United States Department of Labor
Employees’ Compensation Appeals Board
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Stewart, OH, Employer
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___________________________________________ )
L.S., Appellant

Docket No. 09-1508
Issued: May 6, 2010

Case Submitted on the Record

Appearances:
Alan J. Shapiro, Esq., for the appellant

Office of Solicitor, for the Director

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

JURISDICTION
On May 11, 2009 appellant filed a timely appeal from the April 20, 2009 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation and
medical benefits effective October 1, 2008.
FACTUAL HISTORY
On December 1, 2003 appellant, then a 46-year-old postmaster, filed a traumatic injury
claim for depression, anxiety and emotional distress that arose after she returned to work on
October 27, 2003. Work stressors caused her to have a breakdown that resulted in her not

sending out mail and parcels.1 Appellant stated that her injury occurred on November 25, 2003
the day she stopped work. The employing establishment controverted the claim. Appellant’s
supervisor noted that she was downgraded due to a previous disciplinary action. On
November 25, 2003 when appellant reported to work, she realized that she failed to close the
office at the end of the prior business day and did not dispatch the outgoing mail from
November 24, 2003.
Appellant submitted form reports from Dr. Carlos Vega-Bonilla, a Board-certified
psychiatrist, who supported that her condition was employment related. In a January 16, 2004
narrative report, Dr. Vega-Bonilla noted first seeing appellant on July 16, 2003 for posttraumatic stress and depression when she was admitted to a crisis stabilization program.
Appellant was discharged on July 23, 2003 and he noted “begrudgingly” releasing her to work
on October 23, 2003. On November 27, 2003 she was readmitted for an acute exacerbation of
post-traumatic stress due to perceived harassment at work. Appellant was discharged on
December 23, 2003 but was readmitted on January 13, 2004 for symptoms that were
“apparently” triggered by a letter she received from the Department of Labor and “ongoing
problems” with the employing establishment. She related that her problems began in
November 2002 when difficulties with her employer escalated and that she felt she was being
“set up” at work by being accused of fraud and placed on administrative leave. Dr. Vega-Bonilla
advised that appellant had a history of chronic depression of more than two years’ duration. He
also noted, after a marriage of 23 years, appellant divorced and then was in a marriage of
convenience for about one year when she reported being sexually coerced in March 1999.
Dr. Vega-Bonilla diagnosed recurrent major depression and an anxiety disorder with salient
features of post-traumatic stress disorder.
In a January 26, 2004 decision, the Office denied appellant’s claim. On March 4, 2005
an Office hearing representative set aside the January 26, 2004 decision, finding that appellant
identified compensable work factors. Appellant had to deal with inquiries from customers
regarding 24-hour-a-day lobby access, she was advised about complaints from two customers
about delayed mail, she had problems in paying the employing establishment’s utility bills
because she did not have proper authorization on a government-issued credit card, she was
advised of a customer complaint that she did not put proper postage on a piece of priority mail
and, on November 25, 2003, she discovered that she had forgotten to dispatch the mail and
deposits the previous evening. The hearing representative remanded the case for further
development of the medical evidence.
In an October 4, 2005 decision, the Office denied the claim; however, an Office hearing
representative found the case was not in posture for decision and directed further medical
development.
On August 28, 2006 the Office accepted appellant’s claim for temporary aggravation of
major depressive disorder resolved no later than December 23, 2003. It found that the weight of
the evidence was represented by the July 23, 2006 report of Dr. Mark E. Reynolds, a Boardcertified psychiatrist, who performed a second opinion examination of the medical records. He
1

The record reflects that appellant filed a prior claim for an emotional condition in the summer of 2003, which
was denied under claim no. xxxxxx905.

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found that appellant had a temporary aggravation of major depressive disorder, that resolved no
later than December 23, 2003, when she was discharged from hospitalization. Dr. Reynolds
noted that factors, which contributed to appellant’s condition, included the opening time of the
employing establishment and forgetting to dispatch the mail and deposits.
Appellant disagreed with the August 28, 2006 decision and requested a hearing, which
was held on February 23, 2007. She submitted a July 24, 2006 report from Dr. Robert L.
Johnson, an osteopath and psychiatrist, who reviewed appellant’s history and medical treatment.
Dr. Johnson advised that her complaints always included some sort of remedy at law, and a
request for a “maximal financial award.” He advised that he was “completely unable to either
confirm or deny any of the allegations made in the past toward the patient.” Dr. Johnson noted
that appellant continued to harken back to the multiple stressors she had endured.” Appellant
related that she loved her job and her life was centered around working for the employing
establishment. Dr. Johnson diagnosed recurrent major depressive disorder, generalized anxiety
disorder involving components of post-traumatic stress disorder and a relational problem not
otherwise specified.
In a June 5, 2007 decision, an Office hearing representative found that Dr. Reynolds’
opinion was of diminished probative value because he did not actually examine appellant, did
not review all of the medical records and provided a speculative opinion. The hearing
representative remanded the case for further development of the medical evidence.
On June 15, 2007 appellant was referred for a second opinion examination together with
a statement of accepted facts and the medical record, to Dr. Brian Grant, a Board-certified
psychiatrist. In a July 17, 2007 report, Dr. Grant reviewed appellant’s history and listed findings
on mental status examination. Appellant denied any hallucinations or frank delusions. When
asked whether she felt paranoid, appellant stated, “if she were to go back to work, somebody
would set her up for failure.” Appellant denied any wish to harm herself or others. Dr. Grant
advised that appellant was oriented to time, place and person, with an average intellect and could
name current events. He stated that appellant presented with a fragile emotional history dating at
least to the time of a 1998 sexual assault and various difficulties presented themselves in the
context of her employment and other situations, including her marriage. Dr. Grant opined that
appellant had a temporary aggravation of major depression exacerbated by her work but that she
was now substantially improved. He diagnosed a recurrent major depressive disorder and panic
disorder. Dr. Grant explained that it was difficult to determine whether appellant’s underlying
conditions stemmed from the work-related events. Such short-term work-related events,
however, were not sufficient grounds for long-term psychopathology. Dr. Grant stated that it
was reasonable to assume that appellant experienced a temporary aggravation of a preexisting or
underlying condition, which had since resolved and her current depressive disorder was not
related to work factors. He noted that appellant had prior preexisting conditions, which included
the sexual assault in which her mental status was far worse. On July 24, 2007 Dr. Grant
reviewed a report from psychological testing and found the results were consistent with his
diagnosis and opinion on appellant’s functional capacity.
The Office asked that Dr. Grant clarify when the work-related aggravation of appellant’s
depressive disorder ceased. In a September 26, 2007 addendum, Dr. Grant explained that

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appellant’s work-related aggravation had resolved when she was discharged from the crisis
center on December 23, 2003.2
On August 27, 2008 the Office proposed to terminate appellant’s compensation. It
advised her that the weight of the medical evidence was represented by Dr. Grant and
demonstrated that the work-related aggravation of her preexisting condition had ceased.
In an October 1, 2008 decision, the Office terminated appellant’s compensation effective
that date. It found that Dr. Grant’s opinion established that her condition resolved no later than
December 23, 2003.
Appellant’s representative requested a telephonic hearing, which was held on
February 18, 2009. In reports dated from June 5, 2007 to April 28, 2008, Dr. Daniel D. Varnell,
a Board-certified psychiatrist and neurologist, noted that appellant presented with issues related
to anxiety and depression. Appellant related that her anxiety attacks were triggered by seeing
someone who looked similar to someone from her past. Dr. Varnell noted that appellant worked
as a postmaster and related that she was sexually harassed by a superior. Appellant reported the
harassment to the authorities but experienced retaliation that included a six-month suspension
and the eventual loss of her job. Appellant related having “flash backs” of harassment and the
treatment she received from her superiors. Dr. Varnell diagnosed depression, anxiety and posttraumatic stress disorder. He also noted that appellant had stress due to the death of a friend’s
sister. Appellant’s depression was about the same with “continued distress over the loss of her
job at the post office. Has a hard time getting past it.” Appellant related that her husband
worked 10-hour shifts, which left her alone with no one to talk to. Dr. Varnell noted that
appellant was having “erratic spending” issues and stress including her son-in-law’s, inoperable
cancer and her mother’s surgery. He related that appellant was “frustrated by her memory lately
and forgetting simple things such as peoples’ names, repeats herself at times as well.”
Dr. Varnell noted that appellant admitted it “could be anxiety and trying to not recall bad things
from her past.”
In an October 10, 2008 report, Dr. R.A. Johnson, a Board-certified psychiatrist,
diagnosed anxiety and dysthymic disorder that predated 2003. He noted that appellant’s
symptoms included generalized worry and hypervigilance. Dr. Johnson explained that appellant
would mistakenly identify a passerby for a former colleague from the employing establishment,
which she left in 2003. He also noted that, earlier in 2003, appellant related that she had been
sexually harassed by a coworker, which was reported, but without satisfactory response.
Dr. Johnson noted that she had severe hypervigilant insomnia that was preceded in late 2003 by
acute stress disorder. He opined that appellant had a history of post-traumatic stress disorder,
secondary to a rape in 1998, but those symptoms were no longer present. Dr. Johnson also
diagnosed obsessive-compulsive personality disorder, moderately severe. He advised that
appellant now lived in a community new to her and far from her previous home. Dr. Johnson
opined that her personality disorder as well as the rape of 1998, each contributed to the severity
of the psychological harm of the workplace trauma of 2003. He found that appellant was
currently unable to work.
2

Dr. Grant actually stated December 25, 2003 but, from the context of the evidence, this is a typographical error.

4

By decision dated April 20, 2009, the Office affirmed the October 1, 2008 decision
terminating appellant’s compensation.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.3
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.4 The fact that the Office accepts a
claim for a specified period of disability does not shift the burden of proof to the claimant to
show that she is still disabled. The burden is on the Office to demonstrate an absence of
employment-related disability in the period subsequent to the date when compensation is
terminated or modified.5
In assessing medical evidence, the weight of such evidence is determined by its
reliability, its probative value and its convincing quality. The opportunity for and thoroughness
of examination, the accuracy and completeness of the physician’s knowledge of the facts and
medical history, the care of the analysis manifested and the medical rationale expressed in
support of the physician’s opinion are facts which determine the weight to be given each
individual report.6
ANALYSIS
The Office accepted that appellant sustained a temporary aggravation of a major
depressive disorder that resolved no later than December 23, 2003. The Office terminated
benefits effective October 1, 2008. The Board finds that the weight of the medical evidence rests
with Dr. Grant who submitted a thorough medical opinion based upon a complete and accurate
factual and medical history. Dr. Grant performed a complete examination, reviewed the record
and obtained diagnostic testing. He found that appellant had no continuing disability from her
accepted employment injury, was capable of performing her usual employment and that further
medical treatment was not necessary.
In a July 17, 2007 report, Dr. Grant reviewed appellant’s past psychiatric history and
provided findings on mental status examination. He noted that appellant denied hallucinations or
frank delusions. Dr. Grant advised that, when asked whether appellant felt paranoid, she related
that, “if she were to go back to work, somebody would set her up for failure. She denied any
wish to harm herself or others.” Dr. Grant also indicated that appellant was oriented to time,
place and person, with an average intellect and could name current events. He advised that
appellant presented with a fragile emotional history dating at least to the time of her sexual
3

Lawrence D. Price, 47 ECAB 120 (1995).

4

Id.; see Patricia A. Keller, 45 ECAB 278 (1993).

5

Elsie L. Price, 54 ECAB 734 (2003).

6

See Connie Johns, 44 ECAB 560 (1993).

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assault, and various difficulties, which presented themselves in the context of her employment,
as well as situations such as her marriage. Dr. Grant opined that appellant had a temporary
aggravation of major depression exacerbated by her work but that she was now substantially
improved. He explained that it was difficult to find whether appellant’s underlying conditions
stemmed from the work-related events. However, Dr. Grant noted that short-term events, such
as the noted workplace events, were not sufficient grounds for long-term psychopathology. He
opined that it was reasonable to expect that appellant experienced a temporary aggravation of a
preexisting or underlying condition, which had since resolved. Dr. Grant noted that appellant
had prior preexisting conditions, which included a sexual assault, where her mental status was far
worse. In his addendum dated September 26, 2007, Dr. Grant opined that appellant’s workrelated aggravation had resolved when she was discharged from the crisis center on
December 23, 2003.
The Board finds that Dr. Grant’s opinion represents the weight of the medical evidence as
his reports are well rationalized and based upon a proper factual background. The Office
properly relied upon his reports in finding that the accepted aggravation of appellant’s emotional
condition. Dr. Grant examined appellant, reviewed her medical records and reported accurate
medical and employment histories. He indicated that appellant experienced a temporary
aggravation of a preexisting or underlying condition, which had since resolved. Dr. Grant noted
her previous conditions, including a sexual assault, where her mental status was far worse.
Reports from other physicians, as noted, also support that appellant had significant emotional
problems prior to 2003. In Dr. Grant’s supplemental report, he emphasized that the employment
injury had resolved. Because he provided a rationalized medical opinion of record addressing
whether appellant continued to have residuals of her accepted employment injury, his opinion
constitutes the weight of the medical evidence.7
Appellant submitted several reports from Dr. Varnell, dated from June 5, 2007 to
April 28, 2008, who noted that appellant presented to him with issues related to anxiety and
depression. Dr. Varnell’s reports are insufficient to establish that appellant continued to have
residuals of her employment-related condition. The Board notes that Dr. Varnell did not provide
any opinion that her condition was causally related to factors of her employment. He advised
that appellant’s anxiety attacks and flashbacks were triggered by matters related to being
sexually harassed by a superior and the treatment she received after she reported the harassment;
however, these were not accepted as factors of employment based on her 2003 claim. The
factors accepted by the Office included the time appellant opened the employing establishment
and forgetting to dispatch the mail and deposits. Dr. Varnell also noted there were several stress
factors in appellant’s life which included, the death of a friend, erratic spending, marital issues
related to her husband and health issues concerning her son-in-law and her mother. The Board
notes that Dr. Varnell did not identify any of the established factors of appellant’s employment
nor did he offer any opinion as to the cause other than to note that her flashbacks were triggered
to factors above which were not established as work related. Medical evidence, which does not
offer any opinion regarding the cause of an employee’s condition, is of limited probative value

7

Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

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on the issue of causal relationship.8
employment-related condition.

Thus, these reports do not establish a continuing

Appellant also submitted a July 24, 2006 report from Dr. Robert L. Johnson, who noted
that he was unable to confirm or deny any of the allegations made in the past by appellant, who
harkened back to the multiple stressors she had endured. He advised that appellant related that
she loved her job and her life was in fact centered around working at the employing
establishment. Dr. Johnson diagnosed major depressive disorder, recurrent, generalized anxiety
disorder involving components of post-traumatic stress disorder and a relational problem not
otherwise specified. However, the Board notes that this report does not specifically address
whether any factors of appellant’s employment caused her diagnosed condition.9 Consequently,
the Board finds that this evidence is insufficient to establish appellant’s claim.
An October 10, 2008 report from Dr. Robert A. Johnson, diagnosed anxiety and
dysthymic disorder, which predated 2003. He noted that appellant had severe hypervigilant
insomnia, preceded in late 2003 by acute stress disorder. Dr. Johnson advised that appellant was
post-traumatic stress disorder, secondary to a rape in 1998, but that those symptoms were no
longer present. He also diagnosed obsessive-compulsive personality disorder, moderately
severe. Dr. Johnson opined that her personality disorder, which had its strengths in careful work
habits, perfectionism, as well as the rape of 1998, each contributed to the severity of the
psychological harm of the workplace trauma of 2003. The Board notes that, while Dr. Johnson
referred to a work trauma of 2003, he did not identify any accepted work factors. Dr. Johnson
did not offer any reasoned opinion supporting how particular accepted work factors caused total
disability. The Board has long held that medical opinions not containing rationale on causal
relation are entitled to little probative value are generally insufficient to meet appellant’s burden
of proof.10 Thus, this report does not establish a continuing employment-related condition.
While Dr. Vega-Bonilla indicated that appellant was unable to work and that her
condition was work related, he did not support that specific accepted work factors were the cause
of a continuing condition or disability after December 23, 2003. Instead, he noted nonwork
stressors such as sexual coercion in 1999 and advised that appellant had a chronic history of
depression that had lasted longer than two years. Other medical reports of record do not provide
reasoned support that appellant had continued residuals or disability of her accepted condition
after December 23, 2003.
The Board finds that the weight of the medical evidence establishes that the accepted
aggravation of appellant’s condition resolved no later than December 23, 2003. The Office’s
decision to terminate her compensation effective October 1, 2008 will be affirmed.

8

Michael E. Smith, 50 ECAB 313 (1999).

9

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).
10

Carolyn F. Allen, 47 ECAB 240 (1995).

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CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation as of October 1, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, PAWTUCKET POST
OFFICE, Pawtucket, RI, Employer
__________________________________________

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

Docket No. 08-2395
Issued: July 22, 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 September 2, 2008 appellant filed a timely appeal of the May 30, 2008 merit decision
of the Office of Workers’ Compensation Programs, finding that he did not sustain an emotional
condition in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On December 17, 2006 appellant, then a 53-year-old letter carrier, filed a traumatic injury
claim alleging that on December 13, 2006 he experienced stress and fear of future injury as a
result of physical contact with a coworker. The coworker grabbed his chest with both hands and
looked him in the eye, stating that he was in his way. The coworker then pushed appellant aside.
Appellant stopped work on December 14, 2006. On the claim form, Diane Gaj, a coworker,
stated that appellant and Joe Martins bumped into each other. She stated that Mr. Martins spoke

to appellant in a light-hearted tone and kidding manner. Ms. Gaj noted that appellant became
very angry and Mr. Martins backed off and said nothing further.
In a December 28, 2006 narrative statement, appellant described the development of his
emotional condition. He had been suffering from stress for more than two years. Appellant had
asked a coworker to stop making trumpet noises and whistling which irritated him. He stated
that coworkers overheard this conversation and had been whistling ever since. Appellant stated
that management addressed the whistling problem but it continued. On October 24, 2006 he
stated that a coworker overheard his conversation with a supervisor and loudly called him a
“rat.” Appellant informed a union steward that he became sick due to the incident and was going
home. He alleged that the coworker told the union steward that he was whistling because he
knew it bothered appellant. Appellant later accepted the coworker’s apology. At home that
evening, he experienced chest pains while thinking about the incident and subsequently called in
sick. An attending physician excused appellant from work for two weeks. When appellant
returned to work there was no whistling but he heard drumming and popping noises. He
contended that this incident demonstrated a hostile work environment.
On December 13, 2006, while working at his station, appellant stepped back from his
case to pick up flats from the floor. Mr. Martins grabbed him by the front of his coat, looked
him straight in the eyes and said that he was in his way and to get out of the aisle. He pushed
appellant aside like a rag doll. Appellant finished his collection that evening and went to a union
meeting to voice his concerns.
On the claim form, Alan Angelone, a supervisor, controverted the claim. He was aware
of only incidental contact for approximately one second between appellant and Mr. Martins. In a
December 28, 2006 letter, Darlene A. Palladini, an employing establishment injury
compensation specialist, contended that neither fact of injury nor causal relationship had been
established. She noted a discrepancy in the description of the alleged incident provided by
appellant and Ms. Gaj.
In an undated narrative statement, Mr. Angelone stated that the union president informed
him about the December 13, 2006 incident the next day. He interviewed everyone present on
December 13, 2006, except appellant who did not return to work. Mr. Angelone stated that
Mr. Martins and Ms. Gaj provided similar accounts of the incident. As Mr. Martins was
returning to his work area, he bumped into appellant very softly with his hands up to shield the
bump. He kiddingly told appellant to get out of his way. Mr. Martins told Mr. Angelone that
appellant had been his floater for many years and they frequently kidded one another. Appellant
became upset that Mr. Martins bumped into him. He cursed him and threatened bodily harm.
Mr. Martins then walked to his work area without saying another word to provoke him.
On January 2, 2007 Dr. David W. Ashley, a Board-certified family practitioner, stated
that appellant suffered from stress, anxiety and insomnia due to his work environment and
interactions.
By letter dated February 28, 2007, the Office requested that the employing establishment
respond to appellant’s allegations. It also advised appellant that the evidence submitted was

2

insufficient to establish his claim. The Office addressed the factual and medical evidence he
needed to submit to support his claim.
In a March 5, 2007 letter, appellant described an incident similar to the December 13,
2006 incident. John Manfredi, a coworker, grabbed and threatened him in front of two
coworkers. Appellant wrote a statement regarding the incident but a witness refused to do so.
He was advised by the employing establishment that if he reported the incident, he and
Mr. Manfredi could be fired. Appellant provided his employment history and stated that he did
not experience any problems with his coworkers or management.
On March 6, 2007 Mr. Angelone stated that appellant had informed management about
noises made by his coworkers for more than two years. Several service talks were given over
this period reminding carriers to be respectful of their coworkers. Mr. Angelone stated that once
in a while someone may have heard a song on the radio and forgot about appellant’s exception to
whistling. When management was made aware that someone was whistling, it asked the
employee to stop. Mr. Angelone did not recall one instance where someone insisted on whistling
after being reminded not to do so. He could only remember three occasions during this period
when an employee may have forgotten not to whistle. In each of these instances, the employee
refrained from whistling when reminded to do so. Mr. Angelone stated that management was
not aware of the October 24, 2006 incident. He stated that, if appellant had reported the incident
to management, it would have been handled differently. At no time during the more than twoyear period alleged by appellant, had a determination been made that a hostile environment
existed. Mr. Angelone stated that an investigation of the December 13, 2006 incident revealed a
case of one employee accidentally making incidental contact with another employee.
Mr. Angelone stated that there were no aspects of appellant’s job that could be perceived
as stressful. The overtime list was signed on a voluntary basis. Appellant’s letter carrier duties
were substantially less than most other carriers because his afternoon collection duty was shorter
than 99 percent of the other routes, in order to accommodate appellant. He started work at 9:00
a.m. while almost all other carriers began work at 6:30 a.m. or 7:00 a.m. Mr. Angelone stated
that this limited his contact with other carriers. On more than one occasion, appellant was given
telephone numbers and contact names of employee resource counselors to obtain help with
personal circumstances. Mr. Angelone stated that, when appellant expressed concerns about the
type of vehicle assigned to his route, management reassigned a right hand drive long-life vehicle
(LLV) to him. Management also discussed the possibility of moving his work area to another
side of the building but, appellant was not interested. Mr. Angelone stated that his requests for a
different and shorter lunch schedule on Saturdays and realignment of his route were granted.
In a February 15, 2007 report, Dr. Ashley opined that appellant’s severe anxiety,
insomnia and trouble focusing were due to the October 24 and December 13, 2006 assaults. He
advised that appellant was totally disabled for work. In reports dated December 15, 2006 to
May 10, 2007, Dr. Ashley reiterated his diagnosis and found appellant disabled.
By decision dated July 26, 2007, the Office denied appellant’s claim, finding that he did
not sustain an emotional condition in the performance of duty. It found that he failed to submit
sufficient evidence establishing that he was harassed by his coworker.

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On March 5, 2008 appellant requested reconsideration. In an undated letter, he alleged
that approximately seven years prior, a supervisor threw a book at him for asking why a casual
employee received 40 hours of work a week when he had priority to receive those work hours as
a part-time flexible carrier under the union contract. Appellant stated that Roger Wilgres, a
coworker, kicked him at the time clock in front of coworkers, who refused to prepare witness
statements. He contended that Mr. Martins had been assaulting him by slapping him in the head
and pushing him around while management did nothing. Appellant talked to the union about
these incidents and a union representative stated that he would talk to the workroom floor
supervisor about a hostile work environment. He contended that for the past two years he had
been tormented by a group of coworkers that overheard the conversation he had with Mike
Scetta, a coworker, about his high pitch whistling. The whistling hurt his ears and he sustained
hearing loss as a result of serving in the Air Force. Appellant and Mr. Scetta engaged in a
shouting match on the back dock about his whistling. He alleged that Mr. Scetta informed John
Westgate, a union representative, that he knew the whistling bothered appellant and that was why
he did it. Mr. Scetta apologized to appellant. He requested that Mr. Westgate not inform Jack
Clegg, a supervisor, about the incident because Mr. Clegg had advised him on several prior
occasions to stop whistling. Appellant reported the incident to the postmaster who only wanted
the names of the people who were whistling. He did not know their names. A few days later
appellant informed Mr. Westgate that Mr. Martins was still whistling. He stated that
Mr. Westgate talked to Mr. Martins who was not happy that he had reported the incident.
Appellant subsequently asked Mr. Angelone to move his case because the whistling continued.
He did not respond. On December 13, 2006 Mr. Martins suggested to Mr. Clegg that appellant
perform the extra work that Mr. Clegg had assigned to him. Appellant indicated that
Mr. Martins still had to perform the assigned work. He reported the December 13, 2006 incident
at a union. The union vice president advised him that, if this incident were reported to postal
inspectors, then he and Mr. Martins could be fired.
In an undated letter, Mr. Angelone stated that an investigation of the incident involving
Mr. Manfredi determined that there were no grounds for further action as appellant’s allegations
could not be corroborated. He could not comment on the incident involving appellant and
Mr. Wilgres because he did not work at the employing establishment during that time period. As
to the December 13, 2006 incident, an investigation was conducted and it was determined that
there were no grounds to act on appellant’s allegations. The statement from appellant’s
coworker differed considerably from his account of the incident. This was the only alleged
assault he was aware of involving appellant and Mr. Martins.
In an April 14, 2008 narrative statement, Postmaster Jenny McKay-Fazzina related that
she was not aware of the alleged incidents involving appellant, Mr. Manfredi, Mr. Wilgres,
Mr. Martins or the supervisor who threw a book at him. She stated that no report of physical
violence or contact was made prior to December 13, 2006. Moreover, appellant could not
identify the coworker who was whistling or the location of such incidents. He also refused to
identify the coworker with whom he exchanged words. Appellant informed Postmaster McKayFazzina that the issue had been resolved as he had accepted his coworkers’ apology.
Postmaster McKay-Fazzina had no knowledge of any request to have appellant’s case moved
away from his coworkers, Mr. Angelone’s failure to respond to this request or Mr. Martins’
comment to Mr. Clegg.

4

By decision dated May 30, 2008, the Office denied modification of the July 26, 2007
decision. It found the evidence insufficient to establish that appellant was harassed by his
coworkers.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.1 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
1

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

2

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

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

5

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

6

Lillian Cutler, supra note 3.

7

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

5

employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or his frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.11
ANALYSIS
In this case, appellant has not attributed his emotional condition to the regular or
specially assigned duties of being a letter carrier. Rather, he attributed his emotional condition to
being physically assaulted and verbally abused by Mr. Martins, a coworker, on December 13,
2006 and to fear of an injury in the future due to this incident. Appellant contended that, while
picking up flats from the floor, Mr. Martins grabbed his coat, looked him straight in the eyes,
told him to get out of his way and pushed him aside. He also alleged that on December 13, 2006
Mr. Martins suggested to Mr. Clegg that appellant perform the extra work assigned to him.
Appellant alleged that Mr. Martins slapped him in the head and pushed him around on other
occasions. He alleged that Mr. Manfredi physically and verbally assaulted him by grabbing and
threatening him in front of two coworkers. Appellant stated that management and a union vice
president prevented him from reporting this incident, as well as, the December 13, 2006 incident
to postal inspectors because he could be fired. The Board notes that verbal abuse or harassment
may give rise to coverage under the Act. However, there must be evidence that harassment did,
in fact, occur. Mere perceptions of harassment or discrimination are not compensable under the
Act. A claimant must establish a factual basis for allegations that the claimed emotional
condition was caused by factors of employment.12 Appellant has failed to submit sufficient
evidence to establish his assertion that he was physically assaulted or verbally abused. Ms. Gaj
stated that appellant and Mr. Martins incidentally bumped into one another other and that
8

Id.

9

Lillian Cutler, supra note 3.

10

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

11

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

12

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, supra note 2 (for harassment to give rise to
a compensable disability, there must be some evidence that harassment or discrimination did in fact occur);
Pamela R. Rice, supra note 1 (claimant failed to establish that the incidents or actions which she characterized as
harassment actually occurred).

6

Mr. Martin spoke to him in a light-hearted and kidding tone. Mr. Martin walked away without
saying anything further after appellant became angry. This statement does not establish that he
was grabbed, pushed or subjected to verbal abuse by Mr. Martin. The statement of Ms. Gaj is
not sufficient to establish appellant’s allegation of physical harassment by Mr. Martins.
Moreover, the Board finds that appellant’s fear of future injury is not compensable under the
Act.13
Mr. Angelone, a supervisor, stated that the December 13, 2006 incident involved
incidental contact for approximately one second between appellant and Mr. Martins. His
investigation of the incident obtained similar accounts of the incident from Mr. Martins and
Ms. Gaj. According to Mr. Martins, he was returning to his work area when he bumped into
appellant very softly with his hands up to shield the bump. He kiddingly told him to get out of
his way. Mr. Angelone stated that appellant became extremely upset after Mr. Martins bumped
into him and began to curse at him and threatened physical harm. Mr. Martins then walked to his
work area without saying another word to provoke appellant. Mr. Angelone concluded that there
were no grounds for further action. The Board finds that Mr. Angelone’s statement does not
establish a pattern of verbal abuse or harassment of appellant by Mr. Martins. The evidence does
not reflect that Mr. Martins posed any physical or verbal threat to appellant. Appellant has not
established a compensable factor of employment with respect to the December 13, 2006 incident.
Similarly, he did not establish his allegation that Mr. Martins attempted to have work duties
reassigned him. Appellant did not submit a witness statement to corroborate his allegation.
As to his other allegations of harassment, appellant contended that coworkers whistled
and made drumming and popping noises for more than two years which irritated him. Appellant
alleged a shouting match with Mr. Scetta regarding his whistling, for which Mr. Scetta later
apologized. He alleged that on October 26, 2004 a coworker called him a “rat” for telling a
supervisor about the whistling problem. Appellant also stated that a supervisor threw a book at
him after he questioned the hours assigned to a casual employee. He alleged that Mr. Wilgres
kicked him at the time clock in front of coworkers. Appellant also alleged that he was physically
and verbally assaulted by Mr. Manfredi who grabbed and threatened him. He alleged that a
union vice president persuaded him to not report this incident to postal inspectors because he
could be fired. Again, appellant did not submit any witness statements or other evidence to
substantiate his allegations of harassment by his coworkers or supervisors. He has not
established a factual basis for his allegations and they are not compensable factors.14
Mr. Angelone noted that several service talks were given to appellant’s coworkers in
response to his complaint that they were making noises. They were reminded to be respectful of
all coworkers. Mr. Angelone noted only three occasions when an employee may have forgotten
not to whistle. In each of these instances, the employee refrained from whistling when
requested. Mr. Angelone related that he was not aware of the October 24, 2006 incident. The
Board finds that Mr. Angelone’s statements do not establish verbal abuse or harassment on the
part of by appellant’s coworkers. His statements reflect that management investigated

13

See Andy J. Paloukos, 54 ECAB 712 (2003); Calvin E. King, 51 ECAB 394 (2000).

14

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

7

appellant’s allegations but they were not supported. The Board finds that appellant has not
established a compensable factor of employment with respect to harassment by his coworkers.15
As appellant has not established any compensable factors of his employment, the Board
finds that he did not sustain an emotional condition in the performance of duty.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.16
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 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

15

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

16

As appellant has not submitted the necessary evidence to substantiate a compensable factor of employment as
the cause of his emotional condition, the medical evidence relating appellant’s emotional condition need not be
addressed. Karen K. Levene, 54 ECAB 671 (2003).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, CUSTOMER
CARE CENTER, Detroit, MI, Employer
__________________________________________

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

Docket No. 15-0097
Issued: August 21, 2015

Oral Argument July 22, 2015

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

JURISDICTION
On September 12, 2014 appellant timely appealed a March 31, 2014 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days elapsed from
the last merit decision of January 7, 2013 to the filing of the current appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.3
1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R. §
501.3(e)-(f)(2014). One hundred and eighty days from March 31, 2014, the date of OWCP’s last decision, was
Saturday, September 27, 2014. The next business day was Monday, September 29, 2014. Because using
October 17, 2014, the date the appeal was received by the Clerk of the Appellate Boards, would result in the loss of
appeal rights, the date of the postmark is considered the date of filing. The date of the U.S. Postal Service (USPS)
postmark is September 12, 2014, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. §§ 8101-8193 (2006).

The case record includes evidence received after OWCP issued its March 31, 2014 decision. Appellant also
submitted additional evidence directly to the Board on appeal. However, the Board is precluded from considering
evidence that was not in the case record at the time OWCP rendered its final decision. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely and he failed to present clear evidence of error.
FACTUAL HISTORY
Appellant, a 41-year-old mail processing clerk, has an accepted occupational disease
claim for aggravation of lumbar radiculopathy at L5, which arose on or about June 13, 2011
(xxxxxx086). He previously injured his lower back in a December 14, 2001 work-related fall,
which OWCP accepted for back contusion, lumbar radiculopathy, L4-5 disc protrusion, and
L5-S1 disc herniation (xxxxxx459).4 At the time of appellant’s June 2011 injury, he was
working in a limited-duty capacity as a call center agent. The work restrictions were due to his
December 2001 employment injury.5 OWCP paid wage-loss compensation for temporary total
disability effective June 15, 2011, and placed appellant on the periodic compensation rolls.
Effective August 9, 2012, OWCP terminated appellant’s wage-loss compensation based
on the June 1, 2012 report of Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon
and OWCP referral physician. Dr. Obianwu found no evidence of an ongoing lumbar contusion,
lumbar radiculopathy, or L4-5 disc herniation. He also reported that there were no residuals of
the June 2011 aggravation of lumbar radiculopathy at the L5 level. The only unresolved
condition was appellant’s L5-S1 disc herniation. Although appellant was unable to return to his
date-of-injury position, Dr. Obianwu found that the residuals of the L5-S1 disc herniation did not
preclude him from resuming work as a call center agent. Consequently, OWCP terminated
wage-loss compensation. However, appellant remained eligible for medical benefits. On
January 7, 2013 the Branch of Hearings and Review affirmed OWCP’s August 9, 2012 decision.
Following the hearing representative’s decision, OWCP received additional medical
evidence, which included treatment records and reports from Dr. Thomas C. Schuler, a Boardcertified orthopedic surgeon, who initially examined appellant on January 8, 2013 and
diagnosed, lumbar radiculitis. It also received a January 25, 2013 electromyography and nerve
conduction study (EMG/NCV) that evinced left-sided radiculopathy at L5-S1. Additionally,
Dr. Warren D. Yu, a Board-certified orthopedic surgeon, examined appellant on March 1, 2013,
and diagnosed work-related L5-S1 left-sided radiculopathy.
He recommended a
microdiscectomy at L5-S1. Appellant also submitted additional follow-up treatment records and
reports from Dr. Schuler dated April 9, May 16 and 30, and October 8, 2013.
In correspondence dated December 23, 2013, received on January 21, 2014 appellant
requested reconsideration. He challenged OWCP’s reliance on Dr. Obianwu’s June 1, 2012
opinion, and highlighted Dr. Schuler’s treatment records covering January through
4

The case records for appellant’s two work-related lumbar injuries have been combined, and the December 2001
traumatic injury claim was designated the master file (xxxxxx459).
5

Appellant’s restrictions included sedentary work that did not involve repetitive bending or lifting greater than 20
pounds. He was also limited to no more than two hours per day of lifting and bending/stooping. Upon resuming
work on June 13, 2011 appellant was expected to participate in a five-day call center agent training program. His
return to work was short-lived, lasting only two days.

2

October 2013. Appellant also noted the latest EMG/NCV study results that showed left-sided
L5-S1 radiculopathy. OWCP subsequently received February 2014 treatment notes from
Dr. Schuler, which included a recent x-ray report. When he last saw appellant on February 27,
2014, Dr. Schuler noted that OWCP approved the requested surgery, but a new magnetic
resonance imaging scan was necessary before proceeding with surgery.
In a decision dated March 31, 2014, OWCP found that appellant’s request for
reconsideration was untimely. It also found that he had not presented clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.6 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.7 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which
review is sought.8 When a request for reconsideration is untimely, OWCP will undertake a
limited review to determine whether the application presents clear evidence of error on the part
of OWCP in its most recent merit decision. The application must establish, on its face, that such
decision was erroneous.9
ANALYSIS
The record indicates that OWCP received appellant’s request for reconsideration on
January 21, 2014, which is more than one year after the January 7, 2013 merit decision
terminating wage-loss compensation. As such, the request for reconsideration from that decision

6

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
7

20 C.F.R. § 10.607.

8

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP decision for which review is sought for merit
decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).
9

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise, and explicit, and it must be apparent on its face that OWCP committed an error. See Leona N. Travis,
43 ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews,
44 ECAB 765, 770 (1993).

3

was untimely.10 At oral argument, appellant represented that USPS tracking information
revealed that he mailed the request on January 2, 2014, and the postal service delivered it to a
Washington, DC address on January 6, 2014. However, the tracking information was not part of
the record at the time OWCP issued its March 31, 2014 decision and the Board is precluded from
considering this information for the first time on appeal.11 Consequently, there is no evidence of
record that contradicts the iFECS receipt date of January 21, 2014.12 Because appellant’s request
was untimely, he must demonstrate clear evidence of error on the part of OWCP in terminating
wage-loss compensation.13
The senior claims examiner noted in her March 31, 2014 decision that she considered
appellant’s request under 20 C.F.R. § 10.607(b) to determine whether he presented clear
evidence that OWCP’s last merit decision was incorrect. After citing Board precedent regarding
the type of evidence necessary to establish clear evidence of error, she found that he “did not
present clear evidence of error.” However, the decision did not identify the issue on
reconsideration, nor did it discuss any of the evidence OWCP received since its last merit
decision dated January 7, 2013.
An OWCP decision “shall contain findings of fact and a statement of reasons.”14 The
March 31, 2014 decision does not identify OWCP’s reason(s) for finding that appellant had not
demonstrated clear evidence of error. The “letter decision” format used by the claims examiner,
while appropriate under the circumstances, should nonetheless include “a brief evaluation of the
evidence submitted....”15 OWCP must properly review all the evidence to determine if the clear
evidence of error standard has been met.16 Because OWCP’s March 31, 2014 decision does not
fully comply with 20 C.F.R. § 10.126, the decision will be set aside in part. Accordingly, the
case shall be remanded for a proper review of the evidence and issuance of an appropriate final
decision.

10

See supra note 8. Timeliness is determined by the document receipt date of the request for reconsideration as
indicated by the “received date” in the Integrated Federal Employees’ Compensation System (iFECS). Federal
(FECA) Procedure Manual, supra note 9 at, Chapter 2.1602.4b. Federal (FECA) Procedure Manual, supra note 8 at,
Chapter 2.1602.4b.
11

See supra note 3.

12

See A.M., Docket No. 14-1351 (issued October 20, 2014) (the Board noted that the document itself contained a
stamp that purported to offer an earlier date of receipt than noted in iFECS).
13

20 C.F.R. § 10.607(b). In this instance, the apparent delay in receipt was likely due to appellant having mailed
his request to the wrong Department of Labor (DOL) address. The instructions that accompanied the hearing
representative’s January 7, 2013 decision clearly advised appellant that the request for reconsideration and any new
evidence should be sent to a DOL/OWCP P.O. Box (8300) in London, KY. However, appellant addressed his
December 23, 2013 request to “800 N. Capitol Street, N.W., Room 800[,] Washington, DC 20211.”
14

20 C.F.R. § 10.126.

15

Federal (FECA) Procedure Manual, supra note 8 at, Chapter 2.1602.5b.

16

Supra note 12.

4

CONCLUSION
OWCP properly determined that appellant’s request for reconsideration was untimely
pursuant to 20 C.F.R. § 10.607(a). As to whether appellant presented clear evidence of error,
that aspect of the case in not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further action consistent with this decision.
Issued: August 21, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albany, NY, Employer
__________________________________________

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

Docket No. 13-1653
Issued: November 22, 2013

Case Submitted on the Record

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

JURISDICTION
On July 1, 2013 appellant, through her attorney, filed a timely appeal from a May 30,
2013 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing
representative which denied her recurrence claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability beginning August 14, 2012 as a result of her accepted March 26, 2010
employment injury.
On appeal, appellant’s counsel alleged that the decision was contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 26, 2010 appellant, then a 50-year-old nurse, strained her
left lower back as a result of repetitively lifting and turning patients throughout her work shift.
Appellant stopped work. OWCP accepted her claim for sciatica, aggravation of preexisting
degenerative disc disease, L4-5 and L5-S1, and bilateral facet arthropathy, L4-5 and L5-S1. On
May 20, 2010 appellant returned to full-time light duty.
On August 22, 2012 appellant filed a recurrence claim alleging that she continued to feel
pain since the March 26, 2010 employment injury. She explained that the pain was the same as
the original injury but now it was severely limiting and had worsened over the last six months to
the point that she had difficulty walking. Appellant reported that she remained in a light-duty
position since returning to work with restrictions related to lifting, strolling, pushing and pulling.
She indicated that she stopped work on August 14, 2012 and requested disability compensation.
The employing establishment alleged that appellant was filing a consequential injury claim due
to exacerbation of her back condition from an unrelated illness. It requested that the claim be
further developed in order to determine if the total disability was due to a consequential injury or
an intervening, nonwork-related health condition.
In July 2 and August 14, 2012 reports, Dr. Kristine Campagna, a Board-certified family
practitioner with a specialty in sports medicine, conducted a follow-up examination of
appellant’s back pain as a result of a work-related injury. Appellant stated that her back pain was
worsening and described the pain as radiating down the posterior and anterior left thigh.
Dr. Campagna reported that appellant should not return to work because of pain as of
August 13, 2012. She stated that appellant’s pain had exacerbated to the point that she had
difficulty ambulating and it was harder for her to work. Examination of appellant’s back
revealed pain and tenderness of the lumbar paraspinal muscles and normal reflexes.
Dr. Campagna diagnosed lumbar radiculopathy and joint pain, localized in the left hip.
In an August 13, 2012 hospital discharge report, Dr. John Krisa, a Board-certified family
practitioner, related appellant’s complaints of swelling and erythema in the left axillary region.
He diagnosed left axillary/breast cellulitis and abscess secondary to methicillin sensitive
staphylococcus aureus status post incision and drainage.
In an August 23, 2012 initial consultation report, Dr. Martin Ferrillo, Board-certified in
physical medicine and rehabilitation, examined appellant for complaints of left-sided lower back
pain with left-sided sciatica. He related that appellant had worked for the employing
establishment for approximately five years and repeatedly injured her lower back and suffered
from left-sided sciatica over the course of her job. Dr. Ferrillo also noted a date of injury of
March 26, 2010. He reported that despite working light duty appellant’s pain gradually
worsened even though she was seen by specialists and was taken out of work because of her left
leg pain. Upon examination, Dr. Ferrillo observed good range of motion in the bilateral upper
and lower extremities with preserved strength with the exception of the left hip where he noted
some reduced range of motion. Patrick’s testing was not producing groin or hip pain.
Examination of the thoracic spine revealed preserved range of motion with no obvious
asymmetry, tenderness, muscle spasm or tenderness to palpation. Examination of the lumbar
spine demonstrated markedly reduced range of motion with forward flexion to only 40 degrees

2

and extension to 10 degrees. Dr. Ferrillo also observed left-sided only lumbar facet loading
tenderness and marketed tenderness at the lumbosacral junction on the left-hand side. Straight
leg raise testing was negative. Dr. Ferrillo diagnosed lumbar intervertebral disc degeneration,
lumbago, lumbar spondylosis without myelopathy, neuralgia neuritis and radiculitis and other
back symptoms. He explained that appellant had lumbar degenerative disc disease and was
suffering from a combination of lumbar stenosis with left-sided radicular symptoms affecting the
left side of the lumbar spine. Dr. Ferrillo recommended more diagnostic tests and lumbar
epidural steroid injections.
In an August 23, 2012 disability note, Dr. Ferrillo stated that appellant would remain out
of work until further notice.
By letter dated September 26, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish that she sustained a recurrence on August 14, 2012 and was disabled
from work. It requested additional evidence to establish her claim.
In a September 24, 2012 report, Dr. Darryl DiRisio, a Board-certified neurological
surgeon, related appellant’s complaints of major hip and groin pain radiating into the anterior
part of her thigh. Upon examination, he did not observe much pain in her hip and groin upon
movement. Dr. DiRisio reported that hip x-rays revealed definite significant degenerative
changes on the left side. He opined that appellant had lumbar spondylosis and hip pain and
recommended that appellant return to his office in three months.
On October 4 and 11 2012 appellant underwent left lumbar epidural steroid injections to
treat her cervical spondylosis and other back symptoms.
In an October 4, 2012 disability note, Dr. Ferrillo stated that appellant should remain out
of work until further notice.
In an October 12, 2012 statement, appellant reported that she had not had any further
injury outside of her employment prior to the date of recurrence. She explained that she never
had a complete recovery from her initial injury and that her symptoms had worsened over the
past six months previous to the date of recurrence. Appellant listed the dates of medical
treatment she received beginning March 31, 2010.
On October 22, 2012 the employing establishment responded to OWCP’s development
letter. It noted that appellant was hospitalized for left axillary/breast cellulitis and requested
further development to determine if appellant’s inability to work was due to an intervening,
nonwork-related health condition. The employing establishment also provided appellant’s lightduty assignment, effective October 7, 2011.
In an October 26, 2012 report, a nurse practitioner related appellant’s complaints of low
back pain at the iliac crest left-sided radiating to her groin and hip down her leg to her foot. She
noted that appellant had a history of left lumbar facets. Upon examination of her spine, the nurse
practitioner observed extreme tenderness over the left sacroiliac (SI) joint area and severely
limited range of motion with pain. Straight leg raise testing was negative bilaterally and supine
straight leg raise testing was negative bilaterally. Examination of appellant’s hips revealed no
pain with internal and external rotation of her right and left hips. Patrick’s test was positive on
3

the left and negative on the right. The nurse practitioner diagnosed sacral disorder, neuralgia
neuritis and unspecified radiculitis. She checked “yes” that appellant’s complaints were
consistent with her history of injury and illness.
In a decision dated November 30, 2012, OWCP denied appellant’s claim finding
insufficient evidence to establish that she sustained a recurrence of disability beginning
August 14, 2012. It determined that the evidence failed to establish a factual basis of how the
August 14, 2012 recurrence occurred and the medical evidence failed to explain how and
whether the alleged recurrence was causally related to the March 26, 2010 employment injury.
On December 11, 2012 appellant, through her attorney, appealed the November 30, 2012
decision and requested a telephone hearing, which was held on March 19, 2013. Appellant
described the light-duty assignments she worked at the employing establishment and the medical
treatment she received following the March 26, 2010 employment injury. She related that she
never recovered from her injury and always had severe sciatica in her left upper and lower leg.
Appellant stated that in 2012 her back and leg pain worsened severely and that she had cellulitis,
which was unrelated to her back injury. She was sick in the hospital for about a week and
reported that after her stay at the hospital the pain in her left leg and lower back was so severe
that she could not walk anymore. Appellant explained that she was sure that her current
condition was related to what originally happened because she never had a problem like this
before. She reported that her doctors informed her that her current condition was an
exacerbation of her already degenerative disc disease and that something was pressing on a nerve
somewhere, which worsened her sciatica. Appellant reviewed the various doctors who treated
her and expressed her discouragement that none of the treatment she received was able to
permanently relieve her lower back and left leg pain.
In reports dated from December 17, 2012 to March 21, 2013, a nurse practitioner related
appellant’s history of low back and left leg pain and noted improved pain after a December 13,
2012 joint injection. Examination of the low back revealed tenderness across appellant’s low
back at the paraspinous area, especially on the left side and tenderness over the SI joint. Range
of motion was moderately limited and straight leg raise testing was negative bilaterally. The
nurse practitioner diagnosed lumbar intervertebral disc degeneration, neuralgia neuritis and
radiculitis unspecified, other back symptoms and sacral disorder. She indicated that appellant
was not working and checked “yes” that appellant’s complaints were consistent with her history
of injury.
In a January 30, 2013 report, Dr. Ferrillo stated that he was treating appellant for
neuralgia, lumbago and sacral disorder of her back. He reported that her prognosis was good and
she could return to light duty on February 1, 2013 with restrictions of no pushing or pulling
greater than five pounds on a consistent basis and no standing more than 10 minutes on a
consistent basis. Dr. Ferrillo also noted that appellant could use a cane to ambulate.
In a February 1, 2013 return to work slip, an unknown provider with an illegible
signature stated that appellant could return to limited duty.
In a March 28, 2013 report, Dr. Ferrillo stated that appellant had been his patient since
August 23, 2012 and had been out of work. He noted that he performed an initial consultation on

4

August 23, 2012 and provided a work note for appellant to remain out of work until her
treatment was completed. Dr. Ferrillo reported that she suffered from sciatica and aggravation of
preexisting degenerative disc disease at L4-L5 and L5-S1, bilateral facet arthropathy at L4-L5
and L5-S1, lumbago, lumbar spondylosis and sacral disorder. He stated that appellant had been
bedridden for five days and in the hospital for five days due to severe pain. Dr. Ferrillo
explained that she had difficulty walking and sitting and standing for long periods of time due to
her low back pain and severe sciatica. He opined that this condition was an exacerbation of
sciatic and aggravation of preexisting degenerative disc disorder after extended period of limited
mobility secondary to her illness.
In a decision dated May 30, 2013, an OWCP hearing representative affirmed the
November 30, 2012 decision denying her recurrence claim finding insufficient medical evidence
to establish that she was disabled from work as a result of the accepted March 26, 2010
employment injury.
LEGAL PRECEDENT
OWCP regulations define the term recurrence of disability as 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 injury or illness without an intervening injury or new exposure to the
work environment that caused the illness. This term also means an inability to work when a
light-duty assignment made specifically to accommodate an employee’s physical limitations due
to his work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force) or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.2 OWCP’s procedure manual provides that a recurrence of disability also
includes worsening of disability due to an accepted consequential injury.3
Where an employee, who is disabled from the job he or she held when injured returns to a
light-duty position or the medical evidence establishes that he or she can perform the light-duty
position, the employee has the burden to establish by the weight of the reliable, probative, and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, the employee must show either a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.4 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
that the disabling condition is causally related to the employment injury. The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.5
2

20 C.F.R. § 10.5(x).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (March 2011).

5

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 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.7
ANALYSIS
OWCP accepted that appellant aggravated her preexisting degenerative disc disease and
sustained sciatica as a result of a March 26, 2010 employment injury. Appellant stopped work
and returned to light duty on May 20, 2010. On August 22, 2012 she submitted a recurrence of
disability claim alleging that she never fully recovered from her original injury and that the pain
continued to worsen. OWCP denied her recurrence claim finding insufficient evidence to
establish that she sustained a recurrence of disability causally related to the March 26, 2010
employment injury.
Appellant has not alleged a change in her light-duty job requirements. Instead, she
attributed her inability to work to a change in the nature and extent of her employment-related
back and left leg conditions. Appellant, therefore, has the burden of proof to provide medical
evidence to establish that she was disabled due to a worsening of her accepted work-related
conditions. The Board finds that she has not met her burden of proof to establish her claim.
Appellant submitted medical reports and disability slips from Dr. Ferrillo. In an
August 23, 2012 initial consultation report, he reviewed appellant’s history and noted a
March 26, 2010 injury at work. Dr. Ferrillo related that appellant suffered from lower back pain
and left-sided sciatica over the course of her job. He conducted an examination and explained
that appellant had lumbar degenerative disc disease and was suffering from a combination of
lumbar stenosis with left-sided radicular symptoms affecting the left side of the lumbar spine. In
a March 28, 2013 report, Dr. Ferrillo noted that appellant had been in the hospital for five days
due to severe pain and that she experienced difficulty walking, sitting and standing. He opined
that this was an exacerbation of sciatic and aggravation of preexisting degenerative disc disorder
after extended period of limited mobility secondary to her illness. In August 23 and October 4,
2012 disability slips, Dr. Ferrillo excused appellant from work until further notice.
The Board notes that Dr. Ferrillo excused appellant from work beginning August 23,
2012 and explained that her degenerative disc condition was worsening. He also, however,
described an incident when she was hospitalized for five days due to an unrelated illness and
noted that the exacerbation of her condition occurred after this extended period of limited
mobility. Although Dr. Ferrillo documents the worsening of her condition, he does not explain
how this worsening of appellant’s conditions was spontaneous in nature or causally related to the
accepted employment injury. Instead, he also relates the exacerbation of her condition to her
limited mobility and hospitalization resulting from an unrelated illness. The Board finds that
6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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Dr. Ferrillo offered no medical rationale explaining whether appellant’s work stoppage was due
to a worsening of her employment-related condition or an unrelated illness. Thus, his reports are
of diminished probative value and insufficient to support her claim that her recurrence of
disability was causally related to her March 26, 2010 employment injury.8
Appellant was also examined by Dr. Campagna. She related that appellant’s back pain
had worsened to the point that she had difficulty ambulating and doing work. Dr. Campagna
conducted an examination and diagnosed tenderness of the lumbar paraspinal muscles and
normal reflexes. She reported that appellant could not return to work as of August 13, 2012
because of pain. Although Dr. Campagna excused her from work beginning August 13, 2012,
she did not provide any explanation on the cause of appellant’s inability to work other than back
pain.9 Similarly, Dr. DiRisio’s September 24, 2012 report is also insufficient to establish
appellant’s claim as there is no opinion regarding the cause of appellant’s lumbar and hip pain.
Appellant also submitted various reports from a nurse practitioner dated from October 26,
2012 to March 21, 2013 regarding her treatment for back pain and sciatica. These reports are of
limited probative value, however, because nurse practitioners are not considered physicians
under FECA.10
Appellant has the burden of proof to provide evidence from a qualified physician to
support the recurrence of total disability for any period of time. In this case, none of the medical
reports submitted by appellant contained a rationalized opinion to explain why she could no
longer perform her light-duty position as a result of the worsening of her accepted conditions.
Because she has failed to submit such rationalized medical evidence establishing that her
claimed recurrence of disability beginning August 14, 2012 was causally related to the accepted
employment injury appellant has failed to meet her 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 did not meet her burden of proof to establish a recurrence
of disability beginning August 14, 2012 causally related to the March 26, 2010 employment
injury.

8

When a claimant stops work for reasons unrelated to the accepted employment injury, there is no disability
within the meaning of FECA. A.M., Docket No. 09-1895 (issued April 23, 2010); see also M.W., Docket No.
13-948 (issued August 28, 2013).
9

T.S., Docket No. 13-227 (issued April 9, 2013); R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59
ECAB 271 (2007).
10

Section 8101(2) provides as follows: the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2). See also R.M., 59 ECAB 690 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the May 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 22, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8