United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Martinez, CA, Employer
__________________________________________

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

Docket No. 18-0347
Issued: May 19, 2020

Case Submitted on the Record

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

JURISDICTION
On December 7, 2017 appellant filed a timely appeal from a November 8, 2017 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 has met her burden of proof to establish a right upper
extremity condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On November 15, 2016 appellant, then a 50-year-old voluntary services specialist, filed an
occupational disease claim (Form CA-2) alleging that she sustained a right wrist and hand
1

5 U.S.C. § 8101 et seq.

condition causally related to factors of her federal employment. She advised that she had a history
of carpal tunnel syndrome from repetitive motion. Appellant noted that she first became aware of
her condition and its relationship to her federal employment on August 8, 2016. She specified that
she had originally filed a recurrence of disability claim (Form CA-2a) of a January 2011 injury,
but had been told to file a Form CA-2 as the claim was a new injury.2 In OWCP File No.
xxxxxx010 appellant filed a recurrence claim on August 11, 2016 alleging a worsening of her
accepted right carpal tunnel syndrome condition due to repetitive motion in the performance of
duty. After development of the claim, by decision dated November 22, 2016, OWCP denied her
recurrence claim finding that the evidence of record was insufficient to establish a material change
or worsening of her accepted right wrist condition.
In a development letter dated December 2, 2016, OWCP notified appellant of the type of
evidence needed to establish her occupational disease claim, including a detailed description of
the employment duties alleged to have caused her condition and medical evidence explaining how
the identified employment activities resulted in a diagnosed medical condition. It attached a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the requested
evidence.
OWCP subsequently received an October 11, 2016 work status report, wherein Dr. Wendy
Ann Brody, Board-certified in occupational medicine, advised that appellant could perform her
regular employment, but required an ergonomic desk, keyboard, and mouse. Dr. Brody asserted
that appellant had sustained a new injury as she did not have an ergonomic work station.
Appellant attended physical therapy on October 7 and 20, 2016.
In a work status report dated October 25, 2016, Dr. Brody diagnosed a repetitive strain
injury and right forearm muscle strain. She indicated that appellant could work full duty and again
requested that she be provided with an ergonomic work station.
By decision dated January 11, 2017, OWCP denied appellant’s occupational disease claim.
It found that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
Subsequently, OWCP received an unsigned August 23, 2016 physician’s first report of
occupational injury or illness form from Dr. Brody, who noted that appellant’s hand had cramped
and gone numb while at work. Dr. Brody diagnosed a repetitive strain injury, muscle strains of
the right wrist and forearms, and right lateral epicondylitis. She advised that appellant’s current
condition was the “most recent of several repetitive strain injury claims” and attributed her
repetitive strain injury to her employment duties.
Appellant underwent physical therapy on in September and October 2016.

2

OWCP previously accepted that appellant sustained right carpal tunnel syndrome under OWCP File No.
xxxxxx010. It administratively combined the current claim, assigned OWCP File No. xxxxxx241, with OWCP File
No. xxxxxx010. OWCP File No. xxxxxx010 is the master file. Appellant has eight OWCP claims combined into
Master OWCP File No. xxxxxx010.

2

In unsigned progress report dated September 12 and 26, 2016, Dr. Brody advised that
appellant’s condition had improved with physical therapy. She diagnosed a repetitive strain injury,
a right wrist and forearm muscle strain, and right lateral epicondylitis. In work status reports of
even date, Dr. Brody found that appellant could work without limitations, but reiterated her need
for ergonomic corrections at work. In an unsigned report dated October 11, 2016, she indicated
that appellant had sustained a new injury from working in a “nonergonomic set up.”
In an unsigned progress report dated October 25, 2016, Dr. Brody noted that appellant was
in the process of requesting reasonable accommodation for an ergonomic work station. She
provided the same diagnoses and related:
“Again, [appellant] has been told to use her old claim number for this injury, stating
[that] this is a reoccurrence. Medically, this is a new injury, not a reoccurrence, as
she has new areas of tenderness, and the primary issue of the last injury was her
carpal tunnel syndrome, which she no longer has after having a carpal tunnel
release, which is why she was released from care with no permanent impairment.”
In a work status report of even date, Dr. Brody diagnosed a repetitive strain injury and right
forearm muscle strain. She advised that appellant could perform her usual duties, but required a
new desk and mousepad, and a keyboard tray at the proper height.
In a November 15, 2016 statement, appellant related that she performed administrative
duties, including repetitive typing and filing. She advised that she had begun experiencing
problems with her right hand, arm, and wrist in January 2011 with increased computer usage.
Appellant submitted medical evidence that she had previously submitted under OWCP File No.
xxxxxx010.
On August 14, 2017 appellant requested reconsideration.3
By decision dated November 8, 2017, OWCP denied modification of its January 11, 2017
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 the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,5 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
3

Appellant subsequently submitted a November 23, 2016 work status report from Dr. Ziule Tang, a specialist in
preventative medicine. However, that report pertained to a right knee condition and did not mention a right upper
extremity condition.
4

Supra note 1.

5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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the employment injury.6 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.7
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.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 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.10
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right upper
extremity condition causally related to the accepted factors of her federal employment.
In work status reports dated September 26 through October 25, 2016, Dr. Brody found that
appellant could perform her usual employment, but required an ergonomic changes to her desk,
keyboard, and mousepad. In a work status report dated October 25, 2016, she diagnosed a
repetitive strain injury and right forearm muscle strain. In these reports, Dr. Brody did not offer
an opinion or explanation regarding the cause of any diagnosed condition. The Board has held
that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.12
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

12

M.D., Docket No. 18-0563 (issued February 12, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018).

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Appellant submitted unsigned reports from Dr. Brody dated August 23, September 12 and
26, and October 11 and 25, 2016. The Board, however, has held that reports that are unsigned or
bear an illegible signature lack proper identification and thus have no probative value.13
OWCP also received physical therapy reports in support of appellant’s claim. The Board
has held, however, that physical therapists are not considered “physician[s]” as defined under
FECA.14 As such, these reports lack probative value and are insufficient to establish appellant’s
claim.15
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 her burden of proof to establish a right upper
extremity condition causally related to the accepted factors of her federal employment.

13

K.D., Docket No. 19-1405 (issued April 9, 2020); Z.G., Docket No. 19-0967 (issued October 21, 2019).

14
See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law); 20 C.F.R. § 10.5(t); D.H., Docket No. 18-0072 (issued January 21, 2020) (physical therapists are not
considered physicians under FECA); T.G., Docket No. 19-0904 (issued November 25, 2019); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006).
15

G.L., Docket No. 18-1057 (issued April 14, 2020); R.G., Docket No. 18-0236 (issued December 17, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the November 8, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2020
Washington, DC

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

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

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

6


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

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

Docket No. 11-1765
Issued: April 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 26, 2011 appellant, through her attorney, filed a timely appeal from an April 14,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) concerning a
schedule award. 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 the case.
ISSUE
The issue is whether appellant has more than 11 percent permanent impairment of the
right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On June 8, 1999 appellant, then a 47-year-old mail clerk, filed a traumatic injury claim
alleging that she fell over a bar onto the ground and injured her right shoulder, arm, knee, leg and
left foot. OWCP gave the claim case number xxxxxx608 and accepted the conditions of cervical

1

5 U.S.C. § 8101 et seq.

strain, lumbar strain, contusion of right shoulder and right supraspinatus tendinopathy with a
July 1, 2003 right shoulder surgery.2 Benefits were paid and appellant returned to work.3
On September 22, 2006 appellant requested a schedule award. In a May 30, 2006 report,
Dr. David Weiss, an osteopath, noted the history of injury and his review of the medical reports.
He noted examination findings and diagnosed conditions that included chronic post-traumatic
cervical and lumbosacral strain and sprain; history of cervical and lumbar bulging discs; lumbar
and cervical radiculopathy; status post lumbar epidural steroid injections; post-traumatic
acromioclavicular arthropathy with impingement right shoulder; status post glenoid labral tear
right shoulder, status post right shoulder surgery, chronic post-traumatic right carpal tunnel
syndrome, and chronic post-traumatic lateral epicondylitis right elbow. Dr. Weiss opined that
appellant reached maximum medical improvement on May 30, 2006. Under the fifth edition the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), he stated that appellant had 54 percent right upper extremity impairment.
On July 17, 2007 OWCP’s medical adviser, Dr. Henry J. Magliato, a Board-certified
orthopedic surgeon, reviewed appellant’s medical file. Based on Dr. Weiss’ reported findings,
OWCP’s medical adviser noted that appellant had 54 percent permanent impairment of the upper
extremity under the fifth edition of the A.M.A., Guides. He noted, however, that Dr. Weiss’
findings did not correlate well with a 2002 electromyogram/nerve conduction test and a
November 23, 2005 treating physician’s report.
In a July 31, 2009 letter, OWCP notified appellant that effective May 1, 2009 schedule
awards were based on the sixth edition of the A.M.A., Guides. Appellant was requested to
provide the medical evidence necessary to support a schedule award determination. OWCP
received a July 27, 2009 report from Dr. Scott Metzger, a Board-certified pain specialist, who
did not provide an impairment assessment.
By decision dated October 19, 2009, OWCP denied a schedule award as there was no
medical report rating permanent impairment of the right arm under the sixth edition of the
A.M.A., Guides.
Appellant requested a hearing on this decision. In a January 12, 2010 decision, an
OWCP hearing representative set aside the October 19, 2009 decision and directed OWCP to
send appellant for a second opinion impairment examination.
On February 9, 2010 OWCP referred appellant to Dr. Aldo Iulo, a Board-certified
orthopedic surgeon, for a second opinion examination. In a February 24, 2010 report, Dr. Iulo
noted the history of injury, reviewed the statement of accepted facts and medical records and
noted his examination findings. He diagnosed cervical and lumbar sprains, supraspinatus
tendinitis with impingement right shoulder and several right knee conditions. Under the sixth
edition of the A.M.A., Guides, he opined appellant had no impairment of the right wrist based on
the absence of objective findings. Appellant had five percent permanent impairment of the right

2

The July 1, 2003 surgery was a right subacromial decompression with extensive debridement of a labral tear.

3

Under claim number xxxxxx478, appellant’s April 21, 2000 right knee injury was accepted for the condition of
right knee sprain with a July 2002 right knee arthroscopic surgery. This claim is doubled into the current claim.

2

arm due to limited range of motion of the right shoulder secondary to tendinitis with
impingement syndrome.4 Dr. Iulo also noted impairment findings for the spine and right leg.
In an April 16, 2010 report, Dr. Magliato reviewed appellant’s medical record together
with Dr. Iulo’s February 24, 2010 report. He stated the date of maximum medical improvement
was February 24, 2010, but Dr. Iulo’s report needed more clarification as the physician did not
explain the grade modifiers or whether he applied the net modifier adjustment formula.
On May 3, 2010 OWCP requested that Dr. Iulo provide an addendum report addressing
the grade modifiers and the grade modifier adjustment formula. In a May 7, 2010 report,
Dr. Iulo advised that, under Table 15-21 (peripheral nerve impairment -- upper extremity), he
found no sensory deficits in the physical examination, thus the class was zero and there was no
ratable impairment. With regard to right shoulder impairment, he utilized Table 15-34 and found
120 degrees shoulder flexion was three percent; 100 degrees shoulder abduction was three
percent; 20 degrees shoulder adduction equaled one percent; 70 degrees external rotation was
zero; and 40 degrees internal rotation equaled four percent. Dr. Iulo stated that there was no
functional history adjustment or change under Table 15-7 and Table 15-35 and concluded that
appellant had 11 percent permanent impairment of the right arm. Appellant reached maximum
medical improvement on October 13, 2005 based on the last note from a treating physician.
In an August 12, 2010 report, Dr. Magliato reviewed the addendum report and agreed
that October 13, 2005 was the date of maximum medical improvement. He stated Dr. Iulo used
the range of motion stand-alone method to evaluate impairment under Table 15-34, page 475 and
agreed with the 11 percent impairment rating of the right upper extremity. Dr. Magliato verified
that under Table 15-34 shoulder flexion of 120 degrees equaled 3 percent; shoulder abduction of
100 degrees equaled 3 percent; shoulder adduction of 20 degrees equaled 1 percent; external
rotation of 70 degrees equaled 0; and internal rotation of 40 degrees equaled 4 percent, which
totaled 11 percent for the right upper extremity. Under Table 15-35, page 477 an 11 percent
range of motion equaled a grade modifier of 1. Dr. Magliato indicated that Dr. Iulo found no
change for functional history modifier under Table 15-7, page 406 and Table 15-35, page 477.
Thus, the grade modifier for functional history was 1 and grade modifier range of motion was 1.
The medical adviser stated there was no net adjustment under Table 15-36, page 477.
By decision dated October 7, 2010, OWCP granted appellant a schedule award for 11
percent permanent impairment of the right upper extremity. The period of the award ran from
October 13, 2005 to June 10, 2006, a total of 34.32 weeks.
Appellant requested a hearing and subsequently requested a review of the written record.
In a January 11, 2011 report, Dr. Weiss updated his previous evaluation of May 30, 2006
to provide an impairment rating under the sixth edition of the A.M.A., Guides. He opined that
appellant had a total combined rating of 18 percent impairment of the right upper extremity.
In a February 14, 2011 letter, appellant’s counsel contended that a conflict in medical
opinion existed between Dr. Iulo and Dr. Weiss regarding the extent of permanent impairment
4

Examination findings revealed 120 degrees flexion, 100 degrees abduction; 20 degrees adduction; 70 degrees
external rotation and 40 degrees internal rotation for the right shoulder. Motions of the elbows, wrists and joints of
the hands were within normal range and sensory and motor reflexes were intact in the upper extremities.

3

under the sixth edition of the A.M.A., Guides. He argued that appellant was entitled to a
schedule award for the right lower extremity and left lower extremity.
By decision dated April 14, 2011, an OWCP hearing representative affirmed the
October 7, 2010 schedule award decision. The hearing representative found Dr. Weiss’ report of
diminished probative value upon which to base a current permanent impairment rating as his
findings were based on the examination performed in 2006.5
On appeal, appellant’s representative argues that OWCP’s delay in adjudicating the claim
deprived appellant of a protected interest in property without due process of law. Appellant’s
representative further argued that a conflict in medical opinion evidence exists among Dr. Weiss
and the second opinion examiner and the OWCP medical adviser regarding the extent of
permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA provides for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all
claimants. The A.M.A., Guides has been adopted by OWCP as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.6 Schedule award decisions issued
between February 1, 2001 and April 30, 2009 utilize the fifth edition of the A.M.A., Guides.7
Effective May 1, 2009, OWCP adopted the sixth edition of the A.M.A., Guides,8 published in
2008, as the appropriate edition for all awards issued after that date.9
ANALYSIS
Appellant’s representative asserts that there is a medical conflict among Dr. Weiss and
Dr. Iulo and OWCP’s medical adviser. He does not otherwise contest the percentage of
impairment awarded on May 28, 2010. Appellant’s representative primarily contests OWCP’s
delay in issuing a decision and the resulting application of the sixth edition of the A.M.A.
Guides. OWCP procedures are clear: As of May 1, 2009, any decision regarding a schedule
award must be based on the sixth edition. OWCP correctly followed its procedures.
Appellant asserts that he has property right in a schedule award benefit under the fifth
edition of the A.M.A., Guides and a protected property interest cannot be deprived without due
5

The hearing representative specifically noted that a schedule award for the right and left lower extremities were
not an issue of this decision and OWCP would further develop those matters separately.
6

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

Supra note 7 at Chapter 3.700, Exhibit 1 (January 2010).

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process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathew v. Eldridge, 424 U.S.
319 (1976). These cases held only that a claimant who was in receipt of benefits (in Goldberg
public assistance and in Mathews social security benefits) could not be terminated without due
process. Appellant had received no schedule award under the fifth edition.
In Harry D. Butler,10 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A., Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.11 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A., Guides.12 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed
The Board finds that OWCP, consistent with its procedures, applied the correct edition of
the A.M.A., Guides in determining appellant right arm impairment.
In a January 11, 2011 report, Dr. Weiss opined that appellant has 18 percent permanent
partial impairment of the right upper extremity under the sixth edition of the A.M.A., Guides.
OWCP found Dr. Weiss’ report of diminished probative value upon which to base a current
permanent impairment rating as his findings were based on an examination performed in 2006.
In July 2007 an OWCP medical adviser reviewed Dr. Weiss’ 2006 examination findings and
found that such examination findings did not correlate well with a 2002 electromyogram/nerve
conduction test as well as a November 23, 2005 treating physician’s report. While Dr. Weiss’
most recent report provided an impairment rating under the sixth edition of the A.M.A., Guides,
the record contained no current or supplemental medical examination from Dr. Weiss with
current findings supporting his application of the A.M.A., Guides. Dr. Weiss’ impairment rating
contained in his January 11, 2011 report is thus of diminished probative value and insufficient to
create a conflict in medical opinion evidence with Dr. Iulo’s impairment rating.
OWCP’s medical adviser agreed with Dr. Iulo that an 11 percent permanent impairment
of the right arm existed under the range of motion stand-alone method under Table 15-34, page
475. Under Table 15-34 page 475, 120 degrees shoulder flexion equates 3 percent; 100 degrees
shoulder abduction equals 3 percent; 20 degrees shoulder adduction equals 1 percent; 70 degrees
external rotation equals 0; and 40 degrees internal rotation equals 4 percent, for 11 percent total
right upper extremity impairment. Under Table 15-35, page 477 an 11 percent range of motion
corresponds to a grade modifier of 1. Dr. Iulo found no change for functional history modifier
under Table 15-7, page 406 and Table 15-35, page 477. Thus, the grade modifier for functional
history was 1 and grade modifier range of motion was 1. Under Table 15-36, page 477, there is
no net adjustment. Thus, the evidence establishes 11 percent permanent impairment of the right

10

43 ECAB 859 (1992).

11

Id. at 866.

12

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

5

upper extremity under the range of motion stand-alone method. There is no current medical
evidence based on current finding supporting any greater impairment.
Appellant may request an increased schedule award based on medical evidence showing
progression of an employment-related condition resulting in an increased impairment.
CONCLUSION
The Board finds that the evidence does not establish more than 11 percent impairment of
the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2011 decision of the Office of
Workers Compensation Programs is affirmed.
Issued: April 12, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Adelanto, CA, Employer
__________________________________________

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

Docket No. 12-16
Issued: April 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 3, 2011 appellant filed a timely appeal from a July 25, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
right knee injury in the performance of duty on November 24, 2010.
FACTUAL HISTORY
On November 25, 2010 appellant, then a 40-year-old correctional officer, filed a
traumatic injury claim (Form CA-1) alleging that on November 24, 2010 he sustained an injury

1

5 U.S.C. § 8101 et seq.

when his right foot became entangled in a mattress liner, causing him to twist his right knee. He
notified his supervisor on November 27, 2010.
In a November 29, 2010 x-ray report, Dr. Michael Rappaport, a Board-certified
diagnostic radiologist, stated that the right knee appeared normal with no fracture, erosive or
destructive changes, joint effusion or other soft tissue abnormality.
In a November 29, 2010 report, Dr. Rama T. Pathi, a Board-certified orthopedic surgeon,
advised that appellant sustained a work-related injury on November 24, 2010 when he twisted
his right knee after stepping on a piece of bed foam. Upon physical examination of the right
knee, he noted mild swelling and tenderness over the medial joint, mild effusion over the knee
joint and no laxity of the anterior cruciate ligament. Dr. Pathi stated that McMurray and Apley
tests were positive and the neurovascular examination was normal. He diagnosed a meniscus
tear to the right knee and opined that the injury was a direct result of appellant’s November 24,
2010 work-related injury.
In follow-up treatment notes dated from December 6, 2010 to January 24, 2011, Dr. Pathi
reported that appellant continued to complain of right knee pain, swelling, tenderness and
popping and clicking with quick turns of the knee. He noted that a November 29, 2010 x-ray of
the right knee was normal and a January 3, 2011 magnetic resonance imaging (MRI) scan
revealed a focal area of increased T2 signal within the medial margin of the medial tibial plateau.
Dr. Pathi diagnosed right knee meniscus tear and trabecular bone injury of the right tibial
plateau.
By letter dated February 10, 2011, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
In a January 3, 2011 diagnostic study, Dr. Nastaran Fatemi, a Board-certified diagnostic
radiologist, reported that the MRI scan of appellant’s right knee showed a focal area of increased
T2 signal within the medial margin of the medial tibial plateau, likely secondary to trabecular
bone injury. He also noted that the medial and lateral menisci demonstrated normal signal and
morphology without evidence of tear.
By decision dated March 14, 2011, OWCP denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish a diagnosed medical condition and that a
diagnosed condition was causally related to the November 24, 2010 employment incident.
On July 13, 2011 appellant requested reconsideration of OWCP’s decision.
By letter dated June 1, 2011, Dr. Pathi reported that appellant’s January 3, 2011 MRI
scan revealed a trabecular bone injury to the medial tibial plateau. He stated that regardless of
the MRI scan report, appellant was still positive for a medial meniscus tear. In addition,
Dr. Pathi also diagnosed appellant with trabecular bone injury of the right knee.

2

By decision dated July 25, 2011, OWCP denied modification of its March 14, 2011
decision.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
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.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.6 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. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of 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.7

2

While this decision noted the legal standard for denial of merit review, the Board finds that this decision was in
fact a merit review, as it reviewed the newly submitted evidence of record, denied modification of the prior decision
and provided appeal rights consistent with a merit review.
3

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

4

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

5

Elaine Pendleton, supra note 3.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
OWCP accepted that the November 24, 2010 incident occurred as alleged. In its July 25,
2011 decision, it found insufficient evidence to establish a firm medical diagnosis of appellant’s
condition. The Board finds that the medical evidence of record establishes a diagnosis of right
knee medial meniscus tear and trabecular bone injury. Dr. Pathi diagnosed the meniscus tear
upon a thorough physical examination and positive McMurray and Apley tests. He noted that
the MRI scan results did not change his diagnosis of right knee medial meniscus tear and also
diagnosed right knee trabecular bone injury. The issue is whether the November 24, 2010
incident caused his right knee injury. Appellant must submit rationalized medical evidence to
establish that his diagnosed right knee condition is causally related to the accepted November 24,
2010 employment incident.
While Dr. Pathi’s reports establish a diagnosis, they are not rationalized as to the issue of
causal relation. He obtained a history that appellant sustained a work-related injury on
November 24, 2010 when he twisted his right knee after stepping on a piece of bed foam.
Dr. Pathi failed to provide an adequate explanation of how the incident accepted in this case
caused or contributed to appellant’s right knee meniscus tear and trabecular bone injury. Though
he concluded that a causal connection existed between appellant’s injury and the November 24,
2010 employment incident, his reports provide insufficient support for that conclusion. Dr. Pathi
merely recounted the incident as described by appellant, but did not offer a rationalized opinion
on the issue of causal relationship.8 Medical reports without adequate rationale on causal
relationship are of diminished probative value and do not meet an employee’s burden of proof.9
The opinion of a physician supporting causal relationship must rest on a complete factual and
medical background supported by affirmative evidence, address the specific factual and medical
evidence of record and provide medical rationale explaining the relationship between the
diagnosed condition and the established incident or factor of employment.10 Dr. Pathi’s reports
do not meet that standard and are insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship because the diagnostic reports fail to state any opinion on causal relationship.11
Appellant may submit additional evidence, together with a written request for reconsideration, to
OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. §§ 10.606 and 10.607.
In the instant case, the record is without rationalized medical evidence establishing a
causal relationship between November 24, 2010 employment incident and appellant’s right knee
medial meniscus tear and trabecular bone injury. Thus, appellant has failed to establish his
burden of proof.
8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

See Lee R. Haywood, 48 ECAB 145 (1996).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a right knee injury on November 24, 2010 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 23, 2012
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDWARD HINES, JR. VETERANS MEDICAL
CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 12-1240
Issued: December 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 17, 2012 appellant filed a timely appeal from a December 16, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than seven percent impairment of his left leg, for
which he received a schedule award.
FACTUAL HISTORY
On November 16, 2010 appellant, then a 55-year-old police officer, filed a traumatic
injury claim alleging that on November 10, 2010 he fell against a door frame and injured his left
knee at work. He stopped work that day and returned on November 18, 2010. OWCP accepted
1

5 U.S.C. §§ 8101-8193.

that claim for rupture of the left quadriceps tendon and paid benefits, including a December 7,
2010 surgical repair.
On September 9, 2011 appellant requested a schedule award.
In a September 13, 2011 letter, appellant and his physician, Dr. Nilamkumar Patel, an
internist specializing in cardiovascular disease, were informed of the evidence needed for an
impairment determination under the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides). No response was received from
Dr. Patel.
In a September 8, 2011 report, Dr. Craig McAsey, an orthopedic surgeon, noted that
appellant completed a work hardening program and a functional capacity evaluation. He stated
that appellant reached maximum medical improvement and could return to work at full duty. A
June 6, 2011 functional capacity evaluation was submitted. A September 1, 2011 work
hardening note discharged appellant from work conditioning.
In an October 28, 2011 report, Dr. Anatoly M. Rozman, a Board-certified physiatrist,
stated that, since the December 2010 surgery, appellant had residual weakness and pain in the
left knee. The functional capacity evaluation revealed limited range of motion and strength with
swelling in the left knee. Dr. Rozman noted that appellant had problems going up and down
stairs and overextension of the left knee on standing because of tendon weakness. Under the
sixth edition of the A.M.A., Guides, he opined that appellant had 27 percent impairment of the
left leg. In a lower extremity permanent impairment worksheet dated October 28, 2011,
Dr. Rozman provided a primary impairing diagnosis of quadriceps tendon rupture with
subsidiary diagnoses of medial and lateral meniscus injury and chondromalacia patella directly
related to the primary diagnosis. Under Table 16-3, page 509, he noted that the ruptured tendon
diagnosis with mild motion deficits was a class 1 with default grade C. Appellant had a grade 1
modifier for functional history, physical examination and clinical studies. He used the net
adjustment formula on page 521 to rate final impairment of seven percent for ruptured tendon
with mild motion defects. Under Table 16-3 page 509, for the diagnosis of medial and lateral
meniscal injury, Dr. Rozman stated that appellant was class 1 with default grade C of 10 percent
impairment. He assigned grade 1 modifiers for functional history, physical examination and
clinical studies, using the net adjustment formula. Dr. Rozman rated a final impairment of 10
percent for medial and lateral meniscal injury. For the diagnosis of chondromalacia patella,
under Table 16-3, page 511, he stated that appellant was class 1 with default grade C of 10
percent. Dr. Rozman assigned grade 1 modifiers for functional history, physical examination
and clinical studies, using the net adjustment formula. He rated final impairment 10 percent for
chondromalacia patella. Dr. Rozman stated that the combined left lower extremity impairments
was 27 percent. He found that maximum medical improvement was October 21, 2011.
On November 27, 2011 an OWCP medical adviser reviewed the medical evidence,
including Dr. Rozman’s October 28, 2011 report. The medical adviser concurred with
Dr. Rozman that, under Table 16-3, page 509 of the A.M.A., Guides, a ruptured tendon with
mild motion deficits was a class 1 diagnosis with default grade C rating of seven percent. Using
the net adjustment formula on page 521, the medical adviser agreed that appellant had grade 1
modifier for antalgic limp and grade 1 modifier for physical examination, for a net adjustment of

2

zero. Therefore, appellant had final impairment of seven percent for ruptured tendon with mild
motion deficits. The medical adviser stated that Dr. Rozman had added ratings for meniscal
injuries and chondromalacia of the patella to appellant’s diagnoses, which were not accepted
diagnoses. Maximum medical improvement was noted as the date appellant was released to fullduty work, September 1, 2011.
By decision dated December 16, 2011, OWCP granted appellant a schedule award for
seven percent impairment to the left lower extremity. The award covered a period of 20.16
weeks from September 2, 2011 to January 14, 2012. Determinative weight was accorded to the
medical adviser’s opinion.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However, it
does not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants.4 For decisions issued after
May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.5
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment
formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Evaluators are directed to provide
reasons for their impairment rating choices, including the choices of diagnoses from regional
grids and calculations of modifier scores.6
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.7

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

FECA Bulletin No. 09-03 (issued March 15, 2009).

6

R.V., Docket No. 10-1827 (issued April 1, 2011).

7

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

3

ANALYSIS
OWCP accepted appellant’s claim for and paid appropriate benefits, including the
December 3, 2010 surgical repair of the left quadriceps tendon. By decision dated December 16,
2011, it granted him a schedule award for seven percent permanent impairment of the left lower
extremity using the applicable table of the sixth edition of the A.M.A., Guides. The Board finds
that appellant has not met his burden of proof to establish that he has impairment of his left lower
extremity greater than the seven percent awarded.
In an October 28, 2011 report and permanent impairment worksheet, Dr. Rozman
evaluated appellant’s impairment under Table 16-3 of the A.M.A., Guides and opined that, for
the diagnoses of quadriceps tendon rupture, medial and lateral meniscus injury, and
chondromalacia patella appellant had 27 percent left lower extremity impairment. For the
quadriceps tendon rupture, he advised that appellant had a default impairment rating of seven
percent to the left lower extremity and, after applying grade modifiers to the net adjustment
formula, there was no adjustment to the default rating of seven percent impairment. For both the
diagnoses of medial and lateral meniscus injury and chondromalacia patella, Dr. Rozman advised
that appellant had 10 percent impairment each to the left lower extremity and, after applying
grade modifiers to the net adjustment formula, there was no adjustment to the default rating of 10
percent impairment. OWCP’s medical adviser reviewed Dr. Rozman’s report and agreed with
the impairment rating of seven percent for quadriceps tendon rupture, but found that the
impairment of 10 percent each for the medial and lateral meniscus injury and chondromalacia
patella were not part of appellant’s accepted diagnoses and, thus, could not be included in the
impairment award.
As noted, the A.M.A., Guides classifies the lower extremity impairment by diagnosis,
which is then adjusted by grade modifiers.8 In this case, based on a review of Dr. Rozman’s
examination findings, the medical adviser applied Table 16-3 and assigned a CDX of 1 with a
default grade of C for left quadriceps tendon rupture with mild motion deficits. He then selected
a grade modifier value of 1 for both GMFH and GMPE, citing appellant’s antalgic limp and
physical examination. As the net adjustment formula of (GMFH-CDX) + (GMPE-CDX) or (11) + (1-1), yielded 0, the medical adviser found that modification of the default grade was
unnecessary and established that appellant sustained seven percent permanent impairment of the
left lower extremity. The Board finds that the medical adviser properly applied the standards of
the A.M.A., Guides to reach his conclusion that appellant sustained a seven percent permanent
impairment to the left lower extremity based on the diagnosis of left quadriceps tendon rupture
with mild motion deficits.
The Board further finds that appellant is not entitled to a schedule award for the
conditions of meniscal injuries and chondromalacia of the patella. There is no indication that
those are accepted conditions or preexisted the accepted injury. Conditions which preexist the
employment injury would be considered in evaluating whether there is any permanent

8

R.V., Docket No. 10-1827 (issued April 1, 2011).

4

impairment as a result of the accepted conditions of rupture of the left quadriceps tendon.9
However, there is no indication that the meniscal injuries and chondromalacia of the patella
preexisted the accepted injury.10
There is no other medical evidence, in conformance with the A.M.A., Guides, supporting
a greater percentage of impairment.
Accordingly, the Board finds that the medical adviser correctly applied the A.M.A.,
Guides to find that appellant had seven percent permanent impairment of the left lower
extremity, for which he received a schedule award. Appellant has not submitted sufficient
evidence to establish that he has more than seven percent impairment to the lower left extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has more than seven percent
permanent impairment of the left lower extremity, for which he received a schedule award.

9

When assessing the percentage of impairment of those conditions accepted by OWCP as job related, any
preexisting permanent impairment of the same member is included. See K.H., Docket No. 09-341 (issued
December 30, 2009).
10

Furthermore, the A.M.A., Guides, provide that in most cases only one diagnosis in a region will be appropriate
for calculating impairment. The A.M.A., Guides note that, if a patient has two significant diagnoses, the examiner
should use the diagnosis with the highest impairment rating in that region that is causally related. Here, the only
diagnosis that is accepted as causally related is the ruptured tendon. See A.M.A., Guides 497.

5

ORDER
IT IS HEREBY ORDERED THAT the December 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF AGRICULTURE,
WENATCHEE NATIONAL FOREST,
Wenatchee, WA, Employer
__________________________________________

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

Docket No. 07-487
Issued: August 21, 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 December 12, 2006 appellant filed a timely appeal from the September 7, 2006
decision of the Office of Workers’ Compensation Programs denying reconsideration of his claim
for a period of disability compensation. The most recent merit decision in the case is that dated
June 28, 2005, which denied his claim for disability compensation. Because appellant filed this
appeal more than a year following the last merit decision in this case, pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has no jurisdiction over the merits of this case. The only
decision properly before the Board is the nonmerit decision denying reconsideration.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
for a period of disability compensation pursuant to 5 U.S.C. § 8128. On appeal, appellant
contends that the Office failed to consider the findings of the second opinion physician.

FACTUAL HISTORY
On May 10, 2004 appellant, then a 65-year-old laborer, filed a traumatic injury claim,
Form CA-1, alleging that he was injured as a result of being knocked into a ditch by the bucket
of a backhoe on May 5, 2004. On June 1, 2004 the Office accepted his claim for right shoulder
abrasion, right forearm contusion, left thigh contusion, right calf contusion, right knee abrasion,
head contusion and lumbar strain. With the approval of Dr. Joseph Jensen, a family practitioner,
appellant returned to work without restrictions on June 21, 2004.
On January 12, 2005 appellant filed a claim for compensation for the period
December 22, 2004 to January 22, 2005. He submitted an attending physician’s report dated
December 22, 2004 from Dr. Douglas Burns, a Board-certified physiatrist, who indicated that
appellant was disabled from work. In a progress note of the same date, Dr. Burns indicated that
Dr. Jensen had transferred appellant’s care and treatment to him. He noted that appellant was
complaining of pain in the low back, primarily on the right side and right leg pain. Dr. Burns
diagnosed low back pain with advanced degenerative disc disease, spinal stenosis at the
foraminal area and radiculitis. He stated that appellant was limited to lifting and carrying not
more than 10 pounds continually and 20 pounds intermittently.
On January 14, 2005 the Office notified appellant that he had submitted insufficient
evidence to establish that he had experienced a recurrence of disability beginning
December 22, 2004. On February 4, 2005 appellant stated that though he returned to work on
June 21, 2004 he continued to have problems related to numbness in his toes and postconcussion
syndrome symptoms of sleepiness and lack of concentration, which worsened steadily. He stated
that he sought early layoff on September 16, 2004 because of his concussion syndrome. After
appellant was refused, he used annual leave, sick leave and leave without pay to cover the
remaining three pay periods prior to his seasonal layoff on October 30, 2004. Along with his
written statement, he resubmitted medical reports prepared by Dr. Jensen and Dr. Burns that
were already in the record, highlighting sections which discussed his right leg pain and
numbness and post-traumatic stress disorder.
By decision dated June 28, 2005, the Office denied appellant’s claim for disability
compensation on the grounds that he had submitted insufficient evidence to establish that his
disability was related to his accepted employment injury. The Office noted that on June 14, 2004
Dr. Jensen stated that there was “near-resolution of all problems” related to the employment
injury and, on November 8, 2004, indicated that appellant had “never complained of inability to
perform full job function.” The Office found that the medical evidence submitted by appellant
did not explain how his claimed period of disability was related to the May 4, 2004 employment
injury and did not establish his total disability.
On February 23, 2006 the Office referred appellant to Dr. Joan Sullivan, a Board-certified
orthopedic surgeon, for a second opinion on the status of his employment injuries. In a
March 24, 2006 report, Dr. Sullivan stated that appellant’s work-related condition had not
resolved and that he was “quite symptomatic and also impaired.” She opined that appellant
sustained probable concussion in addition to his contusions and abrasions, that his multilevel
spondylosis had been aggravated by the accepted injury, and that his “possible L5 radiculopathy”
should be accepted as employment related. Dr. Sullivan stated that appellant was “disabled

2

totally from performing full duty.” The Office sought clarification of her opinion, which she
provided on May 19, 2006. Dr. Sullivan stated that what appellant’s lumbar spine had sustained
was more than just a strain injury in the accident and was still symptomatic. She stated that her
conclusion that appellant’s preexisting spinal condition had been aggravated by the employment
injury was based on the fact that he had the condition but no symptoms prior to the accepted
injury. Following receipt of Dr. Sullivan’s reports, the Office made no other findings related to
Dr. Sullivan’s opinion and did not refer appellant for further medical examinations.
On June 19, 2006 appellant filed a request for reconsideration based on new medical
evidence. He stated that Dr. Burns had requested an independent medical examination on July 6,
2005 to clarify the status of his claim. After initially denying this request, the Office scheduled a
second opinion examination with Dr. Sullivan, who examined appellant on March 24, 2006.
Appellant stated that, while he did not have a copy of Dr. Sullivan’s report, a nurse in Dr. Burns’
office had informed him that it declared him to be totally disabled. Along with his request, he
resubmitted copies of medical reports and duty status reports already in the record.
By decision dated September 7, 2006, the Office denied further merit review of
appellant’s claim on the grounds that the evidence appellant had submitted “had no probative
value to the issues at hand.” The Office’s decision did not indicate that it had considered
Dr. Sullivan’s reports.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.1 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that: (i) shows that the
Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal
argument not previously considered by the Office; or (iii) constitutes relevant and pertinent new
evidence not previously considered by the Office.2 Section 10.608(b) provides that, when an
application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), the Office will deny the application for reconsideration without
reopening the case for a review on the merits.3
The Act provides that the Office shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as the Office considers necessary with respect
to the claim. Since the Board’s jurisdiction of a case is limited to reviewing that evidence which
was before the Office at the time of its final decision, it is necessary that the Office review all
evidence submitted by a claimant and received by the Office prior to issuance of its final
decision. As the Board’s decisions are final as to the subject matter appealed, it is critical that
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b)(2).

3

20 C.F.R. § 10.608(b).

3

the Office review all newly received evidence relevant to that subject matter prior to the time of
issuance of its final decision.4
ANALYSIS
The Board finds that this case is not in posture for a decision. The Office denied
appellant’s claim for compensation from December 22, 2004 to January 22, 2005 on the grounds
that the evidence did not establish his total disability or that it was caused by his employment
injuries. Appellant requested reconsideration of this decision on the basis of the new medical
evidence, including that of second opinion physician Dr. Sullivan, a Board-certified orthopedic
surgeon. By decision dated September 7, 2006 the Office denied the request for reconsideration,
finding that none of the evidence appellant had submitted was relevant. It does not appear that
the Office reviewed the reports of Dr. Sullivan, which address the issues of disability and
causation, when deciding not to review the merits of his claim. The Board has held that it is
crucial that all evidence relevant to the subject matter in the record prior to the time of issuance
of the final decision be considered by the Office.5 The fact that the evidence in question was
solicited by the Office does not change its status as evidence of record which the Office must
review. The Board notes that, although Dr. Sullivan submitted her initial report in March 2006
and her clarifying report in May 2006, the Office did not review it in any way. It is therefore
appropriate for the Office to review Dr. Sullivan’s medical opinion in appellant’s request for
reconsideration. The Board finds that this case should be remanded for a proper review of the
evidence and an appropriate final decision.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand, the Office
should review all medical opinion evidence which it has not formerly considered, including
Dr. Sullivan’s reports, in its determination of whether appellant is entitled to a review on the
merits. After this and such other development as the Office deems necessary, the Office should
issue an appropriate decision.

4

William A. Couch, 41 ECAB 548 (1990).

5

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision dated September 7, 2006 is set aside
and the case is remanded for action consistent with this opinion.
Issued: August 21, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Osage Beach, MS, Employer
__________________________________________

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

Docket No. 13-1193
Issued: May 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 18, 2013 appellant filed a timely appeal from an October 24, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an
emotional condition. 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 that she sustained an
emotional condition in the performance of duty.
On appeal, appellant contends that the medical evidence established that she sustained an
emotional condition causally related to factors of her federal employment.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 10, 2011 appellant, then a 54-year-old postmaster, filed a claim alleging a
recurrence of a June 15, 2010 injury on July 5, 2011.2 She returned to work initially as the
Officer-in-Charge (OIC) in Olean, a small office with no stress; but on June 6, 2011, she was
returned to regular work with no restrictions. Appellant stated that the high stress and long hours
of her former assignment caused a recurrence of a sleep disturbance, racing thoughts, insomnia,
anxiety, concentration difficulties, inattention while driving and depression. By letter dated
September 16, 2011, OWCP informed her to file a new claim.
On September 20, 2011 appellant filed an occupational disease claim alleging that she
suffered from acute symptoms of bipolar 2 type disorder caused by work stress. She was
previously hospitalized on two occasions with bipolar 2 disorder, recently on June 15
through 22, 2010. Appellant returned to work in a small level 11 office with less stress and,
while working in that office, she returned to baseline. She returned to full duty on June 8, 2011
at the employing establishment and after four weeks, the added stress aggravated her bipolar
disorder requiring emergency treatment on July 5, 2011 and medical leave.
In support of her claim, appellant discussed her employment history. She noted that she
was employed at the employing establishment, which was classified as a level 18 office, since
May 2004. Appellant was hospitalized from June 15 to 22, 2010 for acute symptoms of bipolar
2 disorder and her claim was accepted by OWCP.3 She returned to work on August 9, 2010 and
on August 15, 2010 she began a temporary assignment at the Olean, Missouri office, which was
a smaller, level 11 office. On May 19, 2011 appellant’s OIC assignment in Olean was cancelled
and she was instructed to return to the employing establishment on June 6, 2011 and was
formally transferred back to the postmaster position on June 8, 2011. She alleged that the stress
from working in that office caused a recurrence of her acute bipolar 2 disorder symptoms on
July 5, 2011 and required her to go out on medical leave on July 6, 2011. Appellant alleged the
following work factors: (1) she had to work 50 to 60 hours a week to complete the required
work; (2) the employing establishment was understaffed; (3) in June and July 2011, two of her
rural route carriers had accidents (one was bitten by a dog and one fell) and that this required
extensive paperwork as well as causing her to worry about their well-being; (4) that she dealt
with issues with transfer papers for an employee; (5) she worked on address management audit
and address changes due to a new major highway bypass; (6) she worked on an employee pay
advance that had not cleared; (7) she handled a Walgreen’s pick-up plan in a short time period;
(8) she worked on a time consuming union request; (9) she dealt with a very irate customer with
regard to a missing package on June 29, 2011; (10) she dealt with an issue with a condominium
complex and a cluster box which turned into a fight with one man who came into her office daily
to complain about the matter; (11) when she did key inventory she noted that keys had been lost
and not reported to inspectors and that missing arrow keys were a security issue; (12) discussed
2

Although appellant listed the date of the original injury as June 15, 2011, when describing the recurrence she
noted that she was hospitalized on June 15, 2010 for a week for suicidal ideation and acute symptoms of bipolar 2
disorder caused by work stress. Accordingly, the June 15, 2011 date listed on her notice of recurrence appears to be
a typographical error.
3

OWCP File No. xxxxxx090.

2

issues with regard to missing stamps; (13) she received a letter on June 24, 2011 that SOX audits
would begin and that she was concerned that the employing establishment would be audited
because it was a large revenue office; (14) that she was denied bulk mail training; (15) she
worked on retail customer experience program which involved extra work; and (16) dealt with
three of the six vehicles being out for repairs. On July 5, 2011 the telephone rang nonstop, she
was short staffed and a truck was late bringing the mail. Appellant went to see her physician that
day and was placed on medical leave.
In support of her claim of stress with regard to missing keys, appellant submitted a page
from standard operating procedure manual of the employing establishment, indicating that an
accurate inventory of all building keys and signed receipts for all assigned keys must be kept,
that inventory reviews must be conducted twice each year (in June and December) and that the
inventory must be documented. The procedures noted that arrow keys need to be locked up
every day and that management must verify daily that all arrow and metro lock keys are on hand
and must be documented on a worksheet. There is also correspondence dated from June 16
through July 1, 2011 evincing that there have been reports of missing arrow keys lately, so the
district wanted to see copies of all Form 2022’s and asked postmasters to ensure that arrow keys
and metro keys are listed on logs.
In an August 9, 2011 report, Dr. Jean A. Gilstrap, a Board-certified psychiatrist, noted
that appellant had been under her care since December 2006 for treatment of bipolar 2 disorder
type 2. She noted that appellant had been doing well for over a year until her work stress
increased dramatically. Dr. Gilstrap noted that factors contributing to appellant’s condition
included staffing shortages, staff theft that resulted in increased surveillance at the employing
establishment and the performance of an audit. Appellant’s workload significantly increased and
resulted in an episode of severe depression. Dr. Gilstrap noted that appellant’s symptoms
included depressed/dysphoric mood, mood lability, sleep disturbance and initial insomnia,
interval awakening and early morning awakening, racing thoughts, concentration difficulties and
periods of agitation. Appellant developed serious suicidal ideation and required impatient
hospitalization from June 15 through 22, 2010. Following her discharge from the hospital, her
condition did not improve enough to return to work until July 27, 2010. After some
consideration, appellant was placed in a small post office with less demands to accommodate her
medical condition. She was allowed to remain in that position until May 2011 and during that
time, she did well and was able to manage the stress of work. In June 2011, appellant returned to
the postmaster position at the employing establishment and experienced stress due to high
volume work and had a recurrence of depressive and anxiety symptoms. Dr. Gilstrap noted that
appellant reported increased anxiety and sleep difficulties on June 27, 2011. On July 5, 2011
appellant was seen on an emergency basis for depressive symptoms, with diagnoses of bipolar
disorder type 2 depressed. Dr. Gilstrap stated that appellant’s symptoms at that time included
depressed/fretful mood, severely impaired sleep, disorganized thought processes, inability to
start and complete tasks and inability to communicate with staff and customers. She placed
appellant on medical leave. Dr. Gilstrap last saw appellant on August 1, 2011, at which time
appellant was struggling with depressive symptoms and that she did not release appellant to

3

work. As she was closing her office, appellant was in the process of establishing care with
another psychiatrist. Dr. Gilstrap opined:
“I do not think [appellant’s] medical problem can tolerate the stress involved in
working at the [employing establishment] location. This is a very busy, high
volume position. From [appellant’s] description, there are problems with turnover
in staffing resulting in frequent understaffing. [Appellant] with her [b]ipolar [2]
[d]isorder cannot tolerate the demands of this position. She did very well in the
Olean office from August 2010 to May 2011. I believe that the duties of the
postmaster position at the [employing establishment] are simply too demanding
for [appellant’s] stress tolerance with her illness. In my opinion, the exacerbation
of her [b]ipolar [2] [d]isorder last summer and again this summer are directly
related to the stress of this position.”
Appellant also submitted treatment notes and other reports from Dr. Gilstrap dated from
August 1, 2011 to July 14, 2012.
In an August 31, 2011 report, Dr. Agara S. Reddy, a psychiatrist,4 noted that appellant
was referred to him by Dr. Gilstrap. He diagnosed bipolar 2 disorder, current episode is mixed
phase, in good remission. In a September 28, 2011 report, Dr. Reddy noted that appellant’s
depression, anxiety and somatic symptoms are still quite bothersome. In an October 19, 2011
report, he noted that her mood and affect were slowly improving, but that she still had significant
mood swings ranging from depressed to hypomanic like symptoms that affect significantly her
full level of function. In a November 16, 2011 report, Dr. Reddy indicated that appellant’s
depression and anxiety continued to improve. In a November 16, 2011 excuse slip, he noted that
she had not returned to baseline at that time. In a January 18, 2012 report, Dr. Reddy indicated
that appellant’s depression and anxiety and somatic symptoms continue to be increasingly
distressing to her. Appellant noted passive suicidal thought without any plans or intent. On
February 20 and March 15, 2012 Dr. Reddy advised that she was unable to return to work and
had not returned to baseline.
By decision dated March 28, 2012, OWCP denied appellant’s claim. It found that she did
not establish any compensable factors of employment.
On April 20, 2012 appellant requested an oral hearing before an OWCP hearing
representative. At the telephonic hearing held on August 8, 2012 she testified that she was
stressed by the refusal of the employing establishment to assign her to a smaller office.
Appellant noted that she was stressed when keys were missing because with the arrow keys one
had to notify postal inspectors. The arrow keys are the ones that fit the drop boxes and she
would be held accountable for missing keys even though they were not lost on her watch.
Appellant also discussed stress involved when bulk mail training was denied, stamps were
missing, a SOX audit was threatened, the employing establishment was understaffed and her
work on investigating accidents. She noted that, while her son was bipolar and an alcoholic, he
did not get in trouble or go to jail until October 2011 which was three to four months after he
4

The Board cannot confirm whether Dr. Reddy is Board-certified.

4

became sick at work. Until that time he was clean and sober and had been doing better; but he
stopped taking his medicine in September 2011.
In a September 5, 2012 report, Dr. Reddy noted that appellant was currently under his
care. He stated that it was his medical opinion, based upon her review of Dr. Gilstrap’s medical
records and appellant’s current treatment with her, along with appellant’s job description, that
her illness from July 5, 2011 through January 2012 was caused or was contributed to her by busy
work from June to July 2011.
By decision dated October 24, 2012, OWCP’s hearing representative found that appellant
had established 14 compensable factors of employment. Appellant’s claim was denied as the
hearing representative found that the medical evidence did not establish that a compensable
factor of employment caused or contributed to her psychiatric condition.
LEGAL PRECEDENT
To establish a claim that he or she sustained an emotional or stress-related condition in
the performance of duty, an employee must submit: (1) factual evidence identifying employment
factors or incidents alleged to have caused or contributed to the condition; (2) medical evidence
establishing that he or she has an emotional or stress-related disorder; and (3) rationalized
medical opinion evidence establishing that the identified compensable employment factors are
causally related to the condition. If a claimant implicates a factor of employment, OWCP should
determine whether the evidence of record substantiates that factor. Allegations alone are
insufficient to establish a factual basis for an emotional condition claim and must be supported
with probative and reliable evidence. If a compensable factor of employment is established,
OWCP must then base its decision on an analysis of the medical evidence.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. When an employee experiences emotional stress in carrying
out his or her employment duties and the medical evidence establishes that a disability resulted
from this emotional reaction, the disability is generally regarded as due to an injury arising out of
and in the course of employment. This holds true when the disability results from an emotional
reaction to a special assignment or other requirement imposed by the employing establishment or
by the nature of the work. On the other hand, there are disabilities that have some causal
connection with the claimant’s employment but nonetheless fall outside FECA’s coverage
because they are found not to have arisen out of employment, such as when a disability results
from a fear of a reduction-in-force or frustration from not being permitted to work in a particular
environment or to hold a particular position.7

5

G.G., Docket No. 13-644 (issued July 19, 2013).

6

28 ECAB 125 (1976).

7

William E. Seare, 47 ECAB 663 (1996).

5

Administrative and personnel matters, although generally related to the claimant’s
employment, are administrative functions of the employing establishment rather than the regular
or specially-assigned work duties of the claimant and are not covered under FECA.8 However,
the Board has held that an administrative or personnel matter will be considered an employment
factor where the evidence discloses error or abuse on the part of the employing establishment. In
determining whether the employing establishment erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
ANALYSIS
At the time of the alleged injury, appellant worked as postmaster at the employing
establishment. She had numerous responsibilities with regard to running this busy, level 18
branch of the employing establishment. Appellant alleged that various factors of her
employment caused stress and an aggravation of her bipolar disorder. In its October 24, 2012
decision, OWCP accepted that she had established compensable factors of employment with
regard to stress caused during her federal employment as follows: (1) the shortage of 300 64cent stamps; (2) being understaffed and overworked; (3) extra work incurred as a result of having
to deal with two rural carriers having accidents in the same week; (4) working in a busy office
which included telephone ringing nonstop and many changes of addresses and lost packages;
(5) working 50 to 60 hours a week; (6) extra work regarding the transfer of an employee;
(7) doing work on an address management audit; (8) doing work on an employee pay advance
that had not cleared; (9) doing work with regard to a Walgreens “pick up program” in a short
turn-around time; (10) dealing with three of six vehicles being out for repair; (11) dealing with a
situation with an angry customer over a piece of missing mail; (12) doing time consuming work
on a union request; (13) having to deal with an irate condominium customer; and (14) dealing
with an excessively busy day on July 5, 2011. However, the hearing representative found other
factors noncompensable. Accordingly, the Board will address these factors prior to discussing
the medical evidence.
Appellant listed several factors that were administrative matters and not compensable.
She listed as a factor that she was denied a permanent assignment to the Olean branch.
Appellant noted that this branch was a level 11 office and that she was fine while she worked at
this stressful office. Her position at this office was terminated when the regular postmaster for
the Olean office returned and the employing establishment determined that no other position was
available within her pay grade and commuting area other than the position at the employing
establishment. Disability is not covered where it results from an employee’s frustration from not
being permitted to work in a particular environment or to hold a particular position. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.10 Accordingly, appellant’s frustration at being transferred from the Olean office is not
8

M.C., Docket No. 10-1628 (issued June 8, 2011); Matilda R. Wyatt, 52 ECAB 421 (2001).

9

M.D., 59 ECAB 211 (2007); Ruth S. Johnson, 46 ECAB 237 (1994); see also Thomas D. McEuen, 41 ECAB
387 (1990), reaff’d on recon., 42 ECAB 566 (1991).
10

Lillian Cutler, supra note. 6.

6

compensable. Furthermore, she alleged that the employing establishment denied her request for
bulk mail training. The Board has held that matters related to training by the employing
establishment are an administrative matter which is not covered under FECA absent error or
abuse by the employing establishment in such a matter.11 Appellant provided no evidence
supporting that the employing establishment unreasonably refused to provide appropriate
training, so she has not established a compensable factor in this regard.
Appellant claims a psychiatric injury because she received an e-mail on June 24, 2011
that the new SOX audits had begun. She stated that she believed that the chances were good that
the employing establishment would be audited and that she was stressed because she was
shorthanded all week. The Board has held that fear-of-future injury is not a compensable factor
of employment.12
The Board finds, however, that appellant has established a compensable factor of
employment in the loss of keys. Multiple memoranda as well as the standard operating
procedure manual for the employing establishment discuss responsibility for keeping track of
keys, note that there had been an increase in the loss of arrow keys and stressed greater diligence
in monitoring the keys. Accordingly, appellant has established this additional factor of
employment.
As appellant has established 15 compensable factors of federal employment, the next
question is whether the medical evidence is sufficient to establish that she suffered an emotional
condition causally related to these accepted factors. OWCP determined that she had not
established this causal relationship.
The Board finds that this case is not in posture for decision on the issue of whether the
medical evidence established that one of the accepted compensable factors of employment
caused or aggravated appellant’s emotional condition. Dr. Gilstrap treated appellant from
December 2006 to August 1, 2011. In reports dated July 14 and August 1, 2011, she indicated
that appellant’s emotional condition had not returned to baseline and that she was not able to
return to work. Dr. Reddy also submitted notes indicating that appellant was not at baseline on
November 16, 2011, February 20 or March 15, 2012. However, there is no discussion as to what
either Dr. Gilstrap or Dr. Reddy meant by “baseline.”
In an August 9, 2011 report, Dr. Gilstrap noted that appellant had been doing well for
over a year until her work stress increased dramatically at the employing establishment. She
noted that contributing factors included staffing shortages, staff theft resulting in increased
surveillance of the office and the performance of an audit, and opined that these issues
significantly increased her workload and stress, which resulted in an episode of severe
depression. Dr. Gilstrap opined that the exacerbation of appellant’s bipolar disorder in summer
of 2010 and the summer of 2011 were directly related to the stress of her position. In an undated
report received by OWCP on January 25, 2012, she noted that appellant was at baseline in a less
11

See also C.B., Docket No. 11-1457 (issued February 10, 2012); see Lorraine E. Schroeder, 44 ECAB 323,
330 (1992).
12

A.B., Docket No. 13-558 (issued June 19, 2013); Mary A. Geary, 43 ECAB 300 (1991).

7

stressful environment, but indicated that, if she were to return to the more stressful postmaster
position at the employing establishment, she anticipated that the stress/responsibilities would
result in a recurrence of appellant’s depressive symptoms. Dr. Gilstrap recommended that
appellant remain at the small office location. She discussed appellant’s difficulties at the
employing establishment, noting that it was a very busy office with frequent understaffing.
Dr. Gilstrap’s medical opinion is insufficient to establish causal relationship. Initially, the Board
notes that fear of future injury is not a compensable factor of employment. Dr. Gilstrap
expressed concern that appellant’s return to the busier office could result in an aggravation of her
emotional condition. The fear that one might sustain further injury is self-generated and not a
compensable factor of employment.13 Furthermore, Dr. Gilstrap opined that appellant’s
significantly increased workload and stress at her employment resulted in an episode of severe
depression and an exacerbation of her bipolar disorder. Although she noted staffing shortages,
staff theft, increased surveillance of the office and increased workload and stress, she did not
discuss these incidents in detail. As appellant alleged an exacerbation of her preexisting bipolar
disorder, it is important that she address how the specific compensable factors caused the
exacerbation of her condition.
Dr. Reddy opined that appellant’s exacerbation of her bipolar disorder was directly
related to the stress of the position. He did not discuss the specific factors of employment; he
just indicated that based upon his review of her job description and Dr. Gilstrap’s treatment
notes, appellant’s illness from July 5, 2011 through January 2012 was caused or contributed to
by her busy work for the employing establishment from June 2011 until July 2011. Dr. Reddy’s
general statements do not address the specific compensable factors and are therefore insufficient
to establish causal relationship.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While appellant has the burden to establish entitlement to compensation, it shares
responsibility in the development of the evidence to see that justice is done.14 While the medical
reports of Drs. Gilstrap and Reddy do not contain sufficient medical reasoning to discharge
appellant’s burden of proof, these reports raise an uncontroverted inference of causal relationship
sufficient to require further development of the case record by OWCP.15
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to an appropriate Board-certified specialist for an evaluation and a rationalized medical
opinion regarding the cause of appellant’s claimed emotional condition. After such further
development as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds this case not in posture for decision.

13

Joseph G. Cutrufello, 46 ECAB 285 (1994); see also A.B., Docket No. 13-558 (issued June 19, 2013).

14

William J. Cantrell, 34 ECAB 1223 (1983).

15

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision.
Issued: May 29, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hilliard, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul Felser, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1534
Issued: February 17, 2012

Oral Argument January 19, 2012

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

JURISDICTION
On June 17, 2011 appellant, through his attorney, filed a timely appeal of a March 2,
2011 decision of the Office of Workers’ Compensation Programs (OWCP), denying his
application for reconsideration without merit review of the claim. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the March 2, 2011 nonmerit decision. Since more than 180 days elapsed from
the last merit decision on June 24, 2009 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s application for reconsideration
without merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2008 appellant, then a 32-year-old air traffic controller, filed a traumatic
injury claim (Form CA-1) alleging that he sustained an emotional condition causally related to
his federal employment on November 30, 2008.2 On the claim form, he indicated that two
planes had come in close proximity to each other.
By decision dated January 22, 2009, OWCP denied the claim, finding there was no
compensable work factors established. It found that appellant was in training and not
responsible for the planes in question. Furthermore, the planes had remained a safe distance
apart.
On April 10, 2009 appellant requested reconsideration of his claim. He stated that he was
a certified air traffic controller who had been recently transferred and while he was in training
status he was still responsible for the safety of aircraft within his area of jurisdiction. Appellant
stated that the aircraft did not maintain safe distance and a safety alert on one of the aircrafts was
recorded. He subsequently submitted a May 29, 2009 letter to rebut the statement provided by
the employer’s air traffic manager.
In a decision dated June 24, 2009, OWCP reviewed the case on its merits and denied
modification. It found that safety alerts were not issued by appellant and the evidence did not
establish that the planes came in close proximity.
By letter dated June 23, 2010, appellant, through counsel, filed an application for
reconsideration. He stated that he made a request on September 28, 2009 to the employing
establishment, under the Freedom of Information Act (FOIA), for records pertaining to the
November 29, 2008 incident. Appellant noted that a June 16, 2010 response from the employing
establishment stated that there were no records, which he felt was incorrect based on prior
statements. He contended that he should be entitled to an evidentiary presumption that
wrongfully withheld information would support his allegations. Appellant asserted that the
employing establishment had not offered any compelling evidence that would refute his
statements. He cited case law arguing that, as long as an employment factor contributed in any
way to a disabling condition, there was a compensable injury. Appellant argued that he met his
burden of proof.
Appellant submitted numerous personnel forms (SF-50), a section of an employing
establishment document regarding air traffic incidents and the June 16, 2010 letter from the
employing establishment regarding his FOIA request. He also submitted reports from E. Paul
Biknell, Ph.D, a clinical psychologist, dated April 13, 2009, April 20 and July 20, 2010.
Appellant resubmitted memorandum from employing establishment personnel dated
December 17 and 22, 2008 and May 18, 2009. Of record is a copy of an unidentified and
undated statement regarding the November 29, 2008 incident. The statement had been included
in appellant’s May 29, 2009 letter that was before OWCP at the time of the June 24, 2009 merit
decision.
2

Appellant later clarified that the date of the incident was November 29, 2008.

2

By decision dated September 27, 2010, OWCP found that the application for
reconsideration was insufficient to warrant further merit review of the claim. In a decision dated
October 6, 2010, it vacated the September 27, 2010 decision, finding that it contained
“typographical and grammatical errors.”3
In a decision dated March 2, 2011, OWCP found that the application for reconsideration
was insufficient to warrant merit review of the claim. It found that the application did not meet
the requirements for further merit review.4
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”6 Section
10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.7
ANALYSIS
Appellant submitted a June 23, 2010 application for reconsideration and accompanying
evidence. To be entitled to a review of the merits of his claim for compensation, appellant must
meet one of the three standards noted above. The Board finds that he did not meet any of the
requirements for further merit review.
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law. In the application for reconsideration, his notes case law regarding causal relationship
between an employment factor and a disabling condition. OWCP found that there were no
compensable work factors based on the evidence of record. Appellant did not identify a specific
point of law in this regard or show that OWCP erroneously applied or interpreted a point of law.
He clearly disagreed with OWCP’s finding that the November 29, 2008 incident was not a
compensable work factor, but there is no showing that OWCP erroneously applied or interpreted
a specific point of law.

3

The decision included a paragraph regarding wage-earning capacity based on a selected position.

4

The decision again included an extraneous paragraph regarding wage-earning capacity in a selected position.

5

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application).”
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

3

The Board also finds that appellant did not advance a new and relevant legal argument.
Appellant argued that the employing establishment withheld evidence and there should be a
presumption that corroborating evidence supporting his claim would have been submitted. He
does not cite to any authority for invocation of this presumption. If appellant believes there is
additional relevant evidence from the employing establishment, then he may seek such evidence
in an appropriate forum. In this case, the employing establishment submitted evidence regarding
the November 29, 2008 incident, as had appellant, and this evidence was reviewed by OWCP.
There is no basis for any evidentiary presumption arising from an employing establishment
statement that there are no additional records. Where a legal argument presented has no
reasonable color of validity, OWCP is not required to reopen the case for merit review.8
With respect to the submission of new, relevant and pertinent evidence, the Board finds
that appellant did not meet this requirement. The statements from the employing establishment
personnel regarding the November 29, 2008 incident were previously of record and do not
constitute new evidence. None of the evidence that was “not previously considered by OWCP”
is relevant or pertinent to the issue of a compensable work factor. The personnel records such as
SF-50 forms are not relevant to the issue presented. Appellant had stated that he was an air
traffic controller who had been transferred and was undergoing training. Such evidence was
before OWCP at the time of the June 24, 2009 merit decision. The letters regarding the FOIA
requests only establish that the employing establishment maintained there was no additional
relevant evidence regarding the incident. Appellant submitted an unidentified document
regarding the November 29, 2008 incident, the contents of which had been included with his
May 29, 2009 statement and, therefore, it is not considered new evidence. With respect to
medical evidence submitted, no compensable work factors had been established and the medical
evidence is not relevant to the underlying factual issue.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
constitute relevant and pertinent evidence not previously considered by OWCP. Since he did not
meet the requirements of 20 C.F.R. § 10.606(b)(2), OWCP properly denied the application for
reconsideration without merit review of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s application for reconsideration
without merit review of the claim.

8

Norman W. Hanson, 40 ECAB 1160 (1989).

9

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2011 is affirmed.
Issued: February 17, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5