United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURTY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

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

Docket No. 14-461
Issued: August 5, 2014

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 23, 2013 appellant filed a timely appeal of a December 6, 2013 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 to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained or
aggravated respiratory and allergic conditions due to employment exposures to mold and
chemicals.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 30, 2012 appellant, then a 36-year-old claims representative, filed an
occupational disease claim alleging that on November 15, 2012 she became aware that her
symptoms of headaches, burning of her skin, tightness in her chest and ear aches were due to
mold and chemicals at the employing establishment.
Appellant sought medical treatment with Dr. Monina S. Mabuit Lim, a family
practitioner, on November 20, 2012. Dr. Lim attributed her symptoms to pesticides used at the
employing establishment. Appellant underwent a chest x-ray on November 30, 2012 with a
possible diagnosis of bronchitis. On November 30, 2012 Dr. Sunil Parikh, a Board-certified
family practitioner, diagnosed a chemical reaction to insecticide used at the employing
establishment on November 14, 2012. On December 3, 2012 Dr. Lim stated that appellant’s
symptoms might be related to an allergic reaction to a substance at the employing establishment.
Dr. Timothy Anderson, a physician Board-certified in public health and general preventative
medicine, diagnosed pharyngitis, upper respiratory infection, acute sinusitis and cough on
December 20, 2012. Appellant submitted a December 20, 2012 pulmonary function report
which listed possible early obstructive pulmonary impairment. She reported shortness of breath
on January 1, 2013 and received a diagnosis of bronchospasm at the Palms West Hospital
emergency room from Dr. John Halpern, an osteopath.
In a letter dated February 12, 2013, OWCP requested additional factual and medical
information in support of appellant’s claim. Dr. Denzil Seedail, a family practitioner, examined
appellant on January 14, 2013. He diagnosed cough, shortness of breath and reactive airway
disease. Dr. Seedail noted that appellant’s symptoms started around November 15, 2012 after
she was exposed to pesticides.
On April 29, 2013 OWCP requested information from the employing establishment
regarding on site mold and spraying of chemicals. The employing establishment provided a
mold evaluation dated November 27, 2012. The report noted that limited indoor air quality
screening took place on November 20, 2012 after occupants reported symptoms following an
exterminator spraying in the area. The employing establishment responded on May 17, 2013 and
stated that she had not experienced any similar conditions and could not confirm the presence of
mold in the employing establishment or the effect of spraying odorless chemicals. Appellant
stated that an air study indicated elevated humidity levels above the recommended 60 percent.
The air samples revealed common environmental molds in concentrations similar or lower than
outdoor concentrations typically found in Florida. There were elevated moisture levels which
would be favorable for microbial growth. The employing establishment closed November 16
through 26, 2012 as a precautionary measure pending the results of an air quality test. It
reopened on November 27, 2012 based on the preliminary results of air testing. The employing
establishment again closed on February 4, 2013.
By decision dated June 17, 2013, OWCP denied appellant’s claim finding that she did not
submit sufficient medical evidence to establish a respiratory condition as a result of her
employment exposure.

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Appellant requested reconsideration on September 27, 2013. Dr. William F.P. Tuer, a
physician Board-certified in allergy and immunology, examined her on August 20, 2013. He
found that she was allergic to a broad variety of the pollens of trees, grasses and weeds as well as
molds, animal dander and indoor environmental allergens. Dr. Tuer diagnosed cough with small
airway labiality and evidence of allergic sensitivity to several molds. He also found probable
episodic bronchospasm with an onset of symptoms with exacerbation at the workplace. Dr. Tuer
stated, “The patient’s history strongly suggests that exposure to mold has been causative in her
symptoms, both of cough and episodic bronchospasm as well as upper respiratory symptoms.
The fact that symptoms were present primarily upon entry to the workplace and have
subsequently subsided completely with change in workplace is strongly suggestive that
environmental factors in the workplace have resulted in her symptoms.” Dr. Parikh diagnosed a
nasal abscess on August 6, 2013 and prescribed medication.
By decision dated December 6, 2013, OWCP denied appellant’s claim. It found the
medical evidence insufficient to support that her condition was caused or aggravated by
employment exposure.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.3
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.4 Medical rationale includes a physician’s detailed opinion on
the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment exposure. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty, and must be supported by medical reasoning explaining the nature of the relationship

2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

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

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between the diagnosed condition and specific employment activity or factors identified by the
claimant.5
ANALYSIS
Appellant attributed her symptoms of headaches, chest tightness and ear aches to
exposure to mold and chemicals at the employing establishment. The employing establishment
provided air quality testing which demonstrated elevated humidity levels above the
recommended 60 percent. The air samples indicated common environmental molds in
concentrations similar or lower than outdoor concentrations typically found in Florida. The
elevated moisture levels which would be favorable for microbial growth. OWCP has accepted
that appellant was exposed to some mold at the employing establishment.6
Appellant sought treatment from several physicians who attributed her headaches,
tightness in her chest and ear aches to exposure to unidentified chemicals at the employing
establishment. Dr. Lim examined her on November 20 and December 3, 2012 and attributed her
symptoms to pesticides used at the employing establishment or an allergic reaction to a substance
at the employing establishment. Dr. Parikh diagnosed a chemical reaction to insecticide at the
employing establishment on November 14, 2012. Dr. Seedail examined appellant on January 14,
2013 and diagnosed cough, shortness of breath and reactive airway disease. He noted that her
symptoms started around November 15, 2012 after she was exposed to pesticides. These reports
are not sufficiently detailed or well-reasoned on causal relation to meet appellant’s burden of
proof. None of the physicians provided an explanation of how exposure to unidentified
chemicals at unspecified levels of exposure could have resulted in her symptoms. Without clear
medical reasoning explaining the relationship between appellant’s diagnoses and her
employment, these reports are not sufficient to meet her burden of proof.
On August 20, 2013 Dr. Tuer conducted testing and found that appellant was allergic to a
broad variety of the pollens of trees, grasses and weeds as well as molds, animal dander and
indoor environmental allergens. He diagnosed cough with small airway labiality and evidence of
allergic sensitivity to several molds. Dr. Tuer also found probable episodic bronchospasm with
an onset of symptoms with exacerbation at the workplace. He stated, “The patient’s history
strongly suggests that exposure to mold has been causative in her symptoms, both of cough and
episodic bronchospasm as well as upper respiratory symptoms. The fact that symptoms were
present primarily upon entry to the workplace and have subsequently subsided completely with
change in workplace is strongly suggestive that environmental factors in the workplace have
resulted in her symptoms.” The Board finds that Dr. Tuer’s report is speculative on causal
relation. The Board has held that the mere manifestation of a condition during a period of
employment does not raise an inference that there is a causal relationship between the condition
and the employment. Neither the fact that the condition became apparent during a period of
5

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

6

The findings of the November 2012 air study evaluation of appellant’s workplace showed that the sample results
of indoor airborne mold appeared in an array of mold spores similar to those in the outdoor air. The report noted
that the total concentration of airborne mold spores was lower in the indoor air when compared to the results for the
sample collected outdoors. These results are not suggestive of an indoor mold growth condition. See B.B., Docket
No. 13-256 (issued August 13, 2013).

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employment nor the belief that the employment caused or aggravated a condition is sufficient to
establish causal relationship.7 Dr. Tuer did not clearly explain how the workplace exposure to
mold resulted in appellant’s diagnosed conditions. His report is not sufficiently well rationalized
to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to submit the necessary medical opinion evidence to
meet her burden of proof in establishing an occupational disease claim.
ORDER
IT IS HEREBY ORDERED THAT the December 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2014
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

7

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
DEPOT, Cherry Point, NC, Employer
__________________________________________

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

Docket No. 10-817
Issued: November 4, 2010

Case Submitted on the Record

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

JURISDICTION
On February 1, 2010 appellant, through his attorney, filed a timely appeal from a
December 30, 2009 merit decision of the Office of Workers’ Compensation Programs denying
his schedule award claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has a permanent impairment of the upper extremities
causally related to his employment injury.
FACTUAL HISTORY
On November 20, 2003 appellant, then a 50-year-old machinist, filed an occupational
disease claim alleging that he sustained osteoarthritis and bone spurs in his neck due to factors of
his federal employment. The Office accepted the claim for an aggravation of cervical
degenerative disc disease and an aggravation of cervical osteoarthritis.

On April 6, 2009 appellant filed a claim for a schedule award. He submitted a March 17,
2009 report from Dr. Scot E. Reeg, a Board-certified orthopedic surgeon, who discussed
appellant’s complaints of neck pain without radiation into his arms and advised that he had a
three percent impairment of the spine.
On April 21, 2009 the Office requested that Dr. Reeg provide an impairment rating in
accordance with the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2008) (A.M.A., Guides).
On June 3, 2009 the Office medical adviser reviewed Dr. Reeg’s report and noted that the
Office only recognized impairments of the extremities for purposes of a schedule award. He
found that Dr. Reeg’s finding of a three percent impairment of the cervical spine did not support
permanent impairment of either upper extremity.
By decision dated June 30, 2009, the Office denied appellant’s claim for a schedule
award.
On July 21, 2009 his attorney requested a telephone hearing. At the hearing, held on
October 14, 2009 counsel indicated that he would submit a report from a physician familiar with
the sixth edition of the A.M.A., Guides.
In a report dated October 27, 2009, Dr. Martin Fritzhand, a Board-certified urologist, who
specializes in occupational medicine, noted that a magnetic resonance imaging (MRI) scan study
showed a disc bulge at C4-5 with eccentricity to the right, degenerative joint disease at C6-7 and
posterior spurring and mild stenosis and a disc bulge at C5-6. On examination, he found
decreased shoulder motion and muscle strength of 4/5 over the shoulder rotators and abductors
bilaterally. Dr. Fritzhand listed findings of decreased pinprick and light touch over the radial
aspect of the right upper extremity. He discussed appellant’s history of degenerative disc disease
due to repetitive work activities and noted that his neck pain radiated into the upper extremities.
Dr. Fritzhand opined that appellant had bilateral sensory loss in the upper extremities. Utilizing
Tables 15-15, 15-16 and 15-17 of the fifth edition of the A.M.A., Guides, Dr. Fritzhand
determined that appellant had a 14 percent permanent impairment of each upper extremity due to
sensory and motor loss resulting from C6 radiculopathy.
In a decision dated December 30, 2009, an Office hearing representative affirmed the
June 30, 2009 decision. She noted that Dr. Fritzhand did not base his opinion on the sixth
edition of the A.M.A., Guides. The hearing representative further found that he failed to explain
the objective evidence relied upon in finding a sensory impairment of the upper extremities.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing federal regulations,2 set forth the number of weeks of compensation payable to
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

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employees sustaining permanent impairment from loss or loss of use, of scheduled members,
functions and organs of the body. The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.3 The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides5 as the appropriate
edition for all awards issued after that date.6
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.7
ANALYSIS
The Office accepted that appellant sustained an aggravation of degenerative disc disease
and osteoarthritis of the cervical spine due to factors of his federal employment. On April 6,
2009 appellant filed a claim for a schedule award. In a report dated March 17, 2009, Dr. Reeg
diagnosed neck pain without radiculopathy and found that appellant had a three percent
permanent impairment of the spine. The Act, however, specifically excludes the back as an
organ; therefore, the back or spine does not come under the provisions for payment of a schedule
award.8
In an October 27, 2009 impairment evaluation, Dr. Fritzhand found diminished range of
motion and muscle strength in the shoulders bilaterally and decreased sensation of pinprick and
touch of both upper extremities. He used Tables 15-15, 15-16 and 15-17 of the fifth edition of
the A.M.A., Guides to find that appellant had a 14 percent permanent impairment of each upper
extremity due to sensory and motor loss resulting from C6 radiculopathy. Dr. Fritzhand’s
impairment finding, however, is insufficient to support entitlement to a schedule award as it is
based on the fifth edition of the A.M.A., Guides. Effective May 1, 2009 the sixth edition of the
A.M.A., Guides are to be used to determine schedule awards.9 Dr. Fritzhand did, however,
describe findings of sensory and motor loss on physical examination. Office procedures provide
that, after obtaining all necessary medical evidence, the file should be routed to an Office
3

Ausbon N. Johnson, 50 ECAB 304 (1999).

4

Id.

5

A.M.A., Guides (6th ed. 2009).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
7

See id., Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(d) (August 2002).

8

Francesco C. Veneziani, 48 ECAB 572 (1997).

9

See supra note 6.

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medical adviser for an opinion concerning the nature and percentage of any impairment in
accordance with the A.M.A., Guides.10 The Office did not forward the medical evidence to an
Office medical adviser for a determination of whether Dr. Fritzhand’s report was sufficient to
support any permanent impairment of the upper extremities.
While the claimant has the burden of establishing the extent of impairment due to an
accepted injury, the Office shares responsibility in the development of the evidence.11
Dr. Fritzhand provided a description of decreased strength and sensory deficit sufficient to
warrant review by the Office medical adviser.12 The case, consequently, is remanded for the
Office to forward Dr. Fritzhand’s report to an Office medical adviser to determine if it is
adequate to support a schedule award and, if necessary, for review under the sixth edition of the
A.M.A., Guides. Following such further development as the Office deems necessary, it shall
issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

10

Id. at B.M., 61 ECAB ___ (Docket No. 09-2231, issued May 14, 2010).

11

D.N., 59 ECAB 576 (2008).

12

See B.M., supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the December 30, 2009 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: November 4, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
ALCOHOL, TOBACCO & FIREARMS,
Brooklyn, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-478
Issued: July 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 3, 2012 appellant, through his attorney, filed a timely appeal of the July 13,
2011 merit decision of the Office of Workers’ Compensation Programs denying his occupational
disease 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 sustained a pulmonary condition causally related to factors
of his federal employment.
On appeal, counsel contends that appellant met his burden of proof as he submitted
sufficient factual and medical evidence to establish his occupational disease claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 23, 2010 appellant, then a 44-year-old, criminal investigator, filed an
occupational disease claim alleging that on December 6, 2006 he first became aware of his
bronchiolitis obliterans organizing pneumonia. He further alleged that on April 29, 2009 he first
realized that his condition was caused by his employment when a supervisor advised him that air
quality test results revealed unacceptable levels of potentially harmful contaminants in his work
environment. The contaminants included bromomethane and benzene, which could have
significant health effects.
By letter dated April 1, 2010, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical opinion from an attending physician, which described his
symptoms and provided the results of examination, tests and treatment and a diagnosis together
with medical reasons on how the claimed work exposure contributed to the diagnosed condition.
Appellant was afforded 30 days to submit the requested evidence. He did not respond.
In a May 3, 2010 decision, OWCP denied appellant’s claim, finding that he had not
provided the requested factual and medical evidence.
By letter dated April 21, 2011, appellant, through his attorney, requested reconsideration.
Correspondence from the employing establishment dated April 28 and 29 and May 2009
indicated that the results of air quality tests performed in its office space revealed several
contaminants that were above Environmental Protection Agency standards and yet below
Occupational Safety and Health Administration permissible exposure limits. It noted that several
employees had become ill or complained about respiratory problems that appeared to be related
to these contaminants.
In an undated narrative statement, appellant contended that he experienced episodes of
dizziness, nausea, vomiting and extreme difficulty with breathing as a result of his exposure to
harmful contaminants while working in the employing establishment’s Brooklyn, New York
office. He had not experienced any of these conditions prior to this assignment. Appellant was
advised by an employee that she had two inflamed lungs which, was similar to his condition. He
stated that air quality test results revealed the presence of bromomethane, benzene,
tetrachloroethylene, m/p-xylene and 1,4-dichlorobenzene in his office. Appellant listed the
health effects of exposure to these contaminants which were similar to his health problems. He
stated that prolonged inhalation of lower concentrations of bromomethane may cause bronchitis
and pneumonia. Exposure to benzene had serious health effects as it targeted the liver, kidney,
lung, heart and brain. Tetrachloroethylene can cause dizziness and headaches. Exposure to high
levels of m/p-xylene for short periods can cause irritation of the skin, eyes, nose, throat,
difficulty with breathing, other lungs problems and delayed reaction time. Appellant stated that
1,4-dichlorobenzene may reasonably be anticipated to be a carcinogen, although there was no
direct evidence of causal relationship. It was believed that acetone exhibited only slight toxicity
in normal use and there was no strong evidence of chronic health effects if basic precautions
were followed.

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An unsigned medical report dated January 15, 2007, which contained the typed name of
Dr. Luis D. Berrizbeitia, a Board-certified surgeon, indicated that appellant underwent a
diagnostic bronchoscopy with multiple washings, video-assisted thoracoscopic surgery
exploration of the right hemithorax, wedge resections in the right lower, right middle and right
upper lobe and placement of an arterial line and a central venous line to treat his bilateral
pulmonary infiltrates.
In a February 25, 2010 report, Dr. Raul Valcarcel, an attending internist, reviewed
documents given to him by appellant addressing his alleged employment-related health issues,
which included episodes of dizziness, nausea, vomiting and extreme difficulty with breathing.
He was advised by appellant that a coworker experienced similar health conditions which
included inflamed lungs. Air quality tests indicated that, potential contaminates that, were not
acceptable by government standards existed within appellant’s work space. Dr. Valcarcel stated
that some of the contaminants could have significant health effects that were similar to the ones
appellant was currently experiencing. He advised that a prolonged inhalation of lower
concentrations of bromomethane may cause bronchitis and pneumonia. Exposure to benzene
had serious health effects as it targeted the liver, kidney, lung, heart and brain.
Tetrachloroethylene can cause dizziness and headaches. Exposure to high levels of xylene for
short periods of time can cause irritation of the skin, eyes, nose and throat. It can also cause
difficulty in breathing and other problems with the lungs. Based on his medical knowledge and
experience, Dr. Valcarcel opined that the aforementioned contaminants possibly caused or
adversely affected appellant’s health condition. He further opined that, based on the government
administered air quality test results, appellant’s condition had a direct correlation to his work
environment.
In a July 13, 2011 decision, OWCP denied appellant’s claim. It found that the factual
evidence was sufficient to establish that he was exposed to potentially harmful contaminants
while working at the employing establishment. OWCP, however, found that the medical
evidence was insufficient to establish that appellant sustained a diagnosed medical condition
causally related to the accepted employment factor.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an employee of the United States
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged and that any disability and/or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4

2

5 U.S.C. §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
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.5 Neither the fact that appellant’s condition became apparent during a
period of employment nor, his belief that the condition was caused by his employment is
sufficient to establish a causal relationship.6
ANALYSIS
OWCP accepted that appellant was exposed to potentially hazardous contaminants while
working as a criminal investigator. The Board finds, however, that the medical evidence of
record is insufficient to establish that his pulmonary condition was caused or aggravated by the
accepted employment factor.
Dr. Valcarcel’s February 25, 2010 report found that appellant’s exposure to
bromomethane, benzene, tetrachloroethylene and xylene at work “possibly” caused or adversely
affected his health condition. He further found that appellant’s condition had a direct correlation
to his employment based on the government administered air quality test results. Dr. Valcarcel’s
opinion regarding causal relationship is speculative in nature and unsupported by rationalized
medical evidence explaining how appellant’s exposure to harmful contaminants caused his
pulmonary condition.7 Further, he did not provide any findings on examination or render a
diagnosis. A mere conclusion without the necessary rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet a claimant’s burden of proof.8 For the stated reasons, the Board finds that
Dr. Valcarcel’s report is insufficient to establish appellant’s claim.
The January 15, 2007 unsigned surgical report which contained the typed name of a
Dr. Berrizbeitia has no probative value in establishing that appellant sustained a pulmonary
5

Victor J. Woodhams, supra note 4 at 351-52 (1989).

6

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

7

Leslie C. Moore, 52 ECAB 132 (2000).

8

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

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condition causally related to the established employment factor. It is well established that
medical evidence lacking proper identification is of no probative medical value.9
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a pulmonary condition causally related to the accepted
employment factor. Appellant did not meet his burden of proof.
On appeal, appellant contended that he submitted sufficient factual and medical evidence
to establish his occupational disease claim. While the factual evidence is sufficient to establish
the employment factor alleged to have caused or contributed to his pulmonary condition, the
medical evidence, as discussed above, is not sufficiently rationalized to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a pulmonary
condition causally related to factors of his federal employment.

9

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB
572 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the July 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2012
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
W.S., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________
Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 12-1502
Issued: March 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
On July 3, 2012 appellant, through his attorney, sought a timely appeal from a June 20,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Board
assigned Docket No. 12-1502.
The Board has duly considered the matter and finds that OWCP’s June 20, 2012 decision
must be set aside. On appeal appellant’s attorney contends that he did not receive a copy of the
June 20, 2012 decision, thereby rendering that decision as not properly issued. By letter dated
April 26, 2010, OWCP acknowledged John Eiler Goodwin, Esq., as appellant’s authorized
representative. On May 14, 2012 OWCP issued a notice of proposed reduction of benefits
finding that appellant was capable of earning wages as a security guard at the rate of $605.79 per
week. The record reflects that a copy of OWCP’s May 14, 2012 proposal to reduce appellant’s
wage-loss compensation was sent to counsel at the following address: 151 Finch Place, S.W.,
Suite H, Bainbridge Island, WA. The letter was returned as undelivered, with a forward time
expiration note, listing the following new address: 12170 Viewcrest Place, N.E., Bainbridge
Island, WA. In a May 31, 2012 letter to counsel sent to the Viewcrest Place address, OWCP
noted the return mail notice and stated: “We have updated our records with your current
address.” By decision dated June 20, 2012, OWCP reduced appellant’s compensation benefits
based on his capacity to earn wages in the constructed position of security guard. However,
OWCP sent a copy of the June 20, 2012 decision to the Finch Place address instead of counsel’s

Viewcrest Place address. Thus, a copy of that decision was not sent to appellant’s authorized
representative.
OWCP regulations and Board case law require OWCP to send a copy of its decision to
appellant and the authorized representative.1 The Board has held that a decision under the
Federal Employees’ Compensation Act2 (FECA) is not properly issued unless both appellant and
the authorized representative have been sent copies of the decision.3 As OWCP did not send the
June 20, 2012 decision to appellant’s representative, the Board concludes that the decision was
not properly issued. The Board will set aside the decision and remand the case for an appropriate
and properly issued merit decision on the relevant issues. Accordingly,
IT IS HEREBY ORDERED THAT the June 20, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: March 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees' Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees' Compensation Appeals Board
1

20 C.F.R. § 10.127 provides, a copy of the decision shall be mailed to the employee’s last known address. If the
employee has a designated representative before OWCP, a copy of the decision will also be mailed to the
representative. See also M.R., Docket No. 11-632 (issued September 28, 2011). In George R. Bryant, Docket No.
03-2241 (issued April 19, 2005), the Board found that OWCP did not properly issue its June 18, 2003 decision when
it did not send a copy of that decision to the authorized representative. In James Consentino, Docket No. 04-1774
(issued October 21, 2004), the Board found that OWCP improperly issued a decision terminating compensation
because it did not mail the decision to appellant’s representative and declared the termination decision null and void.
2

5 U.S.C. § 8101 et seq.

3

See R.J., Docket No. 12-174 (issued June 25, 2012); Travis L. Chambers, 55 ECAB 138 (2003).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Pico Rivera, CA, Employer
__________________________________________

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

Docket No. 08-2459
Issued: May 7, 2009

Case Submitted on the Record

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

JURISDICTION
On September 11, 2008 appellant timely appealed the August 26, 2008 merit decision of the
Office of Workers’ Compensation Program, which denied his claim for wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant was disabled on or after May 27, 2006 due to his
employment-related hearing condition.

FACTUAL HISTORY
Appellant, a 73-year-old retired veterinary medical officer, has an accepted claim for
bilateral/binaural noise-induced hearing loss.1 He received schedule awards for a combined 60
percent binaural hearing loss. The most recent award, dated March 1, 2007, covered a period of 40
weeks from December 15, 2006 through September 20, 2007. In October 2007, appellant filed a
claim for compensation (Form CA-7) and a notice of recurrence (Form CA-2a), the latter of which
alleged disability beginning May 27, 2006.2 He claimed that he retired on May 27, 2006 because he
could no longer perform his regular job duties around machinery noise.
Dr. Natee Poopat, a Board-certified otolaryngologist, examined appellant on November 29,
2007 and diagnosed severe sensorineural hearing loss bilaterally. He indicated that the condition
was “most likely secondary to [appellant’s] history of noise exposure on the job.”3 Dr. Poopat
further noted that appellant’s condition would make it “virtually impossible to work in an
environment with high background noise.” He also submitted a December 20, 2007 work capacity
evaluation (Form OWCP-5c). Dr. Poopat noted that appellant was incapable of performing his
usual job because his “severe hearing loss interferes with communication [on the job].” However,
he indicated that appellant could work an eight-hour day. The only reported physical limitation was
climbing. Dr. Poopat also remarked that appellant had a “severe hearing loss affecting safety when
communication is critical.”
In a December 7, 2007 statement, the employing establishment refuted appellant’s
contention that his hearing condition prevented him from performing his regular job duties.
Appellant reportedly spent most of his time in the “USDA office ... that did not expose him to loud
noises.” He was observed using both landline and cellular telephones. Appellant was also seen
conducting weekly meetings with plant managers and work unit meetings with inspectors. He also
reportedly performed residue testing and sampling, performed ante-mortem inspections, correlated
with inspectors’ post-mortem inspections, conducted humane handling activities and reviewed
inspectors’ written documentation.
By decision dated February 27, 2008, the Office denied appellant’s claim for wage-loss
compensation beginning May 27, 2006. Appellant subsequently requested a review of the written
record.
In a March 1, 2008 report, Dr. Poopat stated that appellant’s November 29, 2007 test results
indicated that he had a hard time communicating in a face-to-face setting in a quiet room. He
further noted that this level of hearing loss would make it virtually impossible, even with hearing
aids, for appellant to communicate in an environment with any significant level of background
1

Appellant has two hearing loss claims that have been accepted by the Office. The initial injury arose on or about
June 27, 2000 (xxxxxx018). Appellant continued to work thereafter and sustained further injury on or about April 4,
2003 (xxxxxx137). He retired effective May 27, 2006. Claim number xxxxxx018 has been designated the master file.
2

The timing of the filing coincided with the expiration of appellant’s latest schedule award. Appellant wanted to
continue to receive benefits from the Office and convert his regular retirement benefits into wage-loss compensation for
total disability.
3

Dr. Poopat noted a history of exposure to loud noise -- “heavy machinery.”

2

noise. According to Dr. Poopat, appellant’s bilateral hearing loss would improve only marginally
with the strongest hearing aids. He also noted that excessive humidity, which was a reported
environmental factor of appellant’s job, would limit his ability to use hearing aids effectively.
Dr. Poopat further commented that appellant’s inability to communicate clearly and efficiently
would make the work environment unsafe, particularly when working around machines with
moving parts. He also stated that appellant’s ability to work in an office setting would depend on
the job description. Dr. Poopat explained that appellant would not be able to communicate
efficiently on the telephone and would not be able to communicate very well with other office staff.
But if those restrictions did not affect his ability to perform an office job, then appellant could
potentially work.
On March 6, 2008 Dr. Vernal M. Hansen, a family practitioner, advised that appellant had
been given a work excuse for the period April 12 through May 27, 2006 because of “illness [and]
stress.”
On August 26, 2008 the hearing representative affirmed the denial of appellant’s claim for
wage-loss compensation beginning May 27, 2006.
LEGAL PRECEDENT
A claimant has the burden of establishing the essential elements of his claim, including that
the medical condition for which compensation is claimed is causally related to the employment
injury.4 For wage-loss benefits, the claimant must submit medical evidence showing that the
condition claimed is disabling.5 The evidence submitted must be reliable, probative and
substantial.6
ANALYSIS
Appellant claims to have been disabled beginning May 27, 2006 as a result of his
employment-related hearing condition. However, he did not provide any contemporaneous medical
evidence demonstrating an employment-related disability on or about May 27, 2006. Dr. Hansen,
appellant’s family physician, indicated that appellant had been excused from work between April 12
and May 27, 2006 because of “illness [and] stress.” However, he did not identify the cause of the
“illness [and] stress,” nor did he indicate that appellant was disabled for work subsequent to
May 27, 2006.
Some 18 months after appellant’s retirement, Dr. Hansen referred him to Dr. Poopat. There
is no medical evidence from the end of May 2006 through November 2007 that definitively
establishes an employment-related disability. Moreover, when Dr. Poopat saw appellant on
November 29, 2007, he did not directly attribute the diagnosed hearing loss to appellant’s prior
employment exposure. He only noted that the condition was “most likely secondary to [appellant’s]
history of noise exposure on the job.” The only occupational exposure noted in either of
4

20 C.F.R. § 10.115(e) (2008); see Tammy L. Medley, 55 ECAB 182, 184 (2003).

5

20 C.F.R. § 10.115(f).

6

Id. at § 10.115.

3

Dr. Poopat’s reports was as follows: “Pertinent history includes [history] of exposure to loud noise
(heavy machinery).”7
The gist of Dr. Poopat’s opinion regarding disability and work limitations is that appellant’s
severe hearing loss interferes with his ability to communicate, which in turn represents a safety
issue where “communication is critical.” But Dr. Poopat has not demonstrated even a basic
understanding of appellant’s various job duties. Without a thorough understanding of appellant’s
duties, his opinion regarding disability is speculative at best and not particularly probative.
Accordingly, the medical evidence of record does not establish that appellant was totally disabled
on or after May 27, 2006.
CONCLUSION
Appellant failed to establish that he was disabled beginning May 27, 2006 due to his
employment-related hearing condition.
ORDER
IT IS HEREBY ORDERED THAT the August 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7

Causal relationship is a medical question, which generally requires rationalized medical opinion evidence to resolve
the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific employment factors. Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.U., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Nashville, TN, Employer
__________________________________________

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

Docket No. 13-1874
Issued: July 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 7, 2013 appellant filed a timely appeal from a March 1, 2013 merit decision
and May 14, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that his neck
and shoulder conditions are causally related to factors of his employment; and (2) whether
OWCP properly denied his May 9, 2013 request for reconsideration under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

On appeal, appellant argued that the latest report from his physician show further damage to his neck and
shoulder from his workstation. The Board’s jurisdiction, however, is limited to evidence that was before OWCP at
the time it issued its final decision. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On November 30, 2012 appellant, then a 58-year-old physician’s assistant, filed an
occupational disease claim alleging that he sustained severe cervical muscle pain and myofascitis
as a result of sitting and using the computer in a nonergonomic workstation. He explained that
beginning in 2004 he noticed pain within minutes of each workday that intensified during the
workday but improved on days off. Appellant first became aware of his condition and realized it
resulted from his employment on March 8, 2004. He did not stop work.
In a November 1, 2012 report, Dr. Son D. Le, Board-certified in physical medicine and
rehabilitation, noted that he treated appellant for neck and back pain. He recommended that
appellant have a dedicated workstation that was ergonomically designed to protect the neck and
arm from further damage and strain during the workday. Dr. Le advised that appellant not be
allowed to move from workstation to workstation throughout the day. He reported that this
could cause further damage and strain on his spinous process, trapezius muscle and shoulder.
In a November 16, 2010 incident report, the employing establishment noted appellant’s
complaints of neck and bilateral wrist injuries as a result of repetitive motion at work. It related
that he used a desk, chair, keyboard, mouse and computer workstation to record medication
information on a regular basis.
In a November 19, 2012 report, Dr. George L. Holmes, a Board-certified family
practitioner, noted that he examined appellant on October 18, 2012 for cervical, neck and muscle
strains and stress due to working at a different workstation. He recommended that appellant
remain at one workstation that was ergonomically suited for his back and neck.
By letter dated December 18, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish his occupational disease claim and requested additional evidence.
In an undated statement, appellant noted that repetitive strain injuries were caused by a
lifestyle without ergonomic care. He related that in March 2004 his neck pain had become very
severe and he worked with Wayne Goodman, an industrial hygienist and Bill Wilson at his
employing establishment to modify his workstation. Appellant stated that with medical
treatment and an ergonomic workstation his condition stabilized and became manageable. He
reported that in October 2012 he was moved and set up in a new office space. Although
appellant informed his chain of command that he would need his ergonomic equipment set up in
the new office space they were not able to provide this equipment. He stated that the new office
space was very poorly designed and had no ergonomic fixtures. Appellant continued to perform
his job duties of seeing patients and using the computer everyday with few breaks and in a high
stress environment. He noted that the pain in his neck and shoulders returned and became
exacerbated.
Appellant submitted various e-mails detailing the office supplies he requested for an
ergonomic workstation and the office room he requested. He also submitted handwritten
progress notes dated from December 16, 2004 to January 30, 2012 by employee health regarding
treatment for neck and shoulder pain.

2

In a December 17, 2012 memorandum, the employing establishment questioned the
timeliness of the filing of appellant’s occupational disease claim since he noted a date of illness
as March 8, 2004 but did not file until November 30, 2012.
In a January 3, 2013 letter, appellant responded to OWCP’s development letter. He
stated that his myofascial disorder and chronic over-use syndrome resulted from continued
chronic use of keyboard usually eight hours a day in a nonergonomic workstation. Appellant
reported that he typed at least 100 telecare notes, questions, prescriptions and various other
patient-oriented problems daily. He related that the original 2004 date was when it was
documented that his condition was work related but he was not made aware that there was a
deadline to file a claim. In October 2010, appellant sought outside treatment as his neck and
shoulder pain worsened. His condition stabilized after he obtained an ergonomic workstation
and underwent regular medical treatment. Appellant reported that the injury recurred when he
was moved into new office space without ergonomic equipment. He stated that he informed his
chain of command about the need for ergonomic workstation but excuses were made that they
could not modify his workstation. Appellant reported that nothing was changed so he chose to
initiate OWCP’s claim for the injury he suffered at work. He further alleged that his
occupational disease claim was timely submitted within the three-year date of October 2010, the
date of his reinjury.
In a January 10, 2013 report, Dr. Le listed appellant’s diagnoses as cervicalgia, cervical
strain, shoulder pain and strain, fracture of the right clavicle, unspecified disorders of the
shoulder bursae and tendons and elbow osteoarthritis. He stated that in October 2010 appellant
was referred to his clinic for cervical pain. Dr. Le reported that a November 8, 2010 magnetic
resonance imaging (MRI) scan report was negative for any significant degenerative arthritis and
that a cervical ultrasound found scar tissue where appellant described the area of pain. He
explained that appellant’s condition may be a result of his workstation not being modified to
provide a sound ergonomic platform and repetitive stress trauma. Dr. Le stated that appellant
was making progress with physical therapy and trigger point injections until October 2012 when
he reported losing his ergonomically designed workstation.
In a January 15, 2013 statement, Norman C. Hardman, appellant’s supervisor, stated that
he was not aware of appellant’s neck pain until 2012 and he believed that it was related to
appellant’s preexisting medical conditions, his exercise program and accidents not related to
work. He noted that appellant’s requests for ergonomic evaluation had been addressed until late
2012 and early 2013 when construction caused primary care to move to a new area with
temporary furniture. Mr. Hardman reported that appellant’s job did not differ from the official
description.
In a January 31, 2013 statement, Dorla Matthews of the employing establishment
disputed the timely filing of appellant’s case. She noted that he completed his occupational
disease claim on November 30, 2012 but he first became aware of his condition on
March 8, 2004. Ms. Matthews also contended that appellant did not describe the specific issues
of the workstation that he believed contributed to his conditions and had not provided a full and
complete history of his condition before any of his visits to the employee health unit.

3

In a March 1, 2013 decision, OWCP denied appellant’s claim. It accepted that he
performed the duties of a physician’s assistant and was diagnosed with cervical and shoulder
conditions but denied his claim finding insufficient medical evidence to establish that his
diagnosed conditions were causally related to factors of his employment.
On May 9, 2013 appellant submitted a request for reconsideration. He contended that he
submitted direct medical evidence that related his neck injury to continued muscular skeletal
strain from a poorly configured workstation and repeated biomechanical work stress on a daily
basis. Appellant alleged that he provided overwhelming medical evidence that he suffered
cumulative injury to his neck and shoulder and had made multiple attempts to remedy his most
recent biomechanically deficient workstation.
In an April 2, 2013 report, Dr. Le noted that he was currently treating appellant for
chronic neck and back pain. He recommended that appellant have a dedicated workstation that
was ergonomically designed to protect the neck and arm from further damage and strain during
the workday. Dr. Le stated that appellant should not move from workstation to workstation
throughout the day as this would cause further damage and strain on his spinous process,
trapezius muscle and shoulder. He noted that appellant averaged computerized documents of at
least 300 per day due to daily patient primary care load, prescriptions, telephone calls and
consults.
By decision dated May 14, 2013, OWCP denied appellant’s request for reconsideration
finding that no evidence was submitted sufficient to warrant further merit review under 5 U.S.C.
§ 8128(a).
LEGAL PRECEDENT -- ISSUE 1
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination of the merits of the claim.3 Section 8122(a) of FECA provides that
in cases of injury on or after September 7, 1974 a claimant has three years to file a claim for
compensation.4 In a case of occupational disease, the time for filing a claim begins to run when
the employee first becomes aware or reasonably should have been aware of a possible
relationship between his or her condition and his employment. Where the employee continues in
the same employment after he or she reasonably should have been aware that he or she has a
condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.5
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence6 including that he sustained an injury in the performance of duty and that any specific
3

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

4

5 U.S.C. § 8122(a).

5

See Larry E. Young, 52 ECAB 264 (2001); William D. Goldsberry, 32 ECAB 536, 540 (1981).

6

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

4

condition or disability for work for which he or she claims compensation is causally related to
that employment injury.7 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background 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.10
ANALYSIS -- ISSUE 1
As a preliminary matter, the Board will address whether appellant’s occupational disease
claim was timely filed. The employing establishment disputes the timeliness of his claim
because he reports a date of illness of March 8, 2004 but did not file his occupational disease
claim until November 30, 2012, which exceeds the three-year time limitation. As previously
noted, however, in occupational disease claims where the employee continues in the same
employment after he or she reasonably should have been aware that he or she has a condition
which has been adversely affected by factors of federal employment, the time limitation begins
to run on the date of the last exposure to the implicated factors.11 The record reveals that
appellant did not stop work and continues to be employed at the employing establishment even
though he became aware of his condition on March 8, 2004. As appellant continues to be
exposed to the factors of federal employment he alleges to adversely affect him, the Board finds
that his occupational disease claim was timely filed.
Regarding the merits of his claim, appellant alleged that he sustained cervical and
shoulder conditions as a result of his repetitive duties as a physician’s assistant. By decision
dated March 1, 2013, OWCP accepted that his duties included repetitive typing and work on the
computer and that he was diagnosed with cervical and shoulder conditions but it denied his claim
finding insufficient medical evidence to establish that his diagnosed conditions resulted from his
employment duties. The Board finds that appellant did not meet his burden of proof to establish
that his cervical and shoulder conditions were causally related to factors of his employment.
7

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

Supra note 4.

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Appellant received medical treatment from Dr. Le. In reports dated November 1, 2012
and January 10, 2013, Dr. Le noted that appellant was referred to his clinic for complaints of
neck and back pain. In the January 10, 2013 report, he opined that “appellant’s condition may be
a result of his workstation not being modified to provide a sound ergonomic platform and
repetitive stress trauma.” The Board notes that Dr. Le provided a medical diagnosis based on
examination findings and provided an opinion on causal relationship. Dr. Le’s opinion that
appellant’s condition “may be a result” of factors of his employment is speculative.12 Because
an award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal connection between his claimed condition and his
employment, Dr. Le’s opinion on causal relationship is insufficient to establish appellant’s
occupational disease claim.13
Dr. Holmes’ November 19, 2012 report does not provide any opinion on the cause of
appellant’s cervical and shoulder conditions. The Board has found that 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.14 Both physicians attribute appellant’s conditions to
working at a poorly designed workstation and both recommend that he remain at one
ergonomically designed workstation throughout his workday. The Board has held, however, that
the mere fact that work activities may produce symptoms revelatory of an underlying condition
does not raise an inference of an employment relation. Such a relationship must be shown by
rationalized medical evidence of a causal relation based upon a specific and accurate history of
employment conditions which are alleged to have caused or exacerbated a disabling condition.15
Because appellant has not submitted such medical evidence in this case, the Board finds
that OWCP properly denied his occupational disease claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.16 OWCP’s regulations provide that it may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his or her right through a request to the district Office.17
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) establish that OWCP erroneously applied or
12

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

13

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

14

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

15

Patricia J. Bolleter, 40 ECAB 373 (1988).

16

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB
372 (2008).
17

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).

6

interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.18
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.19 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.20 If the request is timely but fails
to meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.21
ANALYSIS -- ISSUE 2
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
By decision dated March 1, 2013, OWCP denied appellant’s claim finding that the
evidence did not establish that his cervical and shoulder conditions were causally related to
factors of his employment. By appeal form dated May 9, 2013, appellant requested
reconsideration. He alleged that he provided overwhelming medical evidence of neck injury
caused by a poorly configured workstation and related biomechanical stress.
Along with his request for reconsideration, appellant submitted an April 2, 2013 report by
Dr. Le, who noted that he treated appellant for chronic neck and back pain and related that
appellant’s duties involved typing an average of 300 computerized documents a day. Dr. Le
recommended that appellant have a dedicated workstation that was designed to protect the neck
and arm and that appellant not move from workstation to workstation. The April 2, 2013 report
is repetitive and similar in nature to his November 1, 2012 report. The Board has found that the
submission of evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.22
On appeal, appellant alleges that the letters of his physicians and history of injury were
compelling enough for another review of his case. The Board finds that he failed to submit
relevant and pertinent new evidence, a relevant legal argument not previously considered by
18

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
19

Id. at § 10.607(a).

20

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

22

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

7

OWCP or evidence or argument which shows that OWCP erroneously applied or interpreted a
specific point of law. Therefore, OWCP properly refused to reopen his case for further
consideration of the merits of his claim under 5 U.S.C. § 8128.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
cervical and shoulder conditions were causally related to factors of his employment. The Board
also finds that OWCP properly denied appellant’s May 9, 2013 request for reconsideration under
5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 14 and March 1, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 22, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.H., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 07-1412
Issued: October 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 12, 2007 with respect to a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant has more than a 12 percent permanent impairment based
on a binaural hearing loss and tinnitus.
FACTUAL HISTORY
On June 28, 2005 appellant, then a 62-year-old retired pipe fitter, filed an occupational
disease claim alleging that his tinnitus and hearing loss were causally related to his federal
employment. The reverse of the claim form indicated that he was removed from employment on
April 10, 1998. Appellant submitted an audiogram dated April 30, 2003 showing a ratable

hearing loss and he indicated that he was diagnosed with tinnitus on that date. The employing
establishment submitted audiograms from 1987, 1993 and 1996.
The Office referred appellant, along with medical records and a statement of accepted
facts, to Dr. Arif Shaikh, an otolaryngologist. In a report dated January 26, 2006, Dr. Shaikh
provided a history and results on examination. He noted that current symptoms included ringing
in both ears. Dr. Shaikh diagnosed bilateral sensorineural hearing loss due to noise exposure in
federal employment. An accompanying audiogram reported the following results: for the right
ear at frequencies of 500, 1,000, 2,000 and 3,000 hertz (Hz), the hearing levels were 25, 20, 35
and 70 decibels; for the left ear 25, 20, 25 and 40 decibels at the same frequencies.
In a report dated March 12, 2006, an Office medical adviser reviewed the evidence. He
calculated that appellant had a 6.9 percent binaural hearing loss based on the January 26, 2006
audiogram. The date of maximum medical improvement was reported as January 26, 2006.
By decision dated May 30, 2006, the Office issued a schedule award for a seven percent
binaural hearing loss. The period of the award was 14 weeks from January 26, 2006.
Appellant requested reconsideration by letter dated October 10, 2006. He stated that he
suffered from tinnitus causally related to his federal employment. The Office sent appellant a
tinnitus worksheet form with respect to his condition. Appellant indicated that activities of daily
living impacted by his tinnitus included communication, sensory function, travel and sleep.
In a report dated February 8, 2007, an Office medical adviser opined that appellant was
entitled to an additional five percent permanent impairment for tinnitus based on information
provided in the worksheet. By decision dated February 12, 2007, the Office awarded appellant
an additional five percent permanent impairment. The Office indicated that the period of the
award was 24 weeks from January 26 to July 12, 2006, with reduction for the amount already
paid pursuant to the prior award.
LEGAL PRECEDENT
The Office evaluates industrial hearing loss in accordance with the standards contained in
the American Medical Association, Guides to the Evaluation of Permanent Impairment.1 Using
the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the levels at each frequency are added up and
averaged.2 Then, the “fence” of 25 decibels is deducted because, as the A.M.A., Guides points
out, levels below 25 decibels result in no impairment in the ability to hear everyday speech under
everyday conditions.3 The remaining amount is multiplied by a factor of 1.5 to arrive at the
percentage of monaural hearing loss.4 The binaural loss is determined by calculating the loss in
each ear using the formula for monaural loss; the lesser loss is multiplied by five, then added to
1

A.M.A., Guides 250 (5th ed. 2001).

2

Id.

3

Id.

4

Id.

2

the greater loss and the total is divided by six to arrive at the amount of the binaural hearing
loss.5 The Board has concurred in the Office’s adoption of this standard for evaluating hearing
loss.6
ANALYSIS
Appellant was referred to Dr. Shaikh for a second opinion examination with regard to
hearing loss. In conjunction with his examination, audiometric testing was performed on
January 26, 2006. The audiologist verified the validity of the test results and indicated that the
equipment was calibrated on March 18, 2005.7
As noted, the formula for determining binaural hearing loss is based on hearing levels at
the frequencies of 500, 1,000, 2,000 and 3,000 Hz. The hearing levels at these frequencies are
added up and averaged. The levels for the right ear were 30, 25, 35 and 70, for a total of 160,
which results in an average of 40; for the left ear, 25, 20, 25 and 40 results in a total of 110, for
an average of 27.50. The fence of 25 is then deducted from the average, resulting in 15 for the
right ear and 2.5 for the left ear. Monaural loss in the right ear is 15 multiplied by 1.5, equaling
22.5, and for the left ear 2.5 multiplied by 1.5 equals 3.75. According to the above formula, 3.75
is multiplied by 5 (18.75), added to 22.5 (41.25), and then divided by 6 for a 6.875 binaural
hearing loss. In accord with Office procedures, the 6.875 is rounded up to 7 percent.8
With respect to tinnitus, the A.M.A., Guides provides that an additional impairment due
to hearing loss of up to five percent may be added “for tinnitus in the presence of measurable
hearing loss if the tinnitus impacts the ability to perform activities of daily living.”9 The Office
medical adviser indicated that appellant’s tinnitus did impact his ability to perform daily
activities and found that appellant was entitled to the maximum additional impairment for
tinnitus.
The Board finds that the evidence of record establishes that appellant has a 12 percent
permanent impairment for loss of hearing in both ears. The January 26, 2006 results of
audiometric testing show a seven percent binaural hearing loss under the A.M.A., Guides. An
additional five percent was properly added for tinnitus. There is no probative evidence of a
greater impairment in this case.

5

Id.

6

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).
7

The Office requirements for audiological testing are set forth in the Federal (FECA) Procedure Manual, Part 3 -Medical, Requirement for Medical Reports, Chapter 3.600.8(a) (September 1994).
8

See Laura Heyen, 57 ECAB
(Docket No. 05-1766, issued February 15, 2006); Johnnie B. Causey, 57 ECAB
___ (Docket No. 06-49, issued February 7, 2006). As the Office’s procedure manual explains with respect to
hearing loss, the number is rounded up from .50 and down from .49. Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.4(b)(2) (September 1994).
9

Supra note 1 at 246.

3

On appeal, appellant contended that he was not adequately compensated for his hearing
loss. The number of weeks of compensation for a schedule award, however, is determined by the
compensation schedule at 5 U.S.C. § 8107(c). For complete binaural hearing loss, the maximum
number of weeks of compensation is 200 weeks. Since appellant’s binaural hearing loss was 12
percent, he is entitled to 12 percent of 200 weeks, or 24 weeks of compensation.10 It is well
established that the period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement from residuals of the employment injury.11 In this case,
the Office medical adviser properly concluded that the date of maximum medical improvement
was the date of examination by Dr. Shaikh. The award therefore properly runs for 24 weeks
commencing on January 26, 2006.
CONCLUSION
The evidence does not establish that appellant has more than a 12 percent permanent
impairment for binaural hearing loss, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 12, 2007 and May 30, 2006 are affirmed.
Issued: October 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
10

The Board notes that the maximum for monaural hearing loss is 52 weeks. With a 22.50 monaural loss in the
right ear and 3.75 in the left, the total number of weeks of compensation for monaural loss would be 13.65. Since
the binaural loss results in a greater number of weeks, the Office properly based the award on binaural hearing loss.
11

Albert Valverde, 36 ECAB 233, 237 (1984).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 07-2389
Issued: April 24, 2008

Case Submitted on the Record

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

JURISDICTION
On September 21, 2007 appellant timely appealed the July 2, 2007 merit decision of the
Office of Workers’ Compensation Programs, which denied her claim for recurrence of a medical
condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.1
ISSUE
The issue is whether appellant sustained a recurrence of a medical condition causally
related to her August 2, 1983 employment injury.

1

The record on appeal includes additional medical evidence received after the Office issued its July 2, 2007
decision. The Board cannot consider evidence for the first time on appeal. The review of a case shall be limited
to the evidence in the case record which was before the Office at the time of its final decision. 20 C.F.R.
§ 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 61-year-old letter carrier, injured her right middle finger in the performance
of duty on August 2, 1983. She was inserting mail in a door slide when the door fell, catching
her right middle finger as she pulled her hand out. Appellant sustained a laceration from her
fingernail to the first knuckle. She was treated at the employing establishment health unit the
day of the injury and did not incur any medical expenses. Appellant did not loose any time from
work as a result of the August 2, 1983 employment incident. She filed a traumatic injury claim
(Form CA-1) on August 4, 1983, which was signed by her supervisor and placed in her official
personnel folder. The circumstances did not warrant forwarding the claim to the Office at that
time.
Almost two decades later, appellant wrote the Office advising that she needed to see a
doctor regarding her August 2, 1983 employment injury. Appellant provided the Office a copy
of the August 4, 1983 Form CA-1 she had previously filed with the employing establishment.
On September 23, 2002 the Office informed appellant that her claim was accepted for laceration,
right hand (ICD-9 882.0). The Office further noted that the case was accepted and closed.
Appellant was advised to file a notice of recurrence for any future medical treatment she may
need regarding her 1983 injury.
On April 10, 2006 appellant filed a notice of recurrence (Form CA-2a) for medical
treatment only.2 She explained that over the years she experienced soreness and calluses, but in
the past three months the pain in her finger had been more persistent. Appellant described her
current condition as a painful and throbbing finger, which she believed required medical
attention. Appellant continued to work, with no loss of pay. She filed another Form CA-2a on
May 10, 2006. Appellant, however, did not submit any medical evidence with either recurrence
claim. The Office advised her of the need for such evidence on October 13, 2006, but appellant
did not respond to the Office’s request for additional medical evidence.3 In a decision dated
November 20, 2006, the Office denied appellant’s recurrence claim.
On March 5, 2007 appellant requested reconsideration. She submitted a February 14,
2007 report from Dr. Munir A. Shah, a Board-certified orthopedic surgeon, who diagnosed right
long finger distal interphalangeal (DIP) joint osteoarthritis and right carpal tunnel syndrome.
Dr. Shah noted that appellant had a five-year history of right long finger pain.
By decision dated July 2, 2007, the Office denied modification of the November 20, 2006
decision.

2

An earlier claim filed in October 2002 was returned by the Office because the claim form had not been
completed properly.
3

The only medical evidence of record at the time was the employing establishment’s health unit treatment records
for the period February 1981 to July 1987.

2

LEGAL PRECEDENT
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.4 Continuous treatment for the original condition or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.5
Where an employee claims a recurrence due to an accepted employment injury, she has
the burden of establishing that the recurrence is causally related to the original injury.6 This
burden includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history, that the condition is causally
related to the employment injury.7
ANALYSIS
Appellant’s traumatic injury claim was accepted for a laceration of the right hand. The
actual site of the laceration was appellant’s right middle finger from the fingernail to the first
knuckle. The Office did not accept appellant’s claim for right middle finger DIP joint
osteoarthritis.8 Where appellant claims that a condition not accepted or approved by the Office
was due to her employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.9 Dr. Shah’s February 14, 2007 report did not include
a history of appellant having injured her right middle finger on August 2, 1983. He merely noted
that she was a letter carrier who had a five-year history of right long finger pain. Moreover,
Dr. Shah did not even offer an opinion as to the cause of appellant’s current arthritic condition.
The record on appeal is devoid of any medical evidence linking appellant’s right middle finger
DIP joint osteoarthritis to the laceration she sustained at work on August 2, 1983. Accordingly,
the Office properly denied appellant’s recurrence claim.

4

20 C.F.R. § 10.5(y).

5

Id.

6

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

7

Id.

8

Appellant has a separate claim which the Office accepted for right carpal tunnel syndrome with an August 4,
1990 date of injury (16-0181725).
9

Jaja K. Asaramo, 55 ECAB 200, 204 (2004). Causal relationship is a medical question, which generally
requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors. Id.

3

CONCLUSION
Appellant did not establish that she sustained a recurrence of a medical condition causally
related to her August 2, 1983 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 24, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 09-352
Issued: August 13, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ February 26 and October 22, 2008 merit decisions denying his
emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
emotional condition in the performance of duty on January 6, 2008.
FACTUAL HISTORY
On January 7, 2008 appellant, a 54-year-old mail processing equipment operator, filed a
traumatic injury claim alleging that he experienced stress as a result of a coworker’s harassment
on January 6, 2008. In a statement accompanying his claim, appellant alleged that on the date in
question, he was harassed by Albert Ramos, a coworker. He reported that Mr. Ramos sent him a
radio dispatch in which he stated, “You better have your radio close.” Appellant alleged that,

when he later complained about the harassment to Joseph Valenti, a supervisor, Mr. Ramos came
very close to him and said, “Do n[o]t come in here to talk sh** to me get out of this office.” He
submitted a form from Kaiser Permanente, reflecting that he was treated on January 6, 2008 by
Dr. Daniel Seth Pine, a Board-certified internist.
In a letter dated January 17, 2008, the Office informed appellant that the information and
evidence submitted was insufficient to establish his claim. It advised him to provide details
regarding the alleged January 6, 2008 events, as well as a comprehensive medical report, which
contained a description of symptoms, a diagnosis, and a reasoned opinion as to whether his
condition was causally related to the alleged employment events.
In an undated statement, Mr. Ramos acknowledged that he had sent a radio dispatch to
appellant on January 6, 2008, but that appellant had refused the call. When he encountered
appellant in Mr. Valenti’s office later that evening, appellant reportedly said, “Quit harassing me,
you do it on purpose.” Mr. Ramos indicated that he told appellant that he should be speaking to
his supervisor; whereupon, appellant pointed his finger at him and called him a racist. He stated
that he then told appellant to “get his damn finger out of [his] face and not to raise his hand to
[him] again.”
In an undated statement, Mr. Valenti reported that he overheard a heated argument
between appellant and Mr. Ramos on January 6, 2008. Appellant informed Mr. Valenti that
Mr. Ramos was harassing him and that he was experiencing heart palpitations. Ultimately, he
was transported by ambulance to a hospital.
Other evidence of record reflecting appellant’s allegations of harassment by Mr. Ramos
on the date in question include: a January 7, 2008 employing establishment memorandum; a
January 8, 2008 union complaint by appellant; a January 7, 2008 Kaiser Permanente workers’
compensation form; and a January 6, 2008 interview by an employing establishment inspector.
In a report dated January 6, 2008, Dr. Pine noted appellant’s allegations of harassment on
that date by a coworker, both on a dispatch radio and in his supervisor’s office. In the section
reserved for objective findings, he stated that appellant was “calm, conversant, demonstrate[d]
reasonable reflection and approach to his perceived persecution with no irrational thoughts.”
Dr. Pine diagnosed “anxiety attack stress.” He provided no response to the question as to
whether his findings and diagnosis were consistent with appellant’s account of his alleged injury.
Regarding work status, he noted “no time off work.”
In a January 28, 2008 psychiatric report, Dr. Phuong-Thuy Le, a psychiatrist, diagnosed
paranoid schizophrenia and stress at work. In response to a question regarding appellant’s
current mental status, he replied that appellant “was very anxious and paranoid, his improvement
to be determined.”
By decision dated February 26, 2008, the Office denied appellant’s claim. It found the
incident as described to be factual and in the performance of duty. However, the medical
evidence failed to demonstrate that his diagnosed emotional condition was causally related to the
established employment events.

2

On March 25, 2008 appellant requested a telephonic hearing, which was held on
July 14, 2008. Appellant reiterated his factual allegations. He stated that after Mr. Ramos yelled
at him and told him to “get the hell out of th[e] office” on January 6, 2008, his body shook, his
heart was beating fast, he was very nervous, and he felt as if he was going to pass out. After the
incident, he was transported to the hospital and was “off work” for 50 to 60 days. Appellant
testified that he had never received any treatment for a psychological condition before the
alleged employment event.
By decision dated October 22, 2008, the Office hearing representative affirmed the
Office’s February 26, 2008 decision.1 The Office found that the incident alleged was factual and
within the performance of duty but it found that the medical evidence was insufficient to show
that appellant’s diagnosed condition was causally related to the established employment incident.
LEGAL PRECEDENT
To establish that a claimant sustained an emotional condition causally related to factors
of federal employment, he must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to the condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the emotional condition
is causally related to the identified compensable employment factors.2
Rationalized medical evidence is evidence which relates a work incident or factors of
employment to a claimant’s condition, with stated reasons of a physician. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.3
ANALYSIS
The Office determined that appellant established a compensable employment factor with
respect to harassment by Mr. Ramos on January 6, 2008. However, the February 26 and
October 22, 2008 decisions denied appellant’s claim on the grounds that he had not submitted
sufficient medical evidence to establish that his condition was causally related to the established
employment events. The Board must review the medical evidence to determine whether
appellant sustained an emotional condition due to an accepted employment factor.
The Board finds that appellant did not submit sufficient medical evidence to establish that
he sustained an emotional condition due to the accepted employment factors. Medical evidence
of record consists of reports from Dr. Pine and Dr. Le, which provide diagnoses of psychological
1

The Board notes that the hearing representative initially issued her decision on October 15, 2008; however, the
decision was reissued on October 22, 2008 for unexplained reasons.
2

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

3

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

3

disorders. None of the reports submitted, however, contains a rationalized medical opinion
explaining the cause of appellant’s condition.
On January 6, 2008 Dr. Pine noted appellant’s allegations of harassment on that date by a
coworker, both on a dispatch radio and in his supervisor’s office. He diagnosed “anxiety attack
stress” and stated that appellant was “calm, conversant, demonstrate[d] reasonable reflection and
approach to his perceived persecution with no irrational thoughts.” Dr. Pine provided no
response to the question as to whether his findings and diagnosis were consistent with appellant’s
account of his alleged injury. Moreover, he failed to express an opinion as to the cause of
appellant’s diagnosed condition. The Board has long held that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value.4
On January 28, 2008 Dr. Le diagnosed paranoid schizophrenia and stress at work. In
response to a question regarding appellant’s current mental status, he replied that appellant “was
very anxious and paranoid, his improvement to be determined.” To the extent that Dr. Le’s
report failed to express an opinion on the issue of causal relationship, it lacks probative value.
Although he made a vague reference to what may be interpreted as work-related stress, Dr. Le
failed to identify any specific work factor which he found to be the cause of appellant’s
diagnosed condition, and did not provide a clear opinion that appellant’s stress condition was
related to the specific accepted employment factors, rather than to general perceptions of
harassment, or events that were not job related, nor did he explain how the accepted work factor
caused or exacerbated appellant’s condition. Medical conclusions unsupported by rationale are
of diminished probative value.5
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms and contained test results, diagnosis, treatment and
doctor’s opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how appellant’s claimed condition was caused or
aggravated by accepted factors of his employment, appellant has not met his burden of proof to
establish that he sustained an emotional condition in the performance of duty causally related to
factors of employment.
CONCLUSION
Appellant failed to meet his burden of proof to establish that he sustained an emotional
condition in the performance of duty on January 6, 2008.

4

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

5

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

4

ORDER
IT IS HEREBY ORDERED THAT the October 22 and February 26, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5