United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.K., Appellant
and
DEPARTMENT OF THE AIR FORCE,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 13-1725
Issued: December 24, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2013 appellant, through his attorney, filed a timely appeal from the March 13
and June 25, 2013 merit decisions 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 to consider the merits of
the case.
ISSUE
The issue is whether appellant established that he sustained acromioclavicular joint
degenerative disease, rotator cuff disease, cervical spine multilevel disc desiccation, disc
herniation and bulges of C3-4, C4-5 and C5-6, cervical stenosis, spondylosis and loss of lordosis
due to his April 14, 2011 traumatic injury.

1

5 U.S.C. § 8101 et seq.

On appeal counsel argued that an attending osteopath submitted sufficient medical
opinion to establish a left shoulder condition and aggravation of cervical degenerative disc
disease and disc herniations.
FACTUAL HISTORY
On April 22, 2011 appellant, then a 56-year-old boiler plant equipment mechanic, filed a
traumatic injury claim alleging that pain to both shoulders, both arms and his upper back on
April 14, 2011 when a coworker grabbed his elbows. Appellant stated: “Employee was sitting
in his chair with hands behind his head when another employee came from behind and grabbed
employee’s elbows causing employee to react, causing a popping sound in his neck with pain
shooting from both shoulders down his arms.”
Dr. William Artz, an osteopath, examined appellant on April 29, 2011. He described the
horseplay which resulted in appellant’s neck and arm pain. He noted that appellant had a prior
cervical disc injury in 1989. Dr. Artz diagnosed cervical strain and sprain with exacerbation of
degenerative disc disease, left cervical radiculopathy and left shoulder impingement. A May 13,
2011 magnetic resonance imaging (MRI) scan of the cervical spine demonstrated multilevel
degenerative changes with disc bulges and spondylosis.
Appellant underwent a left shoulder MRI scan on June 9, 2011 which demonstrated
acromioclavicular (AC) joint arthritis with marrow edema in the distal clavicle and a likely labral
tear. On June 28, 2011 Dr. Craig A. Rubenstein, Board-certified in emergency room medicine,
diagnosed rotator cuff strain or labral tear due to appellant’s employment activity. On June 28,
2011 Dr. Rubenstein described the employment incident and examined appellant’s left shoulder.
He found pain with resisted cuff testing, positive labral testing and mildly positive impingement
testing. Dr. Rubenstein diagnosed a work-related rotator cuff strain with probable labral tear on
the left.
On July 29, 2011 OWCP accepted appellant’s claim for a cervical strain.
Dr. Rubenstein examined appellant on August 16 and 30, 2011 and diagnosed left
shoulder AC joint sprain.
By decision dated September 27, 2011, OWCP denied appellant’s claim for the
acromioclavicular degenerative joint disease, rotator cuff disease, cervical spine multilevel disc
desiccation or disc herniations and bulges of C3-4, C4-5, C5-6, cervical stenosis, spondylosis
and loss of lordosis.
On October 5, 2011 Dr. Artz diagnosed cervical strain with cervical radiculopathy and
exacerbation of the degenerative disc disease of the cervical spine as well as herniated disc at
C5-6. He also found left shoulder AC joint sprain and exacerbation of osteoarthritis with
myofascial pain. Dr. Artz stated, “All these conditions are solely due to work injury of April 14,
2011 as evidenced by patient’s full unrestricted work status at the time of the injury.”
In a report dated October 5, 2011, Dr. Rubenstein diagnosed left shoulder pain. He stated
that appellant’s pain was stemming from edema in the AC joint. Dr. Rubenstein stated, “With
regards to his injury at work, the mechanism of injury may have resulted in his neck issues. It is
2

not clear that this is really causing his prolonged AC joint pain as it is not a typical mechanism of
injury of the AC joint and, therefore, I cannot say with any degree of medical certainty that this
injury did cause the AC joint pain.”
Appellant requested a review of the written record by an OWCP hearing representative.
On October 5, 2011 Dr. Artz diagnosed cervical strain with cervical radiculopathy and
exacerbation of degenerative disc disease of the cervical spine. He found a herniated disc at C56 and left shoulder AC joint sprain and exacerbation of osteoarthritis. Dr. Artz indicated with a
checkmark “yes” that appellant’s condition was caused or aggravated by the horseplay at work.
On October 10, 2011 Dr. Artz stated that appellant’s initial examination demonstrated cervical
and clavicular injuries. He stated that the April 14, 2011 work injury of being placed into a
restraint hold or full Nelson forced appellant’s neck into extension and his shoulders into forced
abduction and extension thus straining the muscles and ligaments of his neck, clavicle and
shoulder.
By decision dated February 8, 2012, the hearing representative found that the reports of
Dr. Artz did not establish that appellant’s left shoulder AC degenerative joint disease and rotator
cuff disease or cervical conditions of multilevel disc desiccation, disc herniation or bulging discs
at C3-4, C4-5 and C5-6, cervical stenosis, cervical spondylosis and loss of lordosis were causally
related to the April 14, 2011 work injury.
Appellant, through his attorney, requested reconsideration on November 26, 2012. He
submitted a note from Dr. Artz dated November 23, 2012, who diagnosed unspecified disorder
of the shoulder joint, neuralgia, neuritis and radiculitis, as well as displacement of cervical
intervertebral disc without myelopathy. He stated, “The patient continues to experience
symptoms related to the injury of April 14, 2011 wherein he suffered a strain of the shoulder and
a hyperflexion of the neck exacerbating his previous injury of July 9, 1989.” Dr. Artz stated that
appellant had continued evidence of nerve dysfunction in the left upper extremity as evidenced
by the loss of reflexes and muscle atrophy.
By decision dated March 13, 2013, OWCP denied modification of its prior decisions.
Appellant requested reconsideration on April 11, 2013. Dr. Rubenstein completed a
report on March 20, 2013 and addressed appellant’s left shoulder condition. He stated:
“With regards to causation of his pain, the description and visual depiction of the
injury he sustained is not the typical mechanism of injury for AC joint injury,
which is typically caused by a compressive force. Furthermore, he did have a
significant neck injury from that work injury and I believe that may have been the
injury sustained at work. I cannot say with any reasonable degree of certainty that
the work incident caused the AC joint pain. Furthermore, if he did sprain his AC
joint in that manner, it was a mild sprain and should have resolved on its own. He
had underlying preexisting degenerative changes of the AC joint which in all
likelihood is causing his persistent pain.”

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On April 26, 2013 Dr. Artz stated that appellant remained symptomatic from left
shoulder tendon strain and AC joint strain as well as cervical nerve purification and displaced
cervical disc caused on April 14, 2011. Dr. Artz opined:
“On that date patient was on break sitting with hands interlocked behind his head
when suddenly without warning service personnel grabbed him from behind
forcing his shoulders into hard extension and abduction as well as his neck in
extension then forced flexion. The patient released himself from the hold after
several second fall to the floor supporting himself with only his arms. This
maneuver forced the acromioclavicular joint into a position straining the tendons.
Additionally, the neck was forced into abnormal positioning whereby nerve roots
were impinged upon by cervical discs and spurs causing nerve damage.”
By decision dated June 25, 2013, OWCP accepted the additional conditions of sprain of
the shoulder and upper arm and acromioclavicular, left. In a separate decision of the same date,
OWCP found that Dr. Artz’s April 26, 2013 report was sufficient to establish AC joint strain but
that the medical evidence did not establish AC joint degenerative disease, rotator cuff disease,
cervical spine multilevel disc desiccation, disc herniation and bulges of C3-4, C4-5 and C5-6,
cervical stenosis, spondylosis and loss of lordosis as resulting from the April 14, 2011
employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
2

5 U.S.C. §§ 8101-1893.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

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incident at the time, place and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 specific employment activity or factors identified by the
claimant.9
ANALYSIS
OWCP accepted that appellant sustained cervical strain, sprain of the shoulder and upper
arm and acromioclavicular, left. Appellant alleged additional conditions were caused or
aggravated by his April 14, 2011 traumatic employment injury including acromioclavicular joint
degenerative disease, rotator cuff disease, cervical spine multilevel disc desiccation, disc
herniation and bulges of C3-4, C4-5 and C5-6, cervical stenosis, spondylosis and loss of lordosis.
In support of his claim for additional conditions arising from the employment injury,
appellant submitted reports from Dr. Artz and Dr. Rubenstein. Dr. Artz diagnosed exacerbation
of the degenerative disc disease of the cervical spine as well as herniated disc at C5-6. He also
found exacerbation of osteoarthritis with myofascial pain. Dr. Artz opined that these additional
conditions were due to appellant’s work injury as appellant was capable of performing full duty
prior to his April 14, 2011 work injury. While the physician noted an accurate history of injury
and generally supported a causal relationship between the additional diagnosed conditions and
appellant’s employment, he did not provide adequate medical rationale to establish appellant’s
claim. The Board has held the fact that a condition arises after an injury and was not present
before an injury is not sufficient to support causal relationship.10 This report only offers a
general statement that the conditions diagnosed were not disabling prior to the employment
injury. It is not sufficiently well reasoned as to addressing appellant’s history of prior cervical
injury in 1989 or how the injury accepted in this case was competent to exacerbate the
degenerative disease process.
In a report dated November 23, 2012, Dr. Artz stated that appellant’s April 14, 2011
injury resulted in hyperflexion of the neck exacerbating his previous injury of July 9, 1989. In
6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

10

Michael S. Mina, 57 ECAB 379 (2006).

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his April 16, 2013 report, Dr. Artz opined that “Additionally, the neck was forced into abnormal
positioning whereby nerve roots were impinged upon by cervical discs and spurs causing nerve
damage.” This report is not sufficiently detailed to meet appellant’s burden of proof in
establishing any additional cervical conditions. Dr. Artz did not sufficiently explain which nerve
roots were impinged or damaged by the employment injury.
On June 28, 2011 Dr. Rubenstein described appellant’s employment injury and providing
physical findings. He diagnosed a work-related rotator cuff strain with probable labral tear on
the left. OWCP has accepted cervical strain. Dr. Rubenstein did not provide sufficient medical
reasoning addressing how a labral tear was due to the employment injury. His report is
speculative as to whether appellant has a labral tear. The Board has held that medical opinions
that are speculative or equivocal in character diminish the probative value of the medical
opinion.11 On October 5, 2011 and March 20, 2013, Dr. Rubenstein opined that the injury
accepted in this case was not of the type likely to cause AC joint pain.
Appellant has not submitted the necessary rationalized medical opinion evidence required
to establish any additional employment-related conditions or aggravations.
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 any additional medical conditions due
to his accepted traumatic injury.

11

A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006).

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ORDER
IT IS HEREBY ORDERED THAT June 25 and March 13, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 24, 2013
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
No appearance, for the Director

Docket No. 09-818
Issued: August 10, 2009

Oral Argument May 12, 2009

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

JURISDICTION
On February 4, 2009 appellant filed a timely appeal from an April 28, 2008 decision of
the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merit issue of this case.
ISSUE
The issue is whether the Office met its burden of proof to rescind acceptance of
appellant’s claim.
FACTUAL HISTORY
On May 13, 1975 appellant, then a 41-year-old city carrier, filed an occupational disease
claim, alleging that employment factors caused stress. He stopped work on May 1, 1975 and
returned on June 16, 1975. On December 3, 1975 the Office accepted that he sustained an
employment-related depressive reaction with anxiety. Appellant sustained a recurrence of

disability in 1979 and came under the care of Dr. James Petroske, a Board-certified psychiatrist.1
This claim was adjudicated under file number xxxxxx578 and he received compensation for the
periods May 1 to July 24, 1975 and November 16 to 30, 1979.
On May 3, 1984 appellant filed a second occupational disease claim, alleging that work
factors in 1983 and 1984 caused dysthymic and generalized anxiety disorders.2 He stopped work
on January 13, 1984 and has not returned. Appellant was hospitalized from January 12 to
February 9, 1984. On March 15, 1984 he applied for disability retirement. The employing
establishment submitted a May 16, 1984 statement in which David V. Ellis, station manager,
rebutted appellant’s contentions, together with additional statements describing events beginning
in November 1983.
Appellant submitted statements from union representatives, his wife and postal patrons
regarding events from October 1983 to January 1984, grievance information and medical
evidence. In a March 27, 1984 report, Dr. Petroske advised that appellant could not work
because he would become apprehensive and distraught and would not be able to function. This
claim was adjudicated under file number xxxxxx405 and became the master claim.
On March 19, 1985 the Office prepared a statement of accepted facts and referred
appellant to Dr. Thomas T. Bennett, a Board-certified psychiatrist, for a second opinion
evaluation. In a May 6, 1985 report, Dr. Bennett diagnosed anxiety disorder, dysthymic
disorder, atypical personality disorder with latent or borderline psychotic elements and probable
contributory organic brain syndrome of a mild degree. He advised that appellant’s psychiatric
problems were not directly caused by his employment, but that he was very vulnerable to stress.
As a result, appellant’s preexisting emotional condition was materially aggravated by his
employment. Dr. Bennett concluded that he was permanently disabled from his former
employment.
In a May 24, 1985 report, Dr. Carrie E. Sylvester, Board-certified in psychiatry and an
Office consultant, reviewed the medical record. She diagnosed atypical depression with anxiety,
panic and paranoia; a mixed, atypical, personality disorder with obsessive compulsive and
narcissistic features; and status-post coronary bypass surgery with possible mild organic brain
syndrome. Dr. Sylvester advised that appellant’s depression was either precipitated or
aggravated by conditions of his employment and that he could not return to full-time
employment. Appellant could possibly be retrained for other work with shorter hours and less
interpersonal stress. Dr. Sylvester recommended continued psychotherapy and medication.

1

On August 2, 1978 appellant underwent coronary artery bypass surgery and on November 20, 1979, filed a
claim that employment factors aggravated his heart disease. The record does not contain a final decision on this
issue.
Appellant also filed additional claims for orthopedic conditions dating from May 2, 1959 to
October 22, 1976. By decision dated November 30, 1988, the Office found that appellant’s claimed eye condition
was not causally related to medications taken for his accepted emotional condition.
2

Appellant initially filed a recurrence claim and by letter dated May 1, 1984, the Office instructed him to file a
Form CA-2 because he was claiming new factors.

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On May 3, 1985 the Office accepted that appellant sustained employment-related atypical
depression with anxiety, panic and paranoia. Appellant was placed on the periodic rolls. In
August 1998, he came under the care of Dr. Robert Gold, a Board-certified psychiatrist.
On August 17, 2005 the Office prepared a statement of accepted facts. It found that there
were no compensable employment factors. By letter dated September 2, 2005, the Office issued
a notice of proposed rescission. It found that the previous statement of accepted facts had no
discussion of the alleged incidents found to arise out of employment. Appellant’s case was
therefore reexamined to determine if his emotional condition was related to compensable factors
of employment. It concluded that there were no compensable employment factors.
Appellant disagreed with the proposed rescission and submitted an August 25, 2005
report from Dr. Gold.
By decision dated November 4, 2005, the Office finalized the rescission, finding that his
medical and wage-loss benefits were terminated effective November 3, 2005.
On November 23, 2005 appellant requested a hearing, that was held on
February 14, 2007. He submitted additional medical evidence. In a March 9, 2007 letter, the
employing establishment noted its agreement with the rescission. By decision dated May 3,
2007, an Office hearing representative affirmed the November 4, 2005 decision.
On January 25, 2008 appellant, through his representative, requested reconsideration,
arguing that he was forced to work beyond an eight-hour medical restriction (for his heart
condition) and that the Office failed to assist him in necessary development of his claim.
Evidence submitted included a January 23, 2008 letter in which Robert N. Kolln, a retired union
steward, noted that appellant was required to work overtime in 1983 and 1984.3 By decision
dated April 28, 2008, the Office denied modification of the prior decision.
LEGAL PRECEDENT
Section 8128 of the Federal Employees’ Compensation Act4 provides that the Secretary
of Labor may review an award for or against payment of compensation at any time on her own
motion or on application.5 The Board has upheld the Office’s authority to reopen a claim at any
time on its own motion under 5 U.S.C. § 8128 and, where supported by the evidence, set aside or
modify a prior decision and issue a new decision. The power to annul an award, however, is not
an arbitrary one and an award for compensation can only be set aside in the manner provided by
the compensation statute. The Office’s burden of justifying termination or modification of
compensation holds true where the Office later decides that it has erroneously accepted a claim

3

Appellant also submitted evidence previously of record.

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8128.

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for compensation. In establishing that its prior acceptance was erroneous, the Office is required
to provide a clear explanation of its rationale for rescission.6
ANALYSIS
The Board finds that the Office did not meet its burden of proof to rescind acceptance of
appellant’s emotional condition claim. In its September 2, 2005 notice of proposed rescission,
the Office noted that the claim was accepted without a finding regarding which of the alleged
incidents arose in the course of employment. It then found that appellant had not established a
compensable factor of employment. The Board disagrees.
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,7 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Act. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under the Act.8
Appellant asserted that a number of factors caused his emotional condition, including that
in 1975 he was designated to participate in the Kolomo Plan, a time and motion study and that as
a result, 53 minutes were added to his route. The Board finds that his participation in the study
and the resultant additional work pertains to the regular and specially assigned duties of his
employment. As such, this is a compensable factor of employment under Cutler.9
Regarding appellant’s additional allegations, the Board notes that several involve
disputes and discussions or verbal altercations with supervisory personnel. A verbal altercation,
when sufficiently detailed by the claimant and supported by the evidence, may constitute a
compensable employment factor.10 This does not imply, however, that every statement uttered in
the workplace will give rise to coverage under the Act.11 Furthermore, the manner in which a
supervisor exercises his or her discretion falls outside the ambit of the Act. Absent evidence
establishing error or abuse, a claimant’s disagreement or dislike of such a managerial action is
not a compensable factor of employment.12 Perceptions of unfair treatment are not enough to
establish error or abuse. A claimant must submit real proof that management did in fact commit
error or abuse.13 The record contains a number of statements regarding events that occurred in
6

Amelia S. Jefferson, 57 ECAB 183 (2005).

7

28 ECAB 125 (1976).

8

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

9

See supra note 7.

10

C.S., 58 ECAB ____ (Docket No. 06-1583, issued November 6, 2006).

11

J.C., 58 ECAB ____ (Docket No. 07-530, issued July 9, 2007).

12

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

13

L.S., 58 ECAB ____ (Docket No. 06-1808, issued December 29, 2006).

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the fall of 1983. The Board, however, finds that the statements are too general in nature to
support that appellant was treated unfairly or to establish error or abuse on the part of employing
establishment management. There also is no evidence here to substantiate appellant’s allegations
regarding the discussion he had with management on January 15, 1984, when he stopped work,
that he was treated unfairly at any other time. He therefore failed to establish a compensable
factor of employment regarding these allegations.
Appellant also alleged that he was improperly given a letter of warning and submitted a
grievance settlement that voided the letter of warning. Grievances and Equal Employment
Opportunity complaints by themselves do not establish that workplace harassment or unfair
treatment occurred. The issue is whether the claimant has submitted sufficient evidence under
the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence. The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in
fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.14 Although the record supports
that the grievance settlement directed a remedial action, there was no finding of managerial error
and the Board finds that this does not rise to the level of error contemplated under the Act such
as to constitute a compensable factor of employment.15 Appellant did not establish an
employment factor in this regard.16
Regarding appellant’s contention that the employing establishment refused to
accommodate his nonwork-related heart condition, administrative and personnel matters,
although generally related to the employee’s employment, are administrative functions of the
employer rather than the regular or specially assigned work duties of the employee and are not
covered under the Act.17 Where the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities,
such action will be considered a compensable employment factor.18 Although appellant alleged
that the employing establishment did not accommodate this nonwork-related condition, the
record shows that employing establishment management asked him to furnish specific medical
information regarding his ability to work. Allegations that the employing establishment engaged
in unfair disciplinary actions, improperly handled work accommodation requests and mishandled
or ignored employee inquiries about workload issues relate to administrative or personnel
matters, unrelated to the employee’s regular or specially assigned work duties and do not fall

14

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

15

Joe M. Hagewood, 56 ECAB 479 (2005).

16

Lori A. Facey, 55 ECAB 217 (2004).

17

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

18

Kim Nguyen, 53 ECAB 127 (2001).

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within the coverage of the Act.19 In this case there is insufficient evidence of error or abuse in
the record regarding this administrative or personnel matters to support appellant’s contention.20
Finally, appellant contended that he was forced to work overtime. The Board has held
that overwork may be a compensable factor of employment.21 As with all allegations, overwork
must be established on a factual basis to be a compensable employment factor.22 In a
January 23, 2008 statement, Robert Kolln, a retired union steward, alleged that appellant worked
overtime in 1983 and 1984. The only direct evidence submitted, however, is a clock rings report
for the second pay period in 1984. This shows that appellant worked 23.06 hours in week one
and did not work in week two. There is therefore insufficient evidence to establish that he was
overworked.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to rescind acceptance of
his emotional condition claim.

19

Robert Breeden, 57 ECAB 622 (2006).

20

M.D., 59 ECAB ____ (Docket No. 07-908, issued November 19, 2007).

21

Sherry L. McFall, 51 ECAB 436 (2000).

22

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 28, 2008 be reversed.
Issued: August 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, MANAGER LITTLE
ROCK INDUSTRIAL STATION
Little Rock, AR, Employer
__________________________________________

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

Docket No. 18-0031
Issued: April 5, 2018

Case Submitted on the Record

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

JURISDICTION
On October 3, 2017 appellant filed a timely appeal from a September 12, 2017 merit
decision and a September 29, 2017 nonmerit 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.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish heat
exhaustion causally related to the accepted July 7, 2017 employment incident; and (2) whether

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s September 29, 2017 decision, appellant submitted new
evidence. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time it issued
its final decision. Thus, the Board is precluded from reviewing this evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).

OWCP properly denied appellant’s request for reconsideration of the merits of his claim under
5 U.S.C. § 8128(a).
On appeal appellant contends that the medical evidence submitted establishes that he
sustained work-related heat exhaustion on July 7, 2017.
FACTUAL HISTORY
On July 10, 2017 appellant, then a 33-year-old carrier technician, filed a traumatic injury
claim (Form CA-1) alleging that on July 7, 2017 he developed a respiratory condition when he
became overheated on his route while at work. He claimed that he took breaks, but he still felt
like passing out. Appellant stopped work on the date of injury.
In a July 7, 2017 narrative statement, appellant further described the events of July 7, 2017.
He finished his route and as he headed back to the employing establishment he felt as if he was
passing out. Appellant had trouble breathing and had muscle weakness. He began to cough
repeatedly. When appellant arrived at the office he informed his supervisor that he was not feeling
well. She told him to take a seat and put a cold wet towel on his neck because he was sweating
heavily. Appellant’s supervisor called for an ambulance.
In a July 10, 2017 letter, Dr. Ronald J. Wiewora, an attending Board-certified internist,
noted that appellant was seen on that date. He recommended that appellant return to work on that
day with a restriction of staying out of the heat.
OWCP, by development letter dated July 27, 2017, noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal lost time from work. It had approved a
limited amount of medical expenses without considering the merits of his claim. OWCP reopened
appellant’s claim because he had not yet returned to full-time work. It requested that he provide
additional factual and medical evidence in support of his traumatic injury claim and afforded him
30 days to respond.
In a July 17, 2017 duty status report (Form CA-17), Dr. Wiewora noted a history of heat
exhaustion on July 7, 2017. He provided a clinical finding of dehydration and diagnosed heat
exhaustion due to injury. Dr. Wiewora advised that appellant could resume work as of the date of
examination with the restriction of working in a temperature of 85 degrees or less.
In an August 1, 2017 attending physician’s report (Form CA-20), Elaine Mitchell, an
advanced practical registered nurse, diagnosed heat exhaustion and advised that the diagnosed
condition was caused by the claimed July 7, 2017 incident. She noted that on July 17, 2017
appellant was advised that he could resume light work in a temperature of 85 degrees or less.
By letters dated August 8 and 14, 2017, the employing establishment controverted
appellant’s claim noting that he failed to establish fact of injury and that the claimed medical
condition was causally related to his employment. It also noted that, under a prior claim, assigned
OWCP File No. xxxxxx191, OWCP had accepted that on April 9, 2015 he sustained heat
exhaustion.

2

By decision dated September 12, 2017, OWCP denied appellant’s traumatic injury claim
as the medical evidence of record failed to establish that his diagnosed condition was causally
related to the accepted July 7, 2017 employment incident. It noted his allegation that he felt like
he was going to pass out and he experienced trouble breathing and muscle weakness while walking
back to the employing establishment after finishing his route.
On September 26, 2017 appellant requested reconsideration and submitted additional
medical evidence.
In a progress note dated July 17, 2017, Dr. Wiewora noted a history of the accepted July 7,
2017 employment incident and appellant’s medical history. He also noted that appellant requested
a note to restrict him from outdoor work in temperatures above 85 degrees as appellant had
required similar restrictions in previous summers. Dr. Wiewora provided a review of appellant’s
symptoms and discussed examination findings. He assessed heat exhaustion, gout, hypertension,
gastroesophageal reflux disease, and abdominal pain.
An unsigned progress note dated July 31, 2017 from Central Arkansas Veterans Healthcare
System related a history of appellant’s medical conditions and treatment, which included the
treatment of his heat exhaustion on July 7, 2017 by Dr. Wiewora. The progress note also related
a history that appellant felt light-headed while delivering mail to its building on the day of
examination. He reported continued intermittent right-sided upper abdominal pain, but no lightheadedness. Appellant also reported a past evaluation related to a suspicion of gastritis.
Examination findings and his active outpatient medications were described.
In an August 10, 2017 progress note, Dr. Solomon C. Mogbo, a Board-certified internist,
related a history of the accepted July 7, 2017 employment incident and appellant’s medical, social,
and family background. He discussed findings on physical examination and provided an
impression of heat exhaustion, headache, essential (primary) hypertension, fatigue, and electrolyte
imbalance.
By decision dated September 29, 2017, OWCP denied further merit review of appellant’s
claim. It found that his request for reconsideration neither raised substantive legal questions nor
included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged.6
The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.7 The evidence required
to establish causal relationship is rationalized medical opinion evidence, based upon complete
factual and medical background, showing a causal relationship between the claimed condition and
the identified incidents.8 The belief of the claimant that a condition was caused or aggravated by
the employment is insufficient to establish a causal relationship.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish heat exhaustion
caused or aggravated by the accepted July 7, 2017 employment incident.
Appellant submitted reports dated July 10 and 17, 2017 from his attending physician,
Dr. Wiewora. In the July 17, 2017 Form CA-17 report, Dr. Wiewora examined appellant and
diagnosed heat exhaustion due to the accepted employment incident. He advised that appellant
could resume work as of the date of examination with the restriction of working in temperatures
of 85 degrees or less. Dr. Wiewora’s report is not well rationalized. While it contains an
affirmative opinion that appellant’s diagnosed heat exhaustion was related to the performance of
his employment duties on July 17, 2017, the report does not contain sufficient medical rationale
explaining his opinion on causal relationship. The Board has held that a medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.10 Dr. Wiewora did not explain how
appellant’s heat exhaustion and disability for work were caused or aggravated by his work on
July 7, 2017. In his July 10, 2017 report, he addressed appellant’s work capacity and restriction,

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7
John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10
See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

but failed to provide a firm diagnosis of a particular medical condition,11 note a history of injury,12
or offer a specific opinion as to whether the accepted employment incident caused or aggravated
appellant’s condition.13 For the stated reasons, the Board finds that Dr. Wiewora’s reports are
insufficient to establish appellant’s burden of proof.
Appellant also submitted an August 1, 2017 Form CA-20 report from a registered nurse.
However, this evidence is of no probative medical value as a registered nurse is not considered a
physician as defined under FECA.14
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish heat exhaustion causally related to his employment on July 7, 2017.
Appellant therefore did not meet his burden of proof.
On appeal appellant contends that the medical evidence submitted establishes that he
sustained work-related heat exhaustion on July 7, 2017. An award of compensation may not be
based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.15
Appellant’s honest belief that he developed heat exhaustion from his work duties on July 7, 2017,
however sincerely held, does not constitute medical evidence necessary to establish causal
relationship.16 As he has failed to provide a rationalized medical opinion sufficient to establish
causal relationship between his claimed condition and his employment, he has failed to meet his
burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application

11
See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
12
Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little probative
value).
13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
14

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See A.M., Docket No. 16-1552 (issued July 5, 2017); L.C., Docket No. 16-1717 (issued March 2, 2017).
15

See S.H., Docket No. 17-1447 (issued January 11, 2018).

16

H.H., Docket No. 16-0897 (issued September 21, 2016).

5

by a claimant.17 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).18 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.19 Section 10.608(b) provides that, when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim under 5 U.S.C. section 8128(a).
Appellant disagreed with OWCP’s denial of his traumatic injury claim for heat exhaustion
causally related to the accepted July 7, 2017 employment incident. On September 26, 2017 he
requested reconsideration.
The Board finds that, in his September 26, 2017 request for reconsideration, appellant did
not show that OWCP erroneously applied or interpreted a specific point of law, or advance a new
and relevant legal argument not previously considered. Thus, appellant is not entitled to a review
of the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
The Board further finds that appellant did not submit relevant or pertinent new evidence
not previously considered. The underlying issue in this case is whether appellant submitted
sufficient medical evidence establishing heat exhaustion causally related to the accepted July 7,
2017 employment incident. He submitted a new progress note dated July 17, 2017 from
Dr. Wiewora which related his history of injury and diagnosed, among other things, heat
exhaustion. This evidence, however, essentially reiterated Dr. Wiewora’s diagnosis of heat
exhaustion set forth in his prior report of record. In addition, this evidence failed to address the
causal relationship between the diagnosed conditions and appellant’s work on July 7, 2017.
Evidence or argument that repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.21 Moreover, the submission

17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(a).

19

Id. at § 10.606(b)(3).

20

Id. at § 10.608(b).

21

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

6

of evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the clam.22
Similarly, Dr. Mogbo’s new progress note dated August 10, 2017 is irrelevant to the critical
issue of causal relationship. He related a history of the accepted July 7, 2017 employment incident
and diagnosed heat exhaustion, but failed to offer an opinion addressing whether the diagnosed
condition was caused or aggravated by his employment.23
In addition, the July 31, 2017 unsigned progress note from Central Arkansas Veterans
Healthcare System is irrelevant to the issue in this claim. This evidence is devoid of a diagnosis
and an opinion on the causal relationship between the diagnosed condition and the accepted July 7,
2017 employment incident.24
The Board finds, therefore, that the progress notes from Drs. Wiewora and Mogbo and
Central Arkansas Veterans Healthcare System are insufficient to warrant further merit review of
the claim.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3) in his September 26, 2017 request for reconsideration. Pursuant to
20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish heat exhaustion
causally related to the accepted July 7, 2017 employment incident. The Board further finds that
OWCP properly denied his request for reconsideration of the merits of his claim under 5 U.S.C.
§ 8128(a).

22

D’Wayne Avila, 57 ECAB 642 (2006).

23

Id.

24

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the September 29 and 12, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 5, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Tracy, CA, Employer
__________________________________________

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

Docket No. 19-1061
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 15, 2019 appellant, through counsel, filed a timely appeal from a January 30,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish Valley Fever
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On February 7, 2018 appellant, then a 34-year-old distribution process supervisor, filed an
occupational disease claim (Form CA-2) alleging that he contracted coccidioidomycosis, also
known as Valley Fever, due to factors of his federal employment. He explained that Valley Fever
is a fungus that grows in dust and soil and, when inhaled, spores could lodge in the lungs and grow
causing fever, cough, etc. Appellant was first hospitalized on January 2, 2018. He indicated that
he first became aware of his condition and that it was caused or aggravated by his employment
duties on January 5, 2018. Appellant did not stop work.
In a supporting narrative statement dated January 5, 2018, appellant indicated that on
December 23, 2017 he began to have a light cough. Beginning in the evening of December 24,
2017, he felt very tired and by the end of the evening he had developed a fever. The next morning
appellant woke up and thought he was feeling better, but by the afternoon he was feverish and
sweating profusely for the remainder of the evening. On December 26, 2017 he was feeling the
same level of sickness and by the afternoon began experiencing severe chest pain while at work.
Appellant advised his supervisor that he needed to leave for the day as he was going to the hospital.
Appellant underwent testing at an emergency room and was diagnosed with an upper
respiratory infection. He was discharged with instructions for his care and advised that he should
remain off work for three days. Appellant returned to work on December 29, 2017, despite not
feeling well. He returned to the hospital the following day and was diagnosed with pneumonia
and was treated with antibiotics. On January 1, 2018 appellant was had no relief from his
symptoms, had a fever of 103 degrees, and complained of kidney pain. Upon his return to the
hospital, he was flagged for sepsis and the possibility of another illness.
On January 2, 2018 Dr. Neel Shah, a Board-certified oncologist, evaluated appellant and
advised him of his opinion that he had Valley Fever. He indicated that this condition was more
prevalent in warehouse environments around dust or pigeon droppings, as well as field workers
who are exposed to soil where fungus grows. On January 5, 2018 Dr. Shah received preliminary
test results indicating that he had Valley Fever. He also noted that the test indicated that the fungus
had entered appellant’s body within the few days prior to the start of his symptoms. Dr. Shah
provided treatment for appellant’s Valley Fever until January 8, 2018 when he was released from
the hospital to continue his recovery at home.
In a January 19, 2018 report, Dr. Mitchell Seitz, a Board-certified internist, diagnosed
primary fungal infection of the lung due to coccidioides immitis. A respiratory culture dated
January 19, 2018 demonstrated coccidioides immitis, confirmed by deoxyribonucleic acid probe
and light mixed respiratory flora.
In a development letter dated February 20, 2018, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish his claim. It advised him of the

2

deficiencies of his claim, requested that he provide additional factual and medical evidence to
establish his claim, and afforded him 30 days to submit the necessary evidence.
In response appellant submitted a January 10, 2018 report from Dr. Seitz indicating that he
had developed a cough, fevers, chills, and sweats and had eventually been diagnosed with Valley
Fever.
A diagnostic test dated February 5, 2018 demonstrated serologic findings which confirmed
that appellant had a coccidioidal infection.
In a progress report dated February 16, 2018, Dr. Seitz indicated that appellant appeared to
be improving. He anticipated an approximate six-month course of treatment and two additional
weeks off work before deciding on further work restrictions.
In a March 20, 2017 narrative statement, appellant noted that he supervised multiple
employees in different warehouses and handled very dusty and dirty materials on a daily basis at
work. He noted that there was also construction taking place at his duty station, which caused dust
and dirt to fly around. Appellant reported that his exposure to fungus outside of his employment
was minimal and he had never been previously diagnosed with Valley Fever or any other
respiratory condition. He further indicated that he had coworkers who had also been diagnosed
with Valley Fever.
In an April 3, 2018 letter, the employing establishment noted that an internal investigation
concluded that the allegations of other employees being sick due to Valley Fever could not be
substantiated. Prior to receiving the complaint, the employing establishment had been investigated
and it was determined that Valley Fever was caused by the fungus coccidiorides immitis that lived
in the top 2 to 12 inches of soil in many parts of the state of California. The letter also explained
that, according to the Centers for Disease Control and Prevention, there were no commercially
available tests to detect the liberated fungal spores in the soil. It further noted the difficulties with
testing for coccidiorides immitis. The employing establishment stressed the importance of good
housekeeping in order to minimize dust accumulation and also offered filtering face pieces to all
employees as a personal protective equipment option.
The employing establishment also submitted a copy of its February 17, 2016 respiratory
protection plan, a “Coccidioidomycosis in California Provisional Monthly Report” for January to
February 2018, and a copy of the safety orientation for contractors.
By decision dated April 27, 2018, OWCP found that the factual evidence was sufficient to
establish fact of injury, but denied the claim finding that the medical evidence of record failed to
establish a causal relationship between the diagnosed condition and the accepted factors of
appellant’s federal employment.
On May 30, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
November 15, 2018.
In a letter dated December 17, 2018, the employing establishment controverted appellant’s
claim indicating that the record contained no rationalized medical opinion evidence to establish
3

causal relationship between his condition and his employment. It also noted that appellant both
lived and worked in a “coccidiorides or Valley Fever endemic area” of California.
By decision dated January 30, 2019, the hearing representative affirmed the April 27, 2018
decision finding that the medical evidence of record was insufficient to establish a causal
relationship between the diagnosed condition and the accepted factors of appellant’s federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an employee of the United States within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury.4 These are the essential elements of every compensation claim regardless of whether the
claim is predicated on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
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.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).9
3

Id.

4

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
5

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

6
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

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

8

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

9

Id.; Victor J. Woodhams, supra note 6.

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish Valley Fever
causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted a January 2, 2018 report from Dr. Shah in
which he diagnosed Valley Fever and explained that this condition was more prevalent among
warehouse workers who are exposed to a lot of dust or in the fields and exposed to soil where
fungus grows. While Dr. Shah provided a diagnosis, he did not offer an opinion as to whether
appellant’s employment caused or aggravated his condition.10 Medical evidence that does not
offer an opinion regarding the cause of an employee’s condition or disability is of no probative
value on the issue of causal relationship.11 As Dr. Shah’s report does not provide an opinion as to
causal relationship, it is insufficient to meet appellant’s burden of proof to establish his claim.
Similarly, Dr. Seitz, in his reports dated January 10, 19, and February 16, 2018, provided
diagnoses and examination findings, but failed to provide an opinion on causal relationship. As
such, his reports are also of no probative value and are insufficient to establish appellant’s claim.12
In support of his claim, appellant also submitted diagnostic imaging studies in the form of
a January 19, 2018 respiratory culture and serologic findings dated February 5, 2018. The Board
has held that diagnostic studies lack probative value as they do not provide an opinion on causal
relationship between the employment exposure and appellant’s diagnosed condition(s).13 These
reports are therefore insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence to support his claim that his
diagnosed condition of Valley Fever was causally related to the accepted factors of his federal
employment he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish Valley Fever
causally related to the accepted factors of his federal employment.

10

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

11

Id.

12

Id.

13

I.C., Docket No. 19-0804 (issued August 23, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the January 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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

Docket No. 19-1939
Issued: May 6, 2020

Case Submitted on the Record

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

JURISDICTION
On September 19, 2019 appellant filed a timely appeal from a May 17, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 17, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On December 15, 2017 appellant, then a 57-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that he sustained a hip injury due to factors of
his federal employment which included walking, dismounting from his postal vehicle multiple
times a day, and delivering mail for the past 30 years. He related that he first became aware of his
condition and first realized their relation to factors of his federal employment on
December 1, 2017. Appellant further noted that he had received a diagnosis of right hip arthritis
and impingement on December 14, 2017. On the reverse side of the claim form, the employing
establishment indicated that he stopped work on December 13, 2017.
In an undated narrative statement received by OWCP on December 20, 2017, appellant
related that on December 1, 2017 he experienced excessive right hip pain. He repeated the factors
of employment alleged to have caused his hip injury and noted that using his hip all day at work
for over 30 years most likely wore out his hip joint and caused it to deteriorate.
In a December 21, 2017 development letter, OWCP informed appellant that additional
evidence was required in support of his claim. It advised him of the type of factual and medical
evidence necessary to establish his claim and attached a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the requested evidence.
A December 14, 2017 medical report by Dr. Brian Abbot, an osteopath Board-certified in
neuromusculoskeletal medicine, noted that appellant presented with pain, weakness, and stiffness
in his right hip. Appellant experienced pain with walking, squatting, and pivoting, and he walked
with a limp. Dr. Abbot noted that appellant had a gradual onset of his symptoms over the past six
to eight weeks and had no preceding trauma. Appellant’s physical examination findings were
noted. X-rays of his hip and pelvis revealed moderate degenerative arthritis with moderate loss of
joint space and cam morphology. Dr. Abbot diagnosed right hip arthrosis, unilateral right hip
primary osteoarthritis, and cam morphology. He provided appellant with a hip injection and
indicated that appellant should not return to work for a week.
In a December 14, 2017 duty status report (Form CA-17), Dr. Abbot noted that appellant’s
soreness and pain in his right hip increased while performing his normal work duties, including
delivering at least 60 parcels per day, which required him to stop and dismount from his postal
vehicle. He also noted that appellant’s job entailed lifting up to 45 pounds, bending/stooping,
reaching above his shoulders, sitting, standing, walking, twisting, simple grasping, fine
manipulation, and driving a vehicle. Dr. Abbot diagnosed degenerative joint disease and
impingement of the right hip, which he noted in the “diagnosis due to injury” section. He indicated
that appellant should not return to work for a week, and advised that when appellant did return he
should only perform sedentary work.
A December 22, 2017 report by Dr. Abbot indicated that appellant’s symptoms remained
unchanged. He repeated appellant’s diagnoses from his previous report and indicated that
appellant should remain off of work. A December 22, 2017 work capacity evaluation (Form
OWCP-5c) report signed by Dr. Abbot repeated appellant’s diagnoses and indicated that appellant
could not return to work. A December 22, 2017 duty status report (Form CA-17) signed by him
indicated that appellant was injured during November 2017 due to repetitive activity, including

2

delivering at least 60 parcels per day. Dr. Abbot repeated appellant’s employment factors listed
in the previous duty status report, diagnosed appellant hip arthrosis and impingement, which he
noted in the “diagnosis due to injury” section, and advised appellant not to return to work.
On December 27, 2017 appellant completed OWCP’s development questionnaire. He
argued that the long-term effects of the repetitive motion from a combination of all his performance
and physical work functions listed in the submitted duty status reports, which he performed for at
least 5 days a week for the past 30 years, likely caused his hip injury.
By decision dated January 23, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between his
diagnosed conditions and the accepted factors of his federal employment.
On February 12, 2018 appellant requested reconsideration. In an attached statement he
related that he was submitting a new medical report from Dr. Abbot which explained that the
nature of appellant’s federal employment would aggravate his diagnosed right hip conditions, and
therefore he had proven causal relationship and established his claim.
A January 30, 2018 medical report from Dr. Abbot indicated that appellant’s symptoms
remained unchanged. He noted that a magnetic resonance imaging (MRI) scan of appellant’s hips
revealed a moderate diffuse edema within the right femoral neck and right femoral epiphysis,
bilateral hip osteoarthritis, a right hip joint effusion, and a differential diagnosis of transient
osteoporosis, avascular necrosis, and septic arthritis. The MRI scans were compared with
appellant’s computerized tomography scan from July 22, 2008. Dr. Abbot opined that it was not
clear that appellant’s physical work duties caused appellant’s degenerative hip changes, but that
the nature of his work would aggravate this component of his hip pain. He further opined that
appellant’s work duties would not be responsible for the transient osteoporosis versus the avascular
necrosis. Dr. Abbot aspirated appellant’s hip with ultrasound guidance. He advised that appellant
could return to work with the restrictions of weight bearing as tolerated, using crutches, no
squatting or heavy lifting, and engaging in sensatory work only.
By decision dated March 27, 2018, OWCP denied modification of its January 23, 2018
decision.
In a March 27, 2018 duty status report (Form CA-17), Dr. Abbot diagnosed hip
impingement, arthritis, and transient osteoporosis versus the avascular necrosis, which he noted in
the “diagnosis due to injury” section. He requested that appellant be excused from parcel post
duties and indicated that appellant could engage in intermittent twisting for less than an hour per
day and intermittent reaching above his shoulders for eight hours per day.
On October 12, 2018 appellant requested reconsideration. In an accompanying letter, he
indicated that in a newly submitted medical report Dr. Abbot opined that appellant’s factors of
federal employment aggravated his underlying arthrosis. Appellant further explained that the
increase of door-to-door delivery required due to shipments from companies increased the amount
of parcels he delivered, which aggravated his medical condition.
An August 16, 2018 medical report from Dr. Abbot indicated that appellant’s symptoms
had significantly improved, but appellant still experienced pain. He repeated appellant’s diagnoses
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of right hip pain, unilateral primary osteoarthritis, right hip arthrosis, and cam morphology.
Dr. Abbot opined that the nature of appellant’s work duties, including repetitive right hip
abduction, bending, and lifting, aggravated his underlying arthrosis. He also repeated that
appellant’s employment factors were not responsible for his differential diagnoses of transient
osteoporosis versus avascular necrosis. Dr. Abbot recommended that appellant continue with prior
restrictions, but indicated that appellant could return to work on his mail route as long as he
refrained from delivering parcels.
By decision dated November 27, 2018, OWCP denied modification of its March 27, 2018
decision.
On February 11, 2019 appellant requested reconsideration. In an accompanying letter, he
indicated that he was submitting a medical report from Dr. Abbot which provided the medical
reasoning required by OWCP, thereby proving causal relationship and establishing his claim for
benefits.
In a January 24, 2019 narrative medical report, Dr. Abbot explained that hip arthritis is the
loss of joint cartilage and associated bony change, and that cartilage affords smooth joint motion.
He further explained that an arthritic hip does not tolerate a range of motion beyond a certain
degree, and he compared appellant’s range of motion with that of a normal hip joint, indicating
that appellant’s range was limited. Dr. Abbot also indicated that appellant had cam morphology,
which meant that appellant’s femoral neck did not taper, thereby limiting his range of motion and
contributing to the process of joint arthritis. He noted that if appellant moved his hip beyond his
range of motion, the bony elements of appellant’s joints opposed each other rather than the usual
opposition of smooth cartilage surfaces in a normal hip, and this limited motion and caused pain.
Dr. Abbot indicated that when appellant delivered packages at work it required him to exit on the
right side of a postal truck, stepping on his right leg. He stated that it was then expected that
appellant would pivot to the right to go to the back of the truck, effectively internally rotating his
hip. Dr. Abbot explained that these motions, when done on a repetitive basis, caused arthritic hip
pain, as they typically placed the joint in positions that were at or beyond the range of motion
available to his hip. He opined that therefore delivering letters and repeatedly delivering packages
would exacerbate appellant’s underlying hip degenerative process. Dr. Abbot indicated that
appellant could continue driving a postal truck, but should refrain from squatting and lifting
objects.
By decision dated May 17, 2019, OWCP denied modification of its November 27, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time

3

Supra note 1.

4

limitation of FECA,4 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.5 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.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (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 identified employment factors.7
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
In any 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 this case is not in posture for decision.
Dr. Abbot’s medical reports provided a history of injury, physical examination findings, a
review of diagnostic tests, and they accurately described the accepted employment factors, which
4

S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008).

6

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

7

M.S., Docket No. 18-1554 (issued February 8, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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he noted that appellant had performed for 30 years. He diagnosed arthritis and hip impingement
and he provided a differential diagnosis of transient osteoporosis, avascular necrosis, and septic
arthritis. In his August 16, 2018 medical report, Dr. Abbot opined that the nature of appellant’s
work, including repetitive right hip abduction, bending, and lifting, aggravated appellant’s
underlying arthrosis. In his January 24, 2019 narrative medical report, he explained the
mechanism of injury.12 Dr. Abbot related that hip arthritis was the loss of joint cartilage and
associated bony change, and noted that an arthritic hip did not tolerate a range of motion beyond
a certain degree because bony elements of the joints opposed each other rather than the usual
opposition of smooth cartilage surfaces. He further explained that when appellant delivered
packages at work appellant exited on the right side of a postal truck, stepping on his right leg and
would then pivot to the right to go to the back of the truck, effectively internally rotating his hip.
Dr. Abbot opined that these motions, when done on a repetitive basis, caused arthritic hip pain, as
they typically placed the joint in positions that were at or beyond the range of motion available to
appellant’s hip, and he concluded that therefore delivering letters and repeatedly delivering
packages would exacerbate appellant’s underlying hip degenerative process.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation; however,
OWCP shares responsibility in the development of the evidence to see that justice is done.13
The Board finds that, although Dr. Abbot’s reports are insufficiently rationalized to meet
appellant’s burden of proof to establish his claim, they are relevant evidence in support of
appellant’s claim, as they explain the physiological process by which appellant’s accepted factors
of federal employment could have resulted in the aggravation of appellant’s right hip arthritis.
Dr. Abbot’s medical reports raise an uncontroverted inference of causal relation between
appellant’s claimed right hip condition and the accepted factors of his federal employment.
Further, development of appellant’s claim is therefore required.14
On remand, OWCP shall prepare a statement of accepted facts concerning appellant’s
employment factors and refer him to an appropriate second opinion physician to determine whether
appellant’s accepted employment factors either caused or aggravated his right hip condition.15
After this and other such further development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

E.S., Docket No. 18-1312 (issued April 3, 2020); see also William J. Cantrell, 34 ECAB 1223 (1983).

13

C.C., Docket No. 19-1631 (issued February 12, 2020).

14

See K.T., Docket No 19-1436 (issued February 21, 2020).

15

See supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the May 17, 2019 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision.
Issued: May 6, 2020
Washington, DC

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

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

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

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