United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
TENNESSEE VALLEY AUTHORITY,
)
SHAWNEE FOSSIL PLANT, Paducah, KY,
)
Employer
)
___________________________________________ )
A.T., Appellant

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

Docket No. 15-1210
Issued: October 8, 2015

Case Submitted on the Record

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

JURISDICTION
On May 5, 2015 appellant, through counsel, filed a timely appeal from a January 29,
2015 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 met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty on January 30, 2014.
FACTUAL HISTORY
On February 18, 2014 appellant, then a 38-year-old assistant unit operator, filed a
traumatic injury claim alleging that on January 30, 2014 he injured the left side of his lower
1

5 U.S.C. § 8101 et seq.

back, the sacrum, and down the left leg when his feet slipped out from underneath him while at
work. He stated that, as he started falling, he grabbed a traveling screen to prevent hitting the
ground. Appellant explained that he was hanging there with his feet and legs out, which caused
him to bend and twist at his lower back. The employing establishment controverted the claim.
Appellant stopped work on February 7, 2014 and returned on February 18, 2014.
By letter dated March 4, 2014, OWCP advised appellant that additional factual and
medical evidence was needed. It advised that a physician’s opinion explaining how the reported
work incident caused or contributed to his condition was crucial to his claim.
OWCP received a February 3, 2014 report from a nurse practitioner who noted that
appellant presented with back pain of undetermined etiology. The nurse practitioner noted that
the condition was not related to a specific injury. In a February 10, 2014 report, however,
appellant indicated that his condition was due to repetitive activity and that he also remembered
that he hurt himself the previous week when he slipped on ice and caught himself without
completely falling.
In a February 4, 2014 disability certificate, Dr. K. Brandon Strenge, a Board-certified
orthopedic surgeon, placed appellant off work from February 7 to 18, 2014. A February 14,
2014 magnetic resonance imaging (MRI) scan report of the lumbar spine read by Dr. Brad
Williams, a Board-certified diagnostic radiologist, revealed a mild broad-based disc bulge at
L4-5, a broad-based disc bulge at L3-4, mild lumbar spondylosis, neuroforaminal stenosis on the
right side at L4-5 level, and no frank herniated nucleus pulposus.
On March 4, 2014 Dr. Jeffrey L. Riney, Board-certified in family medicine, noted that
appellant presented with back pain and related that his condition was “related to repetitive
activity (I remembered how I hurt my back last week when it was icy I slipped and caught
myself without completely falling. My feet went one way and upper body went another way.
The injury occurred five week(s) ago (January 30 had the fall) at work. The injury resulted from
a fall (slipped and nearly fell. I was able to catch myself.)” Dr. Riney diagnosed acute back pain
and acute left lumbar radiculopathy.
In a March 13, 2014 report, Dr. Strenge noted that appellant presented with complaints of
low back pain after slipping on ice about a month earlier. He noted findings and reported that
lumbar x-rays taken that day showed degenerative changes. Diagnoses included: low back pain;
left lower extremity radiculopathy; degenerative disc disease, worse at L3-4; bilateral recess
stenosis at L3-4; annular tear at L3-4; and chronic appearing compression deformity, superior
endplate at L4. Dr. Strenge also indicated that appellant had a history of neck pain, cervical
degenerative disc disease, and arm radiculopathy. He recommended additional MRI scan testing
as appellant’s pain complaints were “out of proportion.”
On March 26, 2014 Robin Daugherty, an employing establishment manager, controverted
the claim. Accompanying her controversion was a March 18, 2014 letter from Amy M. Cavitt, a
nurse with the employing establishment. Ms. Cavitt noted that on February 3, 2014, appellant’s
medical provider indicated that “the etiology is undetermined” and that the “condition is not
related to a specific injury.” She further noted that it was not until later visits to his healthcare
provider that appellant “remembers what happened, a near fall on ice.” Ms. Cavitt stated that

2

appellant had three other traumatic injury claims that were reported within eight hours or less of
the incidents. She advised that, after the alleged near fall, he worked his tour shift and did not
report the alleged incident to his supervisor for nine days.
In an April 1, 2014 lumbar spine MRI scan, Dr. Eric Shields a Board-certified
anesthesiologist, diagnosed multilevel degenerative disc disease and facet changes with
foraminal stenosis at the lower 3 levels, with the most significant foraminal narrowing on the
right at L4-5.
By decision dated April 14, 2014, OWCP denied appellant’s claim on the grounds that
the medical evidence did not establish an injury causally related to the January 30, 2014
employment incident.
On April 29, 2014 counsel for appellant requested a telephonic hearing before an OWCP
hearing representative, which was held on November 14, 2014.
In an April 10, 2014 report, Dr. Strenge noted that appellant returned for an evaluation of
back trouble. He explained that, while he previously treated appellant for cervical problems,
appellant had no prior history of back trouble or leg pain until January 30, 2014 when he slipped
at work. Dr. Strenge noted that appellant was able to partially catch himself but he developed
back pain, which he believed to be a muscle strain at the time. He explained that appellant
worked a couple more nights and stopped work on February 7, 2014 as he developed increasing
back pain as well as pain down the left leg. Appellant described the pain as “knife stabbing” and
on the left buttock, thigh and left leg, it was like a “blow torch and sledge hammer.” Dr. Strenge
advised that appellant was status post work injury on January 30, 2014. Diagnoses included: left
sided back pain; severe left buttock, thigh and leg radiculopathy; degenerative disc disease, L3-4,
L5-S1, worse at L3-4; mild facet arthropathy, L3-4, L5-S1; mild foraminal stenosis, worse on the
left L5-S1. Dr. Strenge noted that appellant had underlying degenerative changes from L3 to S1
with foraminal stenosis that was worse on the left at L5-S1, which he believed “was aggravated
and brought into disabling reality as a result of the work injury that occurred on January 30,
2014, he was previously asymptomatic.” He advised that he was placing appellant off work until
he was reevaluated and tested. In a separate report also dated April 10, 2014, Dr. Strenge placed
appellant off work due to his back.
In an April 14, 2014 report, Dr. Bradly Newcom, Board-certified in anesthesiology and
pain medicine and an associate of Dr. Strenge, noted that appellant slipped and fell at work on
February 1, 2014. He advised that appellant did not fall all the way to the floor because he
caught himself. Appellant related that he twisted after he caught himself and immediately felt
mild discomfort, although after awakening from sleep he was much worse. Dr. Newcom noted
that appellant described his pain as 10 out of 10 and constant. He advised that appellant tried
heat and ice, as well as muscle relaxants and a nonsteroidal, none of which helped. Dr. Newcom
explained that he would proceed with lumbar epidural steroid injections. He diagnosed lumbar
degenerative disc disease and lumbar neuritis. In an April 14, 2014 disability certificate,
Dr. Newcom, placed appellant off work until the trial of three epidurals was performed. On
April 22, May 6, and 21, 2014, he performed lumbar epidural steroid injections.

3

In a May 29, 2014 report, Dr. Strenge repeated his diagnoses and explained that there was
not much to offer for appellant. He noted that appellant had difficulty putting a shoe on his left
foot due to the pain and he could not wear a steel boot. Additionally, Dr. Strenge noted that
appellant felt that the pain in the left side of his back and left leg would prevent him from
performing his usual work duties. He recommended physical therapy and kept appellant off
work. OWCP received copies of previously submitted reports.
By operative report dated July 10, 2014, Dr. Melvin D. Law, Jr., a Board-certified
orthopedic surgeon, noted performing a lumbar microdiscectomy and foraminotomy at L5-S1,
left lateral approach.
On November 14, 2014 OWCP also received a February 20, 2014 statement from
appellant in which he described how his injury occurred on Thursday, January 30, 2014 between
10:00 p.m. and 11:00 p.m.
By decision dated January 29, 2015, an OWCP hearing representative affirmed the
April 14, 2014 decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

2

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

3

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

4

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

5

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

4

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
The record supports that on January 30, 2014 appellant slipped as alleged and caught
himself before falling to the ground. The Board finds, however, that the medical evidence does
not establish a causal relationship between the January 30, 2014 employment incident and
diagnosed medical conditions.
OWCP received several reports from Dr. Strenge. In his April 10, 2014 report,
Dr. Strenge noted that appellant was doing well with no prior history of back trouble or leg pain
until January 30, 2014 when he slipped at work. He noted findings and advised that appellant
had underlying degenerative changes from L3 to S1 with foraminal stenosis. Dr. Strenge opined
that this low back condition “was aggravated and brought into disabling reality as a result of the
work injury that occurred on January 30, 2014, he was previously asymptomatic.” However, the
Board has held that an opinion that a condition is causally related to an employment injury
because the employee was asymptomatic before the injury but symptomatic after it is
insufficient, without supporting rationale, to establish causal relationship.7 Dr. Strenge did not
provide medical rationale explaining the basis of his conclusion on causal relationship. The need
for such reasoning is particularly important where appellant had preexisting degenerative spine
conditions. Other reports from Dr. Strenge either did not provide medical reasoning to explain
how the work incident contributed to a medical condition or did not address causal relationship
in his remaining reports of March 13 and May 29, 2014. Thus, the evidence from him is
insufficient to establish the claim.
In a March 4, 2014 report, Dr. Riney related the history of injury as provided by
appellant. He diagnosed acute back pain and acute left lumbar radiculopathy. The Board notes
that, while Dr. Riney described appellant’s activities, Dr. Riney did not offer his own opinion on
causal relationship. Thus his report is of little probative value.8
In an April 14, 2014 report, Dr. Newcom noted that appellant advised that he slipped and
fell at work. He noted findings and diagnoses but did not otherwise address the cause of
appellant’s condition. Even if Newcom’s repetition of the history provided by appellant may be
considered as support for causal relationship, this is of limited probative value as he did not
provide any medical reasoning to explain the basis of his conclusion.

6

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

7

John F. Glynn, 53 ECAB 562 (2002).

8

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

5

The remaining medical reports in the record are also insufficient to establish the claim as
they do not contain a specific opinion on causal relationship.9 OWCP also received nurses’
notes. However, nurses are not considered physicians under FECA and are not competent to
render a medical opinion.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on January 30, 2014.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2015
Washington, DC

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

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

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

9

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

G.G., 58 ECAB 389 (2007). See 5 U.S.C. § 8101(2) (defines the term physician).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, NILES POST OFFICE,
Niles, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1805
Issued: January 30, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On July 29, 2013 appellant, through his attorney, filed a timely appeal from the
February 21, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant established a neck injury causally related to factors of his
federal employment.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
On May 7, 2012 appellant, then a 55-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that on March 6, 2012 he first became aware of his cervical
1

5 U.S.C. § 8101 et seq.

degeneration and headaches and realized that his conditions were caused by his federal
employment. He stated that he had been treated by Dr. Toby Mitchell, a chiropractor, for the
past six or seven years as a result of surgery stemming from a car accident that occurred on
June 11, 1989 and another car accident that occurred on December 2, 2002 or December 2, 2003
while he was delivering mail.
In a May 30, 2012 narrative statement, appellant related that eight or nine years ago he
experienced neck pain for which he received medical treatment. He noted Dr. Mitchell’s opinion
that, as a result of his two rear-end car collisions at work, repetitive motions of the neck such as,
left and right rotation, aggravated his cervical degeneration. Appellant stated that, as a letter
carrier with a mounted route, he performed the left and right repetitive motions eight hours a day,
five days a week.
In a March 27, 2012 medical report, Dr. Jack Henry, a radiologist, advised that an x-ray
of the cervical spine revealed spinal biomechanical alterations, uncovertebral and facet arthrosis
of the mid and lower cervical spine and mild spondylosis of the mid-cervical spine with severe
disc narrowing at the C5 level. He suspected posterior osteophyte formation at the C5 disc level
for which clinical correlation was recommended. Dr. Henry advised that a swim lateral view
may be helpful. He stated that an x-ray of the thoracic spine showed spinal biomechanical
alterations and spondylosis with developmental wedging. Dr. Henry reported that an x-ray of the
lumbar spine demonstrated biomechanical alterations, hip arthrosis, anterolisthesis of the isthmic
variety at the L3 level and less than five percent on the L4 level, facet tropism at the L5 junction,
facet arthrosis and mild spondylosis at the mid and lower lumbar spine with severe disc
narrowing at L4 and a lesser degree at the L3 level. In a report dated April 23, 2012, he advised
that appellant suffered from cervical degeneration that was most prominent at the C5 level.
Appellant also had characteristics of osteophytic formation, hypertrophy, joint space narrowing
and subchondral sclerosis. Dr. Mitchell stated that repetitive motions of the neck aggravated
appellant’s condition. He noted that the only trauma appellant relayed to him to explain his
degeneration was the two rear-end car accidents that occurred while he was working at the
employing establishment.
In a May 29, 2012 letter, Postmaster Fred Bergman stated that on May 26, 2012 appellant
was issued a letter of removal effective May 21, 2012. Appellant never informed management
that he was in pain until he did so during a final investigative interview even though he had
multiple opportunities to do so over the last year. He did not bring it up until he was faced with
removal. Postmaster Bergman contended that the documentation submitted by appellant did not
substantiate the dates he claimed to have had severe pain.
By letter dated June 7, 2012, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested additional factual and medical evidence. OWCP
also requested that the employing establishment submit any medical evidence regarding
treatment appellant received at its medical facility.
In a June 8, 2012 letter, Patricia M. Schaefer, a health and resource management
specialist, challenged appellant’s claim, noting that on May 26, 2012 and following issuance of a
letter of removal to him in April 2012, he handed Larry Cohn, a supervisor, a Form CA-2 for an
occupational illness that stemmed from two automobile accidents while working at the
employing establishment. The first accident occurred on June 11, 1987 and the second one
2

occurred in December 2002 or 2003. Ms. Schaefer stated that appellant did not report any injury
or illness to his supervisors and he did not file a claim or submit any medical evidence until after
his termination. She noted Dr. Mitchell’s findings and stated that despite his treatment of
appellant for six to seven years there was no record or evidence that his injury was work related.
Ms. Schaefer concluded that appellant should not be accepted as this was merely an attempt to
keep his position.
In a July 12, 2012 decision, OWCP denied appellant’s occupational disease claim. It
found that the medical evidence was insufficient to establish that he sustained a medical
condition causally related to the established employment factors.
On July 26, 2012 appellant requested an oral hearing before an OWCP hearing
representative.
In an April 18, 2012 restriction and limitation form, Dr. Mitchell advised that appellant
could return to work no more than eight hours a day. In a May 16, 2012 report, he reiterated his
diagnoses of cervical degeneration that was most prominent at the C5 level, characteristics of
osteophytic formation, hypertrophy, joint space narrowing and subchondral sclerosis and opinion
as to the aggravation of appellant’s conditions. Dr. Mitchell also reiterated his opinion regarding
appellant’s work restriction. In a July 6, 2012 report, he noted a history of his treatment of
appellant beginning on March 19, 2012 and his two car accidents. Dr. Mitchell listed findings on
physical and x-ray examination. He diagnosed cervical, lumbar, sacral and thoracic
subluxations, myalgia and myositis. Dr. Mitchell opined that the previous automobile-related
trauma sustained while appellant was working the employing establishment coupled with his
aggravating left and right cervical rotational movement required by his job for several years was
consistent with the degenerative patterns found in his neck from the x-ray analysis and physical
examination. All of the subjective and objective findings were consistent with a repetitive stress
disorder affecting the biomechanics of his cervical column and caused vertebral subluxation.
Dr. Mitchell stated that subluxation of the spinal column would explain all of the physical
complaints reported by appellant, as well as, all the objective findings. He concluded that
barring the absence of dramatic evidence of another causative agent, the likelihood of appellant’s
dysfunction being the result of work-related activities was extremely high and the most
reasonable conclusion available. On December 21, 2012 Dr. Mitchell reiterated his diagnoses of
cervical, thoracic, lumbar, sacral and iliac subluxations, myalagia and myositis.
In a July 2, 2012 report, Dr. Allison M. Lamont, a Board-certified radiologist, advised
that a magnetic resonance imaging (MRI) scan of the cervical spine revealed degenerative disc
disease that was most pronounced at the C5-6 level where an asymmetric disc bulge was
identified focally flattening the right-hand aspect of the cervical cord at this level and giving rise
to right-sided neural foraminal narrowing.
In a July 9, 2012 report, Dr. William N. Farabaugh, a Board-certified family practitioner,
noted appellant’s complaints of neck pain. He obtained a history of appellant’s family, social
background and medical treatment. Dr. Farabaugh listed findings on physical and neurological
examination. He diagnosed chronic neck pain and advised that appellant’s arthritic conditions
most likely resulted from work-related repetitive movements and less so from his whiplash
injuries.

3

An unsigned report dated July 12, 2012 contained the typed name of Dr. Stephen M.
Smith, a Board-certified neurosurgeon. The report provided a history that appellant had a long
history of neck pain which started after a 2003 car accident at work and findings on physical
examination. A cervical MRI scan revealed disc bulge and degenerative disc disease. Causality
was impossible to note from an MRI scan only. There were certainly degenerative changes that
were expected at appellant’s age of 56 years old. The significance of his motor vehicle accident
that occurred at work would be entirely related to the history of those incidents as provided by
him.
In an undated letter, appellant again attributed his neck injury to the two rear-end car
collisions as supported by Dr. Mitchell’s opinion and x-ray findings. In this letter and a
December 24, 2012 letter, he contended that his CA-2 form was timely filed.
The employing establishment submitted an August 2, 2012 investigative report which
challenged appellant’s claim. It found that he engaged in physical activities that contradicted his
stated restrictions and claimed affliction or condition. Appellant only filed the claim after being
advised to do so by his attorney during a discussion regarding his removal for failing to follow
instructions.
In a February 21, 2013 decision, an OWCP hearing representative affirmed the July 12,
2012 decision, finding that Dr. Mitchell’s reports were not sufficiently rationalized to establish
that appellant sustained a cervical subluxation and, thus, he was not a physician as defined under
FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
2

5 U.S.C. §§ 8101-8193.

3

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

4

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

4

The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty and must be supported by
medial rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5 Neither the fact that appellant’s
condition became apparent during a period of employment nor, his belief that the condition was
caused by his employment is sufficient to establish a causal relationship.6
ANALYSIS
OWCP accepted appellant’s factors of federal employment as a letter carrier. It denied
his claim, however, on the grounds that the evidence failed to establish a causal relationship
between those activities and his diagnosed conditions. The Board finds that the medical
evidence of record is insufficient to establish that appellant developed a neck condition causally
related to factors of his federal employment.
In a July 6, 2012 report, Dr. Mitchell, a chiropractor, found that it was extremely “likely”
that appellant’s cervical, lumbar, sacral and thoracic subluxations, myalgia and myositis as
diagnosed by x-rays resulted from his work-related activities, automobile trauma and repetitive
cervical rotational movements. He stated that appellant’s subjective complaints and his objective
findings were consistent with a repetitive stress disorder affecting the biomechanics of his
cervical column and caused vertebral subluxation. The Board has held that a chiropractor is a
physician as defined under FECA only to the extent that the reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.7 As Dr. Mitchell diagnosed spinal subluxations as demonstrated
by x-rays, he is a physician as defined under FECA. The Board finds, however, that his opinion
concerning the causal relationship between appellant’s current conditions and the established
employment factors is speculative and is, therefore, of diminished probative value. Dr. Mitchell
did not sufficiently explain how the established employment factors caused the diagnosed
conditions. Medical opinions that are speculative and not supported by medical rationale are
generally entitled to little probative value and are insufficient to meet appellant’s burden of
proof.8 Dr. Mitchell’s April 23, 2012 report found that appellant suffered from cervical
degeneration that was most prominent at the C5 level. He also found that appellant had
characteristics of osteophytic formation, hypertrophy, joint space narrowing and subchondral
sclerosis. While Dr. Mitchell advised that repetitive motions of the neck aggravated appellant’s
condition, he failed to explain how the diagnosed neck conditions were caused by the established
employment factors. Medical reports without adequate rationale on causal relationship are of

5

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id., at 351-52.

6

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

7

5 U.S.C. § 8102(2); see Sean O Connell, 56 ECAB 195 (2004); Mary A. Ceglia, 55 ECAB 626 (2004). 20
C.F.R. § 10.311(a). Cf., D.S., Docket No. 09-860 (issued November 2, 2009).
8

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

5

diminished probative value and are insufficient to meet an employee’s burden of proof.9 The
opinion of a physician supporting causal relationship must be based on a complete factual and
medical background with affirmative evidence. The opinion must address the specific factual
and medical evidence of record and explain the relationship between the diagnosed condition and
the established incident or factor of employment.10 In addition, Dr. Mitchell noted that the only
trauma appellant relayed to him to explain his degeneration was the two rear-end car accidents
that occurred while he was working at the employing establishment. Appellant’s assertion does
not constitute medical evidence as he is a lay person and is not competent to render a medical
opinion.11 The remaining reports from Dr. Mitchell do not address whether appellant’s
diagnosed cervical, thoracic and lumbar conditions and work restriction were caused by his
federal employment. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.12
Similarly, Dr. Lamont’s July 2, 2012 diagnostic test results are insufficient to establish
appellant’s claim. He did not provide a medical opinion addressing whether appellant’s
diagnosed cervical conditions were caused by the established employment factors.13 The Board
finds, therefore, that Dr. Lamont’s report is insufficient to establish appellant’s claim.
Dr. Farabaugh’s July 9, 2012 report found that appellant had chronic neck pain that was
most “likely” due to his work-related repetitive movements and less from his whiplash injuries.
It is well established that pain is a description of a symptom and not considered a compensable
medical diagnosis.14 Further, Dr. Farabaugh’s opinion on causal relation is speculative in nature
and, thus, of diminished probative value.15 He failed to sufficiently explain how the established
employment factor caused appellant’s pain. The Board finds, therefore, that Dr. Farabaugh’s
report is insufficient to meet appellant’s burden of proof.
The unsigned report which contained Dr. Smith’s typed name has no probative value in
establishing that appellant sustained a cervical injury causally related to the established
employment factors, as it is not clear whether a physician under FECA prepared the report. It is
well established that medical evidence lacking proper identification is of no probative medical
value.16

9

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

10

See Lee R. Haywood, 48 ECAB 145 (1996).

11

James A. Long, 40 ECAB 538, 542 (1989).

12

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).
13

Id.

14

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 8, 2008).

15

Ricky S. Storms, supra note 8.

16

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

6

The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a cervical condition causally related to the accepted
employment factors. Appellant did not meet his burden of proof.
On appeal, appellant’s attorney contended that OWCP’s decision was contrary to fact and
law. For reasons stated above, the Board finds that the weight of the medical evidence does not
establish that appellant sustained a cervical condition causally related to the established
employment factors.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a neck injury
causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 30, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL, El Paso, TX,
Employer
__________________________________________

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

Docket No. 20-0633
Issued: October 20, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 29, 2020 appellant filed a timely appeal from a January 15, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss,
warranting a schedule award.
FACTUAL HISTORY
On September 19, 2018 appellant, then a 51-year-old border patrol agent, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors of
his federal employment. He noted that he first became aware of his condition and realized that it
1

5 U.S.C. § 8101 et seq.

was caused or aggravated by his federal employment on September 19, 2018. Appellant explained
that he was exposed to hazardous noise levels over his 26 years of federal service. He did not stop
work.
OWCP received a position description for a supervisory border patrol agent.
In an undated statement, appellant provided a review of his employment history and noted
that from September 6, 1992 to January 20, 1993 he had been employed as a border patrol agent
trainee and was exposed to noise levels of 145 to 160 decibels (dBs) while undergoing 73 hours
of firearms classroom and life fire instruction. He wore muff-style hearing protectors. From
January 20, 1993 to August 1, 1998 appellant worked as a border patrol agent and was exposed to
noise levels up to 84 dBs from vehicular traffic during 10-hour days on the job. From August 2,
1998 to November 6, 1999 he worked as a senior patrol agent and from November 7, 1999 to
February 10, 2001 he worked as a supervisor border patrol agent at a checkpoint on a highway and
was exposed to noise levels up to 84 dBs from vehicular traffic during a 10-hour day. From
February 11, 2001 to September 29, 2018, he worked as an assistant patrol agent in charge, field
operations supervisor, patrol agent in charge, special operations supervisor and watch commander
and reported no exposure to hazardous noise.
In a development letter dated September 24, 2018, OWCP informed appellant that he
submitted no evidence to establish that he actually experienced the employment factors alleged to
have caused his injury. It provided a questionnaire for his completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide additional
information regarding appellant’s exposure to noise due to factors of his federal employment,
including comments from a knowledgeable supervisor regarding the accuracy of his statements.
It afforded both parties 30 days to respond.
On October 5, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and the medical record, to Dr. Edward M. Goldman, a Board-certified otolaryngologist
serving as a second opinion physician, regarding the nature, extent, and causal relationship of his
hearing loss.
In his October 22, 2018 report, Dr. Goldman reviewed the SOAF, history of injury, and the
medical evidence of record. Testing at the frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz)
revealed losses at 10, 5, 15, and 15 dBs for the right ear; and 15, 5, 10, and 20 dBs for the left ear,
respectively. Dr. Goldman discussed appellant’s hearing loss and opined that the industrial noise
exposure was the primary factor causing his condition. He indicated that appellant’s left ear
hearing is slightly worse than the right ear possibly due to being a right handed shooter.
Dr. Goldman indicated that his asymmetric hearing loss and elevated contralateral acoustic
reflexes indicate referral for medical examination and retrocochlear pathology examination. He
diagnosed bilateral sensory neural hearing loss and bilateral tinnitus.
By decision dated February 13, 2019, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and bilateral tinnitus.
On April 11, 2019 appellant filed a claim for a schedule award (Form CA-7).

2

On April 25, 2019 OWCP referred the medical record and SOAF to Dr. Jeffrey Israel, an
OWCP district medical adviser (DMA) and Board-certified otolaryngologist, to determine the
extent of appellant’s hearing loss and permanent impairment due to his employment-related noise
exposure. On April 29, 2019 Dr. Israel reviewed Dr. Goldman’s examination report and agreed
that appellant’s sensorineural hearing loss was due, at least in part, to noise-induced work-related
acoustic trauma. He applied the audiometric data to OWCP’s standard for evaluating hearing loss
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides) and determined that appellant sustained a right
monaural loss of zero percent, a left monaural loss of zero percent and a binaural hearing loss of
zero percent. Dr. Israel averaged appellant’s right ear hearing levels of 10, 5, 15, and 15 dBs at
500, 1,000, 2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then
dividing the sum by four which equaled 11.25. After subtracting the 25 dB fence, he multiplied
the remaining zero balance by 1.5 to calculate zero percent right ear monaural hearing loss.
Dr. Israel then averaged appellant’s left ear hearing levels of 15, 5, 10, and 20 dBs at 500, 1,000,
2,000, and 3,000 Hz, respectively, by adding the hearing loss at those four levels then dividing the
sum by four, which equaled 12.5. After subtracting the 25 dB fence, he multiplied the remaining
five balance by 1.5 to calculate zero percent left ear monaural hearing loss. Dr. Israel then
calculated zero percent binaural hearing loss by multiplying the right ear loss of zero percent by
five, adding the zero percent left ear loss, and dividing this sum by six. He recommended yearly
audiograms, use of noise protection, and authorization for hearing aids. Dr. Israel determined that
appellant had reached maximum medical improvement (MMI) on October 16, 2018, the date of
Dr. Goldman’s examination.
By decision dated January 15, 2020, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish that his accepted hearing loss
condition was severe enough to be considered ratable.
LEGAL PRECEDENT
The schedule award provisions of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The sixth edition of the
A.M.A., Guides4 has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.5

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Supra note 2.

5

V.M., Docket No. 18-1800 (issued April 23, 2019); see J.W., Docket No. 17-1339 (issued August 21, 2018).

3

OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are averaged.6 Then, the fence of 25 dBs is deducted because, as the A.M.A., Guides
points out, losses below 25 dBs result in no impairment in the ability to hear everyday speech
under everyday conditions.7 The remaining amount is multiplied by a factor of 1.5 to arrive at the
percentage of monaural hearing loss.8 The binaural loss of hearing is determined by calculating
the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by five, then
added to the greater loss and the total is divided by six to arrive at the amount of the binaural
hearing loss.9 The Board has concurred in OWCP’s adoption of this standard for evaluating
hearing loss.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a ratable hearing
loss for schedule award purposes.
OWCP properly referred appellant to Dr. Goldman for a second opinion examination to
evaluate his hearing loss. In his October 22, 2018 report, Dr. Goldman discussed appellant’s
hearing loss and opined that the industrial noise exposure was the primary factor causing his
condition. He recommended bilateral hearing aid fitting to treat appellant’s condition.
Dr. Goldman diagnosed bilateral sensory neural hearing loss and bilateral tinnitus caused by the
noise exposure in his workplace.
In its February 13, 2019 decision, OWCP accepted the claim for bilateral sensorineural
hearing loss and bilateral tinnitus and informed appellant that his case had been forward to
Dr. Israel, the DMA, for OWCP to assess his percentage of permanent employment-related hearing
loss.
On April 29, 2019 Dr. Israel, the DMA, reviewed Dr. Goldman’s report and determined
that appellant had zero percent monaural hearing loss in each ear. He related that testing at the
frequencies of 500, 1,000, 2,000, and 3,000 Hz revealed losses at 10, 5, 15, and 15 dBs for the
right ear, respectively; and 15, 5, 10, and 20 dBs for the left ear, respectively. Dr. Israel averaged
appellant’s right ear hearing levels and added four, which totaled 11.25. The decibel losses for the
left ear were totaled at 50 and divided by 4 to obtain an average hearing loss of 12.5. After
subtracting the 25 dB fence, both the right and left ear losses were reduced to zero. When
multiplied by 1.5, the resulting monaural hearing loss in each ear was zero percent. The Board
finds that Dr. Israel, the DMA, properly concluded that appellant did not have ratable permanent
impairment of his hearing warranting a schedule award. Although appellant has accepted

6

A.M.A., Guides 250.

7

Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

8

Id.

9

Id.

10

V.M., Docket No. 18-1800 (issued April 23, 2019).

4

employment-related hearing loss, it is not sufficiently severe to be ratable for schedule award
purposes.11
The Board has held that, in the absence of ratable hearing loss, a schedule award for tinnitus
is not allowable pursuant to the A.M.A., Guides.12 Accordingly, as appellant does not have ratable
hearing loss, the Board finds that he is not entitled to a schedule award for tinnitus.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a ratable hearing
loss for schedule award purposes.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed
Issued: October 20, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

11

B.E., id.; W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

12

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS -- STATIONS BASES, Barstow, CA,
Employer
__________________________________________

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

Docket No. 08-58
Issued: April 17, 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 October 5, 2007 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated September 12, 2007 concerning his schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
schedule award decision.
ISSUE
The issue is whether appellant has more than eight percent right upper extremity
impairment, for which he received a schedule award.
FACTUAL HISTORY
On January 7, 2004 appellant, then a 48-year-old maintenance helper, filed a claim for a
right shoulder condition. He alleged that he experienced pain in his right shoulder on January 6,
2004 while shutting off a water valve. Appellant stopped work on January 8, 2004 and returned
the next day. On March 8, 2004 the Office accepted his claim for a right shoulder sprain/strain

and a right rotator cuff tear. Appellant had his shoulder surgically repaired on March 30, 2004
by Dr. Louis C. Redix, an orthopedic surgeon. He returned to light duty on June 8, 2004 and full
duty on July 10, 2004.
On July 30, 2004 appellant filed a claim for a schedule award. In an August 3, 2004
letter, the Office requested that Dr. Redix complete impairment worksheets for the shoulder so
an impairment rating could be prepared under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Redix
submitted reports on appellant’s condition. However, none of the reports provided the
information necessary so an impairment rating could be prepared under the A.M.A., Guides.
In letters dated January 28, 2005 and May 15, 2006, the Office requested that appellant
obtain an updated report from Dr. Redix about his permanent impairment. Impairment
worksheets for the shoulder were attached so an impairment rating could be prepared under the
A.M.A., Guides. Dr. Redix, however, did not respond to the Office’s request for an impairment
rating.
On November 2, 2006 the Office referred the case file, a statement of accepted facts to
Dr. Rajeswari Kumar, a Board-certified physiatrist, for a second opinion to determine the extent
of appellant’s permanent impairment to the right arm under the A.M.A., Guides. In a
December 20, 2006 report, Dr. Kumar reviewed the history of injury for both left and right
shoulder work-related injuries, presented his examination findings and diagnosed bilateral
impingement syndrome involving both shoulders; bilateral adhesive capsulitis of the shoulder;
and possible post-traumatic osteoarthritis of both shoulders. He noted that on physical
examination appellant exhibited no atrophy or weakness in the shoulder girdle muscles, but had
bilateral impingement syndrome, a positive Neer test and limited range of motion of both
shoulders. Dr. Kumar advised that appellant had not reached maximum medical improvement
and he could benefit from a short course of therapy or a cortisone injection in both shoulders. He
further advised that appellant could lift and carry 15 pounds frequently and 25 pounds
occasionally. In an attached shoulder impairment evaluation form dated December 19, 2006,
Dr. Kumar advised that appellant had not reached maximum medical improvement. He noted
that appellant’s shoulder pain interfered with daily activity, but there was no weakness or
atrophy of the upper extremities. Dr. Kumar additionally provided range of motion findings for
both the right and left shoulder.
In an August 25, 2007 report, the Office medical adviser reviewed the medical evidence
with respect to the accepted conditions of right shoulder strain and rotator cuff tear, with surgical
repair, and applied Dr. Kumar’s findings of the right shoulder to the table and figures of the
A.M.A., Guides. The Office medical adviser found that appellant had eight percent impairment
of the right arm. This was comprised of four percent impairment due to loss of range of motion
and four percent impairment due to sensory deficit or pain. The Office medical adviser further
found that appellant reached maximum medical improvement on December 19, 2006.
By decision dated September 12, 2007, the Office granted appellant a schedule award for
an eight percent permanent impairment to his right upper extremity. The period of the award ran
for 29.96 weeks from December 19, 2006 to June 11, 2007.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 sets forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of schedule members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. For consistent results and to ensure equal justice under the law to
all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides (5th ed.) has
been adopted by the Office for evaluating schedule losses.3
It is well established that the period covered by a schedule award commences on the date
that the employee reaches maximum medical improvement from the residuals of the employment
injury. The Board has defined maximum medical improvement as meaning that the physical
condition of the injured member of the body has stabilized and will not improve further. The
determination of whether maximum medical improvement has been reached is based on the
probative medical evidence of record and is usually considered to be the date of the evaluation
by the attending physician which is accepted as definitive by the Office.4
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.5
ANALYSIS
The Board finds that this case is not in posture for a decision as the permanent
impairment rating on which the Office relied was insufficient to establish the schedule award.
The Office referred the medical evidence of record, including the report of the second
opinion physician, Dr. Kumar, to its Office medical adviser for an impairment rating in
accordance with the protocols of the A.M.A., Guides. The Board finds that the Office medical
adviser’s opinion is insufficient to establish a permanent impairment rating for appellant’s right
upper extremity.

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

See 20 C.F.R. § 10.404; see also David W. Ferrall, 56 ECAB 362 (2005).

4

Mark A. Holloway, 55 ECAB 321, 325 (2004).

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

3

The A.M.A., Guides explains that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized:
“It is understood that an individual’s condition is dynamic. Maximum medical
improvement [MMI] refers to a date from which further recovery or deterioration
is not anticipated, although over time there may be some expected change. Once
an impairment has reached MMI, a permanent impairment rating may be
performed.”6
This is consistent with Office procedures which provide that maximum medical
improvement must be reached before a schedule award is made.7
Dr. Kumar examined appellant on December 19, 2006 and specifically advised that
maximum medical improvement had not been met. In his December 20, 2006 report, he reported
that appellant could benefit from a short course of therapy or a cortisone injection in his
shoulder. The Office medical adviser, however, found that appellant reached maximum medical
improvement on December 19, 2006, the date of Dr. Kumar’s examination. This is inconsistent
with Dr. Kumar’s report. The medical adviser provided no further discussion or support for her
finding that appellant had reached maximum medical improvement and the Office did not seek
any further opinion from Dr. Kumar regarding this. At the time of Dr. Kumar’s examination,
there was no other current medical evidence of record in which an examining physician
determined that appellant had reached maximum medical improvement. Therefore, the Board
finds that it was premature for the Office to make a determination of appellant’s permanent
impairment due to his employment injury.
Upon return of the case record, the Office should further develop the medical evidence to
determine if appellant has reached his level of maximum medical improvement and, if so, it
should determine his degree of permanent impairment caused by his accepted employment
injury.8
CONCLUSION
The Board finds that the case is not in posture for decision. The Board will remand the
case for further development of the medical evidence and an appropriate final decision on
appellant’s entitlement to a schedule award for his accepted employment injury on
January 6, 2004.

6

A.M.A., Guides at 19; Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1)
(October 1990).
8

Due to the disposition of the issue, it is not necessary for the Board to address whether appellant’s impairment
rating was properly calculated.

4

ORDER
IT IS HEREBY ORDERED THAT the September 12, 2007 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: April 17, 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

5


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

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

Docket No. 08-1473
Issued: January 8, 2009

Case Submitted on the Record

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

JURISDICTION
On April 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 28, 2007 denying his recurrence claim
and a nonmerit decision dated April 7, 2008 denying reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and the nonmerit
issue.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a recurrence
beginning September 27, 2007 causally related to an accepted emotional condition; and
(2) whether the Office properly denied appellant’s request for review of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 14, 2003 appellant, then a 50-year-old customer service supervisor, filed
an occupational disease claim alleging that his emotional condition was caused by his work
environment. He first realized his condition and its relation to his employment in

September 2001. Appellant stopped work September 12, 2003 and returned to full-duty
October 29, 2003.1 At a hearing held January 4, 2005 appellant testified that he received medical
treatment for his condition for about six months and was off work for two weeks. He testified
that his condition improved, he was no longer seeking treatment, and he had returned to work.
On May 11, 2005 the Office accepted appellant’s claim for adjustment disorder with anxiety,
resolved as of March 25, 2005.2
On September 28, 2007 appellant filed a claim for a recurrence of disability on
September 27, 2007. He alleged that an involuntary shift change, pending administrative action
and false and inappropriate allegations by employees at the employing establishment resulted in
a partial recurrence of his anxiety, stress and adjustment disorder. Appellant did not stop work
or lose any time following the recurrence.
In a letter dated October 22, 2007, the Office advised appellant of the definition of a
recurrence. It requested that he provide, within 30 days, the necessary factual and medical
evidence to establish his claim. No evidence was received.
By decision dated November 28, 2007, the Office denied appellant’s recurrence claim on
the grounds that no factual or medical evidence was provided.
On March 28, 2008 appellant requested reconsideration. He noted that since the
November 28, 2007 denial of his claim, he received medical treatment for his condition.
Appellant indicated that he was attaching medical reports from his physicians as well as
documentation to support his claim and provided a list of attachments. The Office received
copies of the March 25, 2005 decision of an Office hearing representative that directed
acceptance of his initial claim. No additional medical or factual information was received.
By decision dated April 7, 2008, the Office denied appellant’s request for reconsideration
without further merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of the Office’s regulations provides that 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 which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. 3 A recurrence of
medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage.

1

On September 13, 2003 appellant also filed a traumatic injury claim alleging that his anxiety, depression and
stress was caused by disparate treatment and a hostile work environment.
2

The Office noted that appellant’s testimony and medical evidence indicated that appellant was no longer seeking
treatment of his accepted condition.
3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

2

Continuous treatment for the original condition or injury is not considered a need for further
medical treatment after release from treatment, nor is an examination without treatment.4
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that a claimant’s claimed condition became apparent during a period of
employment nor is his or her belief that the condition was aggravated by employment sufficient
to establish causal relationship.6 The Board will not require the Office to pay compensation in
the absence of medical evidence directly addressing the particular period of disability for which
compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for adjustment disorder with anxiety, which
resolved as of March 25, 2005. The record reflects he returned to full duty on October 29, 2003.
Appellant filed a recurrence of disability claim September 28, 2007 alleging a partial recurrence
of disability beginning September 27, 2007. He did not stop work. However, appellant did not
submit medical evidence to establish that his disabling condition as of September 28, 2007 was
causally related to his accepted injury. He did not submit any medical reports from a treating
physician which explained why any disability or medical condition beginning September 27,
2007 was related to the accepted injury.
Appellant did not submit any medical evidence to support a recurrence of a medical
condition or partial disability beginning September 27, 2007. These are objective findings to
support a recurrence causally related to the accepted injury. He has the burden of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the condition is causally related to the employment injury and
supports that conclusion with sound medical rationale.8 Consequently, appellant has not met his
burden of proof to establish that he sustained a recurrence of disability or medical condition on
September 27, 2007 causally related to his accepted employment injury.

4

Id. at § 10.5(y); see Mary A. Ceglia, 55 ECAB 626 (2004).

5

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

6

Walter D. Morehead, 31 ECAB 188 (1986).

7

Fereidoon Kharabi, 52 ECAB 291 (2001).

8

See Mary A. Ceglia supra note 4.

3

LEGAL PRECEDENT -- ISSUE 2
Section 10.606(b)(2) of Office regulations provides that a claimant may obtain review of
the merits of the claim by either: (1) showing that the Office erroneously applied or interpreted a
specific point of law; (2) advancing a relevant legal argument not previously considered by the
Office; or (3) constituting relevant and pertinent new evidence not previously considered by the
Office.9 Section 10.608(b) provides that when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), the Office will
deny the application for reconsideration without reopening the case for a review on the merits.10
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary
value and does not constitute a basis for reopening a case.11 Likewise, evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.12
ANALYSIS -- ISSUE 2
On reconsideration, he did not establish that the Office erroneously applied or interpreted
a specific point of law or advance a relevant legal argument not previously considered by the
Office. Thus, he is not entitled to a review of the merits of his claim based on the first and
second above-noted requirements under section 10.606(b)(2).13
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
did not submit any medical evidence relevant to whether he sustained a recurrence of disability
causally related to his accepted employment injury. His submission of the March 25, 2006
Branch of Hearings and Review’s decision, which found appellant’s emotional condition was
causally related to his employment, is irrelevant to the issue of a recurrence of disability or after
September 27, 2007. The Board has held that the submission of evidence irrelevant to the issue
involved is not a basis for reopening a case.14 Appellant did not submit relevant and pertinent
new evidence not previously considered by the Office and it properly denied his reconsideration
request.

9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.608(b).

11

Helen E. Paglinawan, 51 ECAB 591 (2000).

12

Kevin M. Fatzer, 51 ECAB 407 (2000).

13

20 C.F.R. § 10.606(b)(2).

14

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability or a medical condition beginning September 27, 2007 causally related to the accepted
employment injury. The Board also finds that the Office properly denied appellant’s request for
reconsideration.15
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2008 and November 28, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 8, 2009
Washington, DC

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

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

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

15

On appeal, appellant submitted additional evidence. However, the Board may not consider new evidence on
appeal. See 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 13-251
Issued: July 5, 2013

Case Submitted on the Record

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

JURISDICTION
On November 16, 2012 appellant, through her representative, filed a timely appeal from
an Office of Workers’ Compensation Programs’ (OWCP) merit decision dated
September 18, 2012 denying her emotional condition claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition on March 8, 2012 while in the performance of duty.
On appeal, appellant’s representative contends that the employing establishment’s
treatment of appellant on March 8, 2012 was abusive and that she sustained an emotional
condition as a result.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2012 appellant, then a 37-year-old letter carrier, filed a traumatic injury
(Form CA-1) alleging that she sustained an emotional condition as a result of being a victim of
erroneous and abusive treatment by her supervisor, LaShiba Tarrance. On March 8, 2012
Ms. Tarrance denied appellant the right to exercise her seniority in selecting her route and spoke
to her in a highly abusive and bullying manner, leaving her too anxious and upset to continue
working.
Appellant submitted documents dated March 8, 2012 verifying that she went to the
Employee Assistance Program (EAP) that day at 1:15 p.m. for an intake appointment. Lynn
Neideck, a licensed social worker, noted that it would be best for appellant not to return to work
until she could meet with her primary care physician on March 9, 2012 at 2:30 p.m. for further
evaluation.
On March 9, 2012 Dr. Sandra Sabb, a Board-certified family practitioner, diagnosed
stress and anxiety disorder. She opined that appellant was totally disabled for the period
March 9 to 25, 2012.
By letter dated March 23, 2012, OWCP notified appellant of the deficiencies of her
claim. It afforded her 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted a March 26, 2012 narrative statement and a March 22, 2012 report
from Dr. Tariq Abbasi, a Board-certified psychiatrist, who diagnosed depression and opined that
she was totally disabled for the period March 8 to April 5, 2012. Dr. Abbasi released her to work
on April 5, 2012 without medical restrictions.
On March 29, 2012 Felicia Moore, a Delivery Supervisor, stated that every unassigned
regular employee, was given the opportunity to select an assignment for the following week on
the preceding Wednesday. Appellant failed to select an assignment and, as an unassigned
employee, she was placed on an open assignment according to seniority by management.
Ms. Moore reported that appellant was the lowest seniority regular at the employing
establishment at the time of injury. She submitted a carrier seniority list and a copy of the hold
down assignments that were posted on February 29, 2012 for the assignments that were available
for the week in question.
In a March 29, 2012 statement, Ms. Tarrance noted that on March 8, 2012 appellant was
assigned to Route 3910 which was the only available route. Appellant was the junior carrier at
the branch, which meant that she could be assigned to the last available assignment. She was
given the opportunity every Wednesday to pick a hold down assignment for the following week
but had failed to do so for the week in question. Ms. Tarrance denied speaking to appellant in a
loud or abusive tone of voice and explained that she was not feeling well that day and could not
speak loudly or barely even talk for that matter. Appellant requested a private meeting and
Ms. Tarrance replied that she would speak to appellant when she came around to give her
instructions. Approximately 10 minutes later, Ms. Tarrance noticed that appellant was not at her
assignment. Appellant left the building and went out to her car. When she came back into the
building, Ms. Tarrance instructed her to report to her assignment. Appellant replied that she was

2

going to EAP. Ms. Tarrance informed her that she needed to make an appointment. Appellant
replied that she was leaving. Ms. Tarrance informed appellant that she would be considered
absent without leave (AWOL) for the day.
In an April 6, 2012 letter, OWCP notified appellant that it had received additional
information regarding assignment selection and requested additional information. In an April 16,
2012 statement, appellant acknowledged that she had not selected an assignment on the prior
Wednesday before the date of injury.
In an April 19, 2012 report, Dr. Abbasi stated that on March 16, 2012 appellant attended
her scheduled initial intake session and presented with poor sleep, low mood, anxiety, excessive
worries with racing thoughts. Appellant felt overwhelmed, frustrated, victimized and harassed at
work. She also complained of being consumed with thoughts about how she was treated at work.
Dr. Abbasi diagnosed generalized anxiety disorder and noted that she returned to work on
April 5, 2012.
By decision dated April 27, 2012, OWCP denied appellant’s claim. It found that the
evidence of record was not sufficient to establish administrative error or abuse in the assignment
of her route on March 8, 2012.
On May 2, 2012 appellant, through her representative, requested an oral hearing before
an OWCP hearing representative. She submitted documents related to scheduling EAP sessions
and opting on temporary vacancies and a copy of a settlement agreement.
On August 1, 2012 a telephonic hearing was held before an OWCP hearing
representative. Appellant provided testimony and the hearing representative held the case open
for 30 days for the submission of additional evidence.
Appellant’s representative submitted an August 17, 2012 statement and an August 14,
2012 report from Dr. Abbasi, who stated that appellant had problems with her employment, felt
victimized, singled-out and harassed since she was involuntarily transferred to another site. On
March 8, 2012 appellant reported that the situation had escalated and she walked out on her job
due to excessive stress feeling victimized.
By decision dated September 18, 2012, the hearing representative affirmed the April 27,
2012 decision. She found that the evidence did not establish administrative error in the March 8,
2012 route assignment or abuse by Ms. Tarrance.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.2 The phrase while in the
2

See 5 U.S.C. § 8102(a).

3

performance of duty has been interpreted by the Board to be the equivalent of the commonly
found prerequisite in workers’ compensation law of arising out of and in the course of
employment.
In Lillian Cutler,3 the Board noted that workers’ compensation law is not applicable to
each and every injury or illness that is somehow related to an employee’s employment. There
are situations when an injury or illness has some connection with the employment but
nonetheless does not come within the coverage of workers’ compensation as they are found not
to have arisen out of the employment. When an employee experiences emotional stress in
carrying out his or her employment duties or has fear and anxiety regarding her ability to carry
out his or her duties and the medical evidence establishes that the disability resulted from his or
her emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
resulted from his or her emotional reaction to his or her day-to-day duties. The same result is
reached when the emotional disability resulted from the employee’s emotional reaction to a
special assignment or requirement imposed by the employing establishment or by the nature of
the work.4
In contrast, a disabling condition resulting from an employee’s feelings of job insecurity
per se is not sufficient to constitute a personal injury sustained in the performance of duty within
the meaning of FECA. Disability is not covered when it results from an employee’s fear of a
reduction-in-force, unhappiness with doing inside work, desire for a different job, brooding over
the failure to be given work he or she desires or the employee’s frustration in not being permitted
to work in a particular environment or to hold a particular position.5 Board case precedent
demonstrates that the only requirements of employment which will bring a claim within the
scope of coverage under FECA are those that relate to the duties the employee is hired to
perform.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 work 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
compensable factors of employment and may not be considered.7 If a claimant does implicate a
factor of employment, OWCP should then consider whether the evidence of record substantiates
that factor. As a rule, allegations alone by a claimant are insufficient to establish a factual basis
for an emotional condition claim; the claim must be supported by probative evidence.8 Where
3

28 ECAB 125 (1976).

4

Id. at 130.

5

See Lillian Cutler, supra note 3.

6

See Anthony A. Zarcone, 44 ECAB 751 (1993).

7

See Dennis J. Balogh, 52 ECAB 232 (2001).

8

See Charles E. McAndrews, 55 ECAB 711 (2004).

4

the matter asserted is a compensable factor of employment and the evidence of record
established the truth of the matter asserted, OWCP must base its decision on an analysis of the
medical evidence.9
ANALYSIS
In the present case, appellant has not attributed nor established that her emotional
condition is related to her regular duties as a letter carrier under Cutler. Rather, she has
attributed her emotional reaction to actions taken by her supervisors on March 8, 2012,
including: (1) speaking to her in a highly abusive and bullying manner; (2) threatening that she
would be AWOL if she went to EAP; and (3) denying her the right to exercise her seniority in
selecting her route. The Board must initially review whether these alleged incidents and
conditions of employment are covered factors of employment under the terms of FECA.
For harassment to give rise to compensability under FECA, there must be evidence that
harassment did, in fact, occur. Mere perceptions of harassment are not compensable under
FECA.10 OWCP found that appellant was not subjected to any harassment by Ms. Tarrance and
did not submit sufficient evidence substantiating her allegations. Specifically, there is no
evidence substantiating any derogatory remarks made by Ms. Moore or Ms. Tarrance to
appellant on March 8, 2012. There is no evidence of record from any witness substantiating
appellant’s contention that she was harassed by either Ms. Moore or Ms. Tarrance. Rather,
Ms. Tarrance denied appellant’s allegations and explained that she was unwell and was not able
to speak loudly. The evidence of record establishes that appellant attended an EAP session at
1:15 p.m. on March 8, 2012. Appellant did not submit any evidence to show that her supervisors
erroneously placed her in an AWOL status or otherwise acted in an abusive or unreasonable
manner. There is no evidence from her in support of her allegations that she was harassed by her
supervisors on March 8, 2012.
In an April 16, 2012 statement, appellant acknowledged that she had not selected an
assignment on the prior Wednesday before the date of injury. In corroborating statements,
Ms. Moore and Ms. Tarrance both noted that all employees, including appellant, were given the
opportunity to select an assignment for the following week on the preceding Wednesday based
on seniority. As appellant had failed to make a selection and had the lowest seniority at the
employing establishment on March 8, 2012, she was assigned Route 3910, the only route
available. She was assigned to the only available route at the time.
The Board notes that appellant’s allegations pertaining to the March 8, 2012 incident
relate to the administrative matter of scheduling route assignments. Generally, an employee’s
emotional reaction to administrative or personnel matters is not covered under FECA. However,
when the evidence of record demonstrates that the employing establishment erred or acted
unreasonably in a personnel matter, coverage may be afforded.11 The Board finds that the
9

See Jeral R. Gray, 57 ECAB 611 (2006).

10

See Michael Thomas Plante, 44 ECAB 510 (1993); William P. George, 43 ECAB 1159 (1992).

11

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Norman A. Harris, 42
ECAB 923 (1991).

5

evidence of record does not establish that Ms. Moore or Ms. Tarrance acted unreasonably or
erred in assigning appellant’s route.12 Therefore, appellant’s allegations do not constitute
compensable factors of employment.
The evidence of record does not establish appellant’s allegations of harassment or that
either Ms. Moore or Ms. Tarrance became abusive. Rather, appellant’s emotional reaction can
be described as self-generated and not arising in the performance of duty but due to her personal
frustration in not being permitted to work a particular route. Thus, she has not met her burden of
proof to establish a claim.13
On appeal, appellant’s representative contends that the employing establishment’s
treatment of appellant on March 8, 2012 was abusive and erroneous. For the reasons stated
above, the Board finds that the evidence of record does not substantiate these contentions.
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 that she
sustained an emotional condition on March 8, 2012 while in the performance of duty.

12

See Kathi A. Scarnato, 43 ECAB 220 (1991) (the Board noted that the employing establishment retains the
right to preserve an environment in which the performance of work is an essential goal). See also Anthony A.
Zarcone, supra note 6; Drew A. Weissmuller, 43 ECAB 745 (1992).
13

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the September 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2013
Washington, DC

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

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

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

7