United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alabaster, AL, Employer
__________________________________________

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Appearances:
James A. Haggerty, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1803
Issued: February 8, 2019

Case Submitted on the Record

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

JURISDICTION
On August 22, 2017 appellant, through counsel, filed a timely appeal from a June 5, 2017
merit decision and a July 28, 2017 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP).2 Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). By order dated December 19, 2017, the Board exercised its discretion and denied the request,
finding that the arguments on appeal could adequately be addressed in a decision based on the case record. Order
Denying Request for Oral Argument, Docket No. 17-1803 (issued December 19, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a stressrelated condition in the performance of duty; and (2) whether OWCP properly denied appellant’s
request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 2, 2016 appellant, then a 56-year-old postmaster, filed an occupational disease
claim (Form CA-2) alleging that factors of his federal employment caused hypertension and stress.
He indicated that he first became aware of his claimed condition on July 17, 2013 and of its
relationship to his federal employment on March 25, 2016. Appellant stopped work on
March 28, 2016. The employing establishment indicated on the claim form that the claim was
being controverted.
In an attached statement, appellant alleged that the employing establishment failed to
timely process a form for an upgrade level at his facility beginning in 2011. He indicated that he
was not notified of the upgrade, which would have provided a two percent increase in his salary,
until June 2015 when he was eligible to retire.
In the statement appellant further described three interactions with K.W., a letter carrier.
First, he noted that on September 14, 2015 K.W. telephoned him and became profane while they
were discussing the scheduling of K.W.’s route. Second, appellant related that he had conducted
an investigative interview with K.W. on January 20, 2016 for conduct that was insubordinate,
hostile, aggressive, and rude. After the interview, K.W. stated that he would see appellant soon,
left the office, immediately returned and stated that he would see appellant real soon. This
interaction was witnessed by two acting supervisors, L.D. and T.I. Third, appellant related that
after he read a letter of removal to K.W. on February 11, 2016, with L.D. present, K.W. stated that
God was watching and appellant would “be among the nonliving.” He then informed a labor
relations specialist and put K.W. on emergency placement immediately so that he could not enter
the employing establishment’s facilities, except as a customer. The labor relations specialist
thought the statement could be a threat to the postal inspectors, so that was included as an
addendum.
In his statement appellant also noted that K.W. had filed two grievances at the employing
establishment, following the emergency placement, which appellant requested be filed at another
postal facility. This request was denied. On February 24, 2016 appellant overheard a telephone
call during which a union steward discussed where the grievances would be filed and noted that
he was forceful in stating that the grievances would be filed at the employing establishment. On
March 25, 2016 he had to accept a grievance from K.W. as the acting supervisor was sick and not
at work, causing appellant’s blood pressure to increase.
In his statement appellant also related that, a subordinate employee, J.W., became upset
because he had changed her schedule resulting in a confrontational conversation. He noted that
after this confrontation the Threat Assessment Team arrived at the employing establishment on
March 28, 2016 to investigate him because he had allegedly threatened her. Later that day,
appellant called his physician because his blood pressure had increased again.

2

Appellant submitted two September 3, 2015 statements from postmasters at other facilities
who discussed an upgrade for the Alabaster facility. In e-mail correspondence dated February 22
and 23, 2016, S.B., an employing establishment official, told appellant that he must allow K.W. to
file a grievance at the employing establishment, even if he was in an emergency placement, noting
that a union representative would also attend. Appellant recommended that, if K.W. had to file
the grievance at his facility, then a postal inspector should be present, indicating that he believed
that he had the right to protect other employees. A union representative confirmed that K.W. must
have access to file a grievance and would be accompanied by a union steward during the process,
although not contractually required.
In an attending physician’s report (Form CA-20), Dr. W. Guy Patterson, Board-certified in
internal medicine, diagnosed acute stress reaction with hypertension. He checked a box marked
“yes” indicating that appellant had no history of similar symptoms. Dr. Patterson noted that he
increased appellant’s medication, referred him to counselling, and advised that there were possible
long-term effects.
Dr. Anna McIntyre, Ph.D., a clinical psychologist, noted that she had been providing
psychotherapy to appellant beginning on April 22, 2016. She advised him to stop work on
April 27, 2016 until after mediation between appellant and K.W. was held.
In a letter dated May 9, 2016, the employing establishment controverted the claim. It
maintained that appellant’s statement documented reactions to administrative actions taken by
management. The employing establishment noted that it was in the process of obtaining rebuttal
statements to address the allegations in the claim form.
By development letter dated May 13, 2016, OWCP informed appellant that the evidence
submitted was insufficient to establish his claim. It requested that he respond to an attached
questionnaire in order to substantiate the factual elements of his claim and that he submit medical
evidence from a physician to establish a diagnosed condition causally related to his employment.
A development letter was also sent to the employing establishment. OWCP afforded 30 days for
responses.
In a June 13, 2016 statement, appellant indicated that he had no sources of stress outside
of work. He reiterated the circumstances of the investigative interview he conducted with K.W.
on January 20, 2016 and when he read K.W.’s letter of removal on March 25, 2016. Appellant
indicated that his stress-related symptoms had increased. On June 15, 2016 he reported that his
stress and anxiety, including increased blood pressure, escalated on June 14, 2016 when he was
informed that K.W. would be returning to work at the employing establishment.
Appellant also forwarded incident reports concerning the events of September 14, 2015
when K.W. used profanity over the telephone and reports regarding the January 20, 2016
investigative interview.
In a January 20, 2016 statement, T.I. indicated that she sat in on the investigative interview,
during which K.W. was very irate, belligerent, hostile, aggressive, and insubordinate toward
appellant. She advised that K.W. told appellant that he would “see him soon” and after K.W. left,
popped his head in the door and stated, “I will see you real soon.”

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A January 22, 2016 statement with an illegible signature indicated that K.W. became
defensive and aggressive and interrupted appellant several times during the January 20, 2016
investigative interview. The statement reported that K.W. told appellant that he would see him
soon, and later that he would see him real soon.
In a February 11, 2016 statement, L.D. indicated that, when appellant read K.W. the
removal letter, K.W. stated, “God is watching you,” mumbled for a few seconds, and then stated
that appellant would be” among the nonliving.”
A police report dated March 10, 2016 noted that appellant made a complaint of harassment
or harassing communications at the employing establishment. The report indicated that the
offending party was on an emergency placement at another location for making comments directly
to appellant, including that he would be among the nonliving.
Mediation between appellant and K.W. was held on May 10, 2016 with no agreement
reached. In a June 15, 2016 statement, G.C., an area manager of employing establishment
operations, indicated that appellant had informed him in February 2016 that he had been threatened
by K.W., was concerned for his safety and that of his employees, and that he had elevated blood
pressure due to increased anxiety.
Dr. Patterson submitted treatment notes dated March 28 to May 13, 2016. On March 28,
2016 he noted appellant’s complaint of extreme stress at work with long hours and problem
employees. Dr. Patterson indicated that appellant was very anxious. Following physical
examination, he diagnosed essential hypertension, other forms of dyspnea, and acute stress
reaction. Dr. Patterson advised that appellant was at risk for acute decompensation and acute
stroke given his marked elevation in blood pressure, and advised that appellant should not work
until his blood pressure stabilized. In each report he described physical examination findings and
reiterated his diagnoses.
In a report dated May 26, 2016, Dr. McIntyre advised that appellant’s sick leave should be
extended so that he could continue to work on his psychological symptoms.
By decision dated July 11, 2016, OWCP denied appellant’s claim, finding that he had not
established a compensable factor of employment.
On July 19, 2016 appellant, through counsel requested a hearing before an OWCP hearing
representative.
In reports dated July 21, 2016 to January 9, 2017, Dr. McIntyre noted that she continued
to treat appellant and, in each report, recommended that he continue to take leave from work. On
January 9, 2017 she noted that he continued to address a work-related stressor.
In reports dated August 30 and October 4, 2016, Dr. Joseph Lucas, a Board-certified
psychiatrist, noted appellant’s complaint of work stress related to alleged violence in the
workplace. He performed a mental status examination and diagnosed post-traumatic stress
disorder (PTSD), unspecified. Dr. Lucas prescribed medication and advised that appellant
continue treatment. In an undated report, he advised that he had treated appellant since August 30,
2016 for PTSD.
4

During the hearing, held on March 20, 2017, T.I. testified that K.W. had an aggressive
personality. She indicated that she witnessed the verbal altercation between appellant and K.W.
on January 20, 2016, stating that K.W. was very irate and aggressive and kept interrupting
appellant, and that after the discussion was over K.W. got up to leave and stated, “I’ll see you
soon.” K.W. then walked out, but popped his head back in and stated, “real soon.” T.I. opined
that she considered K.W.’s statements a credible threat of bodily harm to appellant.
L.D. testified that on January 20, 2016 she heard K.W. tell appellant that he knew where
he lived, which she considered to be a credible threat. She also stated that she witnessed a second
altercation between appellant and K.W. on February 11, 2016 when K.W. told appellant that God
was watching him and that he would be among the nonliving, which she also considered a credible
threat.
Appellant testified that he had been diagnosed with PTSD and was on medication for
hypertension and anxiety. He stated that K.W. made threats of bodily harm, that he was still on
medical leave due to PTSD, and that he still felt threatened, even away from work. Counsel argued
that since the threats were made in the course of appellant’s duties as a postmaster, they were
compensable.
By decision dated June 5, 2017, an OWCP hearing representative affirmed the July 11,
2016 decision. She determined that appellant had not established an injury in the performance of
duty because there were no compensable factors of employment.
On July 13, 2017 appellant, through counsel, requested reconsideration. In a report dated
June 24, 2017, Dr. Lucas opined that appellant’s PTSD was caused by events that occurred at work
which led to treatment due to this issue. On June 26, 2017 Dr. Patterson wrote that appellant was
still having symptoms from PTSD. On May 31, 2017 Dr. McIntyre noted that she continued to
treat appellant for PTSD caused by a work-related stressor. She related that his functioning had
been increasingly limited over the past year. In a June 30, 2017 report, Dr. McIntyre noted that
appellant reported that his life had been threatened by a coworker and that since presenting for
treatment in April 2016, his symptoms of clinical anxiety had increasingly worsened. She opined
that he avoided social activities due to fear and experienced strong physiological symptoms when
he was reminded of the work stressor or the idea of returning to work. Dr. McIntyre advised that
appellant clearly met the criteria for a diagnosis of chronic PTSD. On June 28, 2017 she noted
that she continued to treat him and that he remained disabled.
By decision dated July 28, 2017, OWCP, denied appellant’s request for reconsideration of
the merits of his claim pursuant to section 8128(a) of FECA.4 It found that the medical evidence
submitted in support of his timely reconsideration request was irrelevant and immaterial to the
underlying issue, which was not medical in nature.
LEGAL PRECEDENT
To establish an emotional condition in the performance of duty, a claimant must submit
the following: (1) medical evidence establishing that he or she has an emotional or psychiatric
4

Id. at § 8128(a).

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disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
emotional condition is causally related to the identified compensable employment factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA.7 There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.8
When an employee experiences emotional stress in carrying out his or her employment duties and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work.9 In contrast, a disabling condition resulting from an employee’s feelings of
job insecurity per se is insufficient to constitute a personal injury sustained in the performance of
duty within the meaning of FECA. Thus disability is not covered when it results from an
employee’s fear of a reduction-in-force, nor is disability covered when it results from such factors
as an employee’s frustration in not being permitted to work in a particular environment, or to hold
a particular position.10
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.11 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.12 A claimant must support his or her allegations with probative
and reliable evidence. Personal perceptions alone are insufficient to establish an employmentrelated emotional condition.13

5

R.L., Docket No. 17-0883 (issued May 21, 2018).

6

28 ECAB 125 (1976).

7

Id.

8

See M.R., Docket No. 18-0305 (issued October 18, 2018); Robert W. Johns, 51 ECAB 136 (1999).

9

Supra note 6.

10

Id.

11

C.V., Docket No. 18-0580 (issued September 17, 2018); Charles D. Edwards, 55 ECAB 258 (2004).

12

C.V., id.; Kim Nguyen, 53 ECAB 127 (2001). See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon,
42 ECAB 566 (1991).
13

M.R., supra note 8; Roger Williams, 52 ECAB 468 (2001).

6

For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under FECA. Unsubstantiated allegations of
harassment or discrimination are not determinative of whether such harassment or discrimination
occurred. To establish entitlement to benefits, a claimant must establish a factual basis for the
claim by supporting his or her allegations with probative and reliable evidence.14
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board finds that appellant has met his burden of proof to establish two compensable
employment factors which include being the subject of a threat of physical violence made by K.W.
on February 11, 2016 when he stated that appellant would be “among the nonliving,” and also the
employing establishment’s requirement that appellant meet with and accept a grievance filing from
K.W. following the established threat of physical violence and K.W.’s removal from the
workplace. The Board further finds that appellant has not established compensable employment
factors for an alleged failure of the employing establishment to timely process an upgrade form;
for interactions with K.W. and other coworkers which were considered profane, insubordinate,
hostile, aggressive, and rude; and for having a subordinate employee, J.W., become upset and
confrontational because he changed her schedule and resulted in an investigation.
When disability results from an emotional reaction to regular or specially assigned work
duties or a requirement imposed due to the employment, the disability is deemed compensable.15
Appellant primarily attributed his stress-related condition to his interactions with and
remarks made by K.W., a letter carrier, during an investigative interview conducted by appellant
on January 20, 2016, and when he read a letter of removal to K.W. on February 11, 2016. The
description of the events of January 20 and February 11, 2016 are supported by both written
witness statements and by testimony at the hearing from T.I. and L.D., acting supervisors. The
Board finds that K.W.’s language in which he stated that appellant would be “among the
nonliving” clearly rises to the level of a credible bodily threat directed at appellant.16 The threat
was reported to a labor relations specialist and found sufficiently severe to result in K.W.’s
immediate prohibition from entering the employing establishment, except as a postal customer.
The Board has held that, with regard to a claim that bodily harm was threatened, the evidence of
record must support a finding that a specific threat occurred.17 It is appellant’s burden of proof to
submit evidence to support that a specific threat of violence occurred such that it affected the

14

Supra note 5; Alice M. Washington, 46 ECAB 382 (1994).

15

D.H., Docket No. 17-1529 (issued February 14, 2018); Penelope C. Owens, 54 ECAB 684 (2003); see supra
note 6.
16

See M.F., Docket No. 17-1649 (issued July 20, 2018).

17

Id.

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conditions of employment.18 The record in this case supports that K.W. made a specific threat of
bodily harm, which would reasonably lead one to fear for his or her personal safety and which was
witnessed by other postal employees. Appellant was performing his regularly assigned work
duties when he experienced the stressful event. He also provided witness statements and elicited
hearing testimony to support the occurrence of the threats of physical violence, all of which is
sufficient to establish a compensable factor of employment.
As previously noted, when disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable.19 The Board finds that the evidence of record is sufficient to establish that
appellant was in the performance of his regular duties as postmaster while conducting the
investigative interview with K.W. on January 20, 2016 and when reading a letter of removal to
K.W. on February 11, 2016. Appellant has established that he performed these duties in his role
as postmaster. As such, he has met his burden of proof to establish a compensable factor of
employment.20
Appellant also attributed his emotional condition to additional actions of the employing
establishment. In Thomas D. McEuen,21 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employing
establishment and do not bear a direct relation to the work required of the employee. The Board
noted, however, that coverage under FECA would attach if the facts surrounding the administrative
or personnel action established error or abuse by employing establishment superiors in dealing
with the claimant. Absent evidence of such error or abuse, the resulting emotional condition must
be considered self-generated and not employment generated. In determining whether the
employing establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.22
The Board finds that the employing establishment committed error when it required
appellant to meet with and accept a grievance from K.W. following the established threat of
physical violence and K.W.’s emergency removal from the workplace. The record supports that
following K.W.’s emergency removal he filed two grievances. Appellant requested that the
grievances be filed at another postal facility so that he could avoid contact with K.W. This request
was denied. On March 25, 2016 appellant was required, in his position as a postmaster, to perform
the administrative act of accepting the two grievances from K.W. This requirement resulted in
appellant’s blood pressure increasing due to the stressful situation of being personally confronted
by K.W. The prior conduct of K.W. included threatening physical violence against appellant and
18

See M.F., Docket No. 17-1649 (issued July 20, 2018); J.C., 58 ECAB 594 (2007); Dorothy J. Williams, 32 ECAB
665 (1981).
19

Supra note 15.

20

Supra note 18.

21

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

22

See Y.B., Docket No. 16-0193 (issued July 23, 2018).

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alluding to impending death, and such conduct was found by the employing establishment to be
sufficient grounds for his emergency removal from the employing establishment as he was a
danger to appellant and others. The employing establishment’s requirement that appellant, the
target of the threat of violence, be required to personally meet with the perpetrator of the threat
and the source of the danger to his person was an unreasonable act and was therefore in error.23
As such, appellant has met his burden of proof to establish a second compensable factor of
employment.
Appellant alleged additional acts of error and abuse against the employing establishment.
Although he generally alleged that the employing establishment failed to properly process forms
for an upgrade level at his facility, as a general rule, a claimant’s reaction to administrative or
personnel matters falls outside the scope of FECA.24 Mere disagreement or dislike of a supervisory
or managerial action will not be compensable, absent evidence of error or abuse.25 There is no
evidence of record to establish that the employing establishment’s action relating to the failure to
process an upgrade form, under the facts of this case, constituted error or abuse.
Appellant also attributed his stress-related condition to a March 28, 2016 employing
establishment investigation of charges where he was alleged to have threatened a subordinate
employee. An employing establishment has the right to conduct investigations if wrongdoing is
suspected.26 Appellant submitted no evidence of error or abuse by the employing establishment
in discharging its administrative duties with regard to this investigation. As such this is not a
compensable factor of employment.27
The Board has recognized that verbal abuse when sufficiently detailed by the claimant and
supported by evidence, may constitute compensable employment factors.28 The fact that appellant
disliked a conversion by a union steward that he overheard on February 24, 2016 would not
warrant a finding of verbal abuse. The conversation was not directed to appellant.29 Likewise,
K.W.’s use of profanity over the telephone on September 14, 2015, prior to the escalation to threats
of physical violence, may have upset appellant. This, however, did not rise to the level of coverage
under FECA.30
As appellant has established two compensable factors of employment, OWCP must base
its decision on an analysis of the medical evidence. The case will therefore be remanded to OWCP
23

Id.; see also C.M., Docket No. 17-1076 (issued November 14, 2018).

24

R.V., Docket No. 18-0268 (issued October 17, 2018); Carolyn S. Philpott, 51 ECAB 175 (1999).

25

Z.S., Docket No. 16-1783 (issued August 16, 2018); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

26

D.G., Docket No. 17-0514 (issued May 4, 2018).

27

Id.

28

C.V., supra note 11; T.G., 58 ECAB 189 (2006).

29

See L.K., Docket No. 08-0849 (issued June 23, 2009).

30

See D.J., Docket No. 16-1540 (issued August 21, 2018); V.W., 58 ECAB 428 (2007).

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to analyze and develop the medical evidence of record.31 After this and other such further
development as deemed necessary, OWCP shall issue a de novo decision on the merits of this
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.32
ORDER
IT IS HEREBY ORDERED THAT the July 28 and June 5, 2017 decisions of the Office
of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: February 8, 2019
Washington, DC

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

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

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

31

See S.S., Docket No. 17-0959 (issued June 26, 2018).

32

In light of the Board’s disposition of the first issue, the second issue is moot.

10


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

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

Docket No. 11-336
Issued: September 23, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from the August 10, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning schedule
awards. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issues is whether appellant has more than a seven percent permanent impairment of
his right arm and an eight percent permanent impairment of his left arm, for which he received
schedule awards.
FACTUAL HISTORY
On August 9, 2005 appellant, then a 51-year-old mail processor, filed an occupational
disease claim for right shoulder and small finger pain that he attributed to repetitive motion in the
1

5 U.S.C. § 8101 et seq.

performance of duty. OWCP accepted his claim for an aggravation of bilateral tendinitis,
bursitis and arthritis and bilateral Dupuytren’s contractures.
On December 29, 2008 appellant filed a claim for schedule award compensation. In an
October 30, 2008 impairment rating, Dr. Nicholas Diamond, an attending osteopath, found that
he had a 17 percent impairment of the right upper extremity and 9 percent of the left upper
extremity. This rating was based on range of motion deficits, along with pain, and was
calculated using the fifth edition of American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001).
OWCP forwarded Dr. Diamond’s report to Dr. Morley Slutsky, a Board-certified
occupational medicine physician serving as an OWCP medical adviser, for review and
calculation of impairment. In a January 30, 2009 report, Dr. Slutsky calculated a 10 percent right
upper extremity impairment and a 3 percent left upper extremity impairment. No further action
was taken until August 10, 2009 when Dr. Diamond was asked to provide a new impairment
rating under the sixth edition of the A.M.A., Guides that became effective on May 1, 2009.
In a September 2, 2009 report, Dr. Craig Uejo, an attending Board-certified occupational
medicine physician, determined that appellant had a 7 percent right arm impairment and a 16
percent left arm impairment. He did not examine appellant, but, rather reviewed Dr. Diamond’s
report under the standards of the sixth edition of the A.M.A., Guides. Dr. Uejo stated that the
impairment in this case was calculated through the use of section 15.7d Finger Motion on pages
468 through 469 for the motion deficits of the distal interphalangeal (DIP) joint and proximal
interphalangeal (PIP) joint and the metacarpophalangeal (MCP) joint. Section 15.7 Range of
Motion Impairment, beginning on page 459, explains, ‘This section is to be used as a stand-alone
rating.” Dr. Uejo stated that the right arm rating was 7 percent and the left arm rating was 16
percent based on range-of-motion deficits. On September 4, 2009 Dr. David Weiss, an attending
osteopath, stated he had reviewed this report and agreed with the rating.
In November 2009 Dr. Diamond provided an amended report based on the sixth edition
of the A.M.A., Guides. He calculated a 39 percent impairment rating for the right index finger
based on range-of-motion deficits of the DIP, PIP and MP joints. Dr. Diamond stated that a 39
percent digit impairment equated to an 8 percent hand impairment. For the right small finger, he
stated the range-of-motion deficits for the three joints resulted in a 79 percent digit impairment
that equated to 8 percent hand impairment. Dr. Diamond explained the final right hand
impairment, “The values are added and there is 16 percent hand impairment. Using Table 15-11
on page 420 this converts to 7 percent upper extremity impairment.” For the left hand,
Dr. Diamond stated that appellant had an 87 percent digit impairment using the combined values
of the three joints. This converted to a 17 percent hand or 16 percent upper extremity
impairment.
On December 13, 2009 Dr. Henry Magliato, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, reviewed the medical record and stated that using the range-ofmotion rating method resulted in combined values of the left arm of eight percent impairment
and a seven percent impairment of the right arm. Concerning Dr. Diamond’s rating of the left
hand, Dr. Magliato stated, “The combined values, 87 percent of the digit or 9 percent of the hand
or 8 percent of the left upper extremity. See page 423 [T]able 15-12. The doctor made an error

2

and probably used the index finger and not the 5th digit and got 16 percent for the left upper
extremity.” He stated that Dr. Diamond correctly calculated the seven percent right upper
extremity impairment.
In a February 25, 2010 decision, OWCP granted appellant awards of compensation for a
seven percent permanent impairment of his right arm and an eight percent permanent impairment
of his left arm.
Appellant disagreed with this decision and, through counsel, requested a hearing before
an OWCP hearing representative. On June 17, 2010 a video hearing was held. Appellant was
not present but was represented by his counsel, who asserted that three physicians had all agreed
that the 16 percent rating of appellant’s left arm was correct. He stated that the disagreement of
Dr. Magliato constituted a conflict. Appellant indicated that he was attempting to have
Dr. Weiss or Dr. Diamond review the calculations and requested that the file be held open for 30
days to allow for a supplemental report. The request was granted but no additional medical
evidence was submitted within the allotted time.
In an August 10, 2010 decision, OWCP’s hearing representative affirmed its February 25,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. In Harry D. Butler,4 the Board noted that Congress delegated authority to the
Director of OWCP regarding the specific methods by which permanent impairment is to be
rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.5 On March 15, 2009 the
Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
OWCP should reflect use of the sixth edition of the A.M.A., Guides.6

2

Id. at § 8107.

3

20 C.F.R. § 10.404 (1999).

4

43 ECAB 859 (1992).

5

Id. at 866.

6

FECA Bulletin No. 09-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the fifth
edition of the A.M.A., Guides (5th ed. 2001) is used. The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 1 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.(6)(a)
(January 2010).

3

When a medical report is received from the attending physician, the examining physician
is not responsible for calculation of the percentage of impairment.7 OWCP’s medical adviser is
responsible for taking the calculations provided by the examining physician and arriving at an
overall impairment percentage rating.8
ANALYSIS
In this case, Dr. Uejo, an attending Board-certified occupational medicine physician,
calculated a left upper extremity impairment rating that was reviewed by Drs. Weiss and
Diamond, both attending osteopaths. There is no evidence that these two doctors rechecked
Dr. Uejo’s calculations. In a December 13, 2009 report, Dr. Magliato, a Board-certified
orthopedic surgeon serving as OWCP’s medical adviser, reviewed the calculations and stated
that Dr. Diamond had erroneously calculated the impairment of the small finger using the table
for the index finger. He used the table for the small finger and calculated eight percent
impairment based on Table 15-12 on page 423 of the sixth edition.
The Board finds that Dr. Magliato has provided sufficient explanation to carry the weight
of the evidence in that he noted an error on the part of the Dr. Diamond in using an incorrect
table in his impairment rating. There is no conflict in medical opinion between Dr. Magliato and
appellant’s attending physicians. OWCP properly determined that appellant has not established
more than a seven percent permanent impairment of his right arm and an eight percent
permanent impairment of his left arm.
On appeal, counsel argues that OWCP unnecessarily delayed the development of
appellant’s case such that the assessment of his permanent impairment was made under the sixth
edition of the A.M.A., Guides rather than the fifth edition, hence resulting in a lower impairment
rating. He has not shown that an unnecessary delay in the development of appellant’s case
occurred. Counsel also asserts that appellant has a property right in a schedule award benefit
under the fifth edition and a protected property interest cannot be deprived without due process,
citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976);
but these cases held only that a claimant who was in receipt of benefits (in Goldberg public
assistance, and in Mathews Social Security benefits) could not have those benefits terminated
without procedural due process.9 In Harry D. Butler,10 the Board noted that Congress delegated
authority to the Director regarding the specific methods by which permanent impairment is to be
rated. Pursuant to this authority, the Director adopted the A.M.A., Guides as a uniform standard
applicable to all claimants and the Board has concurred in the adoption.11 On March 15, 2009
7

A. George Lampo, 45 ECAB 441 (1994).

8

FECA Bulletin 09-03 (issued March 15, 2009).

9

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient, and due process would not
require an evidentiary hearing.
10

43 ECAB 859 (1992).

11

Id. at 866.

4

the Director exercised authority to advise that as of May 1, 2009 all schedule award decisions of
the Office should reflect use of the sixth edition of the A.M.A., Guides.12 The applicable date of
the sixth edition is as of the schedule award decision reached. It is not determined by either the
date of maximum medical improvement or when the claim for such award was filed.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a seven percent permanent impairment of his right arm and an eight percent
permanent impairment of his left arm, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

12

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Casa Grande, AZ, Employer
__________________________________________

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

Docket No. 11-380
Issued: November 3, 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 December 9, 2010 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs (OWCP) dated October 27 and November 16, 2010.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an emotional condition in the performance of duty causally related to factors of his
federal employment; and, (2) whether OWCP properly refused to reopen appellant’s claim for
further review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant asserts that OWCP did not consider all evidence submitted,
including witness statements or schedule him for a second-opinion evaluation.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On May 24, 2010 appellant, then a 38-year-old border patrol agent, submitted an
occupational disease claim, alleging post-traumatic stress disorder (PTSD) while in the
performance of duty in July 2010. He was first aware of the illness and its relationship to his
employment on May 10, 2010.2 In letters dated August 9, 2010, OWCP informed appellant of
the type of evidence needed to support his claim and asked that the employing establishment
respond. In an undated statement, appellant indicated that, while working in Casa Grande,
Arizona, he was exposed to many close calls and instances of high stress including armed
encounters with illegal aliens and drug cartels and that he was nearly run over while patrolling.
He searched for and apprehended armed bandits and drug smugglers and had seen many dead
bodies, including murder victims who were dismembered. Appellant described his PTSD
condition and how it had changed his life.
By report dated August 19, 2010, Lawanna Burress-Holland, Ph.D., a licensed
psychotherapist, advised that she treated appellant on June 3, 2010. Appellant presented with
symptoms of severe PTSD including frequent nightmares, panic attacks and distressing
recollections of traumatic events that occurred while he was serving as a border patrol agent. He
reported that he isolated himself, had a sense of a foreshortened future, difficulty sleeping,
frequent irritability/anger, hypervigilance, an exaggerated startle response and digestive
problems, meeting each of the criteria for a diagnosis of severe PTSD. Dr. Burress-Holland
stated that appellant attended weekly therapy and recommended that he continue to work as an
instructor.
On August 27, 2010 OWCP asked appellant to address specific dates, times and places of
the incidents that he referenced in his statement. It provided a copy of the statement to the
employing establishment and asked that it respond. From September 21 to October 4, 2010,
OWCP attempted contact with the employing establishment by telephone, asking that it respond
to appellant’s allegations.
By letter dated October 4, 2010, OWCP informed appellant that he had provided
sufficient information to establish a prima facie basis for his claim and that, when the employing
establishment provided a response, he would be referred for a second-opinion evaluation.
Appellant was told that, after receipt of the physician’s report, a decision would be issued.
In a decision dated October 27, 2010, OWCP denied appellant’s claim, finding that he
failed to establish that the claimed incidents occurred or submit medical reports providing a firm
diagnoses with an opinion on causal relationship.
On November 5, 2010 appellant requested reconsideration.
Matthew Carver, a supervisory border patrol agent at the Casa Grande station submitted a
November 8, 2010 statement. He advised that the job of a border patrol agent was inherently
dangerous and stressful and that agents assigned to the Casa Grande station worked in a
dangerous environment where they were exposed to stressful situations including vehicle
2

At the time the claim was filed, appellant had transferred to the Artesia, New Mexico, branch as an instructor.

2

accidents involving fatalities, deceased subjects being found, agents being assaulted, armed
encounters and officer-involved shootings. Mr. Carver noted that appellant referred to these
types of incidents and that the accuracy of his statement could not be evaluated due to lack of
specific information regarding dates, locations, names of persons involved or report number. In
a November 9, 2010 letter, John A. Bush, a senior patrol agent, advised that he worked with
appellant at the Casa Grande station from July 2004 to October 2008 and described an incident
when they assisted the Casa Grande Police Department in a large fight involving 50 to 60 gang
members, where gunshots were fired. He described a second incident when he and appellant
were driving all terrain vehicles in the desert, trying to intercept smugglers. Appellant was ahead
of Mr. Bush and warned him that a large truck was approaching, without lights and all agents
were nearly run down. Mr. Bush concluded that he and appellant encountered numerous
stressful situations together, noting that the job was violent and agents faced threats on a daily
basis.
By decision dated November 16, 2010, OWCP denied appellant’s reconsideration
request, stating that his letter did not raise substantive legal questions and he did not submit new
and relevant evidence sufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish his claim that he sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.3 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.4 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.7 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
3

Leslie C. Moore, 52 ECAB 132 (2000).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

Id.

6

28 ECAB 125 (1976).

7

See Robert W. Johns, 51 ECAB 137 (1999).

3

emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.8 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.9 Where the claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.10 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.11
ANALYSIS -- ISSUE 1
Appellant, a border patrol agent, alleged that his work while assigned to the Casa Grande
station caused his PTSD condition because he was exposed to many stressful situations that
occurred during work. He submitted a personal statement in which he described specific
incidents and an August 19, 2010 report from Dr. Burress-Holland. By decision dated
October 27, 2010, OWCP denied the claim on the grounds that appellant had not provided
substantiating evidence to establish that the claimed incidents occurred or a medical report with
an opinion that his emotional condition was caused by factors of employment.
Allegations alone by a claimant are generally insufficient to establish a factual basis for
an emotional condition claim but must be corroborated by the evidence.12 Appellant submitted
no witness statements or other evidence to substantiate specific allegations prior to the
October 27, 2010 denial of his claim. There is no evidence of record at the time of OWCP’s
October 27, 2010 decision supporting the claimed employment factors or incidents as alleged.
The October 27, 2010 decision will be affirmed as appellant has not established a
compensable factor of employment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.13 Section 10.608(a) of the Code of Federal Regulations provides that
a timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meets at least one of the standards described in section
10.606(b)(2).14 This section provides that the application for reconsideration must be submitted
8

Lillian Cutler, supra note 6.

9

J.F., 59 ECAB 331 (2008).

10

M.D., 59 ECAB 211 (2007).

11

Roger Williams, 52 ECAB 468 (2001).

12

M.D., supra note 10.

13

5 U.S.C. § 8128(a).

14

20 C.F.R. § 10.608(a).

4

in writing and set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.15 Section 10.608(b) provides that, when a request for
reconsideration is timely but fails to meet at least one of these three requirements, OWCP will
deny the application for reconsideration without reopening the case for a review on the merits.16
ANALYSIS -- ISSUE 2
On November 5, 2010 appellant requested reconsideration by checking on an appeal
request form that he was requesting reconsideration. He did not contend that OWCP erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by OWCP. Consequently, appellant was not entitled to a review of the merits of his
claim based on the first and second above-noted requirements under section 10.606(b)(2).17
With respect to the third above-noted requirement under section 10.606(b)(2), on
reconsideration appellant submitted a new November 8, 2010 report in which Mr. Carver, a
supervisory border patrol agent, described the job duties of a border patrol agent, indicating that
the position was inherently dangerous and stressful. He related that agents assigned to the Casa
Grande station worked in an especially dangerous environment. Mr. Bush, a senior patrol agent,
advised in a newly submitted statement that he had worked with appellant at the Casa Grande
station from July 2004 to October 2008 and described incidents in which appellant was involved
in the apprehension of gang members and smugglers.
In order to require merit review, it is not necessary that the new evidence be sufficient to
discharge appellant’s burden of proof. Instead, the requirement pertaining to the submission of
evidence in support of reconsideration only specifies that the evidence be relevant and pertinent
and not previously considered by OWCP.18 The statements of Mr. Carver and Mr. Bush
constituted new and relevant evidence as they pertain to appellant’s assertions regarding his
duties to which he attributed his claimed PTSD. The Board finds that OWCP improperly denied
appellant’s request for review of the merits of his claim. The case will be remanded to OWCP

15

Id. at § 10.608(b)(1) and (2).

16

Id. at § 10.608(b).

17

20 C.F.R. § 10.606(b)(2).

18

Billy B. Scoles, 57 ECAB 258 (2005).

5

to conduct an appropriate merit review. Following this and such other development as deemed
necessary, OWCP shall issue a merit decision on appellant’s claim.19
CONCLUSION
The Board finds that OWCP properly found that appellant failed to meet his burden of
proof to establish that he sustained an emotional condition in the performance of duty by its
October 27, 2010 decision and that OWCP improperly refused to reopen his claim for further
review of the merits pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed. The November 16, 2010 decision is set aside and
the case remanded to OWCP for proceedings consistent with this opinion of the Board.
Issued: November 3, 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

19

As noted above, Mr. Carver advised that appellant had not provided enough specific information regarding the
claimed incidents. Neither a position description nor a statement from someone knowledgeable about the incidents
claimed by appellant, such as his supervisor at the time of the claimed events, is contained in the case record. This
is the type evidence more readily obtained from the employing establishment. Although it is a claimant’s burden to
establish his or her claim, OWCP is not a disinterested arbiter but, rather, shares responsibility in the development of
the evidence, particularly when such evidence is of the character normally obtained from the employing
establishment or other government source. OWCP shares responsibility to see that justice is done. R.E., 59 ECAB
323 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chanute, KS, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0864
Issued: January 31, 2022

Case Submitted on the Record

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

On May 14, 2021 appellant filed a timely appeal from a November 19, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0864.1
On November 14, 2016 appellant, then a 50-year-old city carrier, ﬁled an occupational
disease claim (Form CA-2) alleging that he developed a bilateral shoulder condition as a result of
factors of his federal employment which required repetitive reaching and lifting over the course of
23 years. He noted that he ﬁrst became aware of his claimed condition on October 1, 2016 and its
relation to his federal employment on November 1, 2016. Appellant stopped work on October 19,
2016 when he elected Office of Personnel Management disability retirement beneﬁts. OWCP
assigned the claim OWCP File No. xxxxxx730. It accepted the claim for permanent aggravation
of bilateral acromioclavicular joint degeneration and permanent aggravation of bilateral rotator
cuff tendinitis.
1

The Board notes that following the November 19, 2020 decision, appellant submitted additional evidence to
OWCP. 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.

Appellant had prior claims for which OWCP accepted several upper extremity conditions.
In an occupational disease claim, assigned OWCP File No. xxxxxx167, OWCP accepted on
July 27, 2005 that appellant sustained bilateral carpal tunnel syndrome. On May 1, 2007 it
awarded him a schedule award for two percent permanent impairment of the left upper extremity
and four percent permanent impairment of the right upper extremity. In another occupational
disease claim, assigned OWCP File No. xxxxxx020, OWCP accepted the claim on July 25, 2014
for bilateral cubital tunnel syndrome and bilateral epicondylitis. On May 7, 2019 it awarded
appellant additional schedule award compensation for 8 percent permanent impairment of the left
upper extremity and 11 percent permanent impairment of the right upper extremity. In another
occupational disease claim, assigned OWCP File No. xxxxxx833, OWCP accepted the claim on
December 2, 2015 for bilateral carpal tunnel syndrome. On March 8, 2019 it awarded appellant
additional schedule award compensation for four percent permanent impairment of the left upper
extremity and two percent permanent impairment of the right upper extremity.
By decision dated November 19, 2020, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of the left upper extremity (24 percent less prior
awards for 14 percent permanent impairment of the left upper extremity); and for an additional 10
percent permanent impairment of the right upper extremity (27 percent less prior awards for 17
percent permanent impairment of the right upper extremity). It based its schedule award decision
on October 1 and 23, 2020 reports of Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser. Dr. Katz evaluated August 31, 2020 findings of
Dr. Joseph G. Sankoorikal, a Board-certified physiatrist serving as an OWCP referral physician.
The Board, having duly considered this matter, finds that the case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when proper
adjudication of the issues depends on frequent cross-referencing between case files.2 For example,
if a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. 3 In the present claim, OWCP
specifically referenced evidence from earlier claims, OWCP File Nos. xxxxxx167, xxxxxx020,
and xxxxxx833, including schedule awards granting permanent impairment of the upper
extremities, i.e., the same extremities for which a schedule award was granted in the present claim,
assigned OWCP File No. xxxxxx730. However, the evidence pertaining to these files is not part
of the case record presented before the Board. For a full and fair adjudication, the case shall be
remanded to OWCP to administratively combine the current case record with OWCP File Nos.
xxxxxx167, xxxxxx020, and xxxxxx833, so it can consider all relevant claim files and
accompanying evidence in adjudicating appellant’s occupational disease claim. Following this

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1)
(February 2000); V.G., Docket No. 19-0670 (issued April 30, 2020); L.P., Docket Nos. 18-1558, 18-1568 (issued
June 21, 2019); L.S., Docket Nos. 17-1863, 17-1867, 17-1868 (issued April 18, 2018); W.S., Docket No. 15-0969
(issued October 5, 2015); C.C., Docket No. 14-1576 (issued March 9, 2015).
3

Id.; M.B., Docket No. 20-1175 (issued December 31, 2020); L.M., Docket No. 19-1490 (issued January 29, 2020).

2

and other such further development as deemed necessary, OWCP shall issue a de novo decision
regarding appellant’s schedule award claim. Accordingly,
IT IS HEREBY ORDERED THAT the November 19, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: January 31, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
TELESERVICE CENTER, Oakland, CA,
Employer
__________________________________________

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Appearances:
Debra Hauser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-818
Issued: August 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2014 appellant, through counsel, filed a timely appeal of the
November 15, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) which
denied her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit decisions of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 13, 2012 appellant, then a 44-year-old transportation security officer, filed an
occupational disease claim alleging that she developed left shoulder pain due to prolonged
sitting. She first became aware of her condition on February 18, 2011 and realized that it was
causally related to her employment on February 1, 2011. Appellant did not stop work.
On July 6, 2012 OWCP advised appellant of the evidence needed to establish her claim.
It requested that she submit a physician’s reasoned opinion addressing the relationship of her
claimed shoulder condition to specific work factors.
Appellant was treated by Dr. James Eichel, a Board-certified family practitioner. On
July 15, 2011 she presented with left shoulder pain and radiculitis which occurred after
prolonged sitting. The left shoulder examination revealed limited extension and adduction and
mild pain. Dr. Eichel diagnosed adhesive capsulitis and left shoulder sprain and recommended
physical therapy. On December 2, 2011 he diagnosed left shoulder bursitis and impingement
and performed therapeutic injections. In a work excuse slip dated December 2, 2011, Dr. Eichel
noted that appellant was excused from work from November 28 to December 2, 2011 and could
return to work on December 5, 2011. On May 8, 2012 he noted appellant’s continued
complaints of left shoulder pain and diagnosed left cervical radiculopathy, sensory only, bursitis
resolved. In a prescription slip, Dr. Eichel diagnosed cervical radiculopathy and pinched nerve
and prescribed an ergonomic chair. In a June 26, 2011 report, he opined that, based on
appellant’s description, her symptoms were industrial related.
In a June 15, 2012 report, Dr. Roman Kownacki, a Board-certified physiatrist, noted that
appellant reported sitting at a desk for eight hours daily answering the telephone, using a
keyboard and experiencing severe left shoulder pain radiating down the arm with numbness.
Appellant felt her current symptoms were due to her job functions. Dr. Kownacki noted findings
of paresthesias of the left index and pinky finger, tenderness of the paracervical spine and
trapezius, positive Spurlings, negative impingement, intact strength and sensation. He diagnosed
cervical radiculopathy. Dr. Kownacki opined that appellant’s “current condition, more likely
than not, was not caused or aggravated by factors of employment.” He based his opinion on her
preexisting multilevel cervical spondylosis and mild-to-moderate foraminal narrowing at C5-6,
C6-7 and C4-5. Further, appellant did not isolate any particular incident or trauma.
Dr. Kownacki returned her to work regular duty on June 15, 2012.
In a June 26, 2012 work slip, Dr. Timothy C. Shen, a Board-certified physiatrist, noted
treating appellant on June 26 and July 18, 2012 for a long-standing history of neck pain radiating
down the left arm. Appellant attributed her symptoms to cumulative trauma from her job which
began in February 2011 and noted her symptoms were exacerbated by prolonged sitting.
Dr. Shen noted findings of diffuse tenderness on palpation in the cervical paraspinals and
bilateral upper trapezius, intact motor strength and sensation and normal range of motion of the
cervical spine. He diagnosed cervical discogenic pain and chronic neck pain and recommended
physical therapy and epidural steroid injections.
In a June 15, 2012 industrial work status report, a nurse diagnosed cervical radiculopathy
and returned appellant to full duty. A July 16, 2012 magnetic resonance imaging (MRI) scan of

2

the cervical spine revealed loss of the cervical lordotic curvature, C5-6 left lateral disc
protrusion, C4-5 lateral osteophytic ridge formation with disc bulge, C6-7 left lateral osteophytic
ridge and disc bulge, C3-4 lateral osteophytic ridge with mild neural foraminal stenosis and
scoliosis.
In an August 13, 2012 decision, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish causal relationship.
On August 19, 2013 appellant requested a review of the written record. She submitted
evidence previously of record together with an August 9, 2012 work excuse slip which noted that
she was treated and excused from work on August 9, 2012.
In a December 10, 2012 decision, an OWCP hearing representative affirmed the
August 13, 2012 decision. He found that the medical evidence did not establish that work factors
caused or contributed to her claimed medical condition.
On January 18, 2013 appellant requested reconsideration. She submitted a December 18,
2012 health care provider certificate from Dr. Eichel who noted that appellant’s neck condition
began on December 1, 2011. Appellant experienced moderate-to-severe left neck pain with
significant weakness in the left arm. Dr. Eichel advised that an MRI scan of the cervical spine
revealed disc protrusions and bilateral foraminal stenosis. A December 2, 2012 lumbar spine
MRI scan showed stable mild spondylosis and multilevel early neural foraminal and spinal canal
encroachment.
Appellant was treated by Dr. Gordon Tang, a Board-certified neurologist, from
January 23 to April 8, 2013 for progressive neck pain. Dr. Tang noted findings of weakness of
the left elbow with diminished sensation of the right C6 dermatome. He diagnosed cervical
spinal stenosis with radiculopathy and myelopathy and recommended surgical intervention. On
February 12, 2013 Dr. Tang performed surgery for a C4-6 anterior cervical discectomy with
interbody arthrodesis, with implantation of interbody prosthetic device and C4-6 anterior
segmental fixation with a plate. He diagnosed cervical spondylosis, cervical radiculopathy and
cervical myelopathy. Appellant also submitted reports of postsurgical diagnostic testing and
records from a physician’s assistant.
On April 23, 2013 OWCP denied modification of its December 10, 2012 decision.
On August 15, 2013 appellant requested reconsideration. She submitted a May 29, 2013
report from Dr. Eichel, who stated that it was “difficult to believe that anyone familiar with
cervical disc pathology could come to the conclusion that the broad-based disc protrusions at the
C5-6 and C6-7 levels that were found on her MRI scan and at the time of the cervical disc fusion
were not related to the repetitive stress that her lifting on the job required.”
In a July 29, 2013 report, Dr. Shen noted findings of well-healed posterior and anterior
surgical scars, diffuse tenderness in the mid cervical paraspinals, limited range of motion of the
cervical spine, intact motor strength and sensory testing. He diagnosed cervical discogenic pain,
cervical radicular pain and chronic neck pain. Dr. Shen opined that, based on his examination,
the history described by appellant and the results of imaging studies, to a reasonable degree of
3

medical certainty appellant’s symptoms developed as a result of her job as a contact
representative. He noted that appellant’s symptoms were industrially related, and that it was
medically possible that the prolonged periods of sitting, frequent computer use and telephone use
led to the degenerative disc changes noted on the imaging studies. Dr. Shen noted that she was
totally disabled. In an August 2, 2013 addendum, he reviewed the May 8, 2012 MRI scan of the
cervical spine. Dr. Shen diagnosed cervical discogenic pain, cervical radicular pain, chronic
neck pain and cervical foraminal stenosis. He stated that, given appellant’s description of her job
duties and onset of symptoms, the findings on the MRI scan could have been caused by
cumulative trauma from her job and therefore it was medically probable that her symptoms were
work related.
In an August 1, 2013 report, Dr. Tang noted that appellant presented with neck pain
extending down the right arm and workup demonstrated evidence of multilevel degenerative disc
which indeed “could have” come as a byproduct of cumulative injuries that “could potentially”
come as a byproduct of being a representative. He noted that appellant had cervical spondylosis
which required an anterior cervical fusion that relieved her symptoms.
In a decision dated November 15, 2013, OWCP denied modification of the April 23,
2013 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).

4

one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s work duties included prolonged sitting and use of a
keyboard and telephone. The Board finds that appellant has not submitted sufficient medical
evidence to establish that her diagnosed conditions are causally related to specific employment
factors.
In the June 26, 2011 report, Dr. Eichel opined that based on appellant’s description her
symptoms were industrial related. In a May 29, 2013 report, he opined generally that it was
difficult to believe that anyone familiar with cervical disc pathology could conclude that the
broad-based disc protrusions at C5-6 and C6-7 found on her MRI scan and at the time of the
cervical disc fusion were not related to repetitive stress and lifting required on her job.
Dr. Eichel noted it was clear that appellant sustained an industrial injury. The Board finds that,
although Dr. Eichel generally supported causal relationship, he did not provide adequate medical
rationale explaining the basis of his opinion regarding causal relationship.4 Dr. Eichel did not
explain the process by which appellant’s particular work duties would cause or contribute to the
diagnosed condition or why such condition would not be due to any nonwork factors. Appellant
originally was treated for a left shoulder condition for which Dr. Eichel diagnosed bursitis in
2011. Dr. Eichel subsequently diagnosed a cervical condition with radiculopathy. His reports
are insufficient to meet appellant’s burden of proof.5
Dr. Shen treated appellant for a long-standing history of neck pain radiating down the left
arm. He attributed her symptoms to cumulative trauma from her job which began in
February 2011 and noted her symptoms were exacerbated by prolonged sitting. Dr. Shen
diagnosed cervical discogenic pain and chronic neck pain. As to the issue of causal relationship,
he appears to repeat the history of injury as reported by appellant without providing his own
rationale explaining how appellant’s condition was work related. Dr. Shen failed to provide a
rationalized opinion explaining the causal relationship between appellant’s cervical condition
and the factors of employment believed to have caused or contributed to such condition.6 In a
July 29, 2013 report, he opined that, based on his examination, the history described by appellant
and the results of imaging studies, to a reasonable degree of medical certainty appellant’s
symptoms did develop as a result of her job as a contact representative. Dr. Shen also noted that
3

Solomon Polen, 51 ECAB 341 (2000).

4

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
5

See J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

5

appellant’s symptoms were industrially related, and that it is “medically possible” that the
prolonged periods of sitting, frequent computer use and telephone use lead to the degenerative
disc changes noted on the imaging studies. In an August 2, 2013 addendum, he noted that, given
appellant’s description of her job duties and onset of symptoms, the findings on the MRI scan
“could have” been caused by cumulative trauma from appellant’s job and therefore medically
probable that her symptoms are industrial related. In an August 1, 2013 report, Dr. Tang noted
workup demonstrated evidence of multilevel degenerative disc which “could have” come as a
byproduct of cumulative injuries that “could potentially” come as a byproduct of being a
representative. At best, these reports provide only speculative support for causal relationship.
Drs. Shen and Tang qualified their opinions by noting that it was “medically possible” that
appellant’s employment “could have” caused her condition. They provided an insufficient
explanation to support their opinion on causal relationship. Therefore, these reports are
insufficient to meet appellant’s burden of proof.7
Appellant submitted a June 15, 2012 report from Dr. Kownacki who treated her for
cervical radiculopathy. Dr. Kownacki opined that appellant’s condition, “more likely than not,
was not caused or aggravated by factors of employment.” He based his opinion on a preexisting
history of multilevel cervical spondylosis and mild-to-moderate foraminal narrowing at C5-6,
C6-7 and C4-5 Dr. Kownacki did not support a work-related cervical condition.
The remainder of the medical evidence, including reports of diagnostic testing, are
insufficient to establish the claim as they fail to provide an opinion on the causal relationship
between appellant’s job and her diagnosed conditions. The record also contains reports from
nurses and therapists. However, the Board has held that document notes signed by such lay
persons are not considered medical evidence as these providers are not physicians under FECA.8
On appeal, appellant disagrees with the denial of her claim for compensation and
contends that she submitted sufficient evidence to establish her claim. As noted, the Board finds
that the medical evidence does not establish that appellant’s left shoulder or cervical conditions
are causally related to her employment. The reports from her physician’s fail to provide
sufficient medical rationale explaining how the conditions were caused or aggravated by
particular employment duties. The need for such rationale is particularly important in view of
appellant’s preexisting degenerative conditions.
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.

7

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
8

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a “physician” as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law).

6

CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF LAND MANAGEMENT, Reno, NV,
Employer
__________________________________________

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

Docket No. 10-2316
Issued: July 15, 2011

Case Submitted on the Record

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

JURISDICTION
On July 13, 2010 appellant filed a timely appeal from the June 25, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which denied his recurrence claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a recurrence of a medical
condition causally related to the July 24, 1998 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 27, 1998 appellant, then a 38-year-old horse wrangler, filed a traumatic injury
claim alleging that on July 24, 1998 he injured his left leg when a horse bit him and knocked him
down. The record reflects that his case was administratively closed due to medical inactivity.
On March 23, 2010 appellant filed a recurrence claim, requesting medical treatment
commencing March 12, 2010. The claim form did not state a claim for any lost time. Appellant
stated that his left hip was never the same following the July 24, 1998 injury and worsened to the
point that it was limiting his work and personal life. He provided medical treatment records for
the period September 3, 1998 to January 15, 1999 regarding his July 24, 1998 claim.
In a March 23, 2010 medical report, Dr. John Zebrack, a Board-certified orthopedic
surgeon, noted that in 1998 appellant sustained a left hip strain with a contusion due to a horse
picking him up and throwing him to the ground at work. Appellant did not have any previous
hip problems. He complained of persistent and worsening pain since the 1998 incident that
interfered with his quality of life. Dr. Zebrack diagnosed advanced left hip arthritis based on
radiographic evidence and recommended a left total hip arthroplasty. He advised that it was
certainly reasonable to assume that the left hip could be post-traumatic arthritis from the 1998
incident.
In a decision dated May 4, 2010, OWCP accepted appellant’s claim for open wound of
left buttock, resolved, contusion of left hip and sprain of hip and left thigh.
In a May 4, 2010 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish that his recurrence claim was related to the 1998 work injury and
requested additional information. It specifically asked him to describe his work activities since
returning to work on October 8, 1998 and list any new injuries either at work or elsewhere.
OWCP also requested medical treatment records from December 17, 1998 to March 23, 2010
and a narrative medical report from a physician, including a history of the original injury, clinical
findings, a firm diagnosis, results of treatments and tests and the physician’s opinion, with stated
medical reasons, regarding the relationship between the need for medical treatment and the
accepted work-related condition. Appellant resubmitted the prior medical treatment records.
In a March 23, 2010 chart record, Dr. Zebrack examined appellant for chronic hip pain
that was aggravated with activities, especially horseback riding. He provided a history that in
1998 appellant sustained a work injury when he was thrown from a horse. Appellant complained
that his hip pain progressively worsened, particularly in the last six months. Upon examination,
Dr. Zebrack noted that appellant walked with an antalgic gait favoring the left hip. Flexion was
90 degrees with pain and internal rotation 10 degrees with pain. Straight leg raise test was
negative. Radiographs further revealed advanced left hip arthritis.
According to an April 8, 2010 discharge report, appellant underwent a left total hip
arthroplasty for left hip endstage arthritis on April 5, 2010. In an April 5, 2010 radiology report,
Dr. Colby Laughlin, a Board-certified diagnostic radiologist, noted a left hip prosthesis in place
with a femoral component located within an acetabular component with no overlying Hemovac
drain. He diagnosed post placement of left hip prosthesis.

2

In an April 14, 2010 chart record, Dr. Zebrack conducted a follow-up examination for
appellant’s total hip arthroplasty. He reported that appellant was doing well with no complaints.
On May 5, 2010 Dr. Zebrack authorized restricted duty for appellant effective May 7, 2010 and
completed a work status report. He noted that appellant’s physical demand level was light and
restricted appellant to occasionally lifting a maximum weight of 16 to 20 pounds, frequently
lifting 8 to 10 pounds and constant lifting negligible while seated. Dr. Zebrack also noted that
appellant complained of having some pain but was improving overall. He observed that
appellant walked with a mildly antalgic gait with good motion and good leg lengths.
Radiographs revealed a stable left total hip arthroplasty.
In a May 18, 2010 letter, Dr. Rick Swecker, a chiropractor, reported that he originally
saw appellant in 2006 for evaluation and treatment of symptoms stemming from a work-related
injury in July 1998. He noted that appellant’s left hip and pelvic areas had been a source of
constant pain and discomfort with the hip progressively worsening. Dr. Swecker opined that
most of the symptoms appellant experienced were aggravations or exacerbations of the July 1998
injury. He explained that the intense pain appellant experienced indicated severe soft tissue
damage in the hip joint most likely including the bursa and capsule. Over the years the joint
continued to degenerate to the point where it became nearly bone on bone. Dr. Swecker believed
that the recent hip replacement was directly related to the original injury and the subsequent
stress placed on this joint by appellant’s job. He further noted that appellant’s work involved
manual labor and intensive horseback riding.
In a May 27, 2010 letter, Dr. Stuart F. Pardee, a chiropractor, stated that appellant
requested a letter providing an opinion regarding the causal relationship between his chronic hip
problem and the 1998 work injury. He noted appellant’s chief complaints of left hip and lower
back pain and stated that appellant’s problems began with the original injury when he was
thrown about by a wild horse. Appellant stated that, ever since that incident, he has experienced
left hip problems. Dr. Pardee concluded that he would support appellant’s contention that all of
his hip problems were from his original July 24, 1998 injury.
By decision dated June 25, 2010, OWCP denied appellant’s recurrence claim on the
grounds of insufficient evidence establishing that his current medical condition resulted from the
accepted work injury.
LEGAL PRECEDENT
Section 10.5(y) of OWCP’s implementing federal regulations provide that a recurrence of
medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage.
Continuous treatment for the original condition or injury is not considered a need for further
medical treatment after release from treatment, nor is an examination without treatment.2 When
a claim for a recurrence of medical condition is made more than 90 days after release from
medical care, an employee is responsible for submitting a medical report that contains a
description of objective findings and supports causal relationship between the employee’s
2

20 C.F.R. § 10.5(y); Mary A. Ceglia, 55 ECAB 626 (2004).

3

current condition and the previous work injury.3 In order to establish that a claimed recurrence
of medical condition was caused by the accepted injury, medical evidence bridging the
symptoms between the present condition and the accepted injury must support the physician’s
conclusion of a causal relationship.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized medical opinion
of whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
Furthermore, section 8101(2) of FECA provides that the term physician, as used therein,
includes chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the Secretary. Without diagnosing a subluxation from x-ray,
a chiropractor is not a physician under FECA and his opinion on causal relationship does not
constitute competent medical evidence.7
ANALYSIS
OWCP accepted that on July 24, 1998 appellant sustained a left buttock open wound, left
hip contusion and hip and left thigh sprain. Appellant continued to work. On March 23, 2010 he
submitted a recurrence claim for medical treatment alleging that his left hip condition had
progressively worsened, ultimately resulting in arthritis and the need for left hip replacement
surgery.
The Board finds that appellant failed to submit sufficient medical evidence to establish
that he sustained a recurrence of a medical condition causally related to the July 24, 1998
employment injury. Appellant submitted various medical reports from Dr. Zebrack. In a
March 23, 2010 medical report and chart record, Dr. Zebrack noted appellant’s 1998 work injury
and complaints of worsening hip pain since the original injury. He conducted an examination
and diagnosed left hip arthritis. Dr. Zebrack opined that it was certainly reasonable to assume
that appellant’s left hip could be post-traumatic arthritis from his 1998 injury. To be considered
rationalized medical opinion evidence, however, a physician’s opinion must be supported by
3

J.F., 58 ECAB 124 (2006); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.5(b) (April 2011).
4

See Ronald A. Eldridge, 53 ECAB 218 (2001); C.W., Docket No. 07-1816 (issued January 16, 2009).

5

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).
6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

5 U.S.C. § 8101(2); see generally Theresa K. McKenna, 30 ECAB 702 (1979).

4

medical rationale explaining the nature of the relationship between the diagnosed condition and
the claimant’s employment factors.8 Dr. Zebrack did not relate a full medical history from 1998
which established the progression of the arthritic process since 1998. His medical reports stated
a conclusion, but did not provide a clear explanation with certainty as to how appellant’s current
hip condition was related to the July 24, 1998 work injury. Dr. Zebrack’s stated assumption of
causal relationship is speculative.9 His report is of limited probative value.10
In an April 5, 2010 radiology report, Dr. Laughlin diagnosed post placement of left total
hip arthroplasty but did not offer any opinion regarding the cause of appellant’s hip condition.
The Board has held that medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value on the issue of causal relationship.11 This
report is also insufficient to establish appellant’s claim.
In the May 18, 2010 medical report, Dr. Swecker, a chiropractor, noted appellant’s 1998
work injury and explained that, over the years, appellant’s hip joint continued to degenerate to
the point where it became nearly bone on bone and opined that appellant’s recent hip
replacement was directly related to his original 1998 injury and the subsequent stress placed on
this joint by his job. Similarly, Dr. Pardee, a chiropractor, also concluded that appellant’s current
hip problems originated from his original July 24, 1998 work injury. The term “physician,”
however, includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist and subject to regulation by the Secretary.12 Neither Dr. Swecker
nor Dr. Pardee diagnosed spinal subluxation and the record does not contain any x-rays
demonstrating subluxation. Chiropractors are not physicians as defined and their reports are
insufficient to establish appellant’s recurrence claim.
Appellant’s claim for medical treatment was properly denied due to his failure to submit
medical evidence of bridging symptoms between his current condition in 2010 and the accepted
work injury.13 His last reported medical treatment before his alleged 2010 recurrence was
January 15, 1999. Appellant did not submit a detailed medical report addressing the intervening
years or need for medical treatment commencing on March 12, 2010 causally related to his
accepted injury.
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.
8

S.D., 58 ECAB 713 (2007); Ricky S. Storms, 52 ECAB 349 (2001).

9

Medical opinions based on an incomplete history or which are speculative are of diminished probative value.
See Cecelia M. Corley, ECAB 662 (2005).
10

See S.S., Docket No. 10-146 (issued July 26, 2010).

11

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

12

5 U.S.C. § 8101(2); McKenna, supra note 7.

13

Ronald A. Eldridge, supra note 4.

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of his medical condition causally related to the July 24, 1998 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2010 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6