United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Tampa, FL, Employer
__________________________________________

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

Docket No. 15-1358
Issued: December 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 1, 2015 appellant filed a timely appeal from an April 7, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days elapsed
from OWCP’s last merit decision dated July 24, 2014 and the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant abandoned her request
for an oral hearing.
1

Appellant submitted a timely request for oral argument in connection with OWCP’s April 7, 2015 decision.
After exercising its discretion, the Board issued an order on October 14, 2015 denying her request for oral argument
as the arguments on appeal could be adequately addressed in a decision based on a review of the case record. Order
Denying Request for Oral Argument, Docket No. 15-1358 (issued October 14, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 28, 2010 appellant, then a 52-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on August 14, 2010 she sprained her lower back and
buttocks moving a patient. OWCP accepted the claim for sprain of the lumbosacral
joint/ligament.
On March 6, 2014 appellant filed a recurrence of disability claim (Form CA-2a) alleging
that she required medical treatment beginning June 19, 2013 causally related to her August 14,
2010 employment injury.
In a decision dated July 24, 2014, OWCP found that appellant had not established a
recurrence of disability beginning June 19, 2013.
On August 14, 2014 appellant requested an oral hearing before an OWCP hearing
representative.
In a February 13, 2015 notice, OWCP’s Branch of Hearings and Review scheduled a
telephone hearing for 2:00 p.m. Eastern Time on March 23, 2015. It provided appellant with a
toll-free number and pass code for the telephone hearing and OWCP mailed the notice to her
address of record.
Appellant did not call in to the scheduled hearing.
By decision dated April 7, 2015, the hearing representative found that appellant had
abandoned her request for a hearing. He found that appellant had received written notification of
the hearing 30 days in advance, but failed to appear.3 The decision further found no evidence
that appellant had contacted OWCP either prior to or subsequent to the scheduled hearing to
explain her failure to participate. It concluded that she had abandoned her hearing request.
On appeal appellant argues that she was unable to participate in the hearing due to an
emergency illness.
LEGAL PRECEDENT
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.4 Unless otherwise directed in writing by the claimant, the hearing
representative will mail a notice of the time and place of the hearing to the claimant and any

3

The decision indicates that the hearing was scheduled for March 24, 2015 rather than March 23, 2015; however,
this appears to be a typographical error.
4

20 C.F.R. § 10.616(a).

2

representative at least 30 days before the scheduled date.5 OWCP has the burden of proving that
it properly mailed to appellant and her representative a notice of a scheduled hearing.6
A claimant who fails to appear at a scheduled hearing may request in writing within 10
days after the date set for the hearing that another hearing be scheduled. Where good cause for
failure to appear is shown, another hearing will be scheduled and conducted by teleconference.
The failure of the claimant to request another hearing within 10 days, or the failure of the
claimant to appear at the second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing.7
ANALYSIS
Following OWCP’s July 24, 2014 decision finding that appellant had not established a
recurrence of disability, she filed a timely request for an oral hearing before an OWCP hearing
representative. On February 13, 2015 OWCP’s Branch of Hearings and Review notified her that
it had scheduled a telephone hearing for March 23, 2015 at 2:00 p.m. Eastern Time. OWCP
properly sent the notice to appellant’s address of record.8 Appellant failed to call in for the
scheduled hearing. She did not request a postponement or provide any explanation to OWCP for
her failure to attend the hearing within 10 days of the scheduled hearing. As appellant did not
request a postponement, did not call in to the scheduled hearing, and did not provide any
notification to the Branch of Hearings and Review within 10 days of the scheduled hearing
explaining her failure to appear, the Board finds that she abandoned her request for an oral
hearing.9
On appeal appellant contends that she was not able to call in for the scheduled hearing
due to an emergency illness. There is no evidence, however, that she provided this information
to OWCP within 10 days of the scheduled hearing. The Board is precluded from reviewing
evidence not before OWCP at the time it issued its final decision.10
Appellant also raises arguments relevant to the merits of her claim. As noted, however,
the Board lacks jurisdiction over the July 24, 2014 merit decision of OWCP.

5

Id. at § 10.617(b).

6

T.P., Docket No. 15-0806 (issued September 11, 2015); K.D., Docket No. 11-77 (issued August 18, 2011).

7

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written
Record, Chapter 2.1601.6(g) (October 2011).
8

Absent evidence to the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is called the mailbox rule. See James A. Gray, 54 ECAB 277 (2002).
9

See supra note 7; see also C.H., Docket No. 14-0620 (issued June 24, 2014).

10

See supra note 7 at § 501.2(c)(1).

3

CONCLUSION
The Board finds that OWCP properly determined that appellant HAD abandoned her
request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 4, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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FEDERAL JUDICIARY, U.S. PRETRIAL
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SERVICES OFFICES Albuquerque, NM,
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Employer
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___________________________________________ )
R.R., Appellant

Docket No. 07-1440
Issued: June 13, 2008

Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs decisions dated December 1, 2006 and March 26, 2007 that denied
modification of an Office decision that she had no employment-related disability. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that she had any
disability after October 18, 2002 causally related to her December 1, 1994 employment injury.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In an October 6, 2006
decision, the Board found that the Office met its burden of proof in terminating appellant’s
1

Docket No. 06-426 (issued October 6, 2006).

wage-loss compensation effective October 18, 2002 based on the reports of Dr. Karen Kinney, a
Board-certified psychiatrist and appellant’s treating physician, who opined that appellant had no
continuing psychiatric disability due to her accepted depression. The Board found that appellant
did not meet her burden of proof to establish that she had any injury-related disability after
October 18, 2002 causally related to the December 1, 1994 employment injury. However, the
Board set aside a May 20, 2005 Office decision finding that it improperly refused to reopen
appellant’s case for further review of the merits. The Board remanded the case to the Office for
a merit review. The facts and history of the case are contained in the prior appeal and are
incorporated herein by reference.
In a December 7, 2004 report, Dr. Gerald S. Fredman, a Board-certified psychiatrist,
opined that appellant was totally disabled. He diagnosed major depressive order, recurrent,
severe and noted that appellant had medically documented evidence of a persistent, continuous
syndrome characterized by anhedonia or pervasive loss of interest in almost all activities.
Dr. Fredman described sleep disturbance, psychomotor agitation, decreased energy, feelings of
guilt or worthlessness, difficulty concentrating and thoughts of suicide. He advised that these
findings resulted in marked restriction of activities of daily living, social functioning and
difficulties in maintaining concentration and persistence in activities. Dr. Fredman noted that
there were repeat episodes of decompensation requiring inpatient care. Because appellant’s
disorder was greater than two years duration, it had caused more than a minimal limitation in her
ability to do basic work activities. Dr. Fredman opined that the residual disease process from the
affective disorder resulted in a marginal adjustment such that even a minimal increase in mental
demands would cause appellant to decompensate. He diagnosed post-traumatic stress disorder
(PTSD) and explained that appellant had recurrent and intrusive recollections of the traumatic
experience (in the work environment), which were a source of marked distress. This resulted in
marked restriction of activities of daily living and marked difficulties in maintaining social
functioning. Dr. Fredman opined that as result of the combination of the major depressive order
and PTSD appellant had limitations interacting with the public, potential coworkers and potential
supervisors. He also added that appellant was limited to adapting to changes in the workplace as
a result of these combined psychiatric diagnoses. Regarding specific employment factors
rendering appellant totally disabled, he noted that they included that she endured a hostile work
environment due to harassment by her supervisor from 1989 to 1996. Dr. Fredman indicated that
this was “overwhelming medical evidence of psychiatric impairment.”
On a March 2, 2005 Dr. Fredman noted that appellant had a depressed mood most of the
day, markedly diminished interest or pleasure in almost all activities, insomnia, fatigue or loss of
energy nearly everyday and feelings of worthlessness. Appellant also had inappropriate feelings
of guilt as well as diminished ability to think or concentrate. Dr. Fredman diagnosed major
depressive order, recurrent, severe and PTSD. He related the diagnoses to work-related factors
that took place during appellant’s employment and noted that her mood disorder, as well as the
PTSD were still present and caused major impairment. Dr. Fredman advised that appellant’s
prognosis was guarded. Appellant demonstrated slight improvement since the onset of
treatment, but continued to demonstrate serious symptoms of impairment. Dr. Fredman opined
that appellant could not perform the essential duties of a position similar to the one from which
she retired as there would be significant risk of regression and more serious symptom formation.
He explained that the risk would be that of injury to herself, as she had a previous suicide
attempt.
2

By decision dated December 1, 2006, the Office denied modification of its previous
decision.
In a January 18, 2007 report, Dr. Fredman noted that he was addressing the issue of
whether appellant had disability after October 18, 2002. He had treated appellant since
March 24, 2004, following treatment by Dr Kinney. Dr. Fredman advised that, in 2002,
appellant was going to get married and was pursuing outside activities. He noted, however, that
she did not get married and was not pursuing outside activities of any kind of consistent basis.
Once appellant’s compensation benefits were terminated, she became suicidal and was
hospitalized and continued to have symptoms of anxiety and depression. Dr. Fredman stated that
“[w]hile the April 2002 report from Dr. Kinney and subsequent loss of workers’ compensation
benefits certainly contributed to [appellant’s] psychiatric impairments; there are other reasons for
her ongoing disturbance and serious symptoms. These reasons relate to her earlier employment
with the [employing establishment]. [Appellant] began experiencing symptoms of anxiety and
depression in the early 1990s and prevailed in harassment suit against the employing
establishment.” Dr. Fredman opined that appellant was overwhelmed and unable to find
effective remedies and had trust issues. He opined that while Dr. Kinney treated appellant and
subsequently assessed her as reaching maximum psychiatric improvement, “it is the realm of
psychiatric probability that there can be later decompensation to serious symptoms of both mood
disorder and [PTSD] disorder.” Dr. Fredman opined that it was “more likely than not that this
later decompensation had its origin from the original work injury of December 1, 1994.”
By letter dated January 23, 2007, appellant’s representative requested reconsideration
contending that appellant’s condition had reactivated since its cessation in April 2002. He also
alleged that while the loss of wage compensation played a part in appellant’s decompensation,
there were certainly other work-related factors that also contributed to her decompensation.
By decision dated March 26, 2007, the Office denied modification of its previous
decisions.2
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.3
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, must be one
2

The Office noted that appellant remained entitled to medical treatment for her accepted work-related injuries.

3

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

3

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 appellant.4
ANALYSIS
Following the termination of compensation, appellant requested reconsideration and
submitted additional reports from Dr. Fredman.
On December 7, 2004 Dr. Fredman diagnosed major depressive order and PTSD and
opined that appellant was totally disabled. He noted that she had recurrent and intrusive
recollections of the traumatic experience (in the work environment), which were a source of
marked distress. Dr. Fredman explained that this resulted in marked restriction of activities of
daily living and marked difficulties in maintaining social functioning. He opined that as result of
the combination of the major depressive order and PTSD, appellant had limitations interacting
with the public, potential coworkers and potential supervisors. Regarding specific employment
factors rendering appellant totally disabled, Dr. Fredman noted that they included that she
endured a hostile work environment due to harassment by her supervisor from 1989 until 1996.
He indicated that this was “overwhelming medical evidence of psychiatric impairment.” The
Board initially notes that appellant stopped work on September 20, 1996 and did not have any
further exposure to the employing establishment. The Board also notes that she was found to
have reached maximum medical improvement by Dr. Kinney, her treating physician on
April 19, 2002. Dr. Kinney found that there were no limitations regarding returning to full duty.
Additionally, the second opinion physician, Dr. Morris, opined that appellant could return to
work but specified that she should not return to her old-duty station. Dr. Fredman did not
adequately explain how appellant continued to be disabled in light of these findings and the fact
that she was no longer exposed to any factors of her employment. To establish causal
relationship, a claimant must submit a physician’s report in which the physician reviews the
employment factors identified as causing the claimed condition and, taking these factors into
consideration as well as findings upon examination, states whether the employment injury
caused or aggravated the diagnosed conditions and presents medical rationale in support of his or
her opinion.5
On March 2, 2005 Dr. Fredman noted appellant’s present symptoms and related her
diagnoses to work-related factors that took place during her employment and noted that her
mood disorder, as well as PTSD were still present and caused major impairment. Furthermore,
he opined that appellant could not perform the essential duties of a position similar to the one
from which she retired as there would be significant risk of regression and more serious
symptom formation. Dr. Fredman explained that the risk would be that of injury to herself, as
she had a previous suicide attempt. The Board notes that a fear of future injury is not
compensable under the Federal Employees’ Compensation Act.6 Additionally, Dr. Fredman did
4

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

5

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); J.M., 58 ECAB ___ (Docket No. 06-2094, issued
January 30, 2007).
6

Virginia Dorsett, 50 ECAB 478, 482 (1999).

4

not explain how he arrived at his conclusion; in light of the previous findings that appellant had
reached maximum medical improvement and could return to full duty. Thus, this report is
insufficiently rationalized regarding appellant has any continuing disability causally related to
her accepted employment injuries.
In a January 18, 2007 report, Dr. Fredman addressed whether appellant “began to
experience work-related factors that were a cause of her disability after October 18, 2002.” He
noted that Dr. Kinney determined that appellant reached maximum psychiatric improvement and
was ready to return to full employment status. Dr. Fredman also indicated that, at that time,
appellant was going to get married and was again pursuing outside activities. However, the
marriage did not occur and that she was not pursuing outside activities. After her compensation
benefits were terminated, she became suicidal and was hospitalized and continued to experience
symptoms of both anxiety and depression. Dr. Fredman indicated that Dr. Kinney’s report and
the loss of workers’ compensation benefits contributed to her psychiatric impairments but that
there were other reasons for her ongoing disturbance and serious symptoms. He explained that
while Dr. Kinney determined that appellant had reached maximum medical improvement, he
opined that “it is the realm of psychiatric probability that there can be later decompensation to
serious symptoms of both mood disorder and [PTSD].” He further added that it was “more
likely than not that this later decompensation had its origin from the original work injury of
December 1, 1994.” However, these opinions are couched in terms of probability and
speculation. The Board has held that speculative and equivocal medical opinions regarding
causal relationship have no probative value.7 The Board also notes that Dr. Fredman alleges that
appellant’s condition appears to have stemmed from the termination of her compensation
benefits. However, the development of any condition related to such matters would not arise in
the performance of duty as the processing of compensation claims bears no relation to
appellant’s day-to-day or specially assigned duties.8 Dr. Fredman also indicated that other
factors contributed to her conditions, which were not work related, such as the marriage which
did not occur. This report is insufficient to establish ongoing disability after October 18, 2002
causally related to her accepted employment injury.
Thus, the reports received from Dr. Fredman subsequent to the termination of appellant’s
compensation are insufficient to establish ongoing disability causally related to her accepted
employment injury. Consequently, appellant has not established that her disability on and after
October 18, 2002 was causally related to her accepted employment injury.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she had
any injury-related disability after October 18, 2002 causally related to the December 1, 1994
employment injury.

7

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
8

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

5

ORDER
IT IS HEREBY ORDERED THAT the March 26, 2007 and December 1, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 13, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pearl River, LA, Employer
__________________________________________

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

Docket No. 10-324
Issued: August 13, 2010

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 November 18, 2009 appellant filed an appeal from a November 4, 2009 merit
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 merits of the claim.
ISSUE
The issue is whether appellant sustained a recurrence of disability commencing May 8,
2001 causally related to accepted emotional conditions.
On appeal, appellant contends that the medical record establishes that the accepted
emotional conditions caused by a January 5, 1989 robbery were not affected by subsequent work
factors.

FACTUAL HISTORY
This case has previously been before the Board. By decision issued July 6, 2009,1 the
Board affirmed a July 21, 2008 decision of the Office denying a recurrence of disability
commencing May 8, 2001. The Board found that intervening work factors, including a
September 1995 incident in which a coworker threatened appellant with a knife, a return to light
duty in early 2001 and an April 26, 2001 telephone conversation with an employing
establishment official, broke the chain of causation stemming from a January 5, 1989 workplace
robbery. The law and facts as set forth in the Board’s prior decision are incorporated by
reference.
In July 10 and 15, 2009 letters, appellant requested reconsideration based on a July 7,
2008 medical report by Dr. David W. Galarneau, an attending Board-certified psychiatrist and
neurologist,2 who stated that although appellant’s previous health providers did not explicitly
link the 1989 robbery and “subsequent traumas in 1995, 2000 and 2001,” this was “obviously the
case” as subsequent traumas reactivated and worsened the accepted post-traumatic stress
disorder (PTSD). Dr. Galarneau opined that all the traumas were causally related as appellant
was predisposed for further trauma by the 1989 robbery. He diagnosed PTSD, mild major
depressive disorder and panic disorder without agoraphobia.
On January 11, 1989 Dr. Phillip T. Griffin, a licensed clinical psychologist, opined that
the January 5, 1989 robbery precipitated severe anxiety disorder. Dr. Serge Celestin, an
attending Board-certified psychiatrist, noted on July 19, 2001 that appellant stopped work in
April 2001 as she was unable to handle the pressure. In a January 10, 2007 report, Dr. Janet
Seligson-Dowie, an attending Board-certified psychiatrist, opined that an April 26, 2001
telephone conversation with an employing establishment official reactivated appellant’s PTSD.
In August 8, 2007 and January 10, 2008 reports, Dr. Beverly Stubblefield, an attending licensed
clinical psychologist, explained that appellant’s PTSD originated with the 1989 robbery and
“recurred” on September 18, 1995 when a coworker threatened her with a knife. The April 26,
2001 conversation caused a “consequential injury.” Appellant also provided legal excerpts about
causal relationship.
By decision dated August 12, 2009, the Office denied reconsideration on the grounds that
appellant did not submit new, relevant or pertinent evidence in support of her request. It found
that Dr. Galarneau’s report was cumulative as his opinion was similar to that of other physicians
of record. The Office further found that the reports of the other physicians were cumulative as
they were substantially similar to their prior opinions. It also found that the legal excerpts were
repetitive of appellant’s prior arguments.
In an August 25, 2009 letter, appellant requested reconsideration. She submitted an
August 24, 2009 report from Dr. Stubblefield, stating that appellant developed anxiety, major
1

Docket No. 08-2300 (issued July 6, 2009).

2

In a July 10, 2009 telephone memorandum, the Office noted that appellant submitted Dr. Galarneau’s July 7,
2008 report on July 17, 2008. However, it overlooked the report and did not consider it prior to the July 21, 2008
decision. The Office instructed appellant to resubmit the report accompanying a new request for reconsideration.

2

depressive disorder and trichotillomania in May 2001 after returning to work. Dr. Stubblefield
opined that the recurrence of appellant’s symptoms in May 2001 stemmed directly from the
January 1989 robbery.
By decision dated November 4, 2009, the Office denied modification on the grounds that
causal relationship was not established. It found that Dr. Stubblefield’s August 24, 2009 report
did not provide sufficient rationale supporting a spontaneous change in the accepted emotional
conditions as of May 8, 2001.
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”3 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 to establish by the weight of the reliable,
probative and substantial 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 injury-related condition or a change in the nature and extent of the lightduty job requirements.4 An award of compensation may not be based on surmise, conjecture or
speculation or on appellant’s unsupported belief of causal relation.5
ANALYSIS
The Office accepted that on January 5, 1989 appellant sustained anxiety disorder, major
depressive disorder and PTSD when she was robbed at gunpoint in the performance of duty.
Appellant returned to light duty. In September 1995, a coworker threatened appellant with a
knife. Appellant stopped work after this incident. Following a brief trial of modified work in
early 2001, she stopped work and did not return. On April 26, 2001 appellant had a telephone
conversation with an employing establishment official about her work absences. She then
claimed a recurrence of disability commencing May 8, 2001.
To meet her burden of proof, appellant must demonstrate either a spontaneous change in
the accepted emotional conditions or in her assigned light duties such that she could no longer

3

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
4

Carl C. Graci, 50 ECAB 557 (1999); see also Terry R. Hedman, 38 ECAB 222 (1986).

5

Alfredo Rodriguez, 47 ECAB 437 (1996).

3

perform her job requirements.6 She has the burden of providing sufficient evidence, including
rationalized medical evidence, to establish the causal relationship asserted.7
Appellant submitted medical reports from several attending physicians attributing her
psychiatric symptoms to workplace incidents after January 5, 1989. Dr. Celestin, a Boardcertified psychiatrist, noted that appellant experienced an increase in symptoms in April 2001
due to work factors. Dr. Seligson-Dowie, a Board-certified psychiatrist, opined that an April 26,
2001 telephone conversation with an employing establishment official reactivated appellant’s
PTSD.
Dr. Stubblefield, an attending licensed clinical psychologist, opined that the
September 18, 1995 knife threat reactivated appellant’s PTSD and that the April 26, 2001
conversation caused a separate injury. In an August 24, 2009 report, she explained that work
factors in May 2001 caused anxiety, major depressive disorder and trichotillomania.
Drs. Celestin, Seligson-Dowie and Stubblefield thus attributed the reappearance or worsening of
appellant’s psychiatric symptoms in May 2001 to the 1995 knife threat, work pressures in early
2001 and the April 26, 2001 conversation. The circumstances did not involve a spontaneous
change in the accepted emotional conditions.8
Appellant also submitted a July 7, 2008 report from Dr. Galarneau, an attending Boardcertified psychiatrist and neurologist. Dr. Galarneau opined that the 1989 robbery caused PTSD
predisposing appellant to disabling symptoms after the “subsequent traumas in 1995, 2000 and
2001.” While he indicated that the accepted PTSD was an ongoing condition, he found that
appellant’s emotional state was impacted by subsequent occupational incidents in 1995, 2000
and 2001. Dr. Galarneau did not provide medical rationale supporting a spontaneous change in
the accepted emotional conditions on May 8, 2001. His opinion is thus insufficient to meet
appellant’s burden of proof.9
On appeal, appellant contends that the medical evidence establishes that work factors
after the January 5, 1989 robbery did not affect the accepted emotional conditions. As set forth
above, her physicians did not support a spontaneous change in the accepted emotional conditions
as of May 8, 2001. Rather, they opined that subsequent occupational incidents caused the return
of psychiatric symptoms, breaking the chain of causation stemming from the 1989 incident.

6

Carl G. Graci, supra note 4.

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Bryant F. Blackmon, 56 ECAB 752 (2005).

9

Id.

4

Appellant did not submit sufficient rationalized medical evidence to establish the claimed
recurrence of disability. Therefore, the Office properly denied her claim.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on and after May 8, 2001 causally related to accepted emotional conditions.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 4 and August 12, 2009 are affirmed.
Issued: August 13, 2010
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 09-1208
Issued: December 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 3, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 19, 2008. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury causally related to factors of his
federal employment as a food service worker.
FACTUAL HISTORY
On October 31, 2008 appellant, then a 52-year-old food service worker, filed an
occupational disease claim (Form CA-2) stating that his back hurt from bending, pushing and
pulling carts. The Office sent the employing establishment a November 12, 2008 letter
requesting information about appellant’s employment activities. In response the employing
establishment submitted a December 8, 2008 letter with a description of appellant’s employment
activities and their frequency. The employing establishment also submitted a position
description.

By decision dated December 19, 2008, the Office denied the claim for compensation. It
found the evidence was insufficient to establish an incident as alleged.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.2
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.3
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.4 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.5
Additionally, in order to be considered rationalized, the 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 factors.6
ANALYSIS
In the December 19, 2008 decision, the Office indicated that it had sent appellant a
November 12, 2008 letter regarding his claim. The record indicates only that the Office sent the
employing establishment a November 12, 2008 letter. As to the factual evidence, appellant
identified bending, as well as pushing and pulling carts. The employing establishment provided
additional evidence regarding his work activities, which included bending, pushing and pulling.
There is no evidence refuting appellant’s allegation that he engaged in bending, pushing and
pulling as part of his federal job duties.

1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

See Robert G. Morris, 48 ECAB 238 (1996).

5

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

2

Appellant’s burden of proof to establish his claim, however, also includes the submission
of rationalized medical evidence establishing a diagnosed condition causally related to the
identified employment factors. The only decision on appeal is the December 19, 2008 decision,7
and the Board can review only evidence that was before the Office at the time of its final
decision.8 The record did not contain any medical evidence and, therefore, appellant did not
meet his burden of proof in this case.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury
causally related to his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2008 is modified to reflect that the evidence
establishes the identified job duties and is affirmed as modified.
Issued: December 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

On appeal, appellant referred to a February 4, 2009 decision. The record contains a letter dated February 4,
2009 advising appellant that he had requested two different appeal rights and he must clarify which appeal right he
was exercising. This letter is not a final decision with appeal rights. See 20 C.F.R. § 10.126.
8

20 C.F.R. § 501.2(c).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Edward L. Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 09-801
Issued: October 15, 2009

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 February 2, 2009 appellant filed a timely appeal from the January 5, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her occupational injury
claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury causally related to factors of her federal employment
FACTUAL HISTORY
This is appellant’s second appeal before the Board. In a decision dated December 28,
2007, the Board affirmed the Office’s December 7, 2006 denial of her occupational disease claim

and affirmed the denial of appellant’s request for further merit review. The facts and the law of
that decision are incorporated herein by reference.1 The relevant facts are set forth below.
In a March 5, 2008 report, Dr. Lafayette Singleton, a Board-certified neurologist,
reviewed appellant’s medical history, which revealed a diagnosis of right rotator cuff tear. He
noted that, when examined by Dr. Claudette Macklin, a Board-certified internist, appellant had
denied any specific trauma, other than her exposure to work activities. Dr. Singleton stated that
he was uncertain as to what exactly caused the rotator cuff tear. He described appellant’s work
activities, which included lifting and pulling heavy objects and stated that “the type of job she
was doing as a casual clerk does cause rotator cuff tears.” Dr. Singleton also stated that, given
the evidence by magnetic resonance imaging scan of a torn rotator cuff, “there had to be a
traumatic event of some type,”
Dr. Singleton also reviewed the chronology of appellant’s workers’ compensation claim,
indicating that it had initially been accepted. He observed that there was no medical evidence of
record refuting a causal relationship between appellant’s shoulder condition and employment
activities. Dr. Singleton opined that appellant’s right shoulder rotator cuff tear was caused by
her work duties at the employing establishment.
On October 2, 2008 appellant, through her representative, requested reconsideration. The
representative contended that Dr. Singleton’s March 5, 2008 report was sufficient to establish a
causal relationship between appellant’s right shoulder condition and her work activities.
By decision dated January 5, 2009, the Office denied modification of its previous
decision. It found that Dr. Singleton’s opinion was based on conjecture and inaccurate
information and, therefore, was insufficient to establish appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim, including the fact that an injury was
sustained in the performance of duty as alleged3 and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
1

Docket No. 07-1968 (issued December 28, 2007). Appellant alleged a right shoulder injury due to factors of her
federal employment.
2

5 U.S.C. §§ 8101-8193.

3

Joseph W. Kripp, 55 ECAB 121 (2003); see also Leon Thomas, 52 ECAB 202, 203 (2001). “When an
employee claims that he sustained injury in the performance of duty he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and manner alleged. He must
also establish that such event, incident or exposure caused an injury.” See also 5 U.S.C. § 8101(5) (“injury”
defined); 20 C.F.R. § 10.5(q) and (ee) (2002) (“Occupational disease or Illness” and “Traumatic injury” defined).
4

Dennis M. Mascarenas, 49 ECAB 215, 217 (1997).

2

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence, i.e., medical evidence presenting a physician’s well-reasoned opinion
on how the established factor of employment caused or contributed to claimant’s diagnosed
condition. To be of probative value, the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6 An award
of compensation may not be based on appellant’s belief of causal relationship. 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 a causal relationship.7
ANALYSIS
In the prior appeal, the Board found that the medical evidence failed to establish a causal
relationship between established work activities and appellant’s claimed right shoulder
condition. The Board finds that the medical evidence submitted on reconsideration before the
Office is insufficient to establish that her right shoulder condition was caused or aggravated by
factors of her federal employment.
The medical evidence submitted in support of appellant’s reconsideration request consists
of a March 5, 2008 report from Dr. Singleton, who summarily opined that appellant’s torn rotator
cuff was caused by her work duties. Dr. Singleton’s report is of limited probative value because
he did not provide findings on examination or even state that he had examined appellant. His
opinion appears based solely on his review of the medical and factual record. Dr. Singleton’s
opinion on causal relationship is inconsistent. He stated that appellant could not identify any
specific trauma but noted that “there had to be a traumatic event of some type.” Dr. Singleton
failed to sufficiently explain the medical process by which her work activities caused or
contributed to the diagnosed torn rotator cuff. His statement that the type of job appellant was
doing as a casual clerk can cause rotator cuff tears is general and does not describe the process
whereby her job duties caused her diagnosed shoulder condition. Dr. Singleton did not explain
how performing repetitive activities could result in a torn rotator cuff, particularly in light of his
assertion that “there must have been a traumatic event of some type.” The Board has held that
medical conclusions unsupported by rationale are of little probative value.8

5

Michael R. Shaffer, 55 ECAB 386 (2004). See also Solomon Polen, 51 ECAB 341, 343 (2000).

6

Leslie C. Moore, 52 ECAB 132, 134 (2000); see also Ern Reynolds, 45 ECAB 690, 695 (1994).

7

Phillip L. Barnes, 55 ECAB 426 (2004); see also Dennis M. Mascarenas, supra note 4 at 218.

8

Willa M. Frazier, 55 ECAB 379 (2004).

3

Appellant contends that her right shoulder condition resulted from her exposure to
contaminants in her work environment, including dust and chemical fumes. The Board has held
that the mere fact that a condition manifests itself during a period of employment does not raise
an inference that there is a causal relationship between the two.9 Neither the fact that the
condition became apparent during a period of employment nor the belief that the condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.10 Causal relationship must be substantiated by reasoned medical opinion evidence,
which is appellant’s responsibility to submit. Therefore, appellant’s belief that her condition was
caused by the alleged work-related injury is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to do so. There is
no probative, rationalized medical evidence addressing how her work duties were caused or
aggravated her claimed condition. Appellant has not met her burden of proof in establishing that
she sustained an occupational disease causally related to factors of employment.
Appellant’s representative contends that appellant submitted sufficient medical evidence
to require the Office to refer her for a second opinion examination. As noted, however, the
Board finds that the medical evidence is insufficient to establish appellant’s claim or to require
further development.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF THE NAVY, PEARL
HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-10
Issued: March 24, 2008

Case Submitted on the Record

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

JURISDICTION
On October 1, 2007 appellant filed a timely appeal from a September 20, 2007
schedule award 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 merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained a ratable hearing loss
entitling him to a schedule award.
FACTUAL HISTORY
On November 24, 2006 appellant, a 57-year-old production shop planner, filed an
occupational disease claim alleging that he sustained a bilateral hearing loss due to work-related
noise exposure. He submitted copies of audiograms for the period July 23, 1974 through
December 7, 2006. There is no evidence that the audiograms were signed by a physician. On
November 24, 2006 appellant filed a request for a schedule award.

On May 22, 2007 the Office referred appellant, together with a statement of accepted
facts, to Dr. Meredith Pang, a Board-certified otolaryngologist, for a second opinion evaluation
regarding the nature, extent and relationship of appellant’s hearing loss to his federal
employment. In a June 14, 2007 report, Dr. Pang reviewed a baseline audiogram dated July 23,
1974, which she advised revealed binaural mild high frequency hearing loss. She stated that
subsequent threshold testing recorded better hearing levels, indicating that the 1974 levels were
suspect. Dr. Pang determined that the occupational noise levels were of sufficient intensity and
duration to have aggravated appellant’s hearing loss. After reviewing the results of a June 14,
2007 audiogram, she diagnosed binaural mild high frequency sensorineural hearing loss, which
was due to appellant’s noise exposure in his federal employment. She attached a certificate of
acoustic impedance/admittance meter calibration and a copy of the June 14, 2007 audiogram.1
On July 31, 2007 an Office medical adviser reviewed the report of Dr. Pang and applied
the Office’s standardized procedures to find a nonratable hearing loss under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides). Decibel losses for the left ear were totaled at 80, and divided by 4, to obtain the
average hearing loss per cycle of 20. The 20 average was then reduced by the 25 decibel fence
to equal 0 decibels, resulting in a 0 percent loss. Decibel losses for the right ear were totaled at
55, and divided by 4, to obtain the average hearing loss per cycle of 13.75. The 13.75 average
was then reduced by the 25 decibel fence to equal 0 decibels, resulting in a 0 percent loss. The
medical adviser diagnosed noise-induced binaural hearing loss and recommended against the
authorization of a hearing aid.
On September 20, 2007 the Office accepted appellant’s claim for binaural hearing loss,
due to his employment-related hearing exposure. By separate decision dated September 20,
2007, the Office determined that appellant’s hearing loss was not severe enough to be considered
ratable and found that he was not entitled to a schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
1

Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second (cps) revealed
decibel losses of 10, 10, 25 and 35 respectively; testing for the right ear at those frequency levels revealed decibel
losses of 15, 10, 15 and 15 respectively.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id.

2

The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted because,
as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability
to hear everyday speech under everyday conditions.7 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.8 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss, and the total is divided by six to arrive at the
amount of the binaural hearing loss.9 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.10
Regarding tinnitus, the A.M.A., Guides states that tinnitus in the presence of unilateral or
bilateral hearing impairment may impair speech discrimination. Therefore, up to five percent
may be added for tinnitus in the presence of measurable hearing loss, if the tinnitus impacts the
ability to perform the activities of daily living.11
ANALYSIS
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award for his hearing loss in accordance with the fifth edition of the A.M.A., Guides.
In support of his claim for an employment-related hearing loss, appellant submitted
copies of audiograms for the period July 23, 1974 through December 7, 2006. This evidence did
not meet the Office’s criteria to establish an employment-related loss of hearing, as the
audiograms were not certified by a physician as being accurate. The Office is not required to
review uncertified audiograms which have not been prepared in connection with an examination
by a medical specialist.12
The Office referred appellant for a second opinion examination by Dr. Pang, a Boardcertified otolaryngologist. On July 31, 2007 the Office medical adviser reviewed the otologic
and audiologic testing obtained by Dr. Pang, and properly applied the Office’s standardized
procedures to this evaluation. Testing for the left ear at the frequency levels of 500, 1,000, 2,000
5

A.M.A., Guides 246-51 (5th ed. 2001).

6

Id.

7

Id.

8

Id.

9

Id.

10

See B.A., 58 ECAB ___ (Docket No. 06-2048, issued January 10, 2007); see also Donald Stockstad, 53 ECAB
301 (2002), petition for recon. granted (modifying prior decision), Docket No. 01-1570 (issued August 13, 2002).
11

A.M.A., Guides 246.

12

Robert E. Cullison, 55 ECAB 570 (2004).

3

and 3,000 cps revealed decibel losses of 10, 10, 25 and 35 respectively. These decibel losses
were totaled at 80 decibels and were divided by 4 to obtain the average hearing loss of 20
decibels. This average loss was then reduced by 25 decibels (25 decibels being discounted as
discussed above) to equal a negative figure. Testing for the right ear revealed decibel losses of
15, 10, 15 and 15 respectively. These decibel losses were totaled at 55 decibels and were divided
by 4 to obtain the average hearing loss of 13.75 decibels. This average loss was then reduced by
25 decibels, resulting in a negative figure. The Office medical adviser properly concluded that
the calculations showed that appellant did not have a ratable hearing loss under the relevant
standards of the A.M.A., Guides.
On appeal appellant notes that he experiencing a constant ringing in his left ear. The
A.M.A., Guides provides for the addition of up to five percent for tinnitus in the presence of
measurable hearing loss, if the tinnitus impacts the ability to perform the activities of daily
living. In her June 14, 2007 second opinion report, Dr. Pang did not diagnose tinnitus due to
noise exposure. Although appellant contends that he suffers daily from tinnitus, it is for the
evaluating physician to integrate any subjective complaints with objective data to estimate the
degree of permanent impairment due to tinnitus.13 The A.M.A., Guides provides that up to five
percent may be added for tinnitus in the presence of measurable hearing loss, if the tinnitus
impacts the ability to perform the activities of daily living.14 There is no provision for an award
in the absence of a measurable hearing loss. Accordingly, the Board finds that appellant is not
entitled to a schedule award for tinnitus.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a ratable hearing
loss entitling him to a schedule award.

13

Id.

14

A.M.A., Guides 246.

4

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, BUREAU )
OF LAND MANAGEMENT, Elko, NV, Employer )
__________________________________________ )
C.D., Appellant

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

Docket No. 21-0700
Issued: December 7, 2021

Case Submitted on the Record

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

JURISDICTION
On April 1, 2021 appellant filed a timely appeal from a November 10, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1
The Board notes that, following the November 10, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition causally related to the accepted July 30, 2020 employment incident.
FACTUAL HISTORY
On September 3, 2020 appellant, then a 53-year-old transportation specialist, filed a
traumatic injury claim (Form CA-1) alleging that on July 30, 2020 he witnessed a collision
between two single engine air tankers, which caused him to develop post-traumatic stress disorder.
On the reverse side of the claim form appellant’s supervisor acknowledged that he was injured in
the performance of duty.
In a development letter dated October 1, 2020, OWCP advised appellant that it had not
received any documentation in support of his claim. It further advised him of the type of factual
and medical evidence needed and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
Appellant responded on October 12, 2020; however, most of the document was illegible.
Appellant subsequently submitted a letter dated October 22, 2020 from Amanda T. Lutz,
M.A., LPA, HSP-PA, a licensed psychological associate. Ms. Lutz stated that appellant appeared
to meet the criteria for post-traumatic stress disorder (PTSD), which resulted from work incidents
that occurred in July 2020.
By decision dated November 10, 2020, OWCP accepted that the July 30, 2020 employment
incident occurred, as alleged, but denied the claim as appellant had not submitted any medical
evidence from a qualified physician containing a medical diagnosis and rationalized medical
opinion regarding causal relationship. It concluded, therefore, that the requirement had not been
met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3

Id.

4

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

2

to the employment injury. 5 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.6
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; (2) rationalized medical evidence establishing that he or she has
an emotional condition or psychiatric disorder; and (3) rationalized medical opinion evidence
establishing that the emotional condition is causally related to the identified compensable
employment factors.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. 8 In the case of Lillian Cutler,9 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 do es not come within coverage
under FECA.10 When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable. 11
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 12 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 13

5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.K., Docket No. 20-0150 (issued July 9, 2020); see W.F., Docket No. 18-1526 (issued November 26, 2019);
C.M., Docket No. 17-1076 (issued November 14, 2018); C.V., Docket No. 18-0580 (issued September 17, 2018);
Kathleen D. Walker, 42 ECAB 603 (1991).
8

R.B., Docket No. 19-0343 (issued February 14, 2020).

9

28 ECAB 125 (1976).

10

See G.M., Docket No. 17-1469 (issued April 2, 2018); Robert W. Johns, 51 ECAB 137 (1999).

11

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, supra note 9.
12

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
13

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition causally related to the accepted July 30, 2020 employment incident.
Appellant submitted a letter dated October 22, 2020 from Ms. Lutz, a licensed
psychological associate, who diagnosed PTSD and noted in general terms that appellant had
experienced an employment incident in July 2020. However, certain healthcare providers are not
considered physicians as defined under FECA. 14 5 U.S.C. § 8101(2) provides that physician
“includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law.” The evidence
of record does not establish that Ms. Lutz was a clinical psychologist and, therefore, a physician
under FECA. Consequently, Ms. Lutz’ report is of no probative medical value for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing that appellant’s emotional condition
was causally related to the accepted July 30, 2020 employment incident, the Board finds that
appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for rec onsideration
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 an emotional
condition causally related to the July 30, 2020 employment incident.

14

20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).
15

See also M.C., Docket No. 19-1074 (issued June 12, 2020).

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ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 08-1021
Issued: September 18, 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 February 19, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 2, 2007, denying her claim for an emotional
condition and a February 7, 2008 nonmerit decision of the Branch of Hearings and Review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed an emotional condition due to factors of her federal employment; and (2) whether the
Branch of Hearings and Review properly found that appellant had abandoned her request for an
oral hearing.
FACTUAL HISTORY
On January 8, 2007 appellant, then a 51-year-old postmaster, filed a occupational disease
alleging that she developed acute adjustment disorder and stress due to factors of her federal

employment. She first became aware of her condition on October 16, 2006 when an employee
reported that on October 14, 2006 Kelly Henderson stated that she wanted to kill appellant and
that she would not be convicted if she did so. Ms. Henderson stated that she wanted to make
appellant suffer. The employee noted that a month earlier Ms. Henderson had stated that she
wanted to put a .357 between appellant’s eyes and kill her. Appellant placed Ms. Henderson on
administrative leave.
In her narrative statement, appellant described her job requirements. She again described
the threats of Ms. Henderson and stated that her condition escalated when Ms. Henderson was
released to return to work on October 27, 2006 as a psychiatric evaluation deemed her “no risk.”
Appellant was not provided any more information regarding Ms. Henderson. She requested a
permanent transfer which was denied, but offered a temporary change. Appellant met with her
supervisor on November 9, 2006 and, when asked, recommended that Ms. Henderson be
terminated. Her supervisor refused this disciplinary suggestion and agreed to a two-week
suspension for Ms. Henderson. Appellant listed additional actions by Ms. Henderson, including
an incident in which she almost struck a coworker, Joshua Cubertson, with her personal vehicle
on November 7, 2006.
She requested additional clarification from her supervisor on
November 30, 2006 and did not feel that she received an adequate response. On December 20,
2006 appellant met with Ms. Henderson’s union representative regarding removing her
psychiatric evaluation from her record. She received an Equal Employment Opportunity (EEO)
complaint from Ms. Henderson on December 21, 2006. Appellant requested a transfer on
December 21, 2006 which was denied. She also submitted medical evidence diagnosing
adjustment disorder with mixed anxiety and depressed mood and post-traumatic stress disorder.
Appellant’s supervisor, David Boos, noted that many post offices the size of appellant’s
did not have a supervisor and that she was aware of her job duties prior to accepting it. He stated
that he had many conversations with appellant regarding Ms. Henderson’s return to work and
that he offered to move appellant temporarily to another office. Mr. Boos stated that the twoweek suspension was appropriate for Ms. Henderson’s first offense and that Ms. Henderson
denied making any threats of violence.
In a letter dated February 9, 2007, the Office requested additional factual evidence from
appellant regarding her claim. Appellant submitted a detailed narrative statement explaining
how she learned of Ms. Henderson’s threats from another employee. She stated that on April 25,
2006 Ms. Henderson had stated that “Before I quit, I will find a way to get even.” Appellant
noted that Ms. Henderson had posted articles regarding postal shootings at the time clock on two
occasions. Mr. Boos directed appellant to return Ms. Henderson to work on October 27, 2006
and had advised that Ms. Henderson was “no risk.” Appellant also submitted an EEO complaint,
copy of the employing establishment’s policy on violent or threatening behavior and statements
from Mr. Cubertson, and Susan Herrman, witnesses to Ms. Henderson’s statements made on
October 14, 2006. In a statement dated October 16, 2006, Mr. Cubertson stated that in the prior
month Ms. Henderson threatened to “get her .357 handgun and put it between [appellant’s]
eyes.” He noted that on October 14, 2006 Ms. Henderson stated that if she was going to kill
appellant she would not use scissors, but would make her suffer. When Ms. Herrman
remonstrated her, Ms. Henderson stated, “I have thought about it. I could probably get off.”
Ms. Herrman completed a statement on October 16, 2006 and stated that Ms. Henderson was

2

talking about murdering appellant, but that she did not take it seriously. She acknowledged that
the statements were shocking and that Ms. Henderson “did go over the line.”
By decision dated July 2, 2007, the Office denied appellant’s claim. It found appellant
had failed to substantiate a compensable factor of employment.
On July 10, 2007 appellant requested an oral hearing. She also provided written notice of
her change of address in Salem, Oregon. Appellant stated that she had not moved, but that the
street name had changed. In a letter dated December 13, 2007 and addressed to her at a different
street name, the Branch of Hearings and Review informed her that her oral hearing was
scheduled for January 23, 2008 at 3:15 p.m. at the Edith Green-Wendell Wyatt Federal Building.
By decision dated February 7, 2008, the Branch of Hearings and Review found that
appellant had abandoned her requested oral hearing as she failed to appear and failed to contact
the Office either before or after the scheduled date of the hearing to explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of worker’s compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.2
The Board has held that denials by an employing establishment of a request for a
different job, promotion or transfer are not compensable factors of employment under the Act, as
they do not involve appellant’s ability to perform her regular or specially assigned work duties,
but rather constitute her desire to work in a different position.3
Generally, actions of the employing establishment in administrative or personnel matters
unrelated to the employee’s regular or specially assigned work duties, do not fall with the
coverage of the Act.4 While an administrative or personnel matter will be considered an
employment factor where the evidence discloses error abuse on the part of the employing
establishment, mere perceptions are insufficient. In determining whether the employing
establishment erred or acted abusively, the Board determines whether the employing
1

5 U.S.C. §§ 8101-8193.

2

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
3

Donald W. Bottles, 40 ECAB 349, 353 (1988).

4

James E. Norris, 52 ECAB 93, 100 (2000).

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establishment acted reasonably.5 Investigations, which are an administrative function of the
employing establishment, that do not involve an employee’s regular or specially assigned
employment duties are not considered to be an employment factor where the evidence does not
disclose error or abuse on the part of the employing establishment.6 Reactions to disciplinary
matters such as letters of warning and inquiries regarding conduct pertain to actions taken in an
administrative capacity and are not compensable until it is established that the employing
establishment erred or acted abusively in such capacity.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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 and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS -- ISSUE 1
Appellant attributed her emotional condition to threats made by Ms. Henderson. In
support of her claim, she submitted statements from Mr. Cubertson and Ms. Herrman
substantiating that Ms. Henderson stated that she would kill appellant and wanted her to suffer.
Ms. Henderson believed that she could escape prosecution. The Board has recognized the
compensability of physical threats and verbal abuse in certain circumstances.10 In such cases, the
Board has reviewed the evidence of record to determine whether the allegations of the claimant
are substantiated by reliable and probative evidence. In this case, appellant has submitted
reliable and probative evidence. Both Mr. Cubertson and Ms. Herrman submitted witness
statements confirming that Ms. Henderson discussed murdering appellant. Both witnesses felt
that this conversation was inappropriate, although Ms. Herrman did not believe that
Ms. Henderson intended to carry out any threat. Mr. Boos and the employing establishment
conducted an investigation and determined that a two-week suspension was necessary to
discipline Ms. Henderson due to her violation of the employing establishment policy against
5

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

6

Beverly A. Spencer, 55 ECAB 501, 510 (2004).

7

Sherry L. McFall, 51 ECAB 436, 440 (2000).

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

See J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008) (the employee did not establish as
factual that coworkers threatened to kill him); Leroy Thomas, III, 46 ECAB 946, 954 (1995) (the employee did not
establish as factual that a supervisor threatened to kill him); Alton L. White, 42 ECAB 666, 669-70 (1991) (the
employee established physical contact by his supervisor as a compensable factor).

4

threats and violence.11 The Boards finds that appellant has substantiated that threats were made
by Ms. Henderson.
Appellant attributed her emotional condition to the denial of the employing establishment
of her requests for transfers following the threats of Ms. Henderson to her return to work.
Mr. Boos noted that appellant was offered a temporary transfer, which she refused. As noted, the
denial of a transfer is not a compensable factor under the Act. Therefore, the fact that the
employing establishment did not grant appellant’s requests for transfers is not an accepted
employment factor.
Appellant also attributed her emotional condition to the disciplinary measures which
Mr. Boos approved for Ms. Henderson and to the failure of the employing establishment to
provide her with detailed information regarding Ms. Henderson’s psychiatric evaluation. As
noted, she must establish error or abuse on the part of the employing establishment in the
handling of disciplinary actions and investigations. Appellant has submitted insufficient
evidence to substantiate that Ms. Henderson should have been more stringently disciplined or
that the employing establishment failed to adequately investigate the remarks made by
Ms. Henderson or her mental status before allowing her to return to work. Therefore, she has not
submitted evidence establishing error or abuse on the part of the employing establishment in
regard to these matters.
As appellant has established a compensable employment factor, the Office must base its
decision on an analysis of the medical evidence. As the Office found that there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case
will be remanded to the Office for this purpose.12 After such further development as deemed
necessary, the Office should issue an appropriate decision on this matter.13
CONCLUSION
The Board finds that this case is in posture for decision. Appellant has substantiated a
compensable factor of employment necessitating review of the medical evidence by the Office.
On remand, the Office will consider the medical evidence and issue a de novo decision with
appropriate appeal rights to appellant’s appropriate address of record.

11

Although Mr. Boos noted that Ms. Henderson denied making the threatening statements, he apparently did not
accord this denial weight.
12

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

13

Due to this decision on the merits of appellant’s claim, it is not necessary for the Board to address the Branch
of Hearings and Review decision regarding appellant’s request for an oral hearing.

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ORDER
IT IS HEREBY ORDERED THAT the February 7, 2008 and July 2, 2007 decisions of
the Office of Workers’ Compensation Programs are set aside and remanded for further
development consistent with this decision of the Board.
Issued: September 18, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANPORTATION SECURITY
ADMINISTRATION, MIAMI
INTERNATIONAL AIRPORT, Miami, FL,
Employer
__________________________________________

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

Docket No. 08-562
Issued: August 1, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On December 14, 2007 appellant filed a timely appeal from an April 24, 2007 decision of
an Office of Workers’ Compensation Programs’ hearing representative affirming a June 27, 2006
decision terminating appellant’s wage-loss benefits and denying continuing employment-related
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s wage-loss
compensation benefits effective June 27, 2006 on the grounds that her disability due to her
accepted condition had ceased; and (2) whether appellant established continuing disability and/or
residuals on and after June 27, 2006 causally related to the accepted employment injury.

FACTUAL HISTORY
On December 8, 2004 appellant, a 31-year-old transportation security screener, filed an
occupational disease claim alleging that on November 27, 2004 she first realized that her back
condition was due to her employment duties. The Office accepted the claim for a cervical strain
which was subsequently expanded to include lumbar strain and L5-S1 disc herniation. By letter
dated February 24, 2005, it placed appellant on the periodic rolls for temporary total disability
effective February 12, 2005.
On March 14 and April 25, 2005 Dr. Richard S. Glosser, a treating Board-certified
orthopedic surgeon, noted that appellant was capable of working an eight-hour day with
restrictions. Restrictions included sitting, standing and walking up to two hours; occasional
lifting of up to 20 pounds; occasional carrying of up to 10 pounds; and occasional bending,
squatting and crawling. On April 25, 2005 Dr. Glosser indicated that appellant was capable of
returning to work with the restrictions he noted.
On May 23, 2005 Dr. Glosser reported appellant’s movement was improving and “there
does not appear to be appreciable lumbar tenderness. He indicated that appellant was to continue
with her light-duty work.
Appellant stopped work on June 25, 2005 and has not returned. She filed claims for
wage-loss compensation (Form CA-7) beginning June 25, 2005.
In a September 22, 2005 report, Dr. Philip R. Lozman, an Office referral physician and
Board-certified orthopedic surgeon, opined that appellant was capable of performing her date-ofinjury position and no longer had any residuals or disability due to her accepted employment
injuries. A physical examination revealed normal extension, no acute distress, ability to bend
over, negative bilateral straight leg raising and normal bilateral lower extremity motor strength.
Dr. Lozman stated that there was no neurological or orthopedic findings supporting that
appellant was totally disabled. In addition, he found appellant’s subjective complaints or
symptoms were “out of proportion to the objective findings on physical examination and MRI
[magnetic resonance imaging] [scan] examination.”
On October 28, 2005 the Office referred appellant along with a statement of accepted
facts, and the medical record to Dr. Jeffrey T. Haimes, a Board-certified orthopedic surgeon, for
an impartial medical evaluation to resolve the conflict in medical opinion as to whether appellant
was capable of working full duty.
On December 1, 2005 Dr. Haimes noted appellant’s history of injury and treatment,
including her diagnostic test results. He diagnosed lumbosacral strain imposed on degenerative
disc disease. Dr. Haimes indicated that she had complaints of pain in the base of her spine and
left buttocks and numbness from her knees down. Appellant related that she sometimes felt pain
in her right buttocks. A physical examination revealed tenderness bilaterally over the paraspinal
lumbosacral musculature, coccyx and S1 joints. Dr. Haimes noted symmetrical reflexes and no
objective evidence to weakness of appellant’s bilateral extremities. He also found that
“[s]ensation tests were not consistent with any dermatomal pattern that would correspond to the
central protrusion at the L5-S1 level, and therefore were not objective.” Dr. Haimes opined that

2

appellant’s subjective complaints were not supported by the objective evidence. He indicated
that appellant was capable of working an eight-hour day with restrictions. The restrictions
included sitting up to four hours per day; walking and standing up to two hours per day; pushing
and pulling up to 40 pounds for two hours per day; kneeling for up to one-half hour; no lifting
more than 20 pounds; and up to 10 pounds of intermittent carrying. In concluding, Dr. Haimes
opined that appellant continues to have subjective residuals due to the November 27, 2004
employment injury, but no objective residuals and that “[h]er subjective complaints are out of
proportion to her objective findings.” He also noted that the work restrictions he noted were not
“specifically due to her work injury of [November] 27, [20]04.”
On February 6, 2006 the Office proposed to terminate appellant’s wage-loss benefits.
The Office determined that her injury-related disability had ceased.
In response appellant submitted reports dated February 15, 2006 report by Dr. Glosser
who noted he took exception to Dr. Haimes’ report. Dr. Glosser disagreed with Dr. Haimes’
conclusion that appellant had a preexisting spinal disorder as there was no history to support this
conclusion. He opined that appellant’s “injury was work related” and that while “she has made a
decent recovery, but not a full recovery and once again is able to work at lighter duty with
restrictions” previously determined. A physical examination revealed normal gait, some
lumbosacral tenderness on flexion and intact reflexes.
By decision dated June 27, 2006, the Office terminated appellant’s wage-loss benefits
effective that date on the grounds that her injury-related disability had ceased.
On June 29, 2006 appellant requested an oral hearing, which was held on
February 28, 2007.
On January 15, 2007 Dr. Glosser stated that he had not seen appellant in about a year and
she indicated that she had not seen any other physician during that period. A physical
examination revealed 40 degrees flexion at the waist, no overt spasm and lumbar tenderness
upon palpation. Dr. Glosser opined that appellant was capable of working regular duty and
“although there are some findings on MRI [scan], they were not overly dramatic.”
In a February 26, 2007 report, Dr. Glosser noted that appellant was currently not working
and she stated the employing establishment had not offered her any work even though she had
been released to regular duty. A physical examination revealed a slower gait pattern on
ambulation, some lumbar tenderness on palpitation, no spasm, low back pain complaints on
bilateral hip roll and straight leg raising tests, slightly diminished ankle reflexes and intact
patellar reflexes.
By decision dated April 24, 2007, the Office hearing representative found that the
evidence established that appellant sustained a recurrence of total disability for the period
June 25, 2005 to June 25, 2006. Next, the hearing representative affirmed the June 26, 2006
termination of wage-loss compensation and found the evidence insufficient to establishment
entitlement to wage-loss compensation on and after June 26, 2006.

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LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his federal employment, the Office may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.2
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.3
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.4 It is well established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.5
ANALYSIS -- ISSUE 1
The Office found that a conflict of medical opinion existed based on the opinions of
Dr. Glosser and Dr. Lozman as to the nature and extent of appellant’s residual disability.
Therefore, the Office properly referred appellant to an impartial medical examiner. Dr. Haimes,
the impartial medical specialist, diagnosed lumbosacral strain imposed on degenerative disc
disease. He stated that appellant did not have any disability due to her accepted employment
injury and was capable of working with restrictions and that the work restrictions were not
attributable to the employment-related injury. The physician opined that appellant continued to
have subjective complaints due to her November 27, 2004 employment injury, but there were no
supporting objective findings for these complaints.
In February 15, 2006 report, Dr. Glosser noted his disagreement with Dr. Haimes’
opinion that appellant had a preexisting spinal condition and that her spinal condition was
employment related. He also noted appellant had not made a full recovery yet. Subsequently
submitted reports from a physician who was on one side of a resolved conflict of medical
opinion are generally insufficient to overcome the weight of the impartial medical specialist or to
create a new conflict of medical opinion.6

1

T.F., 58 ECAB ___ (Docket No. 06-1186, issued October 19, 2006); George A. Rodriguez, 57 ECAB
224 (2005).
2

J.M., 58 ECAB ___ (Docket No. 06-661, issued April 25, 2007); Elaine Sneed, 56 ECAB 373 (2005).

3

Jaja K. Asaramo, 55 ECAB 200 (2004); Furman G. Peake, 41 ECAB 361 (1990).

4

F.R., 58 ECAB ___ (Docket No. 05-15, issued July 10, 2007); Regina T. Pellecchia, 53 ECAB 155 (2001).

5

J.M., supra note 2.

6

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).; Richael O Brien, 53 ECAB 234, 242
n.6 (2001).

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The Board finds that the Office properly relied on the impartial medical examiner’s
December 1, 2005 report in determining that appellant was no longer disabled as a result of her
November 27, 2004 employment injury. Dr. Haimes’ opinion is sufficiently well rationalized
and based upon a proper factual background. He not only examined appellant, but also reviewed
her medical records. Dr. Haimes also reported accurate medical and employment histories.
Accordingly, the Office properly accorded determinative weight to the impartial medical
examiner’s findings.7 As the weight of the medical evidence establishes that appellant was no
longer disabled due to her accepted employment injuries, the Office properly terminated
appellant’s wage-loss compensation.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant.8 In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors.9 The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.10
ANALYSIS -- ISSUE 2
The Board finds that appellant has not established that she has any continuing disability
due to her accepted cervical strain, lumbar strain and L5-S1 disc herniation on or after
June 27, 2006.
Following the Office’s June 26, 2006 decision terminating her wage-loss benefits,
appellant submitted additional reports by Dr. Glosser. However, Dr. Glosser’s reports do not
support that appellant had continuing disability due to her accepted work injuries. Rather, he
7

R.H., 59 ECAB ___ (Docket No. 07-2124, issued March 7, 2008); Gary R. Sieber, 46 ECAB 215 (1994) (in
cases where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight).
8

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
9

Kathryn E. Demarsh, 56 ECAB 677 (2005).

10

Bobbie F. Cowart, 55 ECAB 746 (2004); Victor J. Woodhams, 41 ECAB 345 (1989).

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stated that appellant was capable of performing her regular work. Therefore, these reports are
insufficient to meet appellant’s burden of proof.
None of the reports submitted by appellant after the termination of benefits included a
rationalized opinion concluding she was totally disabled from working due to her accepted
employment injuries.
CONCLUSION
The Board finds that the Office met its burden of proof in terminating appellant’s wageloss benefits on the grounds that she no longer had any disability due to her accepted
employment injury. The Board further finds that appellant did not meet her burden of proof in
establishing a continuing work-related disability on and after the termination of his compensation
benefits on June 26, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 24, 2007 is affirmed.
Issued: August 1, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6