United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________

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

Docket No. 10-1438
Issued: February 14, 2011

Case Submitted on the Record

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

JURISDICTION
On April 30, 2010 appellant filed a timely appeal from a March 22, 2010 merit decision
of the Office of Workers’ Compensation Programs denying appellant’s claim for an
employment-related hearing loss. Pursuant to 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 met his burden of proof to establish that he sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On May 1, 2009 appellant, then a 75-year-old retired rigger, filed an occupational disease
claim alleging that he sustained hearing loss due to noise exposure while employed as a rigger
and rigger foreman.

Appellant and the employing establishment supplied audiometric records for the period
August 13, 1970 to May 1, 2009. An August 13, 1970 employing establishment audiogram
showed the following decibel (dBA) losses at frequencies of 500, 1,000, 2,000, 3,000, 4,000 and
6,000 Hertz (Hz): 20, 20, 20, 30, 40 and 40 for both ears. Employing establishment audiograms
dated August 23, 1983, June 29 and September 6, 1989 noted significant threshold shifts
exceeding 20 dBA. A December 18, 1990 employing establishment audiogram showed the
following dBA losses at 500, 1,000, 2,000, 3,000, 4,000 and 6,000 Hz: 15, 25, 5, 20, 35 and 25
for the right ear and 20, 25, 5, 30, 35 and 30 for the left ear.
In a May 4, 2009 report, Dr. Richard W. Seaman, a Board-certified otolaryngologist to
whom appellant was referred by a hearing aid clinic, stated that he complained of occupational
hearing loss that began in or around 1974. He detailed that appellant was with the employing
establishment between 1965 and 1991, worked in a noisy environment due to the nature of his
job and did not normally wear ear protection. Appellant previously served in the military
between 1952 and 1956 and hunted game until 2004. He denied any history of ear injury or
exposure to loud noise since his retirement. Dr. Seaman stated that he did not review appellant’s
prior medical records as they were unavailable. He examined appellant and did not observe any
physical abnormalities. Dr. Seaman noted that a May 1, 2009 audiogram showed the following
dBA losses at 500, 1,000, 2,000 and 3,000 Hz: 35, 35, 10 and 45 for the right ear and 35, 40, 10
and 50 for the left ear. He diagnosed bilateral low frequency hearing loss due to presbycusis and
bilateral high frequency hearing loss caused primarily by occupational noise exposure and, to a
smaller degree, gunfire exposure. Dr. Seaman recommended hearing aids.
A September 11, 2009 statement of accepted facts listed that appellant was exposed to
loud noise at the employing establishment generated by chipping hammers, grinders, saws,
trucks and cranes for eight hours a day as an electrician helper between 1959 and 1960, by
chainsaws, cranes, pile drivers, bulldozers and jackhammers for eight hours a day as a rigger
between 1965 and 1974 and by chipping guns, grinders, sanders, cranes, trucks and ventilation
fans for four hours a day as a foreman between 1974 and 1991. He was also exposed to noise
aboard ships while enlisted in the Navy between 1952 and 1956. Appellant did not use
protective ear wear.
In a September 11, 2009 letter, the Office requested a supplemental opinion from
Dr. Seaman. It provided him with the statement of accepted facts and copies of appellant’s
employing establishment audiograms. The Office asked Dr. Seaman to address the causal
relationship between appellant’s hearing loss and noise exposure at the workplace.
The employing establishment controverted appellant’s claim on September 24, 2009,
contending that appellant “was informed of his hearing loss while employed through yearly
physicals and at the time of his retirement” and untimely filed his claim after he retired.
In an October 1, 2009 report, Dr. Seaman remarked that the earliest available audiogram
dated August 13, 1970 demonstrated that appellant’s hearing was normal at that time. He added
that the audiogram performed on December 18, 1990, around the time of appellant’s retirement,
indicated that his hearing was “in essence within normal limits” with slight high frequency loss

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found in the left ear.1 On the basis of these industrial audiograms, Dr. Seaman opined that
appellant sustained some hearing loss from work-related noise exposure, but noted that the loss
was not significant and that “no impairment rating existed” at the time of retirement. He pointed
out that the May 1, 2009 audiogram exhibited significant subsequent hearing loss and concluded
that appellant’s present condition was not caused by federal occupational noise exposure.
Dr. Seaman elaborated that exposure to firearm noise likely contributed to greater, asymmetrical
loss in appellant’s left ear. He concluded that, based on a review of occupational audiograms
and appellant’s history of firearm exposure, appellant had hearing loss but that it was not due to
occupational noise damage during federal civilian employment.
By decision dated October 16, 2009, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to demonstrate a causal relationship between his hearing loss
condition and employment-related noise exposure.
On November 5, 2009 appellant requested a review of the written record, maintaining
that his injury was the result of 26 years of noise exposure at the workplace. He stated that his
baseline was revised because of his hearing loss and his audiograms showed that he sustained
this loss before his retirement. Appellant also asserted that he fired only one or two shots
annually when he hunted.
By decision dated March 22, 2010, the Office hearing representative affirmed the
October 16, 2009 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disabilities and/or specific conditions for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.5 To establish fact of injury in an
1

The Board notes that Dr. Seaman identified this audiogram initially as the “audiogram done at about [1991]”
and later as “the audiogram of 1991.” There are no 1991 audiograms of record. However, appellant’s last
audiogram prior to his retirement was conducted by the employing establishment less than two months earlier on
December 18, 1990. Dr. Seaman was likely referring to this industrial audiogram as it not only was within the
temporal proximity of appellant’s retirement but also matched the diagnostic account in his report.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

See S.P., 59 ECAB 184, 188 (2007).

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occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors.7
ANALYSIS
The Board finds that the case is not in posture for decision.
The evidence supports that appellant sustained hearing loss, he was routinely exposed to
loud noise at the workplace generated by industrial equipment and machinery from 1959 until his
retirement on February 1, 1991 and the employing establishment was aware of his condition
through annual physical audiograms. The medical evidence of record provides support that a
portion of appellant’s hearing loss is employment related.
Dr. Seaman’s May 4, 2009 report attributed appellant’s bilateral high frequency hearing
loss to occupational noise exposure based on his history and the May 1, 2009 audiogram. He
advised that he did not review appellant’s prior audiometric records or otherwise provide
reasoning for his opinion.8 Subsequently, on September 11, 2009 the Office requested a
supplemental medical report from Dr. Seaman and provided him with appellant’s industrial
audiograms and a statement of accepted facts for review. In his October 1, 2009 report,
Dr. Seaman commented that appellant’s hearing was normal on or around August 13, 1970, the
date of the earliest audiogram, was essentially stable aside from high frequency loss in the left
ear before his retirement in 1991 and depreciated considerably afterward. While he concluded
that appellant’s hearing loss after his retirement was not caused by federal occupational noise
exposure, Dr. Seaman nonetheless opined that appellant sustained some hearing loss from workrelated noise exposure. The Office did not request that Dr. Seaman clarify this apparent
inconsistency.
Office procedures provide that, in hearing loss claims, a claimant should be referred to a
qualified specialist for audiological evaluation and otological examination addressing the
relationship of any employment-related hearing loss and the degree of permanent impairment if
6

See R.R., 60 ECAB ___ n.12 (Docket No. 08-2010, issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238,
241 (2005).
7

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 4 at 352.

8

See M.W., 57 ECAB 710 (2006) (medical conclusions based on an inaccurate or incomplete factual history are
of diminished probative value); George Randolph Taylor, 6 ECAB 986, 988 (1954) (medical opinion not fortified by
medical rationale is of little probative value).

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the medical report submitted by the claimant does not meet its requirements for adjudication.9
Here, Dr. Seaman’s opinion did not address the inconsistency in his October 1, 2009 report in
which he found that appellant had some work-related hearing loss at the time of retirement but
where he also concluded that his hearing loss was not due to occupational noise damage.10 In
light of this, the Office should have requested further clarification for Dr. Seaman or referred
appellant for a second opinion.
On appeal, appellant asserts that his condition was worsened by his workplace noise
exposure. He states that he does not seek monetary compensation but wants the claim accepted
so that the Office may provide him with hearing aids. As the case is remanded for further
medical development, this aspect of his claim is in an interlocutory posture.11
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant
sustained an occupational hearing loss.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Occupational Illness, Chapter 2.806.5(a)(3)
(September 2010) & Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.8(a)(1) (March 2010).
10

Dr. Seaman noted that the work-related hearing loss that appellant sustained at the time of his retirement was
“not significant.” It is well established that when a factor of employment aggravates, accelerates or otherwise
combines with a preexisting, nonoccupational pathology, the employee is entitled to compensation. Further, it is not
necessary to prove a significant contribution of employment factors to a condition for the purpose of establishing
causal relationship. Kathleen M. Fava, 49 ECAB 519 (1998).
11

See 20 C.F.R. § 501.2(c)(2).

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ORDER
IT IS HEREBY ORDERED THAT the March 22, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: February 14, 2011
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
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, LENOX HILL
STATION, New York NY, Employer
__________________________________________
Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1566
Issued: January 2, 2014

Case Submitted on the Record

ORDER REVERSING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On June 19, 2013 appellant, through her attorney, filed a timely appeal from a March 6,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board
docketed the appeal as No. 13-1566.
This case has previously been before the Board. In a decision dated December 11, 2012,
the Board reversed OWCP’s May 16, 2012 decision as it had failed to adequately advise
appellant it was rescinding acceptance of its previously accepted recurrence claim.
In a decision dated March 6, 2013, OWCP failed to follow the Board’s December 11,
2012 directions.1 The March 6, 2013 decision did not properly issue a recession decision, but
rather sent appellant to a second opinion examination and based on the second opinion report,
again denied appellant’s clam for recurrence. It did not inform her correctly and accurately of
the grounds on which it rejected her claim in order to afford her the opportunity of meeting, if

1

OWCP based its determination on the March 6, 2013 report from Dr. Jonathan Black, a Board-certified
orthopedic surgeon, who provided a second opinion evaluation.

possible, any defect.2 As OWCP failed to properly issue a rescission of its prior acceptance of
appellant’s claim for recurrence, its decision is reversed.3
IT IS HEREBY ORDERED THAT the March 6, 2013 decision of the Office of
Workers’ Compensation Programs is reversed. The case is returned for OWCP to comply with
the Board’s prior directives.
Issued: January 2, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

See Y.S., Docket No. 10-2325 (issued August 23, 2011); John M. Pittman, 7 ECAB 514 (1955).

3

The Board has final authority to determine questions of law and fact. Its determinations are binding upon
OWCP and must, of necessity, be so accepted and acted upon by the Director. See Anthony Greco, 3 ECAB 84,
85 (1949).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Doraville, GA, Employer
__________________________________________

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

Docket No. 17-0073
Issued: July 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 17, 2016 appellant filed a timely appeal from a September 13, 2016 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty.

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2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board’s jurisdiction however is limited to reviewing the
evidence that was before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to review
this new evidence on appeal. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that the medical evidence of record establishes her current
anxiety and depression for which she takes medication. She also contends that she reduced her
work schedule to four hours a day due to these conditions.
FACTUAL HISTORY
On April 21, 2014 appellant, then a 44-year-old manager, filed an occupational disease
claim (Form CA-2) alleging that on November 9, 2014 she first became aware of her stress and
anxiety and realized that her conditions were caused or aggravated by false allegations, extreme
potential disciplinary measures, discrimination, and conditions of employment regarding her
work duties and responsibilities. She stopped work on the filing date of her claim.
Appellant submitted an April 20, 2016 medical report from Dr. Patricia A. Jones, a
Board-certified psychiatrist, who advised that appellant would be tentatively off work through
May 4, 2016.
By letter dated May 10, 2016, OWCP informed appellant of the deficiencies of her claim
and requested that she respond to its inquiries. It also requested that the employing
establishment respond to her allegations.
In a January 20, 2016 certification of health care provider form for the Family and
Medical Leave Act (FMLA), Daniel Serritella, Ph.D. and licensed psychotherapist, diagnosed
depression and anxiety.
Dr. Serritella placed appellant off work from January 15 to
April 1, 2016.
In a May 23, 2016 narrative statement, appellant related that in June 2015 after an
internal investigation conducted by the employing establishment’s Office of Inspector General
regarding false allegations made against her by an employee she was told not to report to work.
She experienced mild symptoms of sleepiness, agitation, rapid heart beating, sadness, and loss of
appetite, interest, and focus. Appellant noted that on September 15, 2015 she was interviewed
regarding the allegations. In October 2015, she requested a review of the investigative findings,
but claimed that she did not receive any findings or results of the investigations, as requested,
which she claimed violated employing establishment polices and standard operating procedures.
Appellant stated that, in November 2015, she received a notice of proposed reduction in
grade by five levels from an EAS 22 to an EAS 17 despite the fact that this notice stated that no
harassment had been found. She noted that her symptoms worsened at that time and she sought
medical treatment from Dr. Serritella who advised her not to return to work until April 2016.
Nonetheless, appellant returned to work at the beginning of March 2016 because she felt better
and hoped to continue her employment. When she returned, however, she was not allowed to
return to her official position. During the last week in March 2016, appellant received a notice
of decision which reduced her from a manager to a supervisor and assigned her to the
Ralph McGill Station, where she had previously been subjected to the false allegations.
Appellant contended that she was completely devastated as the action appeared to be
punitive, personally motivated, and an act of over aggression to support a position of authority
by a new incoming postmaster. Approximately, two days later she explained that she received

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an amendment to the previous notice which indicated that a new assignment was to the West End
Station as a level 20 supervisor. On or about April 5, 2016 appellant reported to work at this
location.
Appellant claimed that she dreaded retaliation by a high-level management official in this
office who she had named in another ongoing case. She claimed that for almost 11 months she
had been mocked, ridiculed, and humiliated, and was the subject of numerous rumors or
speculations throughout the employing establishment due to a lack of confidentiality and harsh
unwarranted personal actions. Appellant noted a recommendation from her physician that she
attend two-hour sessions of group therapy, four days a week. She alleged that Postmaster O.C.
decided not to allow her to return to her official job duties/tasks or to be transferred to another
office. Appellant further alleged that W.W., Manager, customer service operations, conducted
the investigative interview, issued the notice of proposed reduction, and denied her the
opportunity to transfer to another office to resume her official job duties as a station manager.
She also contended that her emotional conditions were caused by P.M., a human resources
manager, and S.R., a district manager.
By decision dated June 15, 2016, OWCP denied the claim finding no compensable
factors.
In an appeal request form and a letter dated June 22, 2016, appellant requested
reconsideration.
Appellant submitted the November 9, 2015 notice of proposed reduction in pay or grade
signed by W.W. which proposed to reduce appellant from a level 22 manager, customer services,
with an annual salary of $84,451.00 to a level 17 supervisor, customer service, with an annual
salary of $76,006.00 because she exhibited inappropriate behavior with a male city letter carrier
from January to October 2014. W.W. had noted that text messages from appellant revealed that
her actions were improper and violated section 665.16 of the employee and labor relations
manual. W.W. provided samples of these text messages which included, “Thank u Happy Easter
to u too dear;” “Unfortunately u make me feel regret for taking a personal interest n u for
absolutely no reason …;” “How r u Can’t sleep;” “U r so you I wish I could answer that in
graphic detail …;” “Feeling pretty sentimental for some strange reason and NO but I do wish u
were here gn my funny valentine miss u;” and “Kind of thought I might want 2 come by but I’m
n gn.” W.W. noted that, during the September 15, 2015 interview, appellant denied having a
relationship or contact with W.C. However, W.W. possessed approximately 60 pages of text
messages to the contrary. Appellant also denied inviting W.C. to her residence for dinner, but
W.W. responded that she sent him a text message that read, “Is u interested n coming to dinner
Sunday at 4.” W.W. indicated that, while appellant’s actions did not rise to the level of sexual
harassment, they were inappropriate and unethical given her role as a manager.
In a March 29, 2016 letter decision, the employing establishment finalized its reduction
of appellant’s pay and grade.
A Merits Systems Protection Board (MSPB) order dated May 19, 2016 scheduled a
preliminary status conference regarding appellant’s appeal of the employing establishment’s
November 9, 2015 notice.

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In a May 25, 2016 letter, the employing establishment rescinded its November 9, 2015
notice and the March 29, 2016 decision noting administrative error. It indicated that appellant
would remain an EAS 22 manager, customer services, and would be compensated accordingly.
Appellant submitted an April 25, 2016 referral form for inpatient medical treatment from
a social worker with an unknown signature.
In a June 22, 2016 report, Dr. Katia A. Fordin, a Board-certified family practitioner,
noted a history of appellant’s medical treatment and listed her current medications. She also
noted appellant’s active problems which included, among other things, reactive depression and
anxiety. In prescriptions dated April 21 and June 8, 2016, Dr. Fordin ordered medication to treat
appellant’s diagnosed conditions.
By decision dated September 13, 2016, OWCP affirmed as modified the June 15, 2016
decision. It accepted as compensable employment factors that appellant had issued the
November 9, 2015 notice of proposed reduction in pay or grade, the March 29, 2016 decision
finalizing the reduction in pay or grade, and the May 25, 2016 rescission of the March 29, 2016
decision to appellant. OWCP also accepted as a compensable work factor that on May 19, 2016
appellant was issued the MSPB May 19, 2016 preliminary status conference order. However, it
denied her emotional condition claim because the medical evidence of record failed to contain a
rationalized medical opinion as establishing a causal relationship between her diagnosed
conditions and the accepted employment factors.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which he or she claims compensation was caused
or adversely affected by factors of his or her federal employment.3 To establish that he or she
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
her condition; (2) medical evidence establishing that she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to her emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless, does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reduction3

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

4

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

5

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

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in-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, OWCP 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, it must base its decision on an analysis of the
medical evidence.8
ANALYSIS
Appellant has not attributed her emotional condition to the performance of her regular or
specially assigned duties as a manager under Lillian Cutler.9 Rather, her claim pertains to her
allegation that the employing establishment wrongfully investigated and disciplined her based on
false accusations of her inappropriate behavior with a male suborbinate. Matters involving
discipline and investigations into allegations of wrongdoing are noncompensable administrative
functions of the employing establishment actions unless the employee shows management
committed error or abuse.10 To support such a claim, a claimant must establish a factual basis by
providing probative and reliable evidence.11 OWCP properly accepted as compensable factors of
employment that appellant received the November 9, 2015 notice of proposed reduction in her
pay or grade, the March 29, 2016 decision finalizing the reduction in her pay or grade, and the
MSPB May 19, 2016 preliminary status conference order regarding these actions, which were
rescinded on May 25, 2016 due to the acknowledgement of administrative error in reducing her
pay or grade. The Board, therefore, finds that appellant has established error.
Regarding appellant’s contention that she was wrongfully investigated, she asserted that
she was told not to report to work during the investigation and that employing establishment
management refused to provide findings or results of the investigation. The employing
establishment retains the right to investigate an employee if wrongdoing is suspected or as part
of the evaluation process.12 The record supports that the employing establishment had a
6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

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

8

Id.

9

Supra note 5.

10

N.Y., Docket No. 12-0886 (issued March 26, 2015); Donney T. Drennon-Gala, 56 ECAB 469 (2005);
Thomas O. Potts, 53 ECAB 353 (2002).
11

See Barbara J. Nicholson, 45 ECAB 843 (1994).

12

Jeral R. Gray, 57 ECAB 611 (2006).

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legitimate reason to investigate appellant’s behavior. In the November 9, 2015 notice of
proposed reduction in pay or grade, W.W., manager, customer service operations, noted that the
basis for this action was appellant’s inappropriate and unethical behavior with a male letter
carrier. She noted several sample text messages that appellant had sent to the letter carrier which
indicated an inappropriate personal relationship with a suborbinate. W.W. related that such
behavior was inappropriate and unethical given her role as a manager and violated the employee
and labor relations manual, but it did not rise to the level of sexual harassment. The Board finds
that in this case the employing establishment acted reasonably and did not commit error or abuse
in investigating appellant’s possible inappropriate and unethical behavior.13 Appellant has failed
to establish a compensable employment factor in this regard.
Appellant alleged that the employing establishment acted improperly with regard to her
transfer to Ralph McGill Station, where she had previously been subjected to false allegations.
In addition, she asserted that Postmaster O.C. and W.W. denied her requests to transfer to
another office. The Board has held that denial by an employing establishment of a request for a
different job, promotion, or transfer are not compensable factors of employment as they do not
involve the employee’s ability to perform appellant’s regular or specially assigned work duties,
but rather constitute her desire to work in a different position.14 Appellant did not submit any
evidence of error or abuse on the part of the employing establishment in handling these
administrative matters. Thus, she has not established a compensable employment factor in these
regards.
The Board finds that appellant failed to establish any additional compensable factors. As
OWCP determined that she had established specific compensable factors that involved the
reduction of her pay and grade, the Board must review the medical evidence.15
Dr. Jones’ April 20, 2016 report found that appellant would be tentatively off work
through May 4, 2016. However, she did not provide an opinion addressing whether appellant’s
disability for work was caused or aggravated by the accepted employment factors. Medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value.16 Moreover, Dr. Jones did not diagnose an emotional condition caused
or aggravated by the accepted work factor.17

13

Id.

14

D.R., Docket No. 16-0605 (issued October 17, 2016); Donald W. Bottles, 40 ECAB 349, 353 (1988) (an
employee’s dissatisfaction with being transferred constitutes frustration from not being permitted to work in a
particular environment or to hold a particular position and is not compensable).
15

Tina B. Francis, 56 ECAB 180 (2004); C.E., Docket No. 10-461 (issued November 23, 2010).

16

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
17

A probative medical report includes findings an examination, a firm diagnosis, and medical rationale
supporting the opinion offered. See M.B., Docket No. 17-0314 (issued May 17, 2017); K.W., Docket No. 16-1176
(issued November 2, 2016).

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Similarly, Dr. Fordin’s June 22, 2016 report and April 21 and June 8, 2016 prescriptions
are of diminished probative value. She diagnosed appellant with depression and anxiety and
placed her off work from January 15 to April 1, 2016. Dr. Fordin did not offer an opinion as to
whether these conditions and resultant disability were caused or aggravated by the accepted work
factor.18
Also of record is the January 20, 2016 FMLA form from Dr. Serritella, a licensed
psychotherapist, and April 25, 2016 referral form for inpatient medical treatment from a social
worker. Evidence from a psychotherapist or social worker does not constitute competent
medical evidence under FECA as neither is considered as a physician as defined under section
8102(2) of FECA.19
The Board finds that appellant has failed to submit any rationalized probative medical
evidence to establish that she sustained an emotional condition causally related to the accepted
employment factor. Appellant, therefore, did not meet her burden of proof.
On appeal, appellant contends that the medical evidence of record establishes her current
anxiety and depression for which she takes medication. She also contends that she reduced her
work schedule to four hours a day due to these conditions. As the Board found above, appellant
did not submit any rationalized probative medical evidence supporting a causal relationship
between her diagnosed emotional condition and the accepted employment factor.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish an
emotional condition in the performance of duty.

18

See supra note 16.

19

5 U.S.C. § 8101(2), which provides that 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. R.W., Docket No. 16-1899 (issued February 21, 2017) (social worker); I.W., Docket No. 09-2307
(issued September 1, 2010) (psychotherapist). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical
issue such as causal relationship can only be resolved through the submission of probative medical evidence from a
physician).

7

ORDER
IT IS HEREBY ORDERED THAT the September 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 10-1973
Issued: May 16, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from the May 18, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
permanent impairment of her right arm.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted appellant’s claim for a right shoulder dislocation on May 26, 1987.
She returned on July 6, 1987 in a modified capacity.2 Appellant received compensation benefits.
On September 18 and October 10, 2009 appellant requested a schedule award.
By letter dated October 19, 2009, the Office advised appellant that she was last treated
for her right shoulder on December 8, 1993. It noted that in cases where a significant length of
time elapsed between a work injury and a request for compensation, it was the employees’
responsibility to establish a cause and effect relationship between the original injury and current
complaints. The Office requested that appellant provide a detailed narrative factual statement
describing her general physical condition since the May 26, 1987 work injury and address a
nonwork-related motor vehicle accident she sustained on January 4, 1988.3 It also requested her
employment status and copies of all medical records pertaining to her right shoulder. The Office
noted that the medical evidence should provide a history of the May 26, 1987 work injury and
any other injuries to the right shoulder, including the January 4, 1988 motor vehicle accident.
Appellant was advised to submit medical evidence with objective findings and medical rationale,
as to the issue of the causal relationship between her current right shoulder condition and the
injury sustained at work.
In a December 14, 2009 letter, appellant’s representative submitted new medical
evidence that provided a date of maximum medical improvement and an impairment rating under
the American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed.
2008) (A.M.A., Guides).
In a November 15, 2009 report, Dr. William N. Grant, a Board-certified internist, noted
appellant’s history, completed a permanent impairment worksheet and provided an impairment
rating. The history included that on May 26, 1987 appellant was tossing heavy mail sacks when
she had a sudden onset of excruciating right shoulder pain due to a dislocation of her right
shoulder. Dr. Grant noted that she received treatment but continued to have right shoulder pain.
He examined appellant’s right shoulder and found 80 degrees of flexion, 20 degrees of extension,
80 degrees of abduction and 20 degrees of adduction with internal rotation of 0 degrees.
Dr. Grant advised that severe pain prevented testing of internal and external rotation. He
referred to Table 15-5, Table 15-7 and Table 15-8 and completed an impairment rating
worksheet finding 32 percent impairment to the right upper extremity.4
By decision dated January 20, 2010, the Office denied appellant’s claim for a schedule
award. It noted that Dr. Grant’s report was based on an inaccurate history. The Office found

2

On October 14, 1987 appellant, filed a traumatic injury claim alleging that on that date she sustained an injury to
her right arm in the performance of duty. The claim was denied and retired under File No. xxxxxxx255
3

The record indicates that the motor vehicle accident caused injury to the right shoulder and neck in addition to
other parts of her body.
4

A.M.A., Guides 405, 406, 408.

2

there was a 16-year gap in the medical evidence and that appellant had not submitted medical
evidence responsive to its October 19, 2009 letter.
On January 23, 2010 appellant’s representative requested a telephonic hearing, which
was held on April 6, 2010.
On May 18, 2010 an Office hearing representative affirmed the January 20, 2010
decision.
LEGAL PRECEDENT
Section 8107 of the Act 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.5 The Act,
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 for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.6 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.8
The Board notes that, before applying the A.M.A, Guides, the Office must determine
whether the claimed impairment of a scheduled member is causally related to the accepted work
injury.9 A schedule award can be paid only for a condition related to an employment injury.
Appellant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.10
ANALYSIS
The evidence of record is insufficient to establish that appellant sustained permanent
impairment of her right shoulder causally related to her accepted work injury. The Office
accepted her claim for a right shoulder dislocation on May 26, 1987. Appellant claimed a
schedule award on September 18, 2009. On October 19, 2009 the Office requested that she
provide a medical report addressing her condition since her 1987 work injury, including a
nonwork-related 1988 automobile accident. The requested medical evidence was not received.

5

5 U.S.C. § 8107.

6

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

20 C.F.R. § 10.404.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
9

Michael S. Mina, 57 ECAB 379, 385 (2006).

10

Veronica Williams, 56 ECAB 367 (2005).

3

Appellant provided a November 15, 2009 impairment rating from Dr. Grant who found
32 percent loss to the right upper extremity. The Board notes this report was not sufficient to
establish entitlement to a schedule award as the physician did not address the time lapse between
the work injury and the claim for a schedule award. Dr. Grant did not appear to be aware of a
nonwork motor vehicle accident of January 4, 1988 or her employment history since
May 26, 1987. The Board notes that the report is incomplete and cannot be utilized. Dr. Grant
only addressed the initial injury of May 26, 1987, despite evidence of another injury in
October 1987 and the motor vehicle accident on January 4, 1988. As noted, a schedule award
can be paid only for a condition related to an employment injury.11 A claimant has the burden of
proving that the condition for which a schedule award is sought is causally related to his or her
employment. The Office’s October 19, 2009 letter advised appellant regarding the need for a
detailed report due to the length of time and other factors that could have contributed to her
condition. The report from Dr. Grant did not address these concerns. It is well established that
medical reports must be based on a complete and accurate factual and medical background or
they are of little probative value.12 Dr. Grant did not provide a medically-rationalized opinion,
based upon an accurate history, in which he explained why any permanent impairment was
caused or aggravated by the May 26, 1987 work injury and why it would not be attributable to
nonemployment factors, such as the 1988 motor vehicle accident.13 His opinion is insufficient to
establish that appellant sustained permanent impairment of the right arm causally related to the
May 26, 1987 work injury.
Appellant did not submit any other medical evidence to support that she has permanent
impairment causally related to her accepted work injury.
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a schedule award.

11

See id.

12

Douglas M. McQuaid, 52 ECAB 382 (2001).

13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 18, 2010 is affirmed.
Issued: May 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.N., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN POST
OFFICE, Wichita, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0070
Issued: March 9, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 22, 2020 appellant, through counsel, filed a timely appeal from an August 21,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 21, 2020 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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for authorization of
additional surgery.
FACTUAL HISTORY
On October 25, 2014 appellant, then a 36-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on that date she twisted her left ankle when she stepped
off of a porch onto grass while in the performance of duty. 4 OWCP accepted the claim for left
ankle sprain. Appellant returned to limited duty and, as of May 12, 2015, worked full-time regular
duty. On June 18, 2015 OWCP accepted an additional condition of left tarsal syndrome. On
June 23, 2015 appellant underwent an OWCP-authorized left tarsal tunnel release with neurolysis
and an additional nonauthorized left partial plantar fascia release which were performed by
Dr. Shawn Morrow, a Board-certified orthopedic foot and ankle surgeon. OWCP paid appropriate
benefits and she returned to full-time work in a limited-duty capacity on August 10, 2015.
On October 27, 2015 appellant saw Dr. Steven Howell, a Board-certified orthopedic
surgeon, specializing in ankle and foot surgery. On November 20, 2015 Dr. Howell requested
authorization for additional surgery involving incision of left foot fascia, decompression of tibial
nerve, partial removal of ankle/heel, and partial removal of foot bone. Additional requests were
submitted on January 5, March 9, and June 15, 2016.
On September 16, 2016 OWCP forwarded appellant’s medical record and a statement of
accepted facts (SOAF) to Dr. William Tontz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), to determine whether her requested surgery was medically
necessary and causally related to her accepted left ankle sprain and left tarsal tunnel syndrome. In
a September 20, 2016 report, Dr. Tontz opined that there was evidence of a temporal relationship
between the October 25, 2014 employment injury and the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel and partial removal of foot bone, but
there was insufficient evidence in the case record of failed conservative management to support
plantar fascia release. He thereafter concluded that the proposed incision of foot fascia,
decompression of tibia nerve, partial removal of ankle/heel, and partial removal of foot bone were
not medically necessary.
On November 17, 2016 OWCP referred appellant, along with the medical record and a
SOAF, to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for a second opinion
evaluation. In a November 22, 2016 report, Dr. Johnson reviewed the medical record and the
SOAF and indicated that appellant had received appropriate conservative treatment since her last
surgical procedure, which had not improved enough to allow her to return to full duty. He opined
that only the decompression of tibia nerve (tarsal tunnel release revision) was medically necessary
and causally related to the accepted left tarsal tunnel syndrome. Dr. Johnson opined that the other
4
At the time of injury, appellant was working with medical restrictions under a traumatic injury under OWCP File
No. xxxxxx267. In that claim, OWCP accepted that her fall on August 13, 2016 resulted in right hand contusion, head
contusion, chondromalacia patellae, right knee, nondisplaced fracture of base of fifth metacarpal bone, right hand, and
carpal tunnel syndrome, right upper limb. It has administratively combined these claims, with OWCP File No.
xxxxxx493 serving as the master file.

2

proposed procedures were not causally related to the employment injury or the accepted
conditions. He indicated that the proposed incision of plantar fascia/plantar fascia release was not
related to the accepted diagnosis or secondary to mechanism of injury, the removal of bone
spur/partial removal of ankle/heel was due degenerative/arthritis and not traumatic injury, and the
partial resection of bone/ossicia excision/partial removal of foot bone was a
congenital/developmental deformity to navicular bone which preexisted the employment injury.
On January 17, 2017 OWCP provided Dr. Morrow a copy of Dr. Johnson’s second opinion
report and requested whether he agreed that only the decompression of tibia nerve surgery was
causally related to the October 25, 2014 employment injury and the accepted left tarsal tunnel
syndrome condition. On February 10, 2017 Dr. Morrow concurred with Dr. Johnson’s opinion.
On March 7, 2017 Dr. Howell disagreed with Dr. Johnson’s opinion on causal relation. He
opined that the increased dorsal impingement of the navicular was due to some loss of arch
secondary to the plantar fascial release, which was secondary to employment-related plantar
fasciitis. In a March 21, 2017 report, Dr. Howell also opined that appellant’s talonavicular
spurring was causally related to the accepted conditions. He explained that she had no pain prior
to her injury which worsened after her surgery, consistent with an os naviculare secundum that
loosened up with her original injury and the subsequent spurring was impinging more following
the slight loss of the arch support after the plantar fascial release. Dr. Howell indicated that this
preexisting condition was worsened by the employment injury.
On March 27, 2017 OWCP found a conflict in medical opinion between Dr. Howell and
Dr. Johnson regarding causal relationship and the medical necessity of the specific proposed
surgical procedures. It referred appellant to Dr. Sami Framjee, a Board-certified orthopedic
surgeon, for an impartial medical evaluation.
However, OWCP found that Dr. Framjee had not answered the questions submitted. On
May 18, 2018 it related that appellant would be referred for a new impartial medical evaluation.
On September 13, 2018 OWCP referred appellant, an updated SOAF and a series of
questions, to Dr. Dale D. Dalenberg, a Board-certified orthopedic surgeon, for an impartial
medical evaluation. The SOAF noted that the accepted conditions were a left ankle sprain and left
tarsal tunnel syndrome, and that on June 23, 2015 appellant underwent a left tarsal tunnel release
with neurolysis and left partial plantar fascia release. In its series of questions, OWCP specifically
inquired as to whether the recommended incision of foot fascia, decompression of tibia nerve,
partial removal of ankle/heel, and partial removal of foot bone were medically necessary for, and
causally related to, the accepted conditions of the accepted left ankle sprain and left tarsal tunnel
syndrome.
In a December 21, 2018 report, Dr. Dalenberg noted that appellant was examined on
October 4, 2018. He advised that the proposed procedures were unlikely to improve her condition
and that failure to address her dorsal foot pain and popping by not addressing the talonavicular
joint problem would leave ongoing complaints. Dr. Dalenberg explained that there was no
evidence that performing another tarsal tunnel release would make any difference and the areas of
numbness did not support that it was just tarsal tunnel syndrome. He opined that the proposed
decompression of the tibial nerve was not medically necessary as it had already been performed,
it did not help or had worsened appellant’s symptoms, and it would not fully address her
3

objectively demonstrated numbness. Dr. Dalenberg explained that the proposed excision of the
plantar fascia was not for an accepted condition and was not medically necessary with a
predominant complaint of dorsal pain and foot/ankle popping and pain. He further opined that the
proposed bone removal, particularly removal of the plantar calcaneal spur, was not related to the
accepted conditions and, while it was usually done in conjunction with plantar fascia release, he
opined that it would not appreciably improve appellant’s symptoms. Dr. Dalenberg also advised
that the proposed partial resection of bone/ossicle excision/partial removal of foot bone was not
medically necessary or causally related to the accepted left ankle sprain and left tarsal tunnel
syndrome. He explained that there was evidence of an old dorsal lip avulsion fracture, which was
akin to an ankle sprain, but was never diagnosed or treated. This condition was probably subtly
unstable given her popping complaint, and management was usually c onservative treatment.
Dr. Dalenberg also advised that late surgical treatment was not standard and may be considered
controversial.
By decision dated February 19, 2019, OWCP denied authorization of the requested surgical
procedures. The special weight of the medical evidence was accorded to th e opinion of
Dr. Dalenberg, the impartial medical examiner (IME).
On February 25, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 7, 2019.
OWCP received additional evidence, including x-rays of appellant’s left foot dated
October 4, 2018, which noted small plantar spur and mild degenerative spurring along the dorsal
midfoot.
In an April 2, 2019 report, Dr. Howell indicated that the x-rays taken that day of appellant’s
left foot showed prominent spurring with a very small surface area for weight bearing on the
plantar aspect of her heel directly where she was tender on examination. Appellant also had
numbness and tingling on the bottom of her foot consistent with tarsal tunnel syndrome, which he
believed that had not been completely decompressed, and spurring at the dorsum of the
talonavicular joint. Dr. Howell opined that he could help her with the surgery he previously
offered and outlined his proposed approach. He noted that appellant had been evaluated by an
orthopedist who was not a foot/ankle expert. Dr. Howell questioned the opinion that her condition
would not improve as it was not certain that her tarsal tunnel condition had been adequately
released. He noted that appellant would also benefit by a simple removal of the spurring from the
talonavicular joint and disagreed with Dr. Dalenberg that the talonavicular ligaments would be
involved.
By decision dated June 18, 2019, an Office hearing representative set aside OWCP’s
February 19, 2019 decision and remanded the case to OWCP for further development and a de
novo decision. The hearing representative directed OWCP to have Dr. Dalenberg review
Dr. Howell’s April 2, 2019 report.
In a July 1, 2019 letter, OWCP requested that Dr. Dalenberg review Dr. Howell’s April 2,
2019 report and issue a supplemental report.

4

In a November 20, 2019 addendum, Dr. Dalenberg reviewed Dr. Howell’s April 2, 2019
report and indicated that his concern was that the results of the tarsal tunnel release were uncertain.
He noted that literature documented worse results with revision release, and that results could be
compromised by adhesive neuritis and intraneural damage, which could be the reason for
appellant’s ongoing symptoms. Dr. Dalenberg explained that appellant had a predominance of
dorsal foot pain and popping during his examination, which was not anatomically related to a tarsal
tunnel syndrome diagnosis, and he believed that performing the same surgery would not be
warranted, as the prior procedure had not been successful, and her current symptoms were not due
to tarsal tunnel syndrome. He noted that he had performed various procedures about the foot and
ankle and indicated that he had similar credentials to Dr. Howell. Dr. Dalenberg also noted that
he was called upon by OWCP to weigh in on whether the proposed surgery was for conditions
specified in the SOAF and whether such treatments were likely to be successful. He reiterated his
concern that, while distal release was an indication for revision tarsal tunnel release, it may not be
successful. Dr. Dalenberg also explained that the basis of his medical opinion was the fact that a
large part of appellant’s symptomatology (dorsal foot pain and popping) had nothing to do with
the accepted tarsal tunnel syndrome. He agreed with Dr. Howell that ligament reconstruction
around the talonavicular joint or fusion was not standard with this clinical presentation and
explained that this was mentioned in his prior report as ideas on how to address the dorsal foot
pain and popping. Dr. Dalenberg agreed with dorsal fragment excision but explained that the
procedure was unrelated to the accepted ankle sprain, and tarsal tunnel syndrome.
By decision dated February 25, 2020, OWCP again denied authorization of the requested
surgical procedures. It accorded the special weight of the medical to the opinion of Dr. Dalenberg,
the IME.
On March 4, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held telephonically on
June 11, 2020.
In a July 2, 2020 report, Dr. Howell indicated that he did not understand Dr. Dalenberg’s
opinion that appellant’s symptoms on the dorsum of the foot were unsubstantiated by her other
complaints. He explained that her dorsal foot pain was consistent with talonavicular spurring and
the numbness on the bottom of her foot was consistent with an incompletely released tarsal tunnel.
Dr. Howell opined that appellant had a reasonable chance of responding satisfactorily to the
proposed surgical procedure.
By decision dated August 21, 2020, OWCP’s hearing representative affirmed the
February 25, 2020 decision.
LEGAL PRECEDENT
Section 8103 of FECA 5 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce

5

Supra note 2 at § 8103.

5

the degree, or the period of disability, or aid in lessening the amount of monthly compensation. 6
In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad discretion
in approving services provided, with the only limitation on OWCP’s authority being that of
reasonableness. 7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition. 8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence. 9 In order to prove that the procedure is
warranted, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted. Both of these criteria must
be met in order for OWCP to authorize payment. 10
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination. 11
For a conflict to arise the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.12 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight. 13 If the IME is unable to clarify or elaborate on
his original report, or if his supplemental report is vague, speculative, or lacking in rationale,
OWCP shall refer appellant to a new IME.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.
OWCP properly found that a conflict in medical opinion existed between Dr. Howell,
appellant’s attending physician, who recommended incision of foot fascia, decompression of tibia
nerve, partial removal of ankle/heel and partial removal of foot bone, and Dr. Johnson, the second
6

Id., see also N.G., Docket No. 18-1340 (issued March 6, 2019).

7

D.S., Docket No. 19-1698 (issued June 18, 2020); D.W., Docket No. 19-0402 (issued November 13, 2019); see
also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic, and probable deductions from established facts).
8

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

9

Id.; see also K.W., Docket No. 18-1523 (issued May 22, 2019); Bertha L. Arnold, 38 ECAB 282 (1986).

10

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; K.C., Docket No. 18-0378 (issued June 18, 2019).

12

Id.

13

J.H., Docket No. 19-0513 (issued September 24, 2019).

14

See C.E., Docket No. 19-1923 (issued March 30, 2021); M.S., Docket No. 18-1228 (issued March 8, 2019); R.H.,
Docket No. 17-1903 (issued July 5, 2018).

6

opinion physician, who opined that only the recommended decompression of the tibia nerve was
medically necessary and causally related to the accepted left tarsal tunnel syndrome.
Consequently, it referred her to Dr. Framjee, an IME, to resolve the conflict in medical opinion
pursuant to 5 U.S.C. § 8123(a). However, Dr. Framjee was unable to clarify or elaborate on his
original report in response to OWCP’s questions and it was unlikely that he would respond to an
additional request for clarification. OWCP, therefore, properly referred appellant to a new IME.15
It referred her to Dr. Dalenberg, serving as the new IME, to resolve the conflict in medical opinion.
The Board finds that the special weight of the medical evidence rests with the opinion of
Dr. Dalenberg, who examined appellant, reviewed the medical evidence, and found that the
authorization of additional surgery regarding decompression of tibial nerve was not medically
necessary and additional surgery involving incision of lef t foot fascia, partial removal of
ankle/heel, and partial removal of foot bone were not medically necessary, or causally related to,
the accepted left ankle sprain and left tarsal tunnel syndrome.
The record reflects that Dr. Dalenberg was provided with a SOAF, which listed the
accepted conditions and noted appellant’s June 23, 2015 surgery involved a left tarsal tunnel
release with neurolysis and left partial plantar fascia release. The left partial plantar fascia release
was not authorized by OWCP and was for a condition which OWCP had not accepted. 16
Dr. Dalenberg also provided a series of questions which specifically requested that he provide
medical rationale to support his opinion on the medical necessity for the proposed surgery
involving incision of foot fascia, decompression of tibia nerve, partial removal of ankle/heel, and
partial removal of foot bone.
In his December 21, 2018 report, Dr. Dalenberg opined that the proposed decompression
of the tibial nerve was not medically necessary as it had already been performed, it did not help or
had worsened appellant’s symptoms, and it would not fully address her objectively demonstrated
numbness. He opined, however, that the proposed incision of the plantar fascia, and the partial
removal of ankle/heel, and foot bone were not medically necessary or causally related to the
accepted left ankle sprain and left tarsal tunnel syndrome. Dr. Dalenberg explained that incision
of the plantar fascia was not medically necessary for a predominant complaint of dorsal pain and
foot/ankle popping and pain and, while removal of plantar calcaneal spurs was usually done in
conjunction with plantar fascia release, it would not appreciably improve appellant’s symptoms.
With regard to the proposed partial resection of bone/ossicle excision/partial removal of foot bone,
he explained that it was not medically necessary as appellant had a dorsal foot sprain which was
probably subtly unstable given her popping complaint and management was usually closed.
In response to Dr. Howell’s April 2, 2019 report, Dr. Dalenberg, in his November 21, 2019
report, reiterated that it was not medically warranted to repeat the tarsal tunnel release. He
explained that the results of the tarsal tunnel release was uncertain, noting literature documented
worse results with revision release, that the original surgery had not been successful, and that the
15

Id.

16

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.
See T.E., Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K.
Asaramo, 55 ECAB 200 (2004).

7

results could be compromised by adhesive neuritis and intraneural damage. Dr. Dalenberg further
indicated that appellant’s symptomatology (dorsal foot pain and popping) were from something
other than tarsal tunnel syndrome and was not anatomically related to the accepted tarsal tunnel
syndrome. The Board further notes that, while he agreed with the dorsal fragment excision and
that such removal was usually done in conjunction with plantar fascia release, he opined that the
procedure was not for a diagnosis in the SOAF and was unrelated to the accepted ankle sprain and
tarsal tunnel syndrome. As previously discussed, OWCP has not accepted an employment-related
plantar fasciitis condition and appellant has failed to meet her burden of proof to establish her
burden of proof.
In situations where the case is referred to an IME for the purpose of resolving a medical
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight. 17 The Board finds that Dr. Dalenberg provided
a well-rationalized opinion based on a complete background, his review of the SOAF, the medical
record, and his examination findings. Thus, Dr. Dalenberg’s opinion that the requested procedures
were not medically warranted for the accepted conditions is entitled to the special weight of the
evidence.18
The Board further finds that Dr. Howell’s reports, are insufficient to overcome the special
weight accorded to Dr. Dalenberg because reports from a physician who was on one side of a
medical conflict resolved by an IME are insufficient to overcome the special weight accorded the
report of the IME or create a new conflict. 19
The only limitation on OWCP’s authority in approving or denying service under FECA is
one of reasonableness. 20 OWCP obtained an impartial medical examination by Dr. Dalenberg who
opined that the requested surgical procedures were not med ically warranted for the accepted
conditions. It, therefore, had sufficient evidence upon to deny surgery and did not abuse its
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for authorization of
additional surgery.

17

See D.S., Docket No. 19-1698 (issued June 18, 2020); C.W., Docket No. 17-0918 (issued January 5, 2018);
Patricia J. Glenn, 53 ECAB 159 (2001).
18

See D.S., id., P.F., Docket No. 16-0693 (issued October 24, 2016).

19

J.M., Docket No. 18-1387 (issued February 1, 2019); D.M., Docket No. 17-1992 (issued September 12, 2018);
S.F., Docket No. 17-1427 (issued May 16, 2018).
20

See T.A., Docket No. 19-1030 (issued November 22, 2019); Cathy B. Millin, 51 ECAB 331, 333 (2000).

8

ORDER
IT IS HEREBY ORDERED THAT the August 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2022
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Sill, OK, Employer
__________________________________________

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

Docket No. 08-444
Issued: May 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 3, 2007 appellant filed a timely appeal from an October 24, 2007 decision
of the Office of Workers’ Compensation Programs, denying her claim for a traumatic injury.
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 appellant sustained injuries to her head, neck, shoulders, back, left
hand and left knee in the performance of duty on December 18, 2006.
FACTUAL HISTORY
On December 27, 2006 appellant, then a 54-year-old practical nurse, filed a traumatic
injury claim alleging that she sustained injuries to her head, neck, shoulders, back, left hand and
left knee on December 18, 2006. She fainted and fell while running to her motor vehicle in an
employing establishment parking lot after leaving work.

In an emergency room report dated December 18, 2006, a physician diagnosed a single
episode of syncope (loss of consciousness) of unknown etiology as appellant walked to her car
from work. He noted that she had a past history of fainting on two occasions due to low blood
pressure. The physician indicated that appellant could return to work without restrictions on
December 24, 2006 but should follow-up with her primary care physician.
A January 2, 2007 disability certificate from Dr. Ronald C. Jones indicated that appellant
could return to work on January 8, 2007. He stated that her absence from work was due to the
incident on December 18, 2006.
A February 22, 2007 disability certificate from Dr. Wendy S. Bartanen stated that
appellant was restricted to light-duty work for an indefinite period of time due to multiple
medical problems.
In a September 19, 2007 letter, the Office requested additional evidence, including a
medical report providing a diagnosis and an explanation as to whether the December 18, 2006
incident was caused or aggravated by appellant’s employment. It asked if she had any history of
fainting or any medical conditions related to her fainting. There was no response from appellant.
By decision dated October 24, 2007, the Office denied appellant’s claim on the grounds
that the evidence did not establish that she sustained a work-related injury on
December 18, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden to establish the essential elements of her claim including the fact that the individual is an
employee of the United States within the meaning of the Act, that the claim was timely filed, that
an injury was sustained in the performance of duty as alleged and that any disability or medical
condition for which compensation is claimed is causally related to the employment injury.2
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface and there is no intervention or contribution by any hazard or special condition of
employment -- is not within coverage of the Act.3 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. Although a fall may be
idiopathic, an injury resulting from the fall is compensable if some job circumstance or working
condition intervenes in contributing to the incident or injury, such as if an employee, instead of
falling directly onto the floor, strikes a part of her body against a wall, a piece of equipment,

1

5 U.S.C. §§ 8101-8193.

2

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Carol A. Lyles, 57 ECAB 265 (2005).

2

furniture, machinery or some similar object.4 Appellant has the burden of establishing that she
struck an object connected with her employment during the course of her idiopathic fall.5
ANALYSIS
Appellant alleged that she sustained injuries to her head, neck, shoulders, back, left hand
and left knee after work on December 18, 2006 when she fainted and fell while running to her
motor vehicle in an employing establishment parking lot. She did not allege, nor is there any
evidence, that she struck any object related to her employment before falling to the parking lot
surface. The Office advised appellant of the evidence necessary to establish her claim, including
a medical report providing a diagnosis and an explanation as to whether the December 18, 2006
syncope and fall in the parking lot was caused or aggravated by her employment.
An emergency room physician diagnosed a single episode of syncope of unknown
etiology as appellant walked to her car from work. He noted that she had a past history of
fainting on two occasions due to low blood pressure. As the physician indicated that the cause of
appellant’s fall on December 18, 2006 was an episode of syncope, this report does not establish
that she sustained a work-related injury.
Dr. Jones indicated in a disability certificate that appellant’s absence from work through
January 8, 2007 was due to the incident on December 18, 2006. However, he did not provide a
diagnosis or explain how her disability was causally related to her employment. Therefore, this
evidence is not sufficient to discharge appellant’s burden of proof to establish causal
relationship.
Dr. Bartanen stated that appellant should perform light-duty work for an indefinite period
of time due to multiple medical problems. However, she did not identify these multiple medical
problems or indicate their relationship, if any, to appellant’s employment or to the December 18,
2006 syncope and fall.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an injury on
December 18, 2006 causally related to her employment.

4

Lowell D. Meisinger, 43 ECAB 992 (1992).

5

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 24, 2007 is affirmed.
Issued: May 21, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0051
Issued: June 29, 2020

Case Submitted on the Record

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

On October 7, 2019 appellant, through counsel, filed a timely appeal from an April 10,
2019 decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 20-0051.2

1

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

The Board notes that, following the April 10, 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.

This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated by reference. The relevant facts are as follows.
On February 18, 2009 appellant, then a 34-year-old mail handler operator, filed a traumatic
injury claim (Form CA-1) alleging that on February 9, 2009 she injured her left arm and back when
moving a bulk mail cart while in the performance of duty. OWCP assigned this claim OWCP File
No. xxxxxx098 and accepted the claim for lumbar, left shoulder, and arm strain.4
In a letter dated December 12, 2012, OWCP noted that, under File No. xxxxxx258,
appellant would receive wage-loss benefits on the periodic rolls, effective December 16, 2012.
On March 18, 2015 OWCP terminated appellant’s wage-loss compensation and medical
benefits for OWCP File Nos. xxxxxx098, xxxxxx258, and xxxxxx723, effective March 18, 2015,
finding that she no longer had any residuals or disability due to her accepted conditions.
On August 3, 2015 appellant requested reconsideration. By decision dated October 8,
2015, OWCP denied modification. On November 6, 2015 appellant requested reconsideration.
By decision dated January 21, 2016 OWCP denied modification.
On May 31, 2016 appellant requested reconsideration. By decision dated June 7, 2016,
OWCP denied reconsideration of the merits of her claim.
On March 19, 2019 appellant again requested reconsideration. In support of her request,
she submitted new medical evidence and also resubmitted medical evidence previously reviewed
by OWCP.
By decision dated April 10, 2019, OWCP denied appellant’s March 19, 2019 request for
reconsideration, finding that the request was untimely filed and failed to demonstrate clear
evidence of error. It found that it was unnecessary to address the medical evidence submitted with
the reconsideration request.
The Board finds that the case is not in posture for decision because OWCP failed to make
findings regarding the arguments and evidence submitted in support of appellant’s March 19, 2019
reconsideration request.
OWCP summarily denied appellant’s request for reconsideration without complying with
the review requirements of FECA and its implementing regulations.5 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
3

Docket No. 15-0303 (issued January 14, 2016); Docket No. 14-0315 (issued May 21, 2014), petition for recon.,
denied, Docket No. 14-0315 (issued December 1, 2014).
4
On September 17, 2013 OWCP administratively combined OWCP File Nos. xxxxxx098, xxxxxx258, and
xxxxxx723. File No. xxxxxx098 was designated as the master file. Under OWCP File No. xxxxxx258, OWCP
accepted that appellant sustained cervical and lumbosacral strains on June 9, 2011 while pushing an automated mail
cart. Under OWCP File No. xxxxxx723, it accepted that appellant sustained neck, left shoulder, and upper arm strains
on March 31, 2009 while pulling a heavy try of mail off a pallet of heavy letter trays.
5

T.P., Docket No. 19-1533 (issued April 30, 2020); Id.; see also 20 C.F.R. § 10.607(b).

2

payment of compensation.6 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons. As well, OWCP’s
procedures provide that the reasoning behind OWCP’s evaluation should be clear enough for the
reader to understand the precise defect of the claim and the kind of evidence which would
overcome it.7 In the April 10, 2019 decision, OWCP denied the March 19, 2019 reconsideration
request, finding it was untimely filed as it was received more than a year following the last merit
decision dated January 21, 2016, but failed to analyze the evidence or argument as to whether it
was sufficient to demonstrate clear evidence of error. It specifically related that the medical
evidence submitted had not been considered.
The Board will therefore set aside OWCP’s April 10, 2019 decision and remand the case
for findings of fact and a statement of reasons, to be followed by an appropriate decision on
appellant’s untimely reconsideration request. Accordingly,
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for action consistent with this
decision of the Board.
Issued: June 29, 2020
Washington, DC

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

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

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

6

5 U.S.C. § 8124(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 09-1733
Issued: March 18, 2010

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 June 17, 2009 appellant filed a timely appeal from a May 22, 2009 nonmerit decision
of the Office of Workers’ Compensation Programs denying his hearing request. The Board also
has jurisdiction over the April 9, 2009 merit decision that denied appellant’s claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerits of this
case.1
ISSUES
The issues are: (1) whether appellant satisfied his burden of proof to establish he
sustained an injury in the performance of duty on December 30, 2008 causally related to his
employment; and (2) whether the Office properly denied his request for an oral hearing as
untimely pursuant to 5 U.S.C. § 8124.

1

By decision dated June 25, 2009, the Office denied reconsideration of the April 9, 2009 decision. An Office
decision, issued while the Board has jurisdiction over the matter in dispute, is null and void. Lawrence Sherman, 55
ECAB 359 (2004).

FACTUAL HISTORY
On February 26, 2009 appellant, a 42-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) for a hernia, alleging that on December 30, 2008 while lifting a tub of mail he
experienced a sharp pain in his stomach and groin area.
Appellant submitted a January 21, 2009 report in which Dr. Annie Kou, a family
physician, presented findings on examination and diagnosed right inguinal pain with increased
intra-abdominal pressure, sneezing, coughing and straining. Dr. Kou noted that, while appellant
had groin discomfort, no mass or hernia was palpated. She opined that appellant’s diagnosis
“could be” strain or small hernia.
In a January 29, 2009 report, Dr. David S. Udis, a Board-certified diagnostic radiologist,
reported that an ultrasound scan of appellant’s abdomen revealed no abnormalities.
In a February 5, 2009 report, Dr. Kent Fung, a family physician, presented findings on
examination and diagnosed right inguinal pain with increased intra-abdominal pressure,
sneezing, coughing and straining.
In a February 9, 2009 note, Dr. Daniel D. Eun, a urologist, diagnosed bilateral inguinal
groin hernias and opined that this condition was “likely related to his work.” In a March 10,
2009 note, he reviewed appellant’s history of injury. Dr. Eun opined that inguinal hernias are
“predisposed to forming in patients who lift heavy weights on a regular basis.” While noting that
a congenital component may also influence development, he opined that appellant’s inguinal
hernia developed while he was in his late 30’s, working as a mail carrier because his abdominal
pain presented “only recently.” In a subsequent report (CA-17) dated March 16, 2009, Dr. Eun
diagnosed inguinal hernia and provided work restrictions.
By decision dated April 9, 2009, the Office denied the claim. While it accepted that
appellant lifted a tub of mail on December 30, 2008, it denied the claim because the evidence of
record did not establish that appellant’s medical condition was caused by the accepted
employment incident.
On May 16, 2009 appellant requested a hearing. By decision dated May 22, 2009, the
Office denied appellant’s hearing request because it was untimely.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).

2

injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant lifted a tub of mail on December 30, 2008.
Appellant’s burden is to demonstrate that the accepted employment incident caused a medicallydiagnosed condition. Causal relationship is a medical issue that can only be proven by
substantial, probative rationalized medical opinion evidence.9 Appellant has not submitted
sufficient medical opinion evidence and therefore has not satisfied his burden of proof.
Both Dr. Kou and Dr. Kent diagnosed right inguinal pain, but pain is a symptom, not a
compensable diagnosis.10 Dr. Udis’ reported an ultrasound scan of appellant’s abdomen revealed
no abnormalities. The Board further notes that none of these physicians offered any opinion
regarding the cause of appellant’s current condition. As such their reports are of little probative
value in establishing that appellant sustained a hernia while lifting a tub of mail on
December 30, 2008.
While Dr. Eun, in his March 10, 2009 note, opined that appellant did have bilateral
inguinal hernias and that appellant’s condition occurred while working as a mail carrier, he did
not present findings on examination, a review of appellant’s medical history or describe, with
sufficient medical rationale, the mechanism of injury or explain how the accepted employment
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

G.T., id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
10

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

3

incident of lifting a tub of mail on December 30, 2008 caused appellant’s hernia. He merely
offered a speculative opinion that appellant’s work caused or contributed to his condition
because his pain only presented recently. These deficiencies reduce the probative value of
Drs. Kou, Fung, Eun and Udis’ opinions such that their reports and notes are insufficient to
satisfy appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.
The Board finds that appellant has not satisfied his burden of proof to establish he
sustained an injury in the performance of duty on December 30, 2008 causally related to his
employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act,12 concerning a claimant’s entitlement to a hearing before
an Office hearing representative, states: Before review under section 8128(a) of this title, a
claimant for compensation not satisfied with a decision of the Secretary under subsection(a) of
this section is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.
Section 8124(b)(1) is unequivocal in setting forth the time limitation for requesting
hearings. A claimant is entitled to a hearing as a matter of right only if the request is filed within
the requisite 30 days.13 When the Office revised its regulations effective January 4, 1999, the
new regulations provided that a hearing was a review of an adverse decision by a hearing
representative and that a claimant could choose between two formats: an oral hearing or a
review of the written record.14 These regulations also provide that the request for either type of
hearing must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.15
The Board has held that the Office, in its broad discretionary authority in the
administration of the Act, has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings, including when the request is made after the 30-day
period for requesting a hearing and that the Office must exercise this discretionary authority in

11

See also Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).
12

5 U.S.C. § 8124(b)(1).

13

Tammy J. Kenow, 44 ECAB 619 (1993); Ella M. Garner, 36 ECAB 238 (1984).

14

20 C.F.R. § 10.615.

15

Id. at § 10.616. See Leona B. Jacobs, 55 ECAB 753 (2004).

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deciding whether to grant a hearing.16 In these instances, the Office will determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.17
ANALYSIS -- ISSUE 2
On April 9, 2009 the Office denied appellant’s claim. Appellant’s hearing request was
postmarked May 16, 2009 more than 30 days after the Office issued its initial decision and,
therefore, the Office properly found that appellant was not entitled to a hearing as a matter of
right.
The Office properly exercised its discretion and determined that appellant’s request for an
oral hearing could be equally well addressed by requesting reconsideration and submitting
additional evidence. The Board has held that the only limitation on the Office’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment or actions taken which are contrary to logic
and probable deduction from established facts.18 The Board finds that there is no evidence of
record that the Office abused its discretion in denying appellant’s request. Thus, the Board finds
that the Office’s denial of his request for an oral hearing was proper under the law and the facts
of this case.
CONCLUSION
The Board finds that appellant has not satisfied his burden of proof to establish he
sustained an injury in the performance of duty on December 30, 2008 causally related to his
employment. The Board finds the Office properly denied appellant’s request for an oral hearing
as untimely pursuant to 5 U.S.C. § 8124.

16

Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994).

17

Claudio Vasquez, 52 ECAB 496 (2001); Johnny S. Henderson, 34 ECAB 216 (1982).

18

See André Thyratron, 54 ECAB 257 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the May 22 and April 9, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 18, 2010
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