United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Cleveland, OH, Employer
)
___________________________________________ )
E.W., Appellant

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

Docket No. 17-1988
Issued: January 28, 2019

Case Submitted on the Record

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

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from two August 23, 2017 merit
decisions 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.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish disability
for two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted
November 14, 2002 employment injury; and (2) whether appellant has met her burden of proof to
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 23, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

establish a recurrence of disability for the period January 16 through March 14, 2017, causally
related to her accepted November 14, 2002 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On January 19, 2003 appellant, then a 32-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, while in the performance of duty, she sat down on a wooden
bench in the women’s locker room and fell onto the floor. By decision dated April 14, 2003 OWCP
accepted her claim for the condition of low back (lumbosacral) sprain/strain. By decision dated
January 11, 2005, it expanded the acceptance of appellant’s claim to include the additional
condition of herniated disc at L5-S1.
Following her employment injury, appellant was working full time with a 20-pound lifting
restriction until her work hours were reduced to six hours per day with a 10-pound lifting restriction
on or around April 24, 2009, based upon a duty status report (Form CA-17) which was completed
by a physician with an illegible signature. She continued light-duty employment until August 2010
when the employing establishment was no longer able to accommodate her restrictions. Appellant
filed claims for compensation (Form CA-7) and OWCP paid her wage-loss compensation on the
periodic rolls for total disability.4
OWCP referred appellant to vocational rehabilitation on February 4, 2011, based upon the
medical findings of Dr. Scott Massien, a Board-certified internist and treating physician, who
noted that her lumbosacral sprain and strain had resolved, but that her L5-S1 disc herniation
continued to produce pain. Dr. Massien noted his review of the job description for a mail handler
and determined that she could not perform those employment duties. He assigned restrictions
limiting appellant’s work to 2.5 hours per day for 5 days per week with various restrictions on her
physical functioning. In a report dated July 11, 2011, Dr. Massien noted that she could work for
six hours per day with various restrictions on her physical functioning which were determined by
a work capacity evaluation.
By decision dated March 20, 2013, OWCP reduced appellant’s wage-loss compensation as
she failed to complete vocational rehabilitation. On March 28, 2013 appellant requested an oral
hearing. By decision dated June 11, 2013, a hearing representative reversed the March 20, 2013
decision, finding that OWCP had improperly reduced appellant’s compensation without issuing
the requisite prereduction notice pursuant to 5 U.S.C. § 8113(b). Benefits were reinstated at the
previous level retroactive to March 20, 2013. A loss of wage-earning capacity (LWEC)

3

Docket No. 03-1880 (issued November 17, 2003); Docket No. 10-0968 (issued February 1, 2011); and Docket
No. 14-0584 (issued July 29, 2014).
4
By decision dated February 1, 2011, the Board found that appellant had not met her burden of proof to establish
a recurrence of disability beginning May 5, 2009 causally related to her accepted employment injury. Id.

2

determination was thereafter issued by OWCP on July 19, 2013 and was affirmed by the Board in
its decision dated July 29, 2014.5
On October 15, 2015 appellant accepted a limited-duty job offer as a mail handler
(modified) working for two hours a day, five days per week. She continued to work in that position
until January 16, 2017 when her work assignment was amended to two hours a day, four days per
week.
In a January 12, 2017 treatment note, Dr. Tim Nice, a Board-certified orthopedic surgeon,
noted that he saw appellant on December 29, 2016. He indicated that she could not return to work
for the period January 13 through February 13, 2017.
Appellant thereafter submitted several claims for compensation (Form CA-7) following
her change in duty status.
In an August 11, 2016 Form CA-17, Dr. Nice indicated that appellant could perform
modified duty for two hours a day, four days a week. In a May 4, 2017 Form CA-17, he again
indicated that appellant could resume her limited-duty employment for two hours a day, four days
per week.
In a letter dated May 5, 2017, D.J., an employing establishment human resources specialist,
provided additional information and copies of previously submitted evidence. She also included
a May 4, 2017 e-mail from the employing establishment which indicated that they were not aware
of any work stoppage due to no work available. Furthermore, the employing establishment advised
that there was no change in appellant’s restrictions and that her October 15, 2015 job offer
remained in effect.
In a May 4, 2017 treatment note, Dr. Nice explained that he had not seen appellant for a
year. He advised that she continued to take her medicine and lived with pain in her back. Dr. Nice
noted that appellant worked two hours a day standing “and even that bothers her.” He examined
her and reported a negative straight leg raise on the left and a negative straight leg raise on the
right. Dr. Nice determined that the straight leg raise went to 90 degrees and did not create back
pain, but appellant had some pain behind her knee. He found that she had a good muscle strength
examination of both lower extremities which were symmetric. Dr. Nice found that appellant
denied any paresthesias in her right leg. He also indicated that she has had disc issues at L5 in the
past and that she was given a sedentary work status when she had her functional capacity
examination. Dr. Nice noted that appellant had not seen a neurologist or neurosurgeon. He
advised that she had electrical studies which showed a very mild chronic L5-S1 radiculopathy,
mostly on the right side. Dr. Nice also indicated that appellant was also claiming to have pain in
the left leg, but there were “absolutely no neurologic findings in the left leg.” He continued her
on her present work restrictions.
5

On June 18, 2013 OWCP provided prereduction notice of its intent to reduce appellant’s wage-loss compensation
based upon the constructed position of doctor’s office clerk. By decision dated July 19, 2013, it finalized the proposed
reduction of her wage-loss compensation benefits. A hearing representative, by decision dated March 14, 2014,
affirmed the LWEC determination. On February 27, 2014 appellant requested a modification of her LWEC
determination. By decision dated April 21, 2014, OWCP denied her request for modification.

3

On May 14, 2017 appellant filed a claim for compensation (Form CA-7) requesting
intermittent disability during the period April 29 to May 12, 2017. On a time analysis form, dated
May 16, 2017, she noted that April 29 and 30, 2017 were her days off, and indicated “no work
available.” Appellant also noted eight hours for May 1, 2017 as her off day. For May 4, 2017,
she noted eight hours for a physician visit as she saw Dr. Nice for back pain. For May 5, 2017,
appellant noted eight hours for back pain. She claimed a total of 76 hours of compensation.
In a May 25, 2017 memorandum of telephone call, OWCP determined that appellant’s job
offer required that she work two hours a day, four days a week. It was noted in the memorandum
that time was taken off due to medical appointments on May 4 and 6, 2017. OWCP explained to
appellant that she attended her medical appointments during the day and that she was scheduled to
work at night. It further explained to appellant that she could not take time off for medical
appointments and claim temporary total disability as they were two different issues. OWCP also
addressed her complaint of loss of work due to pain. It instructed that, if appellant was disabled
from work, that was in essence a recurrence that must be established with substantive medical
evidence.
In a letter dated June 6, 2017, appellant provided a note from Dr. Nice. Dr. Nice explained
that she could return to work on May 9, 2017 following his May 4, 2017 examination. In a note
to OWCP appellant noted that, due to drowsiness, she could not drive and “rest the night away due
to my injury on job.”
In a June 23, 2017 memorandum of phone call, OWCP verified that appellant worked two
hours and was in six hours of leave without pay status on March 23, 2017. In a separate
memorandum of the same date, OWCP’s claims examiner indicated that the physician’s note for
May 4 to 9, 2017 “did not include much.”
On June 26, 2017 OWCP manually adjusted appellant’s underpayment, providing
compensation for six hours on March 23, 2017.6
In a June 12, 2017 treatment note, Dr. Nice indicated that he saw appellant three months
ago and opined that she was able to work two hours a day and she wanted to continue working the
two hours a day. He noted that she was experiencing numbness in her left foot, which was
something new. Dr. Nice advised that appellant’s reflexes, though decreased bilaterally were
symmetric in the Achilles and the patella reflexes. He found that the muscle strength was negative
and the straight leg raise maneuver was negative bilaterally. Dr. Nice opined that he could not
account for what appellant was claiming to have, but he explained that a magnetic resonance
imaging (MRI) scan from 2014 showed the degenerative disc at L5 with a four millimeter bulge
mostly on the right. He explained that now her symptoms were on the left and right. Dr. Nice
indicated that it was possible that “this has gotten worse.” He advised that appellant was going to
6

In a June 27, 2017 note, appellant indicated that she had still not been paid for lost wages of 34 hours. She listed
the dates as: 4 hours from March 4 to 17, 2017; 4 hours from March 18 to 31, 2017; and 4 hours from April 29 to
May 12, 2017, and explained that she was not paid for her off day of Monday of 2 hours each; 4 hours for the period
May 13 to 26, 2017; and 6 hours for wage loss not paid on March 23, 2017, appellant noted that it was her error as
she had skipped the date on the Form CA-7; and 12 hours for being out sick from May 4 to 5, 2017, appellant filled
in physician appointment not paid.

4

have a neurologic consultation and they might have to repeat electrical studies and the MRI scan
to her back. Dr. Nice indicated that she could continue working.
In a letter dated June 30, 2017, OWCP noted that they had received appellant’s Form CA7 claiming compensation for the period April 29 through May 12, 2017. It paid compensation for
May 1 through 5, 2017 and May 8 through 12, 2017, for a total of 60 hours in the amount of
$1,153.88. OWCP noted that development had also been undertaken to determine entitlement to
compensation for an additional two hours on both May 1 and 8, 2017 as these were days off, but
four hours were subsequently paid. It therefore noted that for the period April 29 through May 12,
2017, as claimed on the May 14, 2017 Form CA-7, there remained only four hours under
consideration. These hours related two hours for her examination with Dr. Nice on May 4, 2017
and absence due to back pain on May 9, 2017. OWCP denied payment for these four hours due to
lack of medical documentation to support recurrent disability.
In a July 27, 2017 report, Dr. Nice noted that there was some debate regarding appellant’s
work status on May 4 and 5, 2017. He explained that she was seen in his ofﬁce for her usual
appointment for her back symptoms on May 4, 2017. Dr. Nice indicated that appellant was having
a bad day and he refilled her medication. He explained that she was also off on May 5, 2017
because of the ongoing symptoms in her left leg. Dr. Nice noted that appellant did not return to
work until May 6, 2017, which would probably be appropriate based on the symptoms she was
having on May 4, 2017. He explained that she was working two hours a day, four days a week.
Dr. Nice advised that appellant continued to take anti-inﬂammatories and occasional pain
medicine, as well as therapy modalities and seemed to be tolerating this work schedule. He opined
that there was no overall change in her work status or symptomatology with a negative neurologic
examination. Dr. Nice noted that appellant was actually doing better than she was when he saw
her in May 2017. He also completed a duty status report of the same date.
In an August 14, 2017 letter, appellant indicated that she had not been paid for May 4 and
5, 2017. She indicated that she was off sick for a medical appointment due to severe and ongoing
leg (nerve) pain with numbness and tingling on the left leg. Appellant explained that she was
prescribed medication and rest and was awaiting electromyography testing and had been referred
to a neurologist on July 14, 2017. She noted that she experienced constant back pain and she could
not drive because her medication made her sleepy.
On August 15, 2017 OWCP received a copy of appellant’s May 18, 2017 modified
position. The two hours that appellant was scheduled to work on her scheduled workdays were
listed as 19:00 to 21:00 (7:00 p.m. to 9:00 p.m.)
By decision dated August 23, 2017, OWCP denied appellant’s claim for an additional four
hours of compensation for the period May 4 to 5, 2015 (two hours of wage loss each day), finding
that the evidence of record was insufficient to establish that she was disabled from work as a result
of her accepted conditions.
By separate decision also dated August 23, 2017, OWCP denied appellant’s recurrence of
disability claim for the period January 16 through March 14, 2017 as she failed to establish that
she was disabled due to a material change or worsening of her accepted conditions.

5

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.8 For each period of
disability claimed, the employee has the burden of proof to establish that he or she was disabled
from work as a result of the accepted employment injury.9 Whether a particular injury causes an
employee to become disabled from work, and the duration of that disability, are medical issues
that must be proven by a preponderance of probative and reliable medical opinion evidence.10
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.11 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.12 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in her employment, the claimant is entitled to compensation for any loss of wages.13
A claimant who has returned to work following an accepted injury or illness may need to
undergo examination or treatment and such employee may be paid compensation for wage loss
while obtaining medical services and for a reasonable time spent traveling to and from the medical
provider’s location.14 A claimant may be paid compensation for wage loss while obtaining medical
services and for a reasonable time spent traveling to and from the medical provider’s location.15
As a rule, no more than four hours of compensation or continuation of pay should be allowed for
routine medical appointments. Longer periods of time may be allowed when required by the nature
of the medical procedure and/or the need to travel a substantial distance to obtain the medical
care.16

7

Supra note 1.

8

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
9

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

10

See Edward H. Horton, 41 ECAB 301 (1989).

11

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).
12

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

13

E.B., Docket No. 17-1160 (issued December 19, 2018); Merle J. Marceau, 53 ECAB 197 (2001).

14

C.Y., Docket No. 17-0605 (issued January 11, 2018); Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35
ECAB 950 (1984).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
16

Id. at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998)

6

ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish disability for
two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted
November 14, 2002 employment injury.
In support of her claim for compensation, appellant submitted medical reports of Dr. Nice.
In a May 4, 2017 treatment note, Dr. Nice examined her and provided findings. He noted that
appellant was also claiming to have pain in the left leg, but there were “absolutely no neurologic
findings in the left leg.” Dr. Nice continued her work restrictions and did not offer an opinion that
she was unable to perform her two hours of work that day, which as listed in her job offer, was
from 7 p.m. to 9 p.m. He also provided a separate May 4, 2017 duty status report (Form CA-17)
and indicated that appellant could resume her limited duties of two hours a day, four days per
week. In another report dated May 4, 2017, Dr. Nice explained that appellant was seen in his
office that day for an appointment and she could return to work on May 9, 2017. However, he did
not offer a reason for the time off from work. These medical reports do not establish that appellant
was disabled from her light-duty employment position, as her restrictions remained unchanged and
Dr. Nice did not provide a medical opinion supporting her loss of two hours of employment.
Furthermore, the medical appointment was scheduled and occurred during nonwork hours.
Therefore appellant has not met her burden of proof to establish that she incurred a loss of wages
to obtain this treatment.17
In a July 27, 2017 report, Dr. Nice noted that there was some debate on appellant’s work
status on May 4 and 5, 2017. He explained that she was seen in his ofﬁce for her usual appointment
for her back symptoms on May 4, 2017. Dr. Nice indicated that appellant was having a bad day
and he refilled her medication. He explained that she was also off on May 5, 2017 because of the
ongoing symptoms in her left leg. Dr. Nice noted that appellant did not return to work until May 6,
2017, which would probably be appropriate based on the symptoms she was having on
May 4, 2017. He opined that there was no overall change in her work status or symptomatology
with a negative neurologic examination. Dr. Nice noted that appellant was actually doing better
on that date than she was when he saw her in May 2017. This medical report also fails to support
appellant’s claim for compensation. Dr. Nice did not provide a rationalized medical opinion
explaining why appellant could not work for two hours on May 4, 2017 or two hours on
May 5, 2017.
As appellant has not submitted rationalized medical evidence establishing disability from
work for the periods claimed, she has not met her burden of proof to establish her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 10.5(x) of OWCP’s Code of Federal Regulations provides that a recurrence of
disability means an inability to work after an employee has returned to work, caused by a

17

Id.

7

spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.18
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative and substantive evidence, a recurrence
of total disability, and to show that he or she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the light-duty job requirements.19
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.20 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.21 The physician’s opinion
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.22
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability for the period January 16 through March 14, 2017, causally related to her accepted
November 14, 2002 employment injury.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. She must therefore provide medical evidence establishing that she was disabled due
to a worsening of her accepted work-related conditions.23
In support of her claim, appellant presented a January 12, 2017 note from Dr. Nice.
Dr. Nice indicated that he saw her on December 29, 2016 and that she could not return to work for
the period January 13 through February 13, 2017. However, this report does not contain a
diagnosis or an opinion as to why appellant was disabled for the period January 13 through
February 13, 2017 and unable to work.24 Dr. Nice did not provide clear physical findings
18

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

19

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

20

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

21

Duane B. Harris, 49 ECAB 170, 173 (1997).

22

Gary L. Fowler, 45 ECAB 365, 371 (1994).

23

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

24
Medical evidence which does not offer any opinion regarding causal relationship is of no probative value. See
L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

8

supporting appellant’s disability for work during the period in question and did not provide any
rationale explaining how or why appellant was disabled due to a worsening of her accepted workrelated conditions.25 Therefore this report is insufficient to establish her claim.
In a progress note dated May 4, 2017, Dr. Nice saw appellant for complaints of back pain.
He examined her and continued her on her present work status. Likewise, Dr. Nice’s return to
work note of May 4, 2017 advised that appellant could return to work on May 9, 2017 while his
June 12, 2017 progress note provided findings and indicated that she continue working two hours
per day. Dr. Nice provided a July 27, 2017 progress note, which advised that on May 4, 2017
appellant was having a bad day and took some time off work through May 6, 2017. He indicated
that she was doing better than she was in May 2017. However, these reports are insufficient to
establish appellant’s claim as they do not address any period of disability claimed from January 16
through March 14, 2017 and they lack any medical rationale supporting disability.26
No other medical reports specifically address how appellant’s disability on the aforenoted
dates was caused or aggravated by her accepted conditions.
The Board thus finds that the evidence of record is insufficient to establish that there was
a change in the nature or extent of appellant’s injury-related condition, or a change in the lightduty requirements, that would prohibit her from performing the light-duty position for the period
January 16 through March 14, 2017, causally related to her accepted employment injuries. Thus,
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
two hours on May 4, 2017 and two hours on May 5, 2017, causally related to her accepted
November 14, 2002 employment injury. The Board also finds that she has not met her burden of
proof to establish a recurrence of disability for the period January 16 through March 14, 2017,
causally related to her accepted November 14, 2002 employment injury.

25

See J.M., Docket No. 16-0306 (issued May 5, 2016).

26

Supra note 24.

9

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: January 28, 2019
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-37
Issued: March 27, 2014

Case Submitted on the Record

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

JURISDICTION
On October 16, 2013 appellant filed a timely appeal from a September 3, 2013 decision
of the Office of Workers’ Compensation Programs (OWCP) denying her 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 established that she sustained an emotional condition in
the performance of duty.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant described a series of incidents in which coworkers struck or swore
2

at her.

FACTUAL HISTORY
On June 24, 2013 appellant, then a 51-year-old district operations supervisor, filed a
traumatic injury claim (Form CA-1) alleging that she sustained stress with consequential
hypertension due to a June 21, 2013 incident that occurred at 8:00 p.m.
In a July 2, 2013 letter, the employing establishment controverted the claim, asserting
that appellant was able to manage the postal operation without difficulty from 8:00 p.m. on
June 21, 2013 through the end of her work shift at 2:00 a.m. on June 22, 2013. Appellant did not
report the incident until June 24, 2013.
In a July 25, 2013 letter, OWCP advised appellant of the evidence needed to establish her
claim, including a complete description of the alleged June 21, 2013 incident together with
factual corroboration and witness statements. It also requested a statement from her attending
physician explaining how and why the June 21, 2013 incident caused the claimed emotional
condition. Appellant was afforded 30 days to submit such evidence.
In support of her claim, appellant submitted a July 29, 2013 statement asserting that she
was able to complete her work shift on June 21, 2013 but did so while stressed. She mentioned
an “assault by an employee” and that she was “cursed out by another employee” when
reprimanding them for failing to follow instructions. Appellant also submitted reports dated
June 24 to July 17, 2013 from Dr. Barry A. Baker, an attending Board-certified internist, who
held appellant off work due to an anxiety disorder, hypertension and cardiac issues which he
attributed to unspecified work stress.
By decision dated September 3, 2013, OWCP denied appellant’s claim on the grounds
that fact of injury was not established. It found that she did not submit a sufficient description of
the claimed June 21, 2013 incident or any witness statements corroborating what had occurred.
OWCP further found that appellant failed to describe additional workplace incidents involving
any physical assault or verbal altercation.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

2

Appellant submitted new evidence accompanying her request for appeal. The Board may not consider new
evidence for the first time on appeal that was not before OWCP at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c). Appellant may submit such evidence to OWCP accompanying a request for reconsideration.

2

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
Where disability results from an employee’s reaction to his or her regular or specially
assigned duties or to a requirement imposed by the employment, the disability comes within the
coverage of FECA.5 To establish entitlement to benefits, a claimant must establish a factual
basis for the claim by supporting the allegations with probative and reliable evidence.6 This
burden includes the submission of a detailed description of the employment factors or conditions
which appellant believes caused or adversely affected the condition or conditions for which
compensation is claimed.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship.8 If a claimant implicates a factor of employment, OWCP should
then determine whether the evidence of record substantiates that factor. When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.9
ANALYSIS
Appellant alleged that she sustained an emotional condition due to an incident or
incidents occurring on June 21, 2013. She noted in general that she was assaulted by one
employee and cursed at by another; however, appellant did not provide a detailed description of
the incidents of June 21, 2013, or any factual evidence that the incidents took place at the time,
place and in the manner alleged.
The Board notes that OWCP advised appellant by a July 25, 2013 letter of the need to
provide a complete description of the claimed June 21, 2013 incidents, together with factual
evidence or witness statements corroborating her account of events. Appellant did not submit
such evidence. The employing establishment’s statement noting that appellant finished her work
shift on June 21, 2013 and did not report an incident until June 24, 2013 casts doubt on her
claim. Appellant submitted insufficient evidence to establish that the claimed June 21, 2013

3

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

4

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

5

5 U.S.C. §§ 8101-8193. Lillian Cutler, 28 ECAB 125 (1976).

6

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

7

Effie O. Morris, 44 ECAB 470 (1993).

8

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

9

Marlon Vera, 54 ECAB 834 (2003).

3

incident was factual.10 The Board therefore finds that appellant did not meet her burden of proof
to establish that she sustained an emotional condition in the performance of duty as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2013 is affirmed.
Issued: March 27, 2014
Washington, DC

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

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

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

10

Effie O. Morris, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF AGRICULTURE, ANIMAL
PLANT HEALTH INSPECTION SERVICE,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 13-399
Issued: September 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 10, 2012 appellant filed a timely appeal from the November 27, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his 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 sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On May 10, 2012 appellant, a 54-year-old financial technician/budget analyst, filed an
occupational disease claim alleging that his Graves’ disease, anxiety and major depression
1

5 U.S.C. § 8101 et seq.

disorder, panic attacks and post-traumatic stress disorder were a result of his federal
employment. He explained that he was diagnosed with Graves’ disease in 2007. Symptoms
included difficulty concentrating, anxiety, insomnia, rapid heartbeats, shortness of breath,
tremors, fatigue and nervousness. It had become mentally and physically challenging in the past
two to three years, and it worsened with agitation and a stressful environment.
From January 2010 to August 2011, appellant stated that he was frustrated everyday with
hostility and conflict with a senior budget analyst, who constantly harassed him about how his
work should be submitted, how reports should be reviewed, how his e-mails should be written,
how he should talk on the telephone, how long he was away from his desk on breaks and about
applying for a position in July 2010. The budget analyst did not think appellant was ready for
the position and advised that he remove his name from consideration.
The constant harassment and comments by the senior budget analyst, appellant explained,
aggravated his Graves’ disease. He stated, “I felt attacked, bullied, and undermined daily with
her constant harassments and comments.” Appellant filed a grievance in September 2010. Due
to stress and lack of concentration, he was unable to complete the requirements of his job.
Appellant felt that the senior budget analysts were out to get him, and he had thoughts of
physically hurting them. He added that a hiring freeze, personnel shortages, added workloads,
having to work overtime and weekends to keep up with his tasks and reports, unexpected
deadlines and meetings, and senior budget analyst demands had aggravated his Graves’ disease.
Appellant’s major depression and anxiety disorders were diagnosed in August 2011. He was
diagnosed with post-traumatic stress disorder in February 2012.
Appellant further alleged that stress at work increased his blood pressure and placed him
at risk for stroke. He stated, “I feel if I continue to work under these stressful work environment
conditions now or in the future, it would be instant death for me.”
Appellant’s supervisor confirmed that appellant worked a regular 40-hour week but did
have overtime in evenings and occasionally on weekends. This was especially true around the
status of funds period, he explained. Appellant performed much of this overtime while on
telework.
Appellant submitted several e-mails discussing how different senior budget analysts gave
him different instructions on how to review, format and report various reports. “When I
challenge you on your decision,” he wrote, “I feel the both of you think I am not a team player
by your reactions and e-mail responses. When the truth is, I do not like being pulled in one
direction by one lead Budget Analyst and in another direction by the other lead Budget Analyst
when there is a difference between you both on how reports should be reviewed, formatted and
reported.”
On July 16, 2012 OWCP denied appellant’s occupational disease claim. It found that he
failed to establish any compensable factor of employment. On November 27, 2012 an OWCP
hearing representative affirmed the denial. Although appellant had made several allegations of
work factors, there was no factual support for any abuse or error on the part of the employer. He
documented no wrongdoing. There remained no factually established, compensable factor of
employment upon which to predicate a claim for benefits.

2

On appeal, appellant argues that he submitted medical records, e-mails and letters to
support his claim. He repeated his allegations about hostility and conflict with a senior budget
analyst.
LEGAL PRECEDENT
FECA provides compensation for disability resulting from personal injury sustained
while in the performance of duty.2 The phrase “sustained while in the performance of duty” is
regarded as the equivalent of the coverage formula commonly found in workers’ compensation
laws, namely, “arising out of and in the course of employment.”3 “In the course of employment”
relates to the elements of time, place and work activity. To “arise out of employment,” the injury
must have a causal connection to the employment, either by precipitation, aggravation or
acceleration.4
Workers’ compensation does not apply to each and every injury or illness that is
somehow related to employment. In the case of Lillian Cutler,5 the Board explained that there
are distinctions as to the type of employment situations giving rise to a compensable emotional
condition arising under FECA. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the scope of coverage.
When an employee experiences emotional stress in carrying out his or her employment duties
and the medical evidence establishes that the disability resulted from an emotional reaction to
such situation, the disability is generally regarded as due to an injury arising out of and in the
course of employment. This is true when the employee’s disability results from his or her
emotional reaction to a special assignment or other requirement imposed by the employing
establishment or by the nature of the work. In contrast, a disabling condition resulting from an
employee’s feelings of job insecurity per se is not sufficient to constitute a personal injury
sustained in the performance of duty within the meaning of FECA. Thus, disability is not
covered when it results from an employee’s fear of a reduction-in-force or from such factors as
an employee’s frustration in not being permitted to work in a particular environment or to hold a
particular position.6
Administrative and personnel matters, although related to the employee’s employment,
are functions of the employer rather than the regular or specially assigned work duties of the
employee.7 As a general matter, workers’ compensation does not cover an emotional reaction to

2

Id. at § 8102(a).

3

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
4

See Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
5

28 ECAB 125 (1976).

6

Id.

7

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

3

administrative or personnel actions unless the evidence shows error or abuse on the part of the
employing establishment.8
The Board has held that actions of an employer which the employee characterizes as
harassment or discrimination may constitute a factor of employment giving rise to coverage
under FECA, but there must be evidence that harassment or discrimination did in fact occur. As
a rule, allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim.9 Mere perceptions and feelings of harassment or discrimination will not support
an award of compensation. The claimant must substantiate such allegations with probative and
reliable evidence.10 The primary reason for requiring factual evidence from the claimant in
support of his allegations of stress in the workplace is to establish a basis in fact for the
contentions made, as opposed to mere perceptions of the claimant, which in turn may be fully
examined and evaluated by OWCP and the Board.11
ANALYSIS
Appellant attributed his Graves’ disease, anxiety and major depression disorder, panic
attacks and post-traumatic stress disorder primarily to his interaction with a lead or senior budget
analyst. It is well settled that an employee’s reaction to supervision is not a compensable factor
of employment under Lillian Cutler.12 Complaints about the manner in which a supervisor
performs his or her duties or the manner in which a supervisor exercises his or her discretion fall,
as a rule, outside the scope of coverage provided by FECA. This principle recognizes that a
supervisor or manager must be allowed to perform his or her duties and that employees will, at
times, dislike the actions taken. Mere disagreement or dislike of a supervisory or managerial
action is not compensable, absent evidence of error or abuse.13
8

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991), reaff’d on recon., 41 ECAB 387 (1990).

9

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
10

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
11

Paul Trotman-Hall, 45 ECAB 229 (1993) (Groom, Alternate Member, concurring).

12

Reco Roncaglione, 52 ECAB 454 (2001) (disagreement with the associate warden held not compensable,
whether viewed as a disagreement with supervisory instructions or as perceived poor management); Robert Knoke,
51 ECAB 319 (2000) (where the employee attributed his emotional injury to the manner in which his supervisor
spoke to him about undelivered mail, the Board found that a reaction to the instruction itself was not compensable,
as work assignments given by supervisors in the exercise of supervisory discretion are actions taken in an
administrative capacity and as such, are outside the coverage of FECA); Frank A. Catapano, 46 ECAB 297 (1994)
(supervisory instructions, with which the employee disagreed, held not compensable in the absence of evidence of
managerial error or abuse); Rudy Madril, 45 ECAB 602 (1994) (where the employee questioned his supervisor’s
instructions to move from belt number five to belt number six and unload mail and became upset because he felt he
was being pushed and picked on, the Board found that the incident was not a compensable factor of employment).
13

T.G., 58 ECAB 189 (2006).

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To bring this part of his claim within the scope of FECA, appellant must establish that the
senior budget analyst committed a specific administrative error or abuse in dealing with him. He
stated that he filed a grievance in September 2010, but the record contains no final decision
finding that the senior budget analyst violated any particular rule or any of appellant’s rights.
Although appellant clearly took issue with the manner in which he was being supervised, he has
submitted no proof that the conduct amounted to harassment or abuse. All he has submitted are
his allegations and perceptions. This is not enough to establish a factual basis for his claim.
Appellant also attributes his Graves’ disease and other conditions to his workload. This
was due to the constant harassment, which led to stress and a lack of concentration, which in turn
led to his being unable to complete the requirements of his job. This was also due, he stated, to a
hiring freeze, a personnel shortage, added workloads, unexpected deadlines and meetings and
senior budget analyst demands.
To the extent that appellant implicated constant harassment, the Board has found that he
has failed to establish a factual basis for this allegation. To the extent that he implicates his
workload, the Board has held that conditions related to stress resulting from situations in which a
claimant is trying to meet his position requirements are compensable under Lillian Cutler,14 but
as with harassment, it is not enough simply to allege a compensable factor of employment.
Appellant has the burden to submit probative and reliable evidence to corroborate the factor
alleged. The Board has found no evidence of a hiring freeze,15 personnel shortage, added
workloads or unexpected deadlines and meetings.16
A supervisor, however, confirmed that appellant did perform overtime work in evenings
and occasionally on weekends. Given that those duties were part of his job requirements, the
Board finds that he has established a compensable factor of employment under Lillian Cutler.17
The question that remains is whether working overtime in evenings and occasionally on
weekends caused or aggravated appellant’s Graves’ disease or other claimed conditions. This is
a medical question, one that OWCP has not addressed. Accordingly, the Board will set aside
OWCP’s November 27, 2012 decision and remand the case for further adjudication. As the
record establishes a single compensable factor of employment, OWCP shall issue a de novo
decision on the outstanding issue of causal relationship.
Appellant argues that he has submitted medical records, e-mails and letters to support his
claim. OWCP will review his medical records on remand. The e-mails appellant submitted help
support that he was dissatisfied with the way in which he was being supervised, but as the Board
has explained, absent proof that a supervisor has committed a specific administrative error or
14

E.M., Docket No. 12-999 (issued October 10, 2012); Richard H. Ruth, 49 ECAB 503 (1998); supra note 7.

15

Appellant did not make clear how a hiring freeze increased his workload.

16

The demands of the senior budget analyst are, again, not compensable.

17

See J.B., Docket No. 10-181 (issued October 1, 2010) (although a supervisor denied any stressful aspects
relating to the overtime worked and refuted the claimant’s allegation that she was overworked, the supervisor did
not deny that the claimant was required to work overtime in order to complete her assigned duties); supra note 7.

5

abuse, this is not something that workers’ compensation generally covers. Appellant’s letters
and statements reiterate his perceptions and allegations, but they are not the proof required to
establish an additional compensable factor of employment.
CONCLUSION
The Board finds that this case is not in posture for decision. The record establishes a
single compensable factor of employment. Further adjudication on the medical question of
causal relationship is warranted.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: September 26, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, Minnesota, Employer
__________________________________________

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

Docket No. 07-1567
Issued: January 17, 2008

Case Submitted on the Record

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

JURISDICTION
On May 22, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 22, 2007. Pursuant to 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 met his burden of proof in establishing that he had
intermittent disability from February 13, 2006 to January 18, 2007 causally related to his
accepted spinal stenosis.
FACTUAL HISTORY
On December 28, 2005 appellant, then a 55-year-old maintenance janitor, filed an
occupational disease claim for back pain while performing his duties. He stopped work on
December 29, 2005 and worked intermittently thereafter.
Appellant submitted a November 22, 2005 magnetic resonance imaging (MRI) scan that
showed mild congenital spinal canal narrowing from L2-3 and L4-5, mild wedging T12 vertebral

body, mild right and moderate left neural foraminal narrowing at L4-5, mild right and slight left
neural foraminal narrowing at L5-S1 and slight left neural foraminal narrowing at L3-4. He
came under the treatment of Dr. Daniel Riley, a Board-certified family practitioner. On
February 22, 2006 Dr. Riley diagnosed back pain with chronic costochondritis. He advised that
appellant did not work on February 22, 2006 and wanted to work half shifts for the next two
days. In February 27 and March 6, 2006 notes, Dr. Riley reported that appellant had back pain
radiating into his left hip and leg and diagnosed regional back pain with radicular symptoms and
obesity. He advised that appellant missed work on February 27 and March 6, 2006 due to back
pain. Appellant submitted a February 15, 2006 report from Dr. Ovidiu Ardeleanu, a Boardcertified internist, who opined that appellant’s back condition was caused by his work duties that
required heavy lifting and repetitive bending. Dr. Ardeleanu noted findings of pain on palpation
of the left paravertebral muscles in the lumbosacral area and diagnosed low back pain.
In a decision dated March 30, 2006, the Office denied appellant’s claim.
Appellant requested reconsideration. In a March 10, 2006 report, Dr. Katarina X.
Guzman, a Board-certified internist, reviewed the history and indicated that appellant presented
with severe low back pain radiating to his left leg and was unable to walk. She stated that
appellant had not worked for three days due to his symptoms and diagnosed chronic low back
pain. Reports from Dr. Riley dated March 16 to August 29, 2006 noted left leg and back pain
and diagnosed chronic low back, chest pain, obesity and spinal stenosis. On May 18, 2006
Dr. Riley performed a preoperative evaluation for an MRI scan to be performed under
anesthesia. An emergency room report dated April 3, 2006 noted appellant’s treatment for back
pain and radicular symptoms and diagnosed chronic back pain. Subsequent reports from
Dr. Ardeleanu, noted low back pain since November 2005 when appellant injured his back
performing repetitive bending and lifting at work. He diagnosed low back pain and obesity.
Dr. Richard D. Hovland, a Board-certified family practitioner, noted treating appellant for low
back pain radiating into the buttocks. He diagnosed chronic low back pain and excused appellant
from work on May 9 and 10 and July 18, 2006. A July 13, 2006 report from Dr. Mark V.
Larkins, a Board-certified neurosurgeon, noted that appellant had low back and leg pain from
performing his janitorial duties. He diagnosed symptomatically preexisting lesions, congenital
stenosis present prior to his work-related incident which culminated in November 2005. In a
July 20, 2006 addendum, Dr. Larkins clarified that appellant had congenital stenosis that became
symptomatic in November 2005 as a result of his work-related activities including repetitive use
of a mop and bucket. He indicated that appellant could return to light duty.
On September 26, 2006 the Office accepted appellant’s claim for aggravation of lumbar
spinal stenosis.
On October 2, 2006 appellant filed a Form CA-7 claiming compensation for intermittent
periods from February 15 to July 31, 2006. On October 17, 2006 the Office granted him
compensation for the following dates on which he received medical treatment: 4 hours on
February 15, March 6 and 16 and April 3, May 1 and 18 and July 31, 2006 and 8 hours on
February 27, April 4, May 9, 10, 19 and May 26 and June 5, 9 and 12 and July 5, July 18, 2006
for a total of 116 hours.

2

On October 13, 2006 appellant filed a claim for intermittent disability from August 1 to
October 13, 2006.
Appellant submitted notes from Dr. Riley dated February 2 to 27, 2006. Dr. Riley
advised that appellant was unable to work on February 2, 22 and 27, 2006 and could work a fourhour shift on February 23 to 24, 2006. He treated appellant on February 27, 2006 for back pain
and diagnosed obesity, chronic costochondritis and back pain and advised that appellant was off
work that date. Dr. Riley submitted notes from February 10 to March 16, 2006, advising that
appellant could not work on February 10, March 3 to 15, 2006 due to back pain. On April 7, 17
and 20, 2006 he treated appellant for back pain radiating to his legs and advised that he could not
work on April 20, 24 and 25, 2006. Dr. Riley submitted several other notes dated April 7 to
June 15, 2006, advising that appellant could not work intermittently from April 3 and June 15,
2006 due to a doctors appointment. On June 15, 2006 he treated appellant for low back pain and
persistent radiculopathy. Dr. Riley noted that appellant was unable to work on June 16 to
27, 2006. In other notes dated July 31 to October 20, 2006, he advised that appellant could not
work half days on July 27 to October 24, 2006 intermittently, due to work-related back pain and
lumbar spine syndrome. Dr. Riley also treated appellant on October 20, 24 and 31, 2006 for
back pain.
In a February 15, 2006 treatment note, Dr. Ardeleanu noted that appellant could not work
from February 13 to 20, 2006. He treated him on June 26, 2006 for low back pain that occurred
when appellant lifted heavy objects and bent repeatedly at work. Also submitted was a note
from Dr. Jennifer A. Sterrett, a Board-certified family practitioner, who noted that appellant was
unable to work from April 3 and 4, 2006. On April 11, 2006 appellant underwent an L4-5
epidural steroid injection performed by Dr. Steve D. Wen, a Board-certified anesthesiologist.
Other reports from Dr. Hovland dated May 10 and July 18, 2006, advised that appellant could
not work on May 9 and 10 and July 18, 2006, due to low back pain radiating into the leg. On
June 19, 2006 a nurse practitioner treated appellant for ongoing symptoms, noting that he could
not work on that date.
On October 27 and November 10, 2006 appellant claimed intermittent compensation
from October 16 to November 10, 2006. On November 7 and 16, 2006 the Office asked him to
submit a comprehensive medical report from his treating physician to support disability during
this period.
Appellant submitted a May 9, 2006 nursing note indicating that he could not work
beginning May 9, 2006. A July 7, 2006 lumbar MRI scan revealed multilevel degenerative disc
changes with protrusions at L5-S1, L4-5 and an annular bulge at L3-4. A September 9, 2006
report from Dr. Ue Thao, a Board-certified plastic surgeon, noted that appellant presented with
severe back pain and reported missing work the previous day and requested a doctor’s note. He
diagnosed back pain. In a report dated October 17, 2006, Dr. Hovland treated appellant for a
flare-up of back pain with sciatic pain down the left leg that started October 16, 2006. He
diagnosed acute aggravation of his chronic back ache, flare of his left sciatica and obesity.
Appellant filed several CA-7 forms, claiming intermittent compensation for the periods
February 13 to December 25, 2006 and January 5, 2007. A November 27, 2006 report from
Dr. Riley stated that appellant could work six hours per day subject to restrictions from June 15

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to December 15, 2006. On December 4, 2006 he treated appellant for chronic chest and back
pain and excused him from work on that day. In notes dated January 8 to 12, 2007, Dr. Riley
advised that appellant was unable to work from April 5 to 11, 2006 due to back pain that
appeared to be work related. On January 18, 2007 he treated appellant for back pain that was an
aggravation of his work-related injury. Reports from Dr. Ardeleanu dated November 15, 2006,
January 3 and 24, 2007, noted treatment of appellant on those dates for chronic back pain caused
by him lifting heavy objects and bending on his job. He diagnosed low back pain and obesity.
In other notes dated December 12, 2006 to January 10, 2007, Dr. Ardeleanu advised that
appellant could not work from February 13 to December 21, 2006. Reports from Dr. Lori Ricke,
a Board-certified family practitioner, dated November 17 and December 27, 2006, noted
appellant’s November 2005 back injury and diagnosed degenerative disc disease with bilateral
radicular symptoms with a current exacerbation that impeded his ability to walk. She found that
appellant could not work on November 17 and December 26, 2006.
In an October 16, 2006 report, Dr. Michael D. McDonald, a Board-certified family
practitioner, noted that appellant developed back pain on November 10, 2005 while working as a
maintenance mechanic. He diagnosed spinal stenosis with lower extremity symptoms and
mechanical low back pain. Appellant submitted a November 28, 2006 report from Dr. Larkin
who treated his back pain and discussed potential surgical options. A December 5, 2006 report
from Dr. Fozia A. Abrar, Board-certified in preventative medicine, saw appellant for chronic low
back pain and congenital stenosis aggravated by a work injury. He diagnosed chronic back pain
with radicular symptoms and recommended surgical intervention.
On January 25, 2007 appellant filed a Form CA-7, claim for compensation, for the period
January 8 to 19, 2007.
In a February 22, 2007 decision, the Office accepted appellant’s claim for compensation
for the following dates: four hours for March 6 to November 17, 21, 2006.1 It denied his claim
for compensation for the following dates: four hours intermittently for February 13, 14, 23, 28,
March 6, 8, 9, 16, 21, April 3, 7, 17, 20, May 1, 18, July 27, November 17, 21, 2006; eight hours
for March 7, 13, April 25, 28, May 2, 15, 16, 30, June 6, 16, 30, July 10, 19, 20, 25, August 1, 2,
October 2, 4, 31 and November 15, 2006; two hours for October 5, 6, 10, 12, 13, 19, 23, 25, 26,
27, 30, November 1, 2, 3, 6, 8, 9, 13, 14, 16, 20, 22, December 11 and 22, 2006, on the grounds
that the medical evidence was not sufficient to establish that appellant’s disability was due to his
accepted work injury.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for

1

The Office noted in separate correspondence dated February 22, 2007 that appellant’s claim was accepted for
four hours on February 15, March 6, 16, April 3, 5, 7, 17, May 1, 18, November 4, 21, 2006; eight hours for
February 27, April 4, May 9, 10, 19, 26, June 5, 9, 12, 19, 26, July 5, 18, 28, 31, October 16, 17, 18, 20, 24,
December 12, 13, 14, 15, 18, 19, 20, 21, 2006, January 3, 4, 18, 2007; two hours for December 26, 28, 29, 2006,
January 9, 10, 11, 12 and 16, 2007.

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each period of disability claimed.2 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence. The Board will not require
the Office to pay compensation for disability in the absence of medical evidence directly
addressing the particular period of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify their disability and entitlement to
compensation.3
The Board has long recognized that, under section 8103,4 payment of expenses incidental
to the securing of medical services encompasses payment for loss of wages incurred while
obtaining medical services. An employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for aggravation of lumbar spinal stenosis. The
Board notes that the Office accepted that appellant was partially disabled for four hours for
February 15, March 6, 16, April 3, 7, 17, May 1, 18, November 17, and 21, 2006. The record
also supports that appellant was treated for his accepted injury and received appropriate
compensation on April 3, May 1, 2006, November 17 and 21, 2006.
However, the medical evidence submitted in support of the wage-loss compensation
claim for other intermittent wage loss claimed from February 13 to December 22, 2006 is
insufficient to establish that the claimed disability was due to the accepted employment injury.
Dr. Riley’s February 22, 2006 report noted treating appellant for back pain and diagnosed
back pain with chronic costochondritis. He advised that appellant did not attend work and
requested that he work half shifts for the next two days. In notes dated February 22 and 27,
2006, Dr. Riley advised that appellant was unable to work on February 22 and 27, 2006 and
could work a four-hour shift on February 23 to 24, 2006. Even though he noted that appellant
had back symptoms, he did not specifically address whether appellant had any employmentrelated disability beginning February 22, 2006 causally related to his accepted employment
condition.6 Dr. Riley attributed appellant’s disability to the diagnosed conditions of back pain
2

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

Sandra D. Pruitt, 57 ECAB ___ (Docket No. 05-739, issued October 12, 2005); Amelia S. Jefferson, 57 ECAB
___ (Docket No. 04-568, issued October 26, 2005).
4

5 U.S.C. § 8103.

5

Daniel Hollars, 51 ECAB 355 (2000), Antonio Mestres, 48 ECAB 139 (1996), Henry Hunt Searles, III, 46
ECAB 192 (1994), Myrtle B. Carlson, 17 ECAB 644 (1966); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Computing Compensation, Chapter 2.901.16(a) (December 1995).
6

For conditions not accepted by the Office as being employment related, it is the employee’s burden to provide
rationalized medical evidence sufficient to establish causal relation, not the Office’s burden to disprove such
relationship. Alice J. Tysinger, 51 ECAB 638 (2000).

5

with chronic costochondritis; however, the Office has not accepted that appellant developed
chronic costochondritis as a result of his employment. Therefore, these reports are insufficient to
meet his burden of proof.
The record reveals that, on March 6 and 16, April 7, 17 and 20, May 18 and June 5, and
15, October 20, 24 and 31, 2006, Dr. Riley treated appellant for work-related back pain radiating
into his left hip and leg and diagnosed work-related regional back pain with radicular symptoms.
However, he did not provide a rationalized opinion indicating how the diagnosed back pain with
radicular symptoms was causally related to the accepted employment condition. Other notes
from Dr. Riley indicated that appellant would be unable to work on intermittent dates at issue
from March 3 to October 24, 2006. As noted, however, he did not provide a specific opinion on
causal relationship between the claimed disability and the accepted employment condition.
Appellant submitted reports from Dr. Ardeleanu dated February 15, 2006 to January 24,
2007, who diagnosed low back pain and indicated that appellant was unable to work from
February 13 to 20, December 12 to 15 and 18 to 21, 2006. Reports from Dr. Hovland, dated
May 10 to October 17, 2006, noted that appellant was unable to work May 9, 10, July 18,
October 16 and 17, 2006 due to back pain. Likewise, reports from Dr. Ricke dated November 17
and December 27, 2006, advised that appellant was excused from work for November 17 and
December 26, 2006. Although Dr. Ardeleanu, Dr. Hovland and Dr. Ricke found that appellant
could not work on certain days at issue, they failed to provide a specific and reasoned opinion on
causal relationship between the claimed period of disability and the accepted employment injury.
The Board finds that the evidence establishes that appellant attended doctor’s
appointments for treatment of his work-related injury on April 20, June 16, October 31 and
November 15, 2006 and is entitled to a total of 16 hours of compensation for these days.7 The
medical evidence supports that appellant received treatment for his accepted condition on these
dates and should be granted compensation for his wage-loss incidental to such treatment on these
dates.8
The remainder of the medical evidence, including reports from Dr. McDonald,
Dr. Larkin, Dr. Abrar, Dr. Sterrett, Dr. Wen, Dr. Thao and Dr. Guzman failed to provide a
specific opinion on causal relationship between the claimed period of disability and the accepted
employment injury of November 10, 2005. Consequently, the medical evidence did not establish
that the claimed period of disability were due to appellant’s employment injury of
November 10, 2005.

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.0900.8
(November 1998) (provides that, in general, no more than four hours of compensation or continuation of pay should
be allowed for routine medical appointments).
8

See Daniel Hollars, 51 ECAB 355 (2000) (an employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury).

6

CONCLUSION
The Board finds that appellant has established entitlement for time lost incident to
medical treatment on April 20, June 16, October 31 and November 15, 2006 but has not
otherwise met his burden of proof for other claimed dates.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2007 is affirmed as modified.9
Issued: January 17, 2008
Washington, DC

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

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

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

9

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. CUSTOMS & BORDER PROTECTION,
Blaire, WA, Employer
__________________________________________

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

Docket No. 11-666
Issued: November 4, 2011

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 January 25, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) August 9 and December 7, 2010 merit decisions denying his
claim for a recurrence of a medical condition. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et. seq.

The Board notes that appellant submitted additional evidence on appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its final decision. This additional evidence cannot be
considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5
ECAB 35, 36 n.2 (1952).

ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
recurrence of his medical condition on or subsequent to June 10, 2010, that was causally related
to his accepted injury.
FACTUAL HISTORY
On March 9, 2003 appellant, then a 36-year-old customs inspector, filed a traumatic
injury claim that was accepted for a medial meniscus tear of the left knee. On August 8, 2003 he
underwent a left knee meniscectomy.3 On December 19, 2003 appellant’s employment was
terminated. He received compensation for total disability from December 19, 2003 through
June 11, 2005, when he returned to work in the private sector.4
In a September 29, 2005 report, Dr. Gidon Frame, a treating physician, stated that
appellant had an exacerbation of his left knee injury. He stated that appellant’s medial meniscal
tear appeared worse and required immediate attention. On October 27, 2005 OWCP authorized a
magnetic resonance imaging (MRI) scan of the left knee, which revealed a horizontal tear of the
medial meniscal posterior horn and moderate degenerative changes involving the medial
compartment.
In a May 2, 2006 report, Dr. Ralph M. Belle, a treating physician, reviewed the results of
an April 6, 2006 MRI scan, which revealed a horizontal tear of the medial meniscus posterior
horn, as well as moderate degenerative changes in the medial compartment. He diagnosed
osteoarthritis of the left knee, which he opined preexisted appellant’s original injury. Dr. Belle
stated that appellant’s knee “flared” after he returned to work following his meniscal surgery in
2003.
On June 21, 2010 appellant filed a recurrence of a medical condition as of June 10, 2010,
contending that the condition for which he sought treatment was causally related to his accepted
March 2003 injury. He indicated that after returning to work in the private sector following the
original injury, his repetitive employment activities (including standing for long periods of time,
bearing weight on his left knee, walking, running, bending, stooping, lifting and kneeling), as
well as the weight of his duty gear and body armor, aggravated his knee symptoms and increased
his disability. Although appellant stated that his condition worsened due to new work activities,
he expressed his belief that his current condition was related to the original injury because the
symptoms and increase in disability were to the same left knee area.

3

The record reflects that appellant had preexisting severe degenerative joint disease. In a January 19, 2004
report, Dr. Michael K. Gannon, a Board-certified orthopedic surgeon, attributed residual meniscal symptoms to his
degenerative joint disease.
4

This case has previously been before the Board on appeal. In a decision dated February 20, 2007, the Board set
aside OWCP’s December 5, 2005 nonmerit decision denying appellant’s request for a prerecoupment hearing and
remanded the case for further development. Docket No. 06-1565 (issued February 20, 2007).

2

In a June 15, 2010 letter, Dr. Frame stated that appellant had “ongoing and worsening
disability and pain from left knee meniscal injury.” He indicated that appellant urgently required
a follow-up MRI scan of the left knee to compare with the November 29, 2005 MRI scan.5
In a letter dated June 25, 2010, OWCP informed appellant that the information submitted
was insufficient to establish that his current condition was causally related to the accepted left
knee injury. It advised him to submit a physician’s narrative report with a diagnosis and a
rationalized opinion explaining how his current condition was related to the original March 2003
injury.
By decision dated August 9, 2010, OWCP denied appellant’s recurrence claim on the
grounds that the medical evidence was insufficient to show that his current medical condition
was due to the accepted work injury.
In an August 5, 2010 letter, which was received by OWCP on August 10, 2010, appellant
stated that OWCP refused to grant him a 30-day extension of time to submit supporting medical
evidence, but rather insisted that appellant submit all evidence to be considered by
August 6, 2010. He characterized the claims examiner’s comments as condescending and
retaliatory.
Appellant submitted a copy of a letter dated May 18, 2004 from Dr. Frame, who stated
that appellant aggravated his left knee condition after his August 8, 2003 arthroscopic repair
when he resumed his regular work duties. Dr. Frame also indicated that appellant suffered a low
back strain and aggravation of his left knee injury as a result of a December 16, 2003 motor
vehicle accident.
In a letter dated August 5, 2010, Dr. Frame opined that appellant’s March 9, 2003
workplace injury was the direct cause of his left knee medial meniscal tear and degenerative
damage, stating that there was no evidence of any other cause for these symptoms or injuries.
He also opined that appellant’s work in his own business as private investigator and enforcement
officer did not materially damage his left knee. Rather the original 2003 injury had continued
and progressed. Dr. Frame noted that the medial meniscal injury had never been repaired.
On August 25, 2010 appellant requested review of the written record. In an August 24,
2010 letter, he stated that OWCP improperly failed to consider Dr. Frame’s August 5, 2010
letter, which it received by fax on August 6, 2010. Appellant contended that OWCP denied his
claim in retaliation for his numerous complaints regarding its financial matters. He submitted
copies of medical reports and letters previously received and reviewed by OWCP.
By decision dated December 7, 2010, an OWCP hearing representative affirmed the
August 5, 2010 decision on the grounds that the evidence failed to establish that appellant’s left
knee condition after June 10, 2010 was causally related to the accepted March 2003 work injury.

5

Appellant submitted a copy of a November 19, 2005 MRI scan of the left knee, as well as copies of previously
submitted reports from Dr. Frame.

3

LEGAL PRECEDENT
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition6 that is causally related to his accepted employment injury. To meet his burden,
appellant must furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the condition is causally related to the
employment injury and supports that conclusion with sound medical rationale.7 Where no such
rationale is present, the medical evidence is of diminished probative value.8
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.9
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return PRN (as needed), or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.10
ANALYSIS
Appellant failed to meet his burden of proof to establish that he sustained a recurrence of
a medical condition commencing June 10, 2010.
On May 2, 2006 Dr. Belle reported the results of an April 6, 2006 MRI scan, which
revealed a horizontal tear of the medial meniscus posterior horn, as well as moderate
degenerative changes in the medial compartment, and diagnosed osteoarthritis of the left knee,
which he opined preexisted appellant’s original injury. Dr. Belle stated that appellant’s knee
“flared” after he returned to work following his meniscal surgery in 2003. There is no evidence
of record establishing that appellant received medical treatment for his accepted condition
between May 2, 2006 and June 15, 2010, when he was again examined by Dr. Belle. As
6

“Recurrence of medical condition” means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2011).
7

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

8

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

9

20 C.F.R. § 10.5(y).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id. at Chapter 2.1500.5(a).

4

computed from the date of the last examination on May 2, 2006, the treatment on June 15, 2010
was rendered more than 90 days after appellant’s release from medical care. Therefore,
appellant was responsible for submitting an attending physician’s report containing a description
of the objective findings and supporting causal relationship between his current condition and the
previously accepted work injury.11 He had the burden of submitting sufficient medical evidence
to document the need for further medical treatment.12 Appellant did not submit the evidence
required and thus failed to establish a need for continuing medical treatment.13
Appellant has failed to establish a recurrence of a medical condition. He contends on the
one hand that his current condition is related to the original 2003 injury. Appellant reports on the
other, however, that after returning to work in the private sector, following the original injury,
his repetitive employment activities (including standing for long periods of time, bearing weight
on his left knee, walking, running, bending, stooping, lifting, and kneeling), as well as the weight
of his duty gear and body armor, aggravated his knee symptoms and increased his disability.
Such aggravation due to an intervening event would constitute a new injury to these factors,
rather than a recurrence of the accepted injury.
The medical evidence of record does not establish that appellant required further medical
treatment for a continuing employment-related condition. In a June 15, 2010 letter, Dr. Frame
stated that appellant had “ongoing and worsening disability and pain from left knee meniscal
injury.” He indicated that appellant urgently required a follow-up MRI scan of the left knee to
compare with the November 29, 2005 MRI scan. Dr. Frame’s report does not contain
examination findings or a definitive diagnosis. Moreover, it does not contain an opinion that
appellant’s current condition was related to the original March 9, 2003 injury. Therefore, it is of
limited probative value.14
Dr. Frame’s August 5, 2010 report is deficient on several counts. It does not contain
examination findings, an accurate factual and medical background15 or a rationalized opinion
that appellant’s current condition was causally related to his original 2003 injury.16 Dr. Frame
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003).

12

20 C.F.R. § 10.5(y).

13

See J.F., 58 ECAB 124 (2006).

14

A medical report that does not contain an opinion on the cause of a claimant’s condition is of limited probative
value. See Mary E. Marshall, 56 ECAB 420, 427 (2005).
15

The Board notes that Dr. Frame stated that appellant’s medial meniscal injury had never been repaired. The
record reflects, however, that appellant underwent a partial meniscectomy on August 8, 2003. To the extent that
Dr. Frame may have intended to indicate that the August 8, 2003 procedure was unsuccessful, his report is unclear
and, therefore, of diminished probative value.
16

While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The
opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition
for which compensation is claimed is causally related to federal employment, and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50
ECAB 370 (1999).

5

opined that the March 9, 2003 workplace injury was the direct cause of appellant’s left knee
medial meniscal tear and degenerative damage and that the original 2003 injury had continued
and progressed. He failed, however, to explain the claimed progression. The Board has held that
medical conclusions unsupported by rationale are of little probative value.17 Dr. Frame’s opinion
was based, in part, on the fact that there was no evidence of any other cause for appellant’s
symptoms. An explanation based on the process of elimination does not constitute strong
medical rationale. Similarly, Dr. Frame opined without explanation that appellant’s work in his
own business as private investigator and enforcement officer did not materially damage his left
knee. He did not identify or discuss the work activities or appellant’s claim that those very
activities actually aggravated his left knee condition. Finally, Dr. Frame’s opinion is inconsistent
with his report of May 18, 2004, in which he identified appellant’s work duties subsequent to his
knee surgery and a December 16, 2003 motor vehicle accident as intervening events responsible
for aggravation of his left knee condition. For all of these reasons, his August 5, 2010 report is
of diminished probative value.
Reports of MRI scans and x-rays that do not contain an opinion as to the cause of
appellant’s condition are of diminished probative value and are insufficient to establish
appellant’s claim.18 The Board finds that the evidence submitted was insufficient to establish
that appellant sustained a recurrence of a medical condition and OWCP properly denied his
claim.
On appeal, appellant contends that his current condition is due both to an aggravation of
his original meniscal tear and of his preexisting osteoarthritis. He argues that OWCP failed to
consider his diagnosed osteoarthritis and should have accepted that condition when it originally
accepted his meniscal tear in 2003. As noted, the medical evidence does not establish a causal
relationship between appellant’s current condition and his accepted injury or preexisting
osteoarthritis, which was not accepted by OWCP. Appellant also argues that he was denied due
process and given insufficient notice regarding the evidence required to support his claim. The
record reflects that he was informed of the information and evidence necessary to establish his
burden of proof by letter dated June 25, 2010. Appellant failed, however, to submit sufficient
evidence to establish the necessary causal relationship.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

17

Cecilia M. Corley, 56 ECAB 662 (2005).

18

See Mary E. Marshall, supra note 14.

19

In support of his request for review of the written record, appellant contended that OWCP failed to properly
consider Dr. Frame’s August 5, 2010 report prior to rendering its August 9, 2010 decision. The record reflects that
Dr. Frame’s August 5, 2010 report was faxed on August 6, 2010; however, OWCP reportedly received it on
August 12, 2010. If OWCP was in possession of Dr. Frame’s report prior to its issuance of the August 9, 2010
decision, then it should have considered it when formulating its decision. The Board finds the error to be harmless,
however, as OWCP’s hearing representative reviewed and considered Dr. Frame’s August 5, 2010 letter in his
December 7, 2010 decision.

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition that was causally related to his accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the December 7 and August 9, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: November 4, 2011
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

7