United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-556
Issued: June 5, 2008

Case Submitted on the Record

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

JURISDICTION
On December 20, 2007 appellant filed a timely appeal from an October 26, 2007 decision
of the Office of Workers’ Compensation Programs denying her occupational disease claim.
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 has established that she sustained a bilateral knee
condition in the performance of duty.
FACTUAL HISTORY
On August 16, 2007 appellant, then a 65-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained advanced osteoarthritis of both knees on or before
August 2, 2007. She attributed her condition to prolonged standing, walking back and forth on a

concrete floor while distributing mail and lifting heavy trays of mail. Appellant stopped work on
August 8, 2007. The record does not indicate if she returned to work.1
In an August 2, 2007 report, Dr. David W. Huang, an attending Board-certified
orthopedic surgeon, noted a history of bilateral knee pain and osteoporosis.2 On examination and
by x-ray, he found advanced degenerative osteoarthritis of both knees with effusion and severe
genu varus. Dr. Huang recommended bilateral knee replacements.
In a September 11, 2007 letter, the Office advised appellant of the type of medical and
factual evidence needed to establish her claim. The Office explained the critical need for a
rationalized report from her attending physician explaining how and why the identified work
factors would cause or contribute to the claimed condition. The Office cautioned that
Dr. Huang’s report did not contain such rationale.
In reports from August 8, 1996 to June 15, 2007, Dr. Ming-Chang Hsu, an attending
general practitioner, diagnosed progressive degeneration and chondromalacia of the left knee
with tendinitis of both knees. She noted that prolonged standing caused left knee pain and
swelling.
In an October 3, 2007 report, Dr. Erik Zeegen, an attending Board-certified orthopedic
surgeon, noted a history of bilateral knee pain, worse when climbing stairs, standing and
walking. He obtained x-rays showing a bone on bone medial collapse in both knees,
degenerative cysts, spurs and chondromalacia. Dr. Zeegen diagnosed primary osteoarthritis of
both knees. He recommended bilateral knee replacements.
By decision dated October 26, 2007, the Office denied appellant’s claim on the grounds
that causal relationship was not established. The Office accepted appellant’s account of her
work duties as factual. The Office found, however, that appellant submitted insufficient
rationalized medical evidence explaining how and why the identified work factors would cause
or contribute to bilateral arthritis of the knees. The Office noted that it advised appellant by
letter dated September 11, 2007 of the need for medical rationale supporting the claimed causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, 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
1

Appellant was granted light duty from April 16 to June 15, 2007. In an August 7, 2007 letter, the employing
establishment stated that it had no light-duty work within her limitations.
2

Dr. Huang obtained bone density testing on August 9, 2007 showing osteoporosis of the lumbar spine and
normal bone density in the left hip.
3

5 U.S.C. §§ 8101-8193.

2

compensation is claimed are causally related to the employment injury.4 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.5
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) 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 causal relationship is generally 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 medial certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
Appellant claimed that she sustained bilateral knee osteoarthritis in the performance of
duty. Dr. Huang and Dr. Zeegen, both attending Board-certified orthopedic surgeons, diagnosed
advanced osteoarthritis of both knees. Appellant has thus met the first element of her burden of
proof by establishing the presence of the claimed condition. The Office accepted that appellant’s
duties as a mail clerk required prolonged standing, walking and lifting heavy trays of mail.
Appellant has thus met the second element of her burden of proof, as she established the asserted
work factors as factual. To meet the third element, she must submit sufficient medical evidence
to establish the claimed causal relationship between the diagnosed bilateral knee osteoarthritis
and the accepted work factors.
Dr. Huang submitted an August 2, 2007 report describing the advanced deterioration of
both knees and recommending bilateral total arthroplasties. In an October 3, 2007 report,
Dr. Zeegen made similar findings and also recommended bilateral knee replacements. However,
Dr. Huang and Dr. Zeegen did not explain how the accepted work factors would cause or
aggravate osteoarthritis of the knee. Their opinions are insufficiently rationalized to meet
appellant’s burden of proof in establishing causal relationship.7
4

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

5

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

6

Solomon Polen, 51 ECAB 341 (2000).

7

Deborah L. Beatty, 54 ECAB 340 (2003) (medical reports not containing rationale on causal relationship are
entitled to little probative value).

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Appellant also submitted reports from Dr. Hsu, an attending general practitioner,
diagnosing tendinitis and chondromalacia of the left knee. She also stated that prolonged
standing caused left knee pain and swelling. However, Dr. Hsu did not explain the
pathophysiologic reasons why prolonged standing at work would cause or aggravate the claimed
osteoarthritis. Dr. Hsu’s opinion is thus insufficient to establish causal relationship.8
The Board notes that appellant was advised by letter dated September 11, 2007 of the
need to submit rationalized medical evidence from her attending physician supporting causal
relationship. However, appellant did not submit such evidence.
Appellant has failed to meet her burden of proof. She submitted insufficient rationalized
medical evidence to establish that the claimed bilateral knee condition was caused or aggravated
by the accepted work factors.
CONCLUSION
The Board finds that appellant has not established that she sustained a bilateral knee
condition in the performance of duty as there is insufficient rationalized medical evidence to
establish the causal relationship asserted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 26, 2007 is affirmed.
Issued: June 5, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
8

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Englishtown, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1193
Issued: December 9, 2011

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant, through his attorney, filed a timely appeal from an
October 21, 2010 decision of the Office of Workers’ Compensation Programs (OWCP) denying
his disability claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability for seven
intermittent days from September 27 to November 8, 2008.
On appeal his attorney states that appellant has been compensated for all claimed periods
but the dates September 27 and 28, October 20, 21 and 22, and November 7 and 8, 2008, and is
entitled to wage-loss compensation for these dates due to the accepted employment injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 2005 appellant, then a 54-year-old letter carrier, filed an occupational disease
claim alleging that his employment duties caused problems in both shoulders and elbows and in
the right foot. OWCP accepted an aggravation of bilateral wrist arthritis, tendinitis and bursitis
of both shoulders and myositis of the right foot.2 On March 9, 2010 appellant was granted a
schedule award for an eight percent impairment of the right upper extremity, for a total of 24.96
weeks, to run from April 22 to October 13, 2009.3
Appellant filed claims for intermittent compensation from December 31, 2007 to
December 31, 2009. He submitted medical reports from Dr. Edmund R. Kappy, an attending
Board-certified orthopedic surgeon. In a July 23, 2007 report, Dr. Kappy described appellant’s
job duties, stating that he had been put on restrictions but still delivered mail. He diagnosed
arthritis of the wrist, shoulder impingement syndrome, carpal tunnel syndrome, ulnar tunnel
syndrome and problems with cervical radiculopathy, all caused by overuse syndrome at work.
Dr. Kappy opined that appellant would have to take days off from work “in order to be able to
get himself through.” On January 6, 2009 counsel submitted a single page from a medical report
dated December 18, 2008 of Dr. Kappy. Dr. Kappy noted that appellant had chronic and
permanent arthritis in multiple joints, tendinitis in the shoulders and neck, shoulder bursitis,
neuritis of the wrists caused by arthritis, and myositis in several areas of the upper extremity and
foot, all related to work duties. He stated that appellant was disabled from his regular postal
duties.
In a March 23, 2009 report, Dr. Kappy stated that he had not seen appellant since
July 2007 and could not say whether he was better or worse. In a May 7, 2009 report, he
provided examination findings and diagnosed cervical radiculopathy and plantar fasciitis of the
right foot. By report dated June 9, 2009, Dr. Kappy advised that he had seen appellant through
the years for problems with his hands, shoulder, neck, feet and back, for what had developed into
systemic arthritis of different areas. He noted that appellant also had bilateral carpal tunnel
syndrome for which he had surgery on the left in March 2004. Dr. Kappy reported that appellant
had recently retired and stated that he treated appellant through the years for carpal tunnel
syndrome, radicular symptoms from the cervical spine and a tardy ulnar palsy of the left elbow.
He concluded that appellant had a multitude of different problems, made worse by his arthritis,
and it would be difficult for him to perform heavy repetitive activities at work.
Appellant submitted impairment evaluations from Dr. Nicholas Diamond, an osteopath,
dated June 1, 2005 and April 22, 2009.

2

The instant claim was initially denied in decisions dated November 9, 2005, February 8 and December 21, 2007,
and March 18, 2009.
3

The record indicates that appellant has an accepted left upper extremity claim, adjudicated under file number
xxxxxx198, for which he received a schedule award for a 13 percent permanent impairment. He also received a
schedule award for three percent impairment of the right upper extremity and three percent impairment of the left
upper extremity under file number xxxxxx078, and has an accepted condition of tendinitis of the left wrist under file
number xxxxxx819.

2

By letter dated March 26, 2010, the employing establishment advised that appellant did
not notify the employing establishment that any absences were related to an injury, that he
worked until the date of his voluntary retirement on December 31, 2008 and that he worked
overtime on occasion. It attached letters dated August 15 and September 13, 2005 that indicated
that appellant owned a tree and landscape business.
In an April 9, 2010 decision, OWCP denied appellant’s claim for intermittent wage loss
for the period December 2007 to December 2008 finding that the medical evidence of record did
not support the periods of total disability claimed.
On April 26, 2010 appellant requested a hearing, that was held telephonically on
August 3, 2010. His attorney stated that appellant was claiming wage loss for the dates
August 26, 27 and 28, September 27, 28 and 29, October 20, 21 and 22, and November 7 and 8,
2008 only. Appellant testified that it was difficult to work beginning in August 2008 due to pain
in both shoulders, both wrists and his right foot, and that he saw two physicians, a Dr. Costoro
and a Dr. Abbasi, who told him not to work. He was given 30 days to submit additional medical
information.
On September 2, 2010 the employing establishment advised that September 28 and
October 21, 2008 were not scheduled workdays for appellant and that he was on leave-withoutpay status on the additional nine days claimed.
In an October 21, 2010 report, Dr. Kappy noted appellant’s complaint of multiple joint
pain getting worse. He provided physical examination findings and diagnosed systemic arthritis.
By decision dated October 21, 2010, an OWCP hearing representative affirmed the
April 9, 2010 decision on the grounds that the medical evidence did not establish that appellant
was disabled due to the accepted conditions for the claimed dates.
LEGAL PRECEDENT
Under FECA the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.4 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA,5 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.6 Whether a particular injury causes an employee to be disabled

4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

6

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

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for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.7
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.8 Furthermore, it is well established that medical conclusions
unsupported by rationale are of diminished probative value.9
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.10 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.11 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12
ANALYSIS
The accepted conditions in this case are aggravation to bilateral wrist arthritis, tendinitis
and bursitis of both shoulders and myositis of the right foot. Appellant is claiming wage loss for
the following dates: September 27 and 28, October 20, 21 and 22 and November 7 and 8, 2008.
The Board finds that he did not meet his burden of proof to establish that he was totally disabled
due to the accepted conditions on the claimed dates because there is no medical evidence to
support disability.
In a July 23, 2007 report, Dr. Kappy advised that appellant would have to take days off
from work “in order to be able to get himself through.” However, he did not provide any
rationale to explain this conclusion. The only medical report of record dated in the year 2008 is
the third page of a December 18, 2008 report in which Dr. Kappy indicated that appellant had
chronic and permanent arthritis in multiple joints in this body, tendinitis in the shoulders and
neck, shoulder bursitis, neuritis of the wrists caused by arthritis, myositis in several areas of his
upper extremity and foot, all related to his work duties. He stated that appellant was disabled
7

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

8

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

9

Jacquelyn L. Oliver, 48 ECAB 232 (1996).

10

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

11

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

12

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

4

from his regular postal duties. This report is dated after the period of claimed wage loss. In a
March 23, 2009 report, Dr. Kappy stated that he had not seen appellant since July 2007 and
could not say whether he was better or worse. He also reported on June 9, 2009 that it would be
difficult for appellant to perform heavy repetitive activities at work, but this too is after the
period of claimed intermittent compensation. The Board has long held that medical conclusions
unsupported by rationale are of diminished probative value and insufficient to establish causal
relationship.13 Dr. Kappy’s opinion is therefore insufficient to establish that appellant was
totally disabled for the claimed seven days.
Appellant referenced two additional physicians at the hearing, Drs. Costoro and Abbasi.
The record, however, contains no reports from either physician. Additionally, the medical
evidence of record includes impairment evaluations from Dr. Diamond, an osteopath, dated
June 1, 2005 and April 22, 2009. The 2005 report predates the period of claimed disability by
more than three years and is therefore irrelevant. The 2009 report does not discuss appellant’s
work capability for the claimed dates or any other period.14 It too is insufficient to establish
entitlement to disability compensation for the claimed dates.
None of the medical reports of record address appellant’s ability to work on the seven
dates in question. As noted above, the Board will not require OWCP to pay compensation for
disability in the absence of medical evidence that directly addresses the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.15 There is no medical evidence of
record in this case that meets this requirement.
As there is no rationalized medical evidence contemporaneous with the periods of
claimed disability, appellant failed to meet his burden of proof to establish entitlement to total
disability compensation for the dates September 27 and 28, October 20, 21 and 22 and
November 7 and 8, 2008.16
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he was entitled to wage-loss
compensation for the dates September 27 and 28, October 20, 21 and 22 and November 7
and 8, 2008.

13

See Albert C. Brown, 52 ECAB 152 (2000).

14

William A. Archer, supra note 8.

15

Id.

16

See Tammy L. Medley, supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 9, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
V.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pontiac, MI, Employer
__________________________________________

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

Docket No. 16-1175
Issued: February 6, 2017

Case Submitted on the Record

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

JURISDICTION
On May 11, 2016 appellant filed a timely appeal from an April 4, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of
disability commencing on April 19, 2014 causally related to her accepted employment injuries.
On appeal, appellant contends that her physicians submitted sufficient medical evidence
to support her reduced work hours. She also contends that she sustained a recurrence of
disability because the employing establishment had no work available within her restrictions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2014 appellant, then a 52-year-old computer forwarding system clerk,
filed an occupational disease claim (Form CA-2) alleging that she sustained right wrist and right
hand injuries as a result of keying flats into a “CRS” unit. She advised that she first became
aware of her conditions and their relation to her federal employment on December 7, 2013.
On March 6, 2014 the employing establishment informed OWCP that appellant was
performing full-duty work, eight hours a day with restrictions related to her right wrist. Also, on
March 6, 2014 OWCP accepted appellant’s claim for right wrist sprain and other tenosynovitis
of the right wrist and right hand.
On April 16, 2014 appellant filed a claim for compensation (Form CA-7) for leave
without pay (LWOP) from April 16 through 18, 2014. In a time analysis form (Form CA-7a)
dated April 21, 2014, she claimed 2.39 hours of LWOP on April 16, 2014 due to her right wrist
condition and eight hours of LWOP on both April 17 and 18, 2014 because she could not work
according to her physician.
In a March 18, 2014 order, Dr. Hilda C. Ferrarer-Blair, an attending Board-certified
family practitioner, diagnosed wrist pain and referred appellant to physical therapy. In an
April 18, 2014 letter, she opined that appellant could work no more than four hours a day with
restrictions. An April 28, 2014 progress note provided examination findings and a clinical
impression of pain, tenderness, and decreased range of motion and strength of the right wrist
consistent with tendinitis.
On April 30, 2014 appellant accepted the employing establishment’s April 29, 2014 offer
of a modified clerk assignment. The assignment was four hours a day with restrictions.
On May 2, 2014 appellant filed a claim for compensation (Form CA-7) for LWOP from
April 19 to May 2, 2014. In a Form CA-7a of the same date, she claimed 40.01 hours of LWOP
during the claimed period as she was medically restricted to working four hours a day.
By letter dated May 13, 2014, OWCP advised appellant of the deficiencies of her claim
and requested that she respond to its inquiries.
On May 16 and June 2, 2014 appellant filed CA-7 forms for LWOP from May 3
to 30, 2014. In a Form CA-7a dated May 16, 2014, she claimed 20 hours of LWOP from May 3
to 9, 2014 because she was medically restricted to working four hours a day and 40 hours of
LWOP from May 10 to 16, 2014 because no work was available.
In response to OWCP’s May 13, 2014 development letter, appellant attributed her
claimed recurrence of disability to typing and copying nixie letters, forms, flats, parcels, and
moving first class mail. She also described her right wrist symptoms.
In letters dated January 20 to June 2, 2014, Dr. Ferrarer-Blair reiterated her diagnoses of
right wrist pain and tendinitis and her opinion that appellant could work no more than four hours
a day with restrictions. She noted that her repetitive work duties would continue to exacerbate
her symptoms. Dr. Ferrarer-Blair related that present repetitive motion, even with weight
2

restrictions and hour restrictions, had impacted the inflammation of appellant’s wrist and
resulting pain. She concluded that appellant was unable to perform jobs using her hands and
wrists, especially any type of repetitive motion.
On June 13 and 27 and July 11 and 28, 2014 appellant filed CA-7 forms for LWOP from
May 31 to July 25, 2014.
A June 19, 2014 progress note addressed appellant’s right wrist physical therapy. In
letters dated June 24 and July 8, 2014, she reiterated that appellant could return to light-duty
work for four hours a day with restrictions.
In progress notes dated May 29 to June 12, 2014, Lisa Schliker, an occupational therapist,
addressed appellant’s right wrist and hand treatment.2
A June 16, 2014 hospital report indicated that appellant was evaluated for hand joint pain.
She was diagnosed as being obese and having unspecified essential hypertension, chronic back
pain greater than three months duration, and right wrist pain and tendinitis.
In a July 31, 2014 decision, OWCP denied appellant’s recurrence claim because the
medical evidence of record failed to establish disability beginning April 19, 2014 due to a
material change or worsening of her accepted work-related injuries.
OWCP subsequently received progress notes dated May 23 and July 8, 2014, from
Dr. Ferrarer-Blair who examined appellant and diagnosed bilateral wrist pain and tendinitis,
hyperlipemia, and right de Quervain’s tenosynovitis.
In a July 8, 2014 progress note, Dr. Amir Ghaznavi, a plastic surgeon, reported
appellant’s history of injury and medical treatment. He provided findings on physical
examination and assessed right de Quervain’s tenosynovitis, carpometacarpal (CMC) arthritis,
and right wrist pain.
On September 22 and October 3, 2014 appellant filed CA-7 forms for LWOP from
September 18 to November 14, 2014. In a Form CA-7a dated September 19, 2014, she claimed
three hours to attend therapy on September 18, 2014. In a Form CA-7a dated November 14,
2014, appellant claimed 3.18 hours of LWOP on November 3, 2014 and 2.97 hours of LWOP for
therapy.3
In a March 24, 2014 progress note and September 18, 2014 physician’s order,
Dr. Ferrarer-Blair reiterated her diagnosis of right wrist sprain and tenosynovitis.
In a January 6, 2015 letter, Dr. Pete K. Janevski, a Board-certified general surgeon who
specializes in hand surgery, advised that appellant had right wrist de Quervain’s tendinitis. He
noted that cortisone injections had provided temporary relief and improvement, but
2

Ms. Schliker continued submitting records regarding appellant’s status into the record of evidence.

3

The record indicates that OWCP paid appellant intermittent wage-loss compensation, due to physical therapy
appointments, for 34.39 hours from September 18 to November 6, 2014.

3

recommended surgery for release of the right wrist de Quervain’s tendinitis. Dr. Janevski noted
that appellant would be off work for two weeks after her surgery.
On January 26, 2015 appellant requested reconsideration of the July 31, 2014 decision.
In a January 6, 2015 letter, Dr. Ferrarer-Blair noted appellant’s history of injury and
medical treatment and her prior examination findings. She maintained that appellant’s initial
injury was from repetitive copying, pulling, lifting, and typing. Overuse of appellant’s two
major tendons and swelling of the covering/sheath over these tendons resulted in tendinitis.
Specifically, Dr. Ferrarer-Blair noted that it was the forced and repetitive movement from
copying, pulling, and pushing with use of appellant’s wrist that resulted in her condition. Her
inflammation and tendinitis progressed due to her continued performance of the repetitive work
duties. Dr. Ferrarer-Blair recommended surgery as there was no significant improvement with
physical therapy. In progress notes dated April 14, October 3, 2014, she provided examination
findings and again diagnosed right wrist tendinitis and right de Quervain’s tenosynovitis. In
addition, Dr. Ferrarer-Blair diagnosed right wrist sprain, and left wrist and back pain. She
recommended reduced hours of work regarding appellant’s left wrist.
In a January 6, 2015 progress note, Dr. Janevski reported examination findings and
reiterated his diagnosis of right wrist de Quervain’s tendinitis and surgery recommendation. He
also diagnosed mild right and left thumb CMC arthritis. In an April 7, 2015 letter and April 9,
2015 progress note, Dr. Janevski noted that appellant’s surgery was scheduled for June 2, 2015
and that she would be off work through June 16, 2015.
In a June 2, 2015 progress note, Dr. Janevski noted that he performed a release of right
wrist de Quervain’s tendinitis. In a June 9, 2015 letter, he advised that appellant may return to
work on June 17, 2015 with a lifting restriction. By letter dated June 23, 2015, Dr. Janevski
noted that appellant could not work from June 22 to 29, 2015.4
A June 23, 2015 progress note cosigned by Dr. Thaddeus Boucree, II, a plastic and
reconstructive surgeon, and Dr. Janevski, indicated that appellant received a cortisone injection
for her postoperative pain from right de Quervain’s tendinitis.
By decision dated August 14, 2015, OWCP denied modification of its July 31, 2014
decision. It found that the medical evidence submitted was insufficient to show that appellant
was unable to work, due to her accepted condition, during the claimed period.
In a September 1, 2015 progress note, Dr. Janevski examined appellant and noted that she
had been on restricted work duty. He believed that her right wrist condition had resolved and
that she could return to her regular work with no restrictions as of September 2, 2015.
By letter dated December 7, 2015, appellant requested reconsideration of the August 14,
2015 decision.

4

The record indicates that OWCP authorized the June 2, 2015 surgery. It also reveals that OWCP paid disability
compensation for the periods June 3 to 15 and June 22 to 29, 2015.

4

E-mails dated December 7 and 8, 2015 from the employing establishment addressed
light-duty work performed by appellant in April 2015 and the availability of such work in
May 2015.
In a September 1, 2015 letter, Dr. Janevski reiterated his opinion that appellant could
return to work without restrictions as of September 2, 2015.
By decision dated April 4, 2016, OWCP denied modification of its August 14, 2015
decision.5 It found that the evidence of record failed to explain why appellant’s increased work
restrictions beginning on April 19, 2014 were causally related to her accepted employment
injuries.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness, without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.6
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish, by the weight of the reliable, probative and substantial evidence, a
recurrence of total disability and an inability to perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.7 To establish a change
in the nature and extent of the injury-related condition, there must be a probative medical
opinion, based on a complete and accurate factual and medical history, as well as supported by
sound medical reasoning, that the disabling condition is causally related to employment factors.8
In the absence of rationale, the medical evidence is of diminished probative value.9 While the
opinion of a physician supporting causal relationship need not be one of absolute medical

5

On April 4, 2016 OWCP advised appellant that her claim was also accepted for radial styloid tenosynovitis.

6

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
7

A.M., Docket No. 09-1895 (issued April 23, 2010); Terry R. Hedman, 38 ECAB 222 (1986).

8

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

9

Id.; Robert H. St. Onge, 43 ECAB 1169 (1992).

5

certainty, it must not be speculative or equivocal. The opinion should be expressed in terms of a
reasonable degree of medical certainty.10
ANALYSIS
The Board finds that appellant has failed to establish a recurrence of total disability
commencing on April 19, 2014 causally related to the accepted employment injuries.
OWCP has accepted that appellant sustained right wrist sprain, other tenosynovitis of the
right wrist and right hand, and right radial styloid tenosynovitis due to her repetitive work duties.
As of March 6, 2014 appellant was performing full-duty work, eight hours a day with
restrictions. She claimed disability compensation commencing on or about April 19, 2014,
stating that no work was available at the employing establishment within her restrictions. The
employing establishment offered appellant part-time modified-duty work based on the
restrictions of Dr. Ferrarer-Blair, her attending physician. Appellant further claimed a recurrence
of disability commencing on the same date noted above based on Dr. Ferrarer-Blair’s reduction
of her work hours.
Dr. Ferrarer-Blair’s reports do not contain a rationalized opinion explaining how
appellant had become disabled on intermittent dates commencing on April 19, 2014 due to a
worsening of her accepted work-related conditions. In reports dated January 20, 2014 to
January 6, 2015, she opined that appellant could work no more than four hours a day with
restrictions. Dr. Ferrarer-Blair diagnosed right wrist pain and tendinitis and restricted her from
using her hand and wrist to perform her repetitive work duties. She related that such duties
would continue to exacerbate inflammation of appellant’s wrist which resulted in her pain.
Dr. Ferrarer-Blair did not explain how appellant’s repetitive work duties exacerbated her
accepted employment-related conditions and resulted in the reduction of her work hours. The
Board has held that a medical opinion not fortified by medical rationale is of diminished
probative value.11 Dr. Ferrarer-Blair’s remaining reports addressed appellant’s right wrist, left
wrist, and back conditions and medical treatment. The Board notes that OWCP has not accepted
appellant’s claim for a left wrist or back condition. For conditions not accepted by OWCP as
being employment related, it is the employee’s burden to provide rationalized medical evidence
sufficient to establish causal relation, not OWCP’s burden to disprove such relationship.12
Dr. Ferrarer-Blair provided no medical rationale explaining how appellant’s conditions were
caused or related to the accepted employment injuries. The Board has held that medical
evidence offering no opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.13

10

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

11

See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

12

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

6

Similarly, the reports and progress notes of Dr. Ghaznavi and Dr. Janevski are of limited
probative value. The physicians found that appellant had right de Quervain’s tenosynovitis, right
and left thumb CMC arthritis, and right wrist pain, but did not explain how her right and left
thumb condition, which had not been accepted by OWCP, was caused or contributed to by the
accepted employment injuries.14 Further, Dr. Ghaznavi did not provide an opinion addressing
whether appellant was totally disabled during the claimed period due to the accepted
employment injuries.15 Reports from Dr. Janevski beginning June 9, 2015, do not address the
period at issue and indicate that appellant could work. Likewise, Dr. Boucree’s June 23, 2015
progress note addressed his and Dr. Janevski’s treatment of appellant’s postoperative pain from
right de Quervain’s tendinitis. He did not offer an opinion stating that she was totally disabled
during the claimed period due to the accepted employment injuries.16
The progress notes and reports from Ms. Schliker, an occupational therapist, are
insufficient to establish appellant’s claim as they were not signed by a physician. An
occupational therapist is not considered a physician as defined under FECA, therefore, her
opinion is of no probative value.17 Thus, the medical evidence of record fails to support that
appellant developed left lateral epicondylitis as a result of his federal employment duties.
Appellant failed to submit sufficiently rationalized medical evidence establishing that her
disability commencing on April 19, 2014 resulted from the residuals of her accepted injuries.18
The Board therefore finds that she has not met her burden of proof.19
On appeal, appellant contends that her physicians submitted sufficient medical evidence
to support her reduced work hours. For the reasons stated above, there is no rationalized medical
evidence to establish a causal relationship between the reduction of appellant’s work hours
resulting in her claimed disability commencing on April 19, 2014 and her accepted employment
injuries.
Appellant also contends that she sustained a recurrence of disability because the
employing establishment had no work available within her restrictions. As discussed above,
there is no evidence that no work was made available within her restrictions.

14

Id.

15

Id.

16

Id.

17

5 U.S.C. § 8102(2) of FECA provides as follows: (2) “physician” includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. In J.J., Docket No. 15-0727 (issued July 16, 2015) that Board explained that the reports from
appellant’s occupational therapist have no probative medical value, as occupational therapists are not considered
physicians as defined under FECA.
18

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

19

Tammy L. Medley, 55 ECAB 182 (2003).

7

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 meet her burden of proof to establish a
recurrence of disability commencing on April 19, 2014 causally related to her accepted
employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the April 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 6, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

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

Docket No. 18-0896
Issued: November 21, 2018

Case Submitted on the Record

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

JURISDICTION
On March 22, 2018 appellant filed a timely appeal from a November 29, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from the last merit decision dated September 7, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the November 29, 2017 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 12, 2017 appellant, then a 57-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on June 27, 2017, he yanked his right shoulder to avoid a wasp that
flew out of a mailbox. He stopped work on June 28, 2017 and returned on July 3, 2017.
In support of his claim, appellant submitted a July 30, 2017 physical therapy referral form
and a June 30, 2017 patient status report form with diagnoses of right rotator cuff tendinitis and
shoulder impingement. He also submitted a supplemental statement dated July 12, 2017
describing the incident.
By letter dated July 27, 2017, the employing establishment controverted the claim. It
contended that the case record lacked factual evidence sufficient to establish that the incident
occurred as alleged and lacked medical evidence sufficient to establish causal relationship between
the alleged incident and appellant’s claimed medical condition.
By development letter dated July 31, 2017, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of medical and factual
evidence required to establish his claim. OWCP afforded appellant 30 days to submit the requested
information.
By decision dated September 7, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the June 27, 2017 employment incident
occurred as alleged.
On November 27, 2017 appellant requested reconsideration.
By decision dated November 29, 2017, OWCP denied appellant’s request for
reconsideration as he had not raised any substantive legal question or submitted any new and
relevant evidence with his request.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
3
5 U.S.C. § 8128(a); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549
(issued February 23, 2010); W.C., 59 ECAB 372 (2008).

2

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.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 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.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration. However, he did not show that OWCP
erroneously applied or interpreted a specific point of law nor did he advance a relevant legal
argument not previously considered by OWCP. Consequently, appellant was not entitled to a
review of the merits based on the first and second above-noted requirements under 20 C.F.R.
§ 10.606(b)(3).
With regard to the third requirement, OWCP did not receive additional evidence with
appellant’s form requesting reconsideration. Accordingly, the Board finds that appellant has not
submitted relevant and pertinent new evidence not previously considered by OWCP.
The Board finds, therefore, that appellant has not met any of the regulatory requirements
under section 10.606(b)(3) and OWCP properly declined his request for reconsideration of the
merits of his claim under 5 U.S.C. § 8128(a).8
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a).

6

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

7

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

8
D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58
ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the decision dated November 29, 2017 of the Office
of Workers’ Compensation Programs is affirmed.
Issued: November 21, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.X., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rockaway Park, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0499
Issued: November 6, 2020

Case Submitted on the Record

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

JURISDICTION
On January 3, 2020 appellant, through counsel, filed a timely appeal from a July 22, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the July 22, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish cervical or lumbar
conditions causally related to the accepted August 7, 2018 employment incident.
FACTUAL HISTORY
On September 7, 2018 appellant, then a 41-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on August 7, 2018 she injured her lower back and legs
delivering heavy mail while in the performance of duty. She explained that she had just returned
to light-duty work two days prior to her injury.4
In a functional capacity evaluation (FCE) dated December 11, 2018, Dr. Ranga C. Krishna,
a Board-certified neurologist, noted that appellant had been involved in an incident on August 7,
2018 when a box fell off a shelf over her head. Appellant had related that her complaints were
exacerbated when her light-duty job was withdrawn and she returned to full-duty work.
Dr. Krishna diagnosed lumbar and cervical sprains, head injury, and bilateral shoulder sprains.
In a report dated April 3, 2019, Dr. Uel Alexis, Board-certified in pain medicine, noted that
appellant had been seen on that date for complaints of low back pain and neck pain. He stated that
the onset of the low back pain was sudden and had continued in a persistent worsening pattern for
eight months. Dr. Alexis related that appellant had sustained a neck injury at work, with onset
eight months prior. He provided physical examination findings and diagnosed low back pain and
cervical pain. Dr. Alexis opined with a “Yes” response to the questions that the accident described
by appellant was the competent medical cause of her conditions, and that her complaints were
consistent with the history of injury and objective findings. His impression was that appellant was
“moderately partially disabled 50-74 percent.”
In a form progress report and a narrative report, both dated April 8, 2019, Dr. Ayman Farag,
a Board-certified anesthesiologist, related that he had examined appellant for complaints of neck
and back pain. He noted that appellant had been in a work-related accident on August 7, 2018.
Dr. Farag summarized appellant’s physical examination findings and noted that a magnetic
resonance imaging (MRI) scan demonstrated herniated discs and cervical spinal stenosis at C4-5.
He diagnosed cervical spinal stenosis and cervical disc herniation. Dr. Farag checked a box
marked “Yes” indicating that the incident described by appellant was the competent cause of her
injury/illness.
In a development letter dated May 12, 2019, OWCP informed appellant that she had
submitted insufficient medical evidence to establish her claim. It advised her of the medical
evidence needed to establish her claim and afforded her 30 days to respond.
In a note dated August 10, 2018, Dr. Krishna stated that appellant had been under his care
since July 24, 2017 for complaints of persistent neck and lower back pain. He diagnosed cervical
and lumbar radiculopathy.

4

Appellant has a prior claim for a September 27, 2016 traumatic injury which OWCP accepted for left ankle sprain
under OWCP File No. xxxxxx083. OWCP has not administratively combined that claim with the current claim, File
No. xxxxxx400.

2

In a report dated August 23, 2018, Dr. Krishna noted that appellant had been seen on that
date for a neurological consultation. He stated that appellant had sustained a work injury on
August 7, 2018 and had not worked since August 8, 2018. Appellant had experienced persistent
low back problems, which she alleged were exacerbated because the employing establishment had
moved her from light duty to full duty. Dr. Krishna again related appellant’s physical examination
findings and diagnosed cervical and lumbar disc herniation, resulting in cervical and lumbar
radiculopathy and neuropathic pain syndrome.
On May 6, 2019 Dr. Krishna diagnosed pain in the left ankle and joints of the left foot and
radiculopathy of the cervical region. He explained that appellant required a compounded topical
treatment for these conditions.
By decision dated June 17, 2019, OWCP denied appellant’s claim, finding that she had not
submitted sufficient evidence to establish that her diagnosed medical conditions were causally
related to the August 7, 2018 accepted incident.
On July 15, 2019 appellant, through counsel, requested reconsideration. OWCP received
an April 9, 2018 electromyogram (EMG) and nerve conduction velocity (NCV) study
(EMG/NCV) interpreted by Dr. Krishna. Dr. Krishna observed that the EMG/NCV study revealed
evidence of a right median nerve neuropathy at the wrist, consistent with the clinical diagnosis of
carpal tunnel syndrome.
By decision dated July 22, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the

5

Id.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

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

3

time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment incident
identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical or
lumbar conditions causally related to the accepted August 7, 2018 employment incident.
On April 8, 2019 Dr. Farag noted that appellant had been in a work-related accident on
August 7, 2018. He diagnosed cervical spinal stenosis and cervical disc herniation. Dr. Farag
checked a box marked “Yes” indicating his opinion that the incident described by appellant was
the competent cause of her injury/illness. The Board has held that when a physician’s opinion on
causal relationship consists only of a checkmark on a form, without further explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.12 A
physician must provide a narrative description of the identified employment incident and a
reasoned opinion on whether the described incident caused or contributed to a diagnosed medical
condition. Dr. Farag did not provide a description of the August 7, 2018 employment incident and
did not provide medical rationale explaining how the diagnosed condition was related to the
accepted employment incident. His opinion is of limited probative value regarding causal
relationship.13
On August 10, 2018 Dr. Krishna stated that appellant had been under his care and treatment
since July 24, 2017 for complaints of persistent neck and lower back pain. He diagnosed cervical
and lumbar radiculopathy. On August 23, 2018 Dr. Krishna diagnosed cervical and lumbar disc
herniation, resulting in cervical and lumbar radiculopathy and neuropathic pain syndrome. On
May 6, 2019 he diagnosed cervical radiculopathy. In these reports, Dr. Krishna did not offer any
opinion as to the cause of appellant’s diagnosed conditions. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no

9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
11
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

O.M., Docket No. 18-1055 (issued April 15, 2020); Gary J. Watling, 52 ECAB 278 (2001).

13

B.M., Docket No. 19-1311 (issued August 17, 2020); K.B., Docket No. 19-0398 (issued December 18, 2019).

4

probative value on the issue of causal relationship.14 Therefore, these reports from Dr. Krishna
are insufficient to establish appellant’s claim.
On December 11, 2018 Dr. Krishna noted that appellant had been involved in an incident
on August 7, 2018 when a box fell off a shelf over her head. He diagnosed lumbar and cervical
sprain, a head injury, and bilateral shoulder sprain. As this report does not provide an opinion on
causal relationship between appellant’s diagnosed conditions and the accepted employment
incident, it is of no probative value and insufficient to establish the claim.15
In a report dated April 3, 2019, Dr. Alexis diagnosed low back pain and cervical pain. The
Board has explained that pain is not considered a diagnosis, as pain merely refers to a symptom of
an underlying condition.16 As such, this report is insufficient to establish appellant’s claim.
OWCP also received April 9, 2018 EMG/NCV which revealed evidence of a right median
nerve neuropathy at the wrist, consistent with the clinical diagnosis of carpal tunnel syndrome.
The Board has held, however, that diagnostic tests, standing alone, lack probative value as they do
not provide an opinion on causal relationship between the employment incident and the diagnosed
condition.17
As appellant has not submitted rationalized medical evidence to establish that her
diagnosed conditions were causally related to the accepted August 7, 2018 employment incident,
the Board finds that she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish cervical or
lumbar conditions causally related to the accepted August 7, 2018 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

15

Id.

16

M.V., Docket No. 18-0884 (issued December 28, 2018). The Board has consistently held that pain is a symptom,
not a compensable medical diagnosis. See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No.
08-1102 (issued October 10, 2008).
17

See R.L., Docket No. 20-0284 (issued June 30, 2020); C.T., Docket No. 20-0020 (issued April 29, 2020); J.M.,
Docket No. 17-1688 (issued December 13, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the July 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 6, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 11-748
Issued: September 8, 2011

Case Submitted on the Record

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

JURISDICTION
On February 3, 2011 appellant filed a timely appeal from a November 5, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his degenerative
disc disease at C5-6 with left-sided foraminal stenosis is causally related to his accepted
employment injury.
FACTUAL HISTORY
On August 30, 2010 appellant, then a 54-year-old fuel distribution systems worker, filed
a claim alleging that he sustained traumatic injury to his neck and right shoulder on July 26, 2010
1

5 U.S.C. § 8101 et seq.

as a result of his employment. He was driving his motor vehicle and swerved to avoid a humvee,
but struck equipment on the side of the road.
On September 9, 2010 OWCP requested additional evidence, including a medical report
containing a diagnosis of appellant’s condition and medical rationale explaining how the
condition was causally related to the July 26, 2010 employment incident. On September 20,
2010 appellant submitted a sworn statement, dated July 26, 2010, in which he again described
the incident. No additional evidence was received by OWCP.
By decision dated October 20, 2010, OWCP denied appellant’s claim on the grounds that
he had not submitted medical evidence sufficient to establish the fact of injury.
On October 28, 2010 appellant submitted an x-ray radiology report from Dr. Allen V.
Havener, a Board-certified radiologist, who noted mild spondylosis in the lower cervical spine,
without evidence of acute fracture.
In a September 21, 2010 report, Dr. J. Brett Dietze, a Board-certified neurosurgeon, noted
that appellant was involved in an on-the-job motor vehicle accident on July 26, 2010. He related
that the magnetic resonance imaging (MRI) scan of appellant’s cervical spine revealed moderate
degenerative disc disease at C5-6 with left-sided foraminal stenosis. Regarding the cause of
appellant’s diagnosed conditions, Dr. Dietze noted that appellant had presented with neck pain
after a motor vehicle accident. He stated: “[b]ased on his history, it [i]s suggested that he has a
musculoskeletal strain related to his accident. All of the pertinent findings on his MRI scans are
consistent with chronic degenerative disease but based on [appellant’s] history I do believe that
his current symptoms are related to his injury.”
Appellant requested reconsideration on October 25, 2010.
On November 1, 2010 appellant submitted his health unit record dated July 26, 2010,
which was signed by Dr. Sharon H. Evers, Board-certified in occupational medicine. Dr. Evers
diagnosed neck sprain, right, as well as a contusion with intact skin surface on the left forehead.
By decision dated November 5, 2010, OWCP modified the prior decision to accept the
claim for neck sprain and contusion of the left forehead. It denied appellant’s claim that his
degenerative disc disease at C5-6 and left-sided foraminal stenosis was causally related to the
accepted injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden to establish 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 timely filed, that an injury was sustained in the

2

5 U.S.C. §§ 8101-8193.

2

performance of duty as alleged and that any disability or medical condition for which
compensation is claimed is causally related to the employment injury.3
To establish a causal relationship between a claimant’s condition and any attendant
disability claimed and the employment event or incident, he must submit rationalized medical
opinion evidence based on a complete factual and medical background supporting such a causal
relationship. Rationalized medical opinion evidence is medical evidence which includes a
physician’s opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. 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.4
ANALYSIS
OWCP accepted that appellant was involved in a motor vehicle accident in the
performance of his federal employment on July 26, 2010 that caused a neck sprain and contusion
of the left forehead. The Board finds that he has not established that his degenerative disc
disease at C5-6 with left-sided foraminal stenosis is causally related to this injury.
The medical evidence of record lacks a rationalized opinion from a physician explaining
the causal relationship of appellant’s degenerative cervical disc disease to the accepted injury.
The Board finds that he has not met his burden of proof.
The health unit record dated July 26, 2010 from Dr. Evers referred to the motor vehicle
accident and diagnosed a neck sprain and forehead contusion, but did not reference appellant’s
cervical disc disease. Dr. Havener’s radiology report noted mild spondylosis in the lower
cervical spine, but offered no opinion regarding the cause of the condition. These reports are of
limited probative value in establishing causal relationship.
Dr. Dietze’s August 13, 2010 report diagnosed appellant with moderate degenerative disc
disease with left-sided foraminal stenosis. He stated that “based on appellant’s history, I do
believe that his current symptoms are related to his injury.” This diagnosis and opinion is of
limited probative value, however, as Dr. Dietze did not provide a rationalized or well-reasoned
opinion predicated upon a thorough review of appellant’s medical history. He did not explain
how the accepted injury was sufficient to contribute to the disc disease at C5-6. In lieu of a
probative medical opinion, Dr. Dietze made a conclusory statement concerning appellant’s
symptoms and causation. A physician’s opinion on the causal relationship between a claimant’s
disability and an employment injury is not dispositive simply because it is rendered by a
physician.5 The opinion of a physician supporting causal relationship must be based on a
3

Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404 (1997).

5

Jean Culliton, 47 ECAB 728, 735 (1996).

3

complete and accurate medical and factual background, supported with affirmative evidence and
explained by medical rationale.6 Because this statement is conclusory and fails to provide any
medical rationale as to how the accepted incident caused or aggravated appellant’s condition, it
is of little probative value and is insufficient to satisfy appellant’s burden of proof.
CONCLUSION
The Board finds that appellant failed to establish that his degenerative disc disease with
left-sided foraminal stenosis was caused by his accepted injury of July 26, 2010.7
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 8, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

Robert Broom, 55 ECAB 339 (2004); Patricia J. Glenn, 53 ECAB (2001).

7

Appellant may submit additional evidence, together with a written request for reconsideration to OWCP within
one year of the Board’s merit decision, pursuant to 5 U.S.C. § 8128(a) and C.F.R. §§ 10.606 and 10.607.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, ML SELLERS
FACILITY, San Diego, CA, Employer
__________________________________________

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

Docket No. 11-1249
Issued: March 12, 2012

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 April 27, 2011 appellant filed a timely appeal from a March 29, 2011 merit decision
of the Office of Workers’ Compensation Programs denying his emotional condition claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition in the
performance of duty.
FACTUAL HISTORY
On May 6, 2010 appellant, then a 57-year-old physician (associated area medical
director), filed an occupational disease claim alleging that his preexisting sleep apnea and
insomnia were caused or aggravated by unusual work stress. He first became aware of these
1

5 U.S.C. § 8101 et seq.

conditions on January 4, 2009 but did not realize the relationship to his employment until
September 15, 2009.
By correspondence dated June 28, 2010, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised as to the medical and factual
evidence to submit and given 30 days to provide additional information.
The employing establishment controverted appellant’s claim on the grounds that his sleep
apnea was due to anatomic abnormalities and unrelated to his employment. It attached a copy of
the responsibilities for an associate area medical director. The responsibilities relevant to
appellant’s allegations include fitness-for-duty examinations, ensuring confidentiality of medical
records and serve as medical consultant for district management implementing USPS National.
Appellant submitted documents and correspondence concerning the issues of release of a
classified fitness-for-duty report and a tuberculosis (TB) outbreak investigation and testing. He
also submitted the employing establishment procedure for the release or access to restricted
medical information and the security of medical information.
Appellant submitted e-mails in early November 2009 from Antoinette Simon, manager,
Labor Relations, and Mr. Jurach, a representative for an unidentified employee, concerning the
denial of a release of a fitness-for-duty report in an Equal Employment Opportunity (EEO) case.
Ms. Simon informed Mr. Jurach that the fitness-for-duty form he requested would not be
released to him due to the sensitive nature involved.
The record also contains e-mail correspondence from Deborah C. Winslow, an attorney
for the employing establishment, and from Michael W. Thomas, a union Labor Relations
manager, regarding the release of confidential medical information. In a December 23, 2009
letter, Ms. Winslow instructed appellant to release the requested medical documents to the
employee’s union representative immediately. Mr. Thomas informed Ms. Winslow in a followup e-mail that the union was not requesting a copy of the fitness-for-duty report, but that the
employee wanted a copy for a treating psychologist. He related that an agreement was reached
with the employee’s union representative that the report would be released to the employee’s
treating physician as defined by the Privacy Act. Mr. Thomas related that appellant was correct
in finding that a psychologist was not a physician for Privacy Act purposes.
In correspondence dated November 17, 2009 to Dr. Afrim Saba, appellant’s supervisor,
noted Dr. Saba’s instruction directing him “to provide a FFD [fitness-for-duty] report to the
union and EEO” as this was required by the Collective Bargaining Agreement. Appellant stated
that he felt uncomfortable with this instruction as he has “always held the opinion that releasing
such sensitive material to anyone other than a psychiatrist with a signed release was
contraindicated.” In concluding, he argued that “professional care for the individual preempts
the bargaining agreement” and was “reluctant to release this confidential material to lay
individuals.”
Appellant, in a November 24, 2009 letter, denied an employee’s request for access to a
fitness-for-duty report. The rationale he gave was that in his professional opinion release of this
information to anyone other than a practicing psychiatrist would reasonably endanger the

2

employee’s psychological and physical health and there was a possibility the safety of other
individuals may be impacted. Appellant related that he would release the information to a
practicing psychiatrist.
In a December 28, 2009 letter of instruction, Dr. Saba found appellant’s rationale for
failing to release a fitness-for-duty report to an employee’s psychologist was inadequate and
unacceptable. He noted that, after consultation with the legal department, it was determined that
a psychologist is considered a physician as defined by the Department of Labor (DOL) and the
employing establishment. As the report was to be released to a physician as defined by
regulations, Dr. Saba instructed appellant to immediately release the requested report to the
employee’s treating psychologist.
The record also contains an e-mail from Michael J. Marino, a nurse to Dr. Saba, stating
that Mr. Marino would follow Dr. Saba’s instructions to have appellant respond by e-mail to
Dr. Saba’s letter of construction.
A January 14, 2010 e-mail from Mr. Thomas related that he had discussed the release of
sensitive psychiatric information with Dr. Saba. Mr. Thomas stated that he informed Dr. Saba
that for Privacy Act purposes a psychologist is not considered a physician and that medical
psychiatric information can only be released to a qualified physician. He noted that the
definition of physician under the Privacy Act is different than the definition held under DOL or
the Family Medical Leave Act (FMLA).
In an April 12, 2010 certification of health care provider form, Dr. Farhad Shadan, a
treating Board-certified internist and sleep medicine specialist, diagnosed depression, insomnia,
severe headaches and fatigue. He opined that appellant’s work aggravated his preexisting
condition, which resulted in his being disabled from working for six months.
In a June 30, 2010 report, Dr. Christopher P. Khoury, a treating Board-certified
psychiatrist, attributed appellant’s insomnia beginning about March 15, 2010 to significant work
stresses. Appellant was subsequently incapacitated from working due to this condition, but
would be able to return to work provided there was a different supervisor.
On July 3, 2010 Dr. Michael Bowersox, a treating Board-certified family medicine
physician, who noted treating appellant for his sleep apnea. He related that appellant was seen
on March 16, 2010 for significant work stress which began the prior year and peak with an
alleged discriminatory firing of appellant’s remaining nurse. Appellant attributed his sleep
difficulty and insomnia to the stress from the firing of his nurse in addition to the stressful and
hostile work environment due to an abusive supervisor. Dr. Bowersox related that the objective
data showed a worsening of his sleep apnea in April 2010. Lastly, he noted that appellant had
been terminated which resulted in an improvement in his condition.
On July 16, 2010 appellant submitted e-mail correspondence between himself and
Dr. Saba regarding TB investigation and appellant’s responsibilities. Dr. Saba stated that
appellant and Mr. Marino “had taken on the role of the [p]ublic [h]ealth activities,” which
Dr. Saba described as unacceptable. Appellant was instructed to inform the local public health
department in writing about the test results, send Dr. Saba copies of all correspondence and

3

communication with the public health department and to refrain in the future from any public
health activities regarding TB testing.
By decision dated August 31, 2010, OWCP denied appellant’s claim on the grounds that
he failed to identify any compensable factors of employment. It found that he failed to identify
any specific employment factors which allegedly caused or aggravated his sleep apnea or
insomnia.
Subsequent to the August 31, 2010 decision, appellant submitted polysomnography test
results from April 29, 2009, January 24 and April 12, 2010 to show the worsening of his sleep
apnea due to excessive work stress.
On September 26 and 27, 2010 appellant requested an oral hearing before an OWCP
hearing representative. In his request for an oral hearing, he related that he was initially
diagnosed with obstructive sleep apnea in April 2009. At the time of his diagnosis, appellant’s
apnea-hypoxia index (AHI) was 17.2 or moderately severe and that by January 24, 2010 his AHI
had reduced to 4.4 due to sleep apnea treatment. However, by April 29, 2010 his AHI score had
risen to 22.1 as a result of the severe work stress induced by Dr. Saba.
A hearing was held on January 26, 2011 at which appellant testified that there was a TB
outbreak which he was trying to contain by finding the individuals with TB and identify the
original carrier. He related that Dr. Saba disagreed with this strategy and attempted to get him to
abandon his containment efforts. Appellant believed it was his duty as a physician to find the
original carrier and prevent further exposure or harm to nonexposed individuals. He noted that
Dr. Saba’s instructions to abandon this effort was very stressful. Specifically, Dr. Saba’s order
to appellant not to continue with the investigation and follow up was stressful. Appellant stated
that he continued working on the TB case and was issued a disciplinary letter by Dr. Saba. He
related that the public health department did not have the resources so he and his nurse
investigated to ensure the TB outbreak was contained. Appellant alleged that Dr. Saba’s threats
that he would lose his job if he continued with the TB investigation was stressful. He contended
that this was agency error as the public health department stated that it lacked the resources to
handle the TB outbreak and it would be irresponsible for him to follow Dr. Saba’s instructions
that he stop his investigation into the TB outbreak. Appellant next related that he sustained
stress as a result of the illegal firing of his last nurse, Mr. Marino, which resulted in him having
to assume some nursing duties until another nurse was hired. He related that he had trouble
keeping up with his own work duties in addition to the nursing duties he had to assume.
In a January 28, 2011 report, Dr. James R. Vevaina, a treating Board-certified internist,
diagnosed insomnia due to sleep apnea, which had been aggravated by work stress. He related
that appellant had been diagnosed with sleep apnea which had been abated with successful
therapy. However, as a result of excessive work stress in early 2010, appellant lost control of his
sleep apnea condition as shown by a March 12, 2010 polysomnogram which documented a rise
in his AHI level to pre-treatment levels. According to Dr. Vevaina, the rise in appellant’s AHI
levels to pretreatment levels documents an exacerbation of appellant’s sleep apnea due to work
stress. One stressful work event involved evaluation of 60 individuals who had been exposed to
TB by appellant. As these individuals had different shifts and days off, it made testing and
follow-up challenging. Dr. Vevaina noted that appellant assumed responsibility for an internal

4

investigation as the public health TB office relied on larger companies to perform the
investigation. Dr. Saba, appellant’s supervisor, ordered appellant persistently to cease the TB
investigation. Dr. Vevaina stated that “[a]s a result, [appellant] was in a serious professional and
ethical dilemma.” He opined that appellant correctly opted to complete the investigation and
ignore Dr. Saba’s orders to cease the investigation. In concluding, Dr. Vevaina opined that
appellant’s work-related stress caused by his supervisor aggravated his preexisting sleep apnea
and was a direct cause of his insomnia resulting in appellant’s incapacity to perform any work.
On February 23, 2011 OWCP received an undated e-mail from Dr. Saba and an undated
statement from appellant. Dr. Saba’s e-mail provided feedback to appellant regarding the TB
exposure and interaction with the local public health department. He stated that appellant had
exceeded his responsibility and the role of the employing establishment’s health department by
assuming duties which should be performed by the public health department.
In his statement, appellant reiterated his contention that his work stress had aggravated
his sleep apnea and caused his insomnia. He attributed his work stress to Dr. Saba’s obstruction
of a TB exposure investigation and mitigation program and the demand from Dr. Saba and the
employing establishment’s legal department that a protected psychiatric report be released to a
nonphysician.
By decision dated March 29, 2011, OWCP’s hearing representative affirmed the denial of
appellant’s claim.
LEGAL PRECEDENT
To establish a claim that she sustained an emotional condition in the performance of duty,
an employee must submit the following: (1) medical evidence establishing that he has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.3 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.4 Where the disability results from an
employee’s emotional reaction to his regular or specially assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.5 On the other
hand, the disability is not covered where it results from such factors as an employee’s fear of a

2

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

4

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

reduction-in-force or his frustration from not being permitted to work in a particular environment
or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.8 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.9
ANALYSIS
Appellant has not attributed his condition to the performance of his regular duties or any
special work requirement arising from his employment duties under Lillian Cutler, nor has he
implicated his workload as having caused or contributed to his emotional condition. He
contended that instructions and disciplinary actions given by Dr. Saba, his supervisor, regarding
the release of confidential medical information and his activities regarding a TB outbreak an
employing establishment facility constituted error and abuse on the part of Dr. Saba and were
thus compensable. However, the Board has held that administrative and personnel matters,
although generally related to the employee’s employment, are administrative functions of the
employer rather than the regular or specially assigned work duties of the employee and are not
covered under FECA absent a showing of error or abuse.10 Thus, the Board must initially review
whether the alleged incidents of employment are compensable factors under the terms of FECA.
Appellant alleged that Dr. Saba, his supervisor, acted abusively in issuing him a letter of
instruction on December 28, 2009 and giving him verbal instructions on November 17, 2009
regarding the release of confidential medical information. He also alleged that Dr. Saba acted
abusively in instructing him to cease his activities regarding TB testing and to refrain in the
future from assuming the role of the public health department. Appellant’s allegations relate to
administrative actions. As noted above, disability is not covered from reactions to actions taken
in an administrative capacity unless it is shown that the employing establishment erred or acted

6

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

7

D.L., 58 ECAB 217 (2006); Jeral R. Gray, 57 ECAB 611 (2006).

8

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

9

Robert Breeden, 57 ECAB 622 (2006).

10

See C.T., Docket No. 08-2160 (issued May 7, 2009); Jeral R. Gray, supra note 7.

6

abusively in its administrative capacity.11 On the other hand, the Board has held that where the
evidence establishes error or abuse on the part of the employing establishment, in what would
otherwise be an administrative matter, coverage will be afforded.12
In the December 28, 2009 letter, Dr. Saba instructed appellant to release confidential
medical evidence. He informed appellant that the rationale for failing to release fitness-for-duty
reports to the employee’s psychologist was inadequate and unacceptable. He instructed
appellant to immediately release the requested report to the employee’s treating psychologist. In
a November 17, 2009 letter, appellant had noted his disagreement with releasing medical
information to anyone other than a qualified medical or osteopathic physician. According to
employing establishment regulations a psychologist was not defined as a physician for Privacy
Act purposes. The record also contains December 23, 2009 e-mail correspondence from
Ms. Winslow, an attorney for the employing establishment, instructing appellant to release the
requested medical documents to the employee’s union representative and a follow-up e-mail to
Mr. Winslow’s e-mail from Mr. Thomas. Mr. Thomas stated that the union did not want the
requested medical report and noted that a psychologist was not a physician as defined for Privacy
Act purposes. The Labor Relation managers, Mr. Thomas and Ms. Simon, supported appellant’s
decision not to release medical information to a nonphysician. As noted by the e-mail of
Mr. Thomas, the employing establishment defined the term “physician” for psychiatric medical
reports under the Privacy Act differently than is defined by DOL or FMLA. The Board finds
that the evidence is sufficient to establish that appellant’s supervisor erred by instructing him to
release information to a nonphysician as defined by the employer’s implementing regulations.
Appellant has established a compensable factor with respect to this allegation.
As noted, appellant also attributed his condition to Dr. Saba’s instructions that he and his
staff cease any activities regarding TB testing as this was in the purview of the local health
department. He did not allege stress from performing TB testing but to Dr. Saba’s instructions
that he cease such work. The evidence of record does not establish that containment of the TB
outbreak or TB testing was part of appellant’s job duties. Appellant has submitted insufficient
evidence to establish that Dr. Saba acted unreasonably in instructing him to cease such activities.
His dissatisfaction with perceived poor management by Dr. Saba on TB containment and testing
is not compensable.13 Thus, appellant has not established a compensable factor of employment
with respect to this allegation.

11

See L.S., 58 ECAB 249 (2006) (Frustration from not being allowed to work in a particular position or to hold a
particular job, such as one that would allow an employee to take off a particular day, is not something that workers’
compensation covers. Any emotional condition arising therefrom, is simply considered self-generated); Robert
Breeden, supra note 9 (an employee’s dissatisfaction with perceived poor management constitutes frustration from
not being permitted to work in a particular environment or to hold a particular position and is not compensable);
Ronald K. Jablanski, 56 ECAB 616 (2005) (An employee’s frustration from not being permitted to work in a
particular environment or to hold a particular position is not compensable. Likewise, an employee’s dissatisfaction
with perceived poor management is not compensable).
12

See J.C., 58 ECAB 594 (2007); Jeral R. Gray, supra note 7; C.T., supra note 10.

13

V.W., supra note 2; Linda J. Edwards-Delgado, 55 ECAB 401 (2004) (mere disagreement with or dislike of
actions taken by a supervisor or manager will not be compensable absent evidence establishing error or abuse).

7

As appellant has established a compensable employment factor, OWCP must base its
decision on an analysis of the medical evidence. As OWCP found that there were no
compensable employment factors, it did not analyze or develop the medical evidence. The case
will be remanded to OWCP for this purpose.14 After such further development as deemed
necessary, OWCP should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that this case is in posture for decision. Appellant has substantiated a
compensable factor of employment necessitating review of the medical evidence by OWCP. On
remand, OWCP will consider the medical evidence and issue a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 29, 2011 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: March 12, 2012
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

14

See D.L., 58 ECAB 217 (2006); Lorraine E. Schroeder, 44 ECAB 323 (1992).

8