United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
TENNESSEE VALLEY AUTHORITY, COAL &
GAS OPERATIONS, PARADISE FOSSIL
PLANT, Drakesboro, KY, Employer
__________________________________________

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Appearances:
Elizabeth A. Bruce, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1142
Issued: December 31, 2020

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 May 12, 2020 appellant, through counsel, filed a timely appeal from a November 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 pulmonary
condition causally related to the accepted factors of his federal employment.

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
On October 25, 2018 appellant, then a 68-year-old boilermaker, filed an occupational
disease claim (Form CA-2) alleging that he developed occupational pneumoconiosis due to factors
of his federal employment. He indicated that he first became aware of his condition and its relation
to his federal employment on July 26, 2018.
In support of his claim, appellant submitted a statement dated July 26, 2018, asserting that
he had just been advised by a physician that he had an occupational lung disease that was related
to his employment at the employing establishment. He noted that he last worked at the employing
establishment in 2005.
Appellant also submitted a copy of his marked responses and answers to FECA Bulletin
No. 85-22 “Evidence Required in Supporting a Claim for Asbestos-Related Illness,” where he
indicated that he began working at the employing establishment on September 28, 1978 as a
boilermaker in the Paradise fossil fuel steam generating plant and was exposed to coal dust,
asbestos from insulation, welding smoke, welding fumes, and grinding dust eight hours a day, five
days a week. He noted that he wore a paper mask except while welding. Appellant also indicated
that he worked in the powerhouse where he was exposed to coal dust, asbestos from pipelines and
boilers, flue gas, fly ash, welding fumes, grinding dust, and smoke. He used asbestos blankets
while welding. Prior to his federal employment, appellant noted that he worked as a welder in the
private sector from 1969 to September 27, 1978 and asserted that he was exposed to grinding dust,
welding fumes, and welding smoke. Appellant also indicated that he smoked one or two packs of
cigarettes per day for 15 to 20 years.
In an August 31, 2018 report, Dr. Glen Baker, a Board-certified pulmonologist and a
National Institute for Occupational Safety and Health certified B reader, indicated that he
examined appellant for possible dust-induced lung disease secondary to his federal employment.
He noted appellant’s history of federal and private sector employment exposure and appellant’s
smoking history. Dr. Baker listed appellant’s symptoms of shortness of breath with dyspnea on
exertion and shortness of breath during the night, almost daily cough, with no wheezing, and sleep
apnea. On physical examination he found that appellant had 18 respirations per minute and that
his lungs were clear to auscultation and percussion. Dr. Baker reviewed appellant’s June 15, 2018
chest x-ray and found parenchymal abnormalities consistent pneumoconiosis in both lungs with a
profusion of 1/1. He also provided the findings of August 31, 2018 pulmonary function studies
and interpreted these findings as mild restrictive ventilatory defect. Dr. Baker diagnosed
occupational pneumoconiosis secondary to coal dust exposure and asbestos exposure during his
federal employment as well as mild restrictive ventilator defect due to occupational
pneumoconiosis. He noted that appellant had a long history of dust exposure at the employing
establishment and had x-ray changes consistent with either coal dust exposure or asbestos.
Dr. Baker observed that appellant’s x-ray changes were very similar to that of coal workers’
pneumoconiosis in terms of the irregular opacities in the lower zones. He provided a permanent
impairment rating of two percent.
In an October 30, 2018 development letter, OWCP requested that appellant submit
additional evidence in support of his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire of his completion. By separate letter of even date,
OWCP also requested additional information from the employing establishment. It afforded both
parties 30 days to respond.
2

On December 4, 2018 the employing establishment responded and noted that appellant was
employed for approximately 27 years. It noted that data of exposure to asbestos and coal dust for
him was not available, but that assessments for boilermakers as the Paradise Fossil Plant
consistently demonstrated that personal exposures experienced by all workers were below
occupational exposure limits. The employing establishment indicated that appellant did not
perform insulating/abatement duties of asbestos as a boilermaker. It further noted that his position
did not routinely require the use of respirators because dust levels were well below Occupational
Safety and Health Administration established limits. On January 3, 2019 the employing
establishment disputed appellant’s allegations of dust or asbestos exposure. However, it further
noted that there was occasional work within the duties and responsibilities of a boilermaker where
particulate levels could be elevated. The employing establishment indicated that boilermakers
were expected to wear respiratory protection as needed.
On February 26, 2019 OWCP referred appellant, a statement of accepted facts (SOAF),
and a list of questions to Dr. Harold Dale Haller, Jr., a Board-certified pulmonologist, for a second
opinion examination.
In an April 8, 2019 report, Dr. Haller noted appellant’s employment exposure and
symptoms. He reviewed the spirometry from Dr. Baker dated August 31, 2018 and found that, on
review of the flow volume loops, the loops were inconsistent and demonstrated wholly
unacceptable patient effort and should not be interpreted based on poor effort. On physical
examination Dr. Haller found that appellant had difficulty breathing while lying down, awakened
exhausted, had bloody sputum, experienced chest discomfort/tightness and excessive daytime
sleepiness. He found it very unlikely that appellant had any significant pulmonary disease.
Dr. Haller determined that appellant’s spirometry both at Dr. Baker’s office and on his
examination were completely “unsatisfactory for interpretation due to inadequate effort.” He
found that the loops were totally variable and not consistent which was seen with lung disease.
Dr. Haller opined that the pattern appellant presented was usually seen with test done for secondary
gain. He noted that he did resistance and conductance maneuvers and that conductance was within
normal limits suggesting no significant obstruction was present. Dr. Haller found on lung volume
testing that appellant’s lung capacity was 105 percent of predicted which essentially ruled-out
restriction. He opined that the interpretation of restriction by Dr. Baker was incorrect as it was
based on spirometry alone rather than after formal lung volume testing. Dr. Haller determined that
despite the suboptimal efforts from appellant there was no evidence of significant lung disease.
He also disagreed with Dr. Baker’s finding of occupational pneumoconiosis category 1/1 on
x-rays. Dr. Haller did not agree and recommended a high resolution chest computerized
tomography (CT) scan. He noted that he did not find evidence on examination, lung function
testing, or chest radiographs of asbestosis or asbestos exposure as he did not see evidence of
physical changes or disease related to asbestos exposure. Dr. Haller concluded that appellant did
not have any significant pulmonary disease and thus no work-related pulmonary conditions.
Dr. Haller included appellant’s spirometry which included test comments indicating good
patient effort and cooperation and that the test met standards for reproducibility. The test
concluded that appellant’s reduced volumes indicated a restrictive process. It noted that although
flow rates were within normal limits, the over inflation and response to bronchodilators was
characteristic of reactive airways.
By decision dated April 22, 2019, OWCP denied appellant’s occupational disease claim
finding that he had not established a causal relationship between his diagnosed pulmonary disease
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and his accepted work factors. It found that Dr. Haller’s August 8, 2019 report established that
appellant exhibited inadequate effort and no evidence of significant lung disease due to asbestosis
or asbestos exposure. On May 2, 2019 appellant, through counsel, requested an oral hearing before
an OWCP hearing representative.
A hearing was held on September 11, 2019. Appellant testified that he began working at
the employing establishment as a boilermaker in the coal handling portion of the employing
establishment where he was exposed to coal dust, grinding dust, and welding smoke on a daily
basis. Appellant testified that he then worked in the powerhouse where he was exposed to fly ash,
flue gas, coal dust, and grinding dust, welding fumes, and welding smoke, as well as asbestos. He
used asbestos blankets for three or four years and was required to tear asbestos on the steam lines
to weld them.
On September 5, 2019 appellant submitted a May 31, 2019 report from Dr. James B. Crum,
an osteopath and B reader. Dr. Crum reviewed appellant’s June 15, 2018 x-rays and found
classifiable parenchymal abnormalities consisting of small opacities in both lungs throughout the
upper, middle, and lower zones with a profusion of 1/0. He determined that the shape was
primarily “p” and secondarily “q” or rounded. Dr. Crum found no classifiable pleural
abnormalities. He indicated that appellant’s x-rays demonstrated an atherosclerotic aorta and
calcification in small pneumoconiosis opacities.
By decision dated November 22, 2019, OWCP’s hearing representative found that
appellant had not established a causal relationship between his diagnosed pulmonary conditions
and his accepted employment exposure. He found that the weight of the evidence was accorded
to Dr. Haller.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact 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 period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or medical condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

Id.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019).

5

Id.; see also Elaine Pendleton, 40 ECAB 1143 (1989).

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condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
Section 8123(a) of FECA in pertinent part that if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.10 This is called a referee examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.11 When there exist opposing reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Drs. Baker and Crum, in reports dated August 31, 2018 and May 31, 2019, respectively,
reviewed appellant’s June 15, 2018 x-rays and found classifiable parenchymal abnormalities
consisting of small opacities in both appellant’s lungs. Dr. Haller disagreed with the finding of
pneumoconiosis category 1/1 on x-rays. He recommended a high resolution chest CT scan.
The Board finds that a conflict in the medical evidence exists between appellant’s treating
physicians Drs. Baker and Crum, who found classifiable parenchymal abnormalities on x-rays and
Dr. Haller, who disagreed. These reports are of equal probative value. Drs. Baker and Crum
offered their assessments of appellant’s chest x-rays. Consequentially, the case must be referred
6

R.G., Docket No. 19-0233 (issued July 16, 2019); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46
ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Victor J. Woodhams, supra note 6.

10
5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009); M.S., 58 ECAB 328 (2007).
11

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

12

S.T., Docket No. 16-1911 (issued September 7, 2017); G.B., widow of R.B., Docket No. 16-1363 (issued March 2,
2017); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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to an impartial medical specialist to resolve the existing conflict in the medical opinion evidence
regarding whether appellant’s chest x-rays demonstrated parenchymal abnormalities.
On remand OWCP shall refer appellant, along with the case file and a SOAF, to an
appropriate specialist for an impartial medical evaluation and a report including a rationalized
opinion as to whether appellant’s diagnosed pulmonary conditions are causally related to the
accepted employment factors. Following this and other such further development as OWCP deems
necessary, it shall issue a de novo decision regarding his claim for an employment-related
pulmonary condition.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 11, 2019 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 31, 2020
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

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

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

Docket No. 08-417
Issued: May 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 21, 2007 appellant, through her attorney, filed a timely appeal from a
December 5, 2006 merit decision of the Office of Workers’ Compensation Programs and a
July 16, 2007 hearing representative’s decision denying her occupational disease 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 has established that she sustained a bilateral foot condition
causally related to factors of her federal employment.
FACTUAL HISTORY
On September 1, 2006 appellant, then a 44-year-old maintenance support clerk, filed an
occupational disease claim alleging that she sustained bilateral heel spurs and plantar fasciitis
due to standing and walking on a cement floor in the course of her federal employment. The

employing establishment noted that she stopped work on March 14, 2005 after receiving
disciplinary action. Appellant filed three occupational disease claims since stopping work.
On October 5, 2006 the Office requested additional factual and medical information from
appellant, including a detailed factual statement describing the work factors which she believed
caused her condition and a rationalized medical opinion addressing the relationship of any
diagnosed condition and her federal employment. In a report dated August 1, 2006, Dr. Mary L.
Durand, a podiatrist, described her treatment of appellant in June and July 2004 for bilateral heel
and arch pain. She diagnosed “severe plantar fasciitis and calcaneal bursitis, left more than
right.” Dr. Durand noted that appellant’s work duties included standing and walking on hard
surfaces throughout the day. An x-ray obtained on July 20, 2004 showed a moderate plantar heel
spur and an ultrasound examination revealed inflamed plantar fascia of the left heel. Dr. Durand
found that appellant should limit her time on hard surfaces and not work over eight hours per
day. She treated her with physical therapy, orthotics and cortisone injections. Dr. Durand stated,
“My conclusion was that [appellant’s] bilateral severe plantar fasciitis and calcaneal bursitis
were directly related to her work on hard surfaces while in the course of her employment with
the [employing establishment].”
By decision dated December 5, 2006, the Office denied appellant’s occupational disease
claim. The Office found that she did not establish the work factors alleged to have caused her
condition. The Office additionally noted that appellant failed to provide rationalized medical
evidence showing that she was unable to work beginning March 14, 2005.
In a statement received by the Office on December 5, 2006, appellant related that she
stood and walked on concrete floors at work throughout her 20 years of employment. She
described the medical treatment she received and noted that her condition improved after she
stopped work in March 2005.
On December 12, 2006 appellant, through her attorney, requested an oral hearing. At the
hearing, held on May 9, 2007, appellant related that she did not stop work in 2005 because of her
bilateral foot condition. She claimed medical treatment rather than compensation for disability.
Appellant did not receive treatment for her feet after August 2004. She used whirlpool machines
and orthotics for her condition. Appellant delayed filing a claim because she feared retaliation.
Subsequent to the hearing, she submitted chart notes from Dr. Durand dated June and July 2004.
In an August 9, 2004 referral form, Dr. Durand noted that she was treating appellant for heel
pain, plantar fasciitis and a heel spur.
By decision dated July 16, 2007, the hearing representative affirmed the December 5,
2006 decision as modified to show that appellant had established the occurrence of the work
factors to which she attributed her condition. She found that the medical evidence did not
establish a causal relationship between a diagnosed condition and the identified employment
factors.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, 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.2 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.3
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;4 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing 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.6
The medical evidence required to establish causal relationship generally is 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.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10

1

5 U.S.C. §§ 8101-8193.

2

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Michael R. Shaffer, 55 ECAB 386 (2004).

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

John W. Montoya, 54 ECAB 306 (2003).

10

Judy C. Rogers, 54 ECAB 693 (2003).

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ANALYSIS
Appellant attributed her bilateral heel spurs, bursitis and plantar fasciitis to standing and
walking on concrete floors during the course of her federal employment. The Office accepted
the occurrence of the claimed employment factors. The issue, therefore, is whether the medical
evidence establishes a causal relationship between the claimed conditions and the identified
employment factors.
In a report dated August 1, 2006, Dr. Durand described her treatment of appellant in June
and July 2004 for heel and arch pain of both feet. She diagnosed severe plantar fasciitis and
calcaneal bursitis bilaterally, worse on the left side. Dr. Durand described appellant’s walking
and standing on hard surfaces at work. She opined that appellant should limit her time on hard
surfaces and not work overtime. Dr. Durand asserted that appellant’s “bilateral severe plantar
fasciitis and calcaneal bursitis were directly related to her work on hard surfaces while in the
course of her employment with the [employing establishment].” She did not, however, provide
any rationale for her opinion. A mere conclusion without the necessary rationale explaining how
and why the physician believes that a claimant’s accepted exposure could result in a diagnosed
condition is not sufficient to meet a claimant’s burden of proof.11
Appellant submitted chart notes dated June and July 2004 from Dr. Durand.12 In an
August 9, 2004 referral form, Dr. Durand diagnosed heel pain, plantar fasciitis and a heel spur.
She did not, however, address the cause of the diagnosed conditions. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of diminished probative
value on the issue of causal relationship.13
On appeal, appellant’s attorney contends that the August 1, 2006 report from Dr. Durand
was sufficient to either establish causal relationship or to require further development of the
evidence. An award of compensation, however, may not be based on surmise, conjecture,
speculation or upon a claimant’s own belief that there is a causal relationship between her
claimed condition and her employment.14 Appellant must submit a physician’s report in which
the physician reviews those factors of employment identified by her as causing her condition
and, taking these factors into consideration as well as findings upon examination and the medical
history, explain how employment factors caused or aggravated any diagnosed condition and
present medical rationale in support of his or her opinion.15 Appellant failed to submit such
evidence and therefore failed to discharge her burden of proof.

11

See Beverly A. Spencer, supra note 6.

12

The chart notes are handwritten and difficult to read.

13

Conard Hightower, supra note 7.

14

Patricia J. Glenn, 53 ECAB 159 (2001).

15

Robert Broome, 55 ECAB 339 (2004).

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CONCLUSION
The Board finds that appellant has not established that she sustained a bilateral foot
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 16, 2007 and December 5, 2006 are affirmed.
Issued: May 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sacramento, CA, Employer
__________________________________________

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

Docket No. 11-171
Issued: January 9, 2012

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 October 18, 2010 appellant filed a timely appeal from a June 4, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an emotional
condition. The appeal is also timely filed from a September 24, 2010 decision denying her
request for an oral hearing. Pursuant to the Federal Employees’ Compensation Act1 (FECA) the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that she sustained an emotional
condition as a result of factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for an oral hearing as untimely filed.2
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contends that not all medical evidence was noted to OWCP, and submitted a new report by
Tamara L. Elkins, Ph.D. However, the Board cannot consider evidence that was not before OWCP at the time of the
final decision. See 20 C.F.R. § 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007).

FACTUAL HISTORY
On November 30, 2009 appellant, then a 50-year-old rural carrier associate, filed an
occupational disease claim alleging anxiety and migraine headaches as a result of stress in her
federal employment during the period April through November 2009.
By letter dated December 18, 2009, OWCP informed appellant that she had not submitted
sufficient evidence in support of her claim. It provided 30 days to submit additional information.
In support of her claim, appellant submitted letters that she wrote to management at the
employing establishment detailing various issues. She also filed several grievances and
submitted a time line concerning alleged incidents. Appellant stated that she was called to work
to cover for another employee who had jury duty, but that management did not use the proper
matrix system to call employees, and that she should not have been called before other
employees. She contended that she did not have proper training to work certain routes and that
the matrix needed to be amended to reflect this. Appellant did not feel comfortable working a
different route after she worked three years on designated routes.
Appellant alleged that gossip in the workplace created conflict. She asked management
to have three female coworkers leave her alone and complained about hostility. Appellant
detailed discussions that she deemed inappropriate. She alleged that Marie Boyer started talking
about the passing of appellant’s dog in a hurtful way and that her coworkers did not leave the
premises when they finished their work.
Appellant alleged that the employing establishment improperly handled her request for
leave under the Family and Medical Leave Act (FMLA). She requested FMLA in March but
management did not respond. Appellant asked to take leave without pay when her dog died and
that she should have been under FMLA when her son was in the hospital or off work due to a
migraine. She noted that she was written up for excessive absences when FMLA should have
been allowed. Appellant contended that others were granted FMLA in similar situations.
Appellant’s grievances alleged retaliation at the employing establishment on January 28,
2009 after she filed a Form 8191. She alleged that she was threatened with a written warning but
she was within her rights to discuss facts with an authority figure. Appellant also contended that
an employee who had his license suspended until August 2009 bid on a route that required
driving.
Appellant alleged disparity in treatment by management of its employees. She alleged
improper assignment of personnel in bailouts; that three female coworkers waste time talking to
each other at their cases and that she asked a supervisor to tell them to stay at their own cases;
and questioned why another employee was allowed to take extended leave. Appellant alleged
that she was required to be available up to 12 hours a day while most rural carriers were finished
by 2:00 pm.
On October 31, 2009 appellant had a conversation with Rebecca Estrada, a supervisor,
and requested that a union representative be present but was denied. Ms. Estrada discussed a
physician’s note stating that appellant could not work more than a nine-hour day due to chronic

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medical problems. She told appellant to get additional medical documentation together by the
time she returned from leave. Ms. Estrada informed appellant that there was no limited duty
available and that appellant needed to be able to work up to 12 hours a day. If appellant was not
cleared to work 12 hours a day then she would be let go. Appellant noted that Ms. Estrada told
her that she needed to be available to work every day.
On May 11, 2009 appellant filed a grievance alleging a change in policy as she was to use
her private motor vehicle rather than a furnished vehicle in the middle of a pay period. On
May 12, 2009 the employing establishment responded that a vehicle was not authorized for an
auxiliary route, and that, when this situation was brought forward, corrective measures would be
immediately taken.
In a July 6, 2009 letter, the employing establishment notified appellant that she had been
placed on restricted sick leave due to excessive absences. Until future notice, appellant would be
required to support all applications for sick leave by submitting medical documentation or other
acceptable evidence.
On December 23, 2009 Ms. Estrada, supervisor of customer service, stated that she
worked with appellant for several years. When she returned from a detail in August 2009, she
noted that appellant was not talking to anyone and was very quiet. Another employee told
Ms. Estrada that appellant yelled at her and that Ms. Estrada instructed appellant to not yell at
other employees, tell them what to do, and to bring all matters to her attention. At an
October 31, 2009 meeting, appellant was informed that as a rural carrier she was required to be
available up to 12 hours as were all other rural carriers and, if not available as required, she
would let them go. Appellant never mentioned any other issues. Ms. Estrada noted that
appellant became very upset when she was moved off her route due to a decline in mail volume.
Appellant had expected to get Route 6 but another coworker was assigned to the route.
Ms. Estrada stated that appellant used to be friends with three female coworkers but not any
longer and this caused her to become upset.
In an undated statement, Ms. Estrada addressed appellant’s grievances. As to the denial
of FMLA, she noted that appellant was not in regular attendance or request FMLA on her leave
form. In good faith management had removed the restricted leave from appellant’s file. The
grievance for the period April through October 31, 2009 was settled. Even though it was
untimely, management met in good faith and agreed to utilize “respect in the workplace,” and
appellant was to bring her issues to management’s attention and not other employees. Since her
return to the branch in September 2009, appellant never brought to Ms. Estrada’s attention
hostility on the work room floor. Ms. Estrada stated that the grievance with regard to employees
being treated equally was also settled. This pertained to a fellow rural carrier who had been off
and was no longer covered by FMLA and resigned effective January 29, 2010. Ms. Estrada
noted that management adhered to contractual obligations with regard to route assignment. On
January 14, 2010 she advised that she had placed appellant on notice for gossiping on the
workroom floor. On September 12, 2009 Ms. Cosgrove, a coworker, became upset when
appellant yelled at her on the work floor. Ms. Estrada informed appellant not to take matters into
her own hands. On October 31, 2009 she tried to explain to appellant the policy about no light
duty and how rural carriers were required to be available for up to 12 hours a day. Ms. Estrada
did not threaten appellant, who became very defensive. As to corrective action taken with regard

3

to appellant’s excessive absences, she removed a letter appellant’s previous supervisor had
placed in the file as 14 days of her absences would not be covered under FMLA. In a
memorandum dated March 2, 2010, Ms. Estrada addressed appellant’s allegations of disparate
treatment. She noted that a coworker who received an off-duty driving under the influence
charge was allowed under a last chance agreement to have a family member drive him in a
private vehicle to deliver mail. This arrangement was in place until the coworkers’ license was
returned. When the route became open, he no longer had a suspended license and bid on it.
With regard to another employee, Ms. Estrada noted that her five-year-old son had a heart
transplant and her absence was covered by the FMLA.
In an undated statement, Ms. Boyer discussed the assignment of rural route three. She
noted that appellant had complained of back pain and migraines in 2008. Ms. Boyer indicated
that appellant became excited about the possibility of becoming a regular carrier but became
stressed over his assignments of work and dissolution of his route.
In a February 4, 2010 letter, Ms. Vierness stated that the rural route contract did not allow
light-duty accommodation for nonwork-related conditions. Appellant filed for FMLA that was
covered from December 23, 2008 through February 26, 2009 but after her attendance became
irregular she was no longer entitled to FMLA and was placed on restricted sick leave.
Ms. Vierness noted that appellant again qualified for FMLA from October 22 to December 15,
2009, but that the employee had to request such leave.
In a February 8, 2010 statement, David Zucker, a supervisor, advised of a meeting with
all rural route carriers and telling them that there would be no gossiping. The carriers were to
stay at their cases except for restroom breaks, break or other work duties. From that point on, no
carrier came out of their cases and everything seemed fine.
In a statement, a Ms. Cosgove, stated that on September 12, 2009 she went to speak to
another carrier about having lunch after work and that appellant told her, “You need to get out
here.” She told appellant to mind her own business. Ms. Cosgrove spoke with management
about the incident.
In a decision dated June 4, 2010, OWCP denied appellant’s claim for an emotional
condition finding that she had not established a compensable factor of employment.
By form dated August 26, 2010, postmarked August 27, 2010, appellant requested an oral
hearing before an OWCP hearing representative.
By decision dated September 24, 2010, OWCP denied appellant’s request for a hearing
for the reason that it was untimely filed. It further reviewed her request under its discretionary
authority and denied the request as the issue could be equally well addressed by requesting
reconsideration at the district OWCP.
LEGAL PRECEDENT -- ISSUE 1
To establish that appellant sustained an emotional condition causally related to factors of
her federal employment, she must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
4

(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition
is causally related to the identified compensable employment factors.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with the employment but nevertheless does not come within the coverage
of workers’ compensation. These injuries occur in the course of the employment and have some
kind of causal connection with it but nevertheless are not covered because they are found not to
have arisen out of the employment. However, when disability results from an employee’s
emotional reaction to her regular or specially assigned work duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.4
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.5 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.6
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.7
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.9 The issue is whether the claimant has submitted sufficient evidence
under FECA to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.10 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in

3

Kathleen D. Walker, 42 ECAB 603 (1999).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
6

See William H. Fortner, 49 ECAB 324 (1998).

7

Ruth S. Johnson, 46 ECAB 237 (1994).

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

10

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

5

fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by OWCP and the Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, it 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.13
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents. OWCP denied her emotional condition claim on the grounds that she did
not establish any compensable employment factors. The Board must review whether the alleged
incidents or conditions of employment are compensable factors under FECA.
Appellant alleged error by the employing establishment’s management of her requests for
leave. She alleged that her requests for FMLA were improperly denied and that she was
improperly placed on restricted sick leave. Appellant stated that her leave requests were treated
differently than other employees. The record indicates that she was placed on restricted sick
leave due to excessive absences, but that Ms. Estrada later removed appellant from restricted sick
leave. Ms. Estrada stated that appellant was not eligible for FMLA in certain instances, and
Ms. Vierness noted that appellant did not request leave under the FMLA in other cases. With
regard to appellant’s allegations that other employees were given more favorable treatment with
regard to their leave requests, Ms. Estrada denied this allegation. Appellant has not proven that
her supervisors acted improperly in handling her leave requests. Although the handling of leave
requests is generally related to employment, they are administrative functions of the employer
and not duties of the employee. An administrative or personnel matter will be considered to be
an employment factor only where the evidence discloses error or abuse on the part of the
employing establishment.14 Appellant failed to submit sufficient evidence substantiating her
allegation of error or abuse on the part of the employing establishment. She has failed to
establish a compensable factor in this regard.

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

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

13

Id.

14

C.S., 58 ECAB 137 (2006).

6

The Board finds that appellant’s allegations with regard to not being able to work on a
particular route, being switched in the middle of a pay period to require use of her own car for
work, being called in when she was not the next employee on matrix, the employing
establishment’s handling of job assignments for bailouts and lack of training for working a
different route also concern administrative and personnel matters. Although the assignment of
training, the assignment of work duties, and the monitoring of activities at work are generally
related to the employment, they are administrative functions of the employer rather than regular
or specially assigned work duties of the employee.15 The employing establishment denied that it
acted improperly in these matters. To the extent that appellant alleged that she was dissatisfied
with the actions of her supervisors, the Board has held that an employee’s dissatisfaction with
perceived poor management constitutes frustration from not being permitted to work in a
particular environment or to hold a particular position and is not compensable under FECA.16
Appellant has not submitted any evidence establishing that the employing established acted
abusively or erroneously with regard to these administrative factors, and accordingly appellant
has not established that they amounted to a compensable factor of employment.
Appellant alleged that she had a meeting with Ms. Estrada who threatened to let her go.
Ms. Estrada stated that she simply informed appellant of the policy that rural carriers must be
available 12 hours a day and that there was no limited duty. If she was not available, she would
be let go due to unavailability. Ms. Estrada denied ever threatening appellant. Reprimands,
counseling sessions and other disciplinary actions are administrative matters that are not covered
under FECA unless there is evidence of error or abuse.17 Appellant has not established abuse by
Ms. Estrada with regard to this meeting.
Appellant alleged that she was injured by gossip at the workplace. An employee’s
perception of gossip and rumors is a personal frustration, which was not related to her job duties
or requirements and therefore was not compensable.18 The Board further notes that the
employing establishment took proper measures when it called a meeting to discuss employee
gossip, and that Mr. Zucker indicated that he told staff that there would be no gossiping and that
no one was to come out of their cases except for restroom breaks, break or other work duties.
Mr. Zucker stated that, since the conversation, everything seemed fine. Accordingly, appellant
has not established a compensable factor with regard to gossip.
Appellant made various allegations about how other employees conducted themselves.
She was upset at special arrangements made for one employee to deliver the mail and was upset
that other employees were going out of their cases. These matters did not concern appellant’s
job performance and are therefore not compensable.

15

See Phillip L. Barnes, 55 ECAB 426 (2004).

16

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

17

Andrew Woilfgang-Masters, 56 ECAB 411, 414 n.7 (2005).

18

James B. Hickok, Docket No. 06-70 (issued July 12, 2006).

7

Because appellant failed to establish a compensable factor of employment, OWCP
properly denied her claim. The Board need not review the medical evidence.19
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.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date for the decision for which a hearing is sought. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.20 The Board has held that OWCP, in its broad discretionary
authority in the administration of FECA has the power to hold hearings in certain circumstances
where no legal provision was made for such hearings and that OWCP must exercise this
discretionary authority in deciding whether to grant a hearing.21 OWCP procedures, which
require OWCP to exercise its discretion to grant or deny a hearing when the request is untimely
or made after reconsideration to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of FECA and Board precedent.22
ANALYSIS -- ISSUE 2
In its September 24, 2010 decision, OWCP denied appellant’s request for a hearing on
the grounds that it was untimely filed. It found that she was not, as a matter of right, entitled to a
hearing at her request, postmarked August 27, 2010, had not been made within 30 days of its
June 4, 2010 decision. As appellant’s request was postmarked August 27, 2010, more than 30
days after the date of the June 4, 2010 decision, the Board finds that OWCP properly determined
that she was not entitled to a hearing as a matter of right as her request was untimely filed.23
OWCP has the discretionary power to grant a request for a hearing when a claimant is not
entitled to such as a matter of right. In its September 24, 2010 decision, it properly exercised its
discretion by stating that it had considered the matter in relation to the issue involved and had
denied appellant’s request on the basis that the issue could be addressed through a
reconsideration application. The Board has held that, as the only limitation on OWCP’s
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
19

See Norma L. Blank, 43 ECAB 384, 389-90 (1992) (unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record).
20

Claudio Vazquez, 52 ECAB 496 (2001).

21

Marilyn F. Wilson, 52 ECBA 347 (2001).

22

Claudio Vazquez, supra note 20.

23

Id.

8

error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both
logic and probable deduction from established facts.24 In the present case, the evidence of record
does not indicate that OWCP committed any act in connection with its denial of appellant’s
request for a hearing that could be found to be an abuse of discretion. OWCP therefore properly
denied her request.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition as a result of factors of her federal employment. The Board further finds that OWCP
properly denied appellant’s request for an oral hearing as untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 24 and June 4, 2010 are affirmed.
Issued: January 9, 2012
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

24

See Mary Poller, 55 ECAB 483 (2004).

9


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

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

Docket No. 08-848
Issued: January 26, 2009

Case Submitted on the Record

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

JURISDICTION
On January 29, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated November 6, 2007. 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 has employment-related permanent impairment of a
scheduled member entitling her to a schedule award.
FACTUAL HISTORY
On December 10, 1992 appellant, then a 46-year-old bulk mail clerk, filed a claim
alleging that she developed an incisional hernia due to lifting in the performance of duty. The
Office accepted appellant’s claim for ventral hernia repairs, incisional hernia without
obstruction, depression and chronic abdominal wall pain.

Appellant requested a schedule award. In support of her claim, she submitted a series of
reports from Dr. Jerry W. Goldberg, a Board-certified rheumatologist. He estimated that
appellant had 15 percent impairment to the whole person due to herniation.
By decision dated November 6, 2007, the Office denied appellant’s claim finding that her
accepted employment injuries did not involve a scheduled member.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 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, the Act 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. The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.3 Effective February 1, 2001, the Office
adopted the fifth edition of the A.M.A., Guides as the appropriate edition for all awards issued
after that date.4
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulation
provide for the payment of a schedule award for a hernia or to the whole person, a claimant is not
entitled to such an award.5
ANALYSIS
Appellant submitted medical evidence from Dr. Goldberg, a Board-certified
rheumatologist, supporting that she sustained permanent impairment to the whole person due to
the accepted condition of ventral hernia.
However, a schedule award is not payable for any member, function or organ of the body
not specified in the Act or in the implementing regulations.6 The Act identifies members such as
the arm, leg, hand, foot, thumb and finger, functions such as loss of hearing and loss of vision
and organs to include the eye. Section 8107(c)(22) of the Act provides for the payment of
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).
5

George E. Williams, 44 ECAB 530, 533 (1993).

6

Leroy M. Terska, 53 ECAB 247 (2001).

2

compensation for permanent loss of any other important external or internal organ of the body as
determined by the Secretary of Labor.7 The Secretary of Labor made such a determination and,
pursuant to the authority granted under section 8107(c)(22), added the breast, kidney, larynx,
lung, penis, testicle, ovary, uterus and tongue to the schedule.8 The Act and its implementing
regulations provide no basis for payment of a schedule award for a hernia. The terms of the Act
are specific as to the method and amount of payment of compensation. Neither the Office nor
the Board has the authority to enlarge the terms of the Act or to make an award of benefits under
terms other than those specified in the statute. Unless a claimant’s contentions are in keeping
with the scope or intent of the Act, the Office’s denial must be affirmed.9 The Office properly
denied appellant’s claim for a schedule award for her hernia condition.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for impairment to the
whole person due to her accepted ventral hernia.
ORDER
IT IS HEREBY ORDERED THAT the November 6, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
7

5 U.S.C. § 8107(c)(22).

8

20 C.F.R. § 10.404; Henry B. Floyd, 52 ECAB 220 (2001).

9

See Richard Dale Kornas, 44 ECAB 1009 (1993).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, SOUTHEASTERN
PROCESSING & DISTRIBUTION CENTER,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 09-1743
Issued: March 17, 2010

Case Submitted on the Record

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

JURISDICTION
On June 30, 2009 appellant, through her attorney, filed a timely appeal from a March 12,
2009 merit decision of the Office of Workers’ Compensation Programs granting her a schedule
award and a May 28, 2009 nonmerit decision denying her request for reconsideration. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case and
over the May 28, 2009 decision.
ISSUES
The issues are: (1) whether appellant has more than a six percent permanent impairment
of the left upper extremity; and (2) whether the Office properly denied her request for further
review of the merits of her claim under 5 U.S.C. § 8128.

FACTUAL HISTORY
On October 15, 2003 appellant, then a 43-year-old mail processor, filed a claim alleging
that on or about October 9, 2003 she injured her left shoulder due to repetitive work duties.1 The
Office accepted the claim for a left shoulder strain.
On June 7, 2005 appellant underwent an excision of a ganglion cyst on the left shoulder.
On June 20, 2006 she underwent a left shoulder arthroscopic superior labrum anterior to
posterior (SLAP) lesion repair. The Office paid her compensation for periods of disability
resulting from the surgeries.2
On November 21, 2008 appellant, through her attorney, requested a schedule award. In a
report dated August 7, 2008, Dr. Nicholas P. Diamond, an osteopath, discussed appellant’s
complaints of pain and stiffness in the left shoulder and difficulties performing activities. On
examination, he found tenderness of the acromioclavicular joint and anterior and posterior
rotator cuff. Dr. Diamond measured range of motion of 150 degrees forward elevation,
135 degrees abduction, 50 degrees adduction, 90 degrees external rotation and 65 degrees of
internal rotation. He tested manual muscle strength and found 3/5 to 4/5 strength of the
supraspinatus and deltoids and 5/5 strength of the triceps and biceps. Dr. Diamond measured
grip strength as 27 kilograms (kg) on the right and 11.50 kg on the left and pinch strength of
5.75 kg on the right and 2.0 kg on the left. He further measured the circumference of appellant’s
lower arm as 25.5 centimeters (cm) on the right and 26.5 cm on the left. Dr. Diamond found that
the circumference of the upper arm was 33.5 cm on the right and 34 cm on the left. He
diagnosed cumulative and repetitive trauma disorder, a left shoulder complex ganglion cyst
formation and a post-traumatic SLAP lesion tear and repair. Appellant completed a form rating
the severity of her pain performing activities, which yielded an 81 percent quick disabilities of
arm, shoulder and hand (DASH) score. She indicated that her pain level was a 5 to 8 out of 10
using the visual analogue scale. Dr. Diamond concluded that, for the left shoulder, appellant had
a two percent impairment due to loss of flexion,3 a two percent impairment due to loss of
abduction4 and a two percent impairment for loss of internal rotation,5 for a six percent total
impairment due to loss of range of motion. He added an additional three percent impairment due
to pain using Figure 18-1 on page 574 of the A.M.A., Guides to find a total left upper extremity
impairment of nine percent. Dr. Diamond opined that appellant reached maximum medical
improvement on August 7, 2008.
1

Appellant filed a traumatic injury claim; however, her supervisor noted on the claim form that it should be an
occupational disease claim. The Office adjudicated the claim as an occupational disease as she alleged work factors
occurring over the course of more than one workday. See 20 C.F.R. § 10.5(q).
2

On January 24, 2007 appellant accepted a limited-duty work assignment with the employing establishment. By
decision dated December 12, 2007, the Office reduced her compensation to zero on the grounds that her actual
earnings fairly and reasonably represented her wage-earning capacity.
3

The American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) at
476, Figure 16-40.
4

Id. at 477, Figure 16-43.

5

Id. at 479, Figure 16-46.

2

On January 31, 2009 an Office medical adviser reviewed Dr. Diamond’s August 7, 2008
report. He noted that 150 degrees of flexion yielded a two percent impairment, 130 degrees
abduction yielded a two percent impairment, 60 degrees internal rotation yielded a two percent
impairment and 90 degrees external rotation yielded no impairment, for a total impairment due to
loss of range of motion of six percent. The Office medical adviser found that appellant was not
entitled to an additional three percent impairment due to pain under Chapter 18. He related that
she did not meet the criteria described in Chapter 18 on page 570 of the A.M.A., Guides, which
provides an additional award for pain when a verifiable medical condition causes excess pain,
when there is an established pain syndrome without identified organ dysfunction explaining the
pain and when there are other associated pain syndromes.
By decision dated March 12, 2009, the Office granted appellant a schedule award for a
six percent permanent impairment of the left upper extremity. The period of the award ran for
131.04 days from August 7 to December 16, 2008.
On April 21, 2009 appellant, through her attorney, requested reconsideration. He
asserted that the quick DASH pain index supported Dr. Diamond’s finding of an additional three
percent impairment due to pain. The attorney resubmitted Dr. Diamond’s August 7, 2008 report.
By decision dated May 28, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant reopening
her case for further review of the merits under section 8128. It found that the attorney did not
raise a substantive legal argument and that the August 7, 2008 report duplicated evidence already
of record.
On appeal, appellant’s attorney contends that a conflict in medical opinion exists between
Dr. Diamond and the Office referral physician necessitating referral to an impartial medical
examiner. He asserts that Dr. Diamond properly determined that she was entitled to an
additional three percent impairment due to pain using the quick DASH disability score and her
description of her pain level using the visual analogue scale.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing federal regulations,7 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, the Act 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

3

claimants.8 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.9
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for a left shoulder strain and authorized a left
shoulder excision of a ganglion cyst on June 7, 2005 and a SLAP lesion repair on June 20, 2006.
On November 21, 2008 appellant requested a schedule award.
In an August 7, 2008 impairment evaluation, Dr. Diamond discussed appellant’s
subjective complaints of left shoulder pain and stiffness with restrictions in daily activities. He
found that she had a DASH disability score of 81 percent and identified her pain level as 5 to 8
on the visual analogue scale. Dr. Diamond measured range of motion of the left shoulder as
150 degrees forward elevation, 135 degrees abduction, 50 degrees adduction, 90 degrees external
rotation and 65 degrees internal rotation. He found that 150 degrees flexion constituted a two
percent impairment,10 135 degrees abduction constituted a two percent impairment11 and
65 degrees internal rotation constituted a two percent impairment.12 Dr. Diamond added the
impairments due to loss of range of motion to find that appellant had a six percent impairment of
the left upper extremity. He added a three percent impairment due to pain and concluded that
she had a total left upper extremity impairment of nine percent.13
An Office medical adviser reviewed Dr. Diamond’s findings and agreed with his
determination that appellant had a six percent impairment due to loss of range of motion. He
disagreed with Dr. Diamond’s finding that she was entitled to an additional three percent
impairment due to pain as he found that she did not fit with the criteria under Chapter 18 for an
additional pain award. The Board notes that examiners should not use Chapter 18 to rate
pain-related impairments for any condition that can be adequately rated on the basis of the body
and organ impairment systems given in other chapters of the A.M.A., Guides.14 Dr. Diamond
did not address why appellant’s condition could not be adequately rated under other chapters.
The Board finds that the evidence supports that appellant has no more than a six percent
permanent impairment of the left upper extremity.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
10

A.M.A., Guides at 476, Figure 16-40.

11

Id. at 477, Figure 16-43.

12

Id. at 479, Figure 16-46.

13

Id. at 574, Figure 18-1.

14

See Federal (FECA) Procedure Manual, supra note 9; A.M.A., Guides at 18.3(b); see also Philip Norulak, 55
ECAB 690 (2004).

4

On appeal, appellant’s attorney asserts that there is an unresolved conflict in medical
opinion between Dr. Diamond and the Office medical adviser. Both Dr. Diamond and the Office
medical adviser concurred that appellant had a six percent impairment of the left upper extremity
due to loss of range of motion. Dr. Diamond awarded an additional three percent impairment
due to pain under Chapter 18. As noted, however, Chapter 18 is not to be applied without an
explanation of why pain cannot be rated in accordance with other chapters of the A.M.A.,
Guides.15
Appellant’s attorney also maintains that Dr. Diamond properly assessed her pain as
warranting an additional three percent impairment using the quick DASH disability score and her
description of the pain using the visual analogue scale. However, as noted, without an
explanation of why the pain cannot be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides, the additional impairment
due to pain is of little probative value.16
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,17 the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) submit relevant and pertinent new evidence not
previously considered by the Office.18 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.19 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.20
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.21 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.22 While the reopening of a case may be predicated

15

Id.

16

Id.

17

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

20

Id. at § 10.608(b).

21

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

22

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

5

solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.23
ANALYSIS -- ISSUE 2
In his request for reconsideration, appellant’s attorney argued that Dr. Diamond’s quick
DASH pain index supported his finding that appellant had an additional three percent
impairment due to pain.
An Office medical adviser, however, previously reviewed
Dr. Diamond’s report, including the DASH pain index and properly found that his opinion that
appellant was entitled to an additional award for pain was not in accordance with the A.M.A.,
Guides. Consequently, the attorney’s argument does not have a reasonable color of validity such
that it would warrant reopening her case for merit review.24
Appellant also resubmitted the August 7, 2008 report from Dr. Diamond. Evidence
which repeats or duplicates evidence already in the case record, however, has no evidentiary
value and does not constitute a basis for reopening a case.25
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.
CONCLUSION
The Board finds that appellant has more than a six percent permanent impairment of the
left upper extremity. The Board further finds that the Office properly denied her request for
further review of the merits of her claim under section 8128.

23

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

24

Elaine M. Borghini, 57 ECAB 549 (2006).

25

F.R., 58 ECAB 607 (2007); Richard Yadron, 57 ECAB 207 (2005).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 28 and March 12, 2009 are affirmed.
Issued: March 17, 2010
Washington, DC

Alec J. Koromilas, 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
__________________________________________
D.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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

Docket No. 15-1745
Issued: February 11, 2016

Case Submitted on the Record

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

JURISDICTION
On August 18, 2015 appellant filed a timely appeal from a July 8, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP) and an August 3, 2015 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury to her
back and left shoulder causally related to factors of her federal employment; and (2) whether
OWCP properly denied her request to reopen her case for further review of the merits under
5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence with her appeal; however, the Board has no jurisdiction to review new
evidence on appeal; see 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 1, 2015 appellant, then a 36-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 2, 2015 she experienced left shoulder pain and back pain
with spasms from carrying mail. She stopped work on March 2, 2015.
On April 21, 2015 the employing establishment advised that it appeared that appellant
was claiming an occupational disease rather than a traumatic injury.3
By letter dated April 30, 2015, OWCP advised appellant that she should submit
additional factual and medical information, including a detailed report from her attending
physician, addressing the causal relationship between any diagnosed condition and the identified
work incident. It enclosed a questionnaire requesting specific information, including
clarification of whether she was claiming a traumatic injury or an occupational disease.
Appellant submitted an emergency room discharge report indicating that she had received
treatment on March 3, 2015 for a backache.4
On May 4, 2015 appellant completed the section of the questionnaire form provided by
OWCP relevant to claims for occupational diseases. She indicated that she had strained her
shoulder on March 2, 2015 after four hours of mail delivery because of the weight of her
mailbag. Appellant further related that she had performed these duties six hours a day, five days
a week for a period of two years.
By decision dated July 8, 2015, OWCP denied appellant’s claim after finding that she had
not established an injury due to factors of her federal employment. It adjudicated her claim as an
occupational disease based on her May 4, 2015 statement. OWCP found that appellant had not
factually established the identified work factors as she failed to provide a detailed description of
the circumstances surrounding her injury. It further noted that she had not clarified whether she
was claiming a back condition as well as a left shoulder condition, and had not provided the
medical evidence establishing a diagnosed condition as a result of a claimed work factor.
On July 23, 2015 appellant requested reconsideration. She resubmitted the first page of
her traumatic injury claim form and a May 8, 2015 form report from her physician.

3

In a report dated March 9, 2015, Dr. Stella Ilyaev, a Board-certified internist, related that she had treated
appellant for three years for “chronic back pain, associated with muscle spasms, exacerbated by [the] carrying of
heavy bags” as a result of her work for the employing establishment. She noted that appellant’s “last day of work
ended in the emergency room….” In a March 30, 2015 work restriction evaluation, Dr. Ilyaev diagnosed back
spasms and sprain and checked “yes” that the history of injury corresponded to that provided by appellant that she
was experiencing a back strain with sore muscles and spams.
4

In a form report dated May 8, 2015, Dr. Ilyaev diagnosed back strain/strain and checked a box marked “yes”
that the condition was caused or aggravated by employment, providing as a rationale that appellant carried up to 70
pounds at work. She advised that appellant was totally disabled from March 2, 2015 to the present. In a June 8,
2015 work restriction evaluation, Dr. Ilyaev diagnosed lower back strain and listed work restrictions.

2

In a decision dated August 3, 2015, OWCP denied appellant’s request for reconsideration
as she had not raised an argument or submitted evidence sufficient to warrant reopening her case
for further merit review under section 8128(a).
On appeal appellant asserts that the employing establishment incorrectly spelled her
name and thus she was not in the system as sustaining a work injury under file number
xxxxxx521. She maintains that she has met her burden of proof and is entitled to reconsideration
of the adverse decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA5 has the burden 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 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.7
Appellant has the burden of proof to submit a factual statement identifying the
employment factors alleged to have caused the occurrence of the claimed disease or condition.8
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet her burden of proof to establish an injury in
the performance of duty. Appellant alleged that she sprained her back and injured her left
shoulder on March 2, 2015 after carrying mail. By letter dated April 30, 2015, OWCP advised
her of the deficiencies of her claim and the need to submit additional information regarding the
alleged incident. It provided appellant with a questionnaire to complete. In response, on the
section of the questionnaire relevant to occupational disease claims, appellant asserted that on
March 2, 2015 she strained her shoulder delivering mail. She further indicated that she had
performed the described activities five days a week, six hours a day, for two years. Based on
appellant’s response, OWCP adjudicated her claim as an occupational injury. It found, however,
that she had not adequately described the circumstances surrounding her injury or discuss
whether she had any previous history of similar symptoms.
The Board finds that appellant failed to establish her claim. It is her burden to submit a
detailed description of the employment factors that she believes caused or adversely affected the
condition or conditions for which compensation is claimed.9 The need in this case for detailed
5

Supra note 1.

6

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Ellen L. Noble, 55 ECAB 530 (2004).

8

See Allen C. Hundley, 53 ECAB 551 (2002).

9

Penelope C. Owens, 54 ECAB 684 (2003).

3

factual evidence is especially important since it is currently difficult to determine the exact
nature of the claimed injury and whether appellant is claiming a traumatic injury or occupational
disease. On her claim form, appellant attributed a back and left shoulder condition to carrying
mail on March 2, 2015. In a May 4, 2015 response to OWCP’s request for information, she
alleged that she strained her shoulder delivering mail for four hours on March 2, 2015.
Appellant thus appears to implicate a traumatic event as the cause of either a shoulder or back
condition rather than work factors occurring over more than one work shift.10 She further
related, however, that she performed the activities alleged to have caused her condition five days
a week for two years. As appellant did not provide a factual statement describing in detail the
events that caused the claimed injury and the circumstances surrounding the injury, she has not
met her burden of proof. Consequently, it is unnecessary to address the medical evidence of
record.11
On appeal appellant maintains that the employing establishment initially did not list her
as having a work injury because it misspelled her name. She also contends that she has met her
burden of proof. As noted, however, appellant’s burden of proof includes the submission of a
factual statement describing the claimed injury. She did not submit such evidence and thus did
not meet her burden of proof.12 The prior alleged misspelling of appellant’s name is irrelevant to
the present denial of her claim.
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 and
20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.14 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.15 When a claimant fails to meet one of the above standards, OWCP

10

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
11

See M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin V. Gadd, 57 ECAB 172 (2005).

12

See R.H., Docket No. 15-0508 (issued July 10, 2015).

13

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
14

20 C.F.R. § 10.606(b)(3).

15

Id. at § 10.607(a).

4

will deny the application for reconsideration without reopening the case for review on the
merits.16
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.17 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.18
ANALYSIS -- ISSUE 2
The underlying issue on reconsideration is whether appellant submitted sufficient
evidence to establish that she sustained an employment injury. OWCP received her July 23,
2015 reconsideration request within one year of its July 8, 2015 merit decision. Appellant’s
request is, therefore, timely. The question that remains is whether the request meets at least one
of the three standards for obtaining a merit review.
The Board finds that appellant’s request for reconsideration is insufficient to require
OWCP to reopen the case for merit review. She indicated with a checkmark on the appeal
request form that she was requesting reconsideration. Appellant did not attempt to show that
OWCP erroneously applied or interpreted a point of law or advance a relevant argument.
Further, she did not submit pertinent new and relevant evidence not previously considered. With
her reconsideration request, appellant resubmitted a page of her claim form and a May 8, 2015
form report from her physician. Evidence which repeats or duplicates evidence already in the
case record has no evidentiary value and does not constitute a basis for reopening a case.19
On appeal appellant argues that she should receive reconsideration of the adverse
decision. As her July 23, 2015 request for reconsideration did not meet any of the standards for
reopening her case, the Board therefore finds that OWCP properly denied her request for further
merit review under section 8128(a).
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury to
her back and left shoulder causally related to factors of her federal employment. The Board
further finds that OWCP properly denied her request to reopen her case for further review of the
merits under 5 U.S.C. § 8128(a).

16

Id. at § 10.608(b).

17

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

18

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
19

See J.P., 58 ECAB 289 (2007); Richard Yadron, 57 ECAB 207 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the August 3 and July 8, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 11, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR COMBAT COMMAND,
LANGLEY AIR FORCE BASE, VA, Employer
__________________________________________

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

Docket No. 17-1368
Issued: October 19, 2017

Case Submitted on the Record

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

JURISDICTION
On June 5, 2017 appellant filed a timely appeal from a May 2, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish knee injuries causally
related to an accepted May 13, 2016 employment incident.
FACTUAL HISTORY
On May 26, 2016 appellant, then a 50-year-old police officer, filed a traumatic injury
claim (Form CA-1) alleging that on May 13, 2016 he sustained bilateral knee injuries when,
1

5 U.S.C. § 8101 et seq.

while placing his gear in the back of a van, the driver of the van placed the van in reverse and the
van struck his legs. He stopped work on May 13, 2016.
In support of his claim appellant submitted a position description and personnel action
form (Form SF-50) dated January 10, 2016.
By letter dated June 7, 2016, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. It advised him of the medical and factual evidence necessary
to establish his traumatic injury claim and afforded him 30 days to provide this information.
OWCP received additional evidence from appellant in response to its request, including a
May 27, 2016 magnetic resonance imaging (MRI) scan which diagnosed a right knee lateral
fracture.
In a June 8, 2016 visit summary, Dr. Manish A. Patel, a treating Board-certified
orthopedic surgeon, diagnosed bilateral knee pain, right initial lateral condyle fracture, and
subsequent right lateral condyle fracture. In a disability note of the same date, he related that
appellant would be disabled from work until a follow-up appointment on July 1, 2016.
By decision dated July 8, 2016, OWCP denied appellant’s claim. It found that the
May 13, 2016 incident occurred as alleged, but that no medical condition had been diagnosed as
causally related to the accepted work incident.
On July 29, 2016 OWCP received appellant’s July 25, 2016 request for a telephonic
hearing before an OWCP hearing representative. The hearing was held on March 14, 2017. The
request was postmarked July 26, 2016.
On March 15, 2017 OWCP received a June 8, 2016 report of Dr. Patel noting that
appellant had been seen for bilateral knee complaints. He reviewed the MRI scan results,
provided physical examination findings, and diagnosed right initial lateral condyle fracture and
right knee lateral tibial plateau fracture.
By decision dated May 2, 2017, OWCP’s hearing representative affirmed the July 8,
2016 decision. She found that the record of evidence was devoid of any medical evidence
establishing that the diagnosed knee conditions were causally related to the accepted May 13,
2016 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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

2

Id.

2

employment injury.3 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.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.6 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
OWCP accepted that the May 13, 2016 work incident occurred as alleged. It denied
appellant’s claim, however, as he failed to establish that his diagnosed knee conditions are
casually related to the accepted employment incident.
The Board finds that appellant has failed to establish diagnosed knee conditions causally
related to the accepted May 13, 2016 employment incident.
In a June 8, 2016 report, Dr. Patel detailed physical examination findings, reviewed the
right knee MRI scan, and diagnosed right initial lateral condyle fracture and right knee with
lateral tibial plateau fracture. However, the report contained no history of injury or opinion on
causation. Dr. Patel’s report is insufficient to establish the claim as he did not provide a history
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

of injury,11 nor did he specifically address whether the accepted employment incident had caused
or aggravated the diagnosed medical condition.12
The record also contains Dr. Patel’s June 8, 2016 disability certificate finding appellant
totally disabled and his June 8, 2016 office visit summary which diagnosed bilateral knee pain,
right initial lateral condyle fracture, and subsequent right lateral condyle fracture. However,
again Dr. Patel offered no medical explanation regarding the cause of these diagnosed
conditions. The Board has found that a physician must provide a narrative description of the
identified employment incident and a reasoned opinion as to whether the incident caused or
contributed to the diagnosed medical conditions.13 Lacking a proper medical explanation of
causal relationship, Dr. Patel’s reports are of limited probative value and insufficient to meet
appellant’s burden of proof.14
The record also contains a May 27, 2016 MRI scan of appellant’s right knee. However,
diagnostic test results are of limited probative value as they fail to provide an opinion addressing
whether the diagnosed conditions were caused or aggravated by the accepted employment
incident.15
As there is no probative, rationalized medical evidence addressing how appellant’s
claimed knee conditions were caused or aggravated by the accepted May 13, 2016 employment
incident, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish knee injuries
causally related to the accepted May 13, 2016 employment incident.

11

L.G., Docket No. 09-1692 (issued August 11, 2010); James R. Taylor, 56 ECAB 537 (2005) (medical opinions
based on an incomplete history or which are speculative or equivocal in character have little probative value).
12

C.B., Docket No. 09-2027 (issued May 12, 2010); A.D., 58 ECAB 149 (2006); Ellen L. Noble, 55 ECAB
530 (2004) (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).
13

See B.D., Docket No. 17-0402 (issued June 12, 2017).

14

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
15

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55
ECAB 200 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 2, 2017 is affirmed.
Issued: October 19, 2017
Washington, DC

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

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

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

5