United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-2076
Issued: August 10, 2011

Case Submitted on the Record

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

JURISDICTION
On August 10, 2010 appellant timely appealed the June 28, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which affirmed the termination of her
wage-loss compensation and medical benefits.
Pursuant to the Federal Employees’
1
Compensation Act (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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective January 21, 2010.
FACTUAL HISTORY
Appellant, then a 53-year-old letter carrier, has an accepted claim for cervical, thoracic
and lumbosacral strains that arose on or about March 18, 1996. She sustained another
1

5 U.S.C. §§ 8101-8193.

employment-related injury on December 26, 1996, which OWCP accepted for aggravation of
cervical strain. The case files for the March 18 and December 26, 1996 injuries were combined,
with the March 18, 1996 employment claim designated as the master file. OWCP subsequently
accepted temporary aggravation of fibromyalgia.2 Effective January 26, 2001, it terminated
compensation and medical benefits with respect to all accepted conditions other than cervical
strain.3
For several years appellant worked in a limited-duty capacity as a consequence of her
employment injuries;4 but the employing establishment withdrew her limited-duty assignment
effective March 4, 2006. Because her employing establishment was no longer able to
accommodate her work restrictions, OWCP placed her on the periodic compensation rolls. For
approximately three years appellant received wage-loss compensation for temporary total
disability.
On November 5, 2009 OWCP issued a notice of proposed termination of benefits. It
proposed to terminate appellant’s compensation and medical benefits based on the opinion of
Dr. Thomas J. Sabourin, a Board-certified orthopedic surgeon and OWCP referral physician,
who examined appellant on August 10, 2009. Appellant’s chief complaint at the time was pain
in the cervical spine and right shoulder.5 Dr. Sabourin diagnosed degenerative disc disease of
the cervical spine (C5-6, C6-7) and status post right shoulder arthroscopy for impingement
syndrome.6 He advised that appellant’s right shoulder condition was permanent and stationary
with very little in the way of symptomatology or objective findings. Appellant’s cervical spine
was much more symptomatic, but from an overall orthopedic viewpoint she had relatively mild
problems. As to the cause of her ongoing cervical complaints, Dr. Sabourin had difficulty
distinguishing the pain associated with her degenerative disc disease and the pain associated with
her chronic cervical strain.7 Because of his inability to differentiate between the two,
Dr. Sabourin did not believe appellant’s employment-related condition had resolved. He
2

OWCP found that the employment-related temporary aggravation ceased as of March 18, 1997.

3

By decision dated November 14, 2001, the Branch of Hearings and Review affirmed OWCP’s January 26, 2001
termination of benefits. Appellant did not appeal OWCP’s hearing representative’s November 14, 2001 merit
decision.
4

Appellant also has an accepted claim for a right shoulder injury that occurred on or about July 31, 2002 (File
No. xxxxxx366).
5

Appellant advised Dr. Sabourin that she first experienced neck pain in the 1980’s when she was on some type of
entertainment ride and was tossed about. She sought medical treatment at the time and her condition improved prior
to her March 18, 1996 employment injury.
6

Based on a review of appellant’s medical records, Dr. Sabourin noted that she had significant psychological
problems and was reportedly disabled from a psychological standpoint. He did not offer his personal opinion
regarding appellant’s psychological condition other than to note that during his examination she demonstrated a
pleasant personality without significant anxiety or overt psychological manifestations.
7

Dr. Sabourin questioned whether the diagnosis of “chronic” cervical strain included in the statement of accepted
facts (SOAF) was the appropriate diagnosis. He explained that a cervical strain would normally be expected to
resolve within six months. Whereas with the accepted “chronic” cervical strain, appellant might well be expected to
have pain the remainder of her life. The latter condition Dr. Sabourin associated with a pain syndrome.

2

provided work restrictions with respect to both cervical and right shoulder conditions, which
included a six-hour limitation on reaching with the right shoulder and a two-hour limitation
reaching above shoulder level. Dr. Sabourin also imposed a six-hour limitation with respect to
pushing, pulling, lifting, squatting, kneeling and climbing, as well as corresponding weight
restrictions (10 to 20 pounds). Upon reviewing his August 10, 2009 report, OWCP sought
clarification from Dr. Sabourin.
In a supplemental report dated October 23, 2009, Dr. Sabourin stated that he disagreed
with the SOAF, which indicated that appellant’s problem was chronic cervical strain. In his
opinion, appellant had preexisting degenerative disc disease that was nonwork related.
Dr. Sabourin added that it was more likely than not that her cervical neck pain was related to her
cervical degenerative disc disease (C5-6, C6-7) and not a work-related condition. He further
stated that the symptom of cervical pain was not indicative of a temporary or permanent
aggravation, but merely a symptom of the underlying disease. Dr. Sabourin indicated that
“chronic cervical strain” was not appellant’s true diagnosis. He believed she initially sustained a
cervical injury in the 1980’s -- a so-called entertainment injury -- and over a period of time she
developed a chronic mild degenerative disc disease of the cervical spine, which was confirmed
by recent x-rays. Appellant’s “pain syndrome” arose from her multilevel cervical degenerative
disc disease, which according to Dr. Sabourin was a preexisting and chronically evolving process
unrelated to her work injuries.
In a report dated December 23, 2009, appellant’s treating physician, Dr. Kristi A. Dove,
noted that she recently examined appellant and had reviewed Dr. Sabourin’s October 23, 2009
report. She diagnosed degenerative disc disease of the cervical spine, pain disorder associated
with both psychological features and a general medical condition and major depressive episode.8
Dr. Dove recommended that appellant resume cognitive behavioral therapy and functional
restoration/physical therapy. She advised that appellant had been overwhelmed by recent
medical/legal proceedings, which left her without any energy whatsoever. Appellant reportedly
remained at home except when she had to attend medical appointments. Dr. Dove noted that
appellant had been extremely depressed, asocial and anhedonic. As to appellant’s right shoulder
condition, she indicated that appellant was permanent and stationery. Dr. Dove did not
specifically address appellant’s cervical strain, other than noting that Dr. Sabourin imposed
certain work restrictions. She indicated that appellant required further medical attention
regarding her current psychiatric status as it related to her pain disorder associated with both
psychological features and a general medical condition.
By decision dated January 21, 2010, OWCP terminated appellant’s compensation and
medical benefits based on Dr. Sabourin’s opinion.
8

Dr. Dove is a Board-certified neurologist. She first examined appellant in August 2003 at which time she
diagnosed post-traumatic myofascial pain syndrome, carpal tunnel syndrome (industrial), right shoulder
impingement syndrome, right lateral epicondylitis and industrial aggravation of cervical degenerative joint disease.
Dr. Dove attributed all of the diagnosed conditions to appellant’s employment with the employing establishment, but
not specifically to the March 18, 1996 employment injury. In 2006, she referred appellant to a psychologist,
Dr. Lynne DeBoskey, who diagnosed major depressive disorder and pain disorder associated with both depression
and physical injuries, secondary to a March 18, 1986 industrial-related injury. OWCP has not accepted an
employment-related psychiatric condition.

3

Appellant requested a hearing, which was held on April 14, 2010. She submitted
treatment notes and a March 5, 2010 narrative report from Dr. Dove, who diagnosed cervical
discogenic syndrome with residual radiculopathy and stenosis, rotator cuff syndrome status post
arthroscopy, lumbar radiculopathy and major depressive episode. Regarding appellant’s cervical
and lumbosacral spine, Dr. Dove advised that she was limited to performing semi-sedentary
work that allowed for sitting half the time and standing or walking the other half. As to the
amount of physical effort required, she indicated it should be minimal regardless of whether
standing, walking or sitting. Dr. Dove also noted that appellant’s condition precluded repetitive
neck flexion. With respect to the cause of appellant’s ongoing cervical and lumbar conditions,
she apportioned 15 percent to a “hereditary propensity to degenerative pathology.” Dr. Dove
further stated that, absent the industrial exposure, 85 percent of the pathology appellant currently
displayed would be nonexistent. Regarding appellant’s depressive symptoms, she apportioned
greater than 51 percent to her employment with the employing establishment. Dr. Dove
recommended further medical treatment in the form of pain management and cognitive
behavioral therapy.
In a decision dated June 28, 2010, OWCP’s hearing representative affirmed the
January 21, 2010 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.9 Having determined that an employee has a disability
causally related to her federal employment, it may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the
employment.10 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability.11 To terminate authorization for medical
treatment, OWCP must establish that the employee no longer has residuals of an employmentrelated condition which require further medical treatment.12
ANALYSIS
Following the termination of appellant’s benefits in 2001, the unresolved condition was
her cervical strain. OWCP’s January 26, 2001 termination of benefits is not an issue currently
before the Board.13 It has not accepted any psychiatric or emotional condition -- depression
and/or pain disorder -- as related to the accepted March 18, 1996 employment injury.

9

Curtis Hall, 45 ECAB 316 (1994).

10

Jason C. Armstrong, 40 ECAB 907 (1989).

11

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

12

Calvin S. Mays, 39 ECAB 993 (1988).

13

See supra note 3.

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Appellant’s treating physician, Dr. Dove, advised that appellant’s ongoing orthopedic and
psychological conditions are employment related. As to appellant’s spine-related orthopedic
conditions, OWCP found that her lumbosacral strain had resolved. Dr. Dove’s most recent
report included a diagnosis of lumbar radiculopathy, which she attributed to appellant’s
employment with the employing establishment; but Dr. Dove offered no explanation of how a
lumbosacral strain that occurred some 15 years prior would presently manifest itself in the form
of lumbar radiculopathy. The opinion is further diminished in probative value given the fact that
when Dr. Dove initially examined appellant in August 2003, there were no subjective
complaints, physical findings or a specific diagnosis relative to the lumbar spine. Dr. Dove
treated appellant approximately three years before there was any mention of lumbar
radiculopathy. She first diagnosed lumbar radiculopathy in July 2006, after appellant had
already stopped working and there was no mention of this condition being employment related.
Dr. Dove subsequently diagnosed lumbosacral neuritis “NOS.” In July 2007, appellant advised
Dr. Dove that weight gain had aggravated her low back pain. She reportedly had been unable to
exercise and was having tremendous difficulty losing weight. Since July 2006 Dr. Dove has
diagnosed lumbar radiculopathy or lumbar neuritis “NOS” without offering a clear explanation
as to how this diagnosis is causally related to appellant’s March 18, 1996 employment injury.
With respect to appellant’s cervical condition, Dr. Dove’s reports do not include a
diagnosis of cervical strain. Instead, she diagnosed cervical discogenic syndrome with residual
radiculopathy and stenosis. As noted, OWCP accepted cervical strain, not cervical degenerative
disc disease or cervical discogenic syndrome. Dr. Dove apportioned 15 percent of appellant’s
current spine-related complaints to what she described as a “hereditary propensity to
degenerative pathology.” The other 85 percent she attributed to appellant’s industrial exposure.
However, Dr. Dove did not offer a salient explanation for the reason she was able to apportion
appellant’s current cervical complaints between her degenerative condition and her employment
exposure. Accordingly, the Board finds that her opinion does not adequately establish a causal
relationship between appellant’s current cervical and lumbar complaints and her March 18, 1996
employment injury.14
In contrast, Dr. Sabourin provided a rationalized opinion in which he clearly explained
that appellant’s ongoing cervical complaints were causally related to her preexisting
degenerative disc disease as opposed to her employment-related cervical strain, which would
normally be expected to resolve within six months. In an October 23, 2009 report, he explained
that her ongoing cervical pain was not indicative of an employment-related aggravation of her
underlying degenerative condition, but merely a symptom of the underlying condition. Lastly,
Dr. Sabourin noted that appellant’s pain syndrome was unrelated to her employment injury, but
was instead the result of her preexisting and chronically evolving multilevel cervical
degenerative disc disease. The Board finds that OWCP properly relied on Dr. Sabourin’s
14

Causal relationship is a medical question, which generally requires rationalized medical opinion evidence to
resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factors must be based on a complete
factual and medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s
opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors. Id.

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opinion as a basis for terminating compensation and medical benefits with respect to appellant’s
March 18, 1996 employment-related cervical strain.
As noted, OWCP did not accept a psychiatric or emotional condition -- depression and/or
pain disorder -- as stemming from the accepted March 18, 1996 employment injury. Dr. Dove
and Dr. DeBoskey both stated that appellant developed a psychiatric condition as a consequence
of her March 18, 1996 employment injury. She first diagnosed major depressive episode/anxiety
in December 2005. At that time, Dr. Dove noted that appellant had been under increased stress
at work. Appellant felt she was being harassed because of her workers’ compensation claims
and because she was dating a carrier. A supervisor reportedly told her that management believed
she was talking to her carrier-boyfriend when she should have been working. Dr. Dove’s
December 6, 2005 treatment notes also mentioned that appellant was expected to attend an
official meeting regarding her use of a cell phone while driving. At the time, there was no
indication that appellant’s March 18, 1996 employment injury either caused or contributed to her
diagnosed major depressive episode/anxiety.
On January 31, 2006 Dr. Dove first diagnosed pain disorder. A couple months later when
the employing establishment withdrew appellant’s limited-duty assignment, she found appellant
totally disabled on both a psychological and physical basis. Appellant reportedly thought of
committing suicide when she learned her limited-duty assignment was no longer available.
Dr. Dove described appellant as distraught when she examined her on March 2, 2006. She then
referred appellant to Dr. DeBoskey, who in a report dated July 10, 2006 diagnosed major
depressive disorder and pain disorder secondary to a March 18, 1986 industrial-related injury.
In her two most recent narrative reports, Dr. Dove continued to diagnose pain disorder
and major depressive episode. The December 23, 2009 report noted that appellant had been
overwhelmed by recent medical/legal proceedings, which left her without any energy
whatsoever. In a March 5, 2010 report, Dr. Dove stated that she believed that 51 percent of all
causes of appellant’s depressive symptoms were related to her employment. However, in this
latest report, she did not specify what particular employment factors or incidents she believed
were responsible for appellant’s depression.
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.15 Since December 2005, Dr. Dove has repeatedly identified
factors unrelated to the March 18, 1996 employment injury that either caused or contributed to
appellant’s diagnosed psychiatric conditions. Neither she nor Dr. DeBoskey have provided a
clear explanation of how appellant’s March 18, 1996 employment injury purportedly caused or
contributed to her current psychiatric condition. Dr. Sabourin did not disagree with the
psychiatric diagnoses, however, he found that appellant’s “pain syndrome” arose from her
multilevel cervical degenerative disc disease, which was a preexisting and chronically evolving
process unrelated to her work injuries. Accordingly, the Board finds that the record does not
establish that appellant’s diagnosed major depressive episode and pain disorder are causally
related to her March 18, 1996 employment injury.
15

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

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The Board further finds that the record demonstrates that appellant no longer suffers from
residuals of her accepted March 18, 1996 employment injury. The weight of the medical
evidence as represented by Dr. Sabourin’s opinion establishes that appellant’s employmentrelated cervical strain has resolved. As such, OWCP properly terminated entitlement to wageloss compensation and medical benefits effective January 21, 2010.
CONCLUSION
The Board finds that OWCP met its burden to terminate compensation and medical
benefits effective January 21, 2010.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 10, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Glendale, CA, Employer
__________________________________________

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

Docket No. 11-1965
Issued: April 11, 2012

Case Submitted on the Record

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

JURISDICTION
On August 24, 2011 appellant filed a timely appeal of a June 24, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP), denying her application for
reconsideration without merit review of the 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 June 24, 2011 nonmerit decision. Since more than 180 days has elapsed between the last
merit decision on December 22, 2010 and the filing of this appeal, the Board lacks jurisdiction to
review the merits of the claim pursuant to 20 C.F.R. § 501.3(e).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 14, 2010 appellant, then a 48-year-old window clerk, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a back injury in the performance of duty on
September 8, 2010. She indicated that she picked up a parcel and felt a sharp pain in her back.
The medical evidence submitted to the record included an attending physician’s report (Form
CA-20) dated September 14, 2010 from Dr. Behzad Emad, a physiatrist.
In a decision dated December 22, 2010, OWCP denied the claim for compensation. It
found the medical evidence was insufficient to establish the claim.
On January 20, 2011 appellant requested a hearing before an OWCP hearing
representative. A hearing was scheduled for April 29, 2011. The record contains a
memorandum of telephone call dated April 18, 2011, indicating appellant had stated that she
wanted to cancel the hearing and request reconsideration. Appellant was advised she must
request a withdrawal of the hearing in writing. By letter dated April 26, 2011, she stated that she
would not be able to attend the scheduled hearing. Appellant stated that she wanted the
opportunity to submit additional documents and request reconsideration of her claim.
By letter dated May 11, 2011, OWCP advised appellant that her request to withdraw a
hearing request had been accepted. It indicated that she could request reconsideration within one
year of the December 22, 2010 decision and submit new evidence.
By decision dated June 24, 2011, OWCP denied the April 26, 2011 reconsideration
request. It found the reconsideration request was insufficient to warrant merit review of the
claim.
LEGAL PRECEDENT
Pursuant to 5 U.S.C. § 8128(a)2 a claimant may submit an application to review an award
for or against payment of compensation. OWCP’s regulations provide that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(1) shows that OWCP erroneously
applied or interpreted a specific point of law; (2) advances a relevant legal argument not
previously considered by OWCP; or (3) constitutes relevant and pertinent evidence not
previously considered by OWCP.”3 Section 10.608(b) states that any application for review that
does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied by
OWCP without review of the merits of the claim.4

2

5 U.S.C. § 8128(a) provides that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

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ANALYSIS
In the present case, OWCP denied appellant’s claim for a traumatic injury by decision
dated December 22, 2010. The Board does not have jurisdiction over this decision and cannot
review the merits of appellant’s claim for compensation on this appeal. Although she had
requested a hearing before an OWCP hearing representative, appellant withdrew her request and
indicated that she wished to request reconsideration and submit additional evidence. As OWCP
explained to appellant in its May 11, 2011 letter, a claimant has one year from the date of a merit
decision to request reconsideration.
OWCP considered the April 26, 2011 letter to be a request for reconsideration. While
appellant indicated that she intended to submit additional evidence, the record reflects that there
was no evidence or argument submitted. In reviewing the above standards at 20 C.F.R.
§ 10.606(b)(2), appellant did not meet any of these requirements. She did not show that OWCP
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by OWCP or submit relevant and pertinent evidence not previously
considered by OWCP. The Board accordingly finds that OWCP properly determined that
appellant was not entitled to a merit review of her claim for compensation.
On appeal, appellant indicated that she wanted to change her claim to an occupational
claim Form CA-2 and submitted new evidence. The Board cannot consider new evidence on
appeal, as it is limited to evidence that was before OWCP at the time of the final decision on
appeal.5 Appellant may pursue her claim independently from the Board with same at OWCP in
an appropriate manner.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim.

5

Id. at § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 24, 2011 is affirmed.
Issued: April 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


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

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Appearances:
J.D. McAlester, for the appellant
Office of Solicitor, for the Director

Docket No. 09-776
Issued: October 6, 2009

Case Submitted on the Record

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

JURISDICTION
On January 27, 2009 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated June 9, 2008 denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she developed
an emotional condition due to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board on appeal. Appellant filed an emotional
condition claim on September 10, 2005 for job-related stress. The Office denied her claim on
December 19, 2005 and April 6, 2006. It declined to review the merits of her claim on
August 28 and December 6, 2006. In a decision dated February 12, 2008, the Board reviewed
and affirmed the April 6, 2006 decision and remanded the nonmerit decisions for additional

review. The Board found that appellant had submitted relevant evidence requiring further merit
review. Sheila Jennings, appellant’s supervisor, completed a statement on December 2, 2005
and contended that appellant acted angry before the conversation began and had informed her
that she had something to tell her as well. Ms. Jennings stated, “I told her that I depended on the
“girls” to ensure things were done correctly.” Appellant became belligerent and asserted that she
was not a girl. Ms. Jennings stated, “I had not called her a ‘girl.’ ‘Girls’ is a term I use in
referring to the secretaries. I have even included myself in that term.” Ms. Jennings asserted
that she then asked what appellant wanted to tell her and that appellant stated that she was
leaving. The facts and the circumstances of the case as set out in the Board’s prior decision are
adopted herein by reference.1
Following the Board’s February 12, 2008 decision, appellant submitted additional
medical evidence in support of her claim. She resubmitted e-mail messages regarding lunch on
July 25, 2005.
By decision dated June 9, 2008, the Office denied appellant’s claim finding that the
evidence submitted was not sufficient to meet appellant’s burden of proof by substantiating a
compensable factor of employment.
On appeal, appellant requested that the Board appoint her a legal representative. She also
requested a copy of any transcript of her February 12, 2008 oral argument before the Board
noting that she could not financially afford to travel to Washington for further oral argument.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related 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 worker’s compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3 Verbal altercations and difficult
relationships with supervisors, when sufficiently detailed by the claimant and supported by the
record, may constitute factors of employment. Although the Board has recognized the
compensability of verbal abuse in certain circumstances this does not imply that every statement
uttered in the workplace will give rise to coverage under the Act.4

1

Docket No. 07-932 (issued August 21, 2008).

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
4

Marguerite J. Toland, 52 ECAB 294 (2001).

2

ANALYSIS
The Board has previously reviewed the merits of appellant’s emotional condition claim.
In regard to the additional evidence reviewed on the merits by the Office, the Board notes that
Ms. Jennings acknowledged using the word “girl” in appellant’s presence. However,
Ms. Jennings denied calling appellant a “girl” and asserted that she generally referred to
secretaries as girls and to herself in this manner. The Board finds that this statement does not
establish verbal abuse on the part of Ms. Jennings. The evidence does not establish a
compensable factor of employment. Therefore appellant has not met her burden of proof in
establishing that she sustained an emotional condition in the performance of duty.5
It is well established that appellant may not submit evidence directly to the Board.6 The
Board’s review on appeal is only of that evidence in the case record at the time of the Office
decision from which appellant seeks review.7 Oral argument provides appellant with the
opportunity to draw the Board’s attention to that evidence of record which supports the
employee’s contentions of error in fact or law in the adjudication of her claim before the Office.
It is not a proceeding in which evidence is submitted and accepted into the record.8 No transcript
of oral argument is made by the Board or any such record maintained.
Appellant also requested the Board to appoint a legal representative. Her request on
appeal is analogous to that in Stanley K. Hendler.9 In that case, the employee requested that an
attorney be appointed to represent him in the matter of an overpayment before the Office. The
Board noted that there was no authority under the Act to appoint a representative for an
employee or to pay any fee for such representation in connection with a claim.10 Under section
8127(a), an employee may authorize an individual to represent him or her in any proceeding
under the Act.11 The Board found that the Office properly rejected the employee’s request. In
this case, there is no provision under the Board’s Rule of Procedure for retaining or paying for
representation of appellant. Section 501.11(a) provides that in any proceeding before the Board,
a party may appear or be represented by any duly authorized person.12 No person shall be
5

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).
6

Frieda Nachman (Albert H. Nachman), 3 ECAB 114 (1950). Evidentiary material which has not been presented
to the Office and is not part of the case record may not introduced before the Board in an appeal. See Richard R.
Reeves, 6 ECAB 371 (1953).
7

Albert S. Becker, 56 ECAB 465 (2005); Charles S. Jalkewicz, 34 ECAB 444 (1982).

8

See Rudolph S. Rehak, 19 ECAB 629 (1968) (during oral argument, the employee submitted medical evidence
contending it was furnished to the Office and as the record did not contain the report, the Board did have authority to
consider it). Accord Edgar Aikman, et al, 32 ECAB 1570 (1981).
9

36 ECAB 263 (1984).

10

Id. at 266

11

5 U.S.C. § 8127(a).

12

20 C.F.R. § 501.11(a).

3

recognized as representing appellant unless written authorization signed by appellant is filed with
the Board. There is no provision allowing for either the appointment of a representative for
appellant or to pay for such representation in connection with her appeal. Appellant’s request
must be denied.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an emotional condition due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2008 is affirmed.
Issued: October 6, 2009
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
YOUNGSTOWN AIR RESERVE STATION,
)
Vienna, OH, Employer
)
___________________________________________ )
J.B., Appellant

Appearances:
John P. Lutseck, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1083
Issued: October 1, 2007

Case Submitted on the Record

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

JURISDICTION
On March 14, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 20, 2006 which affirmed the denial of her
emotional condition claim. She also appealed a December 11, 2006 decision which denied
further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty; and (2) whether the Office properly
denied her request for reconsideration without further merit review.
FACTUAL HISTORY
On June 24, 2005 appellant, then a 38-year-old logistics support specialist, filed an
occupational disease claim, Form CA-2, alleging that she developed depression and anxiety due

to increased stress at work. She became aware of her condition on June 7, 2005, the day she
stopped work. On July 19, 2005 the Office asked appellant to submit evidence, including a
detailed description of the employment factors or incidents that she believed contributed to her
claimed illness. In a letter of the same date, the Office requested that the employing
establishment address appellant’s allegations.
In a May 3, 2005 statement, appellant alleged that her supervisor, Major Dawn K.
Sturdevant, was unapproachable, placed appellant in the middle of her battles and would roll her
eyes at her. She alleged that Major Sturdevant accused her of a homosexual relationship and
retaliated against her after she filed complaints with the inspector general on May 2
and 17, 2005. Appellant alleged that Major Sturdevant made comments to her about their work
problems and told her that slander was against the law. She alleged that Major Sturdevant
screamed, yelled, cursed, threw things and burst into fits of rage. Major Sturdevant told
appellant that she was paranoid and a national security threat. Appellant accepted another
position on April 25, 2005 with a tentative start date of June 26, 2005 but Major Sturdevant
sabotaged her transfer by placing a memorandum in her file accusing her of homosexual
conduct.
She filed two Equal Employment Opportunity (EEO) complaints against
Major Sturdevant which were pending. Appellant alleged that Major Sturdevant broke promises
to her regarding changing her security clearance. She alleged that Major Sturdevant requested
that she not speak with Major Coburn regarding her work situation and that she should follow the
chain of command. Appellant stated that Major Sturdevant unreasonably objected to her leave
requests and requested medical documentation substantiating her disability. She submitted
reports from Dr. Susan Kirsh, a Board-certified internist, dated June 7 and 23, 2005. Dr. Kirsh
treated appellant for chest pains of an unknown etiology and diagnosed adjustment disorder with
mixed anxiety and depressed mood related to a conflict at work.
In an October 30, 2004 statement, Major Sturdevant noted that appellant interrupted a
staff meeting by making inappropriate, hostile and disrespectful comments about her and another
supervisor. She recommended that appellant address concerns or problems in a professional
manner and stated that appellant had been previously counseled on her conduct and attitude. In
letters to appellant’s physician dated June 2 and 14, 2005, Major Sturdevant requested
information regarding appellant’s medical condition to assess her ability to perform her duties
without aggravating or worsening her condition. She noted that she did not falsely accuse
appellant of having a homosexual relationship but, rather, appellant had confided this
information to her and she reported it to her upline superior. Major Sturdevant denied retaliating
against appellant or verbally abusing her. She noted that appellant was currently absent without
leave due to lack of medical documentation substantiating her disability. On July 27, 2005
Major Sturdevant advised that appellant’s accusations were investigated by the employing
establishment commander and found to be unsubstantiated. She indicated that appellant had
behavioral and performance problems in her civilian and military capacities and was counseled
without success.
Appellant submitted an inspector general’s complaint dated May 2, 2005 and alleged that
in August and September 2004, she witnessed Major Sturdevant forge the signature of a senior
officer. In an inspector general’s complaint dated May 17, 2005, appellant alleged that Major
William Cunningham attempted to discredit her by informing supervisors that appellant was no
longer a member of the squadron.

2

In an August 30, 2005 decision, the Office denied appellant’s claim finding that the
claimed emotional condition did not arise in the performance of duty.
In a May 17, 2005 letter, the employing establishment noted that appellant’s tentative job
offer was withdrawn due to her pending discharge from the Air Force Reserve and ineligibility to
meet required qualifications of the job in question. In a July 21, 2005 notice of discharge, the
employing establishment advised appellant that she was entitled to submit statements or
documents on her behalf prior to the disposition of her case. On August 4, 2005 the employing
establishment issued a notice of separation during probation effective August 12, 2005. The
employing establishment noted that appellant was terminated because she was absent without
leave from June 27 to August 10, 2005 and did not provide sufficient medical documentation to
support her leave request. The employing establishment noted that Dr. Kirsh’s June 23, 2005
report did not provide a definitive diagnosis or estimate a return to work date. The employing
establishment noted that appellant’s position required her to hold a security clearance but a
clearance was not granted due to problems with appellant’s financial history. The employing
establishment indicated that it had been about one year since appellant’s security clearance
application, without a favorable adjudication, and it appeared unlikely that any clearance would
be granted.
On September 21, 2005 appellant requested an oral hearing. In a June 7, 2005 report,
Dr. Thomas J. Mako, a clinical psychologist, diagnosed mixed anxiety and depressed mood
related to an ongoing work-related conflict. On August 8, 2005 Dr. Kirsh diagnosed chest pain
due to cardiac, gastrointestinal or anxiety. Appellant submitted statements dated June 6 and
August 8, 2005 reiterating her allegations against Major Sturdevant. She disputed the separation
notice and advised that she properly requested leave without pay and was never notified that
additional information was needed to support her request. Appellant contended that the
employing establishment’s allegations regarding her security clearance were false and
inaccurate. In statements dated August 25, 2005, April 21 and June 13, 2006, appellant advised
that she was reinstated after an investigation found that her commanding officer’s statements
were not credible. She also alleged that an investigation of Major Sturdevant found that she
committed fraud and forged signatures.
By decision dated June 20, 2006, the hearing representative affirmed the August 30, 2005
decision, finding that appellant had not established any compensable employment factors.
In a letter dated November 3, 2006, appellant requested reconsideration. She noted that a
“decision” found that Major Sturdevant committed perjury in terminating her for an alleged
homosexual relationship. Appellant further advised that Major Sturdevant’s allegations caused
her emotional condition.
In a December 11, 2006 decision, the Office denied appellant’s reconsideration request
on the grounds that her letter neither raised substantive legal questions nor included new and
relevant evidence and was therefore insufficient to warrant review of the prior decision.

3

LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out her employment duties, and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.5
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 under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

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

4

employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS -- ISSUE 1
Appellant alleged that she experienced harassment and reprisals by Major Sturdevant,
after filing two complaints with the inspector general on May 2 and 17, 2005. She stated that
Major Sturdevant was unapproachable, that she put her in the middle of her battles, would roll
her eyes at her and accused her of confessing to a homosexual relationship. Major Sturdevant
made comments to appellant about their work problems after appellant asked her not to, she told
appellant that slander was against the law and sabotaged appellant’s transfer to another position.
To the extent that incidents alleged as constituting harassment by a supervisor are established as
occurring and arising from appellant’s performance of her regular duties, these could constitute
employment factors.9 However, for harassment to give rise to a compensable disability under the
Act, there must be evidence that harassment did in fact occur. Mere perceptions of harassment
are not compensable under the Act.10
The factual evidence fails to support appellant’s claim of harassment. Major Sturdevant
noted that she did not falsely accuse appellant of having a homosexual relationship, rather,
appellant confided this information to her and she reported it to her superior. She stated that she
did not take any retaliatory action against appellant and did not verbally abuse her.
Major Sturdevant noted that appellant was absent without leave due to lack of proper medical
documentation. On July 27, 2005 Major Sturdevant advised that appellant’s accusations against
her were investigated through the commander and determined to be unsubstantiated. She
indicated that appellant had behavioral and performance problems in both her civilian and
military capacities. The employing establishment noted that appellant’s tentative job offer was
withdrawn because she was ineligible to meet the required qualifications for the position she
sought and because she could not obtain a security clearance due to problems with her financial
history.
General allegations of harassment are not sufficient.11 In this case, appellant has not
submitted sufficient evidence to establish harassment by her supervisor.12 Although she alleged
that her supervisor discriminated and retaliated against her and engaged in actions which she
believed constituted harassment, she did not submit corroborating evidence, such as witness

8

Id.

9

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

10

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

11

See Paul Trotman-Hall, 45 ECAB 229 (1993).

12

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).

5

statements, to establish her allegations.13 Additionally, Major Sturdevant refuted her allegations.
The Board notes that there is no other evidence corroborating appellant’s charges. Thus,
appellant has not established a compensable employment factor under the Act with respect to the
claimed harassment or discrimination.
To the extent that appellant alleged a verbal abuse and threats by Major Sturdevant, the
Board has recognized the compensability of physical threats or verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
give rise to coverage under the Act.14 The Board finds that the facts of the case, noted above in
the analysis of the allegation of harassment, does not reveal that appellant’s superior threatened
her or acted unreasonably in view of appellant’s conduct. Appellant provided no corroborating
evidence, or witness statements to establish her allegations.15 Major Sturdevant denied that she
threatened, harassed or spoke to appellant in a hostile manner and there is no corroborating
evidence to support that the employing establishment erred or acted abusively. Appellant has not
otherwise shown how supervisory comments or actions rose to the level of verbal abuse or
otherwise fell within coverage of the Act.16
Appellant also noted filing an EEO claim for harassment and discrimination; however,
the Board further notes that grievances and EEO complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.17 None of the information submitted
establishes improper action by her supervisor. Thus, the evidence regarding the EEO matter
does not establish a compensable employment factor under the Act.
Other allegations by appellant relate to administrative or personnel actions. In
Thomas D. McEuen,18 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing

13

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
14

Charles D. Edwards, 55 ECAB 258 (2004).

15

See William P. George, supra note 13.

16

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
17

James E. Norris, 52 ECAB 93 (2000).

18

See Thomas D. McEuen, supra note 6.

6

establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.19
Regarding appellant’s allegations that Major Sturdevant sabotaged her transfer and broke
promises to her regarding her security clearance, the Board finds that these allegations relate to
administrative or personnel matters, unrelated to the employee’s regular or specially assigned
work duties and do not fall within the coverage of the Act.20 The Board has held that denials by
an employing establishment of a request for a different job, promotion or transfer are not
compensable factors of employment as they do not involve the employee’s ability to perform his
or her regular or specially assigned work duties but rather constitute his or her desire to work in a
different position.21 The employing establishment has either denied these allegations or
contended that it acted reasonably in these administrative matters. The employing establishment
noted that appellant was pending discharge from the Air Force Reserve because she was unable
to obtain a security clearance due to problems with her financial history. It was further noted
that she was absent without leave from June 27 to August 10, 2005 without adequate supporting
medical documentation. Appellant has presented no corroborating evidence to support that the
employing establishment erred or acted abusively with regard to these allegations. Thus she has
not established administrative error or abuse in the performance of these actions and therefore
they are not compensable under the Act.
Appellant alleged that Major Sturdevant requested that she not speak with Major Coburn
regarding her work situation and that she follow the chain of command. The Board recognizes
that a supervisor or manager must be allowed to perform his or her duties and that, in performing
such duties, employees will at times dislike actions taken.22 Appellant has presented insufficient
evidence to support that the employing establishment acted unreasonably in exercising her
supervisor authority.
Appellant alleged that Major Sturdevant unreasonably objected to her leave requests and
required her to produce additional medical documentation to support her claim for disability.
The Board notes that the handling of leave requests and attendance matters are generally related
to the employment, they are administrative functions of the employer and not duties of the
employee.23 Major Sturdevant indicated that she tried to contact both appellant and her
physicians in letters dated June 2 and 14, 2005; however, she was unable to obtain complete
information regarding appellant’s diagnosed condition and her anticipated return to work. There
is no evidence that appellant’s supervisor erred or acted unreasonably in requesting medical
documentation regarding leave. The Board finds that the employing establishment acted

19

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

20

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41
ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
21

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

22

See Michael A. Deas, 53 ECAB 208 (2001).

23

See Judy Kahn, 53 ECAB 321 (2002)

7

reasonably in this administrative matter and appellant has not established a compensable factor
of employment with respect to this allegation.
Consequently, appellant has not established her claim for an emotional condition.24
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,25 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,26 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.27
ANALYSIS -- ISSUE 2
Appellant’s November 3, 2006 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance a relevant legal argument not previously considered by
the Office.
Appellant did not submit any additional evidence with her reconsideration request only a
narrative statement which reiterated her allegations that Major Sturdevant lied, harassed, verbally
abused and retaliated against her. However, her letter did not show how the Office erroneously
applied or interpreted a point of law nor did it advance a point of law or fact not previously
considered by the Office. The Office had previously considered appellant’s allegations and she

24

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).
25

5 U.S.C. § 8128(a).

26

20 C.F.R. § 10.606(b).

27

20 C.F.R. § 10.608(b).

8

did not set forth a particular point of law or fact that the Office had not considered or establish
that the Office had erroneously interpreted a point of law with regard to her claim.28
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant, as noted above, did not submit any new evidence
with her reconsideration request. Although appellant asserted that there had been a decision
finding Major Sturdevant committed perjury, she did not provide a copy of any such decision to
the Office for review.
The Board therefore finds that the Office properly determined that appellant is not
entitled to a review of the merits of her claim pursuant to any of the three requirements under
section 10.606(b)(2), and properly denied her November 3, 2006 request for reconsideration.
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty. The Board further finds that the Office properly denied
appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 11 and June 20, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
28

See Brent A. Barnes, 56 ECAB ___ (Docket No. 04-2025, issued February 15, 2005) (evidence that is
repetitious or duplicative of evidence already in the case record does not constitute a basis for reopening the claim).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HOUSTON REGIONAL OFFICE,
San Antonio, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0037
Issued: May 29, 2019

Case Submitted on the Record

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

JURISDICTION
On October 5, 2017 appellant, through counsel, filed a timely appeal from a September 6,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted June 8, 2016 employment incident.
FACTUAL HISTORY
On June 15, 2016 appellant, then a 64-year-old appraiser and assessor, filed a traumatic
injury claim (Form CA-1) alleging that on, June 8, 2016, he collided with a vehicle that turned in
front of him while in the performance of duty. He claimed that the incident caused pain and
stiffness in his neck, shoulders, lower back, and lower extremities. On the reverse side of the claim
form, the employing establishment affirmed that appellant was injured in the performance of duty.
In a development letter dated June 21, 2016, OWCP advised appellant of the deficiencies
in the evidence received, requested that he complete a factual questionnaire regarding his activities
at the time of the injury, and also requested medical evidence to support his claim. It afforded him
30 days to respond.
Appellant subsequently submitted a completed questionnaire, a Motor Vehicle Accident
Report, and a Texas Peace Officer’s Crash Report dated June 8, 2016. He indicated that the
immediate effects of the injury were extreme pain and stiffness to his neck, shoulders, lower back,
and lower extremities. Appellant referred to the accident and police reports to describe the injury.
Appellant also submitted a July 6, 2016 report by Dr. Hameed A. Sosunmu, a Boardcertified internist, who noted that appellant was his patient since February 23, 2013. Dr. Sosunmu
advised that appellant first complained of low back pain on May 4, 2015. He explained that
objective findings were insufficient at that time to order diagnostic testing. Dr. Sosunmu indicated
that there were no further complaints of neck or low back pain until he saw appellant on June 10,
2016 following the motor vehicle accident on June 8, 2016. Upon examination he indicated that
appellant had decreased range of motion with tenderness to palpation of the cervical and lumbar
spine, as well as bilateral knee tenderness. Dr. Sosunmu noted that x-rays were ordered and that
the cervical spine x-ray revealed markedly severe spondylosis with retrolisthesis of C4-5. He
indicated that the lumbar spine x-ray revealed moderate-to-severe degenerative changes in the
form of endplate spurring and spondylosis. Dr. Sosunmu found that the right and left knee x-rays
revealed osteoarthritis. He explained that degenerative disc disease is a progressive condition and
any type of injury to the spine, as was sustained in the motor vehicle accident on June 8, 2016,
would aggravate the existing condition. Dr. Sosunmu noted that appellant had not exhibited
complications related to his cervical or lumbar spine until he suffered the reported work-related
motor vehicle accident.
By decision dated July 26, 2016, OWCP denied the claim, finding that appellant had not
met his burden of proof to establish causal relationship between the accepted June 8, 2016
employment incident and a diagnosed medical condition. It noted that he had not submitted
medical evidence in support of his claim.
On August 25, 2016 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.

2

In an August 20, 2016 statement, appellant described the June 8, 2016 incident and
provided copies of the accident report, duplicate copies of the notice of injury form, and pictures
of the vehicle at the body shop. He explained that he initially told the paramedics that he did not
feel any pain and thought he would be alright. However, the next morning, appellant began to feel
sharp pain in his neck, lower back, and legs, as well as stiffness with range of movement in his
entire body. He explained that the first appointment he was able to obtain was on June 10, 2016
and his physician had explained that the diagnosed conditions had been aggravated due to his
injury “sustained to my spine in the car crash while conducting my daily job assignments-operating
my government vehicle.” Appellant also indicated that there was no previous complication with
his spine prior to the work-related motor-vehicle accident.
OWCP received a copy of the July 6, 2016 report, a June 13, 2016 automobile repair
estimate, and previously submitted reports.
By decision dated February 21, 2017, OWCP’s hearing representative affirmed the July 26,
2016 decision. She found that there was no rationalized medical evidence of record establishing
that appellant sustained an injury casually related to the accepted June 8, 2016 employment
incident, as alleged.
By letter dated August 23, 2017, appellant, through counsel, requested reconsideration and
submitted additional evidence.
In a July 31, 2017 report, Dr. John W. Ellis, an occupational medicine specialist Boardcertified in family medicine, noted appellant’s history of injury, reviewed his medical treatment
records, and performed a physical examination. He explained that on June 8, 2016, appellant was
in a sedan when a vehicle turned in front of him and his vehicle hit the other vehicle. Dr. Ellis
related that at impact, appellant was thrown forward and his body hit the seatbelt, but not the
steering wheel. He explained that the airbag did not deploy. Additionally, Dr. Ellis related that
appellant informed him that he was dazed and felt stunned, but he felt like he could not move his
neck, back, arms, or legs. He explained that this lasted for several minutes. Appellant informed
him that, after an hour, he drove home, but by the time he got home he was very stiff in the back
of his neck and between his shoulders and he also had some pain in his shoulder joints, as well as
a lot of pain in his back and numbness radiating down both arms and legs. Dr. Ellis noted that he
had pain in both kneecaps and it was different from the shooting pain that was going from his back
down his legs.
In his report Dr. Ellis noted that appellant’s medical history and records included cervical
x-rays that revealed markedly severe spondylosis with retrolisthesis of C4-5 and lumbar spine
x-rays that revealed moderate-to-severe degenerative changes present in the form of endplate
spurring and spondylosis. Furthermore, bilateral knee x-rays revealed osteoarthritis. Dr. Ellis
indicated that a lumbar spine MRI scan without contrast revealed degenerative changes of the
lower lumbar spine while a cervical spine MRI scan without contrast revealed multilevel disc
disease, spondylosis with canal stenosis, and neuroforaminal narrowing. He noted appellant’s
current complaints of pain and impairment.
Dr. Ellis opined that, based upon his examination of the employee, review of the medical
and other records, and his physical examination findings, appellant’s diagnosed medical conditions

3

were causally related to the motor vehicle accident of June 8, 2016. He explained that in the motor
vehicle accident, “there was sudden stopping, which caused sudden movement of his neck and
back. The sudden movement and forces involved are stronger than the muscles and ligaments in
his neck and back, which caused tearing of some of the muscles and ligaments in the neck, back,
and shoulders. The tight muscles in his neck and shoulders are impinging the brachial plexus of
nerves down the arms.” Dr. Ellis indicated that he had not found evidence of a specific spinal
nerve impingement down the arms, but he observed two findings in appellant’s back. He explained
that “obviously [he] has muscle spasm and tenderness in his back as well as tightness of his buttock
muscles causing impingement of the sciatic nerves and weakness down his legs.” Dr. Ellis
indicated that there could be underlying deranged discs in the back causing bilateral L5 and S1
spinal nerve impingement, but he could not make such a diagnosis with a positive electromyogram
and nerve conduction velocity (EMG/NCV) study. He explained that appellant “being older and
having the osteoarthritis in the neck and shoulders would make him more prone to pulling the
muscles and ligaments in his neck than if he was 16 years old.” Dr. Ellis noted, however, that, if
he had not had the motor vehicle accident, he would not have had the muscle tendon unit strain in
his neck, shoulders, and back and the brachial plexis and lumbosacral plexus impingement. He
opined that the employment-related motor vehicle accident caused the diagnoses set forth in his
report, except for those which first require an EMG/NCV study including possible diagnoses of
deranged discs causing impingement of the spinal nerves. Dr. Ellis noted that appellant had
osteoarthritis in both of his knees which was made worse by the contusion of the kneecaps in the
motor vehicle accident.”
By decision dated September 6, 2017, OWCP denied modification of the February 21,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 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.5
To determine if an employee sustained a traumatic 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 that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,
40 ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

allegedly occurred.6 The second component is whether the employment incident caused a personal
injury. An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.9
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 employee.10 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.11
ANALYSIS
The Board finds that the case is not in posture for a decision.
In support of the need for medical rationale supporting that his diagnosed conditions are
causally related to the accepted June 8, 2017 employment incident, appellant submitted a report
by Dr. Ellis dated July 31, 2017. Dr. Ellis provided a detailed history of injury and accurately
described the June 8, 2016 motor vehicle accident, noting that appellant was in a sedan when a
vehicle turned in front of him and his vehicle hit the other vehicle. He related that at impact,
appellant was thrown forward and his body hit the seatbelt, but not the steering wheel. Dr. Ellis
explained that the airbag did not deploy. Additionally, he described appellant’s symptoms at the
time and how he could not move his neck, back, arms or legs for several minutes. Dr. Ellis also
indicated that he reviewed diagnostic reports, which included cervical x-rays revealed markedly
severe spondylosis with retrolisthesis of C4-5 and lumbar spine x-rays which revealed moderateto-severe degenerative changes. He also explained that right and left knee x-rays revealed
osteoarthritis. Dr. Ellis also indicated that lumbar spine MRI scan without contrast revealed
degenerative changes of the lower lumbar spine and that a cervical spine MRI scan without contrast
revealed multilevel disc disease, spondylosis with canal stenosis and neuroforaminal narrowing.
He provided details of appellant’s current complaints and his prior employment history. Dr. Ellis
6

Elaine Pendleton, 40 ECAB 1143 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
9

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

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

11

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

opined that the employment incident contributed to, aggravated and/or caused this employee’s
injuries, disabilities, and impairments as set forth in his report.
Dr. Ellis provided a detailed narrative explanation as to how the motor vehicle accident of
June 8, 2016 was sufficient to cause the straining of the muscles and ligaments and then impinge
the nerves down appellant’s arms and legs. He explained how sudden stopping resulted in a sudden
movement of appellant’s neck and back and that the forces involved were stronger than the muscles
and ligaments in his neck and back, which caused tearing of the muscles and ligaments in the neck,
back, and shoulders. Dr. Ellis further explained that the tight muscles in his neck and shoulders
caused impingment of the brachial plexus of nerves down the arms. He also indicated that he has
muscle spasm and tenderness in his back as well as tightness of his buttock muscles which results
in impingement of the sciatic nerves and weakness down his legs. Dr. Ellis noted that because
appellant was older and having prior osteoarthritis in the neck and shoulders made him more prone
to pulling the muscles and ligaments in his neck than if he was younger. He also noted
osteoarthritis in both of knees which was made worse by the contusion of the kneecaps in the motor
vehicle accident.
The Board finds that, although the report of Dr. Ellis contains insufficient rationale to
discharge appellant’s burden of proof on the issue of causal relationship, the Board finds that his
report is of sufficient quality to require further development of his claim by OWCP.12 The Board
also notes that there is no probative opposing medical evidence in the record. Furthermore,
Dr. Sosunmu, the original treating physician, also provided support that the incident caused or
aggravated an employment-related condition.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.13 While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.14 When OWCP
undertakes to develop the medical aspects of a case, it must exercise extreme care in seeing that
its administrative processes are impartially and fairly conducted.15
The Board finds that this case shall be remanded for OWCP to refer appellant to a second
opinion physician for a detailed, reasoned medical opinion explaining whether his June 9, 2016
employment incident caused or aggravated the identified medical diagnoses. The Board notes that
the diagnostic reports referred to by Dr. Ellis should also be obtained prior to the second opinion
examination. Following this and other such further development as deemed necessary, OWCP
shall issue a de novo decision.

12
John J. Carlone, 41 ECAB 354 (1989); see also Cheryl A. Monnell, 40 ECAB 545 (1989); Horace Langhorne,
29 ECAB 820 (1978).
13

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57 ECAB
281 (2005); Vanessa Young, 55 ECAB 575 (2004).
14

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

15

See P.K., Docket No. 08-2551 (issued June 2, 2009); Peter C. Belkind, 56 ECAB 580 (2005).

6

CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision of the Board.
Issued: May 29, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Malden, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-261
Issued: September 12, 2011

Case Submitted on the Record

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

JURISDICTION
On November 10, 2010 appellant filed a timely appeal of an August 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on February 10, 2010, as alleged.
FACTUAL HISTORY
On February 12, 2010 appellant then a 40-year-old mail carrier, filed a traumatic injury
claim alleging that she injured her left knee on February 10, 2010 while performing her job
duties. She submitted form and narrative reports from Dr. Yesoda N. Rao, a Board-certified
1

5 U.S.C. § 8101 et seq.

internist, dated February 12, 2010 diagnosing left knee pain and reporting that she fell at work
two weeks previously. Appellant underwent a left knee x-ray on February 12, 2010 which was
negative.
In a report dated February 26, 2010, Dr. John H. Chaglassian, a Board-certified
orthopedic surgeon, noted that appellant experienced left knee pain beginning on February 10,
2010 at work and diagnosed sprain left knee, torn meniscus, chondromalacia patella and possible
loss body. He completed a form report on March 2, 2010 and repeated his findings and
conclusions. Dr. Chaglassian did not provide an opinion as to whether appellant’s condition was
caused by her employment.
Dr. Rao completed a form report on March 8, 2010 and diagnosed left knee pain and
again stated that appellant remembered falling approximately two weeks before she developed
knee pain on February 10, 2010 while covering for someone at work. She stated that appellant’s
left knee pain “could have been” caused by her employment activity.
A magnetic resonance imaging scan dated March 10, 2010 demonstrated a complex tear
of the medial meniscus, parameniscal cysts, possible tear of the lateral meniscus, Baker’s cyst,
effusion and chondromalacia patella. Dr. Chaglassian examined appellant and recommended
arthroscopic knee sugery.
In a letter dated March 19, 2010, OWCP informed appellant that additional medical
evidence was needed to support her claim. It allowed 30 days for a response. In a report dated
March 23, 2010, Dr. Chaglassian stated that appellant reported no knee symptoms until
February 10, 2010 while at work she developed swelling and pain in her left knee. He stated that
her condition could not have been present for a long time as such complex tears will cause
significant symptoms. Dr. Chaglassian stated that a meniscus could tear without a fall and as a
result of tripping or twisting the knee, as the result of squatting, kneeling or attempting to stand
from such a position. He explained that if the femur and the tibia pivot against each other the
meniscus can tear noting that the meniscus was vulnerable as it was soft, between two bones and
responsible for absorbing “a fair amount” of energy and could tear with a shearing force during a
simple mechanism of injury. Dr. Chaglassian opined, “Based on the history given, the absence
of preexisting symptoms prior to February 10, 2010 it is my opinion with a reasonable degree of
medical certainty that the left knee symptoms of [appellant] are causally related to an injury
which occurred while at work.”
Dr. Chaglassian completed a form report on March 10, 2010 and noted that appellant
reported left knee on February 10, 2010. He diagnosed torn meniscus and internal derangement
of the left knee and indicated with a checkmark “yes” that appellant’s condition was related to
her employment activity.
In a narrative statement dated March 24, 2010, appellant stated that her left knee injury
occurred on February 10, 2010 while setting up her route. She noticed stiffness in her knee
which she believed would resolve, but the stiffness turned to pain during the delivery of her
route. Appellant denied reporting a fall during late January or February 2010 and stated that she
remembered responding to Dr. Rao’s queries about a fall by stating that she last fell months
before the initial examination by Dr. Rao.

2

By decision dated April 29, 2010, OWCP denied appellant’s claim finding that she failed
to submit any rationalized medical opinion evidence establishing that her left knee injury
occurred in the performance of duty on February 10, 2010 as alleged.
Appellant requested a review of the written record on May 19 and 24, 2010.
Dr. Chaglassian completed a form report on April 22, 2010 and diagnosed internal derangement
and tear of the lateral meniscus. He checked “yes” to indicate that appellant’s condition was due
to her employment activity. Dr. Chaglassian performed an arthroscopy of the left knee with
partial medial and lateral meniscectomy, debridement chondroplasty of the medial compartment
and patellofemoral joint on April 7, 2010. In this report, he stated that appellant fell in
February 2010 resulting in symptoms of pain, swelling and limitation of motion.
By decision dated August 17, 2010, OWCP’s hearing representative affirmed OWCP’s
April 29, 2010 decision finding that Dr. Chaglassian’s reports were not sufficient to meet
appellant’s burden of proof.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and 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 or
specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit

2

Id.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

6

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

3

sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.7
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s rationalized opinion
on the issue of whether these is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and specific employment activity or factors identified by the
claimant.9
ANALYSIS
Appellant filed a claim for a traumatic injury occurring on February 10, 2010. She stated
that her knee began to hurt and swell during the course of her work activities on this date.
However, appellant also submitted medical reports from Dr. Rao which included a history of a
fall a few weeks before February 10, 2010. She has denied that she fell and indicated that
Dr. Rao asked when she last fell and confused her statements. Dr. Chaglassian also included a
history of a fall in his April 7, 2010 operative report. OWCP did not deny appellant’s claim on
the grounds that there was an inconsistent history of injury based on the two divergent statements
regarding how the injury occurred. Instead, it found that there was insufficient rationalized
medical opinion evidence to establish that appellant’s implicated regular job duties were
sufficient to result in the diagnosed condition.
The Board finds that appellant has clearly stated that she believed that her left knee
condition arose on February 10, 2010 while she was performing her regular duties and that she
did not recall a fall or reporting a fall in either January or February 2010, which caused or
contributed to her knee condition. The Board finds that the weight of the evidence establishes
that the employment incident occurred as alleged, through the course of appellant’s regular job
duties on February 10, 2010.
In regard to the medical evidence, the Board finds that Dr. Chaglassian has submitted
evidence supporting that appellant’s regular mail carrier duties of walking while carrying mail
were sufficient to result in the diagnosed conditions. Dr. Chaglassian clearly opined in his
March 23, 2010 report that he believed that her left knee conditions occurred on February 10,
2010 during the course of her regular duties. He stated that a meniscal tear could result from a
trip, a twist or from squatting or kneeling and then standing. Dr. Chaglassian explained the
forces exerted on menisci and the vulnerability of soft tissue between two bones. While this

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

4

report is not sufficient to meet appellant’s burden of proof to establish her claim, is sufficient to
require OWCP to further develop the medical evidence and the case record.10
On remand, OWCP should develop a statement of accepted facts and list of specific
questions and refer appellant to an appropriate physician to determine if her normal work
activities on February 10, 2010 were sufficient to result in the diagnosed meniscal tear. After
this and such other development as OWCP deems necessary, OWCP should issue an appropriate
decision.
CONCLUSION
The Board finds that the case is not in posture for decision and requires additional
development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: September 12, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

See also Virginia Richard (Lionel F. Richard), 53 ECAB 430 (2002); Jimmy A. Hammons, 51 ECAB 219
(1999); John J. Carlone, 41 ECAB 354 (1989); E.J., Docket No. 09-1481 (issued February 19, 2010).

5