United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

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

Docket No. 13-799
Issued: March 5, 2014

Case Submitted on the Record

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

JURISDICTION
On February 8, 20131 appellant filed a timely appeal of an August 16, 2012 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

The timeliness of the appeal was based on the postmark date on appellant’s appeal and not the date the Clerk of
the Board received it, February 13, 2013, as the latter date would have rendered the appeal untimely. See 20 C.F.R.
§ 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 16, 2012 decision, OWCP received additional evidence. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20
C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Keyes, 54 ECAB 373 (2003).

ISSUES
The issues are: (1) whether appellant is entitled to wage-loss compensation for the
periods November 16, 1999 to June 14, 2002, August 14 to November 25, 2002, December 26,
2002 to July 27, 2004 and on or after October 5, 2004; and (2) whether appellant has established
that his claim should be expanded to include cubital tunnel syndrome, right dorsal wrist ganglion
condition, left radiocarpal degenerative disease, left degenerative lunotriquetral ligament changes
and a left triangular fibrocartilage complex (TFCC) tear.
On appeal appellant contends that he is entitled to wage-loss compensation on and after
November 16, 1999 and that OWCP erred in failing to expand his claim to include the additional
conditions.
FACTUAL HISTORY
On July 29, 1999 appellant, then a 51-year-old regional director, filed an occupational
disease claim alleging that on May 20, 1996 he first became aware of aggravation of pain in his
forearms, wrists, hands and shoulders. It was not until June 10, 1996 that he realized his
condition was caused by his employment duties. OWCP accepted the claim for bilateral carpal
tunnel syndrome.4 Appellant was placed on administrative leave on April 23, 1999 unrelated to
his medical condition, was placed in a leave-without-pay (LWOP) status on November 16, 1999
and resigned from the employing establishment effective April 21, 2000.5
On April 3, 2000 appellant filed a claim for wage-loss compensation (Form CA-7)
beginning November 16, 1999 when he was placed on LWOP and continuing for intermittent
periods.6
By decision dated May 17, 2000, OWCP denied appellant’s claim for wage-loss
compensation on and after November 16, 1999.
In an August 10, 2000 decision, before the hearing was held, an OWCP hearing
representative vacated the May 17, 2000 decision and remanded the case for further development
of appellant’s job duties and alleged work-related conditions.
On November 3, 2000 appellant requested that his claim be expanded to include
additional conditions. He alleged that his repetitive work duties aggravated his preexisting
conditions of collagen/vascular disorder, spinal stenosis, right shoulder injury and inflammation
of the muscles, tendons and nerves of the forearm, wrists, hands and fingers. Appellant
submitted reports from his treating physician, Dr. Charles Schacherer, a Board-certified
4

OWCP later authorized several carpal tunnel surgeries.

5

On October 4, 2000 the Office of Personnel Management approved appellant’s claim for disability retirement.

6

In a memorandum dated April 21, 2000, the employing establishment informed OWCP and submitted
supporting evidence that appellant was self-employed beginning November 16, 1999 as principal owner of the
“Hygeia Group.”

2

neurologist, who found appellant totally disabled and found that all his conditions stemmed from
work factors.
OWCP referred appellant to a second opinion examination with Dr. Charles E. Graham, a
Board-certified orthopedic surgeon. Based on that report, by decision dated April 4, 2001, it
proposed to terminate appellant’s medical benefits for the accepted conditions as Dr. Graham
found there was no evidence of carpal tunnel syndrome. Dr. Graham found that appellant’s
complaints were more likely related to the preexisting conditions of collagen vascular disorder or
cervical spinal stenosis. By decision dated May 11, 2001, OWCP finalized the termination of
medical benefits.
By decision dated September 10, 2002, an OWCP hearing representative set aside the
May 11, 2001 decision finding an unresolved conflict in the medical opinion as to whether
appellant continued to have residuals of the accepted work-related condition of bilateral carpal
tunnel syndrome. OWCP was also instructed to prepare a more complete and accurate statement
of accepted facts and to further develop the medical evidence to determine whether appellant’s
preexisting conditions had been aggravated by his employment duties.7
After further development of the factual evidence on January 30, 2003 OWCP referred
appellant to Dr. Kenneth S. Bayless, a Board-certified orthopedic surgeon, to resolve the conflict
as to whether there were any residuals from the accepted condition and to determine whether the
work duties had aggravated any preexisting conditions. In a February 18, 2003 report,
Dr. Bayless, based upon a review of the medical and factual evidence and physical examination,
diagnosed bilateral entrapment wrist neuropathy, right shoulder rotator cuff repair, cervical disc
disorder and mixed connective tissue disorder. He indicated that referral to a rheumatologist was
required to determine whether appellant’s wrist scleroderma and collagen vascular disorder or
Reiter’s syndrome had been aggravated by his employment duties. Dr. Bayless opined that
appellant’s cervical and right shoulder conditions had not been caused or aggravated by his
employment duties as the duties he performed would not have caused any aggravation. With
respect to appellant’s ability to perform his work duties, Dr. Bayless opined that he was capable
of performing his work duties if appropriate accommodations were made.
On April 7, 2003 OWCP referred appellant to Dr. Lige E. Rushing, a Board-certified
internist with a subspecialty in rheumatology. In his April 25, 2003 report, Dr. Rushing, based
upon a review of the medical evidence, statement of accepted facts and physical examination,
opined that the current objective findings did not support the diagnoses of collagen vascular
disease, Reiter’s disease or scleroderma. He noted that, while the conditions might have been
present in the past, it was not currently present based on the negative scleroderma antibody,
negative rheumatoid factor test and negative antinuclear antibody test. Dr. Rushing determined
that appellant’s work duties had not aggravated any underlying vascular or Reiter’s disorder.
With respect to aggravation of a preexisting right rotator cuff tear, he stated that this condition
7

In reaching her decision, the hearing representative relied, in part, upon an unsigned statement from a coworker,
supportive of the extent of appellant’s work duties. The coworker, upon learning of this proferred unsigned
statement, obtained a copy of the document from OWCP and submitted a signed statement to the record disputing
the facts in the statement and acknowledging that, although appellant had requested her to sign the document, she
had refused.

3

could be aggravated by repeated use of the mouse for extended time periods but that any
aggravation would have been temporary.
In April 17 and July 24, 2003 supplemental reports, Dr. Bayless agreed with Dr. Rushing
that appellant would have been unable to continue in his employment without additional carpal
tunnel surgery and that, following the right endoscopic carpal tunnel release surgery, appellant
would have been able to return to clerical sedentary work after four to six weeks. He also agreed
that, following the left endoscopic carpal tunnel release surgery, appellant would have been able
to return to a clerical sedentary position within four weeks of the surgery. Dr. Bayless noted that
appellant would have been able to return to sedentary clerk work six to eight weeks following
nonemployment-related right shoulder arthroplasty and rotator cuff repair surgery.
By decision dated August 8, 2003, OWCP denied appellant’s request to expand his claim
to include aggravation of his preexisting conditions of collagen vascular disease, right rotator
cuff tear and cervical stenosis. It also retroactively authorized carpal tunnel surgeries performed
on June 14 and November 26, 2002 and wage-loss compensation for the periods June 14 to
August 14, 2002 and November 26 to December 26, 2002.
Following a request for a hearing, which was held on April 2, 2004, an OWCP hearing
representative, by decision dated July 9, 2004, affirmed the denial of expansion of appellant’s
claim to include aggravation of his preexisting conditions, but found the reports of Drs. Bayless
and Rushing to be vague, equivocal and unrationalized. The case was remanded for referral to a
new independent medical specialist after updating the statement of accepted facts.
On August 11, 2004 OWCP referred appellant to Dr. M. Lewis Frazier, Jr. to resolve the
remaining conflict as to the periods of disability.
In a November 2, 2004 report, Dr. Frazier, based upon a review of the medical and
factual evidence and statement of accepted facts, noted significant preexisting conditions of
cervical degenerative disc disease and stenosis; collagen vascular disease or Reiter’s syndrome
since 1975; a 1954 wrist injury; osteoporosis; fibromyalgia, possibility of Raynaud’s;
gynecomastia; plantar fasciitis and tarsal tunnel syndrome; and right shoulder injury with rotator
cuff tear and repair. He noted that OWCP had accepted bilateral carpal tunnel syndrome but
opined that appellant would have been able to perform his employment duties due to the minimal
physical requirements of the position and the availability of assistive devices.
In a November 29, 2004 decision, OWCP denied appellant’s claim for the requested
periods of wage-loss compensation based on Dr. Frazier’s opinion.
In an August 8, 2005 report, Dr. Schacherer opined that appellant’s dorsal ganglion cyst
of the right wrist had been aggravated by the repetitive work duties that had caused the accepted
bilateral carpal tunnel condition. He related that medical literature supported that ganglion cysts
could be aggravated by repetitive activities.
By decision dated September 8, 2005, an OWCP hearing representative set aside the
November 29, 2004 decision. As the issue concerned not only past periods of disability but also

4

whether appellant had continuing residuals of the accepted conditions, the case was remanded for
a physical examination by an independent medical specialist, rather than simply a review of the
record.8
OWCP referred appellant to Dr. Thomas C. DiLiberti, a Board-certified orthopedic
surgeon, for an independent medical evaluation. In a November 17, 2005 report, Dr. DiLiberti
noted reviewing the medical and factual evidence and provided physical findings on
examination. He found no significant atrophy, a palpable mass on the right wrist dorsal aspect,
well-healed wrist surgical incisions and negative Tinel’s sign bilaterally at the median nerve. A
review of an October 23, 2001 magnetic resonance imaging (MRI) scan revealed left lunate
degenerative change and right radiocarpal degenerative change. Dr. DiLiberti’s review of x-ray
interpretations showed calcification in the luntriquetral area. Based on his review of the medical
evidence and medical history, he opined that appellant was not disabled from performing his
date-of-injury employment duties. Dr. DiLiberti noted that, with modification of his duties and
work accommodations, appellant would have been able to work. Next, he found no evidence
that appellant’s right dorsal wrist ganglion had been caused by or aggravated by his employment.
Dr. DiLiberti related that this condition was first discussed on June 8, 2005 and there was no
evidence showing the existence of a ganglion cyst prior to this date.
In a November 29, 2005 supplemental report, Dr. DiLiberti opined that the conditions of
lunotriquetral ligament degenerative changes, radiocarpal degenerative disease and TFCC tears
were unrelated to appellant’s employment duties as a regional director. In support of this
conclusion, he reported that the record he reviewed contained no documentation of any work
activity which would have caused these conditions. Next, Dr. DiLiberti reported that he found
no evidence of any scarring around the area where appellant had left carpal tunnel release
surgery.
By decision dated November 3, 2005, OWCP’s District Director denied appellant’s
previous October 7, 2005 hearing request as premature.9
By decision dated December 16, 2005, OWCP denied appellant’s claim for the additional
wage-loss compensation as the medical evidence did not establish that he was totally disabled. It
also found the evidence insufficient to warrant expansion of his claim to include right dorsal
wrist ganglion condition, left radiocarpal degenerative disease, left degenerative lunotriquetral
ligament changes and left TFCC tear. Additional surgeries were also denied.10
8

Thereafter, on September 21, 2005 appellant submitted a request to OWCP to appoint a new claims examiner as
to continue to have his case handled by the same claims examiner would be prejudicial to his case. By letter dated
October 4, 2005, the District Director clarified that OWCP had not been instructed to order a new claims examiner
and thus his request was being denied. On October 7, 2005 appellant requested an oral hearing due to the bias of the
hearing representative.
9

Id.

10

Appellant’s physician had previously requested authorization for repeat carpal tunnel surgery. This request was
forwarded to OWCP’s medical adviser who noted that his carpal tunnel symptoms had improved until appellant had
more recently been engaged in overhead painting. The medical adviser recommended denying the additional
surgery based on the overhead painting and the fact that Dr. Rushing had found appellant’s carpal tunnel symptoms
temporary. No decision had previously been issued on that request.

5

On December 26, 2005 appellant requested an oral hearing, which was held before an
OWCP hearing representative on January 24, 2007. Additional new medical evidence was also
submitted.
In addition to February 2007 reports of Dr. Schacherer, a February 15, 2007 report was
received from Dr. Rushing which found that appellant continued to have the same symptoms as
when he had been previously examined on April 25, 2003.11 Dr. Rushing opined that appellant
was unable to manage a computer keyboard or mouse due to the previously described
disabilities.
By decision dated April 19, 2007, an OWCP hearing representative, affirmed the
December 16, 2005 denial of appellant’s claim for any further wage-loss compensation based on
the weight of Dr. DiLiberti’s reports.12 By letter dated May 7, 2009, appellant requested
reconsideration contending that the hearing representative had erred by not reviewing all of the
newly submitted medical evidence.
On May 16, 2007 OWCP received a February 16, 2007 report from Dr. Schacherer who
opined that appellant was disabled from working due to his accepted conditions.
Appellant reiterated his request for reconsideration on June 27, 2007.
By decision dated August 15, 2007, an OWCP senior claims examiner denied
modification of the April 19, 2007 decision, finding that the hearing representative had
considered all the evidence.
Appellant subsequently submitted another request for reconsideration arguing that a
senior claims examiner did not have the authority to review an error by a hearing representative.
He claimed that only a Director of Hearings and Review could correct that error. Appellant
requested a hearing.
By decision dated February 18, 2009, OWCP’s hearing representative, without
conducting a hearing, reaffirmed her April 19, 2007 decision denying his claim for wage-loss
compensation.13 She stated that she had reviewed the medical evidence that appellant had
contended had not been reviewed and found it insufficient to overcome the weight of
Dr. DiLiberti’s opinion.14
11

Dr. Rushing became appellant’s treating physician after serving as a second opinion physician for OWCP.

12

The hearing representative did not address the remaining issues of the expansion of his claim and the denial of
the additional surgical procedures. It also erroneously referred to the previous decision as November 3, 2005, rather
than December 16, 2005.
13

Again the hearing representative did not address the remaining issues of the expansion of his claim and the
denial of the additional surgical procedures and erroneously referred to the previous OWCP decision date of
November 3, 2005, rather than December 16, 2005.
14

Appellant requested reconsideration on May 8, 2009 claiming that having the same hearing representative for
subsequent hearings violated OWCP procedures. There was no decision on this request in the record.

6

On June 10, 2010 appellant’s physician, Dr. Schacherer, requested authorization to
perform repeat left carpal tunnel release surgery. By letter of June 21, 2010, appellant filed a
request for a decision on the requested surgical procedures. OWCP considered that request to be
a claim for recurrence, and as there had been no exposure to work factors in several years,
OWCP requested further information from appellant.
Appellant responded on
September 7, 2010.
By decision dated September 13, 2010, OWCP denied appellant’s claim for a recurrence
of disability finding the evidence insufficient to establish that the requested surgery was related
to the accepted conditions.
OWCP reissued the September 13, 2010 decision on September 16, 2010 to correct an
error. Appellant requested an oral hearing.
By decision dated November 26, 2010, an OWCP hearing representative found that the
case was not in posture for a hearing as OWCP had improperly characterized his request for
surgery as a recurrence claim. In fact, the hearing representative found that a recurrence claim
was only appropriate if appellant had been released from treatment for the accepted condition.
As appellant continued to receive medical treatment for the accepted condition, he had never
been released from treatment. The question as to whether the requested surgery would be related
to the accepted conditions would have to be resolved by an independent medical examiner as
there was now a conflict of medical evidence between Dr. Schacherer and Dr. DiLiberti, as
Dr. DiLiberti had not been selected to resolve that conflict.
The hearing representative remanded the case for a determination by an independent
medical specialist as to whether appellant had sustained cubital tunnel syndrome, ganglion cyst,
radiocarpal degenerative changes, lunotriquetral ligament changes or a left TFCC tear causally
related to the work duties or to the subsequent carpal tunnel surgeries in 2002. Also, OWCP was
to have the independent medical specialist determine whether the 2004 surgical revision of the
right carpal tunnel had been warranted to treat the effects of the work injuries or was warranted
due to the previous 2002 carpal tunnel surgeries and to determine whether any other requested
surgeries were work related. The hearing representative also noted that no decision had been
issued by OWCP on the previous outstanding May 8, 2009 request for reconsideration.15
By decision dated February 23, 2011, OWCP denied the previous May 8, 2009 request
for reconsideration. It found that, as the hearing representative had simply reissued her previous
decision, it was not necessary to have a new hearing representative. Appellant again, on
November 24, 2011, requested reconsideration.
On February 24, 2011 OWCP referred appellant to Dr. Richard E. Jones, a Boardcertified orthopedic surgeon, to resolve the conflict in the medical opinion.
In his March 28, 2011 report, Dr. Jones, based upon a physical examination, review of
the medical evidence and statement of accepted facts, opined that the July 27, 2004 right carpal
15

Id.

7

tunnel surgery was due to appellant’s accepted employment injury. He noted findings from the
medical record he reviewed. Dr. Jones concluded that the bilateral cubital syndrome was
employment related and that the ganglion cyst was more likely than not due to either the work
injury or subsequent treatment. As to the conditions of radial carpal degenerative changes and
lunotriquetral changes, he opined that they were most likely not work related. Lastly, Dr. Jones
found that, based on an October 23, 2001 MRI scan, there was no evidence of a TFCC tear.
On May 11, 2011 appellant requested further expansion of his claim to include the new
condition of bilateral upper extremity repetitive motion injury.
OWCP’s medical adviser reviewed Dr. Jones’ March 28, 2011 report and concurred that
the right carpal tunnel surgery performed in June 2004 was due to appellant’s accepted
employment injury. However, the medical adviser found Dr. Jones’ opinion insufficient to
warrant acceptance of cubital tunnel condition or other conditions as Dr. Jones had not obtained
a history or performed an examination of the relevant area.
On May 31, 2011 OWCP retroactively authorized right carpal tunnel surgery which had
been performed on July 27, 2004.
In an August 31, 2011 report, Dr. Schacherer opined that appellant developed bilateral
upper extremity problems including bilateral medial and lateral epicondyles due to his
employment duties. In a September 9, 2011 progress note, he provided physical findings and
diagnosed bilateral upper extremity problems.
In a letter dated October 21, 2011, OWCP informed appellant that he was entitled to
wage-loss compensation due to the authorized surgical procedures. The periods of authorized
wage-loss compensation included the previously authorized June 14 to August 14, 2002 and
November 26 to December 26, 2002 periods and the new period July 27 to October 5, 2004.
Appellant was advised, however, that as he was currently receiving retirement benefits from the
Office of Personnel Management, no payment could be made until an election of benefits was
completed.
In a December 21, 2011 progress note, Dr. Schacherer provided physical findings and
noted that appellant’s radial tunnels were very sore. He also noted a positive Tinel’s sign for
both cubital tunnels.
By decision of January 19, 2012, OWCP denied modification of the February 23, 2011
decision and, after reviewing all the new evidence in the record since the February 23, 2011
decision, found that, while Dr. Jones had addressed some of the diagnoses in question, he had not
provided sufficient rationalization for expansion of the claim.
In a February 8, 2012 progress note, Dr. Schacherer provided physical findings and
reported that appellant was still positive for carpal tunnel syndrome and noted the presence of
lateral epicondylar tenderness and a bit of right dorsal wrist ganglion. In the May 9, 2012 note,
he related that appellant continued to have bilateral cubital tunnel irritability.

8

On June 9, 2012 appellant requested reconsideration and submitted a May 14, 2012
report from Dr. Schacherer in support of his request.
By decision dated August 16, 2012, OWCP reviewed the newly submitted medical
evidence and determined that it was insufficient to warrant modification of the January 19, 2012
decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA16 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.17 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.18 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.19
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.20 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.21 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.22 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.23

16

5 U.S.C. §§ 8101-8193.

17

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
18

See id.; see also David H. Goss, 32 ECAB 24 (1980).

19

See Edward H. Horton, 41 ECAB 301 (1989).

20

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
21

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

22

Merle J. Marceau, 53 ECAB 197 (2001).

23

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

9

Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”24 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.25
ANALYSIS -- ISSUE 1
Appellant claims that he is entitled to wage-loss compensation for the periods
November 16, 1999 to June 14, 2002, August 14 to November 25, 2002, December 26, 2002 to
July 27, 2004 and on or after October 5, 2004. The record establishes that appellant resigned
from the employing establishment on April 21, 2000 and his claim for disability retirement was
approved by the Office of Personnel Management on October 4, 2000. OWCP accepted
appellant’s claim for wage-loss compensation the periods June 14 to August 14, 2002,
November 26 to December 26, 2002, and July 27 to October 5, 2004 based on its retroactive
authorization for carpal tunnel surgeries performed on June 14 and November 26, 2002 and
July 27, 2004. The issue on appeal is whether appellant has established that his disability and
resulting wage-loss compensation for the periods he claimed were due to his accepted
employment injury.
The Board finds that appellant failed to meet his burden of proof to establish total
disability for these periods. The record reveals that he has not worked at the employing
establishment since April 23, 1999 when he was placed on administrative leave. Appellant is
claiming wage-loss compensation beginning November 16, 1999, when he was placed on LWOP
and continuing for intermittent periods. OWCP denied his claim for wage-loss compensation on
December 16, 2005, which was affirmed by an OWCP hearing representative on February 18,
2009 based upon the opinion of Dr. DiLiberti, an impartial medical examiner. Since the
February 18, 2009 decision, OWCP has issued multiple decisions denying modification.
Most recently, OWCP found a conflict in medical opinion was created between
Dr. Graham, a second opinion Board-certified orthopedic surgeon, and Dr. Schacherer, a treating
Board-certified orthopedic surgeon, on the issue of disability for work. In his November 17,
2005 report, Dr. DiLiberti, the impartial medical examiner, noted the medical and factual
evidence and reviewed physical findings on examination. Based on his review of the medical
evidence and medical history, he opined that appellant was not disabled from performing his
date-of-injury employment duties. Dr. DiLiberti noted that, with modification of his duties and
work accommodations, appellant would have been able to work.
The Board finds that Dr. DiLiberti’s opinion is sufficiently well rationalized and based
upon a proper factual background. He not only examined appellant but also reviewed his
medical records and reported accurate medical and employment histories. Accordingly,
24

5 U.S.C. § 8123(a); see also R.H., 59 ECAB 382 (2008); Raymond A. Fondots, 53 ECAB 637 (2002); Rita
Lusignan (Henry Lusignan), 45 ECAB 207 (1993).
25

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

10

Dr. DiLiberti’s opinion that appellant was capable of performing his date-of-injury job is
accorded special weight.26 The reports that appellant submitted are insufficient to overcome the
weight of Dr. DiLiberti’s opinion or to create a new conflict in the medical evidence with respect
to disability for work. The Board notes that Dr. Schacherer was on one side of the conflict
resolved by Dr. DiLiberti regarding the issue of disability for work and did not otherwise present
new findings or rationale to support his opinion.27 Thus, these reports are insufficient to support
his claim for wage-loss compensation for the periods claimed by appellant.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
A claimant seeking benefits under FECA28 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,29 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.30
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence.31 The claimant must submit a rationalized medical opinion that supports a
causal connection between his or her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.32
In situations where OWCP secures an opinion from a referee examiner for the purpose of
resolving a conflict in the medical evidence under 5 U.S.C. § 8123(a), and the opinion requires
26

In cases where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701
(2008); Bryan O. Crane, 56 ECAB 713 (2005); Gary R. Sieber, supra note 27.
27

See S.J., Docket No. 09-1794 (issued September 20, 2010); I.J., 59 ECAB 408 (2008); John D. Jackson, 55
ECAB 465 (2004); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
28

5 U.S.C. §§ 8101-8103.

29

C.B., Docket No. 08-2268 (issued May 22, 2009); J.P., 59 ECAB 178 (2007); Amelia S. Jefferson, supra
note 19.
30

W.W., Docket No. 09-1619 (issued June 2, 2010); G.T., 59 ECAB 447 (2008); Frankie A. Farinacci, 56 ECAB
723 (2005); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).
31

W.D., Docket No. 09-658 (issued October 22, 2009); T.H., 59 ECAB 388 (2008); Elizabeth H. Kramm
(Leonard O. Kramm), 57 ECAB 117 (2005); Thomas L. Agee, 56 ECAB 465 (2005).
32

D.U., Docket No. 10-144 (issued July 27, 2010); D.G., 59 ECAB 734 (2008); Donald W. Wenzel, 56 ECAB
390 (2005).

11

clarification or elaboration, OWCP has a responsibility to secure a supplemental report that
properly resolves the conflict.33
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly found a conflict in medical opinion between
Drs. DiLiberti and Schacherer regarding the issue of whether appellant’s claim should be
expanded to include additional conditions and referred him to Dr. Jones for resolution of this
conflict. However, the Board finds that Dr. Jones’ March 28, 2011 report is insufficient to
resolve the conflict.
In his March 28, 2011 report, Dr. Jones, based upon a physical examination and a review
of the medical evidence and statement of accepted facts, opined that the July 27, 2004 right
carpal tunnel surgery was due to appellant’s accepted employment injury. He noted findings
from the medical record he reviewed. Dr. Jones concluded that the bilateral cubital syndrome
was employment related and that the ganglion cyst was more likely than not due to either the
work injury or subsequent treatment. He further opined, without adequate explanation, however,
that the radial carpal degenerative changes and lunotriquetral changes were most likely not work
related and that the TFCC tears was not employment related based on his review of an
October 23, 2001 MRI scan.
When a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of the specialist, if sufficiently well rationalized, must be given special
weight.34 The Board finds that Dr. Jones’ speculative opinion did not resolve the conflict as to
whether appellant’s diagnosed bilateral cubital syndrome, wrist ganglion cyst, radial carpal
degenerative changes, lunotriquetral ligament changes and a TFCC tear were employment
related. For these reasons, the Board finds that his report is of diminished probative value and is
insufficient to resolve the conflict.
As OWCP selected Dr. Jones as the impartial medical examiner, and as he did not resolve
the issue, OWCP should have sought a supplemental opinion from him.35 The case will be
remanded to OWCP for further development of the medical evidence, including a medical
examination and a supplemental opinion from Dr. Jones. If Dr. Jones is unable or unwilling to
conduct the examination and provide a supplemental opinion, OWCP shall refer appellant to
another impartial medical examiner in the appropriate field of medicine for conflict resolution of
whether the additional conditions of cubital tunnel syndrome, right dorsal wrist ganglion cyst,
left radiocarpal degenerative disease, left degenerative lunotriquetral ligament change and a left
TFCC tear were causally related to the accepted bilateral carpal tunnel syndrome or the
subsequent authorized surgical procedures. It should also determine whether the newly
33

Phillip H. Conte, 56 ECAB 213 (2004).

34

See James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, supra
note 27; Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager, 54 ECAB 317 (2003); Barry Neutuch, 54
ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).
35

See Phillip H. Conte, supra note 35.

12

requested condition of bilateral upper extremity repetitive motion is work related.36 After such
further development as OWCP deems necessary, an appropriate merit decision should be issued
regarding this matter.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish entitlement to
wage-loss compensation for any period other than the rehabilitation from his accepted surgical
procedures, June 14 to August 14, 2002, November 26 to December 26, 2002, and July 27 to
October 5, 2004. The Board also finds this case is not in posture for a decision on the issue of
whether his claim should be expanded to include the additional conditions.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16, 2012 is affirmed in part and set aside in part and
remanded for further proceedings consistent with the above opinion.
Issued: March 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

36

See Edwin L. Lester, 34 ECAB 1807 (1983); Harold Travis, 30 ECAB 1071 (1979).

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-123
Issued: April 12, 2013

Case Submitted on the Record

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

On October 22, 2012 appellant filed an application for review of the Office of Workers’
Compensation Programs’ (OWCP) August 29, 2012 merit decision finding that he had
abandoned his request for a prerecoupment hearing and that he was at fault in the creation of an
overpayment of compensation in the amount of $1,701.28. The appeal was docketed as No.
13-123. After considering the evidence of record, the Board finds that OWCP improperly
determined that appellant abandoned his hearing request. Therefore, this case is not in posture
for a decision on the overpayment issue.
This case was previously before the Board. In a January 27, 2012 decision, the Board set
aside OWCP’s March 7, 2011 overpayment decision on procedural grounds and remanded the
case for a proper response to appellant’s request for a telephone hearing.1
1

Docket No. 11-1251 (issued January 27, 2012). Appellant’s June 29, 2000 traumatic injury claim (File No.
xxxxxx600) was accepted for cervical disc herniation. His April 28, 2006 traumatic injury claim was accepted for
temporary aggravation of a preexisting cervical degenerative disc disease (File No. xxxxxx589). The claims were
combined, with File No. xxxxxx589 serving as the master file. Appellant’s May 15, 2006 occupational disease
claim was accepted for neck sprain (File No. xxxxxx595). His December 31, 2005 traumatic injury claim for
thumb, mid-back and neck injuries was treated as a short form closure case (File No. xxxxxx613).

On remand, OWCP scheduled a telephone hearing to be held on May 18, 2012 at 9:00
a.m. eastern time. The record reflects that on April 12, 2012 OWCP mailed a notice of the
hearing to appellant at his address in West Germany. Appellant failed to contact OWCP at the
appointed time.
By decision dated August 29, 2012, OWCP found that appellant had abandoned his
request for a prerecoupment hearing, as he failed to appear for the hearing of which he was
properly notified, and that there was no indication in the file that he had contacted OWCP either
prior or subsequent to the scheduled hearing to explain his failure to appear. It also found that
appellant was at fault in the creation of an overpayment in the amount of $1,701.28. On appeal,
appellant contends that he did not receive notice of the prerecoupment hearing.
Appellant had notified OWCP in writing, by letter dated January 20, 2010, of his proper
address, which was to Germany. The record reflects that by letter dated March 10, 2010,
received by OWCP on March 19, 2010, appellant reiterated that he had not been receiving
correspondence from OWCP that had been incorrectly addressed. He informed OWCP that all
correspondence should be addressed to him at Deutchland. Appellant requested: “Please make
sure my address is as listed above. There is no East Germany anymore, and that seems to be a
sensitive issue with the Post.” He also indicated that OWCP’s March 5, 2010 letter,
acknowledging appellant’s change of address, was the first communication he had received from
OWCP in over six months, noting that mail addressed to him “winds up being returned.”
The recipient of an alleged overpayment may present evidence in response to OWCP’s
preliminary notice, either in writing or at a prerecoupment hearing requested within 30 days.2
Unless otherwise directed in writing by the claimant, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.3 OWCP has the burden of proving that it mailed to appellant a notice
of a scheduled hearing.4 It is presumed, absent evidence to the contrary, that a notice mailed to
an individual in the ordinary course of business was received by the individual. This
presumption arises when it appears from the record that the notice was properly addressed and
duly mailed.5 However, absent evidence of a properly addressed notice, the presumption cannot
arise.6
The Board finds that OWCP overlooked appellant’s March 10, 2010 letter in which he
informed OWCP of his correct address. The April 12, 2012 notification letter was sent to an
incorrect address, West Germany instead of to appellant’s correct address of record. Although
the address to which the notice was sent was similar to the correct address, appellant had made
2

20 C.F.R. § 10.432.

3

Id. at § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant and
the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a) (January 1999).
4

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

5

Newton D. Lashmett, 45 ECAB 181 (1993); Michelle R. Littlejohn, Id.

6

Id.

2

clear the fact that any East or West Germany distinction was cause for the postal service to return
mail. Careful attention to detail was required in this case, given the fact that appellant resides
overseas. The Board finds that the evidence is insufficient to establish that the April 12, 2012
notice was properly addressed. Therefore, the presumption of receipt under the mailbox rule
does not arise. The record does not demonstrate that appellant was notified of the scheduled
hearing and appellant was denied a hearing to which he was entitled. As he was not given notice
of the hearing, OWCP improperly determined that appellant abandoned his hearing request.
Therefore, this case must be remanded for appellant to be given the opportunity for his requested
hearing.7
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
August 29, 2012 decision be set aside and the case remanded for further development consistent
with this order of the Board.
Issued: April 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7

Because of the Board’s disposition of the procedural issue, it is premature for the Board to address the
overpayment issue.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mayaqüez, PR, Employer
__________________________________________

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

Docket No. 10-433
Issued: November 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 7, 2009 appellant filed a timely appeal from the October 16, 2009 merit
decision of the Office of Workers’ Compensation Program. 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 established an injury in the performance of duty.
FACTUAL HISTORY
On January 5, 2009 appellant, a 62-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) in which he alleges that on December 5, 2008 he sustained a left leg and arm
condition following a stroke.1 He noted that, on the day in question, he told his supervisor that
he was not “feeling … too well” and that he would prefer not to work but would rather see a
doctor. Appellant stated that his supervisor was not able to release him from work. He alleged
experiencing spasms on the left side of his face, weakness in his left leg and arm, difficulty
1

Appellant originally filed this claim as a traumatic injury (Form CA-1). The Office converted appellant’s claim
to an occupational disease claim (Form CA-2).

walking, his “teeth and eye hurt,” and felt “more nervous.” Appellant’s supervisor noted on the
claim form that appellant “suffered [a] minor stroke” and checked the box indicating that this
injury did not occur in the performance of duty.
Appellant submitted several medical reports predating the injury by a period of years, as
well as results from diagnostic tests, an unsigned hospital report and a disability determination
report bearing an illegible signature.
On December 5, 2008 Dr. Ana H. Vidal-Cardon, a neurologist, noted that a computerized
tomography (CT) scan of appellant’s brain had been performed. She diagnosed left frontal
cortical changes and a left pontine hypodensity, that “… may represent [a] small infarct[ion].”
Appellant submitted a report, dated December 8, 2008, in which Dr. Rosa E. RamosMartinez, a radiologist, reported that a carotid endarterectomy scan revealed no evidence of
stenosis. In a separate report, also dated December 8, 2008, Dr. Mayara M. Colon-Candelaria, a
Board-certified internist, presented findings on examination.
Appellant also submitted reports signed by a registered nurse, a nurse practitioner and an
occupational therapist.
In a January 7, 2009 statement, appellant’s supervisor stated that five minutes after
appellant came to work on December 5, 2008 he told the supervisor that he was not feeling well
and asked if someone else could take his route. He stated that he understood what appellant
asked him and told him that he would “see” how to replace him and told him to continue casing
mail. During the next hour and a half appellant’s supervisor asked him three times how he felt,
and he responded that he did not feel good, but that he was going to take the route to the street.
He also noted that he told appellant that if he felt ill out on the street he should call him.
In a supplemental statement, dated February 3, 2009, appellant described his employment
duties, work environment and medical history. He stated that his medical condition was the
direct result of the dispute he had with his supervisor concerning his “need to take the rest of the
day off to seek medical assistance.” Appellant also attributed his condition to the “additional
physical efforts, loading up the truck, driving and delivering part of the route.” He noted that he
never stated that he could continue working that day but was forced to do so. Appellant alleged
asking his supervisor to release him from work on several occasions and that each request was
denied because his supervisor did not have anyone to replace him. He stated that he told his
supervisor he was afraid of going out on the street in his condition because he feared falling or
that he would have an accident, to which his supervisor allegedly responded, “don’t worry you
won’t fall.” Appellant alleged that, on December 5, 2008, while delivering mail to the second
floor of a medical building, he momentarily lost his balance. After regaining his balance, he
stated that his teeth hurt and the left side of his face felt numb, “Like a spasm.”
Appellant stated that the employing establishment was considering implementing a series
of changes that would affect his employment duties. He noted that of these changes, the
“Window of Operation” affected him the most in that it “complicated already deteriorating
conditions.” Appellant also alleged his employment duties and uncertainty about the future
caused him stress and that he was under pressure due to his physical limitations and the
responsibilities of his duty assignment and the restrictions imposed by management.”

2

Further, appellant alleged that Hector Hermida, a supervisor, yelled at him in front of
other carriers and customers and called him a thief. He again claimed that not being able to work
and uncertainty about his future was adding to his stress.
Appellant stated that in the weeks prior to December 5, 2008, the employing
establishment, noting a decline in the volume of mail, had been evaluating existing routes and
considering eliminating certain areas from some routes and adding them to other routes. He
stated that this was unfair, especially with his limitations.
Appellant attributed his physical conditions to repetitive tasks he performed while casing
and delivering mail. He explained that delivering mail required repetitive hand, shoulder, waist
and leg motions. Appellant also attributed his physical conditions to lifting and carrying heavy
parcels and bundles.
In a March 19, 2009 report, Dr. C. Perez Cardona, an orthopedic surgeon, presented
findings on examination and diagnosed “chronic” right shoulder tendinitis and impingement as
well as right carpal tunnel syndrome. He opined that these conditions interfered with appellant’s
capacity to perform his regular physical work activities.
Appellant submitted a March 24, 2009 note in which Dr. Amarilis Corchado Pérez, a
neurologist, reviewed appellant’s history of injury and opined that his medical conditions
rendered him unable to work.
By letter dated April 2, 2009, the Office contacted the employing establishment seeking
additional evidence, including comments from a knowledgeable supervisor. Other than the
previously received statement of the supervisor, the employing establishment provided no further
information.
By decision dated June 30, 2009, the Office denied the claim because the medical
evidence of record did not demonstrate that compensable employment factors caused a
medically-diagnosed condition. It found that the dispute between appellant and his supervisor
concerned a request for leave and as such was an administrative function of the employer. The
fact that appellant felt stress when he was under pressure to do his job and uncertainty about his
future were found to be self-generated and not based on work factors. His concern that an
employer’s evaluation of the routes might result in the elimination of routes was also selfgenerated and not compensable. As for the allegation of harassment, the Office found
insufficient corroborative evidence to support that allegation. Appellant’s change in shift was
found to be an administrative function and his desire to work a particular shift is not
compensable. The Office also found that the allegations about increasing the amount of work on
a route were unsubstantiated.
On July 21, 2009 appellant requested reconsideration. He disputed the Office’s decision
and argued that his claim should not have been converted to an occupational disease claim (Form
CA-2) because he would like to have been eligible for continuation of pay.
By decision dated October 16, 2009, the Office denied modification of its June 30, 2009
decision, finding that the evidence of record did not establish that his condition was caused by
compensable employment factors.

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.7
To establish that he sustained an emotional condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or stress-related disorder; (2) factual evidence identifying employment factors or incidents
alleged to have caused or contributed to her condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
his stress-related condition.8 If a claimant does implicate a factor of employment, the Office
should then determine whether the evidence of record substantiates that factor.9 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.10
Workers’ compensation law is not applicable to each and every injury or illness that is
somehow related to an employee’s employment. There are situations 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. When the disability results from an emotional
2

5 U.S.C. §§ 8101-8193.

3

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

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

7

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

8

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

9

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

10

Id.

4

reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.11 On the other hand, there are situations when an injury has some connection with the
employment, but nonetheless does not come within the coverage of workers’ compensation
because it is not considered to have arisen in the course of the employment.12
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.13 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.14
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.15
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
factors of employment and may not be considered.16 If a claimant does implicate a factor of
employment, it 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.17
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained an injury as a result of a number of employment
incidents and conditions. The Office denied his condition claim on the grounds that he did not
establish any compensable employment factors. The Board must, therefore, initially review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of the Act.
Appellant stated that his medical condition was the direct result of the dispute he had
with his supervisor concerning his need to take the rest of the day off on December 5, 2008 to
11

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

12

Gregorio E. Conde, 52 ECA 410 (2001).

13

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
14

See William H. Fortner, 49 ECAB 324 (1998).

15

Ruth S. Johnson, 46 ECAB 237 (1994).

16

Dennis J. Balogh, supra note 8.

17

Id.

5

seek medical attention because he was feeling ill at the beginning of his shift. He also attributed
his condition to a series of possible changes to operations being considered by employing
establishment that would require him to perform additional employment duties. The Board finds
that these allegations relate to administrative or personnel matters, unrelated to the employee’s
regular or specially assigned work duties and do not fall within the coverage of the Act.18
Although such matters are generally related to the employment, they are administrative functions
of the employer and not duties of the employee.19 However, an administrative or personnel
matter will be considered 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, the Board has examined whether the employing establishment acted
reasonably.20
Regarding the allegation that appellant’s supervisor erred by not allowing appellant to
seek immediate medical attention on December 5, 2008, prior to beginning his route, while in
hindsight it is evident that appellant did require medical treatment on the day in question, the
Board finds that the evidence does not establish that appellant’s supervisor acted unreasonably in
allowing him to continue his duties. The evidence of record establishes that appellant did not
call in sick on December 5, 2008, but rather came into work and then told his supervisor that he
was not feeling well and would “prefer” to see a doctor rather than continue his job duties. He
never expressly informed his supervisor that he could not continue his work duties and his
supervisor never expressly denied appellant’s request to see a doctor. Rather appellant’s
supervisor attempted to find someone to cover appellant’s route, while continuing to ask him
how he felt. Given appellant’s ambiguous complaints and his willingness to continue his work,
his supervisor did not act unreasonably in not sending appellant home to seek medical attention.
Regarding appellant’s other allegations that the employing establishment was considering
operational changes, he submitted no evidence demonstrating that the employing establishment
in fact instituted any changes. Fear of future injury is not compensable.21 Appellant has not
submitted evidence of error in the employing establishment’s consideration of operational
changes in light of the decreased mail volume at the employing establishment and therefore has
not established a compensable employment factor with respect to these administrative matters.
Appellant also attributed his condition to uncertainty about his future. The Board has
held that a claimant’s job insecurity is not a compensable factor of employment.22 Accordingly,
appellant has not established a compensable employment factor with respect to this allegation.
Appellant attributed his alleged condition to the responsibilities of his duty assignment,
including the “additional physical efforts, loading up the truck, driving and delivering part of the
route.” He claimed that the overall mail volume of the employing establishment had decreased
18

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
19

Id.

20

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

21

I.J., 59 ECAB 408 (2008).

22

Robert Breeden, 57 ECAB 622 (2006).

6

and route inspections/studies were being made to assess the changing dynamics. The Board has
held that emotional reactions to situations in which an employee is trying to meet his position
requirements are compensable.23 The Board notes that appellant has not, however, established
the factual aspects of his claims regarding his work duties. At best, appellant only generally
discussed his employment duties and noted that the amount of mail volume at the employing
establishment had decreased. He did not establish that his own work duties had increased or that
any unfair requirements had been implemented to deal with the overall decreased volume of
work at the employing establishment. Such vague, speculative and generalized statements are
insufficient to establish a compensable employment factor with respect to appellant’s
employment duties.
Appellant also alleged that Mr. Hermida yelled at him and called him “a thief.” Verbal
altercations and difficult relationships with supervisors and coworkers, when sufficiently detailed
by the claimant and supported by the record, may constitute factors of employment. This does
not imply, however, that every statement uttered in the workplace will be covered under the
Act.24 A raised voice in the course of a conversation does not, in and of itself, warrant a finding
of verbal abuse.25 Appellant provided no probative evidence supporting this allegation.
Therefore, the Board finds that he has not shown how his supervisor’s alleged comments or
actions rise to the level of verbal abuse or otherwise fall within the coverage of the Act.26
As appellant failed to establish any compensable factors of employment, the Office
properly denied his claim.27
LEGAL PRECEDENT -- ISSUE 2
It is well established that a claim for compensation need not be filed on any particular
form. The Board has held that a claim may be made by filing any paper containing words which
reasonably may be construed or accepted as a claim.28
ANALYSIS -- ISSUE 2
Appellant requested reconsideration and alleged while he had initially filed his claim as a
traumatic injury claim on a Form CA-1, the claim should have been filed and analyzed as an
occupational injury claim.

23

See Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984); Joseph A. Antal, 34 ECAB 608, 612 (1983).

24

Cyndia R. Harrill, 55 ECAB 522 (2004); Beverly R. Jones, 55 ECAB 411 (2004).

25

Karen K. Levene, 54 ECAB 671 (2003).

26

Harriet J. Landry, 47 ECAB 543, 547 (1996); see Leroy Thomas, III, 46 ECAB 946, 954 (1995); Alton L.
White, 42 ECAB 666, 669-70 (1991).
27

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).
28

Dale M. Newbigging, 44 ECAB 551 (1993). The Federal (FECA) Procedure Manual Part 2 -- Claims, Time,
Chapter 2.801.4(a) (March 1993).

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The Board finds that the Office properly converted this claim to one for occupational
injury as appellant’s allegations did not concern one specific incident or event, or a series of
events over the course of one workday.29 The fact finding that the Office made in denying
appellant’s claim spanned all of appellant’s allegations regarding the incidents and factors of his
employment. The Office did not solely evaluate appellant’s allegations regarding the events of
December 5, 2008.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 16 and June 30, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

29

See the definition of traumatic injury: 20 C.F.R. § 10.5(ee).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jersey City, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-53
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 8, 2010 appellant, through counsel, filed a timely appeal from a June 17,
2010 decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing
representative that affirmed a December 22, 2009 decision that denied appellant’s request for
surgical authorization. The claim was docketed as No. 11-53.1
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. A.R. Sayed Bakhaty, an attending pain management physician, and Dr. Joseph
Mormino, a Board-certified neurosurgeon, who provided a second opinion evaluation for
OWCP, regarding the need for back surgery. It referred appellant to Dr. Douglas S. Cohen,
Board-certified in neurosurgery, for an impartial evaluation.
The Board finds that this case is not in posture for decision as OWCP has not established
that Dr. Douglas Cohen was properly selected as the impartial medical specialist.

1

On October 11, 2000 appellant, a 33-year-old mail handler, sustained a work-related lumbosacral strain. OWCP
also accepted a degenerated lumbosacral disc. On October 17, 2005 Dr. Marc Cohen, a Board-certified orthopedic
surgeon, performed an anterior discectomy.

A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.2
OWCP has an obligation to verify that it selected Dr. Cohen in a fair and unbiased
manner. It maintains records for this very purpose.3 The current record includes an undated
MEO23 iFECS report which states that appellant’s referee appointment was scheduled with
Dr. Cohen. The record also contains a screen shot that includes a list of doctors, not including
that of Dr. Cohen. The record, however, does not include any reference as to the significance of
this document that would substantiate the referee selection of Dr. Cohen. Thus, the Board cannot
ascertain whether Dr. Cohen was properly selected under OWCP selection procedure.
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed, may the selected physician carry the special weight accorded to an
impartial specialist. OWCP has not met its affirmative obligation to establish that it properly
followed its selection procedures.4
The Board will remand the case to OWCP for selection of another impartial medical
specialist. After such further development as necessary, OWCP shall issue an appropriate
decision.

2

Raymond J. Brown, 52 ECAB 192 (2001).

3

M.A., Docket No. 07-1344 (issued February 19, 2008).

4

H.W., Docket No. 10-404 (issued September 28, 2011).

2

IT IS HEREBY ORDERED THAT the June 17, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for proceedings consistent
with this order of the Board.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 21-0692
Issued: October 27, 2021

Case Submitted on the Record

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

JURISDICTION
On March 29, 2021 appellant filed a timely appeal from November 30, 2020 and March 23,
2021 merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted August 7, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 23, 2021 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing
this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On August 25, 2020 appellant, then a 53-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on August 7, 2020 he sustained a contusion and injuries to his head,
right hip, right knee, right ankle, and left foot when he slipped and fell down a flight of stairs while
in the performance of duty. He stopped work on August 8, 2020.
In support of his claim, appellant submitted reports dated August 7 and 13, 2020 by Roshin
Joby, a nurse practitioner; August 10, 2020 reports by Charlotte Saunders, a nurse practitioner; an
unsigned August 14, 2020 emergency department visit summary; and August 18, 2020 reports by
Jenn Tuturice, a nurse practitioner.
An August 18, 2020 duty status report (Form CA-17) from Dr. John Reilly, Board-certified
in internal medicine, pulmonology, and critical care medicine, noted a history of the August 7,
2020 injury and diagnosed post-concussive symptoms. He held appellant off work.
OWCP also received an August 25, 2020 report by Samantha Elmer, a nurse practitioner,
and a September 1, 2020 report by Ms. Tuturice.
In a September 3, 2020 report, Dr. Asal Sepahi, an optometrist, provided a history of injury.
She noted appellant’s symptoms of blurred vision. Dr. Sepahi diagnosed concussion without loss
of consciousness, headaches, and bilateral astigmatism.
OWCP also received vestibular therapy notes dated from September 8 through October 7,
2020; September 10, 2020 reports by Ms. Elmer; and October 12, 2020 reports by Diana Morris,
a nurse practitioner.
In a development letter dated October 23, 2020, OWCP notified appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence required and
provided a questionnaire for his completion. OWCP afforded appellant 30 days to submit the
necessary information.
On November 3, 2020 appellant responded to the development letter. He noted that he was
very dizzy and disoriented following the August 7, 2020 fall and sought treatment at an urgent
care center. In an accompanying statement, appellant asserted that he had fallen down a full flight
of steps and struck his head on a wall and the steps on the way down. He also described hip and
lower extremity injuries. Appellant submitted additional evidence.
OWCP received November 2, 2020 reports by Ms. Saunders.
In a November 5, 2020 report, Dr. Sepahi noted that she had examined appellant on
September 3, 2020 to evaluate visual changes status post work-related concussion.
In reports dated November 13, 2020, Dr. Bindu Kumar, a Board-certified family
practitioner, noted the August 7, 2020 employment incident. She diagnosed concussion without
loss of consciousness and pain in the right hip, knee, and ankle. Dr. Kumar opined that the

2

diagnoses were “related to work activities.” She restricted appellant to sedentary duty and referred
him to a neurologist. 3
By decision dated November 30, 2020, OWCP accepted that the August 7, 2020
employment incident occurred as alleged. However, it denied the claim, finding that appellant had
not submitted rationalized medical opinion evidence supporting a causal relationship between the
accepted incident and the claimed injuries.
On December 16, 2020 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review. In a December 18, 2020 statement,
he contended that cognitive sequelae of the concussion and restrictions imposed by the COVID 19 epidemic made it difficult for him to communicate with his physicians and obtain medical care.
OWCP received December 3, 2020 visual field test results demonstrating no visual field
defects.4
In a December 8, 2020 report, Dr. Kumar diagnosed concussion and vertigo, with
symptoms of dizziness, headache, and poor concentration. She noted that appellant had struck his
head when he fell at work on August 7, 2020. Dr. Kumar opined that, if not for the August 7, 2020
fall, he would not have sustained the concussion.
In a December 10, 2020 report, Dr. Christopher J. Reid, a Board-certified neurologist,
noted the August 7, 2020 employment incident in which appellant f ell down steps and sustained
contusions to the right side of his body. Appellant developed severe vertigo with nausea and
sought treatment at an urgent care center. Dr. Reid opined that appellant exhibited classic
symptoms of post-concussion syndrome.
By decision dated March 23, 2021, OWCP’s hearing representative affirmed the
November 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the

3

OWCP also received vestibular therapy notes dated from October 9 through November 9, 2020.

4

Appellant also submitted November 11 and 27, 2020 vestibular therapy notes.

5

Supra note 1.

6

V.L., Docket No. 20-0884 (issued February 12, 2021); 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).

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employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. 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. 9
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. 10 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be su pported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incidents identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
The Board notes that appellant sought treatment for injuries sustained on the date of injury.
Medical providers consistently reported that appellant fell down the stairs at work, struck his head,
and suffered post-concussive symptoms. Additionally, Dr. Reilly, a Board-certified internist,
noted the August 7, 2020 employment incident and diagnosed post-concussive symptoms in an
August 18, 2020 report. Dr. Kumar, a Board-certified family practitioner, also diagnosed postconcussive symptoms in November 13 and December 8, 2020 reports. She specified that appellant
would not have sustained a concussion, but for the August 7, 2020 employment incident.
In a December 10, 2020 medical report, Dr. Reid, a Board-certified neurologist, noted that
appellant fell down the stairs and hit his head at work on August 7, 2020. He opined that, as a
result, appellant exhibited classic symptoms of post-concussive syndrome, including severe
vertigo with nausea, headaches, tinnitus, and blurred vision. Dr. Reid explained that the
mechanism of appellant’s injury supported the diagnosis of post-concussive syndrome. Although
his opinion is insufficiently rationalized to establish causal relationship, it does raise an
uncontroverted inference regarding causal relationship between the diagnosed condition and the
7

C.H., Docket No. 20-1212 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

V.L., supra note 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).
9

R.O., Docket No. 20-1243 (issued May 28, 2021); 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).
10

C.H., supra note 7; S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued
April 24, 2019); Robert G. Morris, 48 ECAB 238 (1996).
11

R.O., supra note 9; V.L., supra note 6; T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 180366 (issued January 22, 2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

accepted employment incident sufficient to require that OWCP further develop the medical
evidence in the claim. 12
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation and OWCP
shares responsibility in the development of the evidence to see that justice is done. 13
The case shall, therefore, be remanded for OWCP to refer appellant to a specialist in the
appropriate field of medicine, along with the case record and a statement of accepted facts. Its
referral physician shall provide a well-rationalized opinion as to whether appellant’s diagnosed
conditions are causally related to the accepted employment factors. If the physician opines that
the diagnosed conditions are not causally related to the employment incident, he or she must
provide a rationalized explanation as to why their opinion differs from that articulated by Dr. Reid.
After this and other such further development deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

A.K., Docket No. 20-1426 (issued March 8, 2021); see E.G., Docket No. 19-1296 (issued December 19, 2019);
John J. Carlone, 41 ECAB 354 (1989).
13

See A.J., Docket No. 18-0905 (issued December 10, 2018); William J. Cantrell, 34 ECAB 1233, 1237 (1983);
Gertrude E. Evans, 26 ECAB 195 (1974).

5

ORDER
IT IS HEREBY ORDERED THAT the March 23, 2021 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, KEN CARYL RANCH
POST OFFICE, Littleton, CO, Employer
__________________________________________

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

Docket No. 07-1231
Issued: September 19, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed an appeal of a January 23, 2007 decision of the Office of
Workers’ Compensation Programs denying his claim for a recurrence of disability. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a recurrence of disability.
FACTUAL HISTORY
The Office accepted that on or before September 3, 1995 appellant, then a 39-year-old
carrier technician, sustained a lumbar strain due to repetitive lifting, bending, twisting and
reaching in the performance of duty. Appellant worked in a limited-duty position as a modified

clerk after his return to work on November 23, 1996 and continuing. He performed general
clerical duties with lifting limited to 20 pounds. Appellant continued under medical treatment.1
On November 20, 2006 appellant filed a notice asserting that he sustained a recurrence of
disability commencing October 2, 2006. He attributed the recurrence of disability to work tasks
performed on October 2, 2006, including twisting, reaching, stooping, bending, kneeling and
sitting. Appellant asserted that these tasks exceeded his light-duty restrictions. He stopped work
on October 3, 2006. The record does not indicate if appellant returned to work.
In a December 7, 2006 letter, the Office advised appellant of the additional factual and
medical evidence needed to establish his claim. The Office requested a rationalized medical
report explaining how and why the accepted September 3, 1995 lumbar strain caused the claimed
recurrence of disability. Appellant was afforded 30 days in which to submit such evidence.
By decision dated January 23, 2007,2 the Office denied appellant’s claim for a recurrence
of disability on the grounds that causal relationship was not established. The Office found that
appellant did not submit medical or factual evidence supporting the claimed recurrence of
disability.3
LEGAL PRECEDENT
The Office’s implementing regulations define a recurrence of disability as “an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.”4 The Office’s procedure manual
provides that a recurrence of disability includes a work stoppage caused by an objective,
spontaneous, material change in the accepted condition, a recurrence or worsening of disability
due to an accepted consequential injury; or withdrawal of a light-duty assignment made to
accommodate the work-related condition, for reasons other than misconduct or nonperformance.5

1

Appellant filed November 3, 1997 claims for a herniated L4-5 disc, a November 13, 1997 claim for right carpal
tunnel syndrome and a November 16, 1997 claim for a recurrence of disability caused by emotional stress. There
are no final decisions of record regarding these claims. These claims are not before the Board on the present appeal.
2

The record contains a January 31, 2007 Office letter stating that it had inadvertently listed the General Services
Administration as the employing establishment in the January 23, 2007 decision. The Office sent a copy of the
decision to the employing establishment. It does not appear that the Office reissued the January 23, 2007 decision,
only that it corrected the typographical error.
3

Appellant submitted new evidence accompanying his request for appeal. The Board may not consider new
evidence for the first time on appeal that was not before the Office at the time it issued the final decision in the case.
20 C.F.R. § 501.2(c).
4

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3.b(a)1
(May 1997). See also Philip L. Barnes, 55 ECAB 426 (2004).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997). See also
Steven A. Andersen, 53 ECAB 367 (2002).

2

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.6 This includes the necessity of
furnishing medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disabling condition is causally related to
employment factors and supports that conclusion with sound medical reasoning.7 An award of
compensation may not be made on the basis of surmise, conjecture, speculation or on appellant’s
unsupported belief of causal relation.8
ANALYSIS
The Office accepted that appellant sustained a lumbar strain due to work factors on or
before September 3, 1995. He claimed to have sustained a recurrence of disability commencing
October 2, 2006 causally related to the accepted condition. Appellant must demonstrate a
spontaneous change in the nature and extent of his accepted lumbar strain without an intervening
injury or new exposures.9
The record demonstrates that appellant attributed the claimed recurrence of disability to
new work factors on October 2, 2006, not the accepted work activities occurring on or before
September 3, 1995. Appellant asserted that on October 2, 2006 he performed twisting, reaching,
stooping, bending, kneeling and sitting, causing the immediate onset of lumbar pain with
sciatica. Appellant’s statements and the factual record demonstrate that he was exposed to new
work factors after he returned to work in November 1996. He alleged that these new incidents
on October 2, 2006 worsened his back pain. Appellant thus asserts a new injury. He has not
established that he sustained a recurrence of disability commencing October 2, 2006 related to
the accepted work factors occurring on or before September 3, 1995. Therefore, appellant has
not met his burden of proof in establishing a recurrence of disability.
CONCLUSION
The Board finds that appellant has not established that he sustained a recurrence of
disability as alleged.

6

Albert C. Brown, 52 ECAB 152 (2000); see also Terry R. Hedman, 38 ECAB 222 (1986).

7

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

9

Philip L. Barnes, supra note 4.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2007 is affirmed.
Issued: September 19, 2007
Washington, DC

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

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

4