (3) were not authored by a psychiatrist or clinical
psychologist.

4

Nehmer claims aggravated her service-connected PTSD; and (2) the evidence insufficient to
establish any other compensable factors of employment.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established,
OWCP must then base its decision on an analysis of the medical evidence.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. In the case of Lillian Cutler,8 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. When an employee experiences emotional stress in carrying
out his or her employment duties and the medical evidence establishes that a disability resulted
from this emotional reaction, the disability is generally regarded as due to an injury arising out of
and in the course of employment. This holds true when the disability results from an emotional
reaction to a special assignment or other requirement imposed by the employing establishment or
by the nature of the work. On the other hand, there are disabilities that have some causal
connection with the claimant’s employment but nonetheless fall outside FECA’s coverage
because they are found not to have arisen out of employment, such as when a disability results
from a fear of a reduction-in-force or frustration from not being permitted to work in a particular
environment or hold a particular position.9
ANALYSIS
Appellant attributed aggravation of her service-connected PTSD to several incidents and
activities. As a preliminary matter, the Board must first determine which of these constitute
compensable factors of employment that necessitate an evaluation of the medical evidence.
Appellant objected to various managerial actions, including a temporary transfer to a
different worksite; denial of numerous leave and accommodation requests; denial of a cash
award and special recognition for her job performance; denial of access to union representation;
denial of workplace access to her husband; 10-day and 14-day suspensions for violating policies
regarding personally identifiable information and timely processing of veterans’ disability
7

G.S., Docket No. 09-764 (issued December 18, 2009).

8

28 ECAB 125 (1976).

9

William E. Seare, 47 ECAB 663 (1996).

5

claims, respectively; Mr. Coltrane’s warning that she would be placed on a performance
improvement plan unless she improved her work quality and production; Mr. Coltrane’s
criticism for entering information related to her grievances and EEO complaints into the time and
attendance system; and requiring self-medication certification from her physician. The Board
has held that work space transfers,10 leave matters,11 accommodation requests,12 cash awards,13
special recognition,14 access to union representation,15 access to the workplace,16 safety,17
disciplinary actions,18 performance appraisals,19 counseling sessions,20 criticism and
reprimands,21 submission of medical documentation,22 and monitoring of work by a supervisor23
are administrative and personnel matters. Administrative and personnel matters, although
generally related to employment, are administrative functions of the employer rather than the
regular or specially-assigned work duties of the employee and are not covered under FECA.24
An administrative or personnel matter will be considered a compensable factor of
employment where the evidence discloses error or abuse on the part of the employer.25 The
employee bears the burden of proof to establish administrative error or abuse.26 At the outset,
appellant noted that she filed grievances and EEO complaints concerning many of the

10

Dan F. Bennett, Docket No. 05-60 (issued March 7, 2005).

11

J.C., 58 ECAB 594 (2007).

12

P.K., Docket No. 12-1640 (issued May 13, 2013).

13

B.M., Docket No. 08-327 (issued June 19, 2008).

14

Charles B. Markle, Docket No. 00-514 (issued January 10, 2001).

15

Diane C. Bernard, 45 ECAB 223 (1993).

16

R.W., Docket No. 06-2000 (issued February 22, 2007).

17

Ronald C. Hand, 49 ECAB 113 (1997).

18

G.S., supra note 7.

19

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

20

Andrew Wolfgang-Masters, 56 ECAB 411 (2005).

21

Roger W. Robinson, 54 ECAB 846 (2003).

22

M.T., Docket No. 11-606 (issued January 5, 2012).

23

James P. Inzetta, Docket No. 03-1899 (issued October 27, 2003).

24

M.C., Docket No. 10-1628 (issued June 8, 2011); Matilda R. Wyatt, 52 ECAB 421 (2001).

25

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

26

M.W., Docket No. 09-2036 (issued June 2, 2010).

6

aforementioned managerial actions. However, grievances and EEO complaints, by themselves,
do not establish that unfair treatment occurred.27
Appellant presents arguments of error or abuse on the part of the employing
establishment for two of the aforementioned managerial actions. First, she suggested that her
10-day suspension for violating the employing establishment’s policy regarding personally
identifiable information was unwarranted because Ms. Lima admitted during an August 31, 2011
meeting that Mr. Smith’s testimony was elicited in exchange for a favorable SF-50. Ms. Lima
denied that this testimony was obtained in an inappropriate manner. In addition, the Board
points out that appellant conceded in a May 5, 2011 statement that she violated the policy. With
respect to this administrative matter, the Board finds that she did not discharge her burden of
proof to establish error or abuse. Second, Ms. Clark, the union representative, asserted that the
employing establishment did not allow her to assist with appellant’s EEO investigation.
Ms. Lima countered that official time for the investigation was denied due to operational needs.
In view of just these statements and in the absence of other corroborating evidence, the Board
finds that appellant did not establish administrative error or abuse.
Appellant also claimed that management subjected her to a hostile work environment and
retaliated against her because she lodged EEO complaints. She specified that she was forced to
file for disability retirement; that Ms. Lima was unwelcoming and unfairly critical; that
Ms. Lima remarked that disabled veteran employees exploit service-connected injuries to receive
extended time off; and that Mr. Coltrane tried to convince her to withdraw EEO complaints in
exchange for expedited processing of her disability retirement application.
An act of a supervisor that is characterized by the employee as harassment may constitute
a compensable factor of employment giving rise to coverage under FECA. However, probative
and reliable evidence must establish that the act alleged did, in fact, occur. An employee’s
unsubstantiated charge of harassment or discrimination is not determinative. Mere perceptions
of harassment and discrimination are not compensable.28 Appellant mentioned that she filed
grievances and EEO complaints pertaining to the alleged acts of harassment and retaliation. As
noted, grievances and EEO complaints, by themselves, do not establish that harassment occurred.
Appellant did not present probative and reliable evidence substantiating that she was
forced to retire on disability or that Ms. Lima was unwelcoming and unfairly critical. She did
offer Ms. Clark’s January 25, 2012 e-mail corroborating that Ms. Lima verbally maligned
disabled veteran employees but Ms. Lima denied acting inappropriately. The Board has
recognized that verbal abuse by a supervisor may constitute a compensable factor of
employment. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under FECA.29 Assuming arguendo that Ms. Lima made an offensive
remark about disabled veteran employees, was not made directly to appellant or otherwise in her
27

See A.O., Docket No. 12-462 (issued July 26, 2012). The Board notes that the case record does not contain any
final agency dispositions of appellant’s EEO complaints. See supra note 3. Even if such decisions were provided,
they are not binding on issues raised under FECA. See infra note 40.
28

H.C., Docket No. 12-457 (issued October 19, 2012); Sylvester Blaze, 42 ECAB 654 (1991).

29

Leroy Thomas III, 46 ECAB 946 (1995).

7

presence. An emotional reaction to such a comment is considered to be self-generated and not to
arise out of or in the course of employment.30 Also, in an October 25, 2011 statement,
appellant’s husband attested that he was summoned to a meeting with Mr. Coltrane and informed
that appellant’s disability retirement application would be expedited if she withdrew her EEO
complaint. His account, though, conflicted with the allegation that he was not allowed near the
work premises since May 2011. Unexplained inconsistencies diminish evidentiary weight.31
Appellant also attributed aggravation of her service-connected PTSD to her commute
following a three-day snowstorm in early February 2011, the Board has held that the stress and
strain of highway travel experienced by an employee commuting to work can be characterized as
self-generated and arising from the hazards of the journey shared in common by all travelers.32
To the extent that she attributed aggravation to the May 17, 2011 verbal altercation between her
husband and Mr. Smith at her home, the Board notes that this event occurred outside of the
workplace and stemmed from a personal, nonwork-related matter: her husband’s accusation that
she and Mr. Smith were romantically involved. When the subject matter of a verbal altercation
is imported into the employment from a claimant’s domestic or private life and there is no
indication that work contributed to or facilitated the dispute, the dispute is not a compensable
factor of employment and any injury resulting therefrom does not arise out of employment.33
Appellant asserted that her PTSD was exacerbated by mishandling of her compensation
claim. However, the Board has held that a condition related to OWCP’s or the employer’s
mismanagement of a compensation claim does not arise in the performance of duty because the
processing of such claim has no relation to appellant’s regular or specially-assigned duties.34
OWCP accepted that appellant worked 49 hours of compulsory overtime for the period
August 7 to September 30, 2010 and adjudicated veterans’ PTSD claim. Because these activities
related to her work duties, they constitute compensable factors of employment and the Board
must evaluate the medical evidence to determine whether these factors aggravated her serviceconnected PTSD.35
A claim for an emotional condition must be supported by an opinion from a psychiatrist
or a clinical psychologist before the condition can be accepted.36 In reports for the period
October 7, 2010 to May 12, 2011, Dr. Wagner opined that appellant’s duties, namely working
30

See Mary A. Sisneros, 46 ECAB 155 (1994).

31

See Mary S. Brock, 40 ECAB 461 (1989).

32

Hasty P. Foreman, 54 ECAB 427 (2003).

33

C.O., Docket No. 09-217 (issued October 21, 2009).
August 3, 2006).

See also H.J., Docket No. 06-743 (issued

34

Foreman, supra note 32; George A. Ross, 43 ECAB 346 (1991).

35

See K.H., Docket No. 09-1651 (issued June 3, 2010).

36

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d)(3)(c)
(January 2013). See also L.C., Docket No. 10-2271 (issued July 21, 2011). For this reason, medical evidence of
record authored by an individual other than Dr. Wagner lacked probative value. See supra note 6.

8

more than 40 hours of mandatory overtime and adjudicating veterans’ PTSD and Nehmer claims,
aggravated her PTSD and depression. Following a review of the November 30, 2012 statement
of accepted facts, he reiterated in a December 4, 2012 report that mandatory overtime and
adjudication of veterans’ PTSD claims “likely as not” elevated her stress.37
The Board finds that Dr. Wagner’s opinion did not sufficiently establish that
compensable factors of employment aggravated appellant’s service-connected PTSD. Although
Dr. Wagner indicated that, a causal relationship existed, his reports did not contain adequate
medical rationale explaining the basis for his conclusion.38 Instead, he couched his opinion in
speculative terms.39 In the absence of rationalized medical opinion evidence, appellant failed to
establish that she sustained an emotional condition while in the performance of duty.
Appellant contends on appeal that the medical evidence shows that her employment
aggravated her service-connected PTSD. The Board has already addressed the deficiencies of
the medical evidence. Appellant also questions why her claim arising under FECA was denied
when she was approved for both disability retirement and social security disability benefits. The
Board has long held that entitlement to benefits under statutes administered by other federal
agencies does not establish entitlement to benefits under FECA. Decisions made by such federal
agencies are pursuant to different statutes that have varying standards for establishing disability
and eligibility for benefits and are not dispositive in FECA proceedings.40
Appellant may submit new evidence or argument as part of a formal 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 did not establish that she sustained an emotional condition
while in the performance of duty.

37

Dr. Wagner’s remaining reports were of diminished probative value because they did not address the factors of
employment found compensable by OWCP. Beverly R. Jones, 55 ECAB 411 (2004).
38

K.W., 59 ECAB 271 (2007).

39

Kathy A. Kelley, 55 ECAB 206 (2004); Thomas A. Faber, 50 ECAB 566 (1999).

40

R.S., Docket No. 10-2221 (issued August 19, 2011).

9

ORDER
IT IS HEREBY ORDERED THAT the December 17, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 18, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10