United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF LABOR, BUREAU OF
LABOR STATISTICS, Washington, DC,
Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1729
Issued: January 8, 2009

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 June 3, 2008 appellant, through his attorney, filed a timely appeal from a January 29,
2008 merit decision of the Office of Workers’ Compensation Programs denying his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of this claim.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On March 28, 2006 appellant, then a 51-year-old information technology specialist, filed
an occupational disease claim alleging that on March 2, 2006 he realized that his hypertension
was cause by his supervisor’s harassment.

By letter dated April 19, 2006, the Office informed appellant that the evidence of record
was insufficient to establish his claim. Appellant was advised to submit additional medical and
factual evidence in support of his claim.
The Office received medical notes dated March 2, 14 and 28 and April 3, 2006 from
Dr. Henry W. Williams, a treating cardiologist; timesheets for the period February 19 to
April 15, 2006; a March 3, 2006 fax from appellant requesting four weeks of medical leave; a
March 6, 2006 fax from appellant requesting 64 hours of advanced annual leave due to illness, a
May 10, 2006 letter from the employing establishment responding to the Office’s April 19, 2006;
leave slips approving the use of leave for the periods February 28 to March 3, March 7 to 31 and
April 3 to 14, 2006; appellant’s position description; a March 31, 2006 request for clarification
of medical documentation for the period March 28 to April 14, 2006 from Charles Bose,
Division Chief; faxes dated March 31 and April 3, 2006 from appellant requesting leave for the
period March 28 to April 14, 2006; e-mails regarding appellant’s schedule; a February 28, 2006
leave restriction memorandum; a March 17, 2006 fax from appellant detailing leave used for the
period February 28 to March 3, 2006; a leave slip requesting the use of 64 hours of advanced
annual leave due to illness for the period March 8 to 17, 2006;1 and a note from
Howard University hospital emergency room noting that appellant was seen on February 28,
2006 and could return to work on March 4, 2006.
On February 28, 2006 Mr. Bose placed appellant on leave restriction due to the excessive
use of sick and annual leave used. He noted that appellant had failed to complete 80 hours of
work since January 2005. Appellant was informed that these frequent absences adversely
impacted on the office’s operation and were disruptive.
On May 10, 2006 the employing establishment controverted appellant’s claim that
Mr. Bose had harassed him. It noted that on February 28, 2006 appellant was issued a leave
restriction memorandum due to leave abuse. Appellant did not report to work after February 28,
2006 and separated from the employing establishment on April 15, 2006.
By decision dated May 22, 2006, the Office denied appellant’s claim.
Subsequent to the denial of his claim, the Office received appellant’s response to the
Office’s request for additional information as well as medical evidence including medical tests,
an April 6, 2006 report from Dr. Williams, clinical notes for the period September 5, 2005 to
February 25, 2006; and a March 21, 2006 Howard University hospital report. Appellant alleged
that he felt threatened and harassed after Mr. Bose became his supervisor. He alleged that
excessive and hectic demands, long hours and impossible deadlines adversely impacted his
health and made work intolerable. After Mr. Bose arrived six months prior, appellant was
subjected to a hostile work environment. Appellant noted that Mr. Bose approved his request to
meeting with the Office of Employment Unemployment Statistics (OEUS) to discuss NetBackup
configuration concerns; however, following the meeting, Mr. Bose sent an e-mail to OEUS that
appellant had been instructed not to address operational issues. He alleged that Mr. Bose sent
him an e-mail advising that appellant was to sign out when he left to use the fitness center and to
sign in again after his return. Appellant contended that he did not need to sign out if he used the
1

There is no checkmark on the form indicating whether the leave was approved or disapproved.

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fitness center during his lunch period as long as it was under an hour. He stopped using the
fitness center as he did not want to be charged with insubordination and was awaiting
verification from personnel, which occurred three weeks later. Appellant alleged that Mr. Bose
pressured him to change his work schedule so that he did not arrive before 7:00 a.m. even though
flexitime hours allowed him to arrive as early as 6:00 a.m. Mr. Bose also allegedly pressured
appellant to stop participating in flexitime so that he would have sufficient opportunity to discuss
appellant’s tasks and conduct meetings with him. Appellant also alleged that Mr. Bose
improperly denied his request for four hours of administrative leave when he donated blood. He
alleged that he was improperly placed on leave restriction.
On April 6, 2006 Dr. Williams detailed the dates appellant was examined and the results
of the tests performed. He diagnosed headaches, shortness of breath and uncontrolled
hypertension.
In a letter dated July 3, 2006, appellant requested reconsideration.
On September 28, 2006 the Office received copies of e-mails regarding work issues
including NetBackup, Enterprise Backup Server Admin Meeting, Veritas Project Schedule, USB
flash drives and Certification Report. Appellant also submitted e-mails to Mr. Bose regarding
the use of the fitness center during lunch, compensatory time, credit time and overtime and
administrative leave for donating blood.
In an e-mail dated October 14, 2005, Mr. Bose requested that appellant adjust his
schedule so that he did not arrive at work before 7:00 a.m. In a subsequent e-mail that day, he
informed appellant that he was “not requesting you stop [to] participating in [f]lexitime,” but
trying to find an available time so he and appellant could meet and review tasks. If appellant’s
flexitime schedule was disrupted alternatives would be discussed that would accommodate
appellant.
In an October 21, 2005 e-mail Diane Atchinson informed Mr. Bose that up to four hours
of administrative leave could be given for donating blood. In another e-mail dated October 21,
2005, Amy Sandifer informed Mr. Bose that administrative leave was given only for the time
needed to donate blood and return to the office, which was usually about ½ to 1 hour. Four
hours of administrative leave could be given in situations where a person donating blood needed
additional time to rest.
On October 2, 2006 the Office received the employing establishment’s September 22,
2006 response to appellant’s statement. It noted that Mr. Bose did not ask appellant to work
longer hours or extend his schedule to complete work assignments. Appellant did not advise his
supervisor of his medical issues or allegations of harassment and hostile work until he was
placed on leave restriction. It noted that Mr. Bose provided guidance to assist appellant with
completing his work assignment. It also denied that appellant was barred from using the fitness
center. As to leave for the blood drive, it noted that appellant did not request leave until the day
before the blood drive even though the blood drive is advertised five days before it begins.
Mr. Bose requested that appellant adjust his schedule in order that they could meet and discuss
his assignments and tasks. Appellant was placed on leave restrictions due to his excessive use of
leave.

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By decision dated December 11, 2006, the Office denied modification of the May 22,
2006 decision.
Appellant filed an appeal with the Board on April 13, 2007. On November 19, 2007 the
Board issued an order dismissing appellant’s appeal.2
On November 19, 2007 appellant’s counsel requested reconsideration. In a July 28, 2007
statement, Dennis W. Durham, a retired employee, detailed incidents involving his internal twins
with Mr. Bose.
By decision dated January 29, 2008, the Office found the evidence submitted insufficient
to warrant modification of the May 22, 2006 decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.3 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.4
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of the Federal Employees’ Compensation Act.5 On the other hand, disability is not
covered where it results from an employee’s fear of a reduction-in-force, frustration from not
being permitted to work in a particular environment or to hold a particular position or to secure a
promotion. Disabling conditions resulting from an employee’s feeling of job insecurity or the
desire for a different job do not constitute a personal injury sustained while in the performance of
duty within the meaning of the Act.6
ANALYSIS
The Board finds that appellant has failed to submit sufficient evidence to establish his
allegations that his supervisor engaged in harassment, intimidation or discrimination. Appellant
alleged that Mr. Bose harassed him, but did not provide sufficient evidence to support his
2

Docket No. 07-1276 (issued November 19, 2007).

3

See Debbie J. Hobbs, 43 ECAB 135 (1991).

4

See K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007); Ruth C. Borden, 43 ECAB
146 (1991).
5

Lillian Cutler, 28 ECAB 125 (1976).

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Id.

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allegations that harassment occurred.7 Mere perceptions of harassment or discrimination are not
compensable; a claimant must establish a basis in fact for the claim by supporting his allegations
with probative and reliable evidence.8 The only evidence appellant submitted regarding his
allegation of harassment is a July 28, 2007 statement by Mr. Dunham. However, Mr. Dunham
did not address any alleged incident of harassment involving Mr. Bose and appellant. Rather, he
discussed his own interactions with Mr. Bose. This evidence is insufficient to establish
appellant’s allegations as factual. Mr. Dunham did not address Mr. Bose’s treatment of
appellant. Appellant has not submitted evidence sufficient to establish that Mr. Bose engaged
harassment towards him or created a hostile workplace environment.
The employing establishment denied appellant’s allegations that he was subjected to a
hostile work environment and wrongly placed on leave restriction. In the leave restriction
memorandum, Mr. Bose noted that appellant was placed on leave restriction due to the excessive
amount of leave used from January 2005 and the fact that he had not worked 80 hours during that
period. Disciplinary matters consisting of counseling sessions, discussions or letters of warning
for conduct pertain to actions taken in an administrative capacity and are not compensable as
factors of employment.9 Appellant also alleged that Mr. Bose requested that he stop
participating in flexitime. The record establishes that Mr. Bose requested that appellant not
arrive at work before 7:00 a.m. However, he did not ask appellant to stop participating in the
flexitime schedule. The e-mails from Mr. Bose reflect that appellant was asked to alter his
flexitime schedule in order to allow them to meet and discuss his tasks and work assignments.
He informed appellant that he was not being asked to stop participating in flexitime and that
adjustments would be made. The Board finds that the evidence does not support appellant’s
contention that Mr. Bose had requested him to cease participating in flexitime. Appellant alleged
that his supervisor engaged in actions, which he believed constituted harassment, but he provided
no evidence, such as witness statements, to establish his allegations as factual.10
The Board also finds that the evidence of record is insufficient to substantiate appellant’s
allegations that his managers committed error or abuse in their administrative actions. While
appellant alleged abuse on the part of management in monitoring his leave, the record reflects
that these actions were necessitated by his excessive use of leave. He alleged that Mr. Bose
wrongly denied his request for four hours of administrative leave when donating blood,
questioned his use of the fitness center and wrongly requested him to adjust his flexitime
schedule. The Board finds that the record does not disclose evidence of administrative error or
abuse. Therefore, appellant has not established a compensable employment factor. An
employee’s emotional reaction to an administrative or personnel matter is not covered under the
Act, unless there is evidence that the employing establishment acted unreasonably.11 Appellant
7

See M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007); Joel Parker, Sr., 43 ECAB 220
(1991) (the Board held that a claimant must substantiate allegations of harassment or discrimination with probative
and reliable evidence).
8

J.F., 59 ECAB ___ (Docket No. 07-308, issued January 25, 2008).

9

Barbara E. Hamm, 45 ECAB 843 (1994); Barbara J. Nicholson, 45 ECAB 803 (1994).

10

See William P. George, 43 ECAB 1159, 1167 (1992).

11

See Robert G. Burns, 57 ECAB 657 (2006); Alfred Arts, 45 ECAB 530 (1994).

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has not presented sufficient evidence that his manager acted unreasonably or committed error
with regard to the personnel matters asserted.
The Board notes that matters pertaining to use of leave are generally not covered under
the Act as they pertain to administrative actions of the employing establishment and not to the
regular or specially assigned duties the employee was hired to perform.12 However, error or
abuse by the employing establishment in an administrative or personnel matter or evidence that
the employing establishment acted unreasonably in the administrative or personnel matter, may
afford coverage.13 There is no evidence of record to substantiate appellant’s allegation that
Mr. Bose arbitrarily and unfairly denied his request for annual, sick and administrative leave.
While appellant was placed on leave restriction on February 28, 2006, the record shows that
Mr. Bose approved appellant’s requests for leave for the period February 28 to April 14, 2006.
He contended that Mr. Bose wrongly denied his request for four hours of administrative leave for
blood donation. However, the record shows that while up to four hours could be granted for
blood donation, the usual amount of time allowed for such purposes was up to one hour. The
October 21, 2005 e-mail from Ms. Sandifer to Mr. Bose advised that administrative leave for
blood donation was to cover the time needed to donate blood and return to the office. Four hours
of administrative leave was to be given in situations where the person donating blood needed
additional time to rest. Appellant provided no evidence that he required additional time
following his blood donation to rest. He has failed to establish that these actions demonstrated
error or abuse on the part of management and are not compensable.
In the present case, appellant generally alleged that he was required to work excessive
hours, was given impossible deadlines and his workload became hectic and excessive. However,
he did not submit evidence to establish deadlines for his work or how his work became hectic or
excessive since the arrival of Mr. Bose or specific examples of the hours and days he worked.
As appellant has not provided any evidence supporting his general allegations regarding
overwork, he has failed to establish a compensable factor of employment under Cutler.
The Board finds that appellant has not established a compensable work factor. For this
reason, the medical evidence will not be considered.14
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty

12

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007); Elizabeth Pinero, 46 ECAB 123 (1994).

13

Margreate Lublin, 44 ECAB 945 (1993).

14

See J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007); Margaret S. Krzycki, 43 ECAB 496 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2008 is affirmed.
Issued: January 8, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charlotte, NC, Employer
__________________________________________

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

Docket No. 15-628
Issued: July 6, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 27, 2015 appellant filed a timely application for review from a September 29,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for wage-loss
compensation for disability commencing July 22, 2014.
FACTUAL HISTORY
On December 9, 2007 appellant, then a 30-year-old city mail carrier, filed an
occupational disease claim (Form CA-2) alleging left hand tendinitis as a result of his federal
employment duties. He first became aware of the condition and of its relationship to his
1

5 U.S.C. § 8101 et seq.

employment on November 1, 2007. By decision dated January 23, 2008, OWCP accepted
appellant’s claim for de Quervain’s tenosynovitis of the left wrist. On January 28, 2009 it
granted a schedule award to appellant for two percent permanent impairment of the left arm.
Appellant underwent surgery on his left wrist with Dr. Forney Hutchinson III, a Boardcertified orthopedic surgeon, on February 14, 2008. Dr. John Gaul, a Board-certified orthopedic
surgeon, noted in a report of June 18, 2008 that appellant was concerned that ongoing pain in his
left wrist may be related to his returning to work too soon after surgery. Appellant reported that
he returned to work one week after surgery. Dr. Gaul reported that he gave appellant a note
asking for the employing establishment to restrict repetitive activity wherever possible, and
suggesting that his duties as a clerk be restricted to four hours within the course of an eight-hour
workday. He further reported that appellant should refrain from returning to his previous job as
a letter carrier due to his ongoing pain.
On January 7, 2010 appellant accepted an offer from the employing establishment as a
modified mail processor. The physical restrictions of this assignment included no work
involving the use of the left hand, grasping letters with the right hand only, lifting a mail tray,
and reaching above the shoulder to case mail.
In a report dated June 16, 2010, Dr. Gaul noted that appellant had returned after an
absence of almost two years. Appellant had worked with restrictions for this period of time, but
presented complaining of worsening of symptoms. Dr. Gaul recommended that appellant
continue with his previous restrictions.
On June 28, 2010 Dr. Jay Patti, a Board-certified radiologist, interpreted the results of a
magnetic resonance imaging (MRI) scan of appellant’s left wrist. He noted no evidence of
tenosynovitis, no evidence of a ligament tear, and a longitudinal split tear of the extensor carpi
ulnaris tendon. Dr. Patti stated that there was likely an air bubble within the radiocarpal joint.
Dr. Gaul interpreted this MRI scan report on July 12, 2010 and stated, “[Appellant] may have
some pain and tenderness associated with his previous surgical site, but I do not think there has
been any worsening of his condition. I think he can continue to work.”
On August 3, 2010 appellant accepted a modified mail processing clerk job offer from
the employing establishment. The physical requirements of the position included lifting,
carrying, pushing, and pulling for up to four hours intermittently per day; standing, walking, and
sitting for up to four hours intermittently; simple grasping and reaching for up to eight hours
intermittently; and bending/stooping for up to four hours intermittently.
In a memorandum dated March 11, 2011, a claims examiner noted that appellant’s
limited-duty position had been withdrawn under the employing establishment’s National
Reassessment Program (NRP). It stated that a loss of wage-earning capacity decision had not
been issued, and that the examiner recommended processing of claims for wage loss on
February 10 and 17, 2011.
On April 22, 2013 Dr. Gaul noted that appellant was at work with restrictions and was
not carrying mail. He stated that appellant had a continuous lifting restriction of 20 pounds and

2

occasional lifting of 50 pounds. Dr. Gaul recommended keeping him on the same restrictions
and conducting another MRI scan.
In a report dated June 14, 2013, Dr. Thomas Zban, a Board-certified radiologist,
examined the results of an MRI scan of appellant’s left wrist. He noted a subtle signal change in
the abductor pollicis longus tendon of the 1st dorsal compartment, which could represent
tendinopathy versus a partial tendon tear. Dr. Zban noted that this was not present on the prior
MRI scan examination from 2010. He also noted a chronic linear signal within the extensor
carpi ulnaris tendon suggesting a longitudinal split tear, likely healed, and no osteochondral or
ligamentous injury. On July 3, 2013 Dr. Gaul interpreted this MRI scan report and documented
his assessment of, “Status post previous tendon surgery, with some scar tissue, but stable.
Essentially reassure him that there is some scar tissue and there is some swelling of his tendons,
but I do not see any new injury. I think he could continue to work with the previous restriction.”
In a medical report dated June 9, 2014, Dr. Gaul noted that appellant reported he was
working in a magazine section, in which he lifted tubs that weighed 45 pounds on a repetitive
basis. He stated,
“On his previous work note, he had no limit on his right hand, but his left hand
had some intermittent restrictions with the use of his left hand, i.e., continuous
weight limited at 20 pounds on the left, intermittent 50 pounds on the left, he was
allowed to push and pull 40 pounds on the left, simple grasping, intermittent
limited to 10 pounds, fine manipulation on the left hand limited to 15 minutes.
“I would continue with the previous recommendations of allowing continuous
lifting with his left hand at 20 pounds, intermittent use, that is, up to 1/3 of the
time with 50 pounds. It would seem to me that if he is lifting a magazine bin that
is 45 pounds, that is about 22 pounds on the left side, so I think he could do this
intermittently (i.e., it is less than 50 pounds, so he could do it up to 1/3 of the
time), but I would not want him to do it more than 2/3 of the time (i.e.
continuously), as it is over 20 pounds. Therefore, it would seem like he could lift
this magazine tub if doing it less than 1/3 of the time.”
In a medical restrictions assessment form dated June 16, 2014, Dr. Gaul provided work
restrictions for appellant’s left hand only of no lifting greater than 50 pounds intermittently and
up to 20 pounds continuously; no pushing or pulling greater than 40 pounds intermittently; fine
manipulation of no more than 15 minutes per hour; grasping up to 10 pounds intermittently; and
operating machinery of up to 20 minutes per hour.
On July 21, 2014 the employing establishment issued a written offer of a limited-duty
city carrier position. The restrictions of the position included: sitting, driving, reaching, and fine
manipulation with the right arm for up to 7 hours per day; standing and walking for up to 8 hours
per day; reaching above the shoulders for up to 1 hour intermittently; and lifting/pushing/pulling
not more than 40 to 50 pounds for 15 minutes intermittently. The job offer referenced the
restrictions of Dr. Gaul in his assessment of June 16, 2014. Appellant explained that he refused
the offer because the conditions of carrying mail were not conducive for healing his left wrist.

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On August 1, 2014 appellant requested compensation for leave without pay from July 22
through 25, 2014. OWCP subsequently received additional CA-7 forms for compensation
through September 5, 2014.
By letter dated August 8, 2014, OWCP informed appellant that the medical evidence did
not establish disability for the period July 22 through 25, 2014. It noted that the job offer of
July 21, 2014 was based upon the work restrictions of Dr. Gaul dated June 16, 2014.
In a work status report dated August 18, 2014, Dr. Gaul reported that appellant was
unable to carry mail because appellant had to avoid fine manipulation for more than 15 minutes
per hour. He issued a new set of work restrictions reflecting this statement.
In a record of a telephone conversation dated September 22, 2014, a claims examiner
asked the employing establishment for clarification regarding what the refused job offer would
require in terms of fine manipulation using the left hand. A supervisor responded that fine
manipulation meant fingering through mail, which could be done with the right hand only, and
that if he had to perform this task, it would be for no more than 15 minutes per hour.
By decision dated September 29, 2014, OWCP denied appellant’s request for
compensation for the period July 22 through 25, 2014, and continuing. It noted that he had
refused a job offer within his work restrictions, and that Dr. Gaul’s report dated August 18, 2014
was insufficient to establish that appellant could not perform the July 21, 2014 job offer because
he provided no objective findings or medical rationale for the change in work restrictions.
LEGAL PRECEDENT
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.2 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.3 Whether a particular injury causes an employee
disability for employment is a medical issue which must be resolved by competent medical
evidence.4 Whether a particular injury causes an employee to be disabled for work and the
duration of that disability, are medical issues that must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5
For each period of disability claimed, the employee has the burden of establishing that
she was disabled for work as a result of the accepted employment injury.6 The Board will not
2

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

3

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

4

Donald E. Ewals, 51 ECAB 428 (2000).

5

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

6

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24, 27 (1980).

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require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so, would
essentially allow an employee to self-certify her disability and entitlement to compensation.7
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.8 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.9
ANALYSIS
OWCP accepted that appellant sustained de Quervain’s tenosynovitis of the left wrist on
January 23, 2008. Appellant claimed that he was disabled from July 22 through 25, 2014
because he refused an offer of work from the employing establishment that was outside of his
medical restrictions. As noted above, it is his burden to submit evidence necessary to establish
his claim for benefits. As the employing establishment made an offer of employment in writing
pursuant to 20 C.F.R. § 10.507, appellant has the burden of establishing by the weight of the
substantial, reliable, and probative evidence that he was disabled for work for the claimed period
due to his accepted injuries.10
In a medical restrictions assessment form dated June 16, 2014, Dr. Gaul stated work
restrictions for appellant’s left hand only of no lifting greater than 50 pounds intermittently and
up to 20 pounds continuously; no pushing or pulling greater than 40 pounds intermittently; fine
manipulation of no more than 15 minutes per hour; grasping up to 10 pounds intermittently; and
operating machinery of up to 20 minutes per hour.
On July 21, 2014 the employing establishment offered appellant a limited-duty city
carrier position. The restrictions of the position included: sitting, driving, reaching, and fine
manipulation with the right arm for up to 7 hours per day; standing and walking for up to 8 hours
per day; reaching above the shoulder for up to 1 hour intermittently; and lifting/pushing/pulling
not more than 40 to 50 pounds for 15 minutes intermittently. The job offer referenced the
restrictions of Dr. Gaul in his assessment of June 16, 2014. Appellant explained that he refused
the offer because the conditions of carrying mail were not conducive for healing the conditions
of his left wrist.
By letter dated August 8, 2014, OWCP informed appellant that the medical evidence did
not establish disability for the period July 22 through 25, 2014. It noted that the job offer of
July 21, 2014 was based upon the work restrictions set forth by Dr. Gaul on June 16, 2014.
7

See William A. Archer, 55 ECAB 674, 679 (2004); Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

8

See Viola Stanko (Charles Stanko), 56 ECAB 436, 443 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (2005).

10

V.N., Docket No. 13-1909 (issued July 29, 2014).

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In a work status report dated August 18, 2014, Dr. Gaul reported that appellant was
unable to carry mail because appellant had to avoid fine manipulation for more than 15 minutes
per hour. He issued a new set of work restrictions reflecting this new opinion.
In a record of a telephone conversation dated September 22, 2014, a claims examiner
asked the employing establishment for clarification regarding what the refused job offer would
require in terms of fine manipulation using the left hand. A supervisor responded that fine
manipulation meant fingering through mail, which could be done with the right hand only, and
that if he had to perform this task, it would be for no more than 15 minutes per hour.
The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.11 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.12
The job offer of July 21, 2014 incorporated Dr. Gaul’s restrictions and the physical
requirements of the job did not exceed these restrictions. Appellant’s claim that the restrictions
were exceeded because the new position required fine manipulation with the left hand for more
than 15 minutes per hour is not correct, because as noted by his supervisor, fine manipulation in
the context of this job offer meant fingering through mail, which could be accomplished using
the right hand only and in any event would not amount to more than 15 minutes per hour.
Dr. Gaul’s later work status report dated August 18, 2014, in which he reported that appellant
was unable to carry mail because appellant had to avoid fine manipulation for more than 15
minutes per hour, was not supported by objective findings with medical rationale. As appellant
has not submitted medical reports containing medical rationale relating the dates of disability to
his accepted conditions, he has not met his burden of proof to establish disability for the period
July 22 through 25, 2014. Therefore, OWCP’s September 29, 2014 decision denying appellant’s
claim for wage-loss compensation for those dates was proper under the law and facts of the case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for wage-loss
compensation for the period July 22 through 25, 2014.

11

Gayle Harris, 52 ECAB 319 (2001).

12

See K.J., Docket No. 14-1886 (issued February 3, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Job Offers and Return to Work, Job Offer Refusal, Chapter 2.814.5a (July 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2014 is affirmed.
Issued: July 6, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Hamilton, MA, Employer
__________________________________________

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

Docket No. 11-581
Issued: October 12, 2011

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 December 17, 2010 appellant filed a timely appeal from a November 16, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) that denied her claim.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
September 16, 2009.
FACTUAL HISTORY
On January 14, 2010 appellant, then a 49-year-old distribution clerk, filed a traumatic
injury claim, alleging that on September 16, 2009 she injured her right shoulder, neck and upper
back when the top shelf of a post com fell on her back. She did not stop work. In support of her
1

5 U.S.C. §§ 8101-8193.

claim, appellant submitted a number of physical therapy notes. In a September 21, 2009 report,
Dr. William Medwid, Board-certified in family medicine, advised that appellant reported that a
metal cage fell onto her back and neck at work and described ongoing symptoms of pain in the
right shoulder and neck. Cervical spine examination demonstrated muscle spasms with
decreased range of motion. Pain was present on examination of the thoracic spine with
tenderness to palpation of the thoracolumbar region. Dr. Medwid diagnosed back pain. A
September 23, 2009 thoracic spine x-ray demonstrated no fracture, mild narrowing of the T8-9
disc and minimal endplate spurring at multiple levels.
In an April 21, 2010 letter, OWCP informed appellant that the evidence submitted was
insufficient to establish her claim and informed her of the additional evidence needed. Appellant
submitted a physical therapy order form in which Dr. Medwid diagnosed neck pain and
additional physical therapy notes.
By decision dated June 3, 2010, OWCP found that the incident occurred on
September 16, 2009 as claimed but that the medical evidence did not establish that appellant
sustained a neck, shoulder or upper back condition causally related to the work incident.
On June 8, 2010 appellant requested a review of the written record. In a June 7, 2010
report, Dr. Medwid reported the history of injury and noted that she was seen in his office on
September 21, 2009 with spasms of the right trapezius. He reviewed the x-ray findings and that
appellant had physical therapy. Appellant also submitted additional physical therapy notes.
In a November 16, 2010 decision, OWCP’s hearing representative affirmed the June 3,
2010 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves traumatic
injury or occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations, at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.3 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
2

Gary J. Watling, 52 ECAB 278 (2001).

3

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

2

evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.4
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. 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 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7
ANALYSIS
The evidence supports that the September 16, 2009 employment incident occurred as
alleged. The Board, however, finds that the medical evidence of record is insufficient to
establish that appellant sustained injury to her neck, right shoulder or upper back due to this
incident.
The September 23, 2009 thoracic spine x-ray did not provide any opinion on the cause of
any diagnosed condition. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.8 The
physical therapy notes do not constitute competent medical evidence as a physical therapist is not
a physician as defined under FECA.9
Dr. Medwid’s September 21, 2009 report indicated that appellant had symptoms of right
shoulder and neck pain and muscle spasms on cervical spine examination. He diagnosed back
pain. In the physical therapy orders, Dr. Medwid diagnosed neck pain and his June 3, 2010
report reiterated the findings of his September 21, 2009 examination. He did not provide any
discussion of how the September 16, 2009 incident caused injury to appellant’s right shoulder,
4

Gary J. Watling, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

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

7

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

8

Willie M. Miller, 53 ECAB 697 (2002).

9

A.C., Docket No. 08-1453 (issued November 18, 2008). Section 8102(2) of FECA provides that the term
physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2).

3

back and neck. Dr. Medwid did not address how this incident caused or aggravated any other
diagnosed medical condition. His reports are therefore insufficient to meet appellant’s burden to
establish that she sustained a diagnosed condition caused by the September 16, 2009
employment incident.
Appellant did not submit sufficient medical evidence to establish that she sustained a
diagnosed condition caused by the September 16, 2009 employment incident. She did not meet
her burden of proof.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained an injury causally
related to the September 16, 2009 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2011
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
10

Gary J. Watling, supra note 2.

4


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

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

Docket No. 14-309
Issued: May 14, 2014

Case Submitted on the Record

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

JURISDICTION
On November 25, 2013 appellant, through his attorney, filed a timely appeal from the
October 17, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained
cubital tunnel syndrome in the performance of duty causally related to factors of his federal
employment.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated November 3, 2010,
the Board found that the medical opinion of Dr. David A. Stone, appellant’s treating physician,
1

5 U.S.C. § 8101 et seq.

was sufficient to require further development of the medical evidence as to whether he had
cubital tunnel syndrome causally related to his federal employment. The facts of the case as set
forth in the Board’s prior decision are incorporated by reference.2
On June 29, 2011 OWCP referred appellant to Dr. Victoria Langa, a Board-certified
orthopedic surgeon, for a second opinion. In a July 19, 2011 report, Dr. Langa diagnosed him as
status post left cubital tunnel release (January 19, 2010) and right cubital tunnel syndrome. She
found that appellant’s bilateral cubital tunnel syndrome was not employment related. Dr. Langa
noted that the absence of any specific trauma to the elbow and the fact that a majority of cubital
tunnel syndromes were idiopathic in nature with no specific precipitating incident. She stated
that appellant appeared to be an individual prone to peripheral nerve compression, as he was
status post bilateral tarsal tunnel release in his feet.
In a decision dated August 15, 2011, OWCP determined that appellant did not establish
that his cubital tunnel syndrome was causally related to the accepted work duties.
Appellant, through counsel, requested a telephonic hearing before an OWCP hearing
representative.
In a November 7, 2011 letter, Dr. Stone disagreed with Dr. Langa. He contended that
appellant’s conditions were related to his employment and not a genetic predisposition.
Dr. Stone noted that appellant could find no literature linking cubital tunnel syndrome and
surgery to tarsal tunnel syndrome.
At the December 19, 2011 hearing, counsel contended that, if appellant had a
predisposition for a disease, then any injury as a result of his employment was work related. He
noted that appellant’s tarsal tunnel condition was accepted under a prior claim. Appellant
testified that his employment involved repetitive work with his hands and arms and that he
worked in a chair that was positioned too low.
By decision dated March 8, 2012, the hearing representative found that the case was not
in posture for decision due to an unresolved conflict in medical opinion between, Dr. Stone and
Dr. Langa. The case was remanded for referral to an impartial medical referee.
OWCP referred appellant to Dr. Mark J. Langhans, a Board-certified orthopedic surgeon,
for an impartial medical examination. In a report dated May 24, 2012, Dr. Langhans listed
appellant’s diagnoses as right cubital tunnel syndrome/ulnar nerve irritability and left cubital
tunnel syndrome/ulnar nerve irritability. He noted that appellant was status post cubital tunnel
release on January 19, 2010. Dr. Langhans noted that appellant’s diagnoses were based on
subjective findings and that the objective diagnostic support was lacking on physical
examination and throughout appellant’s treatment. While appellant’s working for sustained
periods with his elbows flexed greater than 90 degrees may have contributed in some manner to
his subjective bilateral upper extremity complaints, his report of increased symptoms related to
reaching to and above forehead height did not appear consistent with cubital tunnel syndrome.
2

Docket No. 10-728 (issued November 3, 2010). On April 9, 2009 appellant, then a 39-year-old mail handler,
filed an occupational disease claim for bilateral cubital tunnel syndrome and decreased muscle strength in his hands.

2

Dr. Langhans noted that he found no objective physical examination or electrodiagnostic
evidence that appellant’s work activities contributed to or caused any objective alteration in
bilateral ulnar nerve functioning. He noted that appellant reported that he was asymptomatic in
both upper extremities throughout his recent five-week vacation. Dr. Langhans found no
indication that appellant had sustained an ulnar nerve injury of any degree in either upper
extremity that rendered him fully or partially disabled.
By decision dated July 6, 2012, OWCP denied appellant’s claim. It found that he had not
established that the claimed medical conditions were related to the accepted employment-related
events.
On July 16, 2012 appellant, through counsel, requested a telephonic hearing. At the
hearing, he testified that he has been a mail handler since 1997 and described his employment
duties. Appellant noted that he had some arm strength issues beginning in 2006 and reported an
injury in 2008.
In an August 16, 2012 letter, Dr. Stone disagreed with Dr. Langhans’ opinion. He stated
that cubital tunnel syndrome had long been associated with a group of conditions referred to as
repetitive motion disorders that were associated with work activities. Dr. Stone noted that
appellant’s symptoms affected him while at work and this association was well documented in
medical literature.
On November 2, 2012 appellant submitted a summary of his jobs. Starting in 2003, he
worked in the held postage section and repaired damaged letters and magazines. In March 2008,
appellant was moved to patching and repairing mail to scan key for one week. In April 2008, he
was moved to making label packets. Appellant was off duty from July 2, 2008 to January 31,
2009 for surgeries to his feet. In February 2009, he returned to work as a high speed tray sorter.
On August 24, 2010 appellant was moved from patch and repairing mail to Netflix 010, which
involved repetitive work. He currently worked repairing and patching letters. Appellant
experienced pain in his elbows and weakness in his hands and found it hard to hold the steering
wheel to drive.
By decision dated January 22, 2013, the hearing representative affirmed the July 6, 2012
decision.
On March 1, 2013 appellant, through his attorney, requested reconsideration. Counsel
contended that the claim should be accepted as an aggravation of a preexisting condition. By
letter dated July 24, 2013, he noted that more than 90 days had elapsed since appellant requested
reconsideration and requested a merit review.
By decision dated October 17, 2013, OWCP denied modification of the January 22, 2013
decision.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. 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 the specific employment factors identified
by the employee.7
Where there are opposing medical reports of virtually equal weight and rationale, the case
must be referred to an impartial medical specialist, pursuant to section 8123(a), to resolve the
conflict in the medical evidence.8 In situations where there are opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical specialist for
the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based on a proper factual background, must be given special weight.9

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See T.W., Docket No. 13-1125 (issued August 27, 2013).

8

K.S., Docket No. 12-43 (issued March 12, 2013).

9

Anna M. Delaney, 53 ECAB 384 (2002).

4

ANALYSIS
OWCP accepted that appellant performed repetitive work duties in his federal
employment. It denied his claim as it found that he did not establish that his cubital tunnel
syndrome was causally related to the accepted work activities.
Dr. Stone, appellant’s treating physician, opined that appellant’s cubital tunnel syndrome
was causally related to the duties of his federal employment. The second opinion physician,
Dr. Langa, found that appellant’s bilateral cubital tunnel syndrome was not employment related.
In order to resolve the conflict in medical opinion between appellant’s treating physician and
OWCP’s physician, it properly referred appellant to Dr. Langhans pursuant to 5 U.S.C.
§ 8123(a).
Dr. Langhans examined appellant and conducted a review of appellant’s records. He
diagnosed bilateral cubital tunnel syndrome/ulnar nerve irritability. Dr. Langhans found support
for these diagnoses entirely subjective and noted that objective support was lacking. He
acknowledged that a clinical diagnosis of cubital tunnel syndrome can be made without positive
electrodiagnostic test results or objective signs of ulnar nerve compression, but found that the
absence of objective findings suggests that appellant’s symptoms most likely represent
intermittent ulnar nerve irritation or, at most, relatively mild cubital tunnel syndrome.
Dr. Langhans opined that working for sustained periods with his elbows flexed greater than 90
degrees may have contributed in some manner to appellant’s subjective bilateral upper extremity
complaints, but stated that his reports of increased symptoms related to reaching to and above
forehead height do not appear consistent with cubital tunnel syndrome. He also noted, more
importantly, that he saw no objective physical examination or electrodiagnostic evidence that
appellant’s work activities have contributed to or caused any object alternation in bilateral ulnar
nerve functioning. The Board finds that the report of Dr. Langhans is well rationalized and
established that appellant did not sustain cubital tunnel syndrome causally related to the accepted
duties of his federal employment. As Dr. Langhans’ opinion is detailed, well rationalized and
based on a proper factual background, his opinion is entitled to the special weight accorded an
impartial medical examiner.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained cubital tunnel syndrome in the performance of duty causally related to factors of his
federal employment.

10

R.A., Docket No. 13-1650 (issued February 10, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 17, 2013 is affirmed.
Issued: May 14, 2014
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rockford, IL, Employer
__________________________________________

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

Docket No. 14-1206
Issued: September 8, 2014

Case Submitted on the Record

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

JURISDICTION
On April 28, 2014 appellant filed a timely appeal from a February 12, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained an injury in the performance of duty.
FACTUAL HISTORY
On December 26, 2013 appellant, then a 61-year-old letter carrier, filed a traumatic injury
claim alleging that on December 23, 2013 he sustained back pain as a result of a motor vehicle

1

5 U.S.C. § 8101 et seq.

accident when his postal truck was struck by another vehicle from behind. He did not stop work
at that time.
In a December 23, 2013 report, Dr. Terry Strawser, a Board-certified family practitioner,
diagnosed lower back pain, lumbago. He determined that appellant was fit for duty without any
restrictions. Dr. Strawser found that appellant was having spasms and tenderness of the
paraspinal muscles. He also reported that appellant had no similar problems in the past. The
medical report included a narrative of the facts surrounding the accident as reported by appellant,
indicating that there was a medium force motor vehicle accident to the rear bumper while
appellant was in the driver’s seat. Dr. Strawser stated that “the patient reports that it was the
result of an injury, which was work related.” He advised that lumbosacral spine x-rays did not
reveal any abnormalities. In a December 23, 2013 duty status report (Form CA-17),
Dr. Strawser also diagnosed appellant with lumbago and advised that he was able to return to
work without restrictions.
In a December 30, 2013 report, Dr. Alpa Boshku, a Board-certified family practitioner
and an associate of Dr. Strawser, diagnosed appellant with lower back pain, lumbago. He noted
that appellant’s pain worsened since his previous December 23, 2013 visit with Dr. Strawser and
that he was experiencing spasm and tenderness of paraspinal muscles and tenderness of the
lumbar muscles. Dr. Boshku repeated the same history of the injury contained in Dr. Strawser’s
December 23, 2013 report.
In a letter dated January 10, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish the claim. The letter further stated that the diagnosis of “pain” was
not a valid diagnosis, but rather a symptom. In addition, OWCP advised that evidence
containing a “physician’s opinion supported by a medical explanation as to how the reported
work incident caused or aggravated a medical condition” was required. Appellant was also
advised that he had 30 days to submit the requested documents.
Appellant submitted reports from Dr. Jason So, a Board-certified family practitioner. In a
January 3, 2014 report, Dr. So diagnosed appellant with back pain and referred him to a physical
therapy facility. The report made reference to the car accident and noted that appellant was
suffering from lower back pain as a result. In a report dated January 15, 2014, Dr. So advised
the employing establishment that appellant was unable to return to work. He asked that he be
excused from work from January 12 through 19, 2014. In a CA-17 dated January 21, 2014,
Dr. So advised that appellant should not return to work until January 31, 2014. He diagnosed
lumbago.
By decision dated February 12, 2014, OWCP denied appellant’s claim. It found that the
December 23, 2013 incident occurred as alleged. However, OWCP denied the claim on the
grounds that the medical evidence did not contain a medical diagnosis in connection with the
event.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial

2

evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
On December 23, 2013 appellant was driving his vehicle when it was struck from behind
by an automobile. The evidence supports that the claimed work incident occurred as alleged.
Therefore, the Board finds that the first component of fact of injury is established. However, the
medical evidence is insufficient to establish that the employment incident on December 23, 2013
caused appellant’s lower back injury.
In his December 23, 2013 medical report, Dr. Strawser diagnosed appellant with lower
back pain and lumbago. He indicated that appellant had no prior back problem. Dr. Strawser
noted a history of how the injury occurred, stating that appellant’s vehicle was struck on the rear
bumper while he was in the driver’s seat, and advised that he “reports that it was the result of an
injury, which was work related.” Dr. Strawser appears to merely state the facts as reported to
him by appellant. He fails to distinguish whether this was his medical opinion or the conclusion
drawn by appellant as reported to him. A physician’s opinion regarding causal relationship that
appears to be primarily based on appellant’s own representations rather than on objective
medical findings is of limited probative value.7

2

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

3

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

4

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

5

T.H., 59 ECAB 388 (2008).

6

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

7

C.M., Docket No. 14-88 (issued April 18, 2014).

3

Even considering the history provided by Dr. Strawser as his own opinion regarding
causal relationship, the report fails to provide adequate medical rationale explaining how the
December 23, 2013 work incident caused or contributed to the diagnosed lumbago. Dr. Strawser
did not explain how the work incident caused or contributed to appellant’s diagnosed lumbago.8
The Board has also held that an opinion that a condition is causally related to an employment
injury because the employee was asymptomatic before the injury but symptomatic after it is
insufficient, without supporting rationale, to establish causal relationship.9 Dr. Strawser’s
December 23, 2013 duty status report is also insufficient to establish the claim as it does not
specifically address causal relationship.10
Dr. Boshku’s December 30, 2013 report provided a history of the injury identical to the
history found in Dr. Strawser’s report. This report, like Dr. Strawser’s report, fails to distinguish
whether the history provided is the physician’s own professional opinion or the conclusion
drawn by appellant. However, even to the extent that the statement was Dr. Boshku’s own
opinion on causal relationship, it is of little probative value as he too did not provide medical
rationale in support of his opinion. As a result, the report is insufficient to discharge appellant’s
burden of proof.
The January 3, 2014 report by Dr. So is also insufficient to discharge appellant’s burden
of proof. He mentions a rear-end collision and resulting back pain but he does not indicate if the
collision and injury are employment related. Dr. So does not explain how the work incident
caused or contributed to appellant’s diagnosed lumbago. Likewise, his January 15, 2014 note
excusing appellant from work and his January 21, 2014 duty status report also do not specifically
address causal relationship.11
Consequently, the medical evidence of record is insufficient to establish that the
December 23, 2013 work incident caused or aggravated a diagnosed medical condition.12
On appeal, appellant argues that he had an on-the-job injury such that his sick leave
should be reinstated and his medical bills paid. As explained, the medical evidence is
8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
9

Thomas D. Petrylak, 39 ECAB 276 (1987).

10

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of diminished probative value on the issue of causal relationship).
11

See id.

12

Although causal relationship generally requires rationalized medical opinion, OWCP procedures provide for
acceptance of a claim without a medical report when the following criteria are satisfied: (1) the condition reported is
a minor one which can be identified on visual inspection by a lay person (e.g., burns, lacerations, insect stings, or
animal bites); (2) the injury was witnessed or reported promptly and no dispute exists as to the fact of injury; and
(3) no time was lost from work due to disability. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3 (January 2013); Melissa A. Carter, 45 ECAB 618 (1994). In the present case, the
condition reported, lumbago, is not the clear-cut type of condition that can be identified on visual inspection by a lay
person. Furthermore, appellant also missed time from work. Thus, rationalized medical evidence is required.

4

insufficient to establish that the December 23, 2013 work incident cause or contributed to an
injury. Thus, any disability is not presently compensable.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.13
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on December 23, 2013.
ORDER
IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

Appellant submitted new evidence to the Board on appeal and also to OWCP after issuance of the February 12,
2014 decision. However, the Board lacks jurisdiction to review evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Coatesville, PA, Employer
__________________________________________

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Appearances:
Claudia Moore, for the appellant
Office of Solicitor, for the Director

Docket No. 10-2396
Issued: July 18, 2011

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 September 27, 2010 appellant, through his representative, filed a timely appeal of an
April 8, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision and a
September 14, 2010 nonmerit decision. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a left shoulder injury causally related to August 18, 2009 employment incident; and
(2) whether the Branch of Hearings and Review properly determined that appellant abandoned
his request for an oral hearing.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant stated that he was unclear whether his current shoulder condition
was a recurrence of his previously accepted claim or a new injury.
FACTUAL HISTORY
On August 20, 2009 appellant, then a 46-year-old nursing assistant, filed a traumatic
injury claim alleging that he injured his left shoulder on August 18, 2009 when struck by a
patient. He underwent a magnetic resonance imaging (MRI) scan on January 6, 2010 which
demonstrated patchy marrow edema through the humeral head and neck consistent with a bone
bruise or comminuted nondisplaced fracture as well as arthritic changes at the acromioclavicular
joint. Appellant also had a partial thickness undersurface tear of the supraspinatus tendon and
supraspinatus tendinopathy, labral defect and small joint effusion as well as mild subacromial
subdeltoid bursitis.
In a narrative statement, appellant noted that he was assaulted by a patient on
August 18, 2009 and that he had a prior old shoulder injury. As a result of his prior injury
shoulder he had rotator cuff tendon inflammation and impingement. Appellant submitted
medical records dated January 20, 2010, noting that he had left shoulder pain since 2007. He
was initially struck by a patient in 2007 and sustained a possible nondisplaced greater tuberosity
fracture. Appellant underwent surgery in January 2008 and was again assaulted by a patient in
October 2009 with worsening of his shoulder pain. Dr. Jonathan Van Kleunen, an orthopedic
surgeon, stated that there was no clear single cause for appellant’s symptoms. Appellant had a
history of cervical disease. His examination was suggestive of labral pathology with minor
impingement signs, but MRI scan did not show labral injury, but a partial articular rotator cuff
tear with bony edema in the humeral head.
On February 23, 2010 OWCP requested additional factual and medical evidence in
support of appellant’s claim. It allowed 30 days for a response. Appellant responded that he
instructed a belligerent patient not to enter an off-limits room. The patient began cursing and
punching, hitting him in the left shoulder. Appellant was on light duty when the injury occurred
and he was struck in the same area as his prior injuries. He was unable to receive medical
treatment until January 10, 2010 when he visited a Veterans Administration Hospital. Appellant
stated that he used narcotics for his preexisting condition and iced his shoulder. He underwent
left shoulder surgery on February 25, 2010.
By decision dated April 8, 2010, OWCP denied appellant’s claim finding that the medical
evidence did not establish that his diagnosed condition was due to the August 18, 2009
employment incident.
Appellant requested an oral hearing on April 27, 2010. He submitted additional medical
evidence. The Branch of Hearings and Review informed appellant by letter dated July 14, 2010
that his oral hearing would be held on August 26, 2010 at 10:30 a.m. in Philadelphia,
Pennsylvania. Appellant submitted a subpoena request on August 5, 2010.
By decision dated September 14, 2010, the Branch of Hearings and Review determined
that appellant abandoned his August 26, 2010 hearing. OWCP’s hearing representative found

2

that appellant failed to attend the hearing or provide notice in advance of his inability to attend.
Appellant also failed to provide any reason for his failure to appear.
LEGAL PRECEDENT -- ISSUE 1
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4 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 claimant’s diagnosed condition and the implicated
employment factors. 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. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
analysis manifested and the medical rationale expressed in support of the physician’s opinion.5
ANALYSIS -- ISSUE 1
On August 18, 2009 appellant was assaulted by a patient. Any condition resulting from
this incident constitutes a new traumatic injury. At the time of the 2009 incident, he had a
preexisting left shoulder condition, due to a previous injury in 2007 for which he underwent
surgery. In order for his injury to be considered a recurrence of disability, appellant would have
to sustain a spontaneous change in his condition, with no intervening injury. The Board notes
that OWCP properly developed his claim as a new traumatic injury.

2

20 C.F.R. § 10.5(ee).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

James Mack, 43 ECAB 321 (1991).

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OWCP accepted that the August 18, 2009 employment incident occurred as alleged, but
found that appellant did not submit sufficient medical evidence to establish an injury resulting
from the accepted incident.
An MRI scan dated January 6, 2010 demonstrated patchy marrow edema through the
humeral head and neck consistent with a bone bruise or comminuted nondisplaced fracture as
well as arthritic changes at the acromioclavicular joint. It also demonstrated a partial thickness
undersurface tear of the supraspinatus tendon and supraspinatus tendinopathy, labral defect and
small joint effusion as well as mild subacromial subdeltoid bursitis.
Appellant submitted notes from Dr. Van Kleunen noting that he had left shoulder pain
since 2007 when he was struck by a patient and sustained a possible nondisplaced greater
tuberosity fracture. He underwent surgery in January 2008 due to the 2007 injury. Dr. Van
Kleunen noted that appellant was again assaulted by a patient in October 2009 with worsening of
his shoulder pain. He stated that there was no clear single cause for appellant’s symptoms as he
had a history of cervical disease, as well as a physical examination suggestive of labral pathology
with minor impingement signs which was not confirmed by the MRI scan. Dr. Van Kleunen did
not provide a clear diagnosis of appellant’s medical condition following the 2009 incident. He
failed to state that appellant’s shoulder condition was due to the accepted employment incident
of August 18, 2009; rather, he noted a history of an assault in October 2009. As the medical
evidence fails to provide a clear diagnosis and an opinion on the causal relationship between
appellant’s diagnosed condition and his accepted employment incident, the Board finds that he
has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”6
The hearing request must be sent within 30 days (as determined by postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought.7

6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.616(a).

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OWCP’s procedures state:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present -the claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any
notification for such failure within 10 days of the scheduled date of the
hearing.
“Under these circumstances, H&R [Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return to case to the DO [district Office].”8
ANALYSIS -- ISSUE 2
Appellant requested an oral hearing and on July 14, 2010 that his oral hearing would be
held on August 26, 2010 at 10:30 am at the Curtis Center, Suite 715 East, Sixth and Walnut
Streets, Philadelphia, Pennsylvania 19106. The record does not reflect that he requested
postponement of the hearing prior to the scheduled date of the hearing. Appellant did not appear
for the oral hearing. Neither did he provide any notification for the failure to appear within
10 days after the scheduled date of the hearing. Appellant’s failure to provide any notification,
together with his failure to appear at the scheduled hearing, constituted abandonment of his
request for a hearing and the Board finds that OWCP properly so determined.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical evidence to establish
that he sustained an employment-related shoulder injury on August 18, 2009. The Board further
finds that he abandoned his request for an oral hearing.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999).

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ORDER
IT IS HEREBY ORDERED THAT the September 14 and April 8, 2010 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 18, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 20-1163
Issued: July 13, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 18, 2020 appellant filed a timely appeal from a March 17, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 9, 2019, as he no longer had residuals
or disability causally related to his accepted December 20, 2004 employment conditions; and
(2) whether appellant has met his burden of proof to establish continuing employment-related
disability or residuals on or after October 9, 2019.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 20, 2004 appellant, then a 43-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his back when shoveling, bagging, and throwing
bags of rocks into a dumpster while in the performance of duty. He stopped work on
December 21, 2004. OWCP initially accepted appellant’s claim for thoracolumbar strain. It paid
him wage-loss compensation on the supplemental rolls, effective March 2, 2005, and on the
periodic rolls, effective September 4, 2005.
In a report dated November 28, 2017, Dr. James H. Henick, Board-certified in
anesthesiology and interventional pain, diagnosed lumbar sprain, lumbar spondylosis, lumbar facet
arthropathy, and degeneration of the lumbar intervertebral disc. He performed an OWCPauthorized thermocoagulation of the lumbar medial branch nerves at L3-4, L4-5, and L5-S1 on
that day.
In a letter addressed to the Department of Veterans Affairs dated November 7, 2018,
OWCP noted that appellant’s claim was accepted for lumbar sprain, and thoracic or lumbosacral
neuritis or radiculitis not otherwise specified, and that it was adjudicating appellant’s entitlement
to FECA wage-loss compensation.
On May 14, 2019 OWCP referred appellant for a second opinion examination, along with
a statement of accepted facts (SOAF), a series of questions, and the medical record to Dr. James
Schwartz, a Board-certified orthopedic surgeon, to determine the extent and degree of any workrelated disability and whether appellant continued to suffer from residuals of his accepted workrelated conditions. The SOAF provided to Dr. Schwartz noted that the case was only accepted for
thoracolumbar strain.
In an August 23, 2019 report, Dr. Schwartz noted his review of the SOAF and medical
records. He examined appellant and noted that appellant sat “awkwardly,” had a slow reciprocal
gait, could barely get his heels off the floor, could not lift his toes off the floor when trying to stand
on his heels, could not straighten at the hips, and was unable to extend his spine into the normal
lordotic position. Dr. Schwartz opined that appellant had non-physiologic pain behavior and his
subjective complaints did not correspond to objective findings. He advised that the soft tissue
thoracolumbar strain had resolved and that appellant’s lumbar degenerative disease was unlikely
to have been aggravated by the work-related injury. Dr. Schwartz opined that appellant’s present
level of disability was not due to his accepted condition of thoracolumbar strain, but rather was
due to non-physiological pain behavior. He opined that appellant had “no diagnosed structural
injury, and all symptoms from this injury should have resolved.” Dr. Schwartz advised that,
“There is no need for any further treatment. Treatment is unlikely to help in any manner.”
On September 5, 2019 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits, based upon the opinion of Dr. Schwartz that the accepted conditions had
resolved without residuals or disability. It afforded appellant 30 days to submit additional evidence
or argument challenging the proposed termination.
In a letter dated September 26, 2019, appellant indicated that he was responding to the
September 5, 2019 letter from OWCP. He advised that he was still having problems with both

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knees, back pain, and was unable to work. Appellant alleged that Dr. Schwartz did not perform a
physical examination.
In reports dated September 17 and 18, 2019, Dr. Theresa Jackson, Board-certified in
physical medicine and rehabilitation, reviewed diagnostic test results of the lumbar spine from
September 17, 2019, and a lumbar spine magnetic resonance imaging (MRI) scan from
December 7, 2016. She diagnosed in pertinent part lumbar sprain, lumbar radiculopathy, lumbar
facet arthropathy, muscle spasm, and other chronic pain. Dr. Jackson also noted disc bulges and
facet arthropathy at L3, L4-L5, and S1, mild-to-moderate narrowing of the neural foramen and
central canal, and mild progression of degenerative disease.
OWCP received a September 25, 2019 MRI scan of appellant’s lumbar spine, which
revealed moderate spinal stenosis at L4-5 and crossing nerve contact on the left at L3-4 and L4-5.
By decision dated October 9, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective October 9, 2019, finding that the medical evidence submitted was
insufficient to outweigh Dr. Schwartz’s opinion.
On December 18, 2019 appellant requested reconsideration and submitted additional
evidence.
In October 21, 2019 treatment notes, Dr. Jackson diagnosed lumbar radiculopathy,
lumbosacral neuritis, lumbar spine ligaments sprain, lumbar facet arthropathy, muscle spasm, and
other chronic pain. She performed an L3-4 lumbar nerve block and noted that appellant was
scheduled for surgery.
OWCP also received hospital records dated September 25 and October 8, 2019, and results
from an October 8, 2019 bone scan.
By decision dated March 17, 2020, OWCP denied modification of the October 9, 2019
termination decision, finding that the opinion of Dr. Schwartz constituted the weight of the medical
evidence in concluding that appellant had no employment-related residuals or disability.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.2 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

2
See A.T., Docket No. 20-0334 (issued October 8, 20202); R.P., Docket No. 17-1133 (issued January 18, 2018);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

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the employment.3 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 9, 2019.
OWCP referred appellant to Dr. Schwartz for a second-opinion evaluation to determine the
status of his accepted conditions and his work capacity. In his August 23, 2019 report,
Dr. Schwartz described appellant’s December 20, 2004 employment injury and noted that the
SOAF listed thoracolumbar strain as the accepted condition. However, the Board notes that
OWCP also accepted the claim for thoracic or lumbosacral neuritis or radiculitis not otherwise
specified. It is OWCP’s responsibility to provide a complete and proper frame of reference for a
physician by preparing a SOAF.7 OWCP’s procedures dictate that when an OWCP medical
adviser, second opinion specialist, or referee physician renders a medical opinion based on a
SOAF, which is incomplete or inaccurate or does not use the SOAF as the framework in forming
his or her opinion, the probative value of the opinion is seriously diminished or negated altogether.8
As Dr. Schwartz was not provided with an accurate SOAF, his report was based upon an inaccurate
or incomplete history. The Board, therefore, finds that his report was insufficient to constitute the
weight of the medical opinion evidence and to establish that appellant no longer had any
employment-related residuals or disability. OWCP, therefore, did not meet its burden of proof to
terminate appellant’s compensation benefits.9

3

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
4

K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23, 2019);
Del K. Rykert, 40 ECAB 284, 295-96 (1988).
5
A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
6

K.W., supra note 4; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727
(2002); Furman G. Peake, id.
7

J.N., Docket No. 19-0215 (issued July 15, 2019); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); see L.J., Docket No. 14-1682 (issued December 11, 2015).
9

Furman G. Peake, supra note 6; Sarah A. Lawson, Docket No. 04-825 (issued July 13, 2004).

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CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 9, 2019.10
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: July 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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In light of the disposition of Issue 1, Issue 2 is rendered moot.

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