United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
ENVIRONMENTAL PROTECTION AGENCY,
HEALTH & SAFETY OFFICE, Chicago, IL,
Employer
__________________________________________

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

Docket No. 11-1733
Issued: May 25, 2012

Case Submitted on the Record

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

JURISDICTION
On July 20, 2011 appellant filed a timely appeal of a May 5, 2011 Office of Workers’
Compensation Programs’ (OWCP) merit decision finding an overpayment of compensation.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,560.29 for the period January 3 through 15, 2011; (2) whether appellant was at
fault in the creation of the overpayment; and (3) whether OWCP properly sought recovery of the
overpayment.
On appeal appellant argued that he reimbursed OWCP through a third-party settlement
consisting of $395,000.00 which included the overpayment of $2,600.00.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 28, 2005 appellant, then a 52-year-old database administrator, filed a traumatic
injury claim alleging that he slipped on a wet floor in a men’s restroom while in the performance
of duty. On November 18, 2005 OWCP accepted his claim for acute lumbar sprain/strain.
Appellant underwent an L4-5, L5-S1 transforaminal lumbar interbody fusion and L4-5, S1
posterior fusion on January 12, 2007.
OWCP paid compensation benefits beginning
April 16, 2007. On April 18, 2007 appellant completed a direct deposit sign-up form. He
returned to light-duty work on February 20, 2008. On April 7, 2008 OWCP accepted that
appellant sustained a recurrence of disability on March 16, 2008. In a letter dated June 18, 2008,
OWCP entered him on the periodic rolls. This letter included the statement:
“In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made
through [OWCP’s] automated system will include the period for which payment
is made. If you have worked for any portion of this period, you must return the
check to [OWCP]. Otherwise, an overpayment of compensation may result.”
(Emphasis in the original.)
Appellant underwent additional surgery on September 12, 2008.
The employing establishment offered appellant a position on November 1, 2010.
Appellant returned to work on January 3, 2011. He notified OWCP on January 18, 2011.
In a letter dated March 11, 2011, OWCP made a preliminary determination that appellant
had received an overpayment of $2,560.29 because he returned to work on January 3, 2011 and
continued to receive compensation for temporary total disability through January 15, 2011. It
stated that he was entitled to compensation for temporary total disability from December 19,
2010 through January 2, 2011 in the net amount of $2,954.19, but that he received compensation
for the period December 19, 2010 through January 15, 2011 in the amount of $5,514.48
receiving an overpayment of $2,560.29. OWCP concluded that appellant was at fault because he
accepted a payment which he knew or reasonably should have known was incorrect. It requested
that he provide financial information. Appellant did not respond within the allotted time.
By decision dated May 5, 2011, OWCP determined that appellant received an
overpayment for the period January 3 through 15, 2011 in the amount of $2,560.29 for which he
was at fault. It noted that he had not responded to the preliminary determination with the
requested financial information requested full payment within 30 days.2

2

The Board notes that the record contains additional information regarding the results of appellant’s third-party
suit. However, as this information was not before OWCP at the time of the May 5, 2011 decision, the Board cannot
consider this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA3 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.4
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except for
services actually performed or for certain payments related to service in the Armed Forces,
including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under FECA.5 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.6 The beneficiary must elect the
benefit that he or she wishes to receive.7
ANALYSIS -- ISSUE 1
Appellant returned to work on January 3, 2011. He continued to receive compensation
benefits for total disability through January 15, 2011. Any wage-loss compensation appellant
received from OWCP after January 2, 2011 constitutes an overpayment of compensation.8 The
record shows that OWCP paid him wage-loss compensation until January 15, 2011. Thus, he
received an overpayment consisting of the difference between the amount he received, $5,514.48
and the amount to which he was entitled, $2,954.19, resulting in an overpayment of $2,560.29.
The Board will affirm the fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA9 provides that, where an overpayment of compensation has
been made “because of an error or fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of FECA or would be

3

5 U.S.C. §§ 8101-8193, 8102.

4

Id.

5

Id. at § 8116(a).

6

20 C.F.R. § 10.421(a).

7

Id.

8

A.L., Docket No. 09-1529 (issued January 13, 2010); Franklin L. Bryan, 56 ECAB 310 (2005).

9

5 U.S.C. §§ 8101-8193, 8129(a).

3

against equity and good conscience.”10 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.320(b) of OWCP’s
regulations11 provide in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to furnish information which the individual knew or should
have known to be material; or
(3) With respect to the overpaid individual only, accepted a payment
which the individual knew or should have been expected to know was
incorrect.”
The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.12 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from OWCP or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.13
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault in the creation of the $2,560.29
overpayment.
An overpayment of compensation occurred in this case when appellant returned to fulltime work on January 3, 2011 and received compensation for temporary total disability for the
period December 19, 2010 through January 15, 2011. The compensation check thus covered two
periods: a period of total disability through January 3, 2011, for which he remained entitled to
compensation and a period of full-time employment from January 3 through 15, 2011 for which
he was not entitled to compensation. It is during this latter period that the overpayment occurred.

10

Id. at § 8129(b).

11

20 C.F.R. § 10.320(b).

12

See Karen K. Dixon, 56 ECAB 145 (2004).

13

See K.H., Docket No. 06-191 (issued October 20, 2006).

4

OWCP found that appellant was at fault in the creation of the overpayment based on the
fact that he accepted a payment which he knew or should have known to be incorrect. This case,
however, is distinguishable from those in which a claimant returns to work, subsequently
receives a compensation check in the mail covering a period of employment, and knows or
should have known that he is not entitled to such compensation, but decides nonetheless to cash
or deposit the check. In such cases, the cashing or depositing of the check constitutes
acceptance.14 In this case, appellant authorized OWCP to deposit his compensation directly to
his bank account. After he notified OWCP of his return to work on January 18, 2011, he
received a direct deposit to his account. Under the facts of this case, appellant had no
opportunity to make a decision as to the correctness of the check before it was deposited to his
account. While he accepted the overpayment by gaining control of the funds deposited into his
bank account pursuant to his authorization, he did not know that he would receive an incorrect
payment on that day.15
The Board finds that under the circumstances of this case OWCP has not presented
sufficient evidence to establish that appellant accepted a payment which he knew or should have
known to be incorrect. The Board will, therefore, set aside OWCP’s finding of fault and remand
the case to OWCP for further development and a final decision on the issue of waiver.16
Appellant argued on appeal that the overpayment was recovered from his third-party
settlement.17 The details of the third-party settlement are not properly of record before the Board
in this appeal.18
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,560.29. The Board further finds that appellant was without fault in the creation of the
overpayment.

14

William F. Salmonson, 54 ECAB 152 (2002).

15

See Tammy Craven, 57 ECAB 689 (2006); M.S., Docket No. 08-1481 (issued January 27, 2009).

16

The third issue is rendered moot due to the findings on appeal. The Board notes that with respect to recovery of
an overpayment, the Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery from
continuing compensation benefits under FECA. Where appellant is no longer receiving wage-loss compensation,
the Board does not have jurisdiction with respect to OWCP’s recovery of an overpayment under the Debt Collection
Act. See Lewis George, 45 ECAB 144, 154 (1993); see also 20 C.F.R. § 501.2(c)(1).
17

In a letter dated June 1, 2009, OWCP stated that appellant had sustained an injury under circumstances which
may place liability for damages upon a third party. On June 10, 2009 appellant informed OWCP that he had
instituted a third-party suit, but had not recovered damages. On March 23, 2011 OWCP informed him that he
should make a refund in the amount of $305,928.11. The record reveals that appellant, through counsel, complied.
OWCP acknowledged receipt of the refund on May 16, 2011.
18

20 C.F.R. § 501.2.

5

ORDER
IT IS HEREBY ORDERED THAT the May 5, 2011 decision of the Office of Workers’
Compensation Programs is affirmed in part and remanded in part for further proceedings
consistent with this decision of the Board.
Issued: May 25, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

2

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employ ee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF LABOR, MINE SAFETY & )
HEALTH ADMINISTRATION, Manchester, NH, )
Employer
)
__________________________________________ )
J.Z., Appellant

Appearances:
Marc J. Levy, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1156
Issued: July 28, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On April 26, 2019 appellant, through counsel, filed a timely appeal from an April 11, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a stress-related
condition in the performance of duty, as alleged.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the prior appeal are incorporated herein by reference. The relevant facts are as follows.
On October 27, 2015 appellant, then a 38-year-old mine safety and health inspector, filed
an occupational disease claim (Form CA-2) alleging that his life was threatened by a mine operator
in 2014. He alleged that he developed seizures as a result of the continued threats on
October 22, 2015.
An incident report dated October 22, 2015 revealed that, on that date, the fire department
was dispatched to a hotel because appellant was having difficulty breathing. When they arrived
appellant was noted to be staggering and staring off into space. His mental status improved and
he reported that he was in town for his federal employment and that he had a history of seizures.
Appellant had arrived at the hotel early, sat in the parking lot reading a book, and awoke in
handcuffs, confused. The fire department transported him to the emergency department. On
October 22, 2015 appellant was treated in an emergency room for seizure disorder by Dr. Amber
Richards, a physician Board-certified in emergency medicine.
On October 30, 2015 the employing establishment controverted appellant’s claim, noting
that he had a seizure while on government travel. Appellant was sitting in his car at the hotel when
he experienced the seizure. The employing establishment reported that he had a history of seizures
and was on anti-seizure medication. As such, it argued that the seizure activity was not causally
related to appellant’s employment.
Appellant subsequently submitted a copy of the Bill of Rights to the U.S. Constitution. He
also provided a May 28, 2015 Maine newspaper article reporting that M.L., the mine operator he
alleged was threatening him, was accused of reckless conduct with a firearm after he allegedly
fired a gun at an all-terrain vehicle rider. Appellant provided internet comments from “Skidddah”
alleging that appellant had put his sand pit out of business. “Skidddah” had asserted that appellant
had failed to inspect three other sand pits within the immediate area. He also asserted that
inspectors would be met with resistance and noted, “I will protect my property with my 2nd
amendment right, to defend my 4th and 8th amendment rights.”
In development letters dated November 9, 2015, OWCP requested additional factual and
medical evidence in support of appellant’s occupational disease claim from him and the employing
establishment. It afforded both parties 30 days to respond.
Appellant submitted medical evidence regarding a September 16, 2014 motor vehicle
accident in which he collided with a concrete barrier. He was apparently knocked unconscious
and was diagnosed with unspecified concussion and postconcussive syndrome. On November 24,
2014 appellant’s physician, Dr. Oscar G. Bernal, a Board-certified neurologist, noted that
appellant had a petite mal seizure disorder in childhood and may have had a seizure three weeks
prior while sitting in a parked car. On January 22, 2015 he noted that appellant has postconcussive
syndrome and reported a medical history of grand mal seizure in 2015.

3

Order Remanding Case, Docket No. 18-0428 (issued February 21, 2019).

2

In an undated report, appellant’s attending physician Dr. Dwight Smith, an osteopath,
reported that appellant experienced a state of emotional distress since learning of a threat on his
life from a mine operator in the state of Maine. Appellant reported his concerns over the lack of
response by the employing establishment. He noted that the individual who threatened his life was
also the subject of an investigation for shooting at a trespasser within the pit. Dr. Smith opined
that emotional stress and lack of sleep could trigger grand mal seizures or generalized seizure
attacks. He attributed appellant’s seizures on October 22, 2015 to his work activities.
In a letter dated November 16, 2015, the employing establishment reported that appellant
was never verbally threatened nor was a restraining order issued. A YouTube video was taken to
the Federal Protection Service (FPS) and was determined not to be a threat.
Appellant responded to OWCP’s request for factual information on March 22, 2016. He
asserted that he was claiming an emotional condition which led to seizure activity at his temporary
duty station. Appellant asserted that the threat was made on social media on March 15, 2015 and
that he reported the threat to his supervisor, R.D., who was also named in the threat. He alleged
that the mine operator, M.L., admitted to using the screen name “Skidddah.” Appellant contended
that M.L. continued to send letters to the employing establishment, but that, when appellant asked
for these letters, the employing establishment reported that they had been removed. When he
returned to work, he alleged that the comments made by M.L. were well known and discussed by
various mine operators during his inspections. Beginning October 27 and 28, 2015, the employing
establishment performed a compliance assistance visit at M.L.’s mine which appellant asserted
was in violation of employing establishment policy. Appellant alleged that the employing
establishment decided to work with M.L. rather than follow required steps. He asserted that he
experienced increased anxiety when starting inspections due to a lack of protection from
harassment. Appellant asserted that the employing establishment removed all correspondence
from M.L. and also removed appellant’s computer.
By decision dated May 13, 2016, OWCP denied appellant’s emotional condition claim. It
found that he had not provided the necessary factual information to support his allegations of
threats or harassment by M.L. OWCP noted that appellant did not provide any documentation of
threatening letters from M.L. It concluded that he had not provided sufficient factual evidence to
establish that M.L. threatened his life and, thus, there was no factual basis for his claim.
The employing establishment subsequently provided several letters from M.L. On
November 25, 2013 M.L. contested two safety citations. He alleged that there were two sand pits
in his town that had never had an employing establishment inspector. M.L. asserted that he was
bitter. On February 26, 2014 he protested two fines and further asserted that he would no longer
allow inspectors on his property. M.L. noted that other sand pit operators in the area were not
inspected and cited. In an undated letter addressed to “whoever runs this terrorist organization,”
he, alleged that he had been bullied and mentioned appellant by name. M.L. alleged that the
employing establishment was terrorizing him and threatened to come to the employing
establishment and demand answers. He disagreed with the paperwork required and asserted all he
had received was “Just fines from you terrorist [p****s]!” M.L. mentioned the fine from appellant
as a consequence of standing on a concrete block while greasing his machine and asserted that
appellant made it seem that he was standing on a 10-story building. M.L. concluded, “One last
time, if I don’t get a response from you real soon I will take a day off from my other job and drive
to your office, and do what I have to do! I will defend and protect my rights and property at any
3

cost!” He signed this note, “[M.L.,] one pissed off son of a [b***h]!!!!” In a final note, M.L.
again asked why he was inspected and fined while the other sand pits in his town were not.
On March 24, 2015 appellant’s supervisor, R.D., contacted the FPS regarding an online
threat that he became aware of in the previous week. He noted that FPS did not feel that the
information posted was a direct threat. In an e-mail dated November 17, 2015, appellant’s
supervisor discussed the result of the compliance assistance visit with M.L. on
November 12, 2015. He noted that the meeting was concluded with a handshake and M.L.’s
agreement to comply with the notices issued on January 27, 2015.
R.D., appellant’s supervisor, also noted that appellant had performed inspections on M.L.’s
mine on July 17, 2013 which included citations and orders with no adverse comment.
In an e-mail dated May 24, 2016, M.T., the area commander of the FPS, noted reviewing
the materials from M.L., and opined that these comments did not reach the level of a direct threat
and would not be considered to meet the threshold for assaulting, resisting, or impeding federal
employees.
On June 10, 2016 appellant requested reconsideration of the May 13, 2016 decision. He
provided statements from witnesses who had read some portion of the letters from M.L. and found
them to be threatening. Appellant submitted a statement asserting that the comment from
“Skidddah” or M.L. was placed on March 10, 2015 and that he became aware of the comment in
late March or early April 2015. Immediately, upon seeing the comment, he felt threatened.
Appellant was confident that M.L. made the remark, found that the tone was extreme anger, and
noted that M.L. referenced protecting his property and his right to bear arms. He alerted his
supervisor, R.D., who was also mentioned in the comment. R.D. then alerted the FPS. M.L.
continued to contact the employing establishment through telephone calls and letters. Appellant
identified the undated letter from M.L. as delivered to the employing establishment in late
September 2015. He noted that, in October 2015, R.D. informed him that the employing
establishment had decided to engage in a compliance assistance visit with M.L. rather than taking
legal action against him. Shortly, thereafter, appellant experienced what he and his physicians
believed was a stress-induced seizure event on October 22, 2015.
The employing establishment responded on July 18, 2016 and noted that M.L. contacted
the employing establishment by telephone on two occasions, neither of which were aggressive.
By decision dated October 14, 2016, OWCP denied modification of the May 13, 2016
decision, finding that appellant had not established a compensable factor of employment as causing
or contributing to his diagnosed emotional condition.
On October 28, 2016 appellant requested reconsideration of the October 14, 2016 merit
decision. He resubmitted the information provided by the employing establishment as well as
additional medical evidence. Appellant again provided the undated letter from M.L. He also
submitted e-mails from R.D. noting that he had provided a copy of M.L.’s photograph on
September 29, 2015 and included the article concerning M.L. firing a gun on September 28, 2015.
By decision dated August 18, 2017, OWCP denied appellant’s request for reconsideration
on the merits pursuant to 5 U.S.C. § 8128(a). It found that he had not submitted any new and
relevant evidence in support of his request for reconsideration.
4

Appellant appealed to the Board on December 26, 2017. In a February 21, 2019 order, the
Board set aside the August 18, 2017 decision, finding that OWCP’s delay in issuing a decision
regarding his October 28, 2016 request for reconsideration effectively precluded him from
appealing OWCP’s most recent merit decision to the Board. The Board remanded the case to
OWCP for a merit decision.4
On remand, by decision dated April 11, 2019, OWCP denied modification of the
October 14, 2016 decision, again finding that appellant has not established that his life was directly
threatened and, therefore, has not established a compensable factor of employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
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,8 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 an illness has
some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.9 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
4

Id.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); T.O., Docket No. 18-1012 (issued
October 29, 2018); Michael E. Smith, 50 ECAB 313 (1999).
7
S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

28 ECAB 125 (1976).

9

G.R., Docket No. 18-0893 (issued November 21, 2018).

5

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.10
Perceptions and feelings, alone, are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.11 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.12
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP denied appellant’s emotional condition claim, finding that he had not established a
compensable employment factor. The Board must, therefore, initially review whether the alleged
incidents and conditions of employment are covered employment factors under the terms of FECA.
Regarding appellant’s allegation that M.L. threatened him, the Board has recognized that
verbal and written threats when sufficiently detailed by the claimant and supported by evidence,
may constitute compensable employment factors.13 In the instant case, appellant provided copies
of internet comments establishing that M.L. wrote that inspectors would be met with resistance
and that he would protect his property rights with his right to bear arms. The employing
establishment also provided letters from M.L. in which he asserted that he would no longer allow
inspectors on his property, that appellant had bullied and harassed him, and that the employing
establishment was terrorizing him. M.L. further asserted that he was going to drive to the
employing establishment and defend and protect his rights and property “at any cost” and “do what
[he] had to do.”
The Board finds that M.L.’s verbal and written statements rise to the level of a credible
bodily threat directed at appellant.14 Appellant has established with corroborating evidence that
specific verbal and written threats were made against him.15 The Board has recognized the
compensability of threats, when the factual aspects of such claimed threats are established.16

10

G.G., Docket No. 18-0432 (issued February 12, 2019).

11

D.W., Docket No. 19-0449 (issued September 24, 2019); supra note 9.

12

V.R., Docket No. 18-1179 (issued June 11, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

J.W., Docket No. 17-0999 (issued September 4, 2018).

14

See M.R., Docket No. 17-1803 (issued February 8, 2019) (finding that a statement made directly to the claimant
that he would be “among the nonliving” was a credible bodily threat directed at the claimant).
15

But see M.F., Docket No. 17-1649 (issued July 20, 2018) (verbal disagreements without a specific bodily threat
did not sufficiently affect the conditions of employment to constitute a compensable factor of employment).
16
See C.O., Docket No. 07-1290 (issued December 6, 2007) (defacing a time card with KKK was a compensable
factor of employment.); but see Leroy Thomas, III, 46 ECAB 946, 954 (1995) (a joking threat was not compensable).

6

For the foregoing reasons, the Board finds that appellant has established a compensable
factor of employment under FECA. OWCP did not analyze or develop the medical evidence given
its finding that there were no compensable employment factors. The case will therefore be
remanded to OWCP for this purpose.17 After any further development as deemed necessary, it
shall issue a de novo decision on the issue of whether appellant has a stress-related condition due
to the compensable factor of his federal employment.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 11, 2019 decision of the Office of Workers’
Compensation Programs is set aside and remanded for further proceedings consistent with this
decision of the Board.
Issued: July 28, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

17

K.A., Docket No. 14-0017 (issued August 4, 2014); Robert Bartlett, 51 ECAB 664 (2000).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Seattle, WA, Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-225
Issued: May 31, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 7, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 9, 2005 merit decision denying his recurrence of disability
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of disability on or after June 30, 2004 due to his employment-related right shoulder
condition.
FACTUAL HISTORY
On July 20, 1989 appellant, then a 38-year-old distribution clerk, filed a traumatic injury
claim alleging that he sustained a right hand injury on July 17, 1989 due to sorting mail. The
Office accepted that appellant sustained de Quervain’s tenosynovitis and carpal tunnel syndrome
of the right wrist and authorized a right carpal tunnel and first dorsal compartment release which

was performed on March 23, 1990.1 Appellant was released to work without restriction on
September 13, 1990. The Office also accepted that appellant sustained a right rotator cuff tear
and rotator cuff syndrome in 1993 and authorized right acromioplasty and rotator cuff repair
surgery which was performed on November 17, 1993. He was returned to light-duty work on
January 12, 1994.
On December 27, 1995 appellant filed an occupational disease claim alleging that he
sustained injury to his right shoulder and arm. He did not stop work but continued performing
light-duty work which restricted him from lifting more than 20 pounds, climbing ladders and
reaching above his shoulder with his right arm. The Office accepted that appellant sustained
impingement syndrome of the right rotator cuff. On June 12, 1996 appellant underwent a
revision acromioplasty of the right shoulder which was authorized by the Office.2
Appellant continued to work in light-duty positions at the employing establishment. He
voluntarily retired on disability retirement effective August 19, 2002. In mid 2004, appellant
claimed that he sustained a recurrence of disability on June 30, 2004 due to his employmentrelated right shoulder condition.3
On July 27, 2004 Dr. W. Harold Knight, an attending Board-certified orthopedic surgeon,
diagnosed “right shoulder” and recommended that appellant undergo physical therapy for two
weeks and “continue to work at his same permanent restrictions.” The record contains physical
therapy reports from July and August 2004 in which appellant’s therapists discussed his right
shoulder condition.
By decision dated November 3, 2004, the Office denied appellant’s claim on the grounds
that he did not submit sufficient medical evidence to establish that he sustained a recurrence of
disability on or after June 30, 2004 due to his employment-related right shoulder condition.
Appellant requested a hearing before an Office hearing representative. At the May 17,
2005 hearing, appellant’s attorney contended that appellant did not have the burden of proof to
establish that he sustained an employment-related recurrence of disability on June 30, 2004, but
rather that the Office had the burden of proof to terminate appellant’s compensation beginning
June 30, 1994. He asserted that because the employing establishment could not offer appellant
light-duty work within his restrictions around the time appellant retired in August 2002, the
Office had not met its burden of proof to terminate appellant’s compensation. Counsel cited the

1

Appellant had a right volar ganglion surgically excised from his right wrist in 1990.

2

The Office granted appellant schedule awards for a total 21 percent permanent impairment of his right arm.

3

The Office accepted that appellant sustained an employment-related right knee injury on January 8, 2002 and
authorized the performance of right knee surgery in April 2002. Appellant began to receive disability compensation
based on his knee injury rather than his right shoulder injury. He continued to receive compensation in connection
with his right knee injury after he retired and, in a dated June 29, 2004 decision, the Office terminated this
compensation effective June 29, 2004 on the grounds that he had no residuals of his right knee condition after that
date. The record contains very few documents concerning appellant’s right knee injury and appellant has not
claimed that his June 30, 2004 recurrence of disability was due to his right-knee condition.

2

case of Cindy L. Moss, Docket No. 04-1386 (issued December 13, 2004), in support of his
argument.
In a decision dated and finalized September 9, 2005, the Office hearing representative
affirmed the June 29, 2004 decision. The Office hearing representative determined that it was
appellant’s burden of proof to establish that he sustained a recurrence of disability on or after
June 30, 2004 due to his employment-related right shoulder condition. He found that appellant
did not submit sufficient evidence to meet that burden of proof.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.4 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.5 Where no such rationale is present, medical evidence is of diminished
probative value.6
ANALYSIS
The Office accepted that appellant sustained a right rotator cuff tear and rotator cuff
syndrome in 1993 and authorized right acromioplasty and rotator cuff repair surgery which was
performed on November 17, 1993. He was released to light-duty work on January 12, 1994.
After filing an occupational disease claim in December 1995, the Office accepted that appellant
sustained impingement syndrome of the right rotator cuff. On June 12, 1996 appellant
underwent a revision acromioplasty of the right shoulder which was authorized by the Office.
He continued performing light-duty work for the employing establishment and voluntarily retired
on disability retirement effective August 19, 2002. In mid 2004 appellant claimed that he
sustained a recurrence of disability on June 30, 2004 due to his employment-related right
shoulder condition.
Counsel argued that appellant did not have the burden of proof to establish that he
sustained an employment-related recurrence of disability on June 30, 2004, but rather that the
Office had the burden of proof to terminate appellant’s compensation beginning June 30, 1994.
Citing Cindy L. Moss, Docket No. 04-1386 (issued December 13, 2004), he asserted that because
the employing establishment could not offer appellant light-duty work within his restrictions
4

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under 20
C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.”
5

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

3

around the time he retired in August 2002, the Office had not met its burden of proof to
terminate his compensation.
It is well established that once the Office has accepted a claim, it may not terminate
compensation without establishing that the disability ceased or that it was no longer related to the
employment.7 The Board notes that appellant’s reliance on Cindy L. Moss is misplaced as the
facts of that case are readily distinguished from the facts of the present case. The employee was
receiving compensation in connection with her employment injury at the time the employing
establishment in that case indicated that it could no longer provide light-duty work for her.8 In
the present case, appellant had retired effective August 19, 2002 and was not receiving
compensation in connection with his employment-related right shoulder condition either at the
time of his retirement or at the time of his claimed recurrence of disability on June 30, 2004.
Appellant has the burden of proof to present medical evidence showing that he sustained an
employment-related recurrence of disability on or after June 30, 2004.
The Board finds that appellant did not submit sufficient medical evidence to meet his
burden of proof to establish that he sustained a recurrence of disability on or after June 30, 2004
due to his employment-related right shoulder condition. On July 27, 2004 Dr. Knight, an
attending Board-certified orthopedic surgeon, diagnosed “right shoulder” and recommended that
appellant undergo physical therapy for two weeks and “continue to work at his same permanent
restrictions.” Dr. Knight’s brief reports are of limited probative value on the relevant issue of the
present case in that they do not contain any opinion that appellant’s right shoulder condition on or
after June 30, 2004 was related to his employment-related right shoulder condition.9 Moreover,
Dr. Knight did not provide a diagnosis of appellant’s right shoulder condition, did not specify the
work restrictions he felt appellant needed and did not clarify the cause of the condition which
necessitated such restrictions. The record also contains physical therapy reports from July and
August 2004 in which appellant’s therapist discussed his right shoulder condition. However,
physical therapists are not physicians under the Act and are not qualified to provide the necessary
medical evidence to meet appellant’s burden of proof.10
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.11 Appellant failed to submit rationalized medical evidence
establishing that his claimed recurrence of disability is causally related to the accepted
employment conditions and, therefore, the Office properly denied his claim for compensation.
7

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

The Board reversed the Office’s termination of the claimant’s compensation because the employing
establishment could not offer light-duty work within the claimant’s restrictions at the time of the termination.
9

See Charles H. Tomaszewski, supra note 4 (finding that medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
10

Jane A. White, 34 ECAB 515, 518-19 (1983).

11

See Walter D. Morehead, 31 ECAB 188, 194-95 (1986).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of disability on or after June 30, 2004 due to his employment-related right
shoulder condition.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 9, 2005 decision is affirmed.
Issued: May 31, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 15-1185
Issued: October 8, 2015

Case Submitted on the Record

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

JURISDICTION
On April 28, 2015 appellant filed a timely appeal from a November 4, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

Appellant submitted additional evidence accompanying her request for appeal. The Board may not consider
evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from November 4, 2014, the date of OWCP’s last decision, was
May 3, 2015. Since using May 5, 2015, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the
U.S. Postal Service postmark is April 28, 2015, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether appellant established an emotional condition in the performance of
duty.
FACTUAL HISTORY
On November 27, 2013 appellant, then a 58-year-old patient relations specialist, filed a
traumatic injury claim (Form CA-1) alleging that on November 22, 2013 she sustained posttraumatic stress disorder (PTSD), depression, anxiety, and migraine headaches after her
supervisor forced her to watch a female patient’s YouTube video, in which the veteran described
a military sexual assault and failed major surgeries. The employing establishment confirmed that
appellant was in the performance of duty while watching the video, but contended that “the event
did not cause the injury” as appellant had preexisting PTSD and migraines.4 Appellant stopped
work on or about December 3, 2013.
Dr. James M. Shea, an attending Board-certified psychiatrist, provided December 17,
2013 reports diagnosing PTSD and major depressive disorder. He noted that appellant had
preexisting PTSD due to a sexual assault while in military service. Dr. Shea related appellant’s
belief that an encounter with a hostile patient in late November 2013 exacerbated her PTSD. He
held appellant off work through January 3, 2014.
In a December 18, 2013 letter, OWCP advised appellant of the evidence needed to
establish her claim, including factual corroboration of the November 22, 2013 incident, and a
report from her attending physician explaining how and why that incident would cause the
claimed conditions.
In response, appellant submitted two January 11, 2014 statements contending that her
supervisor forced her to watch the video so she would develop empathy for the patient. The
supervisor did not allow her to turn her head or look away, although the patient was nude from
the waist up, and displayed disfiguring surgical incisions on her chest and abdomen. The patient
also described an alleged sexual assault by her superior officer. Appellant explained that she had
undergone similar surgeries, as well as suffered a sexual assault by her superior officer. While
watching the video, she became extremely anxious and experienced shortness of breath. After
being allowed to leave her supervisor’s office, appellant sought counseling from a coworker,
who went with appellant to her supervisor to confront her about the experience. The supervisor
alleged that she would not have made appellant watch the video had she known her history. In
the hours after watching the video, appellant asserted that she developed severe anxiety, panic
attacks, sleep disturbance, depression, migraine headaches, crying spells, intrusive thoughts and
memories, disturbed sleep, poor appetite, and forgetfulness. Appellant continued to work until
December 3, 2013, when she could no longer tolerate her PTSD symptoms and stress level.
Dr. Melanie G. Perkins, an attending Board-certified psychiatrist, treated appellant on
June 18, 2013 for PTSD, dysthymia, anxiety, and stress after being stalked by a male patient. On
December 5, 2013 she noted appellant’s account of the YouTube video triggering her PTSD and
4

Appellant submitted a coworker’s statement asserting that appellant was very upset on November 22, 2013 after
watching the YouTube video.

2

traumatic memories. Dr. Perkins diagnosed PTSD due to a sexual assault while in military
service, and a childhood trauma, and persistent depressive disorder (dysthymia). She prescribed
medication. In a January 2, 2014 report, Dr. Perkins noted that appellant recently married, and
experienced increased anxiety with panic attacks. She held appellant off work.
In a November 27, 2013 report, a nurse practitioner noted that appellant presented with a
reactivation of PTSD on November 22, 2013 after a “supervisor made her watch a video of a
veteran with similar issues to [appellant]” of “sexual trauma in the military and multiple
surgeries.”
Dr. Terri L. Hyatt, an attending Board-certified family practitioner, diagnosed PTSD on
December 3, 2013. She held appellant off work through December 17, 2013. Dr. Hyatt noted
appellant’s history of PTSD and a recent flare up “because of some situations at work.”
Appellant received psychotherapy beginning on June 26, 2013 from Dr. Krystin R.
Coldwell, attending licensed clinical psychologist. Dr. Coldwell related appellant’s anxiety
symptoms due to a veteran holding her hands and praying over her during an advocacy session,
then “stalking her.” She diagnosed chronic PTSD in reports through August 9, 2013. On
December 2, 2013 Dr. Coldwell noted appellant’s frustration over her supervisor’s insistence that
she watch “a video of another Veteran that triggered her anxiety from past trauma.”
On January 14, 2014 Dr. Mardi M. Smith, an attending licensed clinical psychologist,
noted that appellant would begin evidence-based treatment for PTSD.5
By decision dated January 24, 2014, OWCP denied the claim, finding that causal
relationship was not established. It accepted watching the video as a compensable factor of
employment. However, the medical evidence did not explain how and why watching the video
would cause the claimed conditions.
Appellant disagreed with the decision and requested a telephonic hearing before an
OWCP hearing representative, held August 18, 2014. At the hearing, she testified that since the
November 22, 2013 incident, the Department of Veterans Affairs increased her service-related
disability rating from 30 to 70 percent. Appellant described her participation in a PTSD
treatment program after the incident. She asserted that the employing establishment reassigned
her as part of an Equal Employment Opportunity (EEO) grievance settlement for hostile work
environment. Appellant noted that she returned to work in the new position on June 16, 2014.
One of her coworkers offered testimony confirming appellant’s account of the events of
November 22, 2013, and alleged that the telephonic hearing caused an additional stress reaction.6
Following the hearing, appellant submitted a March 19, 2014 statement asserting that on
November 22, 2013 her supervisor instructed her to give preferential treatment to the female
veteran in the YouTube video. After meeting with the veteran, her partner, and her service dog,
appellant called a meeting with department personnel to advise them that the veteran planned to
5

Appellant also submitted reports from a social worker that were not signed or reviewed by a physician.
Therefore, they do not constitute medical evidence. Roy L. Humphrey, 57 ECAB 238 (2005).
6

On September 22, 2014 the employing establishment submitted comments on the hearing transcript, contending
that appellant’s physicians did not provide sufficient medical rationale to establish causal relationship.

3

file complaints against a physician at another employing establishment facility. Appellant’s
supervisor then instructed her to watch the YouTube video posted by the patient. Appellant
contended that she did not need to see the video as she had actually met with the patient and her
family support team. Colleagues at the meeting agreed that there was no value to watching the
video under those circumstances. After the meeting, appellant’s supervisor called her in to her
office and insisted she watch the video. Appellant emphasized that the veteran “was nude from
the waist up,” and had several disfiguring scars on her chest and abdomen, similar to her own
“botched surgical issues at another” employing establishment facility. “This was all too close to
home.” The veteran then discussed a sexual assault by her superior officer. Appellant tried to
look away, but her supervisor allegedly stood over her and demanded that she watch. She then
became short of breath, and began to tremble and cry. Appellant’s PTSD symptoms then
increased markedly, such that she was no longer able to work as of December 3, 2013.
Appellant subsequently submitted additional medical evidence.
Dr. Smith provided treatment notes from January 17 to February 24, 2014 relating
appellant’s history of PTSD after two sexual assaults while in military service, with a triggering
episode after watching the patient video on November 22, 2013. In an undated letter, Dr. Smith
opined that, when appellant watched the video, she “experienced increased symptoms of PTSD
specifically due to triggers related to her previous military sexual trauma.” Dr. Smith explained
that although appellant had work stressors prior to the incident, including being stalked by a
patient, her PTSD symptoms were “directly attributable to military sexual trauma which was
more likely than not triggered by watching a video of a similar trauma. It is unlikely that her
nightmares of sexual trauma are attributable to other stressors on the job.” Appellant was
“receiving treatment for post-traumatic stress disorder directly related [to the] military sexual
trauma and recent triggers of those memories and associated emotions. She is not receiving
treatment for general anxiety related to job stressors.”
In February 21, 2014 reports, Dr. Perkins diagnosed appellant with PTSD due to military
sexual trauma and childhood sexual trauma, persistent depressive disorder, and panic disorder.
She opined that watching the video on November 22, 2013 “brought back memories of
[appellant’s] own military sexual trauma …,” causing a recurrence of PTSD with “sleep
disturbance, intrusive thoughts, anxiety, nightmares, panic attacks, and poor concentration. She
was unable to function at work.” Dr. Perkins stated that watching the video on November 22,
2013 “directly exacerbated her PTSD from her military sexual trauma.” She found appellant
totally disabled for work through May 30, 2014.
In a June 5, 2014 note, Dr. Karen A.F. Uehling, an attending osteopath Board-certified in
psychiatry, approved a job offer as a vocational rehabilitation specialist. She related appellant’s
account of her supervisor “making her watch video that triggered [her] PTSD” related to the
veteran’s “sexual abuse which triggered [appellant],” causing nightmares and flashbacks.
Appellant also discussed being “instructed not to attempt to deescalate patient outbursts and had
to endure a significant amount of upset and frustrated patients yelling and screaming at her.”
By decision dated and finalized November 4, 2014, an OWCP hearing representative
affirmed the January 24, 2014 decision, finding that the additional evidence submitted was
insufficient to establish causal relationship. She explained that Dr. Shea did not attribute
appellant’s symptom to the accepted work factor of watching the video on November 22, 2013.
4

Also, Dr. Perkins did not provide a reasoned medical explanation supporting her conclusion that
watching the video triggered PTSD.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
In Lillian Cutler,9 the Board noted that workers’ compensation law is not applicable to
each and every injury or illness that is somehow related to an employee’s employment. Where
disability results from an employee’s reaction to his or her regular or specially assigned duties or
to a requirement imposed by the employment, the disability comes within the coverage of
FECA.10 Board case precedent demonstrates that the only requirements of employment which
will bring a claim within the scope of coverage under FECA are those that relate to the duties the
employee is hired to perform.11 To establish entitlement to benefits, a claimant must establish a
factual basis for the claim by supporting the allegations with probative and reliable evidence.12
When working conditions are alleged as factors in causing emotional disability, OWCP,
as part of its adjudicatory function, must make findings of fact regarding which working
conditions are deemed compensable factors of employment and are to be considered by a
physician when providing an opinion on causal relationship.13 If a claimant implicates a factor
of employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
ANALYSIS
Appellant claimed that she sustained an emotional condition due to watching a patient
video containing a veteran’s graphic account of her military sexual assault and surgical
7

Joe D. Cameron, 41 ECAB 153 (1989).

8

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

28 ECAB 125 (1976).

10

5 U.S.C. §§ 8101-8193. Id.

11

L.R., Docket No. 14-0302 (issued June 6, 2014).

12

Ruthie M. Evans, 41 ECAB 416 (1990).

13

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

14

Marlon Vera, 54 ECAB 834 (2003).

5

complications. OWCP accepted that watching the video constituted a compensable factor of
employment, but denied the claim due to the fact that the medical evidence did not establish a
causal relationship between the accepted incident and the claimed conditions.
The evidence most contemporaneous to the accepted incident is a November 27, 2013
report from a nurse practitioner, noting that appellant presented with a reactivation of PTSD on
November 22, 2013 after watching the patient video. However, as nurse practitioners are not
considered physicians under FECA, the report is of no probative medical value.15
Dr. Shea, a Board-certified psychiatrist, and Dr. Hyatt, a Board-certified family
practitioner, attributed the triggering of appellant’s PTSD to an encounter with a hostile patient
or unspecified work situations, but did not mention the accepted work factor of watching the
patient video on November 22, 2013. Dr. Coldwell, an attending licensed clinical psychologist,
and Dr. Uehling, an attending Board-certified psychiatrist, both opined that watching the video
on November 22, 2013 triggered preexisting PTSD. However, neither physician explained how
or why the video would have caused the claimed emotional condition. In the absence of such
rationale, their opinions are insufficient to meet appellant’s burden of proof.16
Dr. Perkins, an attending Board-certified psychiatrist, explained that appellant’s PTSD
was initially caused by sexual assaults in childhood and in the military. In June 2013 a patient’s
stalking behaviors triggered appellant’s PTSD. Dr. Perkins also opined that watching the video
on November 22, 2013 “directly exacerbated her PTSD from her military sexual trauma.” While
Dr. Perkins generally supported appellant’s argument for causal relationship, she did not provide
her medical reasoning as to how watching the video would cause or contribute to the claimed
condition. She failed to distinguish the mechanism whereby appellant’s chronic PTSD, as
diagnosed in June 2013, was altered or affected by the video. Therefore, Dr. Perkins’ opinion is
not sufficiently well reasoned to establish causal relationship in this case.17
Dr. Smith, an attending licensed clinical psychologist, explained that the veteran’s video
account of military sexual trauma “more likely than not” triggered appellant’s recollections of
her own trauma. The equivocal nature of this opinion diminishes its probative value.
None of appellant’s physicians provided a reasoned explanation of how the accepted
factor of watching the video on November 22, 2013 would cause the claimed emotional
conditions. Therefore, OWCP’s November 4, 2014 decision denying the claim is proper under
the law and facts of this case.
On appeal appellant contends that Dr. Perkins’ opinion supports that watching the video
exacerbated her PTSD. She explained that she saw a nurse practitioner and Dr. Shea on the date
of the incident, because Dr. Perkins was not at work that day. Appellant questioned why OWCP
characterized Dr. Perkins’ opinion as insufficiently reasoned. As stated above, while Dr. Perkins
generally supported causal relationship, she did not set forth the medical basis for this opinion.
15

Roy L. Humphrey, supra note 5.

16

Deborah L. Beatty, 54 ECAB 340 (2003).

17

Id.

6

She did not explain the medical reasons or principles by which watching the video on
November 22, 2013 would cause the claimed conditions.
Appellant also noted that the Department of Veterans Affairs increased her serviceconnected disability to 100 percent as a result of the occupational incident. However, the
disability ratings of other administrative agencies does not establish entitlement to benefits under
FECA as there are different standards for medical proof on the question of disability.18
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 4, 2014 is affirmed.
Issued: October 8, 2015
Washington, DC

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

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

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

18

Freddie Mosley, 54 ECAB 255 (2002).

7