United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wayne, AK, Employer
__________________________________________

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

Docket No. 18-0934
Issued: May 8, 2019

Case Submitted on the Record

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

JURISDICTION
On April 2, 2018 appellant filed a timely appeal from a February 1, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish intermittent
disability for the period September 21, 2015 to February 3, 2017 causally related to his accepted
employment conditions.
FACTUAL HISTORY
On January 29, 2007 appellant, then a 57-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on November 20 2006 he realized that he sustained left
1

5 U.S.C. § 8101 et seq.

heel and hip pain while in the performance of duty. He stopped work on December 5, 2006.
Appellant resumed his letter carrier route on January 30, 2007. The employing establishment
noted that he was taking leave when his injury occurred. On May 1, 2008 OWCP accepted the
claim for degeneration of lumbar or lumbosacral intervertebral disc and calcaneal spur on the left.
In a March 18, 2010 report, Dr. Richard Ennis, a Board-certified orthopedic surgeon, noted
that appellant was treated for plantar fasciitis from January 31, 2007 until March 10, 2010. He
advised that appellant had little relief from his various treatment modalities. Dr. Ennis indicated
that there was a new therapy called autologous conditioned plasma therapy, which involved an
injection and little down time. He requested authorization for the treatment in lieu of surgery.
The record reflects that appellant accepted an offer of modified-limited duty on
June 18, 2010.
On December 8, 2010 Dr. Ennis noted that appellant had complaints of continued pain in
the left heel and lumbar spine. He noted that appellant walked an hour and a half each day at the
employing establishment.
On January 12, 2017 appellant filed a claim for compensation (Form CA-7) for intermittent
leave without pay (LWOP) for the period September 21, 2015 to January 6, 2017. The employing
establishment explained that he was requesting 2,171 hours for injured on duty (IOD) and LWOP
for the above dates. However, there was no medical evidence to support the entire absence for a
claim-related condition.
In a January 24, 2017 development letter, OWCP informed appellant the medical evidence
in the file did not substantiate that the disability was caused by the work-related condition between
September 21, 2015 and January 6, 2017. It explained that the most recent medical evidence was
dated December 8, 2010. However, the physician did not offer any opinion that appellant was
disabled or partially disabled due to his work injury. OWCP advised appellant that he must submit
medical evidence which explained how his accepted conditions had worsened such that he was no
longer able to perform the duties of his position. It afforded him 30 days to submit the additional
evidence.
On February 3, 2017 OWCP received a letter from a Mary Ann O’Hara, an advanced
practice registered nurse. Ms. O’Hara noted that the encounter date was November 18, 2016 and
explained that according to the findings obtained at the medical facility, there was no reason
appellant could not work. OWCP also received a September 15, 2015 work excuse note from a
physician with an illegible signature, which indicated that he could return to full-duty work on
September 21, 2015 without restrictions.
On February 3, 2017 OWCP received a statement from appellant indicating that the reason
for his recurrence claim was that there was no work available. Appellant explained that his claim
was not due to a worsening of he accepted work-related condition. He enclosed a September 21,
2015 note that he wrote and requested light duty. Appellant also enclosed a September 24, 2015
response from the employing establishment advising him that he was accommodated for a limitedduty work assignment prior to his request for light duty. He was advised that they could not
accommodate his light-duty request.

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On February 7, 2017 appellant filed a Form CA-7 for intermittent LWOP for the period
January 7 through February 3, 2017. The employing establishment explained that he was
requesting 160 hours for LWOP for the above dates. However, there was no medical evidence to
support the absence for IOD/LWOP.
In a February 14, 2017 development letter, OWCP informed appellant that it had not
received any medical evidence to support his claim for compensation for the period January 7
through February 3, 2017. It noted that the medical evidence in the file did not substantiate that
the disability was caused by the work-related condition because it had not received any medical
evidence. OWCP advised appellant that he must submit medical evidence which explained how
his accepted conditions had worsened such that he was no longer able to perform the duties of his
position. It afforded appellant 30 days to submit the additional evidence.
OWCP received a July 6, 2017 report from Dr. Terry L. Barnett, a chiropractor.
Dr. Barnett indicated that appellant was released to work without restrictions, effective
September 21, 2015.
By decision dated August 31, 2017, OWCP denied appellant’s claim for total disability
compensation for the periods September 21, 2015 through January 6, 2017 and January 7 through
February 3, 2017. It found that no medical evidence was received to support that his claim for
disability was causally related to the accepted work-related medical condition.
On November 3, 2017 appellant requested reconsideration and submitted additional
evidence.
In a June 7, 2017 report, Dr. Mark Wright, a Board-certified psychiatrist, explained that
appellant was released to return to work on September 21, 2015 with no restrictions. He explained
that was from a general surgery standpoint. Dr. Wright indicated that appellant was released to
return to the level of work restrictions that had been previously indicated by his primary care
physician.
In a July 21, 2017 report, Dr. Ennis noted that appellant had persistent pain in his low back
and in both of his feet without any significant activity. He explained that appellant received
treatment for degenerative disc disease of the lumbar spine, some degenerative disc disease of the
hip, and for Achilles tendinitis/plantar fasciitis. Dr. Ennis also indicated that appellant had pain in
both heels, worse on the left than the right, and when going up and down steps.
OWCP also received a duplicate copy of the September 15, 2015 work excuse note with
an illegible signature, which released appellant to full-duty work without restrictions.
By decision dated February 1, 2018, OWCP denied modification of the August 31, 2017
decision.

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LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of proof to establish the essential
elements of his or her claim by the weight of the evidence,3 including that any specific condition
or disability from work for which compensation is claimed is causally related to that employment
injury.4
Under FECA, the term “disability” is defined as the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of injury.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his or her employment, he or she is
entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.6
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proven by a preponderance of the
reliable, probative, and substantial medical evidence.7 Findings on examination are required to
support a physician’s opinion that an employee is disabled from work. When a physician’s
statements regarding an employee’s ability to work consist only of repetition of the employee’s
complaints that he or she experienced too much pain to work, without objective findings of
disability being shown, the physician has not presented a medical opinion on the issue of disability
or a basis for payment of compensation.8 The Board will not require OWCP to pay compensation
for disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to selfcertify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not established that he was entitled to wage-loss
compensation for the period September 21, 2015 through January 6, 2017 and January 7 through
February 3, 2017 causally related to his accepted conditions.
In a June 7, 2017 report, Dr. Wright released appellant to work on September 21, 2015
with no restrictions. He indicated that appellant was released to return to the level of work
2

Id.

3

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

4

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

5

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB 38
(1948); 20 C.F.R. § 10.5(f).
6

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

7

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301,303 (1989).

8

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

9

G.T., id.; Fereidoon Kharabi, supra note 7.

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restrictions that had been previously indicated by his primary care physician. Dr. Wright did not
offer an opinion on disability. Thus, his opinion is of no probative value on the issue of causal
relationship.10
In a July 21, 2017 report, Dr. Ennis noted that appellant had persistent pain in his low back
and in both of his feet without any significant activity. He explained that appellant received
treatment for degenerative disc disease of the lumbar spine, some degenerative disc disease of the
hip and for Achilles tendinitis/plantar fasciitis. While Dr. Ennis also indicated that appellant had
pain in both heels, worse on the left than the right, and when ascending and descending steps, he
did not offer any indication that appellant was disabled for any period of work.
Evidence that does not address appellant’s accepted conditions and dates of disability, is
insufficient to establish the claim.11
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.12 Because
appellant has not submitted rationalized medical opinion evidence to establish employment-related
disability for the period September 21, 2015 through January 6, 2017 and January 7 through
February 3, 2017 as a result of his accepted degeneration of lumbar or lumbosacral intervertebral
disc and left calcaneal spur, the Board finds that he has not met his burden of proof to establish his
claim for disability compensation.
On appeal appellant argues that he sustained a recurrence of disability commencing
September 15, 2015. However, as explained above, the Board finds that the evidence of record is
insufficient to establish his 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 has not met his burden of proof to establish a recurrence of
total disability for the period September 21, 2015 through January 6, 3017 and January 7 through
February 3, 2017 causally related to his accepted employment conditions.

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

Id.; see also Jaja K. Asaramo, 55 ECAB 200 (2004).

12

See Fereidoon Kharabi, supra note 7; see also Amelia S. Jefferson, 57 ECAB 183 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Helen, FL, Employer
__________________________________________

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Appearances:
Stacey Lehne, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0623
Issued: February 9, 2022

Case Submitted on the Record

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

JURISDICTION
On January 27, 2020 appellant, through counsel, filed a timely appeal from an October 24,
2019 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 emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On December 15, 2016 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2), alleging that he sustained injury due to factors of his federal
employment, including the actions of G.D., the postmaster at his postal facility. He asserted that
he reported G.D. after she committed sexual harassment by touching him when he was in a bent
over position, and that she then further harassed, threatened, and intimidated him. Appellant
claimed that, as a result, he sustained a nervous breakdown and extreme anxiety. He noted that he
first became aware of his claimed conditions on November 9, 2016. Appellant stopped work on
November 9, 2016.
In statements accompanying his claim, appellant asserted that he had a nervous breakdown
on November 9, 2016 because the employing establishment conducted a 44-question investigative
interview, which was intended to bully him. He claimed that, on September 20, 2016, G.D.
sexually harassed him by touching him inappropriately, “seductively playing” with his wedding
ring, and calling him “hun” three times.3 Appellant filed an Equal Employment Opportunity
(EEO) Commission claim in connection with these matters, alleging that the employing
establishment did not take the claim seriously, that it took 39 days for management officials to
address it, and that G.D. repeatedly retaliated against him for filing it and separate grievances
against the employing establishment. In addition, G.D. punished him for taking sick leave between
September and November 2016 to attend mental health therapy sessions, made fun of him for
seeing a therapist, and failed to provide him adequate support on his mail delivery route on days
he took sick leave. Appellant claimed that G.D. mishandled his leave requests, including an
occasion on November 28, 2016 when she improperly denied his leave request after he had an
adverse medication reaction. He asserted that management improperly handled disciplinary
actions, including letters of warning issued on October 29 and November 18, 2016. Appellant
alleged that G.D. ordered him to take his lunch in places where it was unsafe to park his postal
vehicle, and that management improperly asked him if he wanted to move to another office. He
claimed that he received inadequate training and that G.D. mishandled his work assignments by
improperly taking away his responsibility for delivery point sequence mail, blocking his mail
sorting case with six mail tubes, and by incorrectly telling him that he was on a 12-hour work
assignment.
Appellant submitted a copy of an investigative interview, carried out by the employing
establishment on November 9, 2016, which included appellant’s answers to 44 questions. He also
submitted copies of disciplinary actions, including a November 18, 2016 letter of warning for
failure to follow instructions, unsatisfactory performance, expansion of field/unprofessional
estimate, and unsatisfactory attendance. In an October 26, 2016 statement, H.B., a coworker,
asserted that on September 23, 2016, he overheard G.D. “giving [appellant] a loose piece of mail
3

Appellant also claimed that G.D. called him “hun” on at least one later occasion in September 2016.

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and calling him hun.” He reported that, after appellant filed a sexual harassment claim against
G.D. the next day, she “was getting on” appellant in “a high voice tone” regarding the inputting of
postal vehicle mileage.
Appellant submitted a November 9, 2016 report from Dr. Danny M. Farmer, a Boardcertified internist, who found that he was unable to work due to severe anxiety and job stress. On
January 17, 2017 Dr. Farmer advised that appellant reported his anxiety/stress was caused by the
actions of a co-employee.
In a December 20, 2016 letter, C.A, appellant’s immediate supervisor, advised that the
employing establishment had conducted an investigation was controverting appellant’s
occupational disease claim. He asserted that appellant had issues with his job attendance and
performance since October 2016, and that he had not been aware of appellant making “any
previous report of inappropriate touching.”
In a January 4, 2017 development letter, OWCP notified appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
appellant’s allegations. It afforded both parties 30 days to respond.
In response, appellant submitted statements, dated January 11, 17, and 26, 2017, in which
he further discussed his claimed employment factors. He asserted that G.D. “went after him for
50 days straight” and that S.R., a supervisor of G.D, and other management officials allowed it to
happen. Appellant alleged that a December 29, 2016 Step B decision, which resulted from his
grievance demonstrated that the November 9, 2016 investigatory interview was retaliatory. He
asserted that the interview should have been held behind closed doors rather than with open doors
where anyone passing by could hear it being conducted. Appellant alleged that, during a meeting
in which he discussed his grievance, R.W., a manager, spoke in a raised voice and interrupted him.
He claimed that G.D. bullied him regarding his use of sick leave on November 9, 2016, needlessly
questioned figures he provided on a 3996 form he utilized to request extra time to deliver mail,
and improperly criticized him for sending her a text on her mobile phone.4
In a December 29, 2016 Step B grievance decision, the dispute resolution team determined
that the employing establishment did not have just cause to issue the November 18, 2016 letter of
warning. It rescinded the letter of warning and directed that it be removed from all files/records.
The dispute resolution team found that no evidence was submitted that demonstrated appellant
improperly scanned, delayed, and misdelivered mail, incorrectly made clock rings, misreported
mileage, or improperly failed to report to work.
In a January 20, 2017 statement, E.E, a union representative, reported that appellant’s
hands were shaking after the November 9, 2016 investigative interview. Appellant submitted

4

Appellant submitted copies of text messages between himself and G.D. regarding his use of sick leave on
November 9, 2016.

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additional medical evidence, including a January 5, 2017 report from Dr. Farmer who
recommended a return to work with restrictions.
OWCP received an undated statement from G.D. who responded to appellant’s claims and
asserted that she appropriately supervised appellant. She maintained that appellant made false
allegations that she subjected him to sexual harassment and abusive language, and asserted that
the November 9, 2016 investigatory interview was properly conducted. G.D. indicated that
appellant was given appropriate assistance to handle his mail delivery duties.
By decision dated April 4, 2017, OWCP denied appellant’s emotional condition claim,
finding that he had not established a compensable employment factor.
On March 23, 2018 appellant requested reconsideration of the April 4, 2017 decision. In
support of his reconsideration request, appellant claimed that C.A. threatened his life by telling
him, “[i]f you come to my house, I have guns.” He indicated that management was not adequately
trained and that C.D., a temporary supervisor, told him that he was too “old and slow” and that he
was an “outsider” who did not belong on the job. Appellant claimed that B.E., a coworker who
also served as a union representative, yelled at him on the workroom floor on September 20, 2016
and that she mishandled the filing of his grievances against the employing establishment.
Appellant asserted that G.D. mishandled his work assignments, improperly texted or called his
house on several occasions, and made an insulting comment about his leave usage on
October 6, 2016. He claimed that, on November 3, 2016, G.D. yelled at him and B.E. did nothing
about it. Appellant alleged that C.A. improperly threatened him with additional disciplinary
actions, including termination from his job, wrongly denied his leave requests, and improperly told
him he would never work overtime again. He claimed that C.A. bullied and threatened him by
referring to the fact that he used to be a sheriff.
Appellant submitted other documents produced prior to the issuance of OWCP’s April 4,
2017 decision. In a September 23, 2016 statement, he asserted that, on September 20, 2016, G.D.
yelled at him regarding the completion of a 3996 form. Appellant claimed that, on that date, G.D.
came up from behind and placed her hand on his left hand, turned his ring, and asked him what
kind of ring it was. 5 He also submitted auxiliary control forms regarding his requests for help on
his mail delivery route in 2016.
In a September 30, 2016 statement, H.B. indicated that, on September 20, 2016, appellant
was estimating mail return times with G.D. and “things were getting heated.” He asserted that,
when he was on his way home after work on that date, appellant told him that G.D. had made him
feel uncomfortable by touching him while he was filling out paperwork that afternoon. H.B.
further noted that appellant told him that G.D. committed sexual harassment when she reached
over his shoulder and touched his wedding ring hand while “saying things about it.”
Appellant submitted additional medical reports and therapy notes from 2017 and 2018,
including reports from Dr. Farmer who diagnosed generalized anxiety disorder, depression, and
panic caused by his supervisor’s actions.

5

Appellant indicated that he told G.D. that the ring was a “nugget.”

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In an April 5, 2018 letter, C.A. indicated that the employing establishment continued to
controvert appellant’s claim. He claimed that he never threatened appellant with violence and
indicated that the fact he was a former law enforcement officer only came up in friendly
conversation. In a June 18, 2018 letter, C.A. asserted that the employing establishment properly
disciplined appellant. In an undated statement, S.M., a coworker, indicated that appellant never
told her that he was unfairly treated or made to feel afraid at work, but he did mention that he had
“trouble” with a previous female supervisor.
By decision dated July 9, 2018, OWCP modified the decision dated April 4, 2017 to reflect
that there was factual evidence, but there was still insufficient evidence finding that he had
established a compensable employment factor.
On July 8, 2019 appellant, through counsel, requested reconsideration of the July 9, 2018
decision and provided a statement regarding claimed employment factors, which was similar to
prior statements of record. Appellant submitted an undated statement in which H.B. asserted that,
from September through November 2016, he witnessed G.D. subject appellant to a stressful and
hostile work environment. H.B. maintained that G.D. was “on the phone” saying that she wanted
to fire appellant, made the comment, “whatever it takes, [appellant] is gone,” and continued to say
that she was tired of appellant going to the employee assistance program for two hours at a time.
He asserted that, when appellant was out for a few months, G.D. told his coworkers that appellant
was being replaced with three more carriers. H.B. reported that, on one occasion, G.D. walked
into the men’s bathroom and used profanity to tell appellant that he “better be off” the time clock.
He asserted that G.D. held a meeting where she stated in front of everyone that he and appellant
were “slackers” and that she was going to fix that circumstance. H.B. noted that, on September 20,
2016, appellant came out of G.D.’s office in an upset state and told him that G.D. had come up
behind him and touched and played with his wedding ring. He asserted that, on October 26, 2016,
G.D. “verbally assaulted” appellant and yelled at him regarding his mileage entries.
Appellant also submitted additional medical evidence in support of his claim.
By decision dated October 24, 2019, OWCP denied modification of its July 9, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

6

5 U.S.C. § 8101 et seq.

5

employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 9
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 his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 10 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 or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
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. 12 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, it must base its decision on an analysis of the medical evidence. 13
ANALYSIS
The Board finds that this case is not in posture for decision.
7

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

8

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
9

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
10

Lillian Cutler, 28 ECAB 125 (1976).

11

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

12

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

Id.

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Appellant alleged that he sustained an emotional condition due to various incidents and
conditions in his workplace. OWCP denied his emotional condition claim finding that he had not
established a compensable employment factor. The Board must, therefore, initially review
whether these alleged incidents and conditions are covered employment factors under the terms of
FECA.14 The Board notes that appellant’s claim does not directly relate to his regular or specially
assigned duties under Lillian Cutler.15 Rather, appellant primarily claimed that management and
coworkers, committed error and abuse with respect to various administrative/personnel matters.
He also alleged that management and coworkers subjected him to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that management
did not take his EEO claim seriously, and that it took 39 days for the claim to be addressed. He
alleged that G.D. mishandled his leave requests, and that she failed to provide him adequate
support on his mail delivery route on days he took sick leave. Appellant asserted that G.D.
improperly criticized him regarding work matters, including needlessly questioning figures he
provided on a 3996 form he utilized to request extra time to deliver mail, and improperly chastising
him for sending her a text on her mobile phone. He claimed that G.D. mishandled his work
assignments, and improperly texted or called his house on several occasions. Appellant alleged
that G.D. ordered him to take his lunch in places where it was unsafe to park his postal vehicle,
and that management improperly asked him if he wanted to move to another office. He claimed
that C.A., his immediate supervisor, wrongfully denied his leave requests and wrongfully told him
he would never work overtime again. Appellant asserted that management officials were not
adequately trained and that B.E., a coworker who served as a union representative, mishandled the
filing of his grievances against the employing establishment. He further claimed that management
mishandled disciplinary actions, and improperly issued October 29 and November 18, 2016 letters
of warning.
The Board has held that 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. 16 However,
the Board has also held that, where the evidence establishes error or abuse o n the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.17 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.18
The Board finds that appellant has submitted sufficient evidence to establish that the
employing establishment improperly issued him a November 18, 2016 letter of warning. In a
14

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

15

See Lillian Cutler, supra note 10.

16

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
17

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

18

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

7

December 29, 2016 Step B decision, the dispute resolution team determined that the employing
establishment did not have just cause to issue the November 18, 2016 letter of warning, and it
rescinded the letter of warning and directed that it be removed from all files/records. The dispute
resolution team found that no evidence was submitted that demonstrated appellant improperly
scanned, delayed, and misdelivered mail, incorrectly made clock rings, misreported mileage, or
improperly failed to report to work. Therefore, the Board finds that appellant has submitted
sufficient evidence to establish that management committed error o r abuse in issuing the
November 18, 2016 letter of warning, and that he has established a compensable employment
factor in connection with its issuance.
The Board further finds that appellant has not submitted sufficient evidence to establish his
other claims of error or abuse regarding administrative/personnel matters. Appellant submitted
e-mails and memoranda, which concerned some of these administrative/personnel matters, but the
communications did not show that the employing establishment committed error or abuse with
respect to these matters. There is no indication that appellant obtained a final determination from
an administrative body showing that the employing establishment committed additional acts of
error or abuse. 19 Although appellant expressed dissatisfaction with the actions of several superiors,
the Board has held that mere dislike or disagreement with certain supervisory actions will not be
compensable absent error or abuse on the part of the supervisor. 20 Appellant has not substantiated
error or abuse committed by the employing establishment in the above -noted additional matters
and, therefore, he has not established a compensable employment factor regarding administrative
or personnel matters, other than with respect to the November 18, 2016 letter of warning.
Appellant also alleged harassment and discrimination by managers and coworkers. He
claimed that, on September 20, 2016, G.D. sexually harassed him by touching him inappropriately,
placing her hand on his left hand and “seductively playing” with his wedding ring by turning it.
Appellant asserted that, on the same date, G.D. called him “hun” three times.21 He alleged that
G.D. repeatedly retaliated against him for filing an EEO claim, as well as for filing separate
grievances against the employing establishment. Appellant claimed that G.D. yelled at him and
bullied him regarding many work matters, including his use of a mail scanner and the completion
of 3996 forms. He asserted that G.D. “went after him for 50 days straight” and that S.R., an
employing establishment supervisor of G.D, and other management officials allowed it to happen.
Appellant claimed that G.D punished him for taking sick leave between September and
November 2016 to attend mental health therapy sessions and made fun of him for seeing a
therapist. He asserted that the investigative interview the employing establishment carried out on
November 9, 2016 was a form of retaliation intended to bully him. Appellant alleged that, during
a meeting in which he discussed a grievance, R.W., a manager, spoke in a raised voice and
interrupted him. He claimed that C.A. threatened his life by telling him, “If you come to my house,
I have guns,” and also bullied and threatened him by referring to the fact that he used to be a
19

Appellant indicated that he had filed grievances and an EEO claim, but the case record does not contain a final
decision showing that management committed error or abuse, other than with respect to the November 18, 2016 letter
of warning. See M.R., Docket No. 18-0304 (issued November 13, 2018).
20

T.C., Docket No. 16-0755 (issued December 13, 2016).

21

Appellant also claimed that G.D. called him “hun” on at least one later occasion in September 2016.

8

sheriff. Appellant asserted that C.A. improperly threatened him with additional disciplinary
actions, including termination from his job. He claimed that C.D., a temporary supervisor, told
him that he was too “old and slow” and that he was an “outsider” who did not belong on the job.
Appellant alleged that B.E. yelled at him on the workroom floor on September 20, 2016.
To the extent that disputes and incidents alleged as constituting harassment are established
as occurring and arising from an employee’s performance of his or her regular duties, these could
constitute employment factors. 22 The Board has held that unfounded perceptions of harassment
do not constitute an employment factor. 23 Mere perceptions are not compensable under FECA and
harassment can constitute a factor of employment if it is shown that the incidents constituting the
claimed harassment actually occurred. 24
Appellant, however, did not submit corroborative evidence in support of his allegations
regarding harassment and discrimination by G.D. and others. He did not submit adequate witness
statements or other documentary evidence demonstrating that the alleged harassment and
discrimination occurred as alleged. 25 In addition, appellant did not submit the final findings of any
complaint or grievance he might have filed with respect to these matters, such as an EEO complaint
or a grievance filed with the employing establishment.
Appellant submitted several statements regarding these matters from H.B., a coworker. In
in a September 30, 2016 statement, H.B. indicated that, on September 20, 2016, appellant told him
that G.D. had made him feel uncomfortable by touching him while he was filling out paperwork
that afternoon. He further reported that appellant told him that G.D. committed sexual harassment
when she reached over his shoulder and touched his wedding ring hand while “saying things about
it.” However, this statement would not establish appellant’s claims of harassment or
discrimination by G.D. in that H.B. only related second-hand information and did not actually
witness the claimed actions of G.D. The Board has held that statements containing information
that was obtained on a second-hand basis would not constitute probative evidence of the existence
of harassment or discrimination. 26
In an October 26, 2016 statement, H.B. reported that on September 23, 2016 he overheard
G.D. “giving [appellant] a loose piece of mail and calling him hun.” He indicated that, after
appellant filed a sexual harassment claim against G.D., she was “getting on” appellant in “a high
voice tone” regarding the inputting of postal vehicle mileage. The Board finds that H.B.’s
statement that G.D. called appellant “hun” on one occasion would not establish harassment in that
H.B. did not provide an adequate description of the context in which this comment was made.
Therefore, although appellant established that G.D. made certain comments, but he did not show

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See S.A., Docket No. 15-1355 (issued November 18, 2015).

9

that they rose to the level of harassment or discrimination.27 Moreover, H.B.’s comment that G.D.
was “getting on” appellant is vague and nonspecific, and therefore fails to show that G.D.’s actions
or statements in the workplace rose to the level of harassment. 28
Appellant submitted an undated statement in which H.B. asserted that, from September
through November 2016, he witnessed G.D. subject appellant to a stressful and hostile work
environment. H.B. maintained that G.D. was “on the phone” saying that she wanted to fire
appellant, made the comment, “whatever it takes, [appellant] is gone,” and continued to say that
she was tired of appellant going to the employee assistance program for two hours at a time. He
asserted that, when appellant was out for a few months, G.D. told his coworkers that appellant was
being replaced with three more carriers. H.B. reported that, on one occasion, G.D. walked into the
men’s bathroom and used profanity to tell appellant that he “better be off” the time clock. He
asserted that G.D. held a meeting where she stated in front of everyone that he and appellant were
“slackers” and that she was going to fix that circumstance. H.B. asserted that, on October 26,
2016, G.D. “verbally assaulted” appellant and yelled at him regarding his mileage entries.
The Board finds that H.B.’s undated statement also does not establish a compensable
employment factor regarding the claimed harassment/discrimination in that H.B.’s comments
regarding the creation of a hostile work environment and use of profanity lack sufficient specificity
to establish that G.D. actually engaged in harassment or discrimination.29 HB. described a number
of claimed actions of G.D., which did not occur in appellant’s presence, such as comments made
to coworkers, but he did not provide adequate details regarding these actions. The Board finds
that these claimed actions, which did not directly impact appellant, would not rise to the level of
harassment or discrimination. 30
OWCP also received an undated statement from S.M., a coworker, who indicated that
appellant never told her that he was unfairly treated or made to feel afraid at work, but he did
mention that he had “trouble” with a previous female supervisor. This statement also is too vague
to establish harassment/discrimination as it does not identify the supervisor or describe her
actions.31
For these reasons, appellant has not established a compensable employment factor with
respect to the claimed harassment and discrimination.

27

See L.C., Docket No. 20-0461 (issued June 2, 2021); C.T., Docket No. 08-2160 (issued May 7, 2009) (finding
that some statements may be considered abusive and constitute a compensable factor of employment, but that not
every statement uttered in the workplace will be covered by FECA).
28

See T.G., Docket No. 19-1668 (issued December 7, 2020) (finding vague and nonspecific statements of record
insufficient to establish a compensable employment factor).
29

See id.

30

See C.L., Docket No. 14-0983 (issued January 23, 2015) (finding that isolated comments not made in the
claimant’s presence did not establish the existence of a hostile work environment or harassment/discrimination).
31

See supra note 28.

10

In the present case, appellant has established a compensable factor of employment with
respect to the improperly issued November 18, 2016 letter of warning. However, his burden of proof
is not discharged by the fact that he has established an employment factor, which may give rise to a
compensable disability under FECA. To establish appellant’s occupational disease claim for an
emotional condition, he must also submit rationalized medical evidence establishing that he has an
emotional or psychiatric disorder and that such disorder is causally related to the accepted
compensable employment factor. 32
As appellant has establish compensable factors of employment, the case must be remanded
for an evaluation of the medical evidence with regard to the issue of causal relationship.33 After this
and other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

32

See supra note 9.

33

See M.D., Docket No. 15-1796 (issued September 7, 2016).

11

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: February 9, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Y., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Barstow, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1139
Issued: November 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 30, 2012 appellant, through his attorney, filed a timely appeal of a March 19,
2012 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying
further merit review. Because over 180 days elapsed from the most recent merit decision of
May 3, 2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s case, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On March 14, 2006 appellant, then a 48-year-old painter helper, filed a traumatic injury
claim alleging that he injured his knee in the performance of duty. On April 10, 2006 OWCP
accepted his claim for strain/strain of the medial collateral ligament on the left.
OWCP obtained appellant’s work restrictions on June 9, 2009, which included limitations
in walking, standing, twisting, bending, stooping, squatting, kneeling, climbing and operating a
motor vehicle. Appellant was limited to moving up to 20 pounds. On December 7, 2009
Dr. Rama T. Pathi, an attending physician and Board-certified orthopedic surgeon, opined that
appellant could perform light-duty work with no bending, squatting or climbing.
On May 7, 2010 appellant’s vocational rehabilitation counselor formulated a plan for
training at the Security Officers’ Training Academy (SOTA) to prepare him for a position as a
security guard or surveillance system monitor. On August 7, 2010 the vocational rehabilitation
counselor notified OWCP that appellant did not report to school as scheduled.
In a letter dated June 10, 2010, OWCP advised appellant to cooperate with vocational
rehabilitation efforts by undergoing a training program in security/surveillance monitoring. It
allowed him 30 days to cooperate or face the reduction of his compensation based on his wageearning capacity had he completed the training program.
Appellant responded on June 16, 2010 and stated that he was not refusing to cooperate,
but felt that he could not perform the duties of a security guard but could work as a
security/surveillance monitor.
In a note dated August 9, 2010, Dr. Pathi indicated that appellant could perform lightduty work and avoid bending, kneeling, squatting and climbing.
By decision dated September 9, 2010, OWCP reduced appellant’s compensation benefits
effective September 26, 2010 due to his failure to undergo vocational rehabilitation as directed.
In a note dated September 20, 2010, the SOTA stated that the school did not offer any
type of security/surveillance monitoring training.
Dr. Pathi completed a note dated September 23, 2010 and opined that appellant could not
work as a security guard, but could work as a security surveillance monitor.
In a note dated March 14, 2011, Dr. Pathi repeated his conclusions and limitations.
Appellant requested an oral hearing before an OWCP hearing representative.
By decision dated May 2, 2011, the hearing representative found that appellant had not
established good cause for failing to undergo the scheduled training and that OWCP properly
reduced his compensation benefits.

2

Appellant resubmitted a report dated June 21, 2007 from Paul A. Stanton, M.D., finding
that he could perform light duty with restrictions as well as Dr. Pathi’s September 23, 2010
report.
Dr. Pathi completed notes dated April 11, June 22, July 22, August 29, September 30 and
November 11, 2011, January 4 and February 1, 2012 and stated that appellant could perform
light-duty work with no bending, climbing or kneeling. He further stated that appellant should
avoid long walking and standing.
Appellant, through his attorney, requested reconsideration on February 27, 2012. He
stated that he was submitting a letter from the SOTA and a vacancy job posting that was not
previously considered. Appellant resubmitted a note dated September 20, 2010 which stated that
there was no monitoring training offered. He submitted an anticipated vacancy announcement
and indicated that he was interested in returning to work as a supply technician.
By decision dated March 19, 2012, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that he had not submitted any relevant new evidence in
support of his February 27, 2012 request for reconsideration.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.3 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.4
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.5

2

5 U.S.C. §§ 8101-8193, 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

5

M.E., 58 ECAB 694 (2007).

3

ANALYSIS
OWCP reduced appellant’s compensation benefits based on his refusal to cooperate with
vocational rehabilitation services on September 9, 2010 and the hearing representative affirmed
this decision on May 2, 2011.
The Board does not have jurisdiction over the May 2, 2011 OWCP decision. The issue
presented is whether appellant met any of the requirements of 20 C.F.R. § 10.606(b)(3) requiring
OWCP to reopen the case of review of the merits of his claim. In his February 27, 2012 request
for reconsideration, he did not identify or show that OWCP erroneously applied or interpreted a
specific point of law. Appellant did not attempt to advance a new and relevant legal argument
not previously considered by OWCP.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not meet this requirement of 20 C.F.R. § 10.606(b)(2) as he
resubmitted documents included in the record at the time of OWCP’s May 2, 2011 decision.
Appellant resubmitted a June 21, 2007 report from Dr. Stanton, finding that he could perform
light duty with restrictions as well as Dr. Pathi’s September 23, 2010 report. As noted above,
medical reports which are repetitive are not sufficient to require OWCP to reopen his claim for
consideration of the merits. Appellant submitted a series of notes from Dr. Pathi dated April 11,
June 22, July 22, August 29, September 30 and November 11, 2011, January 4 and February 1,
2012 which did not contain new medical evidence or work restrictions. These reports were
duplicative of evidence already included in the record and not sufficient to require OWCP to
reopen his claim.
Appellant also resubmitted the September 20, 2010 note from his proposed school. The
hearing representative considered this note in reaching his decision on May 2, 2011. Appellant
submitted a vacancy announcement and stated that he wished to return to work. This document
is irrelevant as it does not address the central issue of whether he offered good cause for failing
to comply with the requirements of his vocational rehabilitation program.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits on March 19, 2012 as he failed to meet any of the criteria for a merit
review.

4

ORDER
IT IS HEREBY ORDERED THAT March 19, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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)
)
)

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

Docket No. 17-1761
Issued: June 6, 2018

Case Submitted on the Record

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

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a June 29, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has established that she was disabled during the period
April 19, 1997 to June 9, 2016 causally related to her accepted November 6, 1995 employment
injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its June 29, 2017 decision.
The Board’s jurisdiction is limited to evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

On appeal appellant alleges that the medical evidence supports her claim for disability
compensation.
FACTUAL HISTORY
On November 15, 1995 appellant, then a 38-year-old modified mail processor, filed an
occupational disease claim (Form CA-2) alleging that on November 6, 1995 both her hands started
to bother her and she noted discomfort in her right shoulder due to repetitive motions required
while casing mail.3 At that time, she had an accepted claim for aggravation of chondromalacia of
the right knee in OWCP File No. xxxxxx731, and she was working in a modified sedentary
position.
Appellant stopped work on November 9, 1995 and returned to work on
November 25, 1995. On November 13, 1996 OWCP accepted appellant’s claim for bilateral
sprain/strain of both hands and wrists and right shoulder. (RD 8/28/00) It paid medical benefits.
On April 25, 1997 appellant filed a traumatic injury claim (Form CA-1) alleging that on
April 19, 1997, while she was sitting and throwing mail to her left, she injured her left shoulder,
arm, and hands. She also noted that she used her left arm and hands because her right shoulder
hurt. OWCP assigned this claim File No. xxxxxx601 and accepted the claim for left shoulder
sprain and tendinitis of the left forearm. Appellant stopped work on the date of the incident and
was paid wage-loss compensation benefits through November 17, 1999.
However, on
November 18, 1999 OWCP terminated appellant’s wage-loss compensation as she failed to accept
an offer of suitable employment. Appellant’s requests that OWCP reconsider the termination were
denied. Appellant filed appeals to the Board and, by decisions dated December 3, 2003 and
October 2, 2012, the Board affirmed the denial of appellant’s reconsideration requests as they were
untimely filed and failed to demonstrate clear evidence of error.4 Appellant’s last request for
reconsideration regarding the suitable work termination was denied by OWCP on April 23, 2015.
On June 10, 2016 appellant filed a claim for compensation (Form CA-7) for the period
April 19, 1997 to June 9, 2016 in the current claim. By letter dated August 16, 2016, she indicated
that she was requesting payment of wage-loss compensation with regard to the claim she filed in
1995. Appellant contended that she accepted the job offer of January 24, 1995 under duress, and
that upon her return to work, following her November 6, 1995 employment injury, she was injured
again. She alleged that she was never paid for this injury and has been unable to work.
Appellant saw Dr. Jennifer Massoud, an emergency medicine physician at the Good
Samaritan Hospital on November 7, 1995. At that time Dr. Massoud diagnosed tendinitis. She
noted that appellant could return to work on that day with restrictions of no repetitive hand
movements for three days.
In a November 17, 1995 report, Dr. David H. Gillis, a Board-certified orthopedic surgeon,
related that he had seen appellant on November 8, 1995 and diagnosed sprain-strain injuries to the
wrist or hand with accompanying tendinitis and acute right sprain-strain shoulder with bursitis. He
noted that he had suggested some restrictions in work activities upon her return to work. In a
3

OWCP assigned OWCP File No. xxxxxx340 to the present claim.

4

Docket No. 03-1651 (issued December 3, 2003); Docket No. 12-0471 (issued October 2, 2012).

2

December 6, 1995 report, Dr. Gillis noted that appellant was able to return to work on
November 26, 1995.
On November 15, 1996 OWCP referred appellant to Dr. Richard T. Sheridan, a Boardcertified orthopedic surgeon, for a second opinion. In a December 2, 1996 report, Dr. Sheridan
noted that appellant had complaints of pain in her neck, right shoulder, and upper extremity. He
noted a normal examination of her cervical spine and upper extremities. Dr. Sheridan did not
believe that appellant required further treatment. He opined that appellant’s complaints with
regard to her neck and right shoulder and upper extremities caused her to be off work for three
days and that the strain resolved in three days.
In an April 25, 1997 report, Dr. Gillis diagnosed chronic severe sprain strain left shoulder
and forearm and tendinitis in the left shoulder and forearm. He noted that appellant’s prognosis
was continued disability in her left shoulder and forearm, with flare-ups at frequent intervals such
as in the past. Dr. Gillis anticipated good and bad days for appellant. In a May 12, 1997 attending
physician’s supplemental statement, (Form CA-20), he indicated that appellant was disabled from
her usual work due to impairment of the shoulders and hands. However, Dr. Gillis also
recommended that appellant could return to work performing nonrepetitive activities. He related
that appellant’s date of injury was April 19, 1997.
In a December 3, 1997 report, Dr. Errol J. Stern, a Board-certified orthopedic surgeon,
diagnosed subacromial tenderness, and he noted an x-ray showed irritation of the greater tuberosity
of the left shoulder. He diagnosed left shoulder tendinitis and left shoulder impingement. In a
progress note of the same date, Dr. Stern noted that appellant was seen for a work injury that,
according to her record, occurred on November, 6, 1995. He reviewed Dr. Gillis records.
Dr. Stern noted that apparently appellant had a strain to both wrists and hand and a strain of her
right shoulder, and also complained of pain and weakness in her right wrist and inability to use her
right wrist. He noted that appellant’s grip strength was only 40 to 50 percent where it should be.
Dr. Stern stated that appellant was able to be actively employed in reference to these problems,
limited light work-related activities that did not require repetitive motion.
On December 15, 1997 OWCP referred appellant to Dr. E. Gregory Fisher, a Boardcertified orthopedic surgeon, for a second opinion examination. In a January 15, 1998 report,
Dr. Fisher indicated that from examination and history, appellant sustained bilateral strains of both
wrists, hands, and right shoulder from the repetitive work she was performing at the employing
establishment in November 1995. He noted that on his examination he could detect no objective
findings over the upper extremities including the wrists, hands, forearms, or right shoulder.
Dr. Fisher noted that his findings were strictly subjective and minimal. He noted that appellant
did not show any evidence of carpal tunnel syndrome, cubital syndrome, or any nerve entrapment
syndrome over the upper extremities. Because of appellant’s lack of positive physical findings
over the upper extremities, Dr. Fisher believed that appellant was able to perform her duties as a
modified mail processor. He opined that appellant could work at least four hours a day and that if
she did well, her hours could be increased.
In a March 25, 1998 report, Dr. Stern noted that appellant was having trouble with her
bilateral hand, wrist, and right shoulder. He opined that appellant could do repetitive work
activities moderately restricted. Dr. Stern did believe that appellant was employable. In a July 27,

3

1998 report, he noted that appellant may have right shoulder impingement syndrome, and could
have a rotator cuff tear. In an October 29, 1998 report, Dr. Stern indicated that appellant was still
having trouble with her right shoulder, but he did not place her off work.
In a February 16, 2000 progress report, Dr. John D. Wyrick, a Board-certified orthopedic
surgeon, indicated that appellant’s magnetic resonance imaging scan on her right shoulder only
showed some changes in the “AC [acromioclavicular] joint,” no rotator cuff pathology. He noted
that they were still waiting approval to treat her right shoulder. On February 24, 2000, Dr. Wyrick
indicated that appellant could not work until further notice. In a January 29, 2001 letter, he
indicated that appellant has not worked since April 19, 1997. Dr. Wyrick indicated that, in his
letter of August 8, 2000, he stated that appellant could possibly return to work part time and
sedentary and did not require frequent use of her upper extremities. He stated that, to his
knowledge, a job was not provided to her within those restrictions. In an October 17, 2001 note,
Dr. Wyrick indicated that appellant had no significant changes on her left. He noted that appellant
was not interested in any surgery unless taken covered by workers’ compensation. By letter dated
June 24, 2002, Dr. Wyrick terminated appellant’s care.
In a December 14, 2012 report, Dr. Michael Pordy, a rheumatologist, indicated that
appellant was under his care for treatment of myopathy and osteoarthritis of her hands. He noted
that appellant continued to experience muscle weakness as well as joint swelling and morning
stiffness. Dr. Pordy noted significant osteoarthritis as well as myopathy. For these medical
reasons, he opined that appellant was unable to perform even the limited-duty job offer of
September 15, 1999. Dr. Pordy noted that she continued to be disabled. He explained that
appellant had multiple injuries at work starting in 1990, including injuries on November 6, 1995
and April 19, 1997. Dr. Pordy noted that appellant’s joint pain began following these injuries, and
that she denied experiencing joint pain prior to these injuries. He concluded that her joint pain
was precipitated by the employment-related injuries.
In a December 26, 2014 report, Dr. Robert P. Baughman, a Board-certified orthopedic
surgeon, noted that last year appellant saw him and wanted a letter documenting that she was not
able to work because of her employment-related injury in 1995?. He noted that he explained to
her that her sarcoidosis had been present since 1994, but specific problems were based on a workrelated injury. Dr. Baughman noted that appellant had a problem with her shoulder, chest, and
costochondritis in her hands. Appellant’s sarcoidosis was not caused by her employment-related
injury, and that if she needed further evaluation, she should follow up with an orthopedic surgeon
or Dr. Pordy. Dr. Baughman noted, “[appellant] is not able to work at this time according to her,
and based on the information she is providing and Dr. Pordy is providing, it sounds like she is still
totally disabled.” He noted that at this time appellant did not need specific therapy for her
sarcoidosis.
By decision dated August 23, 2016, OWCP denied appellant’s claim for wage-loss
compensation from April 19, 1997 to June 9, 2016. It noted that appellant had not supported her
claim for disability, since she returned to work on November 25, 1995 after her injury of
November 6, 1995 and sustained a new injury on April 19, 1997 under File No. xxxxxx660.
In a medical report dated September 25, 2016, Dr. Pordy opined that appellant continued
to be disabled. He noted that her last day of work was April 19, 1997. Dr. Pordy noted that

4

appellant had significant osteoarthritis of her hands as well as a myopathy which made her unable
to return to work in even a limited capacity. He noted that appellant had bony swelling of the DIP
(distal interphalangeal) joints bilaterally making it difficult for her to perform any job requiring
the use of her hands. Dr. Pordy noted that appellant required continued medical treatment
including relief of pain with narcotic analgesics on a daily basis. He doubted that there would be
any significant improvement in appellant’s future.
By letter dated September 19, 2016, appellant requested an oral hearing before an OWCP
hearing representative. At the hearing held on April 14, 2017, she argued that OWCP improperly
terminated her benefits and that she never received wage-loss compensation for her bilateral hand
conditions. Appellant also alleged that appropriate treatment was never authorized for her
November 6, 1995 employment injury. She contends that facts were improperly omitted, that the
medical evidence was not properly developed, referral physicians were biased, and there were
intentional delays in processing the claim. Appellant alleged that, as a result of returning to work
on November 6, 1995, she injured herself.
By decision dated June 29, 2017, the hearing representative affirmed OWCP’s August 23,
2016 decision. She determined that the evidence of record was insufficient to establish causal
relationship between the claimed disability and the accepted work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden proof to establish the essential
elements of his or her claim by the weight of the evidence.6 For each period of disability claimed,
the employee has the burden of establishing that he or she was disabled from work as a result of
the accepted employment injury.7 Whether a particular injury caused an employee to become
disabled from work and the duration of that disability, are medical issues that must be proved by
a preponderance of probative and reliable medical opinion evidence.8
The claimant must submit medical evidence showing that the condition claimed is
disabling.9 The evidence submitted must be reliable, probative, and substantial.10 The physician’s
opinion must be based on the facts of the case and the complete medical background of the
employee, must be one of reasonable medical certainty, and must include objective findings in
support of its conclusions.11 Subjective complaints of pain are not sufficient, in and of themselves,

5

Supra note 1.

6

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).

7

Id.

8

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

9

20 C.F.R. § 10.115(f).

10

Id. at § 10.115

11

Id. at § 10.501(a)(2).

5

to support payment of continuing compensation.12 Likewise, medical limitations based solely on
the fear of a possible future injury are also insufficient to support payment of continuing
compensation.13
5 U.S.C. § 8106(c) provides that a partially disabled employee who refuses to seek suitable
work, or refuses to or neglects to work after suitable work is offered to or arranged for him or her,
is not entitled to compensation.
OWCP’s implementing regulation interpreting 5 U.S.C. § 8106 further clarifies that
OWCP will terminate the employee’s entitlement to further compensation on all claims where the
injury occurred prior to the termination decision, as provided by 5 U.S.C. § 8106(c)(2). However,
the employee remains entitled to medical benefits.14
ANALYSIS
The Board finds that appellant is not entitled to disability compensation for the period
April 1997 to June 9, 2016 due to her accepted November 6, 1995 employment injury.
Appellant’s November 6, 1995 claim was accepted for bilateral sprain/strain of both hands
and wrists and the right shoulder. Appellant had a separate claim for a traumatic injury of
April 19, 1997. That claim was accepted for left shoulder sprain and tendinitis of the left forearm.
Appellant received compensation and wage-loss benefits for the April 19, 1997 claim through
November 17, 1999, but on November 18, 1999 OWCP terminated wage-loss compensation
because appellant failed to accept suitable employment.
On June 10, 2016 appellant filed a claim for compensation in the present claim for the
period April 19, 1997 through June 9, 2016.
When OWCP terminated appellant’s compensation benefits on November 18, 1999 for
refusal of suitable work it was required to consider the employment-related conditions, as well as
preexisting and subsequently acquired medical conditions to determine that the offered position
was in fact suitable work.15 As previously noted, OWCP’s regulation clarifies that if OWCP has
properly terminated compensation for refusal of suitable work, further compensation on all claims
where the injury occurred prior to the termination decision is terminated.16 Therefore, pursuant to
20 C.F.R. § 10.517(b), appellant is not entitled to further compensation for her November 6, 1995
employment injury after November 18, 1999.
However, appellant’s claim also includes periods of alleged disability prior to
November 18, 1999. The Board will, therefore, evaluate the relevant medical evidence to
12

Id.

13

Id.

14

20 C.F.R. § 10.517(b).

15

Martha A. McConnell, 50 ECAB 129, 132 (1998).

16

Supra note 12.

6

determine whether appellant has established disability from April 19, 1997 to November 18, 1999
arising from her November 6, 1995 employment injury.
In a May 12, 1997 report, Dr. Gillis indicated that appellant could return to work as long
as she did not perform repetitive work activity. However, he related that these restrictions were
due to appellant’s previous April 19, 1997 injury.
Dr. Fisher opined in his December 15, 1997 report that he could detect no objective
findings in appellant’s upper extremities including her wrists, hands, forearms, or right shoulder.
He indicated that appellant’s findings were strictly subjective and minimal. Because of appellant’s
lack of positive findings in her upper extremities, Dr. Fisher believed that appellant was able to
perform her work duties as a modified mail processor. Dr. Stern noted, in his October 19, 1998
report, that appellant was still having trouble with her right shoulder, but that he did not place her
off work. In his July 27, 1998 report, he related that appellant may have right shoulder
impingement syndrome or a rotator cuff tear. Neither Dr. Fisher nor Dr. Stern opined that
appellant was disabled for the period April 19, 1997 through June 9, 2016 due to objective findings
of her accepted November 6, 1995 injury.17 As such these reports are of limited probative value.
In a September 25, 2016 report, Dr. Pordy indicated that appellant continued to be disabled.
He noted that her last day of work was April 19, 1997, and that she was unable to perform the job
duties of a modified mail processor. Dr. Pordy’s opinion did not provide a well-rationalized
opinion linking appellant’s disability to her November 6, 1995 injury. He did not explain the
process by which appellant’s accepted November 6, 1995 injury would cause or contribute to her
disability during the relevant period and why her inability to work after April 19, 1997 was not
due to other factors, such as her subsequent 1997 work injury.18
For each period of disability claimed, an employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.19
The Board, therefore, finds that, because the medical evidence of record does not establish
disability for the period April 19, 1997 to November 18, 1999 causally related to her accepted
employment injury of November 6, 1995 appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

17

See S.H., Docket No. 16-1378 (October 16, 2017).

18

See J.S., Docket No. 14-0818 (issued August 7, 2014).

19

Amelia S. Jefferson, supra note 6.

7

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled for the period April 19, 1997 to June 9, 2016 causally related to the accepted November 6,
1995 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 29, 2017 is affirmed.
Issued: June 6, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE NAVY, NORFOLK
)
NAVAL SHIPYARD, Portsmouth, VA, Employer )
___________________________________________ )
G.H., Appellant

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

Docket No. 14-721
Issued: August 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2014 appellant, through counsel, filed a timely appeal of a January 7,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
modification of a November 6, 2012 decision, denying authorization for surgery. 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 OWCP abused its discretion by denying appellant authorization for
back surgery under 5 U.S.C. § 8103(a).
FACTUAL HISTORY
OWCP accepted that appellant, then a 34-year old pipefitter, sustained an acute lumbar
sprain and sprained right thumb as a result of an employment incident on December 6, 1988. It
1

5 U.S.C. § 8101 et seq.

subsequently accepted a right hand sprain, lumbosacral joint sprain; and sprains of the forearm
and elbow. Appellant returned to limited duty as a custodial worker. On October 27, 1995
OWCP adjusted his compensation to reflect his wage-earning capacity in that position.
In a report dated October 11, 2011, Dr. Mark B. Kerner, a Board-certified orthopedic
surgeon and treating physician, noted that appellant had complaints of severe and progressive
back pain with radiating leg pain, left worse than right. He reviewed a current magnetic
resonance imaging (MRI) scan and advised that it was not as impressive as appellant’s complaint
of pain. Appellant had a degenerative segment at L4-5 with bilateral foraminal stenosis, left
worse than right due to foraminal disc protrusion bilaterally. Dr. Kerner also noted some modic
changes and some mild degenerative facet changes at L5-S1. He explained that appellant needed
more aggressive treatment. Appellant was best suited for an anterior lumbar interbody fusion at
L4-5. Dr. Kerner noted that this would allow decompression of the disc space, restore the
foraminal stenosis and address appellant’s back pain without having to disturb his posterior
muscle envelope. He discussed the nature of surgery, the risks, benefits, complications and
alternatives. Dr. Kerner explained that the goal for appellant following surgery was to return to
functional work activities. Appellant wished to proceed to surgery and Dr. Kerner requested
authorization.
An October 14, 2011 lumbar spine MRI scan, read by Dr. Carol Ashman, a Boardcertified diagnostic radiologist, revealed a disc bulge redemonstrated at L4-5, facet arthropathy
and facet arthropathy at L5-S1 associated with moderate bilateral neural foraminal stenosis.
In a letter dated March 9, 2012, appellant requested authorization for the surgery
recommended by Dr. Kerner.
In an April 10, 2012 report, Dr. David E. Lannik, a Board-certified orthopedic surgeon
and treating physician, noted that he had treated appellant since the December 16, 1988 injury.
He advised that appellant was monitored since that time for a chronic lumbar disc herniation.
Despite conservative management, Dr. Lannik suggested surgery for the disc herniation which
was chronic and dated back to December 16, 1988.
In an April 27, 2012 report, Dr. Kerner again requested authorization for anterior lumbar
interbody fusion.
OWCP requested an opinion from a medical adviser regarding whether the requested
surgery was necessary to treat the accepted injury. In a May 5, 2012 report, Dr. Lawrence A.
Manning, an OWCP medical adviser, reviewed appellant’s history and the accepted conditions of
lumbar sprain, right hand sprain, lumbosacral (joint ligament sprain) and elbow/ulnar sprain. He
noted that a surgery request was made for arthrodesis, anterior interbody technique including
minimal discectomy to prepare interspace, section and spinal instrumentation procedures on the
spine (vertebral column) section. Dr. Manning stated that the accepted conditions involving the
back were limited to a sprain, a soft tissue injury. He noted that the injury occurred in 1988.
Dr. Manning reviewed the diagnostic reports and opined that the requested surgery was not
indicated for the accepted conditions.

2

By letter dated May 30, 2012, OWCP referred appellant to Dr. Edward Gold, a Boardcertified orthopedic surgeon, for a second opinion. In a June 13, 2012 report, Dr. Gold noted
appellant’s history and diagnosed chronic low back pain and sciatica. He opined that appellant
developed pain in his lower back after an injury at work on December 6, 1988. Dr. Gold
indicated that appellant continued to be in constant low back pain radiating into both lower
extremities. He indicated that no surgery had been performed but a fusion procedure was
recently recommended and appellant was currently working. Dr. Gold explained that diagnostic
studies of the lumbar spine in 2002 and 2003 did not show any dural or foraminal stenosis or any
degenerative changes. He noted an MRI scan study in April 2010 showed foraminal arthrosis
and stenosis at L4-5 and L5-S1. Dr. Gold opined that it was possible that appellant could benefit
from surgery that would address these findings; but found that, since the diagnostic findings did
not appear until more than 11 years after injury, he could not attribute the need for surgery to the
injury in 1988.
On September 19, 2012 OWCP referred appellant, together with a statement of accepted
facts, and the medical record, to Dr. Bakjit Sidhu, a Board-certified orthopedic surgeon for an
impartial medical evaluation to resolve a conflict in medical opinion between Drs. Lannik and
Kerner, the treating physicians, and Dr. Gold, the second opinion physician, regarding the need
for surgery.
In an October 18, 2012 report, Dr. Sidhu reviewed appellant’s history and provided
findings on physical examination. Appellant indicated that his pain rated “6/10 in severity” and
took away from his normal living. He related that walking, even for a few minutes, made the
pain worse. Pain was radiating down appellant’s right leg. He completed a pain disability
questionnaire and “his self-rated score was 121 out or 150 meaning grade 3 severe disability.”
On examination appellant could walk on his tiptoes and heels. He could bend forward and touch
his toes, which gave him a flexion of 110 degrees at the waist; extension to eight degrees, right
flexion to 27 degrees with fingertips going below the knee; left flexion to 28 degrees with the
fingertips going below the knee. Appellant had 2+ knee jerks, a sluggish left ankle jerk and an
absent right ankle jerk. Dr. Sidhu noted that appellant performed a sitting straight leg raise to
test quadriceps strength which was 90 degrees. Appellant was able to turn to the prone position
without any problem. Dr. Sidhu found no muscle spasm in the back while appellant had some
diffuse tenderness at the lumbosacral area. He did not find much tenderness over the sacroiliac
joints or the iliac crest. Dr. Sidhu noted that appellant had grade 5 strength in all the muscle
groups tested and that axial pressure on the top of his head while standing up did not produce any
lower back pain. Regarding appellant’s accepted conditions, he explained that appellant’s acute
lumbar strain/sprain was primarily a soft tissue injury that usually resolved within 6 to 12 weeks.
In some cases, the pain could persist for up to six months, but it almost never went beyond that.
Dr. Sidhu stated that appellant had received extensive medical treatment from his attending
physicians. He noted that appellant currently developed spinal stenosis and explained that this
was the cause of the degenerative disc disease at L4-5 and to a lesser extent at L5-S1. Appellant
also had significant arthritis in his facet joints, which further added to his spinal stenosis, and
also had degenerative disc bulges in these areas. Dr. Sidhu opined that the findings were the
result of normal aging and not caused by his acute lumbar strain/sprain sustained in 1988.
By decision dated November 6, 2012, OWCP denied authorization for lumbar surgery.

3

An August 29, 2013 MRI scan read by Dr. Charles Hecht-Leavitt, a Board-certified
diagnostic radiologist, revealed: L5-S1 mild disc bulging and bilateral facet joint arthrosis with
two millimeter retrolisthesis; L4-5 moderate diffuse disc bulging and small central disc extrusion
indenting the thecal sac and narrowing of the lateral recesses and neural foramina. It also
revealed L3-4, mild annular bulging and right facet joint arthrosis and small left facet jointrelated cyst.
On October 28, 2013 appellant’s attorney requested reconsideration. He contended that a
conflict in medical opinion did not exist. Furthermore, the report of Dr. Sidhu was deficient to
the extent that, if relevant at all, it should be considered supportive of continued work-related
disability. Counsel submitted new medical evidence.
In an October 22, 2013 report, Dr. Lannik noted that he disagreed with the denial of the
requested back surgery. He stated that there was no doubt that appellant had a low back injury
and, on more recent MRI scans, a lumbar disc protrusion at L4-5. Dr. Lannik explained that the
initial injury was an annular tear at L4-5 disc as documented by a 1988 MRI scan and
Dr. Kerner’s notes. He also noted that the medical literature also supported that a delay between
a low back injury, an annular tear and the development of MRI scan changes was consistent with
traumatic arthritis, disc protrusions and degenerative disc changes. The fact that appellant had
continued pain was consistent with an annular tear from the time of injury to the present time
without resolution, especially in the absence of preexisting problems. This was evidence that
there was a direct relationship between the lifting injury of 1988 and the development of a later
disc protrusion and facet joint changes. Dr. Lannik advised there was no dispute that appellant
lifted materials in 1988 causing this injury.
Dr. Lannik explained that the primary relevant factor was age and that when considering
whether appellant’s present condition was caused by age-related degeneration or traumatic
progressive disc disease, it was important to review appellant’s history. He indicated that the
natural history of degenerative disc disease was the slow onset of stiffness and aching
progressing to more serious pain over years. However, Dr. Lannik advised that this was not
appellant’s presentation. He explained that appellant’s presentation was immediate pain
radiating down the legs that continued since his 1988 injury. Dr. Lannik opined that this was not
the natural history of age-related degenerative disc disease. He explained that “the likelihood
that [appellant’s] presentation today is due to age[-]related degenerative wear and tear is
markedly less than the likelihood that this is a natural progression of traumatic changes as
delineated in the literature and consistent with [appellant’s] history of an annular tear. Therefore,
to a reasonable degree of medical certainty, the opinion of the defense medical experts is
wrong.” Dr. Lannik opined that “to a reasonable degree of medical certainty, [appellant’s]
current symptoms are similar to his symptoms of 1988 and represent a progression of these
symptoms as a result of the traumatic changes that are consistent with the MRI [scan] findings.”
He advised that the data and his assessment supported the conclusion of a causal relationship
between appellant’s present lumbar disc MRI scan findings, his traumatic injury involving lifting
materials in 1988 and the symptoms which he had presented since 1988. Dr. Lannik stated that
appellant had an annular tear at L4-5 that progressed to a lumbar disc protrusion and traumatic
arthritis. He reiterated his surgery recommendation.

4

In a November 18, 2013 report, Dr. Lannik noted that the current objective findings
included an MRI scan that showed a posterior disc protrusion at L4-5. He noted that appellant
also had facet arthropathy at L5-S1, with positive straight leg raising on the left, and weakness
on flexion on the left. Dr. Lannik diagnosed L4 degenerative disc disease which was noted since
1989 following his work injury. He opined that the work injury had not ceased and appellant
still had chronic back pain and leg pain requiring intermittent injections for the last 20 years.
Dr. Lannik advised that appellant could only ambulate less than one city block due to back pain
radiating to the left lower extremity. He noted that appellant’s work performance was spotty due
to intermittent pain requiring treatment and that appellant worked in a light-duty job. Dr. Lannik
noted that Dr. Kerner opined in 1997 that a lumbar laminectomy and fusion was the only option
offered to provide increased ability to ambulate as well as hopefully some sort of pain control.
By decision dated January 7, 2014, OWCP denied authorization of the lumbar surgery. It
found the weight of the medical evidence did not establish that surgery was medically necessary
for the accepted work injury.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.2 OWCP has the general objective of ensuring that an employee recovers from his
injury to the fullest extent possible in the shortest amount of time. It therefore has broad
administrative discretion in choosing means to achieve this goal.3 The only limitation on
OWCP’s authority is that of reasonableness.4
While OWCP is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.5 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.6 Therefore, in order to prove that
the surgical procedure is warranted, appellant must submit evidence to show that the procedure
was for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.7

2

5 U.S.C. § 8103(a).

3

Dale E. Jones, 48 ECAB 648, 649 (1997).

4

Daniel J. Perea, 42 ECAB 214 (1990) (holding that abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts).
5

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

6

Id.; see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).

7

See R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331, 333 (2000).

5

ANALYSIS
OWCP accepted the claim for an acute lumbar sprain and sprained right thumb as a result
of an employment incident on December 6, 1988. It expanded the claim to include: right hand
sprain, lumbosacral joint sprain; sprain of forearm and elbow. OWCP determined that a conflict
in medical opinion evidence occurred between the treating physicians, Drs. Lannik and Kerner,
and Dr. Gold, the second opinion physician, regarding appellant’s need for back surgery due to
his accepted conditions. It referred him to Dr. Sidhu for an impartial medical evaluation to
resolve the conflict.
Section 8123(a) of FECA provides, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.8
In an October 18, 2012 report, Dr. Sidhu noted appellant’s history and examined
appellant. He noted examination findings, including that appellant could turn to the prone
position without problem, there was no muscle spasm in his back but some diffuse tenderness at
the lumbosacral area. Dr. Sidhu found that appellant had grade 5 strength in all the muscle
groups. He explained that appellant had an acute lumbar strain/sprain, which was primarily a
soft tissue injury, which usually resolved within 6 to 12 weeks but, in some cases, could persist
for up to six months. Dr. Sidhu noted that appellant had developed spinal stenosis which was the
cause of his degenerative disc disease at L4-5 and to a lesser extent at L5-S1. Additionally, he
explained that appellant had significant arthritis in his facet joints, which further added to his
spinal stenosis along with degenerative disc bulges in these areas. Dr. Sidhu opined that the
findings were the result of normal aging and were not caused by his acute lumbar strain/sprain
that he sustained in the 1988 work injury.
In situations where there are 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 on a proper
factual background, must be given special weight.9 The Board finds that the opinion of
Dr. Sidhu is well rationalized and based on a proper factual and medical history. Dr. Sidhu
accurately summarized the relevant medical evidence, provided detailed findings on examination
and reached conclusions about appellant’s condition which comported with his findings.10 In his
October 18, 2012 report, he reviewed the medical evidence, including the results of diagnostic
studies and examined appellant and provided rationale for his opinion with regard to the
requested surgery. As Dr. Sidhu’s report is detailed, well rationalized and based on a proper
factual background, his opinion is entitled to the special weight accorded an impartial medical

8

5 U.S.C. § 8123(a).

9

Barbara J. Warren, 51 ECAB 413 (2000).

10

See Manuel Gill, 52 ECAB 282 (2001).

6

examiner.11 OWCP properly relied upon his report to find that the requested surgical procedure
was not related to the accepted conditions.
OWCP received additional reports from Dr. Lannik. They included an October 22, 2013
report in which he disagreed with the prior medical reports and a November 18, 2013 report, in
which he indicated that the lumbar laminectomy and fusion was the only option offered to
provide increased ability to ambulate as well as hopefully some sort of pain control. However,
Dr. Lannik’s reports essentially reiterated his previously stated findings and conclusions
regarding appellant’s condition. As he had been on one side of the conflict in the medical
opinion that the impartial specialist resolved, the treating physician’s reports were insufficient to
overcome the special weight accorded the impartial specialist or to create a new medical
conflict.12 Other reports merely provided findings and did not offer a current opinion regarding
whether the need for the requested surgery was due to the accepted conditions.
Based on the evidence of record, OWCP reasonably concluded that the proposed surgery
was not warranted. It did not abuse its discretion in denying authorization for the proposed back
surgery in this case.
On appeal, appellant’s attorney argued that the evidence supported the need for surgery
and that OWCP had taken an adversarial position. As noted, the impartial medical examiner’s
determined that appellant’s need for surgery was not attributable to the accepted lumbar sprain.
OWCP did not abuse its discretion in denying authorization for the proposed lumbar surgery.
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 OWCP properly exercised its discretion pursuant to 5 U.S.C.
§ 8103(a) in refusing to authorize appellant’s request for back surgery.

11

See J.M., 58 ECAB 478 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

12

Barbara J. Warren, 51 ECAB 413 (2000); Alice J. Tysinger, 51 ECAB 638 (2000).

7

ORDER
IT IS HEREBY ORDERED THAT the January 7, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8