United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Iron Mountain, MI, Employer
__________________________________________

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Appearances:
Benjamin Balkum, for the appellant
Jim Gordon, Jr., Esq., for the Director

Docket No. 13-1582
Issued: September 25, 2014

Oral Argument April 22, 2014

DECISION AND ORDER
Before:
RICHARD J. DASHCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 21, 2013 appellant, through her representative, filed a timely appeal from the
January 2, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s January 2, 2103 decision, including several statements of
coworkers. The Board cannot consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 1, 2011 appellant, then a 39-year-old pharmacist, filed an occupational disease
claim alleging an emotional condition in the performance of duty.3 She noted first becoming
aware of her claimed condition on February 22, 2011 and stated the relationship of the illness to
her work: “Ongoing stressful relationship with supervisor. Extremely hostile work environment
compounded by excessive workload. As relationship deteriorated, symptoms exacerbated.”
Appellant stopped work on February 22, 2011.
In a March 7, 2011 letter, OWCP requested that appellant submitted additional factual
and medical evidence in support of her claim.
In a March 18, 2011 statement, appellant described the work incidents and conditions that
caused her claimed conditions. She noted beginning work in 1991 but stated that her stress
started about a year and half earlier when she abruptly went from being a pharmacist/application
data processing (ADP) coordinator to a specialty staff pharmacist.4 Appellant alleged that her
reassignment to the specialty staff pharmacist position was due to harassment and discrimination.
She had stress and anxiety due to harassment and discrimination by Daniel Aderman, the chief of
the pharmacy service who served as her supervisor. Appellant asserted that on December 17,
2009 Mr. Aderman rudely interrupted a staff meeting regarding annual leave policy and that, on
at least two occasions in March 2010, he screamed at her when she asked questions about
pharmacy matters. She stated that on several occasions coworkers told her that management was
specifically targeting her for harassment. On June 7, 2010 appellant filed a workplace violence
incident report against Mr. Aderman. On that date, Mr. Aderman yelled at her and repeatedly
demanded that she tell him what she stated to a coworker about a union representation matter.5
Appellant stated that on more than a dozen occasions between July 2010 and January 2011
Mr. Aderman screamed at her, unfairly criticized her about such matters as using a facsimile
machine, talking to a coworker, failing to check in medications and neglecting to write down her
lunch time. Mr. Aderman allegedly singled her out because her workstation was behind in
completing work tasks and unfairly counseled her for not giving additional medication to a
patient before hearing her explanation that the insurance provider had turned down the request.
Appellant alleged that on January 3, 2011, Mr. Aderman screamed at her that she had “ruined his
day,” slammed a cabinet with his hand and slammed down a cup. On other occasions in
February and March 2011, Mr. Aderman improperly demanded that she return to her work
station and screamed at her about what type of leave she should take. Appellant generally
indicated that Mr. Aderman screamed at her continuously, encouraged her coworkers to harass
her, often failed to address her when in her presence and commonly walked away from her when
she asked a question. She also asserted that Mr. Aderman improperly placed her under
surveillance and monitored her daily activities.

3

Appellant indicated that she sustained daily headaches, backaches, stress, insomnia, diarrhea and chest pain.

4

The evidence indicates that appellant changed to being a specialty staff pharmacist effective January 7, 2010.

5

The record contains the incident report but does not contain a response to the report.

2

In her March 18, 2011 statement, appellant alleged that beginning in November 2009 she
felt Mr. Aderman subjected her to improper discipline or administrative oversight. She claimed
that he and other management officials wrongly counseled her for using sick leave, improperly
gave her a “record of contact” for attempting to coerce a coworker and unnecessarily gave her a
difficult time about taking her child to the doctor. Appellant asserted that in January and
March 2010 management officials improperly evaluated her job performance. She stated that
she received outstanding performance ratings from 1991 up until the time she began to be
harassed. In January 2010, management requested that appellant train coworkers but did not
allow her the time to complete classes she needed to be qualified to train the coworkers. In
February 2010 Mr. Aderman terminated her computer options without appropriate notification or
justification. Appellant discussed communication problems she had with Mr. Aderman
including an occasion in March 2010 when he refused to address her regarding a patient’s
question but instead addressed a coworker that was next to her. She alleged that in April 2010
management forced her to take calls on her day off when no one else was required to do so, and
that in May 2010 management changed past practice and did not allow her to switch work shifts.
In November and December 2010, appellant’s holiday and overtime work was adversely
affected when Mr. Aderman did not fully address a memorandum regarding these matters. She
claimed stress when her tour of duty was changed from Monday through Friday, 8:00 a.m. to
4:30 p.m., and she was forced to work different variations of her tour of duty with more early
and late shifts. The reassignment required appellant to work weekends, nights, holidays and to
be on call, including taking more calls on weekends, nights and holidays. She stated that she
never left work on time on weekends and holidays and that she was constantly required to work
overtime to complete tasks that were never ending. When on call, appellant was expected to go
right back into work no matter how many times during the night she was called in. She stated
that she had no flexibility in using leave and indicated that this circumstance made it difficult to
manage her family life, particularly because her husband often worked out of town in the law
enforcement field. Appellant asserted that the change to the position of specialty staff
pharmacist left her with absolutely no professional growth potential, thereby depriving her of
potential increased opportunities and salaries.
Appellant submitted an October 1, 2010 statement in which Helen Murra, a coworker,
stated that she worked for 10 years as a pharmacy technician. Ms. Murra stated that appellant
was constantly harassed by Mr. Aderman, her supervisor, noting that she was targeted for such
harassment. She stated, “The hostility continued and worsened to the point I left the VA Medical
Center Pharmacy. This was due to the job-related stress and anxiety that he inflicted on me.” In
a January 6, 2011 joint statement, appellant’s coworkers Lisa Sutherland and Sarah Thaler stated
that they recently observed pharmacy management officials harass appellant during her duty
hours. Since the fall of 2009 they saw management officials treat appellant differently from
other staff members and encouraged such behavior from other pharmacy employees. The
coworkers stated, “[L.B.] continues to work in a hostile environment in the pharmacy and is
harassed and targeted daily by management. [L.B.] seems to be stressed and anxious due to her
treatment by pharmacy management and the heavy workload.” On September 16, 2010
Benjamin Balkum, a union official and appellant’s representative, stated that there was a hostile
work environment at the employing establishment.

3

Appellant submitted a job description of her specialty staff pharmacist position. The
position involved multiple tasks, including compounding and dispensing both inpatient and
outpatient medications as well as ordering controlled substances. She also submitted
performance evaluations of both the pharmacy/ADP coordinator and specialty staff pharmacist
positions which showed that her performance was “fully successful” in both positions.6 The
record contains documents indicating that appellant filed an Equal Employment Opportunity
(EEO) claim regarding her treatment by supervisors. However, the record does not contain a
copy of a final decision of an EEO claim.7
In a February 22, 2011 report, Dr. William Batti, a family practitioner, noted that
appellant related having stress and anxiety centered around her work. He diagnosed situational
stress/anxiety. In a March 22, 2011 report, Dr. Steven Miljour, an osteopath and Board-certified
psychiatrist, noted seeing appellant that day. Appellant reported being in a hostile work
environment with an excessive workload. Dr. Miljour stated that appellant had panic disorder
without agoraphobia and major depressive disorder, single episode. On March 23, 2011 he
indicated that appellant was disabled for periods in March and April 2011 and, on May 17, 2011,
he recommended that she work four days in a row and then have three days off.
In an undated statement received on April 15, 2011, Mr. Aderman and Gina Hakamaki,
assistant chief of the pharmacy service, jointly responded to appellant’s assertions. They advised
that she was exposed to no more stress than the seven other staff pharmacists employed at her
workplace because all the work assignments, deadlines, quotas were the same for each pharmacy
staff. With the exception of when appellant was carrying the on-call beeper, all of her overtime
was at her request. Appellant had the same opportunity to work overtime as the other staff but
that she usually chose to earn compensatory time which could be taken as time off at a later date.
After becoming a specialty staff pharmacist, she was placed on a rotating schedule as the other
staff pharmacists and had to occasionally work weekends and holidays. Although appellant
claimed that this placed a stress on her family, she still had the time and energy to perform
volunteer work not related to her staff pharmacist duties, including volunteering as a union
steward (later chief steward), mediator, pharmacy student tutor, visitor door greeter and member
of the ethics committee. These activities were all carried out during duty hours.8 Mr. Aderman
and Ms. Hakamaki stated that appellant’s duties other than ordinary dispensing of medications
included checking in controlled substances and handling e-pharmacy billing, but noted that all
other staff pharmacists also had such additional duties. Appellant traded tours and days off with
the other pharmacists to accommodate her outside activities and, while she generally had friendly

6

In a performance evaluation of her specialty staff pharmacist position from 2010, Mr. Aderman discussed the
speed that appellant processed and dispensed various medications and indicated that her other duties include
e-pharmacy work and checking in controlled substances.
7

In an April 22, 2011 e-mail, an employing establishment official indicated that she had received a Notice of
Dismissal of the claim on December 15, 2010, but the record does not contain any such document.
8

The record contains documents pertaining to these activities in 2010 and 2011.

4

interactions with staff pharmacists and technicians, she was counseled regarding her statements
to coworkers about their application for the pharmacist/ADP coordinator position.9
In their statement, Mr. Aderman and Ms. Hakamaki denied that appellant was subjected
to harassment or discrimination.10 The decision to move appellant from her pharmacist/ADP
coordinator position to the specialty staff pharmacist was made by top management as a costcutting measure and appellant retained her former pay after the transfer. Appellant was afforded
the opportunity for additional training when she transitioned into her new position and was given
more time for training than a new employee. Management developed procedures so that
pharmacists could “give away” weekend workdays and work schedules were posted further in
advance than previously to give employees a chance to make arrangements for home activities.
Mr. Aderman and Ms. Hakamaki noted that certain early and late shifts were worked on a
voluntary basis in anticipation of a union-management agreement on this matter, but that there
were no “shortages during this time period that affected appellant or any of the other staff
pharmacists’ workload.” Appellant was not able to provide the same level of production as other
pharmacists and her performance evaluations fairly reflected this. Her current position had more
accountability than her prior pharmacist/ADP coordinator position and her work was compared
with individuals who had similar duties. Mr. Aderman and Ms. Hakamaki noted that some
computer privileges were taken away from appellant because she abused those privileges.
Appellant was counseled regarding various matters on an objective basis, including with respect
to her interactions with pharmacy customers and use of leave.11
In an April 22, 2011 statement, Mr. Aderman noted that he had never screamed at any
employee during his 31 years with the employing establishment and alleged that appellant
commonly used the word “screamed” in an exaggerated manner.12 He responded to the specific
allegations made by appellant and denied that he subjected her to harassment or discrimination or
wrongly handled administrative matters on these occasions. Mr. Aderman checked to see
whether appellant formally filed a workplace violence report and found no evidence that she had
done so. He stated that appellant was able to switch shifts more often than any other staff

9

The record contains several documents detailing counseling sessions held by supervisors with appellant,
including an instance in February 2010 when appellant was counselled after potential candidates for the position of
pharmacist/ADP coordinator reported that they felt intimidated and harassed by negative comments she made about
the position. In an August 13, 2010 report of contact, a pharmacist indicated that appellant called him “childish”
and “unprofessional” when he asked her why she had not filled a particular prescription. The pharmacist indicated
that appellant then “proceeded to yell” at the chief pharmacist on duty.
10

In a portion of the statement, Mr. Aderman appears to speak solely on his own behalf. He stated that “[t]here
have been a few conflicts between myself and [appellant]” but noted that he had less contact with her after she
moved to the specialty staff pharmacist position in January 2010. Mr. Aderman stated that since appellant became a
union steward in July 2011 the scope of their conversation had changed. Appellant sometimes tried to “take over”
the conversation in staff meetings but he was able to get the meetings back on track.
11

The record contains counseling documents from 2009 and 2010 regarding a complaint against appellant by a
pharmacy customer, appellant’s use of leave and her coverage of the pharmacy intake window.
12

The statement was also signed by Ms. Hakamaki but its contents show that it is meant to describe the direct
experiences and viewpoints of Mr. Aderman.

5

pharmacist and that her requests to switch shifts were almost always accepted.13 Appellant’s
work was not unduly monitored, she was provided adequate training and any counseling was
based on objective deficiencies.
OWCP later requested that management provide additional details about appellant’s
encounters with supervisors and other potential stress factors. In an undated supplemental
statement received on May 23, 2011, Mr. Aderman indicated that, when he stated that appellant
was exposed to no more stress than any of the other staff pharmacists, he was referring to her
workload. All assignments and work schedules were assigned on a fair and equitable basis
among appellant and her peers. Mr. Aderman stated that the conflicts he had with appellant
mainly revolved around her not being at her place of duty during duty hours, her lack of
production, her leave issues and her excessive use of duty time for union issues. These instances
resulted in either a written or verbal counseling.
In an April 18, 2011 statement, a pharmacy secretary noted that she had worked with
Mr. Aderman for 15 years at a desk located just outside his office. She stated that she had never
heard Mr. Aderman scream or raise his voice to anyone and noted that he was “a very eventempered supervisor.” In a statement signed on April 20, 2011, Ms. Hakamaki stated that on
December 18, 2009 appellant became “very argumentative” with Mr. Aderman during a meeting
and that two coworkers came to her to say that her behavior and attitude showed a lacked of
respect for pharmacy supervisors.
In a May 2011 statement, appellant’s representative asserted that the evidence showed
that appellant had been subjected to harassment and discrimination, particularly by
Mr. Aderman. Appellant had also been subjected to improper disciplinary actions, performance
evaluations and surveillance. Appellant’s representative stated that appellant performed work
duties that other staff pharmacists were not required to perform, including checking in controlled
substances and handling e-pharmacy and ADP computer tasks. Appellant’s voluntary work
activities were encouraged by the upper levels of management and Mr. Aderman had removed a
portion of her computer duties in order to make her look ineffective.
In an August 17, 2012 decision, OWCP denied appellant’s claim on the grounds that she
did not establish any compensable work factors. It found that appellant had not shown that she
was subjected to harassment and discrimination, that she had not established error or abuse in
various administrative actions carried out by management and that she had not adequately
implicated her required work duties as a source of stress.
Appellant requested a hearing. During the hearing held on October 16, 2013, appellant
alleged that her emotional condition was aggravated by her exposure to continued harassment
and an excessive workload. She reiterated that Mr. Aderman had created a hostile work
environment and that her stress and anxiety conditions were precipitated by her movement in
January 2010 from the position of pharmacist/ADP coordinator, a position involving mostly
computer-based tasks, to the position of specialty staff pharmacist. Appellant stated that her
assignment to this position was due to harassment and discrimination. She alleged that she was
subjected to more than 60 incidents of harassment and that she was wrongfully placed under
13

The record contains documents regarding the switching of work shifts among staff pharmacists.

6

daily surveillance. Appellant noted that she had excellent performance evaluations from 1991 up
until the time she moved to the specialty staff pharmacist position. She had a high workload and
there was a constant requirement to work overtime because she was the only one who could
perform the specialty functions, including duties relating to controlled substances and epharmacy tasks. Appellant asserted that she worked nights, weekends, holidays and early and
late shifts and that she had to take calls, a task which was not voluntary. She was not given any
technician help and she had to go right back to work no matter how many hours she had worked
or how many times she was called in. It was difficult for appellant to take off work and she was
unfairly counseled for taking leave and unfairly charged with trying to intimidate coworkers
regarding their application for the pharmacist/ADP coordinator position. The position was now
performed by two to four employees. Appellant filed an EEO claim regarding her allegations of
harassment and discrimination and noted that, despite her employer’s assertion that the claim
was dismissed, it was still pending a final decision.
Appellant submitted additional medical evidence, including an April 12, 2011 report in
which Dr. Miljour indicated that she reported increased stress at work. Dr. Miljour continued to
diagnose panic disorder without agoraphobia and major depressive disorder, single episode, but
he also diagnosed adjustment disorder with depressed/anxious mood and obsessive compulsive
personality disorder characteristics.
In a November 27, 2012 statement, appellant’s
representative contended that appellant was harassed, discriminated against, and had an
excessive workload. He indicated that she did not become a union steward until July 2011, i.e., a
time period well after she was first exposed to stress in the workplace.
In a January 2, 2013 decision, OWCP’s hearing representative affirmed OWCP’s
August 17, 2012 decision denying appellant’s emotional condition claim on the grounds that she
did not establish any compensable work factors. She determined that appellant had not shown
harassment and discrimination, error or abuse in administrative actions or required work duties
as a source of stress.
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 FECA.14 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.15

14

Lillian Cutler, 28 ECAB 125 (1976).

15

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

7

As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.16 In claims for a mental disability attributed to work-related
stress, the claimant must submit factual evidence in support of his or her allegations of workrelated stress. The claimant must specifically delineate those factors or incidents to which the
emotional condition is attributed and submit supporting factual evidence verifying that the
implicated work situations or incidents occurred as alleged. Vague or general allegations of
perceived harassment, management wrongdoing or other difficulty arising in the employment are
insufficient to give rise to compensability under FECA.17 For example, in the cases of M.B.18
and L.G.,19 the claimants made general assertions regarding heavy workloads and demanding
work schedules (including overtime work), but the Board found in both cases that the claimant’s
assertions were vague and unsupported by the evidence of record. The primary reason for
requiring factual evidence from the claimant in support of his or her allegations of stress in the
workplace is to establish a basis in fact for the contentions made, as opposed to mere perceptions
of the claimant, which in turn may be fully examined and evaluated by OWCP and the Board.20
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors are established as occurring and arising from the employee’s
performance of his or her regular duties, these could constitute employment factors.21 However,
for harassment or discrimination to give rise to a compensable disability under FECA, there must
be evidence that harassment or discrimination did in fact occur. Mere perceptions of harassment
or discrimination are not compensable under FECA.22
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.23 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.24
In determining whether the employing establishment has erred or acted abusively, the Board will

16

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
17

Paul Trotman-Hall, 45 ECAB 229 (1993) (Michael E. Groom, Alternate Member, concurring).

18

Docket No. 13-1294 (issued September 20, 2013).

19

Docket No. 11-647 (issued February 2, 2012).

20

See Paul Trotman-Hall, supra note 17.

21

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

22

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

23

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
24

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

8

examine the factual evidence of record to determine whether the employing establishment acted
reasonably.25
If a claimant does implicate a factor of employment, OWCP 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, OWCP must base its decision on an analysis of the medical evidence.26 Causal
relationship is a medical issue and the medical evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The opinion of the physician must be
based on a complete and accurate 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.27
ANALYSIS
Appellant alleged that she sustained an emotional condition due to a number of
employment incidents and conditions. OWCP denied the claim on the grounds that she did not
establish any compensable employment factors. The Board must, thus, initially review whether
these alleged incidents and conditions of employment are covered employment factors under
FECA. Appellant has alleged that she sustained stress due to the performance of her regular or
specially assigned duties under Cutler.28 She has also claimed that her emotional condition is
related to the fact that management acted improperly with respect to administrative matters and
subjected her to harassment and discrimination. Appellant asserted that most of these improper
actions were carried out by Mr. Aderman, her direct supervisor.
Before OWCP and on appeal, appellant and her representative asserted that she sustained
stress due to an “excessive workload” and maintaining a difficult work schedule, noting that she
had to work weekends, holidays and late and early shifts and that she had to be on call.
Appellant thus appears to be arguing that she experienced emotional stress in carrying out her
employment duties, which may constitute a compensable employment factor. As noted above,
allegations alone are insufficient, as a rule, to establish a factual basis for an emotional condition
claim. Appellant must specifically delineate those factors or incidents to which the emotional
condition is attributed and submit supporting factual evidence verifying that the implicated work
situations or incidents occurred as alleged. Vague or general allegations of difficulty arising in
the employment are insufficient to give rise to compensability under FECA.29

25

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

26

Id.

27

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

28

See supra note 14.

29

See supra notes 16 through 20.

9

The Board finds that appellant has not established a factual basis for her claim that she
sustained stress due to her work duties and work schedule. Many of her allegations lack
specificity, context and explanation and are unsupported by the evidence of record. Appellant
claimed that she had an excessive workload but she did not provide any extensive discussion of
the nature of her duties or why she felt they were excessive. She claimed that she had more
duties than any other staff pharmacist, including those relating to checking in controlled
substances and handling e-pharmacy tasks, but Mr. Aderman stated that all assigned tasks were
evenly distributed among the eight staff pharmacists. Appellant alleged that she worked a great
deal of overtime to meet her work requirements but she did not submit sufficient evidence to
support this assertion. She noted that she had to work weekends, holidays, late and early shifts
and to be on call, but she did not provide evidence of how often she had to work under such
circumstances.30 Appellant’s claims regarding her work duties are similar to those made in the
cases of M.B. and L.G., where the claimants made general assertions regarding heavy workloads
and demanding work schedules, including overtime work. The Board found in both cases that
the claimant’s assertions were vague and unsupported by the evidence of record.31 For these
reasons, appellant has not established a factual basis for her claim of stressful work duties and
work schedule.
Appellant also alleged that management officials, especially Mr. Aderman, erred by
unfairly subjecting her to discipline for perceived deficiencies, improperly handling her leave
requests, giving inaccurate performance evaluations, improperly denying adequate training and
taking away computer duties, and unreasonably placing her under surveillance and monitoring
her work. She also alleged that the employing establishment committed error when it transferred
her from a pharmacist/ADP coordinator position to a specialty staff pharmacist position in
January 2010.32 Such administrative and personnel matters, although generally related to the
employee’s employment, are administrative functions of the employer rather than the regular or
specially assigned work duties of the employee and are not covered under FECA. 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.
The Board finds that appellant has not established that management committed error or
abuse with respect to these administrative matters. For example, she did not submit a finding of
a grievance against the employing establishment which showed that any of these actions were
improper. Mr. Aderman, the individual who carried out most of these administrative actions,
provided a detailed statement explaining why his actions were proper. Regarding appellant’s
claim that she was wrongly transferred in January 2010, there is no indication that management
committed any wrongdoing in this matter. Mr. Aderman explained that the decision to effectuate
the transfer was made by top management as a cost-cutting measure. Moreover, the Board has
30

Appellant suggested that there was no flexibility to her work schedule, but Mr. Aderman indicated that she was
able to switch shifts more often than any other staff pharmacist and that her requests to switch shifts were almost
always accepted.
31

See supra notes 18 and 19.

32

Appellant asserted that the change to the position of specialty staff pharmacist left her with absolutely no
professional growth potential, thereby depriving her of potential increased opportunities and salaries.

10

previously held that denials by an employing establishment of a request for a different job,
promotion or transfer are not compensable factors of employment under FECA, as they do not
involve appellant’s ability to perform his or her regular or specially assigned work duties, but
rather constitute appellant’s desire to work in a different position.33 For these reasons, appellant
has not established a compensable work factor with respect to management’s handling of
administrative matters.
Appellant claimed that management subjected her to harassment and discrimination. In
particular, she alleged that Mr. Aderman screamed at her, singled her out for criticism,
unreasonably monitored her activities, failed to acknowledge her existence and ignored her
questions and concerns. Appellant claimed that on at least one occasion Mr. Aderman became
violent by slamming a cup down and pounding on a cabinet.
The Board finds that appellant has not submitted sufficient probative evidence to
establish that she was harassed or discriminated against by any management official.34
Mr. Aderman submitted a detailed statement in which he denied that appellant was subjected to
harassment or discrimination.35 He denied that he screamed at appellant, singled her out for
criticism or unreasonably monitored her work activities.36 Appellant alleged that Mr. Aderman
made statements and engaged in actions which she believed constituted harassment and
discrimination, but she did not provide evidence, such as probative witness statements, to
establish that the statements actually were made or that the actions actually occurred.
Appellant submitted an October 1, 2010 statement in which Ms. Murra, a coworker,
stated that she worked at the employing establishment for 10 years as a pharmacy technician and
alleged that she was constantly harassed by Mr. Aderman. However, Ms. Murra did not provide
any details of this alleged harassment and she did not indicate that she directly observed any
actions of Mr. Aderman towards appellant. In a joint statement dated January 6, 2011,
appellant’s coworkers Ms. Sutherland and Ms. Thaler stated that since the fall of 2009 they had
seen management officials treat appellant differently from other staff members and encouraged
such behavior from other pharmacy employees. The coworkers stated that appellant continued to
work in a hostile environment and was harassed and targeted daily by management. The
statement of Ms. Sutherland and Ms. Thaler is of limited probative value to establish harassment
or discrimination because it is vague and general in nature. They did not describe any of the
specific actions of management officials which they believed constituted improper actions or
created a hostile work environment.
Appellant’s representative generally stated that
Mr. Aderman subjected appellant to a hostile work environment, but he did not provide any
detailed discussion about any specific incidents and conditions he personally witnessed that
33

Donald W. Bottles, 40 ECAB 349, 353 (1988).

34

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
35

The statement was cosigned by Ms. Hakamaki, the assistant chief of the pharmacy service.

36

Appellant indicated that on June 7, 2010 she filed a workplace violence incident report against Mr. Aderman
alleging that on that date he yelled at her and repeatedly demanded that she tell him what she stated to a coworker.
Mr. Aderman indicated that he found no evidence that such a report was formally filed by appellant.

11

created such an environment. The Board notes that it appears that appellant filed an EEO claim
with respect to her harassment and discrimination claims, but the record does not contain a final
EEO decision.37 For these reasons, appellant has not established a compensable employment
factor under FECA with respect to the claimed harassment and discrimination.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.38
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 appellant did not meet her burden of proof to establish that she sustained
an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the January 2, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.39
Issued: September 25, 2014
Washington, DC

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

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

37

The record contains a document in which an employing establishment official indicated that appellant’s EEO
claim had been dismissed, but the record does not contain evidence of such a dismissal and appellant maintained in
the hearing before an OWCP hearing representative that her claim was still pending a final decision.
38

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).
39

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May 16, 2014.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
FAIRCHILD AIR FORCE BASE, Fairchild, WA,
Employer
__________________________________________

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

Docket No. 09-980
Issued: January 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 3, 2009 appellant filed a timely appeal of a December 10, 2008 decision of the
Office of Workers’ Compensation Programs affirming an August 27, 2008 denial of his schedule
award claim and a February 11, 2009 decision denying his request for reconsideration without
further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established permanent impairment to a
schedule member due to his accepted low back injury; and (2) whether the Office properly
denied appellant’s reconsideration request without a merit review of the claim.
FACTUAL HISTORY
On June 23, 2006 appellant, then a 56-year-old lead firefighter, experienced lower back
pain after removing his protective equipment and clothing. He stopped work that day and

returned on July 10, 2006. Appellant retired on September 30, 2006. The Office accepted his
claim for aggravation of preexisting degenerative disc disease at L5-S1 and lumbosacral
radiculitis.1
On May 23, 2006 Dr. James M. Bingham, Board-certified in family medicine, noted
appellant’s long-standing history of recurrent back pain for which he underwent a magnetic
resonance imaging (MRI) scan in June 2005. He opined that appellant would likely continue to
have at least intermittent problems. Dr. Bingham noted that it was likely that appellant’s back
symptoms were progressive and directly due to his employment.
On November 17, 2006 appellant filed a schedule award claim. In a December 11, 2006
report, Dr. Bingham noted that appellant’s history of low back pain with radiculopathy included
foot drop of the right lower extremity. An MRI scan from June 2005 revealed multilevel
degenerative disc disease with foraminal stenosis at the L5-S1 level. Dr. Bingham opined that
appellant had “probably” reached maximum medical improvement and was clinically stable. He
advised that appellant was permanently disabled as a result of his current back condition.
On August 28, 2007 the Office referred appellant to Dr. George Harper, a Board-certified
orthopedic surgeon, for a second opinion. In a September 18, 2007 report, Dr. Harper received
appellant’s history of injury and set forth examination findings. He noted significant tenderness
in midline lumbosacral and L4-5 levels and sacroiliac joints superiorly bilaterally. Dr. Harper
also found significant right foot drop. On motor examination, there was profound weakness of
right extensor hallucis longus and global weakness in the ankle. Dr. Harper diagnosed lumbar
degenerative disc disease with right lower extremity radiculopathy and right foot drop.
Appellant’s diagnosed conditions were caused or accelerated by his work and were permanent.
He had continued residuals that were fixed and stable with no further medical treatment needed.
In response to whether appellant had any lower extremity impairment due to his work-related
conditions, Dr. Harper determined that appellant’s lumbar spine was a Category III based on
Table 15-3 on page 384 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001) as there were significant signs of
radiculopathy such as sensory loss in dermatomal distribution, loss of muscle strength and some
unilateral atrophy in the thigh with clear foot drop. He rated 13 percent whole person
impairment. Dr. Harper noted that appellant was stable at present but date of maximum medical
improvement was unknown.
On October 9, 2007 an Office medical adviser reviewed the evidence of record and found
that Dr. Harper did not rate impairment of appellant’s right leg as requested but rated the lumbar
spine in finding 13 percent whole body impairment. Although it would be possible to determine
a right lower extremity rating based on Dr. Harper’s findings, the medical adviser was reluctant
to do so as right foot weakness was present before the June 23, 2006 work injury. This weakness
had previously improved and might do so again and global weakness of the right ankle was not
explained by the pathology at L5-S1. The medical adviser stated that complete absence of right
leg atrophy was inconsistent with the degree and duration of weakness claimed. Dr. Harper’s
observation of a lot of pain behavior suggested that appellant was not providing full effort. The
1

The Office doubled appellant’s present case with a traumatic injury claim from 2004 (File No. xxxxxx868) that
concerned appellant’s back. The record does not indicate that the Office adjudicated this prior claim.

2

Office medical adviser determined that appellant was not at maximum medical improvement and
recommended another evaluation in 6 to 12 months.
On March 19, 2008 Dr. Bingham noted persistent back discomfort with radicular
symptoms including foot drop thought to be due to peroneal palsy at the knees and not so much
related to nerve root compression in the lumbar spine. He assessed persistent back pain.
On April 2, 2008 the Office referred appellant with a statement of accepted facts to
Dr. Chester McLaughlin, a Board-certified orthopedic surgeon, for a second opinion evaluation.
In a May 8, 2008 report, Dr. McLaughlin reviewed the June 23, 2006 injury and also advised that
appellant had a history of low back pain since the early 1980s when he was in the Army. Upon
examination, appellant did not have a typical foot drop as he rotated his lower extremity at the
hip and dragged his right foot across the floor. Dr. McLaughlin found some extensor function to
the toes and no extensor movement to the ankle motors including anterior and posterior tibial and
peroneals. He noted that it was difficult to get consistency in sensory testing as appellant
appeared counseled as to what he was looking for and “seemed to have repeated instructions” in
performing sensory testing.
Regarding range of motion of the lumbosacral spine,
Dr. McLaughlin found that appellant did not perform any lumbar flexion, did not round his back
with forward flexion and was able to assume upright reversing the camptocormic stance. He
further noted that appellant could not do any trunk extension and that lateral bending was
approximately 10 degrees. Dr. McLaughlin also noted that appellant could easily extend each
knee to zero degrees while sitting and he had no back pain or sciatic stretch complaints. He
diagnosed chronic recurrent low back pain with recurrent lumbosacral strain and sprain
syndrome along with preexisting degenerative changes at L5-S1. Dr. McLaughlin could not
establish appellant’s neurological status due to functional behavior during the examination. This
affected the reliability of the neurological examination such that he could not establish the extent
or presence of foot drop. Dr. McLaughlin advised that the motor and sensory evaluations were
not reliable partially due to appellant’s behavior during the examination. He opined that the
June 23, 2006 injury appeared to be a temporary aggravation of a previous chronic recurrent low
back condition. Due to appellant’s functional behavior on examination, Dr. McLaughlin could
not determine if appellant had radiculopathy. Dr. McLaughlin noted appellant’s long history of
back problems and recommended that electrodiagnostic studies be performed to establish a
definitive diagnosis. He advised that the MRI scan did not correlate with an L5 lesion, which
would have caused foot drop. Dr. McLaughlin advised that appellant did not have ratable
impairment, based on the A.M.A., Guides, due to his work injury but that it was difficult to
provide a current rating without electrodiagnostic studies.
The Office authorized an electromyogram (EMG) that was performed on May 27, 2008
by Dr. Keith Mackenzie, a physiatrist, who found no definitive abnormalities.
In a May 27, 2008 supplemental report, Dr. McLaughlin reviewed the diagnostic studies
and found that the nerve conduction velocity (NCV) studies of the peroneal nerve were normal.
He noted that NCV testing of the anterior ribialis response was brisk. There was no other
denervation or definitive abnormalities. Dr. McLaughlin opined that, as the electrodiagnostic
studies were within normal limits, appellant had no ratable impairment under the A.M.A.,
Guides. He found no permanent neurological residuals from the work-related injury.
Dr. McLaughlin advised that the abnormal gait was due to reasons other than the work injury,

3

noting that the electrodiagnostic studies did not identify foot drop or other neurological lesions.
He advised that appellant was at maximum medical improvement as it pertained to the workrelated injury.
On July 30, 2008 another Office medical adviser reviewed the evidence of record. He
agreed with Dr. McLaughlin’s assessment that there was no objective evidence to establish
ratable impairment to either lower extremity. The medical adviser noted that Dr. McLaughlin
performed a thorough medical evaluation, specifically looking at the lower extremities and did
not find consistent, reliable evidence for lower extremity radiculopathy. He advised that
Dr. McLaughlin did not find objective evidence that would be consistent with the observed foot
drop or the nonverifiable sensory changes that appellant exhibited.
In an August 27, 2008 decision, the Office denied appellant’s schedule award claim
finding the medical evidence insufficient to establish that he sustained any permanent
impairment to a scheduled member due to the accepted work injury.
On September 25, 2008 appellant requested reconsideration. In a September 16, 2008
report, Dr. C. William Britt, Jr., a Board-certified neurologist, noted that appellant had no
voluntary movement of the right foot or toes in dorsiflexion and very weak inversion and
eversion. Dr. Britt advised that the distal right lower leg and intrinsic muscles of the foot were
thin. He found normal nerve conduction studies of the right peroneal nerve as well as evidence
of active and chronic denervation in the right L5 myotome. Dr. Britt opined that appellant still
had significant nerve root pain for which decompression might not provide much functional
recovery. On September 18, 2008 he indicated that the findings affecting the L5 root appeared to
be foraminal in location. Dr. Britt attached a copy of an MRI scan taken during his
September 16, 2008 examination. He opined that there had been some progression of
degenerative change since the 2006 MRI scan but that it was unlikely that a nerve root
decompression would result in significant functional improvement in the leg as there was
probably association root infarction. Dr. Britt further opined that he could not clearly delineate
the root within the foramen in lateral recess with association pathology of the facet and disc at
L5-S1. Appellant also submitted several diagnostic reports as well as reports already of record.
In a December 10, 2008 decision, the Office denied modification of its August 27, 2008
decision, finding the medical evidence insufficient to establish that appellant sustained a lower
extremity permanent impairment due to a work-related lower back condition.
On January 5, 2009 appellant requested reconsideration, stating that he was submitting a
statement from his physician regarding his claim. He submitted a December 23, 2008 letter to
Dr. Britt informing him of the denial of his claim and requesting an additional report to expand
on whether his condition was permanent. No report from Dr. Britt accompanied the request.
In a February 11, 2009 decision, the Office denied appellant’s reconsideration request
without a merit review finding that the evidence submitted with the reconsideration request was
insufficient to warrant a merit review.

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sounds discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.3
Not all medical conditions accepted by the Office result in permanent impairment to a
schedule member.4 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.5 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail to include, where applicable, the loss in degrees of active and
passive motion of the affected member or function, the amount of any atrophy or deformity,
decreases in strength or disturbance of sensation or other pertinent description of the impairment
and the percentage of impairment should be computed in accordance with the A.M.A., Guides.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained employment-related aggravation of
preexisting degenerative disc disease at L5-S1 and lumbosacral radiculitis. Appellant
subsequently claimed a schedule award. The Board finds the medical evidence of record
insufficient to establish that his accepted low back condition caused any permanent impairment.
The December 11, 2006 report of Dr. Bingham does not support appellant’s claim as he
noted that appellant had permanent disability from his current back condition. Dr. Bingham did
not discuss whether appellant sustained any impairment of either lower extremity or provide any
impairment rating. Dr. Bingham was also equivocal regarding whether appellant had reached

2

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

3

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

4

Thomas P. Lavin, 57 ECAB 353 (2006).

5

Tammy L. Meehan, 53 ECAB 229 (2001).

6

J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008); see also Federal (FECA) Procedure
Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6 (August 2002).

5

maximum medical improvement.7 None of his other reports address the issue of permanent
impairment due to the June 23, 2006 work injury.
The September 18, 2007 report of Dr. Harper advised that appellant’s date of maximum
medical improvement remained unknown. As noted, a schedule award is not payable until
maximum medical improvement is reached. Dr. Harper also noted on examination that appellant
subjectively demonstrated pain behavior, which diminished the reliability of the examination.
Moreover, he assessed a whole person impairment of the back which is not compensable under
the Act.8 On October 9, 2007 an Office medical adviser found that it was premature to rate
appellant’s lower extremity impairment as he had not reached maximum medical improvement.
This evidence does support permanent impairment to the legs.
The Office subsequently referred appellant to Dr. McLaughlin for an opinion regarding
permanent impairment due to the June 23, 2006 work injury. On May 8, 2008 Dr. McLaughlin
opined that the June 23, 2006 injury was a temporary aggravation of a previous chronic recurrent
low back condition that did not permanently aggravate appellant’s preexisting condition.
Appellant’s current condition had no permanent ratable impairment.
Dr. McLaughlin
emphasized that appellant’s functional behavior and “counseled” performance during
examination made it difficult to derive consistent and reliable neurological results. Appellant’s
functional behavior on examination also prevented Dr. McLaughlin from determining whether he
had foot drop or radiculopathy. He recommended an MRI scan to correlate the foot drop with
nerve lesion. In a supplemental May 27, 2008 report, Dr. McLaughlin reviewed the diagnostic
studies and found that appellant had no ratable impairment under the A.M.A., Guides as the
studies were within normal limits. The EMG did not indicate foot drop or other neurological
lesions. Dr. McLaughlin opined that appellant was at maximum medical improvement. The
reports of Dr. McLaughlin do not support that the work injury resulted in any permanent
impairment of a schedule member of the body. His initial report noted inconsistent findings due
to functional behavior and his supplemental report, based upon review of diagnostic testing,
found no neurological evidence to support impairment to either lower extremity. On July 30,
2008 an Office medical adviser concurred with Dr. McLaughlin’s assessment and found no basis
for rating impairment of the lower extremities due to the employment injury.
Subsequently, appellant submitted Dr. Britt’s reports dated September 16 and 18, 2008.
Dr. Britt noted no voluntary movement of appellant’s right foot and toes. He opined that there
was some progression of degenerative change since 2006, but neither report addressed the issue
of permanent impairment or related any impairment of a schedule member to appellant’s
June 23, 2006 work injury.

7

J.P., id. (under Office procedures, a schedule award may be made when it can be medically determined that the
claimant has reached maximum medical improvement); see Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(1) (October 1990).
8

See D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008) (as neither the Act nor the implementing
regulations provide for the payment of a schedule award for the permanent loss of use of the back or spine, no
claimant is entitled to such an award); see also N.D., 59 ECAB ___ (Docket No. 07-1981, issued February 1, 2008)
(the Act does not authorize schedule awards for permanent impairment of the whole person).

6

Consequently, the medical evidence does not establish that his accepted lower back
condition caused any permanent impairment entitling him to a schedule award.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or 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.9 Section 10.608(b) of Office
regulations provide that when an application for reconsideration does not meet at least one of the
three requirements enumerated under section 10.606(b)(2), the Office will deny the application
for reconsideration without reopening the case for a review on the merits.10
ANALYSIS -- ISSUE 2
In support of his request for reconsideration, appellant provided a statement noting that
he was attaching a letter from his physician as well as the physician’s comments. He also
submitted a letter to Dr. Britt requesting an additional report regarding his permanent
impairment. However, appellant did not submit any additional medical evidence. The
underlying issue is medical in nature regarding whether he sustained any permanent impairment
of a schedule member of the body. Therefore, appellant’s statement is not relevant to the
underlying medical issue and does not constitute relevant or pertinent new evidence not
previously considered by the Office. He did not show that the Office erroneously applied or
interpreted a point of law or advance a relevant legal argument. Consequently, the Office
properly denied appellant’s request for reconsideration without a merit review.
On appeal, appellant asserts that the MRI scans of record support that he has a nerve
disability injury, which proves that his injury has merit. The Office has accepted an aggravation
of degenerative disc disease at L5-S1. It is appellant’s burden, however, to submit medical
evidence to establish that this condition causes permanent impairment to either leg.
CONCLUSION
The Board finds that appellant has not established that he sustained permanent
impairment due to his accepted employment injury. The Board further finds that the Office
properly denied appellant’s reconsideration request without a merit review.

9

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

10

Id. at § 10.608(b); K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated February 11, 2009, December 10 and August 27, 2008 are affirmed.
Issued: January 7, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Munster, IN, Employer
__________________________________________

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

Docket No. 15-1318
Issued: December 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 26, 2015 appellant filed a timely appeal from an April 21, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
February 9, 2015, as alleged.
On appeal, appellant contends that he did everything he could to get his doctor’s report to
OWCP timely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2015 appellant, then a 50-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 9, 2015 he “slipped on ice while carrying in the
dark and fell.” He indicated that, as a result thereof, he sustained injuries to his back and
shoulder. In support of his claim appellant submitted a February 17, 2015 duty status report. He
also submitted an “Authorization for Examination or Treatment Form” that was signed on
February 20, 2015. In this form, a physician completed “Part B -- Attending Physician’s
Report.” The handwritten answers on this form are largely illegible, as is the physician’s
signature. The physician checked a box marked “yes” indicating that he believed that appellant’s
condition was caused or aggravated by the employment activity, and he further indicated that
appellant was totally disabled beginning February 17, 2015 until an undetermined date.
By letter dated March 19, 2015, OWCP informed appellant that further information was
needed in support of his claim. Appellant did not respond to this letter.
By decision dated April 21, 2015, OWCP noted that when the claim was first received, it
appeared to be for a minor injury that resulted in minimal or no lost time from work and that
based on this criteria, plus the fact that the employing establishment did not controvert
continuation of pay or challenge the merits of the case, payment of a limited amount of medical
expenses was administratively approved without consideration of the merits of the claim.
However, as OWCP became aware that appellant had returned to work in a full-time capacity, it
conducted a merit review of appellant’s case. It found that, although the evidence established
that the event occurred as alleged, the claim was denied as appellant had not submitted medical
evidence containing a firm medical diagnosis in connection with the injury and or events.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
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 or exposure which is alleged to have occurred.3 In
order to meet his burden of proof to establish the fact that he sustained an injury in the
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

2

performance of duty, an employee must submit sufficient evidence to establish that he or she
actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
Appellant alleged that on February 9, 2015 he suffered injuries to his back and shoulder
when he slipped on ice during the performance of his federal duties. OWCP accepted that the
incident occurred as alleged. However, it denied appellant’s claim finding that he failed to
establish a firm medical diagnosis and failed to establish that this diagnosis was causally related
to the employment incident of February 9, 2015. The Board finds that appellant has not
submitted medical evidence that establishes a firm medical condition causally related to the
accepted employment incident.
The medical evidence submitted prior to OWCP’s decision was limited to a duty status
report and an attending physician’s report on an authorization for treatment form. Both of these
documents are largely illegible. The Board cannot read the physician’s signature on either
document and therefore the documents cannot constitute competent medical evidence.7
Furthermore, the Board notes that both of these documents contain conclusions with regard to
appellant’s medical condition, its relationship to his employment, and his work capacity but
without a detailed narrative explaining these conclusions.
A medical diagnosis and an opinion on causal relationship must be based on rationalized
medical opinion evidence.8 A physician must accurately describe appellant’s work duties and
medically explain the process by which these duties would have caused or aggravated his

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

See Merton J. Sills, 39 ECAB 572 (1988).

8

M.E., Docket No. 14-1064 (issued September 29, 2014).

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condition.9 Because appellant has not provided such medical opinion evidence in this case, he
failed to meet his burden of proof.
The Board notes that appellant submitted additional evidence after OWCP issued its
decision. Appellant contends on appeal that he did everything he could to timely get this
information to OWCP and that any delay was an error on the part of the physician’s office. The
Board lacks jurisdiction to review new evidence for the first time on appeal.10 Appellant may
submit this evidence to OWCP with a formal request for reconsideration 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 established an injury in the performance of duty on
February 9, 2015, as alleged.

9

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to claimant’s condition, with stated reasons by a physician). See also V.S., Docket No.
14-2028 (issued June 3, 2015).
10

20 C.F.R. § 501.2(c) (the Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of the final decision).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 21, 2015 is affirmed.
Issued: December 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-955
Issued: April 6, 2011

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 February 23, 2010 appellant, through counsel, filed a timely appeal from a
January 25, 2010 merit decision of the Office of Workers’ Compensation Programs denying her
claim. Pursuant to the Federal Employees’ Compensation Act,1 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 her claim should
be accepted for a left shoulder condition.
On appeal counsel contends that the Office erred in not accepting appellant’s left
shoulder injury as employment related.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2007 appellant, then a 59-year-old nurse, filed a traumatic injury claim
alleging injury to her left hip and right shoulder when she slipped and fell on a wet floor.2 The
Office accepted the claim for a neck sprain, right shoulder and upper arm strain and right rotator
cuff tear. It authorized right rotator cuff repair surgery, performed on November 26, 2007 by
Dr. Jonathan B. Ticker, an orthopedic surgeon. Appellant was placed on the periodic rolls in
receipt of wage loss for total disability as of November 25, 2007. She received physical
therapy.3 Appellant returned to light-duty work four hours a day on March 10, 2008, which was
increased to six hours effective April 9, 2008 within specified restrictions. On May 27, 2008 her
light-duty hours were increased to eight hours and she was released to full duty effective
June 25, 2008.
On June 14, 2008 an MRI scan was obtained of appellant’s left shoulder. Dr. Jonathan D.
Klug, a radiologist, found mild acromioclavicular joint arthrosis with a full thickness tear of the
rotator cuff with a questionable impact injury to the greater tuberosity of the left humerus. In a
June 18, 2009 treatment note, Dr. Ticker recommended light duty based on the left shoulder
findings until further evaluation.
On July 24, 2008 the Office received the May 11, 2007 emergency room note of
Dr. Marwan Habeeb, an attending Board-certified internist. He noted that appellant complained
of left shoulder pain since a slip and fall on a wet floor, landing on her left hip and right
shoulder. No clubbing, edema or cyanosis was found on examination of the left shoulder, which
was reported as negative for fracture or dislocation. Dr. Habeeb diagnosed right shoulder pain
and strain.
The Office referred appellant for a second opinion evaluation to Dr. Bradley L. White, a
Board-certified orthopedic surgeon. It forwarded a statement of accepted facts that noted
authorization of right shoulder surgery and the MRI scan of the left shoulder. In a November 18,
2008 report, Dr. White reviewed the history of injury and medical treatment. He noted May 11,
2007 medical records and concluded that Dr. Habeeb had made an erroneous mention of the left
shoulder, which was the only reference to the left shoulder during the period in which appellant’s
right shoulder was treated. The MRI scan report was obtained some 13 months following the
work injury. While in the emergency room, appellant had her right upper extremity placed in a
sling and she was followed by orthopedic surgeons for physiotherapy and diagnostic testing of
the right shoulder, with surgery performed on November 6, 2007. Dr. White noted that
appellant’s right shoulder was much improved, with some intermittent neck pain but no radicular
complaints. He listed findings on physical examination, noting positive impingement on flexion
and internal rotation of the left shoulder. Dr. White advised that the only injuries arising from
2

Dr. Mark Williams, an attending physician, noted the history of injury and noted that x-rays obtained of the right
shoulder did not reveal any fracture or dislocation. Due to persistent complaints of pain, he referred appellant for
orthopedic consultation. A May 16, 2007 magnetic resonance imaging (MRI) scan of the right shoulder revealed a
full thickness tear in the rotator cuff.
3

In a February 19, 2008 letter, the employer requested that Dr. Ticker advise as to when appellant could return to
work. It noted that she claimed a consequential left shoulder injury due to overuse of her upper extremity since the
injury to her right shoulder.

2

the May 11, 2007 injury were the right shoulder rotator cuff tear which was resolved and a
cervical strain. He found that appellant’s left shoulder complaints were not related to the work
accident, as there was only a single reference to the left shoulder until the MRI scan report of
June 14, 2008.
On December 9, 2008 counsel requested the Office accept appellant’s left shoulder
condition as related to the May 11, 2007 slip and fall. In a November 30, 2008 report, Dr. Ticker
reviewed his treatment of appellant’s right shoulder condition and surgery. Following physical
therapy, appellant was returned to light duty on March 10, 2008 with limited hours. She was
seen on June 4, 2008 for her left shoulder, which she stated was also injured on May 11, 2007. A
physical examination of the left shoulder revealed positive Hawkin’s sign and impingement and
greater tuberosity tenderness. Based on the physical examination, MRI scan and x-ray
interpretation, Dr. Ticker diagnosed left impingement syndrome with acromioclavicular joint
arthritis for which he recommended surgery. In addressing causal relation, Dr. Ticker stated: “If
the history is correct, there is a causal relationship between the fall on May 11, 2007 and the
injuries sustained to her shoulders.”
The Office found a conflict in medical opinion between Dr. Ticker, for appellant, and
Dr. White, for the government, as to the relationship of appellant’s left shoulder condition to the
accepted injury. On March 17, 2009 the Office referred appellant to Dr. Michael Fracchia, a
Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion.
In an April 1, 2009 report, Dr. Fracchia provided a review of the May 11, 2007 injury,
noting that appellant stated that she fell on her left shoulder and hip. When she stood up, she fell
again and landed on her right shoulder. He reviewed the statement of accepted facts and noted
that appellant was diagnosed with a cervical sprain, sprain of the shoulder and arm and injury to
the right rotator cuff. Dr. Fracchia reviewed the history of medical treatment and surgery in
November 2007. He noted that at the time of injury, appellant had her right shoulder and spine
x-rayed which were negative and the right arm was treated with a sling. During the period of
treatment, the left shoulder was not evaluated. On examination, appellant’s primary complaint
was of left shoulder pain aggravated by activity. There was tenderness found over the
supraspinatus and infraspinatus with weakness and a positive Hawkins impingement sign.
Dr. Fracchia addressed the contemporaneous medical records, noting that appellant was treated
after the fall at work and the history mentioned injury to the right shoulder, right arm and left
hip. Appellant was seen on multiple occasions after the fall at work and initial evaluation of
May 11, 2007 and treated for right shoulder pain, diagnosed as a rotator cuff tear. Dr. Fracchia
noted that while the x-ray ordered that date was for a left shoulder, the entry was for a right
shoulder x-ray that was reported as negative. He advised that this one entry was an error of
transcription. The additional treatment notes after the injury all supported injury to the right
shoulder, with no mention of left shoulder complaints until noted by Dr. Ticker on June 4, 2008.
Dr. Fracchia advised that appellant had an excellent result from the surgical repair of the right
rotator cuff with minimal disability related to the right shoulder. He concluded that appellant’s
left shoulder rotator cuff tear was not related to the May 11, 2007 fall at work.
In a January 25, 2010 decision, the Office denied appellant’s left shoulder condition as
causally related to the accepted injury. It found that Dr. Fracchia’s opinion constituted the
weight of medical evidence.

3

LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.4 To establish causal relationship between a claimed
condition as well as any attendant disability to an employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
such a casual relationship.5 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.6 Rationalized
medical evidence is evidence which includes a physician’s rationalized medical opinion on the
issue of whether there is a causal relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.8
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.9
ANALYSIS
The Office accepted that appellant sustained injury on May 11, 2007 when she slipped
and fell at work. It accepted a neck sprain, right shoulder and upper arm strain and right rotator
cuff tear and authorized surgery that was performed on November 26, 2007. The Office denied
appellant’s left shoulder rotator cuff tear was related to this employment injury.
The Board finds that appellant did not meet her burden of proof to establish a workrelated left shoulder injury. Dr. Ticker, appellant’s treating orthopedic surgeon, opined that she
sustained a left shoulder injury as a result of the May 11, 2007 employment injury. Dr. White, a
second opinion Board-certified orthopedic surgeon, concluded that her left shoulder condition
was unrelated to the May 11, 2007 employment injury. Dr. White noted that there was one
erroneous mention of injury to the left shoulder in the original treatment records without any
4

Jaja K. Asaramo, 55 ECAB 200 (2004).

5

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

6

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

7

Phillip L. Barnes 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000); C.B., Docket No. 09-2027
(issued May 12, 2010).
8

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000); W.D., Docket No. 09-658 (issued
October 22, 2009).
9

Y.A., 59 ECAB 701 (2008); Darlene Kennedy, 57 ECAB 414 (2006); D.A., Docket No. 09-936 (issued
January 13, 2010).

4

further mention until a June 14, 2008 MRI scan. Due to the conflict in medical opinion, the
Office properly referred her for an impartial medical examination.
Dr. Fracchia provided an examination of appellant and a detailed review of the medical
records related to her treatment commencing May 11, 2007. He addressed her treatment at the
emergency room that day, noting that x-rays were obtained of her right shoulder which was
treated with a sling and she was referred for orthopedic follow up. Dr. Fracchia found that the
reference to the left shoulder by Dr. Habeeb was a transcription error. In support of this
determination, Dr. Fracchia noted that appellant’s subsequent medical treatment pertained
exclusively to her right shoulder. This consisted of conservative therapy, diagnostic testing and
surgery by Dr. Ticker in November 2007. During this period, no examining physician made
reference to any left shoulder complaints. Dr. Fracchia noted that Dr. Ticker first noted
appellant’s left shoulder complaints on June 4, 2008, a year after the fall at work. Based on the
history of medical treatment, he concluded that appellant’s left shoulder rotator cuff tear was not
a result of the May 11, 2007 employment injury.
When a case is referred to an impartial medical examiner to resolve a conflict in
evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.10 The Board finds that, the report of the
impartial medical examiner, Dr. Fracchia constitutes the special weight of the evidence. The
medical report of Dr. Fracchia is well reasoned and based on a thorough review of the medical
records and physical examination.
On appeal, counsel contends that appellant’s left shoulder condition is causally related to
the accepted injury. The Board notes that other than the transcription error of Dr. Habeeb, there
was no documentation of any left upper extremity complaint until the February 19, 2008 letter of
her employer to Dr. Ticker. At that time, appellant contended that her left shoulder complaints
were a consequence of the right shoulder injury based on overuse. Subsequently, she related a
history of injury to Dr. Fracchia that she fell twice on May 11, 2007, first on her left shoulder
and then on her right shoulder; but this history is not supported by the contemporaneous medical
evidence or the claim filed. The accident report noted that appellant left the nursing station and
tripped on a wet floor. She fell from a standing position to prone position striking the left hip
and right shoulder on the tile floor. Her primary complaint was to the right side of the body,
single shoulder. Based on the weight of opinion accorded the impartial medical specialist, the
Board finds that the evidence of record does not establish that appellant’s left shoulder condition
is causally related to the May 11, 2007 employment injury.
CONCLUSION
The Board finds that appellant has not established that her left shoulder condition is
causally related to her accepted injury of May 11, 2007.

10

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the January 25, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 6, 2011
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

6


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

)
)
)
)
)
)
)
)
)

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

Docket No. 14-288
Issued: May 5, 2014

Case Submitted on the Record

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

JURISDICTION
On November 18, 2013 appellant filed a timely appeal from September 17 and
November 7, 2013 merit decisions of the Office of Workers’ Compensation Programs (OWCP),
which denied her traumatic injury claim. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left arm injury causally related to a July 23, 2013 employment incident.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the November 7, 2013 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
On July 26, 2013 appellant, then a 37-year-old nursing assistant, filed a traumatic injury
claim alleging that on July 23, 2013 she sustained pain and numbness in her left hand and arm
after resting her elbows and arms on a patient’s bedside table for 15 to 20 minutes. The
employing establishment controverted her claim contending that her condition was not work
related. It explained that appellant was seated in a chair observing others provide medical care
and was not completing any task that required her to remain in an awkward position.
In a letter dated August 5, 2013, OWCP advised appellant that no evidence was
submitted to establish her claim. It requested additional factual evidence to establish that the
July 23, 2013 incident occurred as alleged and additional medical evidence to establish that she
sustained a diagnosed condition as a result of the alleged incident.
In a July 26, 2013 medical form and disability note, Dr. Daniel J. Kupas, an osteopath,
provided physical examination findings. He diagnosed nerve entrapment of the left forearm.
Dr. Kupas noted that appellant was able to return to light duty with restrictions of no grasping or
lifting with the left arm.
In an August 1, 2013 report, Dr. Raymond R. Drabicki, a Board-certified orthopedic
surgeon, related appellant’s complaints of left hand numbness. He stated that one week prior she
experienced a sudden onset of numbness in the left four ulnar fingers when she rested both arms
on two coffee tables. Dr. Drabicki noted that appellant was seen in the emergency room and
informed that she had a crush injury to the ulnar nerve. Upon examination, he observed
temperature difference on the left between the bilateral upper extremities. Dr. Drabicki also
found 2+ radial pulses and 1+ ulnar pulse. Range of motion of the left upper extremity was full.
Dr. Drabicki noted no obvious swelling and no palpable masses. Sensation was decreased to
light touch and to pinprick. X-rays of the elbow were unremarkable. Dr. Drabicki diagnosed left
upper extremity anesthesia crossing multiple nerve distributions. He stated that the history did
not appear to fit the criteria for an ulnar nerve compression and recommended a magnetic
resonance (MR) angiogram and an electromyography (EMG) nerve conduction study (NCV) of
the left upper extremity.
In an August 14, 2013 statement, appellant explained that on July 23, 2013 she was
sitting with a patient on another floor. At 7:40 p.m. she placed both arms in a resting position on
the table and at 8:00 p.m. she noticed her four fingers, hand and arm were numb like they had
fallen asleep. The symptoms continued through the evening and the following day. Appellant
went to the emergency room and was told that she had a crushed/contusion of the ulnar nerve.
On July 26 she followed up with her primary care physician and was given restrictions of no
grasping or lifting with the left hand and arm. On August 1, 2013 appellant was examined by an
orthopedic surgeon, who recommended further tests and kept the work restrictions in place. In
response to a second question by OWCP, previous problems to her arm, she stated: “I have or
had any problems on conditions to this arm prior to this claim.”
In an August 22, 2013 report, Dr. Drabicki conducted a follow-up examination of
appellant’s complaints of numbness of the left upper extremity. He observed generalized
decreased sensation and slight temperature difference of the left upper extremity. Dr. Drabicki

2

noted that the MR angiogram of the elbow was negative. He diagnosed left upper extremity
hand numbness.
In a September 10, 2013 report, Dr. Drabicki stated that EMG and NCV studies
performed on September 4, 2013 revealed no neurologic findings. Upon examination, he
diagnosed snapping ulnar nerve with symptomatic left elbow. Dr. Drabicki authorized appellant
to return to full duty on September 11, 2013.
In a decision dated September 17, 2013, OWCP denied appellant’s claim. It found
insufficient factual evidence to establish that the July 23, 2013 incident occurred as alleged.
OWCP also found that the medical evidence was insufficient to establish that appellant’s left arm
condition was causally related to the alleged incident.
By appeal request form dated September 20, 2013, appellant requested reconsideration.
She described the July 23, 2013 employment incident and stated that her symptoms were caused
by the elbow being bent and placed on a hard surface. Appellant noted that she never had
problems or symptoms of this condition until the date of injury. She provided an article on Ulnar
Nerve Dislocation.
In a September 4, 2013 report, Dr. David D. Alcantara, a specialist in pain management
and rehabilitation, related appellant’s complaints of left hand discomfort for approximately one
month after she rested her left arm on a table for approximately 15 to 20 minutes. Upon
examination he observed no tenderness throughout and full range of motion. Sensation was
diminished in a regional distribution on the left. Reflexes were 2+ and symmetrical bilaterally.
Spurling’s test was negative and Tinel’s test was positive at the ulnar groove. Dr. Alcantara
noted that palpation of the ulnar groove demonstrated a snapping ulnar nerve on the left side. He
reported that sensory nerve and motor nerve conduction studies revealed normal amplitude and
latency in the median, ulnar and radial sensory nerves. Needle electromyography also
demonstrated normal findings in all tested muscles. Dr. Alcantara reported that upon physical
examination appellant had a snapping ulnar nerve on the left side, which may contribute to her
symptoms without giving her any evidence of electrodiagnostic nerve injury. He stated that her
symptoms may represent a neuropraxic injury when she initially had symptoms but did not show
any evidence of damage at the present time. Dr. Alcantara opined that appellant’s decreased
strength and sensation in a regional distribution was somewhat unexplainable.
By decision dated November 7, 2013, OWCP modified its September 17, 2013 decision.
It accepted that the July 23, 2013 incident occurred as alleged but denied appellant’s claim
finding insufficient medical evidence to establish that she sustained a diagnosed left arm
condition as a result of the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial

3

5 U.S.C. §§ 8101-8193.

3

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
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.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.7 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.8 An employee may establish that the employment incident
occurred as alleged but fail to show that her disability or condition relates to the employment
incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the 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.12
ANALYSIS
Appellant alleged that on July 23, 2013 she sustained an injury to her left hand and arm
after she rested her elbows and arms on a table in the performance of duty. In decisions dated
September 17 and November 7, 2013, OWCP accepted that the July 23, 2013 incident occurred
but denied her claim finding insufficient medical evidence to establish that her left upper
extremity condition was causally related to the accepted incident. The Board finds that appellant
did not meet her burden of proof to establish that her left upper extremity condition was a result
of the July 23, 2013 employment incident.
4

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

5

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

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

11

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

12

James Mack, 43 ECAB 321 (1991).

4

Appellant submitted various reports from Dr. Drabicki, who related that she experienced
a sudden onset of numbness in the left four ulnar fingers when she rested both arms on coffee
tables. Upon examination of the left upper extremity, Dr. Drabicki observed temperature
difference on the left and full range of motion. He noted 2+ radial pulses and 1+ ulnar pulse.
Sensation was decreased to light touch and to pinprick and x-rays of the elbow were
unremarkable. Dr. Drabicki diagnosed left upper extremity anesthesia and numbness. He
subsequently advised that MR angiogram and EMG/NCV studies were negative. Dr. Drabicki
authorized appellant to return to full duty on September 11, 2013. Although he accurately
described the July 23, 2013 incident and provided findings on examination, he did not provide a
firm medical diagnosis, other than noting numbness, of the left hand and arm. Dr. Drabicki also
failed to provide any opinion on the cause of appellant’s left hand numbness. 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.13 Dr. Drabicki did not
adequately explain with medical rationale how the described incident of resting both arms on a
coffee table caused or contributed to appellant’s left hand numbness. His reports, therefore, are
insufficient to establish a causal relationship between the July 23, 2013 employment incident and
her alleged injury.
The July 26, 2013 examination note of Dr. Kupas and Dr. Alcantara’s September 4, 2013
EMG/NCV reports are also insufficient to establish appellant’s claim. Neither physician
provided any opinion on the cause of her left hand symptoms.
The issue of causal relationship is a medical question that must be established by
probative medical opinion from a physician.14 Because appellant has not provided such medical
evidence, the Board finds that she did not meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a left arm injury causally related to a July 23, 2013 employment incident.

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009);
A.D., 58 ECAB 149 (2006).
14

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, see supra note 8.

5

ORDER
IT IS HEREBY ORDERED THAT the November 7 and September 17, 2013 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 5, 2014
Washington, DC

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

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

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

6