United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE LOGISTICS CENTER,
HILL AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 11-1363
Issued: January 12, 2012

Case Submitted on the Record

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

JURISDICTION
On May 16, 2011 appellant filed a timely appeal from the May 2, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for modification of
an OWCP wage-earning capacity determination. 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 modification of
OWCP’s wage-earning capacity determination was warranted.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In an April 9, 2010 decision,2 the Board
affirmed OWCP’s June 18, 2009 decision on the grounds that OWCP properly reduced
appellant’s compensation effective June 18, 2009 based on his capacity to earn wages in the
constructed position of escort vehicle driver.3 The Board found that OWCP properly relied on
the opinion of appellant’s rehabilitation counselor that he was vocationally capable of
performing the position of escort vehicle driver. The Board further determined that a review of
the medical evidence revealed that appellant was physically capable of performing the position.4
The Board noted that, in a September 30, 2008 report, Dr. Bermudez reviewed the descriptions
of several driving positions provided by appellant’s vocational rehabilitation counselor and
opined that appellant was able to perform work as a chauffeur or tractor-trailer driver with
restrictions of no lifting over 20 pounds. The Board found that the requirements of the positions
of chauffer and tractor-trailer driver were similar to those of the position of escort vehicle driver
and that Dr. Bermudez’ approval of these positions showed that appellant was physically capable
of working as an escort vehicle driver.5 The Board also determined that OWCP properly
calculated the amount of appellant’s wage-earning capacity based on the average weekly salary
of an escort vehicle driver.6 The facts and the circumstances of the case are set forth in the
Board’s prior decision and are incorporated herein by reference.
In several letters dated between September 2010 and March 2011, appellant requested
modification of OWCP’s June 18, 2009 wage-earning capacity determination. He claimed that,
in calculating his wage-earning capacity, OWCP improperly used earnings figures for an escort
vehicle driver. Appellant stated that the December 16, 2008 labor market survey indicated that
2

Docket No. 09-2033 (issued April 9, 2010).

3

OWCP accepted in February 2001 that appellant, then a 34-year-old painter, sustained work-related
de Quervain’s disease of his right arm, bilateral ulnar nerve entrapment and tenosynovitis of his left hand/wrist and
authorized the performance of surgical procedures in July 2001 and April 2002. In a March 11, 2008 work
restrictions report, Dr. Rita Bermudez, an attending Board-certified physical medicine and rehabilitation physician,
opined that appellant could work on a full-time basis with restrictions of sitting up to 7 hours, operating a motor
vehicle at work for up to 5 hours, performing repetitive wrist and elbow movements for up to 4 hours per day and
occasionally pushing, pulling or lifting up to 20 pounds. In a September 30, 2008 report, Dr. Bermudez reviewed
the descriptions of several driving positions provided by appellant’s vocational rehabilitation counselor and opined
that appellant was able to perform work as a chauffer or tractor-trailer driver with restrictions of no lifting over 20
pounds. The positions of chauffer and tractor-trailer driver were sedentary in nature and required driving for almost
an entire eight-hour day. In a June 18, 2009 decision, OWCP adjusted appellant’s compensation effective June 18,
2009 based on his capacity to earn wages as an escort vehicle driver.
4

The position required sitting and driving for most of the eight-hour workday and required occasional lifting of
up to 10 pounds.
5

The Board noted that Dr. Bermudez indicated in March 2008 that appellant could only sit for seven hours per
day and drive at work for five hours per day, but her September 2008 opinion superseded these restrictions. In an
April 6, 2009 report, Dr. Bermudez again indicated that appellant was capable of working as a tractor-trailer driver.
6

The Board stated that a December 16, 2008 labor market survey showed that the entry-level pay for the escort
vehicle driver position varied from $8.00 per hour to $10.73 per hour (the listed pay figures were $10.00, $8.00,
$9.00 and $10.73 per hour). Therefore, an average of these several entry-level rates was calculated at $9.43 per hour
or $377.20 a week.

2

the wages for an escort vehicle driver varied from $8.00 to $18.00 per hour, but that OWCP
improperly used the figure of $9.43 per hour.
In an April 21, 2011 report, Dr. David P. Teicheira, an attending Board-certified internist,
stated that appellant’s pain drawing showed pain in both arms, fairly equally. Appellant reported
that pain limited his ability to drive and that he was capable of lifting medium weights.
Dr. Teicheira indicated that the findings of physical examination revealed that the bulk and tone
of appellant’s upper extremities seemed to be grossly normal and that no focal neurologic
deficits or radicular symptoms were noted. Appellant reported pain on palpation of his wrist and
on active movements of his upper extremities. Dr. Teicheira diagnosed status post bilateral ulna
fractures with residual pain and probable bilateral peripheral neuropathy. He did not provide any
opinion on appellant’s ability to work.
In a May 2, 2011 decision, OWCP denied appellant’s request for modification of its
June 18, 2009 wage-earning capacity determination. It indicated that he had not shown that the
original determination was in error or that he had a material change in his injury-related
condition.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.7 OWCP’s procedure manual provides that, “[i]f a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. In this instance the
[claims examiner] will need to evaluate the request according to the customary criteria for
modifying a formal loss of wage-earning capacity.”8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.9 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.10
In addition, Chapter 2.814.11 of the procedure manual contains provisions regarding the
modification of a formal loss of wage-earning capacity. The relevant part provides that a formal
loss of wage-earning capacity will be modified when: (1) the original rating was in error; (2) the
claimant’s medical condition has changed; or (3) the claimant has been vocationally
7

Katherine T. Kreger, 55 ECAB 633 (2004).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

9

Stanley B. Plotkin, 51 ECAB 700 (2000).

10

Id.

3

rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If it is seeking modification, it must establish that the original rating was in error, that the
injury-related condition has improved or that the claimant has been vocationally rehabilitated.11
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.12
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles or otherwise available in the open
labor market, that fits that employee’s capabilities with regard to his physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.13
ANALYSIS
In a June 18, 2009 decision, OWCP adjusted appellant’s compensation effective June 18,
2009 based on his capacity to earn wages in the constructed position of escort vehicle driver.
Appellant later requested modification of OWCP’s June 18, 2009 wage-earning capacity
determination.
The Board finds that appellant did not establish that OWCP’s original wage-earning
capacity determination was in error.
OWCP received information in early 2008 from Dr. Bermudez, an attending Boardcertified physical medicine and rehabilitation physician, who found that appellant was not totally
11

See Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.814.11 (June 1996).

12

See Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a). Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment conditions. The job
selected for determining wage-earning capacity must be a job reasonably available in the general labor market in
the commuting area in which the employee lives. Albert L. Poe, 37 ECAB 684, 690 (1986), David Smith, 34
ECAB 409, 411 (1982).

13

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, 5 ECAB 376 (1953). See also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.8 (December 1993).

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disabled for work and had a partial capacity to perform work for eight hours per day subject to
specified work restrictions. Appellant’s vocational rehabilitation counselor then determined that
appellant was able to perform the position of escort vehicle driver and found that state
employment services showed that the position was available in sufficient numbers so as to make
it reasonably available within his commuting area.
The Board finds that OWCP properly relied on the opinion of the rehabilitation counselor
that appellant was vocationally capable of performing the escort vehicle driver position.
Moreover, a review of the medical evidence reveals that appellant was physically capable of
performing the position. The position required sitting and driving for most of the eight-hour
workday and required occasional lifting of up to 10 pounds. Appellant did not submit any
evidence or argument showing that he could not physically perform the position of escort vehicle
driver. In a September 30, 2008 report, Dr. Bermudez reviewed the descriptions of several
driving positions provided by appellant’s vocational rehabilitation counselor and opined that
appellant was able to perform work as a chauffeur or tractor-trailer driver with restrictions of no
lifting over 20 pounds.14
Before OWCP and on appeal, appellant alleged that OWCP used an improper figure for
the average wage of the escort vehicle driver position when it calculated his wage-earning
capacity. He stated that the December 16, 2008 labor market survey indicated that the wages for
an escort vehicle driver varied from $8.00 to $18.00 per hour, but that OWCP improperly used
the figure of $9.43 per hour. The Board finds that OWCP properly took figures for entry-level
salaries of an escort vehicle driver and averaged them to equal $9.43 per hour or $377.20 per
week. Although the December 16, 2008 labor market survey suggested that the salary of an
escort vehicle driver could be up to $18.00 per hour, no specific instances of such a high salary
were provided and it was not clear that the $18.00 per hour figure was for an entry-level position
as an escort vehicle driver.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the escort vehicle driver position represented appellant’s wage-earning
capacity.15 The weight of the evidence of record establishes that appellant had the requisite
physical ability, skill and experience to perform the escort vehicle driver position and that such a
position was reasonably available within the general labor market of appellant’s commuting area.
Therefore, OWCP properly based appellant’s wage-earning capacity effective June 18, 2009 on
the escort vehicle driver position. For these reasons, appellant has not shown that the OWCP’s
original determination with regard to his wage-earning capacity was erroneous.
Appellant suggested that there was a material change in the nature and extent of his
employment-related condition and submitted a report of an attending physician. However, this
14

The positions of chauffer and tractor-trailer driver were sedentary in nature and required driving for almost an
entire eight-hour day. The requirements of the positions of chauffer and tractor-trailer driver are similar to those
of the position of escort vehicle driver and therefore the medical evidence shows that appellant was physically
capable of working as an escort vehicle driver.

15

See Clayton Varner, 37 ECAB 248, 256 (1985).

5

evidence does not contain a rationalized medical opinion explaining why an employment-related
condition prevented appellant from performing the escort vehicle driver position or otherwise
establish that OWCP improperly determined appellant’s wage-earning capacity.16 Appellant
submitted an April 21, 2011 report in which Dr. Teicheira, an attending Board-certified internist,
discussed his upper extremity condition. However, Dr. Teicheira did not indicate that appellant
could not work as an escort vehicle driver and his report does not show a material change in
appellant’s injury-related condition.17
Moreover, appellant has not been retrained or otherwise vocationally rehabilitated such
that the position of escort vehicle driver would not be representative of his wage-earning
capacity. For these reasons, OWCP properly found that did not meet his burden of proof to
establish that modification of OWCP’s wage-earning capacity determination was warranted.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that
modification of OWCP’s wage-earning capacity determination was warranted.

16

See Norman F. Bligh, 41 ECAB 230, 237-38 (1989).

17

Dr. Teicheira did not provide any opinion on appellant’s ability to work.

6

ORDER
IT IS HEREBY ORDERED THAT the May 2, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 09-1207
Issued: March 16, 2010

Case Submitted on the Record

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

JURISDICTION
On March 4, 2009 appellant filed a timely appeal from May 13 and November 17, 2008
merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 25, 2008 appellant, a 49-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging she sustained anxiety and stress following a confrontation with verbal
abuse from and harassment by coworkers on November 19, 2007.
In a supplemental statement dated November 20, 2007, appellant alleged that on
November 19, 2007 she was involved in a verbal altercation with Loretta Darrow. She reported
that they had just closed the window when Ms. Darrow told her that she was to finish putting

labels on a stack of boxes at her window. Allegedly Ms. Darrow stated that this task was the
least “she could do for being worthless and missing work.” Appellant reported Ms. Darrow’s
comments to her supervisor, David King, asserting that Ms. Darrow had no right to comment on
her personal business. Supervisor King told appellant that Ms. Darrow could tell her what to do
and allegedly laughed at her as she walked away. When appellant returned to her window,
Ms. Darrow and another employee, Barbara Byers, allegedly “cornered” her and continued to
harass and insult her. Since this incident, appellant alleges she was afraid and intimidated to
work with these women. She alleged that Ms. Darrow constantly harassed her and this created a
hostile work environment which management should have taken measures to correct.
In a statement dated November 20, 2007, Ms. Byers reported that she and Ms. Darrow
had a “fight (verbal)” with appellant on November 19, 2007 because appellant would not help
with close out. She indicated that she had complained to her supervisors concerning appellant’s
attendance and work ethic, but that management had not addressed her concerns about appellant.
Ms. Byers also noted that “Dave” had heard the whole argument but did not stop it.
Appellant submitted a note dated March 3, 2008 and signed by a certified physician’s
assistant, recommending appellant continue working 9:00 a.m. to 3:00 p.m. through
June 1, 2008.
On March 18, 2008 appellant reported that management denied her request to continue
working 9:00 a.m. to 3:00 p.m. She alleged that this caused her condition to worsen such that
her episodes of anxiety are more frequent and stronger.
In an April 2, 2008 note, James Jarm, customer service supervisor, acknowledged that
this argument occurred. He noted that, on the date in question, Ms. Darrow, the Lead SSA,
allegedly told appellant to put her stamps away. Allegedly appellant stated that she had to leave
right away and did not have time. Allegedly she further stated that Ms. Darrow was not the
supervisor and she did not have to take orders from her. Mr. Jarm also reported that Mr. King
overheard this discussion and separated the three employees. Following the incident, appellant
was permitted to work at a different station for the remainder of the week. He noted that
Ms. Byers transferred to another station. He noted that appellant’s regular hours are 12:30 p.m.
to 6:30 p.m. When appellant returned to the Pino Station on November 26, 2007 she submitted a
medical note reporting that she was able to work 9:00 a.m. to 3:00 p.m. Mr. Jarm reported that
the employing establishment honored this request to help defuse the situation. He reported that
on March 12, 2008 appellant presented a similar note stating that she should continue to work
9:00 a.m. to 3:00 p.m. through June 1, 2008. Mr. Jarm reported that, because there had been no
further incidents and Ms. Byers had transferred to another station, he did not grant this request.
The employing establishment controverted appellant’s claim. It reported that appellant
and two other employees were involved in an argument regarding job duties and supervision.
The employing establishment noted that management’s response to this incident was to separate
the participants and physically relocate appellant to another station, pending a more formal
resolution of the dispute. Appellant was given a temporary accommodation, allowing her to
work 9:00 a.m. to 3:00 p.m. because she presented a medical note citing stress and anxiety. The
employing establishment also noted that appellant did not file a formal claim until management

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discontinued this accommodation, requiring her to work her regular bid hours of 12:30 p.m. to
6:30 p.m.
By decision dated May 13, 2008, the Office denied the claim because the evidence of
record did not establish she sustained an injury in the performance of duty.
On June 11, 2008 appellant requested review of the written record.
Appellant submitted a June 5, 2008 note in which Donald Gonzales, a coworker, reported
witnessing Ms. Darrow and Ms. Byers “yelling and intimidating [appellant].” He noted that
appellant’s supervisor had talked to appellant but “did nothing to stop them.”
By decision dated November 17, 2008, the Office affirmed its prior decision because
appellant had not established that compensable employment factors caused her alleged emotional
condition.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.2
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.3 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
1

5 U.S.C. §§ 8101-8193.

2

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

Pamela R. Rice, 38 ECAB 838, 841 (1987).

4

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.
Absent error or abuse on the part of the employing establishment, administrative or
personnel matters, although generally related to employment, are administrative functions of the
employer rather than regular or specially assigned work duties of the employee.6 Furthermore,
an employee’s complaints about the manner in which a supervisor performs supervisory duties or
the manner in which a supervisor exercises supervisory discretion fall, as a rule, outside the
scope of coverage provided by the Act. This principle recognizes that a supervisor must be
allowed to perform his or her duties and that in performance of these duties, employees will at
times dislike actions taken. Mere disagreement or dislike of a supervisory or management action
is not actionable, absent evidence of error or abuse.7
ANALYSIS
Appellant identified a November 19, 2007 incident involving two coworkers as the
employment factor that caused her emotional condition. The Board must, thus, initially review
whether this alleged incident is a compensable employment factor under the terms of the Act.
The Board notes that verbal abuse or harassment may give rise to coverage under the Act,
but this does not imply that every statement uttered in the workplace will give rise to coverage
under the Act.8 The Board has held that being spoken to in a raised or harsh voice does not, of
itself, constitute verbal abuse or harassment.9 The fact that coworkers may not like one another
will not constitute a compensable factor of employment absent probative evidence of conduct
that may be characterized as harassment, discrimination or verbal abuse.10
The evidence supports that the incident involving appellant and Ms. Darrow arose
because Ms. Darrow, a Lead SSA, provided instruction and appellant became upset. While
appellant may not have liked the manner in which Ms. Darrow issued instructions and the
content of such instruction, generally complaints about the manner in which a superior performs
his or her duties or the manner in which a superior exercises his or her discretion fall, as a rule,
outside the scope of coverage provided by the Act, absent evidence of error or abuse.11 This
5

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

6

Gregory N. Waite, 46 ECAB 662 (1995).

7

Daniel B. Arroyo, 48 ECAB 204 (1996).

8

V.W., 58 ECAB 428 (2007).

9

T.G., 58 ECAB 189 (2006).

10

See Donney T. Drennon-Gala, 56 ECAB 469 (2005).

11

David C. Lindsey, Jr., 56 ECAB 263 (2005).

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principle recognizes that a superior, supervisor or manager in general must be allowed to
perform his or her duties, and employees will, at times, dislike the actions taken.
Appellant also generally alleged that she was verbally harassed by Ms. Darrow and that
Ms. Darrow allegedly called her “worthless” and was critical of her missing work.
Mr. Gonzales, a coworker, allegedly witnessed Ms. Darrow and Ms. Byers “yelling and
intimidating [appellant].” To establish harassment based upon a comment made by a supervisor
or coworker, a claimant must establish that the comment was actually made and that the
comment or any other action by the employing establishment was a form of harassment.12 The
mere fact that voices were raised during the course of a conversation has been found not to be
sufficient to establish verbal abuse.13 While the evidence does establish that voices were raised
during the incident in question, other than appellant’s allegation regarding the derogatory nature
of the comment, there is no corroborating evidence that any error or abuse in fact occurred.
Thus, this would not be a compensable employment factor.
Appellant alleged that the employing establishment’s decision to disregard the
recommendations of her physician, requiring her to work her regular bid hours, worsened her
condition. 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 under the Act.14 Such matters will be considered to be an
employment factor where the evidence discloses error or abuse on the part of the employing
establishment. In determining whether the employing establishment erred or acted abusively is a
question of reasonableness.15 Appellant has not submitted evidence showing that the employing
establishment committed error or abuse with regard to these matters. Thus, this is not a
compensable employment factor.
As appellant did not submit sufficient probative evidence to establish a compensable
factor of employment, she failed to establish that she sustained an emotional condition in the
performance of duty.16
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty

12

Ernest J. Malagrida, 51 ECAB 287 (2000).

13

Id.

14

See Michael Thomas Plante, 44 ECAB 510, 515 (1993).

15

See Richard J. Duke, 42 ECAB 916, 920 (1991).

16

Because appellant failed to establish a compensable employment factor, it was not necessary to consider the
medical evidence. Marlon Vera, 54 ECAB 834 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the November 17 and May 13, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: March 16, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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

Docket No. 10-1111
Issued: December 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 15, 2010 appellant filed a timely appeal from the January 26, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for further review
of the merits of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over this nonmerit decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In the most recent appeal, the Board
issued a decision on February 17, 2009 affirming the Office’s June 6, 2008 decision which denied

1

The most recent merit decision of record is the January 2, 2001 decision of the Board, affirming the denial of
appellant’s recurrence of disability claim. See Docket No. 99-2541 (issued January 2, 2001).

appellant’s request for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).2
The Office had found that the medical reports and argument submitted by appellant in support of
her reconsideration request either duplicated or were similar to evidence and argument previously
considered by the Office.3 The facts of the case are set forth in the Board’s prior decisions and are
incorporated herein by reference.
On July 24, 2009 appellant requested reconsideration of her claim for recurrence of
disability. In a July 20, 2009 letter, appellant argued that the Office impermissibly denied her
claim under the mistaken assumption that she was terminated from the employing establishment on
June 2, 1993 when in fact she was terminated on June 3, 1993. She asserted that the Office
indicated, in a June 6, 2008 decision, that she was terminated from the employing establishment on
June 2, 1993 and that her claim should be denied because the factual evidence of the case showed
that her work stoppage was a result of being terminated on that date. Appellant claimed that,
because her work stoppage occurred on June 2, 1993 and her termination occurred on June 3, 1993,
her work stoppage could not have been due to the termination which occurred a day later.4 She
stated:
“I ask you how then could my work stoppage be a result of my termination when
my work stopped the day before my termination. You based your denial on the
belief that the factual evidence of the case indicated my work stoppage to be a
result of my being terminated. The factual evidence shows this is incorrect.”
In a January 26, 2010 decision, the Office denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 the Office’s regulations provide that the evidence or
2

Docket No. 08-2013 (issued February 17, 2008). On April 7, 1993 appellant, then a 51-year-old letter carrier,
sustained a work-related acute lumbosacral strain and right knee strain. She stopped her limited-duty work on June 2,
1993 and was terminated from the employing establishment effective June 3, 1993. Appellant alleged that she
sustained a recurrence of disability on June 3, 1993 due to her April 7, 1993 employment injury. In several decisions,
the Office denied appellant’s claim on the grounds that she did not submit sufficient medical evidence to establish that
she sustained a work-related recurrence of disability on or after June 3, 1993.
3

In October 2, 1998 and January 2, 2001 decisions, the Board affirmed the Office’s finding that appellant had not
met her burden of proof to show that she sustained a recurrence of disability on or after June 3, 1993 due to her
April 7, 1993 employment injury. Docket No. 97-63 (issued October 2, 1998); Docket No. 99-2541 (issued
January 2, 2001). In later decisions, the Board found that the Office had properly denied appellant’s multiple
requests for further review of the merits of her claim.
4

Appellant submitted an undated “disability certificate” in which a person with an illegible signature stated that
she could not work from June 2 to 21, 1993. This document was previously submitted and considered by the Office
and the Board. Appellant also submitted a June 11, 1993 letter in which the postmaster at her workplace indicated
that she was separated from the employing establishment effective June 3, 1993 because of her unsatisfactory job
performance.
5

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).

2

argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.6 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.7 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.8 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record9 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.10 While a reopening of a case may be predicated solely on a legal premise not
previously considered, such reopening is not required where the legal contention does not have a
reasonable color of validity.11
ANALYSIS
On April 7, 1993 appellant sustained a work-related acute lumbosacral strain and right knee
strain. She stopped work on June 2, 1993 and alleged that she sustained a recurrence of disability
on June 3, 1993 due to her April 7, 1993 employment injury. The Office denied appellant’s claim
on the grounds that she did not submit sufficient medical evidence to establish that she sustained a
work-related recurrence of disability on or after June 3, 1993. In a January 26, 2010 decision, the
Office denied appellant’s request for further review of the merits of her claim pursuant to 5
U.S.C. § 8128(a).
In support of her reconsideration request, appellant argued that the Office impermissibly
denied her claim under the mistaken assumption that she was terminated from the employing
establishment on June 2, 1993 when in fact she was terminated on June 3, 1993. She asserted that
the Office denied her claim on the basis that her work stoppage was a result of being terminated on
June 3, 1993. Appellant claimed that, because her work stoppage actually occurred on June 2,
1993 and her termination from the employing establishment occurred on June 3, 1993, her work
stoppage could not have been due to the termination which occurred a day later.
The Board finds that the submission of this argument does not require reopening of
appellant’s claim for further review of the merits because this argument does not have a
reasonable color of validity with respect to main issue of the present case.12 Appellant argued
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

10

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

11

John F. Critz, 44 ECAB 788, 794 (1993).

12

See supra note 11.

3

that the basis of the Office’s denial of her claim for recurrence of disability was its mistaken
assumption that she stopped work due to the termination of her employment. However, the basis
for the Office’s denial of appellant’s claim was its finding that she did not submit sufficient
medical evidence to establish that she sustained a work-related recurrence of disability on or
after June 3, 1993.13 The main issue of the present case is medical in nature and would generally
be resolved by the submission of probative medical evidence. Appellant did not submit any new
and relevant medical evidence in connection with her reconsideration request.14
Appellant has not established that the Office improperly denied her request for further
review of the merits of its prior decisions under section 8128(a) of the Act, because the evidence
and argument she submitted did not to show that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by the Office
or constitute relevant and pertinent new evidence not previously considered by the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

13

On appeal appellant argued that she submitted relevant evidence on reconsideration with respect to the Office’s
use of “wrong dates.” She did not provide any further explanation of this argument.
14

Appellant submitted an undated “disability certificate” in which a person with an illegible signature stated that
she could not work from June 2 to 21, 1993. The submission of this document would not require reopening of
appellant’s claim as it was previously submitted and considered by the Office and the Board. See supra note 9. She
also submitted a June 11, 1993 letter in which the postmaster at her workplace indicated that she was separated from
the employing establishment effective June 3, 1993 because of her unsatisfactory job performance. The submission
of this document would not require reopening of appellant’s claim as it is not relevant to the main issue of the
present case. See supra note 10. As noted above, appellant’s case was denied due to her failure to submit sufficient
medical evidence and this document is not directly relevant to this matter.

4

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Barry A. Ormond, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1052
Issued: November 8, 2016

Case Submitted on the Record

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

JURISDICTION
On April 22, 2016 appellant, through her representative, filed a timely appeal from an
October 27, 2015 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
3

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. By decision dated August 22, 2016, the Board denied appellant’s request
for an oral argument, finding that appellant’s arguments on appeal could adequately be addressed in a decision based
on a review of the case record. Order Denying Request for Oral Argument, Docket No. 16-1052 (issued
August 22, 2016). Accordingly, the Board, in its discretion, has decided the appeal on the record.

ISSUE
The issue is whether appellant met her burden of proof to establish that her bilateral
carpal tunnel syndrome was causally related to factors of her federal employment.
FACTUAL HISTORY
On November 17, 2014 appellant, then a 34-year-old rural mail carrier, filed an
occupational disease claim (Form CA-2) alleging that she developed carpal tunnel syndrome as a
result of her federal employment duties. She explained that on October 14, 2014 she noticed that
her hands and wrists hurt while she worked. On October 27, 2014 appellant saw a doctor who
diagnosed her with carpal tunnel. On the reverse side of the claim form, the employing
establishment indicated that appellant resigned from employment on October 28, 2014 without
mentioning the alleged medical condition.
In an attached statement, appellant related that she noticed that her wrists and hands hurt
while she performed her job duties and continued to hurt after leaving work. She noted that she
informed her manager and supervisor that her hands and wrists hurt and that her fingers were
numb, but she continued to work because they told her that there was no one else to do her job.
Appellant believed that lifting trays of mail and packages were the reason that her hands and
wrists hurt. She explained that she worked 6 days a week for 8 to 11 hours per day.
Appellant received medical treatment from Dr. Ivia Somerville, a Board-certified family
practitioner. In treatment notes dated October 27 and November 12, 2014, Dr. Somerville
indicated that since September 27, 2014 appellant had been doing repetitive motion with both
upper extremities and noted pain and paresthesias at night. Upon examination, she observed
normal strength in both upper extremities and positive Tinel’s sign on the right. Dr. Somerville
diagnosed carpal tunnel syndrome. She explained that carpal tunnel syndrome could be caused
or aggravated by repetitive movements of the upper extremities. Dr. Somerville noted that
appellant’s current duties entailed at least eight hours of repetitive movements. She opined that
there was “a causal relationship with her current work duties.”
By letter dated December 2, 2014, OWCP informed appellant that the evidence submitted
was insufficient to establish her claim. It requested that she provide a narrative medical report
which established that she sustained a diagnosed condition causally related to her federal
employment. Appellant was afforded 30 days to submit this evidence. Nothing was received by
OWCP.
OWCP denied appellant’s claim in a decision dated January 5, 2015. It accepted that
appellant performed repetitive employment duties, but denied her claim as the medical evidence
of record failed to establish that she sustained a diagnosed condition causally related to factors of
her federal employment. OWCP specifically noted that the medical report appellant submitted
was of no probative value as it was from a physician assistant.
On February 10, 2015 OWCP received appellant’s request for an oral hearing before an
OWCP hearing representative, which was postmarked on February 4, 2015. The hearing
representative asserted that OWCP erred in finding that the medical documentation she

2

submitted was of no probative value because the report was signed by her physician. Appellant
submitted a print-out which demonstrated that Dr. Somerville was a Board-certified family
practitioner.
A telephone hearing was held on September 3, 2015. Appellant related that she began to
work for the employing establishment on June 23, 2014 as a city carrier. She described that her
duties involved casing and delivering mail, which required a repetitive lifting motion. Appellant
stated that she was also assigned to do collections, which required lifting between 50 to 100
packages with collections. She explained that she was forced to resign on October 28, 2014
because she was in too much pain from her injury to perform her regular duties. Appellant noted
that she currently works in the private sector as a sales associate. She discussed the medical
treatment she received from Dr. Somerville and noted that she was referred to a hand specialist
for further treatment. Appellant reported that she underwent an electromyogram (EMG) and
nerve conduction velocity (NCV) study in May 2015 and underwent surgery for right carpal
tunnel syndrome. She stated that her right hand felt better following the surgery but her left hand
was still numb and she was in a lot of pain. The hearing representative advised appellant that
OWCP needed additional medical documentation, including the diagnostic reports, operative
report, and treatment notes, pertaining to her condition.
Following the hearing, appellant submitted various medical reports from Dr. Jonathan
Isaacs, a Board-certified orthopedic hand surgeon. In treatment notes dated February 19 to
June 9, 2015, Dr. Isaacs related appellant’s complaints of bilateral hand numbness and tingling,
right wrist pain, and occasional right-sided neck pain. He related that appellant informed him
that she first noticed the hand numbness when she was asleep, but that at work she noticed that
her hands would cramp up with activities such as lifting things. Upon initial examination,
Dr. Isaacs observed good range of motion of both wrists without pain and tenderness, swelling,
or erythema. Tinel’s sign and cubital and carpal tunnel compression tests were positive on both
sides. Dr. Isaacs reported trigger points in the bilateral forearms that caused tingling in fingers.
He diagnosed probable greater than left carpal tunnel syndrome, possible right cubital tunnel
syndrome, and possible fibromyalgia.
In an April 14, 2015 electrodiagnostic evaluation report, Dr. Karen Ann Steidle, Boardcertified in physical medicine and rehabilitation, noted that appellant worked as a postal carrier.
She related that around October 2014 appellant started waking up at night with severe neck and
back pain and numbness in her hands. Appellant related that the problem was worsened by
repetitive movements and relieved by wearing a brace. Dr. Steidle reviewed appellant’s history
and conducted an examination. She observed palpable pulses at the brachial and radial locations
bilaterally and no edema of the wrists, hands, or digits bilaterally. Tinel’s sign at the elbow and
wrists was positive bilaterally. Dr. Steidle related that electrodiagnostic evaluation revealed
evidence of bilateral sensorimotor median neuropathy at the wrists without definite associated
denervation and evidence of very mild left ulnar demyelinating slowing across the elbow without
signs of significant axonal loss. She advised that appellant should follow-up with Dr. Isaacs in
regards to her carpal tunnel syndrome and ulnar neuropathy. Dr. Steidle reported that the
paresthesias in appellant’s hand appeared to be coming from the carpal tunnel syndrome, but the
neck and back pain would not be coming from the carpal tunnel condition.

3

An operative report dated May 1, 2015 indicated that appellant underwent right carpal
tunnel release surgery by Dr. Isaacs.
In a May 13, 2015 treatment note, Charlene Wheeler, a nurse practitioner, noted that
appellant was postoperative for right carpal tunnel release surgery. She related that appellant
complained of some mild soreness but observed overall improvement in her fingers. Upon
examination, Ms. Wheeler reported very minimal swelling with no evidence of infection or
swelling. She recommended that appellant avoid any heavy lifting, pushing, or pulling for one
week and then return to work.
Dr. Somerville provided a handwritten addendum report dated September 11, 2015. She
indicated that she referred appellant to Dr. Isaacs who suspected that appellant had right greater
than left carpal tunnel syndrome, possible right cubital tunnel syndrome, and possible
fibromyalgia. Dr. Somerville noted that appellant underwent EMG testing on April 14, 2015,
which revealed that appellant had sensorineural median neuropathy at the wrists bilaterally,
slightly worse on the right. She related that appellant underwent a right carpal tunnel release
surgery and was recuperating as expected. Dr. Somerville reported: “It was felt the carpal
tunnel was aggravated and exacerbated by her repetitive movements in her postal position.”
By decision dated October 27, 2015, an OWCP hearing representative affirmed the
January 5, 2015 denial decision with modification. She determined that the medical evidence of
record was sufficient to establish that appellant was diagnosed with carpal tunnel syndrome, but
it failed to demonstrate that appellant’s medical condition was causally related to her
employment duties. The hearing representative noted that appellant’s physician failed to
attribute appellant’s carpal tunnel syndrome to her specific duties at the employing establishment
or to explain how appellant’s condition was related to her federal employment and not to her
current employment as a sales associate.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
4

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

5

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

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

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
Appellant alleges that she sustained bilateral carpal tunnel syndrome as a result of
repetitively casing and delivering mail in the performance of duty. OWCP accepted the
repetitive duties of appellant’s job and that she was diagnosed with bilateral carpal tunnel
syndrome. It denied her claim because the medical evidence failed to establish that her bilateral
carpal tunnel syndrome was causally related to her employment. The Board finds that appellant
has not met her burden of proof to establish her occupational disease claim.
Appellant was initially treated by Dr. Somerville who provided medical reports dated
from October 27, 2014 to September 11, 2015. Dr. Somerville related that since September 27,
2014 appellant had been performing repetitive motion with both upper extremities. She provided
examination findings and diagnosed carpal tunnel syndrome. Dr. Somerville explained that
carpal tunnel syndrome could be caused or aggravated by repetitive movements of the upper
extremities and noted that appellant’s current duties entailed at least eight hours of repetitive
movements. She opined that there was “a causal relationship with her current work duties.” In
an addendum report dated September 11, 2015, Dr. Somerville discussed the medical treatment
appellant received and noted nerve EMG testing revealed sensorineural median neuropathy at the
wrists bilaterally, slightly worse on the right. She reported: “It was felt the carpal tunnel was
aggravated and exacerbated by her repetitive movements in her postal position.”
Although Dr. Somerville provided an opinion on causal relationship, she failed to provide
a well-rationalized medical opinion explaining how appellant’s specific employment duties as a
rural mail carrier caused or contributed to appellant’s bilateral carpal tunnel syndrome. The
Board has found that rationalized medical opinion evidence must relate specific employment
factors identified by the claimant to the claimant’s condition, with medical rationale explaining
how the employment factors physiologically caused the diagnosed condition.9 Dr. Somerville’s
reports, therefore, fails to establish appellant’s claim.
Appellant also submitted treatment notes dated from February 19 to June 9, 2015
including an operative report dated May 1, 2015 from Dr. Isaacs. He related appellant’s
complaints of bilateral hand numbness and tingling, right wrist pain, and occasional right-sided
neck pain. Upon initial examination, Dr. Isaacs reported that Tinel’s sign and cubital and carpal
tunnel compression tests were positive on both sides. He diagnosed probable greater than left
7

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

8

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

9

L.F., Docket No. 10-2287 (issued July 6, 2011); Solomon Polen, 51 ECAB 341 (2000).

5

carpal tunnel syndrome, possible right cubital tunnel syndrome, and possible fibromyalgia. The
Board notes that Dr. Isaacs did not provide an opinion on the cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer any opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10 Likewise, Dr. Steidle’s April 14, 2015 electrodiagnostic report also did not
provide an opinion relative to the cause of appellant’s bilateral carpal tunnel syndrome.
The May 13, 2015 treatment note by Ms. Wheeler, a nurse practitioner, also fails to
establish causal relationship. As nurse practitioners are not considered physicians as defined
under FECA, her opinion is insufficient to establish appellant’s occupational disease claim.11
On appeal, appellant alleges that her treating physician, Dr. Somerville, provided an
opinion that there was a causal relationship between her diagnosed condition and her
employment. She asserted that Dr. Isaacs’ medical opinion supported and supplemented
Dr. Somerville’s original opinion. As explained above, however, the medical reports by
Dr. Somerville and Dr. Isaac are of insufficient probative value to establish appellant’s
occupational disease claim. The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.12 Because appellant has not submitted such rationalized
medical evidence in this case, the Board finds that she has not met her burden of proof to
establish her occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
bilateral carpal tunnel syndrome was causally related to factors of her federal employment.

10

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).
11

Section 8102(2) provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
12

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

6

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. CUSTOMS & BORDER PROTECTION,
)
LOS ANGELES INTERNATIONAL AIRPORT, )
Los Angeles, CA, Employer
)
___________________________________________ )
E.W., Appellant

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

Docket No. 13-741
Issued: June 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 11, 2013 appellant filed a timely appeal from the January 31, 2013 Office of
Workers’ Compensation Programs’ (OWCP) decision which found that she did not sustain an
injury in the performance of duty. 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 her burden of proof to establish that she sustained an
injury on February 26, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 2, 2009 appellant, then a 49-year-old secretary, filed a traumatic injury claim
alleging that on February 26, 2009 she sustained a contusion to the coccyx or sacrum after
attempting to sit in her chair. It tilted and caused her to fall to the floor, hitting the right side of
her body on an open drawer and the chair on top of her. Appellant stopped work on February 26,
2009 and returned on March 2, 2009.2
On January 25, 2010 appellant filed a notice of recurrence of disability commencing on
December 5, 2009.
In a letter dated February 5, 2010, OWCP requested additional factual and medical
evidence from appellant and the employing establishment. It noted that her case was received as
a simple uncontroverted claim handled to allow up to $1,500.00 in medical payments. OWCP
noted that it would formally adjudicate appellant’s claim.
In a February 11, 2010 statement, appellant described her injury noting that she was
attempting to sit in her chair when it tilted and caused her to fall to the floor. The right side of
her body struck an area where the drawers were opened and the chair fell on top of her.
Appellant submitted hospital discharge instructions for a coccyx or sacrum contusion but she
indicated that “a physician was not assigned.”
By decision dated March 10, 2010, OWCP denied appellant’s claim finding that she did
not establish an injury as alleged. It found that the medical evidence was insufficient to establish
a back condition caused by the employment incident. OWCP noted that there was no medical
evidence signed by a physician that provided a diagnosis.3
On October 11, 2011 OWCP received appellant’s undated request for reconsideration.
Appellant noted that she did not receive the initial decision. She explained that she was not
given the opportunity to appeal the decision.
In a May 2, 2011 first report of injury, Dr. Max Lebow, Board-certified in emergency
medicine, noted that appellant related that, while at work, she fell from her chair and landed on
her back. He noted tenderness and spasm in the left lumber paravertebral muscles. Dr. Lebow
diagnosed a sprain and strain of the lumbosacral spine. He indicated that his diagnosis was
consistent with appellant’s account of injury and noted that diagnostic testing was ordered.
In a May 12, 2011 work status summary, Dr. Lora Bofill, a Board-certified family
practitioner and associate of Dr. Lebow, provided a “work comp -- follow up” noting appellant’s
diagnosis and work status. In a May 19, 2011 report, she noted appellant’s history of injury and
examined appellant. Dr. Bofill diagnosed a sprain and strain of the lumbosacral spine and

2

On May 26, 2009 OWCP received a Los Angeles City Fire Department Emergency Medical Service Report
related to the February 26, 2009 incident.
3

The record reflects the decision was returned to sender.

2

opined that appellant’s case was work related. OWCP also received records from a physician
assistant and physical therapy notes.
By decision dated February 8, 2012, OWCP found that the medical evidence was
insufficient to establish that appellant’s back condition was causally related to the February 26,
2009 chair incident.
On February 17, 2012 appellant provided OWCP with a current copy of her mailing
address.
On January 31, 2013 OWCP reissued the February 8, 2012 decision to appellant’s
updated mailing address.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA5 and that an injury was sustained in the performance of duty.6 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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,

4

5 U.S.C. §§ 8101-8193.

5

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

6

James E. Chadden, Sr., 40 ECAB 312 (1988).

7

Delores C. Ellyet, 41 ECAB 992 (1990).

8

John J. Carlone, 41 ECAB 354 (1989).

9

Id.

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged that on February 26, 2009 her chair tilted and she fell on the floor,
striking the right side of her body. There is no dispute that her chair tilted and she fell on the
floor on February 26, 2009. OWCP found that the claimed incident occurred as alleged.
The Board finds that the medical evidence is insufficient to establish that the employment
incident caused an injury. The medical reports of record do not sufficiently address the issue of
causal relation or how falling on the floor on February 26, 2009 caused a personal injury. The
medical evidence contains no reasoned explanation of how the chair falling incident caused or
contributed to the diagnosed lumbosacral sprain.
In a May 2, 2011 report, Dr. Lebow diagnosed a sprain and strain of the lumbosacral
spine. He indicated generally that his diagnosis was consistent with appellant’s account of
injury; but did not further explain how he arrived at his conclusion on causal relationship. As
noted, a claimant’s burden of proof includes the submission of a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
accepted employment incident.11 Dr. Lebow first treated appellant several years following the
incident. He identified symptoms beyond the low back noting that she reported no other past
injuries on the intake sheet. Dr. Lebow provided no explanation for the basis of his conclusion
on causal relationship.
In a May 19, 2011 treatment report, Dr. Bofill, noted appellant’s history of injury and
examined appellant. She diagnosed a sprain and strain of the lumbosacral spine and stated that
she had determined appellant’s case to be work related. Dr. Bofill also did not provide a
rationalized opinion addressing how appellant’s low back condition was work related. The
report is insufficient to establish causal relationship. Other reports from Drs. Lebow and Bofill
do not explain how the February 26, 2009 work incident caused or contributed to the diagnosed
medical condition.
Appellant also submitted evidence from physical therapists and physician assistants. The
Board has held that lay individuals such as physician’s assistants, nurses and physical therapists
are not competent to render a medical opinion under FECA.12 Consequently this evidence does
not constitute competent medical evidence it is insufficient to establish causal relationship.

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

See id.

12

David P. Sawchuk, 57 ECAB 316 (2006). See 5 U.S.C. § 8101(2) (provides that the term “physician” includes
surgeons, podiatrist, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within
the scope of their practice as defined by State law).

4

In the present case, there is insufficient medical evidence from a physician explaining
how the employment incident of February 26, 2009 caused or aggravated appellant’s lumbar
condition.
For these reasons, appellant has not established that the February 26, 2009 employment
incident caused or aggravated a specific injury.
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 in establishing that she
sustained an injury in the performance of duty on February 26, 2009.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Greenville, IL, Employer
__________________________________________

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

Docket No. 18-0572
Issued: October 1, 2018

Case Submitted on the Record

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

JURISDICTION
On January 23, 2018 appellant filed a timely appeal from an August 18, 2017 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 a right thumb injury
causally related to the accepted May 5, 2016 employment incident.
FACTUAL HISTORY
On July 9, 2016 appellant, then a 37-year-old correctional officer, filed a traumatic injury
claim (Form CA-1) alleging that, on May 5, 2016, he sustained a right thumb injury during a
training exercise at work when he fell forward with his hands under his body. He notified his
1

5 U.S.C. § 8101 et seq.

supervisor on the day of injury. On the reverse side of the claim form, appellant’s supervisor
reported that he was injured in the performance of duty.
In a June 14, 2016 medical report, Dr. Lisa Sasso, a Board-certified orthopedic surgeon,
reported that appellant presented for evaluation of the right thumb. She reported that the right
thumb injury occurred in the beginning of May when he fell while playing with his kids. Dr. Sasso
reviewed x-rays and diagnosed right thumb metacarpophalangeal (MP) joint ulnar collateral
ligament sprain, possible tear. She provided right thumb splint and recommended a magnetic
resonance imaging (MRI) scan for further assessment.
In a July 8, 2016 medical report, Dr. Patrick Stewart, a Board-certified hand surgeon,
related that appellant was first evaluated on June 14, 2016 for an injury he sustained in early May.
Appellant informed him that the injury occurred at work. An MRI scan of the right thumb
confirmed the diagnosis of right thumb ulnar collateral ligament tear at the MP joint. He reported
that appellant was eight weeks postinjury and recommended operative intervention to restore
function. Dr. Stewart noted that he would request approval for surgery and recommended he
continue with his splint over this interval.
In an October 18, 2016 report, Dr. Sasso noted that appellant was diagnosed with a
collateral ligament injury in May 2016, as confirmed by a right thumb MRI scan. Dr. Sasso noted
that appellant was awaiting authorization from OWCP for surgery.
By development letter dated July 13, 2014, OWCP informed appellant that the evidence of
record was insufficient to establish his traumatic injury claim. It advised appellant of the medical
and factual evidence needed to establish his claim. OWCP provided appellant a questionnaire for
his completion and afforded appellant 30 days to submit the necessary evidence.
On August 1, 2017 appellant responded to the development letter and submitted the
requested questionnaire. The questionnaire noted that there were conflicting statements as
appellant first reported on his CA-1 that the injury occurred during a work training exercise while
Dr. Sasso reported that he indicated that the injury occurred while he was playing with his kids.
Appellant responded by stating that he initially did not plan to report the injury through a workers’
compensation claim because he assumed it to be a minor injury. He named his supervisor and two
other coworkers as having witnessed his injury or with immediate knowledge of it. Appellant
reported that he did not file his Form CA-1 within 30 days of the alleged May 5, 2016 employment
incident because he assumed it was a simple sprain and thought it would heal without medical
treatment.
In support of his claim, appellant submitted a May 16, 2017 diagnostic report from Dr. P.C.
Shekar, a Board-certified radiologist, who reported that appellant shut his finger in a car door and
complained of third digit pain. An x-ray of the right third finger revealed mild soft tissue swelling
over the proximal interphalangeal (PIP) joint.
By decision dated August 18, 2017, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that his right thumb condition was causally related to the
accepted May 5, 2016 employment incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish 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 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
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish causal relationship between the diagnosed condition and the employment
event or incident or any attendant disability claimed, the employee must submit rationalized
medical opinion evidence supporting such causal relationship.6 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. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.7
ANALYSIS
The Board finds that appellant has not established that his right thumb condition is causally
related to the accepted May 5, 2016 employment incident.8

2

Supra note 1.

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

3

In support of his claim, appellant submitted medical reports dated June 14 to October 18,
2016 from Dr. Sasso and Dr. Stewart. The Board finds that the reports of these physicians are not
well rationalized and insufficient to establish appellant’s claim. Dr. Sasso and Dr. Stewart failed
to provide any details pertaining to the May 5, 2016 employment incident, only generally noting
that an injury occurred in early May. While the physicians provided a firm medical diagnosis of
right thumb ulnar collateral ligament tear at the MP joint, they failed to provide an opinion
regarding the cause of his condition. The Board has held that a physician must provide a narrative
description of the identified employment incident and a reasoned opinion on whether the
employment incident described caused or contributed to the diagnosed medical condition.9
Without explaining how physiologically the movements involved in the employment incident
caused or contributed to the diagnosed condition, the reports of Dr. Sasso and Dr. Stewart are of
limited probative value and insufficient to meet appellant’s burden of proof.10
Dr. Sasso’s June 14, 2016 report described a right thumb injury as having occurred in the
beginning of May when appellant fell while playing with his kids. Her medical report contradicts
appellant’s account of the alleged May 5, 2016 work-related injury as it suggests his right thumb
tear was caused by a nonoccupational injury.11 Neither Dr. Sasso nor Dr. Stewart ever described
the circumstances surrounding the May 5, 2016 work incident alleged to have caused his current
right thumb condition. Without any mention of the May 5, 2016 employment incident, any
findings made by the physician are insufficient to establish causal relationship.12
Dr. Shekar’s May 16, 2017 diagnostic report also calls into question the circumstances
surrounding appellant’s right thumb injury. The report provided x-ray findings for the right third
finger, noting that appellant complained of right third digit pain after shutting his finger in a car
door. It remains unclear if appellant also injured his right thumb during this nonindustrial incident
having also occurred in May. Given the above, the medical evidence of record fails to support that
appellant’s right thumb condition was causally related to the accepted May 5, 2016 employment
incident. Thus, appellant has failed to meet his burden of proof.13
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.

9

John W. Montoya, 54 ECAB 306 (2003).

10
See L.M., Docket No. 14-973 (issued August 25, 2014); R.G., Docket No. 14-113 (issued April 25, 2014); K.M.,
Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-548 (issued November 16, 2012).
11

C.f. S.A., Docket No. 10-1786 (issued May 4, 2011).

12

S.Y., Docket No. 11-1816 (issued March 16, 2012).

13
See generally P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued
September 19, 2012).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right thumb
injury causally related to the accepted May 5, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 18, 2017 is affirmed.
Issued: October 1, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B.-C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Wayne, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1521
Issued: August 6, 2021

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 August 17, 2020 appellant, through counsel, filed a timely appeal from a February 20,
2020 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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a low back condition
causally related to the accepted May 14, 2016 employment incident.
FACTUAL HISTORY
On March 14, 2018 appellant, then a 50-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on May 14, 2016 she sustained low back pain/strain while lifting
a heavy package for a customer delivery while in the performance of duty. On the reverse side of
the claim form appellant’s supervisor, E.D., noted that it was “undetermined” if the injury occurred
in the performance of duty. Appellant stopped work on May 20, 2016.
Appellant was treated by Brian Laursen, a physician assistant, on May 20, 2016, who
diagnosed sprain and strain of lumbosacral joint/ligament, initial encounter. Mr. Laursen held
appellant off work from May 20 through 24, 2016 and released appellant to return to work without
restrictions on May 25, 2016.
In a work restriction worksheet dated May 24, 2016, Dr. Kevin Rahn, a Board-certified
orthopedist, advised that appellant should remain off work until her next office visit. On June 20,
2016 he reviewed x-rays of the lumbar spine, which revealed retrolisthesis at L3-4, decreased disc
space at L3-4, and a prior fusion, which appeared to be solid at L4-S1. On July 15, 2016 Dr. Rahn
performed a fusion of the lumbar spine and diagnosed stenosis at L3-4, status post fusion at L4S1 with the addition of a large foraminal disc herniation at L3-4 on the left. He noted severe
stenosis at L3-4 with foraminal disc herniation at L3-4, which was not visualized well on the
magnetic resonance imaging (MRI) scan. Dr. Rahn indicated that L3-4 was compressing and
crushing the L3 nerve root, which was probably the etiology of appellant’s L3 nerve root pain.
On September 9, 2016 appellant underwent a Doppler ultrasound, which revealed no
indication of deep venous thrombosis.
Dr. Rahn treated appellant in a follow-up visit on November 29, 2016 four months status
post decompression and instrumented fusion of the lumbar spine. He noted that the x-rays of the
lumbar spine revealed good fixation, instrumentation, and fusion. Dr. Rahn found appellant totally
disabled from work. On March 9, 2017 he examined appellant eight months status post
instrumented and fusion of the lumbar spine. Dr. Rahn reported that appellant was improving, but
she was still in a fair amount of pain and would remain off work. Appellant was again seen by
Dr. Rahn on October 17, 2017, where he reported no change in her examination. He indicated that
appellant was stable and continued permanent restrictions.
In restriction worksheets dated January 31 and March 30, 2018, Dr. Rahn noted chronic
back pain, hip numbness, and left knee numbness. He noted permanent restrictions of occasional
bending, twisting, or stretching, no lifting over five pounds, and alternating between sitting and
standing as tolerated. Dr. Rahn advised that appellant could not return to work. In an April 4,
2018 attending physician’s report (Form CA-20), he related that appellant was injured at work on
May 14, 2016, when picking up a package. Dr. Rahn noted her history was significant for a
June 20, 2008 lumbar fusion at L4-S1. He diagnosed lumbar radicular pain and lumbar stenosis

2

and checked a box marked “Yes” indicating that appellant’s condition had been caused or
aggravated by an employment activity.
In a March 19, 2018 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
The employing establishment submitted a statement from T.C., a supervisor, dated April 5,
2018, T.H., a manager, undated, and A.C., a field sales representative, dated April 12, 2018; who
each indicated that appellant did not report an accident or injury at work during their tenure. K.H.,
the postmaster provided appellant a reasonable accommodation request form.
By decision dated April 24, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a causal relationship between a
diagnosed medical condition and the accepted May 14, 2016 employment incident.
OWCP received a November 23, 2016 letter from K.H. who requested updated medical
documentation from appellant in support of her continuing absence from work. In a letter dated
January 25, 2018, K.H. indicated that appellant’s last day in pay status was September 3, 2016 and
requested a status of her return to work.
On May 15, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on October 2, 2018.
By decision dated November 14, 2018, OWCP’s hearing representative affirmed the
April 24, 2018 decision.
OWCP subsequently received a January 7, 2019 letter from the Office of Personnel
Management (OPM), which granted appellant disability retirement due to lumbar stenosis with
radiculopathy.
On January 19, 2019 Dr. Rahn noted reviewing appellant’s medical chart as well as
OWCP’s decision denying her claim. He reiterated that appellant did not have any issues develop
after her fusion at L4-S1 in 2008 and continued to work prior to the May 14, 2016 work injury.
Dr. Rahn indicated that, although he did not know the weight of the box lifted, often times it was
not the size or the weight, but a combination of size, weight, and position of the spine when lifting
or moving a large box that can cause an injury. He advised that appellant had a fusion at L4-S1,
which would cause a 15 to 20 percent increased risk of degeneration on the adjacent levels
including at L3-4. Dr. Rahn noted likely stenosis and degeneration with time, with or without a
fusion. During the surgery on July 15, 2016, he reported a large foraminal disc herniation, which
was not well documented on the MRI scan prior to surgery. Dr. Rahn advised that this was an
acute injury and not typically found on a chronic basis and “more often than not” occurred at some
point three to six months prior to the July 15, 2016 surgery. He noted findings of spinal stenosis
for all people as they age, but indicated that appellant’s history was significant for prior surgery at
L4-S1. Dr. Rahn opined that the adjacent level degeneration was quite sudden and noted
intraoperatively as a cause of her leg pain and radicular symptoms. He opined that “more often
than not” the surgery was the result of a recent injury three to six months prior based on the
3

foraminal disc herniation. Dr. Rahn stated that, assuming appellant had not sought care prior to
this injury for her low back pain, he would more often than not opine that this was the result of her
injury on May 14, 2016.
On March 11, 2019 appellant, through counsel, requested reconsideration.
By decision dated February 20, 2020, OWCP denied modification of the November 14,
2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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,4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To 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. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.8 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported

3

Supra note 2.

4
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

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

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

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8
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).

4

by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.9
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a low back
condition causally related to the accepted May 14, 2016 employment incident.
In support of her claim, appellant submitted a January 19, 2019 report from Dr. Rahn who
reiterated that appellant was asymptomatic after her fusion at L4-S1 in 2008 and continued to work
prior to the May 14, 2016 work injury. Dr. Rahn advised that the large foraminal disc herniation
found on July 15, 2016 was an acute injury and not typically found on a chronic basis and “more
often than not” occurred at some point three to six months prior to the July 15, 2016 surgery. He
opined that “more often than not” the surgery was the result of a recent injury. The Board has held
that medical opinions that suggest that a condition was likely or more often than not caused by
work activities are speculative or equivocal in character and have limited probative value. 11 As
such, this report by Dr. Rahn does not offer a rationalized medical opinion explaining causal
relationship and is insufficient to establish appellant’s claim.
In a series of reports dated June 20, 2016 through October 17, 2017, Dr. Rahn diagnosed
stenosis at L3-4 and status post fusion at L4-S1 with the addition of a large foraminal disc
herniation at L3-4 on the left. He noted that appellant was improving status post-surgery and xrays of the lumbar spine revealed good fixation, instrumentation, and fusion. Dr. Rahn found
appellant totally disabled from work. He did not, however, offer an opinion regarding the cause
of appellant’s conditions in these reports. In work restriction worksheets dated May 24, 2016
through March 30, 2018, Dr. Rahn noted chronic back pain, hip numbness, and left knee numbness
and advised that appellant could not return to work. The Board has held that medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.12 As such, this evidence is insufficient to meet appellant’s
burden of proof.
In a Form CA-20 attending physician’s report dated April 4, 2018, Dr. Rahn related that
appellant was injured at work on May 14, 2016, when picking up a package. He diagnosed lumbar
9
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).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

11

J.W., Docket No. 18-0678 (issued March 3, 2020).

12
D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).

5

radicular pain and lumbar stenosis and checked a box marked “Yes,” indicating that appellant’s
condition had been caused or aggravated by an employment activity. However, the Board has held
that an opinion on causal relationship with an affirmative check mark, without more by way of
medical rationale, is insufficient to establish the claim.13 As such, these reports are insufficient to
establish appellant’s claim.
Appellant submitted a physician assistant report dated May 20, 2016. Certain healthcare
providers, such as physician assistants,14 are not considered “physician[s]” as defined under
FECA.15 Consequently, their medical findings and/or opinions will not suffice for purposes of
establishing entitlement to FECA benefits.16
Appellant also submitted a September 9, 2016 Doppler ultrasound. The Board has held,
however, that diagnostic test reports, standing alone, lack probative value as they do not provide
an opinion on causal relationship between an employment incident and a diagnosed condition.17
As the medical evidence of record does not include a rationalized opinion establishing
causal relationship between appellant’s claimed conditions and the accepted May 14, 2016
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 a low back
condition causally related to the accepted May 14, 2016 employment incident.

13

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
14

C.P., Docket No. 19-1716 (issued March 11, 2020) (a physician assistant is not a physician as defined under
FECA).
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Par 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1)(January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
15

16

Id.

17

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 6, 2021
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

7