United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
EMERGENCY PREPAREDNESS &
RESPONSE, Alexandria, VA, Employer
__________________________________________

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

Docket No. 07-687
Issued: June 15, 2007

Case Submitted on the Record

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

JURISDICTION
On January 16, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated October 10, 2006 finding that he had not
established an injury on June 2, 2006 causally related to his federal employment. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an inguinal hernia in the performance of duty.
FACTUAL HISTORY
On June 5, 2006 appellant, then a 61-year-old program specialist mapping, filed a
traumatic injury claim alleging that on June 2, 2006 “he picked up a box of maps and felt
something give in the groin area right side.” He also indicated that he pushed a box with the
inside of his foot and felt something pop.

Dr. Timothy K. Bowers, Jr., a Board-certified surgeon, indicated that appellant was
totally disabled beginning on June 14, 2006. He stated that appellant would undergo surgery on
June 20, 2006. Dr. Bowers performed a laparoscopic repair of a right inguinal hernia to treat a
recurrent right inguinal hernia on June 20, 2006.
In a letter dated August 28, 2006, the Office informed appellant that additional
information was required to establish that he sustained an injury in the performance of duty.1
The Office requested a detailed medical report explaining how appellant’s employment incidents
resulted in the diagnosed condition. The Office allowed appellant 30 days to submit the
requested information. He did not respond.
By decision dated October 10, 2006, the Office denied appellant’s claim finding that he
failed to submit the necessary medical opinion evidence to establish a causal relationship
between his diagnosed condition of recurrent inguinal hernia and the employment incidents on
June 2, 2006.2
LEGAL PRECEDENT
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred. The second
component is whether the employment incident caused a personal injury. Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.3 This medical opinion must be based upon a complete factual and medical background
with an accurate history of appellant’s employment injury. The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested and the medical rationale expressed in support of the physician’s opinion.4
ANALYSIS
Appellant filed a claim for an inguinal hernia and surgical repair as a result of his
accepted employment incident on June 2, 2006. The Office accepted that the employment
incidents occurred as alleged, but denied appellant’s claim finding that he failed to submit
sufficient medical evidence to establish a causal relationship between his diagnosed condition
1

The Office’s August 28, 2006 letter stated that appellant had submitted a report dated November 4, 2004 from
Dr. Stephen Wills. This report is not contained in the record. On appeal appellant asserts that he did not submit this
report. Therefore, the Board will find that the Office inadvertently included this statement in the August 28, 2006
letter and that this inclusion was harmless error.
2

Following the Office’s October 10, 2006 decision, appellant submitted additional new evidence with his appeal
to the Board. As the Office did not consider this evidence in reaching a final decision, the Board may not review the
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).
3

Steven S. Saleh, 55 ECAB 169, 172 (2003).

4

James Mack, 43 ECAB 321, 328-29 (1991).

2

and resulting surgery and his accepted employment incidents. The only medical evidence in the
record consists of reports from Dr. Bowers, a Board-certified surgeon, dated June 14
and 20, 2006. Dr. Bowers indicated that appellant was totally disabled and performed a
laparoscopic repair of a right inguinal hernia. He did not mention appellant’s history of
employment injury on June 2, 2006 and did not offer any medical opinion regarding the
relationship between appellant’s employment and his diagnosed conditions. Dr. Bowers did not
provide medical opinion addressing the causal relationship between appellant’s employment
incidents on June 2, 2006 and his diagnosed right inguinal hernia. His reports are not sufficient
to meet appellant’s burden of proof.
CONCLUSION
The Board finds that appellant failed to submit the necessary medical opinion evidence to
establish a causal relationship between his diagnosed condition and his employment incidents.
The Office properly denied appellant’s claim.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.Z., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Harrisburg, PA, Employer
__________________________________________

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

Docket No. 20-0191
Issued: July 31, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 1, 2019 appellant, through counsel, filed a timely appeal from a
September 13, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that,following the September 13, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant met his burden of proof to establish that his right shoulder
conditions were causally related to the accepted March 6, 2019 employment incident.
FACTUAL HISTORY
On March 13, 2019 appellant, then a 63-year-old truck driver, filed a traumatic injury claim
(Form CA-1)4 alleging that on March 6, 2019 he pulled a muscle in his right shoulder when pulling
a loading plate while in the performance of duty. He did not stop work.
In a development letter dated March 25, 2019, OWCP informed appellant that additional
factual and medical evidence was necessary to establish his claim. It advised that he should submit
a medical report from a physician, which explained with medical rationale how the reported work
incident caused a diagnosed medical condition and also provided a questionnaire for completion.
OWCP granted him 30 days to submit the requested evidence.
In a letter dated April 10, 2019, Cory Bauer, a doctor of physical therapy, noted that
appellant was seen that day for a right shoulder injury. He explained that the injury limited
appellant from reaching the top of the steering wheel on the truck he drove at work.
By decision dated April 29, 2019, OWCP denied appellant’s claim, finding that he had not
established that the claimed March 6, 2019 employment incident occurred, as alleged. It noted
that he had not returned the factual questionnaire. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
Subsequent to the April 29, 2019 decision, OWCP received additional evidence.
In a March 21, 2019 report, Jennifer L. Kesterson, a certified registered nurse practitioner,
noted that appellant had been seen for right shoulder pain since March 19, 2019, when he picked
up a loading plate to put into a truck at work. She related his physical examination findings,
diagnosed acute right shoulder pain due to trauma, and referred him for physical therapy.
An x-ray report of appellant’s right shoulder dated March 21, 2019 was interpreted by
Dr. Benjamin Y. Lee, a physician specializing in internal medicine, as revealing right
glenohumeral osteoarthritis.
OWCP also received physical therapy notes covering the period March 27 to April 12,
2019, which noted a March 6, 2019 injury date and diagnoses of right shoulder pain and other
chronic pain.
In an April 25, 2019 report, Ms. Kesterson noted that appellant was seen for decreased
right shoulder range of motion and pain. Appellant attributed his right shoulder condition to a
work injury. Examination findings were unchanged from the March 21, 2019 report.
Ms. Kesterson diagnosed acute right shoulder pain.

4

The Board notes that the Form CA-1 transposed his first and middle names.

2

On May 9, 2019 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
In a letter dated August 12, 2019, the employing establishment controverted the claim,
asserting that appellant had not established an employment-related injury.
A July 23, 2019 after visit summary noted that appellant had been seen that day by
Dr. Eric M. Kutz, a Board-certified orthopedic surgeon, who addressed issues of traumatic
incomplete right shoulder rotator cuff tear, right shoulder impingement syndrome, right shoulder
degenerative glenoid labrum tear, loose shoulder joint body, and primary shoulder osteoarthritis.
Patient instructions included scheduling of right shoulder surgery.
By decision dated September 13, 2019, an OWCP hearing representative in effect affirmed
the April 29, 2019 decision denying appellant’s claim, as modified. The hearing representative
concluded that appellant had not established the medical component of fact of injury as Dr. Kutz
had not causally related appellant’s diagnosed right shoulder conditions to the March 6, 2019
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,6 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.9 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 allegedly
occurred.10 The second component is whether the employment incident caused a personal injury.11

5

Supra note 3.

6
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59 ECAB 388, 393-94 (2008).

10

L.T., Docket No. 18-1603 (issued February 21, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

11

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

3

Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident.12
Neither the mere fact that, a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
ANALYSIS
The Board finds that appellant has not established that his right shoulder conditions were
causally related to the accepted March 6, 2019 employment incident.
OWCP received a July 23, 2019 after-visit summary from Dr. Kutz. While this summary
provided diagnoses of appellant’s right shoulder conditions, it did not provide an opinion on the
issue of causal relationship. The Board has held that medical evidence that does not include an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.14 As such, this report is insufficient to establish appellant’s claim.
The record also establishes that on March 21, 2019 Dr. Lee interpreted an x-ray of
appellant’s right shoulder and found evidence of right glenohumeral osteoarthritis. However, the
Board has held that diagnostic studies standing alone lack probative value as they do not address
whether the employment incident caused any of the diagnosed conditions.15
Appellant also submitted reports authored by a nurse practitioner and several physical
therapists. The Board has held that medical reports signed solely by nurse practitioners or physical
therapists are of no probative value as such health care providers are not considered “physician[s]”
as defined under FECA and are, therefore, not competent to provide medical opinions.16
Consequently, this evidence is also insufficient to establish appellant’s claim.
The Board finds that there is no rationalized medical evidence of record establishing that
appellant’s right shoulder conditions were causally related to the accepted March 6, 2019
employment incident. Thus, appellant has not met his burden of proof to establish his claim.

12

S.S., Docket No. 18-1488 (issued March 11 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

D.S., Docket No. 19-1641 (issued July 16, 2020).

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

N.B., Docket No. 19-0221 (issued July 15, 2019).

16

5 U.S.C. § 8102(2) of FECA provides as follows: (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 S.S., Docket No. 19-1803 (issued April 1, 2020); S.J., Docket No. 19-0489 (issued January 13,
2020); H.K., Docket No. 19-0429 (issued September 18, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA). 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

4

On appeal counsel argues that OWCP’s decision was contrary to law and fact. As
explained above, however, the medical evidence of record does not contain a rationalized medical
evidence establishing causal relationship. Accordingly, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his right
shoulder conditions were causally related to the accepted March 6, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 31, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Pembroke Pines, FL, Employer
__________________________________________

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

Docket No. 14-1243
Issued: October 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 6, 2014 appellant filed a timely appeal from a December 13, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his low back
condition is causally related to factors of his employment.
FACTUAL HISTORY
On August 8, 2013 appellant, then a 45-year-old customs and border patrol supervisor,
filed a traumatic injury claim alleging that on July 18, 2013 he felt sharp back pain when, while
1

5 U.S.C. § 8101 et seq.

sitting at his desk, he made a sudden move to answer the door. He indicated that the injury was
to his lumbar discs and that he had nerve inflammation. Appellant did not stop work.
Appellant submitted emergency room records that included a July 19, 2013 report from
Dr. Jessica Quinones-De Echegaray, Board-certified in emergency medicine, diagnosing back
sprain. In another July 19, 2013 report, Dr. Quinones-De Echegaray noted that appellant began
experiencing severe back pain while performing his regular duties at work, which was described
as a desk job. She also noted that appellant had a preexisting L4-L5 disc problem prior to this
incident. On July 19, 2013 Dr. Orlando Enrizo, Board-certified in radiology, conducted a
computerized tomography (CT) scan which revealed mild degenerative disease of the lumbar
spine. Appellant was found to have broad-based disc bulge, bilateral facet hypertrophy and
hypertrophy of the ligamentum flavum in the L4-L5 level. Dr. Enrizo also advised that the CT
scan revealed a broad-based disc bulge in the L5-S1 level.
In a July 23, 2013 report, Dr. Keith Gould, an osteopath specializing in emergency
medicine, diagnosed acute low back pain and bulging disc of backbone. In a July 29, 2013
report, Dr. Dionne Casthely, a Board-certified physiatrist, diagnosed lumbar facet joint pain and
referred appellant to pain management. August 1, 2013 treatment notes signed by Dr. Moises
Lustgarten, Board-certified in anesthesiology and pain medicine, indicated that appellant
underwent a procedure to reduce pain, as referred by Dr. Casthely.
In a November 5, 2013 letter, OWCP advised appellant of the type of medical evidence
needed to establish the claim. In particular, it noted that a physician’s opinion supported by
medical explanation was needed to support that a work incident caused or aggravated his claimed
injury. Appellant was advised that he had 30 days to submit additional medical evidence.
In response, appellant submitted a July 24, 2013 report where Dr. Casthely noted that the
onset of pain was sudden and without injury and that it occurred as appellant got up from his
desk chair. Dr. Casthely stated that appellant was an officer who wore a 15-pound belt around
his waist at all times. She reported his CT scan results and advised that he had “an episode” five
years earlier, which was treated with three injections. Lumbar examination was positive for
severe spasm, midline tenderness and pain in the sacroiliac joint. Straight-leg raising produced
back pain only. There was no neurological deficit. Dr. Casthely diagnosed acute lumbago.
By decision dated December 13, 2013, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that he sustained an injury or medical condition that
was causally related to the accepted work event.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

2

establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.4
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.5
ANALYSIS
Appellant claimed that he sustained a low back injury on July 18, 2013 when, while
sitting at his desk, he made a sudden move to answer the door in his office. The evidence of
record supports that the claimed incident occurred. Therefore, the Board finds that the first
component of fact of injury is established. However, the medical evidence of record is
insufficient to establish that the employment incident on July 18, 2013 caused a back injury.
In her July 19, 2013 emergency treatment reports, Dr. Quinones-De Echegaray diagnosed
back sprain and mild degenerative disease of the lumbar spine. She noted that the injury
occurred as appellant stood from his desk chair while performing his regular duties at work.
However, Dr. Quinones-De Echegaray appears to merely state the history as reported to her by
appellant. To the extent that this represents her own opinion on causal relationship, she did not
explain how this employment incident caused or contributed to his diagnosed condition.6
Furthermore, the Board has found that the mere fact that a condition manifests itself or is
worsened during employment period does not raise an inference of causal relationship between
the two.7 Consequently, these reports are insufficient to discharge appellant’s burden of proof.
In her July 24, 2013 report, Dr. Casthely diagnosed acute lumbago. She noted that the
onset of pain was sudden and without injury and that it occurred as appellant got up from his
desk chair. Dr. Casthely also noted that he wore a 15-pound belt around his waist at all times for
work. Although she describes the circumstances surrounding the onset of appellant’s back pain,
she does not state a clear opinion as to the causal relationship between the injury and the workrelated tasks of his employment. The statement noting that appellant wears a 15-pound belt does
not in itself explain how the injury is related to factors of his employment. Dr. Casthely’s
July 29, 2013 report did not address the history of injury or causal relationship. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.8
4

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

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

6

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

7

Patricia Bolleter, 40 ECAB 373 (1988).

8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship).

3

Similarly, other medical evidence, including reports by Drs. Gould and Lustgarten, are
insufficient to establish the claim as this evidence does not specifically address whether the
July 18, 2013 work incident caused or aggravated a diagnosed medical condition.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury
caused by a work-related event.
ORDER
IT IS HEREBY ORDERED that the December 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, New Orleans, LA,
Employer
__________________________________________

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Appearances:
Vatroslav Jacob Garbin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0978
Issued: August 2, 2021

Case Submitted on the Record

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

JURISDICTION
On April 3, 2020 appellant, through counsel, filed a timely appeal from a November 26,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the November 26, 2019 decision, appellant submitted additional evidence to
OWCP. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability from work for the period September 4 through 14, 2018 causally related to his accepted
cervical conditions.
FACTUAL HISTORY
On October 26, 2013 appellant, then a 59-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed neck pain due to factors of his federal
employment, specifically repetitive twisting, bending, and standing. He noted that he first became
aware of his claimed condition on July 6, 2012 and realized its relationship to his federal
employment on October 26, 2013. Appellant did not stop work. OWCP accepted his claim for
neck sprain and subsequently expanded the acceptance of his claim to include displacement of
cervical intervertebral disc without myelopathy. On September 29, 2015 appellant underwent
OWCP-authorized cervical discectomy and fusion at C3-4 and stopped work. OWCP paid him
wage-loss compensation on the supplemental rolls as of September 29, 2015 and on the periodic
rolls, as of December 13, 2015.
In a March 24, 2016 progress note, Dr. Joseph B. Boucree, Jr., a Board-certified orthopedic
surgeon, recounted appellant’s continued improvement of neck and radicular arm pain following
surgery. He conducted a physical examination and indicated that appellant could return to work
with restrictions of avoiding excessive bending, twisting, lifting, and pushing greater than 15
pounds. Dr. Boucree completed a work capacity evaluation (Form OWCP-5c), which indicated
that appellant could work with restrictions of reaching above the shoulder for four hours and
pushing and pulling for three hours.
Appellant returned to full-time, modified-duty work on May 24, 2016 and to full-duty work
on August 4, 2016.
Appellant continued to receive medical treatment. A September 7, 2018 cervical spine
magnetic resonance imaging (MRI) scan revealed increased mild-to-moderate central canal
stenosis and moderate foraminal narrowing at C4-5, mild central canal stenosis and foraminal
narrowing at C5-6, moderate left foraminal narrowing at C2-3, and prior instrumented anterior
cervical fusion at C3-4 with mild left foraminal narrowing.
In a September 7, 2018 progress note, Dr. Boucree indicated that appellant was seen for
follow up of status post anterior cervical discectomy and fusion at C3-4 surgery. He indicated that
appellant had informed him that several weeks prior, while at work, he began to experience
increased neck pain and recurrence of radicular pain extending into his upper extremities. Upon
physical examination, Dr. Boucree observed moderate restriction of the cervical spine secondary
to pain and diminished sensation to light touch and pinprick at the bilateral C5 dermatomes of the
upper extremities. He diagnosed status post anterior cervical discectomy and fusion at C3-4 with
transitional junctional disease with cervical instability C4-5 and C5-6, resultant cervical
myeloradiculopathy. Dr. Boucree recommended that appellant undergo anterior cervical
discectomy and fusion at C4-5 and C5-6.
In a September 7, 2018 work excuse note, Dr. Boucree requested that appellant be excused
from work for one month.
2

In a separate September 7, 2018 work excuse note, Dr. Boucree indicated that appellant
was unable to work at this time and noted that appellant was temporarily incapacitated pending
surgical intervention.
On September 24, 2018 appellant filed a claim for compensation (Form CA-7) for
disability from work for the period September 4 through 14, 2018. In an attached time analysis
(Form CA-7a), he claimed that he used eight hours of leave without pay (LWOP) each on
September 4, 5, 6, 7, 8, 11, 12, 13, and 14, 2018. Appellant noted that his reason for leave use was
“incapacitated.”
In a September 27, 2018 report, Dr. Kenechukwu Ugokwe, a Board-certified neurological
surgeon serving as an OWCP district medical adviser (DMA), indicated that he had reviewed
Dr. Boucree’s September 7, 2018 report and agreed that appellant’s current neck condition was
causally related to his work injury as appellant did not have neck pain prior to the work injury. He
also explained that the proposed anterior cervical discectomy and fusion at C4-5 and C5-6 surgery
was causally related to appellant’s accepted condition of displacement of cervical intervertebral
disc without myelopathy. The DMA further noted that he disagreed with Dr. Boucree’s
recommendation that the proposed surgery was medically necessary because diagnostic testing did
not show significant stenosis at those levels.
In an October 3, 2018 development letter, OWCP informed appellant that the evidence
submitted was insufficient to establish a recurrence of disability commencing September 4, 2018.
It advised him of the type of additional evidence needed and provided a questionnaire for his
completion. OWCP afforded appellant 30 days to provide the necessary evidence.
OWCP received a September 7, 2018 office visit note and work excuse note from
Dr. Boucree. Dr. Boucree checked a box indicating that appellant was unable to return to work.
He indicated that appellant was incapacitated pending surgical intervention and recovery from
September 7, 2018 through February 7, 2019.
In an October 12, 2018 duty status report (Form CA-17), Dr. Boucree noted a diagnosis of
cervical strain and checked a box marked “No” indicating that appellant was unable to resume
work.
By decision dated November 13, 2018, OWCP denied appellant’s claim for a recurrence
of disability September 4 through 14, 2018. It found that the medical evidence of record was
insufficient to establish disability from work during the claimed period due to his accepted cervical
conditions.
Appellant subsequently submitted additional medical evidence, including hospital records
and chart notes dated October 4, 2018.
In progress notes dated October 12, November 15, and December 14, 2018, Dr. Boucree
indicated that appellant was post-anterior cervical discectomy and fusion at C4-5 and C5-6 on
October 1, 2018. He provided examination findings and noted that appellant’s neck and radicular
arm pain were improving. Dr. Boucree also completed CA-17 forms dated October 12, 2018
through July 3, 2019 and checked a box marked “No” indicating that appellant was unable to
resume work.

3

Appellant submitted a February 1, 2019 letter from Dr. Boucree. Dr. Boucree indicated
that he had reviewed Dr. Ugokwe’s September 27, 2018 DMA report and disagreed with his
conclusion that the proposed cervical surgery was not medically necessary. He asserted that the
September 7, 2018 cervical spine MRI scan had demonstrated mild-to-moderate canal stenosis and
moderate foraminal stenosis at C4-5 and C5-6. Dr. Boucree also indicated that physical
examination abnormalities were consistent with the MRI scan. He concluded that the proposed
cervical discectomy and fusion at C4-5 and C5-6 were necessary to improve appellant’s neck pain
and upper extremity radicular pain and to stop the progression of appellant’s myelopathy.
On August 13, 2019 appellant, through counsel, requested reconsideration.
In a September 28, 2019 Form OWCP-5c, Dr. Boucree checked a box indicating that
appellant could work full time with restrictions of pushing, pulling, and lifting up to 10 to 15
pounds.
By decision dated November 26, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury. 5 The term disability is
defined as the incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of the injury.6 For each period of disability claimed, the employee has the
burden of proof to establish that he or she was disabled from work as a result of the accepted
employment injury.7
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position, or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish by the weight of reliable, probative, and substantial evidence a recurrence of
total disability and to show that he or she cannot perform such limited-duty work. As part of this
burden of proof, the employee must show a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the limited-duty job requirements.8 This burden
of proof includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history that, for each period of
4

Supra note 2.

5
See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 2019);
C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40
ECAB 1143 (1989).
6
20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018); Cheryl L. Decavitch, 50 ECAB
397 (1999).
7

See D.G., Docket No. 18-0597 (issued October 3, 2018).

8

S.F., Docket No. 19-1735 (issued March 12, 2020); J.B., Docket Nos. 18-1752, 19-0792 (issued May 6, 2019);
C.G., Docket No. 16-1503 (issued May 17, 2017); Terry R. Hedman, 38 ECAB 222 (1986).

4

disability claimed, the disabling condition is causally related to the employment injury, and
supports that conclusion with medical reasoning.9 Where no such rationale is present, the medical
evidence is of diminished probative value.10
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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 claimed disability and the specific employment factors
identified by the claimant.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his disability claim, appellant submitted a series of reports, work status notes,
and CA-17 form reports from Dr. Boucree. In a progress note and work excuse notes dated
September 7, 2018, Dr. Boucree noted examination findings of moderate restriction of the cervical
spine secondary to pain and diagnosed status post anterior cervical discectomy and fusion at C3-4
with transitional junctional disease with cervical instability C4-5 and C5-6, resultant cervical
myeloradiculopathy. He indicated that appellant was unable to work from September 7, 2018
through February 7, 2019 and explained that appellant was incapacitated pending surgical
intervention and recovery. Dr. Boucree continued to treat appellant and submitted progress notes,
CA-17 form reports, and OWCP-5c forms dated October 12, 2018 through July 3, 2019 indicating
that appellant was unable to work.
The Board finds that, while the reports from Dr. Boucree are not completely rationalized,
they are consistent in indicating that appellant was unable to work modified duty, beginning
September 7, 2018, due to continued cervical symptoms and abnormal examination findings.13
Accordingly, they are sufficient to require OWCP to further develop the medical evidence.14

9

H.T., Docket No. 17-0209 (issued February 8, 2019); Ronald A. Eldridge, 53 ECAB 218 (2001).

10

E.M., Docket No. 19-0251 (issued May 16, 2019); Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

11

V.A., Docket No. 19-1123 (issued October 29, 2019).

12
See S.G., Docket No. 18-1076 (issued April 11, 2019); William A. Archer, 55 ECAB 674 (2004); Fereidoon
Kharabi, 52 ECAB 291 (2001).
13

See R.R., Docket No. 20-1338 (issued April 16, 2021); D.G., Docket No. 18-0043 (issued May 7, 2019); E.J.,
Docket No. 09-1481 (issued February 19, 2010).
14

See A.R., Docket No. 20-0057 (issued April 7, 2021); J.S., Docket No. 19-0892 (issued November 4, 2020).

5

It is well established that proceedings under FECA are not adversarial in nature, and while
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.15 OWCP has an obligation to see that justice is done.16
The case will therefore be remanded to OWCP for further development of the medical
evidence. On remand OWCP shall prepare a statement of accepted facts (SOAF) and refer the
matter to a specialist in the appropriate field of medicine, consistent with OWCP’s procedures, to
determine whether appellant’s disability from work for the period September 4 through 14, 2018
was causally related to his accepted cervical conditions.17 Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

15

See e.g., M.G., Docket No. 18-1310 (issued April 16, 2019); Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985);
Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978); William N. Saathoff, 8
ECAB 769, 770-71.
16

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).
17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluation of Medical Evidence,
Chapter 2.810.9.b(1) (June 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 2, 2021
Washington, DC

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

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

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

7


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

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)

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

Docket No. 17-0196
Issued: June 14, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 7, 2016 appellant filed a timely appeal from an October 13, 2016 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated October 1, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Together with her appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated May 5, 2017, the Board exercised its discretion and denied the request as her arguments
on appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order
Denying Request for Oral Argument, Docket No. 17-0196 (issued May 5, 2017).

FACTUAL HISTORY
On July 31, 2015 appellant, then a 54-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging anxiety, depression, and mental anguish, which she attributed to
“difficulty with sleeping, excessive crying, and just overall anxiety” due to her federal
employment. She identified August 26, 2013 as the date that she first became aware of her
condition. This was also the date appellant first realized that her condition was employment
related. She stopped work on April 11, 2015 after filing her Form CA-2. Appellant later retired
effective October 31, 2015.
Appellant submitted a July 31, 2015 narrative statement indicating that she was diagnosed
with high blood pressure by her primary care physician, who then referred her to a psychiatrist for
an evaluation. She alleged that she was verbally and emotionally assaulted at work, but she did
not know why. Appellant stated that she was constantly exposed to intimidation, disrespect,
belittlement, and harassment in the workplace, which resulted in her emotional condition. She
contended that this was a deliberate movement in an effort to remove her from the station so that
another coworker, B.W., could “move up” and get her out of “her business.” Appellant felt that
she was in some type of competition with this coworker, but that she did not know for what. She
stated that this had a severe impact on her mental status demonstrated by crying spells and sleepless
nights.
In an August 4, 2015 development letter, OWCP advised appellant of the deficiencies of
her claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
In response appellant submitted a position description and a narrative statement dated
August 24, 2015, further alleging that she was a victim of bullying by a coworker, D.H., who had
perpetuated dating rumors and was monitoring her clock rings. She also believed that her
coworkers were trying to kill another coworker, J.L., for his lottery winnings.
OWCP received two hospital reports dated September 1 and 4, 2015 diagnosing
“headache” and “blood pressure,” as well as diagnostic testing results dated December 5, 2014 for
a diagnosis of “chest pain.” It also received an April 8, 2015 report, regarding bilateral foot pain
and planter fasciitis and an illegible medical report dated April 27, 2015.
In a December 15, 2014 report, Dr. A. Gene Hutcheson, appellant’s treating cardiologist,
diagnosed benign essential hypertension, hyperlipidemia, chest pain, and palpitations. She
asserted that appellant complained of chest tightness, which she thought was associated with gas
or belching and also occurred with emotional stress.
In a generic unsigned note, Ridgewood Clinics in Jackson, Mississippi indicated that
appellant was seen on August 17, 2015 and was released to work effective September 17, 2015.
In an August 31, 2015 report, an unidentifiable healthcare provider from Quinn Healthcare
diagnosed hypertension, plantar fascial fibromatosis, and pain in joint involving ankle and foot
and noted that appellant had a history of anxiety, hypertension, and high blood pressure.
In a September 25, 2015 letter, appellant’s manager indicated that appellant and D.H. were
both called into a meeting and informed that she would listen in entirety to their situations.
2

Appellant was asked if she could tell her supervisor of an instance by date of what had occurred,
but she would not provide any information. Her supervisor asked them if they could work together,
as that there was no evidence of any harassment, and they both answered “yes.” Appellant’s
supervisor further indicated that she was not asked about clock rings by appellant and that there
was no discussion of J.L. or B.W. at any time during their discussion.
By decision dated October 1, 2015, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish any incidents of a hostile work environment or
harassment occurring as alleged.
Subsequently, appellant submitted an illegible medical report dated April 27, 2015 and a
September 18, 2015 report from Dr. Krishan Gupta, a psychiatrist, who indicated that appellant
had stepped down from a Partial Hospitalization Program where she was being treated from
September 18 to 25, 2015 and was admitted to the Intensive Outpatient Program at Brentwood
Behavior Healthcare on September 28, 2015. Dr. Gupta reported that he was conducting weekly
evaluations of appellant as to her progress and potential discharge date, noting that she had not yet
been released to work.
On October 4, 2016 OWCP received appellant’s request for reconsideration. Appellant
submitted a September 30, 2016 narrative statement reiterating her allegations that she developed
an emotional condition due to a number of incidents that occurred in a hostile work environment.
By decision dated October 13, 2016, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demonstrate clear evidence of error, finding that the evidence
of record failed to establish any incidents of a hostile work environment or harassment.
LEGAL PRECEDENT
OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.3
OWCP, however, may not deny an application for review solely because the application
was untimely filed. It may consider an untimely application for reconsideration if the evidence or
argument contained in the reconsideration request demonstrates clear evidence of error on the part
of OWCP.4 In this regard, OWCP will conduct a limited review of how the newly submitted
evidence bears on the prior evidence of record.5 Evidence that does not raise a substantial question
concerning the correctness of OWCP’s decision is insufficient to demonstrate clear evidence of
error.6

3

20 C.F.R. § 10.607.

4

See id., at § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

5

Nelson T. Thompson, 43 ECAB 919 (1992).

6

Jimmy L. Day, 48 ECAB 652 (1997).

3

To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.7 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.8 The evidence submitted must not only
be of sufficient probative value to create a conflicting medical opinion or establish a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.9
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.10
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations11 and procedures establish a one-year
time limit for requesting reconsideration, which begins on the date of the original OWCP decision.
The Board has held that, for OWCP decisions issued on or after August 29, 2011, the date of the
application for reconsideration is the “received date” as recorded in iFECS.12 The most recent
merit decision was OWCP’s October 1, 2015 decision. Appellant had one year from the date of
this decision to make a timely request for reconsideration. Since her request was not received by
OWCP until October 4, 2016, it was filed outside the one-year time period and was thus untimely.
Consequently, appellant must demonstrate clear evidence of error by OWCP in the denial of her
claim.13
The Board finds that the evidence submitted by appellant in support of her request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s October 1,
2015 decision or shift the weight of the evidence of record in her favor.
In support of her reconsideration request, appellant submitted a September 30, 2016
narrative statement, an illegible medical report dated April 27, 2015, and a September 18, 2015
report from Dr. Gupta. The term clear evidence of error is intended to represent a difficult
standard.14 Even a detailed, well-rationalized medical report which would have created a conflict
7

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

8

Leona N. Travis, 43 ECAB 227, 240 (1991).

9

Annie L. Billingsley, 50 ECAB 210 (1998).

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

11

See 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016); see
C.B., Docket No. 13-1732 (issued January 28, 2014).
13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

14

Supra note 12 at Chapter 2.1602.5 (October 2011); see Dean D. Beets, 43 ECAB 1153 (1992).

4

in medical opinion requiring further development if submitted prior to issuance of the denial
decision, does not constitute clear evidence of error.15 It is not enough to show that evidence could
be construed so as to produce a contrary conclusion. Instead, the evidence must shift the weight
in appellant’s favor.16 The new evidence does not show error with respect to OWCP’s October 1,
2015 decision, which found that the employment exposure did not occur as alleged. The
September 30, 2016 narrative statement from appellant lacks specific details about the actual work
incidents alleged, such as particular dates, times, locations, and other facts surrounding the alleged
incidents of harassment and discrimination. Therefore, it does not, on its face, show that OWCP
erred when it denied her emotional condition claim.17 Moreover, the medical evidence is not
relevant because the claim was not denied on a medical basis.18 Appellant’s claim was denied
because she failed to establish any compensable employment factors.19
The Board finds that the evidence appellant submitted is insufficient to prima facie shift
the weight of the evidence in favor of her claim or raise a substantial question that OWCP erred in
its October 1, 2015 decision. Thus, OWCP properly denied her request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

15

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

16

See M.N., Docket No. 15-0758 (issued July 6, 2015).

17

See J.E., Docket No. 15-0131 (issued September 9, 2015).

18

Id.

19
See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992) (finding that, when a claimant has not established any
compensable employment factors, it is not necessary for OWCP to consider the medical evidence of record).

5

ORDER
IT IS HEREBY ORDERED THAT the October 13, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

Christopher J. Godfrey, 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
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland Heights, OH, Employer
__________________________________________

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

Docket No. 14-1796
Issued: January 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 12, 2014 appellant, through her attorney, filed a timely appeal from a July 17,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
On appeal appellant’s attorney asserts that the July 17, 2014 decision is contrary to law
and fact.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 13, 2013 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim alleging that on September 10, 2013 she sustained stress and a panic attack when
she was inappropriately called into a meeting by a supervisor and the union. She also noted that
when she arrived at work the next day she became very upset and went to the emergency room.
In an undated statement, appellant indicated that on September 10, 2013 she was called in for a
predisciplinary meeting for being late after delivering mail. She stated that she had an accepted
foot condition, and the meeting upset her, stating that she was constantly harassed. Appellant
repeated that, when she returned to work on September 11, 2013, she became very upset
regarding the “intention of giving a letter.”
David Mast, a health and resource manager at the employing establishment, indicated in a
September 18, 2013 letter that the claim was being challenged. He stated that on September 10,
2013 appellant was called in for a predisciplinary discussion which he maintained was an
administrative action. On September 19, 2013 Mr. Mast indicated that the alleged letter
appellant referenced was a disciplinary action due to unsatisfactory job performance.
Dr. Timothy D. Hartman, Board-certified in emergency medicine, noted on
September 12, 2013 that appellant was excused from work through September 15, 2013.2
On September 24, 2013 appellant indicated that she made a mistake with the dates,
stating that the meeting with Supervisor Charisma Johnson and Ernie Phillips, a union steward,
occurred on September 11, 2013 and that she became upset and went to the hospital on
September 12, 2013.
In letters dated October 3, 2013, OWCP informed appellant of the type evidence needed
to support her claim, including answers to specific questions and a narrative medical report
supported by a medical explanation regarding the cause of a diagnosed emotional condition. The
employing establishment was asked to provide a statement from a knowledgeable supervisor and
information regarding accommodations for appellant’s feet.
On October 28, 2013 Mr. Mast indicated that Ms. Johnson had conducted a
predisciplinary interview with appellant on September 10, 2013 and when appellant reported to
work on September 12, 2013 she reported that she was sick and an ambulance was called. He
advised that Ms. Johnson was aware of a restriction that appellant could not stand for a long
period of time and could only work eight hours.
A hospital emergency department record dated October 12, 2013, signed by Bryan
Harrell, a physician’s assistant, reported a history that appellant had become extremely upset and
stressed due to being reprimanded at work the previous day. Mr. Harrell indicated that it was
difficult to review her history due to persistent crying and stress reaction but that she was not in
acute distress. He indicated that a psychiatry consultation was done. Mr. Harrell diagnosed
acute anxiety stress reaction and depression. Lisa A. Courtot, a psychiatric nurse, performed a
mental health evaluation. She noted appellant’s report that she was treated improperly at work,
2

A partially completed virtually illegible Ohio workers’ compensation form was also submitted.

2

planned to file a grievance and Equal Employment Opportunity Commission (EEOC) claim, and
was afraid to go to work. Ms. Courtot diagnosed adjustment disorder with mixed depression and
anxiety, work stressors, and chronic foot pain. Appellant was discharged to home in stable
condition.3
In reports dated September 16, 2013, Dr. Anna K. Dendy, a psychologist, noted a history
that appellant had a panic attack after a meeting at work. She diagnosed panic disorder and
anxiety disorder, not otherwise specified, noting that appellant experienced a very distressing
interaction with her supervisor and then had a panic attack. Dr. Dendy recommended outpatient
psychotherapy and advised that appellant could return to work on September 17, 2013.
In an undated statement, appellant repeated that on September 11, 2013 she was called in
to a predisciplinary interview by Ms. Johnson regarding being late coming back from delivering
mail. She reminded Ms. Johnson that she had foot restrictions on file, advised that the following
day she had a panic attack at work due to the meeting the previous day, and was taken to the
hospital. Appellant indicated that she was under the care of a psychologist and had filed an
EEOC claim.
By decision dated November 7, 2013, OWCP denied the claim, finding that, as appellant
had not established a compensable factor of employment, she failed to establish an emotional
condition in the performance of duty. Appellant, through her attorney, timely requested a
hearing. At the hearing held on May 12, 2014, appellant testified regarding the meeting and her
reaction. She indicated that she had to wear orthotics to deliver mail because her feet hurt and
that she was currently off work for a separate claim, accepted for frostbite.
A grievance form dated April 28, 2014 indicated that the remedy requested from
management would be to treat appellant with dignity and respect, and if her performance needed
to be addressed, it should not be done on the workroom floor. In an attached statement, appellant
noted that she had a foot condition and maintained that she was treated with disrespect by
Ms. Johnson when she had appellant attend a predisciplinary meeting on September 11, 2013 for
returning late from the street. She also generally asserted that Ms. Johnson harassed her.
By decision dated July 17, 2014, an OWCP hearing representative found that the
predisciplinary meeting occurred on or about September 10, 2013, but that the event would be
considered an administrative function which, absent error and abuse, would not be compensable.
She noted that there was no probative evidence to establish that the employing establishment
committed error or abuse in handling this disciplinary matter and affirmed the November 7, 2013
decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
3

Mr. Harrell indicated that he was signing the report for Dr. Hartman and reported that appellant was also
evaluated by Dr. Hartman who managed her care.

3

incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her stress-related condition.4 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.5 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.8 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.9 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.10 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.11 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.12
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.13 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its

4

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

5

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

6

Id.

7

28 ECAB 125 (1976).

8

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

9

Lillian Cutler, supra note 7.

10

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

11

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

12

Roger Williams, 52 ECAB 468 (2001).

13

Charles D. Edwards, 55 ECAB 258 (2004).

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administrative or personnel responsibilities, such action will be considered a compensable
employment factor.14
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.15
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term
“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by co-employees or workers. Mere perceptions and feelings of
harassment will not support an award of compensation.16
ANALYSIS
Appellant has not alleged that her emotional condition was due to any of her employment
duties. She alleged that a predisciplinary interview meeting held on either September 10 or 11,
2013 caused a panic attack and stress reaction on September 12, 2013 when she was taken to an
emergency room. Appellant indicated that at the meeting Ms. Johnson counseled her because
she had been returning late from delivering her route. She noted that she had an accepted foot
condition, which was ignored.
The Board finds that the predisciplinary meeting pertains to an administrative action of
the employer and, generally, such actions in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of FECA.17
Absent evidence establishing error or abuse, a claimant’s disagreement or dislike of such a
managerial action is not a compensable factor of employment.18 Appellant’s allegation that she
was treated with disrespect at this meeting that should not have been held pertains to
administrative functions. While she submitted a copy of a grievance she had filed dated
April 28, 2014, this merely indicated that she had requested as relief that management would
treat her with dignity and respect, and if her performance needed to be addressed, it should not
be done on the workroom floor. Appellant submitted nothing to reflect the disposition of this
grievance. Thus, there is nothing in the record to substantiate error or abuse regarding the
predisciplinary meeting. As such, it is not compensable factors of employment.

14

Kim Nguyen, 53 ECAB 127 (2001).

15

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

16

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

17

J.C., 58 ECAB 594 (2007).

18

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

5

Appellant also alleged that Ms. Johnson treated her disrespectfully. Generally,
complaints about the manner in which a supervisor performs his or her duties or the manner in
which a supervisor exercises his or her discretion fall, as a rule, outside the scope of coverage
provided by FECA. This principle recognizes that a supervisor or manager in general must be
allowed to perform his or her duties and employees will, at times, dislike the actions taken. Mere
disagreement or dislike of a supervisory or managerial action will not be compensable, absent
evidence of error or abuse.19 Here again, as the record contains no evidence that Ms. Johnson or
any employing establishment supervisor or manager committed error or abuse in discharging
management duties, this allegation is not compensable.20
Regarding appellant’s general contention that she was subjected to harassment,
particularly by Ms. Johnson, mere perceptions of harassment or discrimination are not
compensable under FECA,21 and unsubstantiated allegations of harassment or discrimination are
not determinative of whether such harassment or discrimination occurred. A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.22 As
noted above, the grievance resolution submitted did not indicate that the employing
establishment erred.23 Appellant submitted nothing to show a persistent disturbance, torment or
persecution, i.e., mistreatment by employing establishment management.24 She therefore did not
establish a factual basis for her claim of harassment by probative and reliable evidence.25
Finally, as appellant failed to establish a compensable employment factor, the Board need
not address the medical evidence of record.26
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an emotional condition in the
performance of duty.

19

Id.

20

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

21

James E. Norris, supra note 15.

22

Id.

23

See W.B., Docket No. 12-1369 (issued May 1, 2013).

24

Beverly R. Jones, supra note 16.

25

See Robert Breeden, 57 ECAB 622 (2006).

26

Katherine A. Berg, 54 ECAB 262 (2002).

6

ORDER
IT IS HEREBY ORDERED THAT the July 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
FEDERAL BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION,
Yazoo City, MS, Employer
__________________________________________

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

Docket No. 07-1082
Issued: October 23, 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 March 15, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated February 14, 2007 which denied his recurrence
claim. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.1
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained a recurrence of disability on or after September 20, 2006 causally related to his
accepted January 4, 2006 employment injury.

1

The record includes medical evidence received after the Office issued the February 14, 2007 decision. The
Board cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

FACTUAL HISTORY
On January 4, 2006 appellant slipped and fell at work hitting his head on the floor. On
February 7, 2006 his claim was accepted for concussion and contusion of right hip. The claim
was later also accepted for headache. On March 23, 2006 appellant was awarded wage-loss
compensation for his lost time from work. He returned to work for a brief period of time on
September 20, 2006, full-time work on September 26, 2006 but stopped working again on or
about October 2, 2006.
On December 6, 2006 appellant filed a recurrence of disability claim alleging that on
September 20, 2006 and October 13, 2006 he sustained recurrences when he passed out due to
his previous injury and sustained fractures of his legs. Appellant noted that he had only returned
to work for a short time on September 20, 2006 when he experienced constant headache,
backache and right side pain.
On January 8, 2007 the Office requested additional medical information from appellant.
In response, the Office received a disabled parking application dated January 10, 2007 and a
January 26, 2007 progress note from Dr. Cornelious O’Neill who stated that appellant has had
several syncopal episodes resulting in bone fractures in his left leg on September 20, 2006, right
leg on October 13, 2006 and right hip on December 22, 2006. Dr. O’Neill also relayed
appellant’s accepted event, that he fell at work on January 4, 2006 and hit his head, hip and back
which resulted in a loss of consciousness.
On February 14, 2007 the Office denied appellant’s recurrence claim on the grounds that
the evidence did not establish that the claimed disability was due to the accepted work injury.
LEGAL PRECEDENT
Office regulations provide that 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
resulting from a previous injury or illness without a new or intervening injury.2
A claimant seeking compensation under the Federal Employees’ Compensation Act3 has
the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.4 In this case, appellant has the burden of establishing that he
sustained a recurrence of a medical condition5 on September 20, 2006 causally related to his
January 4, 2006 traumatic injury. This burden includes the necessity of furnishing medical
2

Hubert Jones, Jr., 57 ECAB ___ (Docket No. 05-603, issued March 10, 2006).

3

5 U.S.C. §§ 8101-8193

4

Edward W. Spohr, 54 ECAB 806 (2003).

5

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a “need for further medical treatment after release from
treatment,” nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).

2

evidence from a physician who, on the basis of a complete and accurate factual and medical
history concludes that the condition is causally related to the employment injury and supports
that conclusion with sound medical rationale.6 Where no such rationale is present, the medical
evidence is of diminished probative value.7
It is an accepted principle of workers’ compensation law and the Board has so
recognized, that when the primary injury is shown to have arisen out of and in the course of
employment, every natural consequence that flows from the injury is deemed to arise out of the
employment, unless it is the result of an independent intervening cause which is attributable to
the employee’s own conduct. The basic rule is that a subsequent injury, whether an aggravation
of the original injury or a new and distinct injury, is compensable if it is the direct and natural
result of a compensable primary injury.8
ANALYSIS
The Office accepted appellant’s January 4, 2006 claim for concussion, contusion of
the right hip and headache. Appellant returned to work on September 20, 2006 and ceased
working on October 2, 2006. He filed a recurrence of disability alleging that after his return
to work he broke his legs when he passed out due to his accepted employment injury.
Appellant bears the burden to establish that his claim for consequential injuries, bone
fractures in the right leg, left leg and right hip, are due to his accepted injuries of concussion,
contusion and headache. As part of this burden, appellant must present rationalized medical
opinion evidence, based on a complete factual and medical background, showing causal
relationship between the claimed consequential injuries and the accepted injuries.9
The medical evidence is insufficient to establish that appellant sustained a consequential
injury. Appellant submitted two documents in support of his claim, a disabled parking
application and a progress note from Dr. O’Neill. The disabled parking application is not
relevant as it is not medical evidence from a physician. The progress note from Dr. O’Neill
provided an accurate factual history of appellant’s work place injury and diagnosed bone
fractures. However, the note was insufficient as is failed to provide the necessary conclusion and
supporting explanation that appellant’s current conditions are causally related to his employment
injuries. Dr. O’Neill opined that appellant’s bone fractures resulted from syncopal episodes but
he did not explain how appellant’s employment injuries caused or contributed to the fainting
episodes which resulted in the bone fractures. Dr. O’Neill’s report is of limited probative value
as it does not contain the requisite medical rationale to support causal relationship.10
6

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

7

Albert C. Brown, 52 ECAB 152 (2000).

8

Larson, The Law of Workers’ Compensation § 13.00; see Charles W. Downey, 54 ECAB 313 (2003).

9

Charles W. Downey, supra note 8.

10

A medical report is of limited probative value on the issue of causal relationship if it contains a conclusion
regarding causal relationship that is unsupported by medical rationale. Robert Winchester, 54 ECAB 191 (2002).

3

As appellant failed to submit sufficient probative medical evidence to establish that his
current condition is a consequence of his accepted employment injuries, he has failed to establish
the requisite causal relationship and the Office properly denied his claim.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a recurrence of
disability.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 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

4