United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.T., Appellant
and
U.S. POSTAL SERVICE, MOUNDSVILLE
POST OFFICE, Moundsville, WV, Employer
__________________________________________

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

Docket No. 17-1429
Issued: November 1, 2017

Case Submitted on the Record

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

JURISDICTION
On June 19, 2017 appellant, through counsel, filed a timely appeal from a May 3, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision, dated August 19, 2016, to the filing of this appeal
on June 19, 2017, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 29, 2014 appellant, then a 54-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed a large retracted torn rotator cuff and
biceps tear due to her job duties. She first became aware of her condition on August 2, 2014 and
first attributed her condition to her factors of federal employment on August 18, 2014.3
Appellant noted that she had undergone right shoulder surgical repair on February 3, 2014 and
returned to work on June 4, 2014.
Appellant asserted that she worked 50 hours a week and attributed her right shoulder pain
to lifting and carrying her mail sack, as well as repetitive casing. On June 4, 2014 she noted
carrying an extra hour of a walking route with a mail sack. Appellant noted that she also worked
10 hours on June 5, 2014 and worked 100 hours during the first two weeks after her return to
work following her surgery. She provided a detailed description of her job duties from July 29 to
August 30, 2014. Appellant indicated that she also had a tear in her left rotator cuff. She
stopped work on September 3, 2014.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on
August 18, 2014 which demonstrated a supraspinatus tear with retraction and a partial tear of the
infraspinatus as well as a probable tear of the biceps tendon. In a note dated September 3, 2014,
Dr. Michael Zilles, a Board-certified orthopedic surgeon, indicated that appellant “retore” her
right shoulder rotator cuff. He recommended additional surgery.
Appellant noted that her physician scheduled a second right shoulder surgery on
September 19, 2014.
The employing establishment completed a statement on September 5, 2014 and
confirmed that appellant was required to work 50 hours a week. It indicated that appellant spent
approximately 30 to 35 minutes a day carrying her satchel and that she cased mail for 1½ hours a
day. The majority of appellant’s route was mounted which entailed delivering mail from the
right-hand window of her vehicle to place the mail in each mailbox.
Dr. Zilles performed a right shoulder rotator cuff repair due to a recurrent tear in the top
portion of her repair on September 19, 2014.
Appellant filed a claim for disability retirement with the Office of Personnel Management
(OPM) on October 6, 2014.

3

Appellant has seven prior claims before OWCP. These claims include File No. xxxxxx783 an occupational
disease claim for a left rotator cuff tear in 2013.

2

In a letter dated November 3, 2014, OWCP requested additional factual and medical
evidence in support of appellant’s occupational disease claim and afforded her 30 days for a
response. Appellant did not submit additional evidence within the time allotted.
By decision dated December 16, 2014, OWCP denied appellant’s occupational disease
claim finding that she had failed to submit sufficient medical evidence to establish a causal
relationship between her diagnosed medical condition and the accepted factors of her federal
employment. Counsel requested an oral hearing from OWCP’s Branch of Hearings and Review
on December 22, 2014.
Appellant testified at the oral hearing which was held on July 8, 2015. She indicated that
she had been a mail carrier for 23 years. Appellant noted that she believed that her initial right
shoulder repair was successful and that after she returned to work in June 2014 the repair tore.
She reported that her husband broke his neck shortly after they were married and that she had
home health care for him until December 2013 at which time he moved to a nursing home.
Appellant noted that after she returned to work in June 2014 she was required to work 50 hours a
week. She asserted that she was carrying her satchel for 2½ hours a day and developed
increasing pain in her right shoulder.
By decision dated September 4, 2015, OWCP’s hearing representative found that the
medical evidence of record was insufficient to establish a causal relationship between appellant’s
diagnosed recurrent right rotator cuff tear and her implicated employment factors. He noted that
there was no medical opinion evidence addressing the cause of appellant’s recurrent right rotator
cuff tear.
Counsel requested reconsideration on May 23, 2016. In support of this request, he
submitted a report dated May 10, 2016 from Dr. Alan Tissenbaum, a Board-certified orthopedic
surgeon. In this report, Dr. Tissenbaum reviewed appellant’s November 2, 2015 right shoulder
MRI scan. He opined, “It is reasonable to believe that her injuries are consistent with her job
duties as a mail carrier. Lifting approximately 70 pounds and carrying a mailbag weighing 30 to
40 pounds, along with the repetitive motion of casing mail for about two hours per day over
several years that you could expect injuries of this nature.” Dr. Tissenbaum indicated that he
performed a right reverse total shoulder arthroplasty on December 1, 2015.
In a decision dated August 19, 2016, OWCP denied modification of its prior decisions,
finding that Dr. Tissenbaum’s report was not based on a complete and accurate work or medical
history. It further found that the report was not well rationalized and did not meet appellant’s
burden of proof to establish her occupational disease claim.
On November 2, 2015 appellant had a right shoulder MRI scan which demonstrated tear
of the supraspinatus and infraspinatus tendons with glenohumeral subluxation, biceps tendon tear
of the long head with retraction into the upper arm, as well as osteoarthritis of the joint.

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Counsel requested reconsideration of the August 19, 2016 decision on February 3, 2017.4
He submitted an additional report from Dr. Tissenbaum dated September 15, 2016.
Dr. Tissenbaum noted that he assumed appellant’s care in the fall of 2015 due to an August 2,
2014 injury. Appellant reported extreme pain in her right shoulder and underwent a right
shoulder MRI scan on November 2, 2015. Dr. Tissenbaum opined that right shoulder findings
were consistent with appellant’s original complaint. He concluded, “It is reasonable to believe
that her right shoulder tearing is consistent with her job duties as a mail carrier. Lifting
approximately 70 pounds and carrying a mailbag weighing 30 to 40 pounds, along with the
repetitive motion of casing mail for about two hours per day over several years that you could
expect injuries of this nature to the right shoulder.” Dr. Tissenbaum noted on December 1, 2015
that he performed a right reverse total shoulder arthroplasty for the chronic rotator cuff
arthropathy.
By decision dated May 3, 2017, OWCP declined to reopen appellant’s claim for
consideration of the merits. It found That Dr. Tissenbaum’s September 15, 2016 report was
duplicative of his May 10, 2016 report. OWCP found that the remainder of the medical evidence
did not address the issue of causal relationship.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.5
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.6
Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.7 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.8

4

In an order dated February 2, 2017 in Docket No. 16-1799, the Board granted counsel’s request to dismiss her
appeal in File Nos. xxxxxx783 and xxxxxx410. See Order Dismissing Appeal, Docket No. 16-1799 (issued
February 2, 2017).
5

5 U.S.C. §§ 8101-8193, 8128(a).

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608.

8

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations¸ Chapter 2.1602.4
(February 2016).

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ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant’s February 3, 2017 request for reconsideration was timely filed. However, she
neither alleged nor demonstrated that OWCP erroneously applied or interpreted a specific point
of law. Additionally, appellant did not advance any relevant legal arguments not previously
considered by OWCP. The Board finds that appellant is therefore not entitled to a review of the
merits based on the first and second requirements under section 10.606(b)(3).9
Appellant also failed to submit any relevant and pertinent new evidence with her
February 3, 2017 request for reconsideration. The issue on reconsideration was whether there
was causal relationship between appellant’s right shoulder rotator cuff tears and her accepted
employment factors. Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue.10 The November 2, 2015 MRI scan
therefore cannot suffice for purposes of establishing causal relationship as it does not address this
issue.11 Appellant submitted Dr. Tissenbaum September 15, 2016 report, which is cumulative of
his May 10, 2016 report. Providing additional evidence that either repeats or duplicates
information already of record does not constitute a basis for reopening a claim.12 Because
appellant did not provide any probative relevant and pertinent new evidence, she is not entitled to
a review of the merits based on the third requirement under section 10.606(b)(3).13 Accordingly,
OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

9

B.W., Docket No. 16-1778 (issued August 24, 2017); 20 C.F.R. § 10.606(b)(3)(i) and (ii).

10

Id.

11

The submission of evidence or argument which does not address the particular issue involved does not
constitute a basis for reopening a case. A.M., Docket No. 16-1875 (issued August 23, 2017); Edward Matthew
Diekemper, 31 ECAB 224-25 (1979).
12

B.W., supra note 9; James W. Scott, 55 ECAB 606, 608 n.4 (2004).

13

S.F., Docket No. 16-1019 (issued May 4, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the May 3, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 1, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, RONALD REAGAN
NATIONAL AIRPORT, Washington, DC,
Employer
__________________________________________

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

Docket No. 08-179
Issued: June 12, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 23, 2007 appellant filed a timely appeal from the September 6, 2007 decision
of the Office of Workers’ Compensation Programs denying her traumatic injury 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 injured her foot in the performance of duty on June 27,
2007, as alleged.1

1

The Board notes that, following the Office’s issuance of its September 6, 2007 decision, appellant submitted
several medical documents. On appeal, she also submitted medical documentation related to her claim. As this
evidence was not in the record at the time the Office issued its final decision, the Board cannot review it for the first
time on appeal. See 20 C.F.R. §§ 501.2(c) (“the [Board’s] review of the case shall be limited to the evidence in the
case record which was before the Office at the time of its final decision”).

FACTUAL HISTORY
On July 23, 2007 appellant, then a 33-year-old transportation security officer, filed a
traumatic injury claim alleging that she fractured her foot when she fell off of an x-ray stool on
June 27, 2007. She stopped working on July 1, 2007.
On July 31, 2007 the Office notified appellant that the evidence of record was insufficient
to establish the alleged employment incident. It provided her 30 days to submit additional
medical and factual information regarding her claim.
On August 14, 2007 appellant submitted a claim for compensation for leave without pay
taken from August 12 to 22, 2007. She did not submit the requested evidence in the allotted
time.
By decision dated September 6, 2007, the Office denied appellant’s claim on the grounds
that she had not established that an employment-related event occurred as alleged or that she had
a diagnosis connected to the claimed events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component is whether the
incident caused a personal injury and, generally, this can be established only by medical
evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant6 and must be one of reasonable medical certainty,7 explaining the
2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

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

6

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

7

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

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nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS
The Office did not accept that the claimed incident occurred as alleged or that appellant
sustained an injury. The issue to be determined is whether appellant has submitted sufficient
evidence to demonstrate that she fractured her foot in the performance of duty on June 27, 2007.
In her July 23, 2007 claim, appellant alleged that she fractured her foot when she fell off
of an x-ray stool. However, she provided no details about the events surrounding this incident.
Notably, she did not identify which foot was involved in the incident, or why she did not stop
work until three days later. Appellant did not submit any medical evidence establishing the
existence of any medical condition or a fracture to either foot.
Because appellant did not submit any evidence to establish her claim, the Board finds that
she did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she injured her foot in the
performance of duty on June 27, 2007 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2007 is affirmed.
Issued: June 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIEL COMMAND, Tobyhanna, PA,
Employer
__________________________________________

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Appearances:
Edwin A. Abrahamsen, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0888
Issued: September 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 5, 2015 appellant, through counsel, filed a timely appeal from a January 28,
2015 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 claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established a recurrence of disability commencing
July 4, 2011 due to his accepted July 13, 2009 work injury.
FACTUAL HISTORY
This case has previously been before the Board.3 On June 4, 2013 appellant, through
counsel, filed for review of a May 16, 2013 OWCP informational letter. By order dated
September 3, 2013, the Board dismissed appellant’s appeal finding that there was no final
adverse decision issued by OWCP on May 16, 2013. The facts set forth in the prior order are
incorporated herein by reference.
On April 7, 2011 appellant, then a 28-year-old equipment cleaner, filed a traumatic injury
claim (Form CA-1) alleging that on July 13, 2009 he sustained back pain and several bulging
discs. He reported that he was moving an air conditioning (AC) unit on its side while tilted, and
turned to grab sandpaper when the unit moved causing him pain in his neck, right shoulder, and
spine. Appellant first sought treatment and notified his supervisor on the date of injury. His
supervisor noted on the claim form that appellant was currently claiming several bulging discs
despite having been treated at the health clinic on the date of injury and released with no
restrictions or further treatment.
By decision dated May 20, 2011, OWCP accepted the claim for cervical radiculitis and
lumbosacral radiculitis.4
In a May 24, 2011 narrative statement, appellant informed OWCP that he was in a prior
motor vehicle accident and sustained injury to his left wrist, left knee, and back resulting in a
minimal bulge at L4-5. He submitted medical and physical therapy reports dated June 21, 2005
through October 17, 2008 documenting his treatment. In an October 27, 2005 medical report,
Dr. Brent L. Millet, Board-certified in physical medicine and rehabilitation, reported that
appellant sustained an injury on June 14, 2005 when he was riding in a trailer and fell out. A
May 30, 2006 report indicated that appellant complained of pain just over the mid lumbar spine.
Dr. Millet provided findings on physical examination and review of diagnostic testing. He noted
that an August 2005 magnetic resonance imaging (MRI) scan revealed minimal annular bulge at
the L4-5 level. Dr. Millet diagnosed chronic axial lumbar spine pain following significant
trauma and normal appearing x-rays of the lumbar spine.
Review of the record reflects that appellant was a temporary employee at the time of his
July 13, 2009 injury. He did not stop work following the employment injury but worked in a

3

Docket No. 13-1532 (issued September 3, 2013).

4

The Board notes that on April 26, 2011, appellant filed a claim for anxiety secondary to sexual harassment at
work, File No. xxxxxx109. By decision dated October 20, 2011, OWCP accepted the claim for generalized anxiety
disorder. No work modifications were based on this injury. Appellant continued treatment with psychiatrist
Dr. Matthew Berger for this injury. The record before the Board contains no other information pertaining to this
claim.

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light-duty capacity. In a July 4, 2011 notification of personnel action, appellant was terminated
by the employing establishment after his appointment expired.
Beginning April 11, 2011, appellant sought treatment with Dr. Vithal D. Dhaduk, a
neurologist. Dr. Dhaduk reported that appellant initially injured his back in 2003 and was doing
reasonably well, but was lifting heavy sand blasting equipment weighing almost 280 pounds at
work on July 13, 2009, resulting in severe neck and lower back pain. Appellant also complained
of continued neck and lower back pain which radiated to his upper and lower extremities on
October 29, 2010 while lifting air conditioners at work. Dr. Dhaduk reported that a March 22,
2011 MRI scan of the cervical spine revealed minimally bulging disc at C4-5 and C5-6 level. A
lumbosacral spine MRI scan showed mild bulging disc at the L5-S1 level. Dr. Dhaduk
diagnosed progressive spondylosis of the cervical spine with bulging disc, progressive cervical
radiculopathy with paraspinal muscle spasms with no herniation of the disc, progressive severe
lumbar radiculopathy with paraspinal muscle spasms with no herniation of the disc, and bulging
disc at L4-5 level with neural foramina narrowing. He opined that these conditions were related
to the work injury on July 13, 2009 and October 29, 2010. Dr. Dhaduk recommended physical
therapy, encouraged appellant to keep up with activities and exercise, and recommended that he
continue his work. No work restrictions were provided.
In an April 15, 2011 electromyography (EMG) and nerve conduction velocity (NCV)
study, Dr. Dhaduk reported electrophysiologic evidence of mild and acute chronic radiculopathy
bilaterally at C5-6, mild acute and chronic radiculopathy bilaterally at L5-S1, and no evidence of
a peripheral neuropathy.
In an April 26, 2011 prescription note, Dr. Eugene Daniel Harasym, appellant’s family
physician, noted “light duty only.” No accompanying report was provided.
On April 27, 2011 appellant began treatment with Dr. Sheryl Oleski, an osteopath.
Dr. Oleski diagnosed cervical and lumbar strain due to a 2009 work-related injury. She
recommended continued physical therapy. No work restrictions were provided. In a May 2,
2011 note, Dr. Oleski excused appellant from work on that date due to increased pain. In a
July 6, 2011 report, she diagnosed cervical and lumbar strain. Dr. Oleski recommended that
appellant continue his course of physical therapy and provided new medication due to
complaints of continued pain.
By letter dated July 20, 2011, counsel reported that appellant’s contract with the
Tobyhanna Army Depot was recently not renewed. As such, appellant was no longer receiving
light-duty work. Counsel noted that appellant should be entitled to wage-loss compensation
benefits as he remained on restricted duty due to his July 13, 2009 work injury.
By letter dated February 11, 2013, OWCP informed appellant that the evidence of record
was insufficient to support his claim for compensation. Appellant was provided 30 days to
provide additional detail pertaining to his work status and medical evidence in support of
disability.
On March 7, 2013 the employing establishment reported that appellant was terminated
due to expiration of his term appointment on July 4, 2011. Appellant was in an active pay status,

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working eight hours per day from the date of injury (July 13, 2009) through his termination date
(July 4, 2011). The employing establishment noted that he did not stop work on the date of
injury and even worked overtime and once on a holiday.
In an October 21, 2013 medical report, Dr. Dhaduk reported that appellant complained of
continued back pain related to his work injury. He diagnosed work-related injury on July 13,
2009 and October 29, 2010 resulting in progressive spondylosis of the cervical spine with
bulging disc, progressive cervical radiculitis with paraspinal muscle spasms, progressive severe
lumbosacral radiculitis with paraspinal muscle spasms, bulging disc at L4-5 level with neural
foramina narrowing, and post-traumatic vascular headaches. Dr. Dhaduk recommended lightduty work if appellant could find it.
On November 29, 2013 appellant filed claims for compensation (Forms CA-7) for leave
without pay beginning July 4, 2011 and continuing.
In a December 2, 2013 medical report, Dr. Oleski provided findings on physical
examination and diagnosed chronic cervical lumbar and thoracic sprain and suspected
myofascial syndrome.
In a December 11, 2013 e-mail correspondence, Andrew Mounkes, a Department of the
Army Injury Compensation Specialist, noted that appellant’s last medical report of record dated
May 4, 2011 indicated that appellant could continue working in a light-duty capacity with
restrictions lasting approximately one month. No other medical reports existed restoring him to
duty or continuing with light duty until his separation on July 4, 2011.
By letter dated December 24, 2013, the employing establishment reported that the most
recent documentation related to appellant’s claim dated May 4, 2011 indicated that he could
return to work with restrictions. However, the document was signed by a nurse and not countersigned by a physician. The employing establishment reported that appellant informed them that
he returned to duty prior to his July 4, 2011 separation. It further noted that there was no
indication that appellant returned back to work without restrictions prior to his separation date.
The employing establishment provided the accompanying May 4, 2011 work restrictions from
the registered nurse who prescribed limited-duty work for one month.
On February 24, 2014 OWCP referred appellant, a statement of accepted facts (SOAF),
the case file, and a series of questions to Dr. Mohammad Aslam, a Board-certified neurologist,
for a second opinion examination regarding the nature and extent of appellant’s disability.
Dr. Aslam reviewed appellant’s medical history, summarized diagnostic reports, and provided
findings on physical examination. He opined that appellant’s medical records did not reveal disc
herniation. Dr. Aslam noted some loss of normal lordotic curve in the cervical spine due to
paravertebral muscle spasms and some degenerative changes. He diagnosed cervical and
lumbosacral strain, cervical radiculitis, and lumbosacral radiculitis. Dr. Aslam opined that the
cervical and lumbosacral radiculitis had resolved and appellant did not have any residuals from
the 2009 injury. He noted that appellant was capable of working full duty as related to this
injury. Dr. Aslam noted some limitations resulting from a prior sexual assault, including a
weight limit of 20 to 25 pounds while working. He concluded that he could not provide any
opinion with respect to whether appellant was capable of working full duty in May 2011.

4

In a March 3, 2014 medical report, Dr. Oleski provided findings on physical examination
and diagnosed suspected myofascial syndrome and chronic cervical, lumbar, and thoracic sprain.
By decision dated March 24, 2014, OWCP denied appellant’s claim for disability
compensation for the period beginning July 4, 2011 and ongoing finding that the evidence of
record failed to establish disability following termination of his employment.
On April 9, 2014 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
A hearing was held on November 12, 2014. Counsel stated that he submitted many
medical reports which established appellant’s claim for disability. He argued that appellant was
entitled to disability compensation because he had work restrictions as a result of the July 13,
2009 work injury at the time of his termination. Counsel reported that the medical records
documented ongoing injuries from 2009, as well as work restrictions, and that appellant’s
disability presently continued despite the withdrawal of his temporary assignment on
July 4, 2011.
Appellant testified that his work as an equipment cleaner involved heavy lifting when he
was injured in July 2009. Following his work injury, he was moved to the position of electronics
mechanic helper to work on radios since he was limited to lifting 15 pounds and was able to
perform the work sitting at a desk using hand tools. Appellant continued in this capacity until his
termination in 2011. He denied any subsequent injury and explained that his condition continued
to worsen with numbness and tingling in his arms and legs, as well as back pain. Appellant
argued that Dr. Aslam provided a minimal examination. He further explained that in
October 2010, he fell backwards when removing a shelter floor, hitting his hands on the floor,
but reported no injury. The record was held open for 30 days to submit additional evidence.
On December 29, 2014 the employing establishment provided comments regarding the
hearing and explained that appellant’s temporary assignment was to expire on July 7, 2010 but
was extended a final year with no further extension considered. It noted that he did not file his
claim until two years after the injury. The employing establishment further argued that at the
time of expiration of the temporary appointment on July 4, 2011, there was no medical
documentation on file with the employing establishment to support any work limitations. The
last record of work restrictions was dated May 3, 2011, and expired on June 2, 2011.
In support of his claim, appellant submitted medical evidence and diagnostic reports
previously of record, as well as new medical evidence. Handwritten notes dated April 15, 2008
through September 13, 2010 were submitted documenting treatment with Dr. Harasym.
Acupuncture treatment notes dated August 1 through November 8, 2011 were also submitted
documenting treatment pertaining to cervicalgia and lumbago with a physical therapist. Counsel
submitted chart notes and reports dated November 21, 2011 through April 29, 2014 from
Dr. Matthew Berger, a treating psychiatrist, documenting appellant’s mental health and anxiety
treatment.
In medical reports dated April 11, 2011 through October 27, 2014, Dr. Dhaduk
documented treatment for appellant’s July 13, 2009 injury. He noted the diagnoses of work-

5

related injury on July 13, 2009 and October 29, 2010 resulting in progressive spondylosis of the
cervical spine with bulging disc, progressive cervical radiculopathy with paraspinal muscle
spasms, progressive severe lumbar radiculopathy with paraspinal muscle spasms, and bulging
disc at L4-5 level with neural foramina narrowing. Dr. Dhaduk recommended that appellant
continue his work, continue going to the gym, and to keep up activities and exercise. No work
restrictions were provided. In an October 21, 2013 report, Dr. Dhaduk recommended light-duty
work. In newly submitted medical reports dated December 2, 2013 through October 27, 2014,
he repeated the history of injury, physical examination findings, and review of diagnostic reports.
Dr. Dhaduk noted the list of diagnoses previously submitted and recommended physical therapy
and light-duty work if he could find it.
In medical reports dated April 27, 2011 through November 3, 2014, Dr. Oleski
documented treatment for appellant’s cervical and lumbar conditions. She diagnosed cervical,
thoracic, and lumbar sprain, as well as cervicalgia. Dr. Oleski documented appellant’s
complaints of pain recommending medication, physical therapy, acupuncture, and exercise. In a
July 25, 2012 report, she noted an additional diagnosis of suspected myofascial pain syndrome
and pes planus deformity with tibialis tendinitis bilaterally. In more recent reports dated March 3
through November 3, 2014, Dr. Oleski provided findings on physical examination and diagnosed
chronic cervical, lumbar, and thoracic sprain. She noted that appellant was trying to find work
but could not get hired because of an open workers’ compensation claim. Dr. Oleski provided no
opinion on disability or work restrictions.
By decision dated January 28, 2015, OWCP’s hearing representative affirmed the
March 24, 2014 decision finding that the evidence of record failed to establish a recurrence of
disability commencing July 4, 2011 causally related to the July 13, 2009 work injury.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.6
OWCP procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening

5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
6

Id.

6

injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.7
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable, and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury, and supports that conclusion with medical reasoning.8 Where no such
rationale is present, the medical evidence is of diminished probative value.9
ANALYSIS
OWCP accepted appellant’s claim for cervical radiculitis and lumbosacral radiculitis.
Appellant did not stop work until July 4, 2011 when he was terminated by the employing
establishment after his temporary appointment expired. The issue is whether appellant has
established disability on or after July 4, 2011 causally related to his accepted July 13, 2009 work
injury.
Appellant has not alleged a change in the nature and extent of his light-duty job
requirements. He worked until his temporary appointment expired on July 4, 2011. Although
withdrawal of a light-duty position may establish a recurrence of disability, the termination of a
temporary appointment, when the employee was a temporary employee at the time of injury,
does not in itself establish a recurrence of disability.10 Appellant must thus provide medical
evidence to establish that he was disabled for the light-duty position.11
Appellant sought treatment with Dr. Dhaduk from April 11, 2011 through
October 27, 2014. In his initial April 11 and 29, 2011 reports, Dr. Dhaduk reported that
appellant first injured his back in 2003 and was doing reasonably well. On July 13, 2009 he was
lifting heavy sand blasting equipment at work weighing 280 pounds which resulted in severe
neck and lower back pain. On October 29, 2010 appellant was lifting air conditioners at work
and complained of continued neck and lower back pain which radiated to the upper and lower
extremities. Dr. Dhaduk opined that appellant sustained a work-related injury on July 13, 2009
and October 29, 2010 resulting in progressive spondylosis of the cervical spine with bulging
disc; progressive cervical radiculopathy with paraspinal muscle spasms; progressive severe
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013). Kenneth R.
Love, 50 ECAB 193, 199 (1998).
8

Ronald A. Eldridge, 53 ECAB 218 (2001).

9

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

10

FECA Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(1) (June 2013); see also Shelly A.
Paolinetti, 52 ECAB 291 (2001).
11

See Jackie D. West, 54 ECAB 158 (2002).

7

lumbar radiculopathy with paraspinal muscle spasms; and bulging disc at L4-5 level with neural
foramina narrowing.
The Board notes that OWCP only accepted cervical radiculitis and lumbosacral
radiculitis as employment related. Where appellant claims that a condition not accepted or
approved by OWCP was due to his employment injury, he bears the burden of proof to establish
that the condition is causally related to the employment injury through the submission of
rationalized medical evidence.12 Dr. Dhaduk failed to provide any rationale that the progressive
spondylosis of the cervical spine with bulging disc and bulging disc at L4-5 level with neural
foramina narrowing was related to the July 13, 2009 work injury. Moreover, it appears that
appellant’s disc bulge at L4-5 is a preexisting nonwork-related condition as revealed by an
August 2005 MRI scan of the lumbar spine.13 Dr. Dhaduk failed to address why appellant’s
complaints were not caused by his preexisting lumbar injury.14 A well-rationalized opinion is
particularly warranted when there is a history of preexisting condition.15 Moreover, Dr. Dhaduk
did not provide adequate bridging evidence to show a spontaneous worsening of the accepted
conditions. Rather, he correlated in general terms that appellant’s conditions were caused by the
July 13, 2009 work-related injury.16 Medical conclusions unsupported by rationale are of little
probative value.17 Though he generally supported that appellant’s continued symptoms were a
result of his employment injury, Dr. Dhaduk’s opinion on causal relationship was conclusory
without any additional explanation as to how the conditions caused disability or remained
symptomatic.18
The Board further notes that Dr. Dhaduk’s initial reports leading up to the July 4, 2011
recurrence fail to establish that appellant was disabled as a result of his July 13, 2009 work
injury. Dr. Dhaduk did not provide any opinion that appellant was totally disabled nor did he
recommend light-duty work. In fact, he provided a contrary assertion explaining that appellant
should continue working. Dr. Dhaduk’s subsequent reports also fail to provide support for a
work-related disability. He only generally noted that appellant should try to find light-duty work
and failed to provide any opinion that he sustained a recurrence of disability. Although
Dr. Dhaduk noted that appellant complained of continued pain, an increase in pain alone does

12

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

13

The Board notes that the medical evidence of record establishes that appellant was involved in a nonworkrelated motor vehicle accident on June 14, 2005 when he was riding in a trailer and fell off. In a May 30, 2006
medical report, Dr. Miller reported that an August 2005 MRI scan revealed minimal annular bulge at the L4-5 level.
He diagnosed chronic axial lumbar spine pain following significant trauma and normal appearing x-rays of the
lumbar spine.
14

R.E., Docket No. 14-868 (issued September 24, 2014).

15

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

16

J.H., Docket No. 14-775 (issued July 14, 2014).

17

Willa M. Frazier, 55 ECAB 379 (2004); Jimmy H. Duckett, 52 ECAB 332 (2001).

18

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

8

not constitute objective evidence of disability.19 As his reports contain no rationale explaining
why appellant was disabled beginning July 4, 2011, Dr. Dhaduk’s opinion is insufficient to
support that appellant sustained a worsening of his work-related condition.20
In medical reports dated April 27, 2011 through November 3, 2014, Dr. Oleski
documented treatment for appellant’s cervical and lumbar conditions. In an April 27, 2011
report, she diagnosed cervical and lumbar strain due to a 2009 work-related injury. No work
restrictions were provided. In a May 2, 2011 note, Dr. Oleski excused appellant from work on
that same date due to increased pain. In a May 12 and July 6, 2011 report, she diagnosed
cervical and lumbar strain. Dr. Oleski provided no work restrictions. The Board notes that none
of Dr. Oleski’s reports contemporaneous to the date of disability claimed provide support for
total disability as a result of the July 13, 2009 work injury. Her subsequent reports provided
diagnoses of suspected myofascial pain syndrome and chronic cervical, lumbar, and thoracic
sprain, yet these reports also failed to provide any opinion pertaining to appellant’s disability or
work restrictions. As Dr. Oleski failed to attribute any disability to appellant’s work injury, or
explain how his employment-related condition changed such that he was unable to work, her
reports are insufficient to meet his burden of proof.21
The remaining medical evidence is also insufficient to establish appellant’s claim for
recurrence of disability. Dr. Aslam’s February 24, 2014 second opinion evaluation determined
that appellant was capable of working full duty as related to the July 13, 2009 work injury
because his cervical and lumbosacral radiculitis had resolved with no residuals.
The acupuncture treatment notes dated August 1 through November 8, 2011 were
submitted by a licensed physical therapist. Registered nurses, physical therapists, and physician
assistants are not physicians as defined under FECA, and their opinions are of no probative
value.22
The March 22, 2011 diagnostic reports of record are also insufficient to establish
appellant’s claim as the physician’s interpreted diagnostic imaging studies and provided no
opinion on disability or the cause of appellant’s injury.23 Dr. Berger’s reports dated
November 21, 2011 through April 29, 2014 have no bearing on appellant’s cervical and lumbar
injury as the physician discusses mental health treatment unrelated to this claim. Moreover, the
reports provide no indication of any disability from modified work prior to the expiration of
appellant’s employment contract.

19

See FECA Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6.a(2) (June 2013).

20

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).
21

See K.W., 59 ECAB 271 (2008).

22

5 U.S.C. § 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005).
23

J.P., Docket No. 14-87 (issued March 14, 2014).

9

Dr. Harasym’s April 26, 2011 prescription note stated “light duty only.” He provided no
accompanying report explaining these light-duty restrictions, nor did he determine that appellant
was totally disabled as a result of the July 13, 2009 injury. Dr. Harasym’s progress notes dated
April 15, 2008 through September 13, 2010 are irrelevant to establishing appellant’s claim as
they predate the July 4, 2011 date of disability. Moreover, many of his handwritten reports are
illegible and thus lack probative value.24
On appeal, counsel contends that appellant was working restricted duty at the time of his
July 4, 2011 termination. He notes that, despite not having formally changed his job title, the
employing establishment was accommodating appellant with work restrictions related to his
employment injury at the time of his termination. As such, appellant was entitled to disability
compensation.
The Board finds that because appellant was a temporary employee, he was not entitled to
disability compensation at the time of his termination, irrespective of whether he was performing
modified duty.25 He worked in his position through July 4, 2011 when the term appointment
ended. The Board has held that, when a claimant stops work for reasons unrelated to the
accepted employment injury, there is no disability within the meaning of FECA.26 A recurrence
of disability also does not include work stoppage caused by the termination of a temporary
employment.27 In this case, both the employing establishment and appellant stated that he was a
temporary employee and that his term appointment terminated on July 4, 2011.28 The evidence
of record does not establish that he was off work due to a medical disability.
Appellant did not submit any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, concluded that he was totally disabled on or
after July 4, 2011 due to his accepted July 13, 2009 work injuries. He has failed to establish by
the weight of the reliable, probative, and substantial evidence, a change in the nature and extent
of the injury-related condition resulting in his inability to perform his employment duties on or
after July 4, 2011. As appellant has not submitted sufficient medical evidence showing that he
sustained a recurrence of disability due to his accepted employment injury, the Board finds that
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.

24

See Sheila A. Johnson, 46 ECAB 323, 327 (1994); see Merton J. Sills, 39 ECAB 572, 575 (1988).

25

M.S., Docket No. 11-1184 (issued December 12, 2011).

26

Hubert A. Jones, 57 ECAB 467 (2006); John W. Normand, 39 ECAB 1378 (1988).

27

See D.M., Docket No. 11-194 (issued October 5, 2011). The Board has also noted that an employee generally
will not be considered to have experienced a compensable recurrence of disability as defined in 20 C.F.R. § 10.5(x)
merely because his or her employer has eliminated the employee’s light-duty position in a reduction-in-force or
some other form of downsizing. See 20 C.F.R. § 10.509.
28

E.H., Docket No. 11-1427 (issued May 16, 2012).

10

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on or after July 4, 2011, causally related to his accepted July 13, 2009 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 14, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
NASHVILLE, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1782
Issued: January 27, 2014

Case Submitted on the Record

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

JURISDICTION
On July 24, 2013 appellant filed a timely appeal from a May 30, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied her occupational disease
claim and a June 28, 2013 nonmerit decision denying her reconsideration request. 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her hernia
condition was causally related to factors of her employment; and (2) whether OWCP properly
denied appellant’s June 13, 2013 request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2012 appellant, then a 62-year-old mail carrier, filed an occupational disease
claim alleging that on July 6, 2012 she experienced pain in her stomach and upper thigh after
loading her vehicle. She explained that the pain continued to progress while on her route until
she became nauseated and had to ask for assistance. Appellant stopped work on July 6, 2012 and
retired from federal service effective September 25, 2012.
In a July 7, 2012 computerized tomography (CT) scan report, Dr. Andrew Dyer, a Boardcertified diagnostic radiologist, noted a distal small bowel obstruction with a transition point
located at what was believed to represent a right femoral hernia. He also observed degenerative
disc disease and facet arthropathy at L5-S1. Dr. Dyer diagnosed a distal small bowel obstruction
associated with a right femoral hernia, cholelithiasis and trace free fluid in the abdomen and
pelvis.
In a July 7, 2012 surgical report, Dr. Rodney A. Martin, a Board-certified surgeon, noted
appellant’s diagnosis of strangulated right femoral hernia with small bowel obstruction and
gangrene of a loop of small bowel. He stated that she underwent a small bowel resection with
primary anastomosis and mesh repair of right femoral hernia.
In July 12, 2012 hospital and discharge reports, Dr. Martin related that appellant was
examined for a one-day history of a mass in the right groin associated with severe pain, nausea
and vomiting. Appellant was admitted to the hospital and underwent a small bowel resection and
repair of a right femoral hernia. Dr. Martin reviewed her history and noted that a CT scan of the
abdomen showed a small bowel obstruction with a transition point in a right femoral hernia.
Upon examination of appellant’s abdomen, he observed tenderness and a nonreducible mass in
the crease of the right thigh consistent with a femoral hernia. Dr. Martin diagnosed bronchitis
and strangulated right femoral hernia with a small bowel obstruction and gangrene of the small
bowel. He advised appellant to avoid heavy lifting or strenuous activity.
By letter dated August 9, 2012, OWCP advised appellant that the evidence received was
insufficient to establish her claim. It requested additional evidence to establish that she sustained
a diagnosed medical condition as a result of factors of her employment. In a separate letter,
OWCP requested additional evidence from the employing establishment regarding the accuracy
of appellant’s statements related to her claim and a description of her duties as a mail carrier.
In a July 23, 2012 report, Dr. Martin conducted a postsurgery examination of appellant.
He observed normal bowel sounds and no tenderness in her abdomen. Dr. Martin stated that the
right groin incision was healing well.
In a letter dated September 13, 2012, OWCP requested additional medical evidence from
appellant to establish that her hernia condition was causally related to her employment. It
provided her with an additional 30 days to submit the required evidence.
In a July 7, 2012 report, Dr. Alan C. Taylor, Board-certified in emergency medicine,
related appellant’s complaints of abdominal pain with nausea and vomiting and the forming of a
“knot” in her right groin. He noted that she lifted heavy boxes at work. On examination,

2

Dr. Taylor observed a soft abdomen with no tenderness or distention. He diagnosed distal small
bowel obstruction associated with a right femoral hernia and cholelithiasis.
The employing establishment submitted a description of appellant’s duties as a rural
carrier.
In a November 9, 2012 decision, OWCP denied appellant’s occupational disease claim.
It accepted that she performed the duties of a rural mail carrier and that she was diagnosed with a
hernia. It denied appellant’s claim, finding insufficient medical evidence to establish that her
hernia was causally related to the factors of her employment.
On November 26, 2012 appellant requested a telephone hearing, which was held on
March 15, 2013. She described her duties as a mail carrier and stated that on July 6, 2012 she
experienced stomach pain after she loaded her mail vehicle. Appellant thought that the pain
would go away but it worsened and she requested assistance. When she returned home, she felt
a huge knot where the pain was coming from and decided to go to the emergency room.
Appellant underwent surgery and did not return to work. The hearing representative questioned
why she did not file a traumatic injury claim because she described an injury that occurred
during one work shift. Appellant explained that the employing establishment advised her to file
an occupational disease claim. She noted that she submitted medical information to support her
claim.
In an undated handwritten statement, appellant related that on July 6, 2012 she went to
the emergency room after returning home from work. She was seen by an emergency physician
and underwent surgery.
In a July 10, 2012 pathology report, Dr. Richard E. McLendon, Board-certified in
anatomic and clinical pathology, related appellant’s history of incarcerated right femoral hernia
with associated small bowel obstruction. He diagnosed small bowel and hernia sac, multiple
portions of small intestine, one with luminal dilation, vascular congestion and mucosal necrosis
and fibromembranous tissue consistent with hernia sac.
In a November 30, 2012 note, Dr. Martin stated that on July 7, 2012 he examined
appellant in the emergency room for generalized abdominal pain with nausea and vomiting and a
knot in her right groin. He reported that she underwent a small bowel resection and mesh repair
of the right femoral hernia. Dr. Martin opined that appellant’s injury was work related.
By decision dated May 30, 2013, an OWCP hearing representative affirmed the
November 9, 2012 decision. She found insufficient medical evidence to establish that
appellant’s hernia was causally related to factors of her employment.
On June 13, 2013 appellant submitted a handwritten request for reconsideration. She
submitted a May 13, 2013 SF-50 form, which noted that her last day of pay status was
July 10, 2012. On May 2, 2013 the Office of Personnel Management reported that appellant was
found disabled due to the hernia surgery. Appellant noted that Dr. Martin refused to provide his
detailed opinion as to how heavy lifting caused the hernia and she did not know why.

3

By decision dated June 28, 2013, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was not sufficient to warrant further merit review under
5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence2 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.3 In an occupational disease claim, appellant’s burden requires
submission of 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 condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 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.6
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a hernia with small bowel obstruction as a result of
the duties she performed as a mail carrier. OWCP accepted that her employment duties involved
lifting heavy boxes and loading her mail vehicle. On July 6, 2012 appellant was diagnosed with
a right femoral hernia and small bowel obstruction. OWCP denied her claim finding insufficient
medical evidence to establish that her hernia condition was causally related to factors of her
employment.
Appellant submitted hospital and surgical records from Dr. Martin. She was seen in the
emergency room on July 7, 2012 for complaints of a one-day history of a mass in the right groin
associated with severe pain, nausea and vomiting. A CT scan of the abdomen revealed a small
bowel obstruction. Dr. Martin diagnosed bronchitis and a strangulated right femoral hernia with
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

3

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

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

6

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

4

small bowel obstruction. He stated that appellant underwent a small bowel resection with mesh
repair of right femoral hernia that day. In a November 30, 2012 note, Dr. Martin stated that her
injury was work related. Although he provided a medical diagnosis and an opinion on causal
relationship, the Board notes that he did not provide any medical explanation as to how
appellant’s duties as a mail carrier caused or contributed to her hernia condition or small bowel
obstruction. The Board has held that a medical report is of limited probative value on the issue
of causal relationship if it contains a conclusion regarding causal relationship which is
unsupported by medical rationale.7 Although Dr. Martin generally concluded that appellant’s
condition was work related, he did not describe any specific employment factors or address how
her duties as a mail carrier resulted in her diagnosed condition or the need for surgery.
Rationalized medical opinion evidence must relate specific employment factors identified by the
claimant to the claimant’s condition with stated reasons by a physician.8 The Board finds that
Dr. Martin’s reports are insufficient to establish appellant’s claim.
The additional medical evidence by Drs. Dyer, Taylor and McLendon is also insufficient
to establish causal relationship. In July 7 and 10, 2012 reports, the physicians provided findings
on examination and diagnosed small bowel obstruction associated with a right femoral hernia.
Dr. Taylor noted that appellant related that she was lifting heavy boxes at work. None of the
physicians, however, provided any opinion on the cause of her hernia or explained how her mail
carrier duties contributed to her condition. The Board has found that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.9 The reports, therefore, are insufficient to establish
appellant’s claim.
On appeal, appellant contends that she submitted sufficient medical evidence to establish
her claim. As noted, however, the Board finds that the medical evidence of record does not
provided a rationalized medical opinion addressing how her work duties as a mail carrier caused
or contributed to her hernia condition. Appellant did not meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.10 OWCP’s regulations provide that OWCP may

7

S.E., Docket No. 08-2214 (issued May 6, 2009); T.M., Docket No. 08-975 (issued February 6, 2009).

8

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

9

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

10

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).

5

review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise her right through a request to the district Office.11
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.12
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.13 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.14 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; she has not advanced a relevant legal argument nor previously
considered by OWCP; and she has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decision dated May 30, 2013, an OWCP hearing representative affirmed the
November 9, 2012 decision finding insufficient medical evidence to establish that appellant’s
hernia was causally related to factors of her employment. In a handwritten statement dated
June 13, 2013, appellant requested reconsideration. She submitted personnel documents
addressing her heavy rural route, that she stopped work on July 10, 2012 and was subsequently
retired due to disability arising from her hernia. The Board notes that these documents are not
relevant to appellant’s occupational disease claim. The underlying issue in this case was whether
her hernia condition was causally related to her employment duties. That is a medical issue
which must be addressed by probative medical evidence.16 Appellant’s statement and the
personnel records are not medical evidence. Accordingly, they are not relevant or pertinent to

11

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
12

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
13

Id. at § 10.607(a).

14

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

15

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

16

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

the underlying issue in this case and are not sufficient to require OWCP to reopen her claim for
consideration of the merits.17
Appellant did not submit any evidence along with her request for reconsideration to show
that OWCP erroneously applied or interpreted a specific point of law or advances a relevant legal
argument not previously considered by OWCP. Because she did not meet any of the necessary
requirements, she is not entitled to further merit review. The Board finds, therefore, that OWCP
properly refused to reopen appellant’s case for further consideration of the merits of her claim
under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
stomach condition was causally related to factors of her employment. The Board also finds that
OWCP properly denied her request for reconsideration under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 28 and May 30, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 27, 2014
Washington, DC

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

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

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

17

See James W. Scott, 55 ECAB 606 (2004).

7


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

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

Docket No. 17-1997
Issued: July 27, 2018

Case Submitted on the Record

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

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from a March 27, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1

A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). In
this case, the 180-day period for the March 27, 2017 decision expired on Saturday, September 23, 2017. If the last
day to file an appeal is on a Saturday, Sunday, or Federal holiday, the 180-day period runs until the close of the next
business day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on Monday, September 25,
2017, is therefore timely.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its March 27, 2017 decision.
The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time of its
final decision. Therefore, the Board is precluded from reviewing this additional evidence for the first time on
appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36
n.2 (1952).

ISSUE
The issue is whether appellant met her burden of proof to establish that she developed a
bilateral shoulder condition in the performance of duty, as alleged.
FACTUAL HISTORY
On February 1, 2017 appellant, then a 54-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that her arms pulled out of joint while she was loading a cart
while in the performance of duty, causing her to drop items on February 4, 2016. She first
became aware of her claimed condition and of its relationship to her federal employment on
February 4, 2016. Appellant notified her supervisor on February 1, 2017. On the reverse side of
the claim form, her supervisor indicated that appellant’s injury existed prior to
February 4, 2016.4 Appellant reported that she was unable to lift her arms after that day and that
a magnetic resonance imaging (MRI) scan revealed rotator cuff arthritis and excessive use in the
shoulder. She noted that her left shoulder was aggravated from overuse as a result of over
compensating following a previous work-related right arm injury.
By development letter dated February 14, 2017, OWCP notified appellant that the
evidence of record was insufficient to support her claim. It noted that it was unclear as to
whether she was claiming a traumatic injury or an occupational disease. OWCP advised
appellant of the medical and factual evidence needed and provided a questionnaire for her
completion. The questionnaire advised her to describe in detail the employment-related
activities which she believed contributed to her condition, how often she performed the activities
described, for how long on each occasion, and all activities and hobbies outside of her federal
employment. It also requested that she specify whether she was claiming an occupational
disease or traumatic injury based on the definitions provided. Appellant was afforded 30 days to
submit the requested evidence.
In a March 1, 2017 narrative statement, appellant reported that she was claiming both a
traumatic injury and occupational disease claim for her bilateral shoulder conditions. She noted
that her conditions stemmed from an April 30, 2014 injury to her right shoulder, which caused
her to overuse her left arm, shoulder, and neck to compensate for her right shoulder. Appellant
stated that, after she was cleared to return to work, her right shoulder and hand caused her to
drop items and multiple times she would try to catch these items from falling which would cause
sudden jerky motions to both shoulders with pain and numbness. She reported that on her last
days of work at the employing establishment on February 2, 2016, there were bundles and
parcels which had shifted on her work cart. Appellant tried to grab the items from falling and
felt like her arms were “pulled off from her shoulders,” causing her to scream. She explained
that she had previously been diagnosed with thoracic outlet syndrome caused by the April 30,
2014 injury. Appellant was scheduled to undergo surgery on February 15, 2016, but it was
cancelled because the paperwork had not been approved. She reported that her condition
worsened and on February 24, 2016, her physician informed her that she needed a right shoulder
titanium replacement. Appellant stated that she did not have any shoulder, neck, or nerve
4
The record reflects that appellant has prior traumatic injury claims with dates of injury ranging from January 1,
2012 through April 30, 2014.

2

problems prior to the April 30, 2014 injury. She noted that her last day of work was on
February 4, 2016 the day when her shoulders were sharply jerked while she was catching the
tubs and parcels from falling off the work cart.
Appellant also submitted a response to OWCP’s questionnaire dated March 1, 2017 and
described her employment-related activities which she believed caused her condition. She
reported repetitive movement of sorting mail, overreaching for bundles, heavy lifting, extending
out arms with weight, and jerking open mailboxes. Appellant reported that for two hours in the
morning she would sort mail and parcels and pull down mail. She would case mail for an hour
and spend up to 45 minutes with outgoing mail and parcels. No further evidence was received.
By decision dated March 27, 2017, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that the “injury or event” occurred as alleged. It noted that
the facts of the injury suggested a traumatic injury occurring in a single incident or a single work
shift per her statement “arm pulled out loading cart” on February 4, 2016. However, appellant’s
response to OWCP’s development letter noted a February 2, 2016 date of injury, creating a
discrepancy regarding whether the injury occurred on February 2 or 4, 2016. As such, OWCP
reported that it was unable to make a finding of injury occurring as alleged. It advised appellant
to file a Form CA-1 if she was alleging a traumatic injury claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.7
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.8 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.

5

Supra note 2.

6

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

7

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

8

Elaine Pendleton, supra note 6.

3

ANALYSIS
The Board finds that this case is not in posture for decision.9
In this case, appellant filed an occupational disease claim (Form CA-2) alleging that she
developed bilateral arm and shoulder conditions. In a March 1, 2017 narrative statement, she
reported that she was claiming both a traumatic injury and occupational disease claim for her
bilateral shoulder conditions. Appellant noted that her conditions stemmed from an April 30,
2014 right shoulder employment injury, and thereafter from overusing her left arm, shoulder, and
neck to compensate for her right shoulder injury. She stated that, after she was cleared to return
to work, her right shoulder and hand caused her to drop items and multiple times she would try
to catch these items from falling which would cause sudden jerky motions to both shoulders with
pain and numbness. Appellant reported that her last day of work at the employing establishment
was February 2, 2016, when bundles and parcels had shifted on her work cart. She tried to grab
the items from falling and it felt like her arms were pulled off from her shoulders, causing her to
scream. Appellant noted that her last day of work was on February 4, 2016 when her shoulders
were sharply jerked while she was catching the tubs and parcels from falling off the work cart.
On March 1, 2017 appellant also responded to OWCP’s questionnaire and described the
employment-related activities which she believed caused her condition and the amount of time
spent on each activity. She reported repetitive movement of sorting mail, overreaching for
bundles, heavy lifting, extending out arms with weight, jerking open mailboxes.
The March 27, 2017 OWCP decision found that appellant failed to establish fact of
injury. It noted that her allegations suggested a traumatic injury, but there was a discrepancy
regarding whether the injury occurred on February 2 or 4, 2016. As such, OWCP concluded that
it was unable to make a finding of injury and advised appellant to file a Form CA-1 if she wished
to claim a traumatic injury. OWCP generally stated that it was unable to make a finding of an
injury occurring as alleged.
The Board finds that the discrepancies found in OWCP’s March 27, 2017 decision with
regard to the purported date of injury is more in keeping with a traumatic injury, which is a
condition of the body caused by a single event or incident or series of events or incidents
occurring within a single workday or work shift,10 versus an occupational disease or illness
produced by the work environment over a period longer than a single workday or shift.11
Furthermore, although OWCP noted in its decision that the factual evidence submitted by
appellant suggested a traumatic injury, it also advised appellant to complete a Form CA-1 claim
for a traumatic injury. As such, OWCP has intermingled a traumatic injury claim with an
occupational disease claim and, thus, did not discharge its burden to make findings as to whether
appellant sustained an occupational disease or a traumatic injury in the performance of duty.12
9

G.S., Docket No. 16-0908 (issued October 26, 2017).

10

20 C.F.R. § 10.5(ee).

11

Id. at § 10.5(q).

12

See 20 C.F.R. § 10.126.

4

The Board finds, therefore, that the basis for the denial of appellant’s claim remains unclear and
is not in keeping with 20 C.F.R. § 10.126.13 As fact of injury is a material point in a
compensation case and, because of its materiality, OWCP must clearly state whether fact of
injury is accepted and, if fact of injury is not accepted, OWCP must clearly specify the basis for
denial.14
Therefore, the case shall be remanded to OWCP for any necessary further development,
to be followed by a de novo decision which shall include findings of fact and a clear and precise
basis for denial of appellant’s claim as required by statute,15 regulation,16 OWCP’s procedures,17
and prior Board precedent18 regarding whether appellant sustained an occupational disease or a
traumatic injury in the performance of duty.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

A final decision of OWCP must contain findings of fact and a statement of reasons.

14

Elaine Pendleton, supra note 6.

See 5 U.S.C. § 8124(a), which provides: “OWCP shall determine and make a finding of fact and make an
award for or against payment of compensation.”
15

16

20 C.F.R. § 10.126.

17
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowance, Chapter 2.1400.5(e) (February 2013),
which provides in pertinent part: “The [claims examiner’s] evaluation of the evidence should be clear and detailed
so that the reader understands the reason for the disallowance of the benefit and the evidence necessary to overcome
the defect of the claim.”
18
See e.g., Elaine Pendleton, supra note 6; see also A.C., Docket No. 17-1927 (issued April 12, 2018); James D.
Boller, Jr., 12 ECAB 45, 46 (1960).

5

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion.
Issued: July 27, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oberlin, OH, Employer
__________________________________________

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

Docket No. 07-110
Issued: April 20, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2006 appellant filed a timely appeal from a decision of an Office of
Workers’ Compensation Programs’ hearing representative dated August 21, 2006. Under
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 an emotional condition causally related to
factors of his employment.
FACTUAL HISTORY
Appellant, a 45-year-old air traffic control specialist, filed a Form CA-1 claim for
benefits based on an emotional condition on June 21, 2004. He alleged that this condition was
caused by two factors of his employment: (a) his being notified that an aircraft he had been
directing had crashed; and (b) during a June 15, 2004 investigative interview conducted by the

National Transportation Safety Board [NTSB], one of the investigators made comments of an
accusatory nature which caused him to develop extreme stress and anxiety.
In a report dated June 21, 2004, Dr. Daniel Allan, Board-certified in family practice,
related that appellant stated that he had been accused of multiple improprieties during the
June 15, 2004 investigative interview. He stated that the May 31, 2004 crash and subsequent
interview caused appellant to have significant stress, insomnia, panic-type reactions and
sweating while trying to sleep. Dr. Allan diagnosed acute stress reaction and anxiety with
insomnia, in addition to hypertension probably related to acute stress. He asked appellant to
return in two weeks for a follow-up on his stress-related conditions.
In a letter to the Office dated July 21, 2004, Gary M. Klingler, air traffic manager,
Cleveland, stated:
“This letter is to confirm that appellant was required to participate in the
investigation conducted by the [NTSB] on June 15, 2004. Standards of [c]onduct
regulations clearly state, ‘No employee may refuse to testify or provide
information pertinent to matters under investigation or inquiry.’
This
investigation would be considered ‘in the performance of his duty.’”
In an email dated June 21, 2004, Dan Sutton, appellant’s union vice-president, indicated
that he had been present during the June 15, 2004 investigative interview. He stated:
“As with any fatal accident [appellant] was upset that it had occurred and was not
sleeping well. He had called in sick due to lack of sleep the day after the
accident. The investigation went very well up until the very end. At the end of
the interview a statement by Scott Dunham, the NTSB investigator, in my opinion
was extremely inappropriate. His statement was something along the lines of ‘the
aircraft crashed 10 miles outside of your airspace in weather that was visible on
your scope and you did nothing, how did you know that you did [not] turn him
into weather?’ This was stated more as an accusation than as a question. I was
flabbergasted by the statement as was [appellant]. I advised Steve Dunn, Federal
Aviation Administration Legal and [another management official], that I felt a
statement like that was inappropriate and should not have occurred.
As a result of this [appellant] has been on sick leave since the interview occurred.
I spoke with [him] today and it appears he [is] now going to have his medical
pulled. [Appellant] had returned to work and although he was upset by the
accident as anyone would be, he was coping with it fine. After the interview he
returned to Area 1 visibly shaken and was advised not to work by his supervisor,
even though the area was short staffed. This was uncalled for and totally
avoidable. As a controller I believe that [appellant] did everything appropriately
and worked hard coordinating the entire time the aircraft was on his frequency to
insure that the aircraft could deviate as needed.”
In a statement dated July 29, 2004, appellant indicated that he understood the NTSB
investigative interview conducted on June 15, 2004 was standard procedure following airplane

2

crashes. He asserted that he was prepared for the questioning because he believed he had done
nothing to contribute to the crash. Appellant stated:
“While most of the interview was professional and investigative it became quite
different toward the end. The questioning became speculative and accusatory. I
was asked several times things like, ‘what do you think the pilot is thinking when
he is flying into weather’ and ‘how do you know you didn’t turn the aircraft into
the weather that caused the crash.’ These comments struck at the heart of what I
have been doing for almost twenty years and that is to provide safe and
professional service to the aircraft that fly in my airspace. These comments were
quite unnerving and very hurtful. Dan has since written a letter to the facility
manager saying he was ‘flabbergasted’ by the statement. I left the meeting quite
upset and disturbed. When I went back to my work area my supervisor, Randy
Phillips could see that I was visibly shaken and allowed me to take as much time
as I needed to try and gather myself. I did return and finish my shift feeling quite
unsure of myself. The next two days I took sick leave.”
Appellant related that he could not stop thinking about the May 31, 2004 plane
crash and June 15, 2004 investigative interview while doing yard work at home. He
stated that he began gasping for energy, sweating profusely and feeling constricted in his
upper torso. Appellant also experienced tightness in his shoulder, difficulty sleeping for
several nights and difficulty concentrating. He related that Dr. Allan diagnosed a stressrelated condition. Lastly, appellant requested 12 days of continuation of pay for the
period June 16 to July 1, 2004, when he missed work.
By letter dated August 12, 2004, the Office advised appellant that it had accepted two
factors of employment, the May 31, 2004 plane crash and June 15, 2004 investigative interview.
The Office stated, however, that the medical evidence appellant had submitted was not sufficient
to establish that he had sustained his emotional condition in the performance of duty, as
Dr. Allan was not a psychologist or psychiatrist. The Office, therefore, informed appellant that it
was referring him for a second opinion examination with a licensed psychologist or psychiatrist.
The Office scheduled appellant for an examination with Dr. Michael A. Murphy, Ph.D, in
psychology. In a report dated September 24, 2004, Dr. Murphy found no evidence of cognitive
dysfunction due to psychoses, head injury or organicity. He stated that appellant showed no
obsessions, phobias or ideas of reference, delusions, hallucinations or paranoid ideations.
Dr. Murphy found that appellant’s decision making, flexibility and social perceptions were intact
and estimated to be within normal limits. He stated:
“Affectively, [appellant] denies a depressed mood. Depressive cognition is not
present. [Appellant] denies crying spells. [He] has not attempted suicide and
denies any suicidal ideation, plan or intent. [Appellant] reports symptoms of
anxiety.... [He] denies anxiety attacks when returning to work. Motoric signs of
anxiety are absent. Symptoms of post-traumatic stress and acute stress are absent.
[Appellant] denies symptoms of impulse control disorder and denies antisocial
behavior.”

3

Dr. Murphy noted that appellant was able to care for his basic needs and drive
independently and was reporting no manic symptoms and few, if any, symptoms of anxiety or
clinical symptoms associated with depression.
By decision dated December 17, 2004, the Office denied appellant’s claim on the basis
that the medical evidence of record did not establish that his claimed emotional condition was
causally related to the accepted employment factors.
On December 19, 2004 appellant requested an oral hearing.
By decision dated July 14, 2005, an Office hearing representative set aside the
December 17, 2004 decision finding that the record was incomplete because page six of
Dr. Murphy’s report was not included in the case file. The hearing representative found that
Dr. Murphy’s answers to two of the three questions posed by the Office claims examiner which
pertained to the issues of whether appellant did in fact have the diagnosed conditions, whether
these conditions were causally related to the accepted employment factors and whether these
conditions would have resulted in total disability were contained in the missing page. The
hearing representative, therefore, remanded for the district Office to obtain the missing page and
include it with Dr. Murphy’s report.
On remand, the district Office obtained and reviewed page six of Dr. Murphy’s report
which indicated that the condition of “stress” was not a DSM-IV diagnosable condition and,
therefore, not related to the two compensable events. Dr. Murphy found no evidence that
appellant had acute stress reaction or generalized anxiety disorder, as found by Dr. Allen. He
opined that generalized anxiety disorder required a period of at least six months duration when
anxiety or persistent worry are present, since appellant’s symptoms abated in approximately two
weeks. Dr. Murphy also found no evidence that the alleged conditions resulted in any periods of
total disability.
By decision dated October 26, 2005, the Office denied appellant’s claim on the basis that
the medical evidence of record did not establish that he did not have any diagnosed emotional
condition causally related to the accepted employment factors.
On November 23, 2005 appellant requested an oral hearing which was held on
April 25, 2006.
Subsequent to the hearing, appellant submitted a January 8, 2006 report from Dr. Dennis
Savinsky, a specialist in psychiatry, who treated appellant after he was admitted to the
emergency room following a suicide attempt. Dr. Savinsky stated that appellant described a
three-year period of depression; he noted that his job as an air traffic controller was stressful and
that his involvement in an investigation of a crash two years earlier had been very traumatic for
him. He advised that appellant felt stressed, less active and more irritable. Dr. Savinsky
diagnosed major depressive disorder, single episode, with suicide precaution.
By decision dated August 21, 2006, an Office hearing representative affirmed the
October 26, 2005 decision.

4

LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition, and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.1
The first issue to be addressed is whether appellant has cited factors of employment that
contributed to his alleged emotional condition or disability. Where the disability results from an
emotional reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.2 Appellant’s burden of proof is
not discharged by the fact that he has established employment factors which may give rise to a
compensable disability under the Act. To establish his occupational disease claim for an emotional
condition, appellant must also submit rationalized medical evidence establishing that he has an
emotional or psychiatric disorder and that such disorder is causally related to the accepted
compensable employment factor.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; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
In the present case, the Office has accepted two compensable factors of employment.
There is a conflict in the medical evidence between Dr. Allan, appellant’s treating physician, and
Dr. Murphy, the Office referral physician, regarding whether appellant sustained any disability
1

See Debbie J. Hobbs, 43 ECAB 135 (1991).

2

Lillian Cutler, 28 ECAB 125 (1976).

3

See William P. George, 43 ECAB 1159, 1168 (1992).

4

Id.

5

causally related to the two compensable factors of employment accepted by the Office; i.e., the
May 31, 2004 plane crash and the June 15, 2004 investigative interview. Dr. Allan stated that
the May 31, 2004 crash and subsequent interview caused appellant to have significant stress,
insomnia, panic-type reactions and sweating while trying to sleep. He diagnosed acute stress
reaction and anxiety with insomnia, in addition to hypertension probably related to acute stress.
Dr. Allan asked appellant to return in two weeks for a follow-up examination for his stressrelated conditions. In contrast, Dr. Murphy found in his September 24, 2004 report that appellant
did not have a condition of “stress” because it was not a DSM-IV diagnosable condition and,
therefore, was unrelated to the two compensable events. He also found that there was no
evidence that appellant had acute stress reaction or generalized anxiety disorder. Dr. Murphy
opined that generalized anxiety disorder required a period of at least six months duration when
anxiety or persistent worry are present, since appellant’s symptoms abated in approximately two
weeks. He also found no evidence of total disability due to the alleged conditions.
When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the Office to
appoint a third or “referee” physician, also known as an “impartial medical examiner.”5
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.
On remand, the Office should instruct the referee medical examiner to provide a wellrationalized opinion and determine whether appellant’s May 31 and June 15, 2004 incidents were
causative factors to his diagnosed emotional conditions.6 After such development as it deems
necessary, the Office shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision with regard to whether
appellant sustained an emotional condition causally related to factors of his employment. After
such development as it deems necessary, the Office shall issue a de novo decision.

5

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part, “[i]f there is a
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” See Dallas E. Mopps,
44 ECAB 454 (1993).
6

See William P. George, 43 ECAB 1159, 1168 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2006 decision is set aside and the
case is remanded to the Office for further action consistent with this decision of the Board.
Issued: April 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7