United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0269
Issued: September 18, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 19, 2018 appellant filed a timely appeal from an August 6, 2018 decision of
the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 19-0269.
This case has been previously before the Board.1 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On February 11, 2009 appellant, then a retired 59-year-old flat sorter machine operator,
filed an occupational disease claim (Form CA-2) alleging that she had previously sustained
shoulder, back, and neck injuries due to the performance of her federal employment duties. During
treatment for those conditions, she was diagnosed with bilateral carpal tunnel syndrome. On
December 28, 2009 OWCP accepted appellant’s present claim, assigned File No. xxxxxx992, for
bilateral carpal tunnel syndrome. On January 7, 2015 it expanded acceptance of this claim for the
additional condition of lesion of the ulnar nerve, right.

1

Docket No. 17-1766 (issued April 3, 2018).

Appellant received prior schedule awards under OWCP File No. xxxxxx996. On March 2,
2010 OWCP issued a schedule award for seven percent permanent impairment of the right upper
extremity based on permanent impairment to her right shoulder. On April 21, 2011 it issued a
schedule award for eight percent permanent impairment of appellant’s left upper extremity. On
November 7, 2011 OWCP issued a schedule award for an additional 21 percent permanent
impairment for appellant’s right upper extremity (for a combined 28 percent permanent
impairment of the right upper extremity) based on loss of range of motion of her shoulder. On
January 22, 2014 it found that appellant had an additional 26 percent permanent impairment of the
left upper extremity due to her C5-6 cervical radiculopathy (for a combined 34 percent permanent
impairment of the left upper extremity).
On November 27, 2012 OWCP issued a schedule award for three percent permanent
impairment of appellant’s left upper extremity and three percent permanent impairment of her right
upper extremity, based on her accepted bilateral carpal tunnel syndrome in File No. xxxxxx992.
On January 15, 2016 appellant filed a claim for an additional schedule award (Form CA7).
On August 18, 2016 OWCP referred appellant for an impartial medical examination with
Dr. Robert Elkins, a Board-certified orthopedic surgeon. In a May 2, 2017 letter, OWCP noted
that Dr. Elkins had found nine percent permanent impairment of the right upper extremity due to
ulnar nerve cubital tunnel syndrome and carpal tunnel, and five percent permanent impairment of
the left upper extremity due to carpal tunnel. It asked Dr. Elkins to consider appellant’s prior
schedule awards and to determine if appellant had a permanent impairment of greater than 37
percent to her left upper extremity and 31 percent of her right upper extremity previously awarded.
In a June 3, 2017 response, Dr. Elkins indicated that, after reviewing appellant’s prior ratings, she
did not have a greater permanent impairment to her upper extremities than 37 percent to the left
arm and 31 percent to the right arm. He noted that he agreed with the prior calculations.
By decision dated June 13, 2017, OWCP determined that the medical evidence of record
did not support an increase in the permanent impairment already compensated and, therefore, the
requirements had not been met for an additional schedule award.
On August 11, 2017 appellant filed an appeal with the Board. By decision dated April 3,
2018 decision,2 the Board found OWCP improperly designated Dr. Elkins as an impartial medical
examiner as the underlying conflicting medical opinion evidence was between two physicians
selected by OWCP, and thus he was properly considered a second opinion physician. The Board
further found that Dr. Elkins’ report did not provide sufficient medical rationale to clarify whether
appellant would be in receipt of duplicative schedule awards if she received schedule awards for
the additional nine percent permanent impairment of the right upper extremity due to ulnar nerve
cubital tunnel syndrome and carpal tunnel syndrome and five percent permanent impairment of
the left upper extremity due to carpal tunnel that he found appropriate. The Board noted that she
had previously only received three percent impairment of the upper extremities bilaterally due to

2

Id.

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carpal tunnel syndrome. The Board also ordered that OWCP clarify with Dr. Elkins his use of the
word “average” when discussing grade modifiers.
In a letter dated May 17, 2018, OWCP requested additional information from Dr. Elkins
regarding whether his impairment rating was duplicative of those already received by appellant
and why he used the word “average” when discussing grade modifiers.
On July 6, 2018 Dr. Elkins responded that his impairment ratings were a total rating for
each condition and were not in addition to any prior ratings. He further explained that he used the
word “average” not in a mathematical sense, but to describe the use of grade modifiers in the net
adjustment formula.
By decision dated August 6, 2018, OWCP denied appellant’s claim for an additional
schedule award finding that she had not met her burden of proof to establish greater than 37 percent
permanent impairment of her left upper extremity and 31 percent permanent impairment of her
right upper extremity. OWCP further continued to refer to Dr. Elkins as the “referee physician”
and to indicate that his findings were therefore entitled to special weight.
The Board, having duly considered the matter, concludes that the case is not in posture for
decision.
The Board has final authority to determine questions of fact and law. The Board’s
determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon by
the Director of OWCP.3 A decision of the Board is final upon the expiration of 30 days following
the date of its order and, in the absence of new review by the Director, the subject matter is res
judicata and not subject to further consideration by the Board.4
On prior appeal, the Board found that Dr. Elkins was not an impartial medical examiner
and that his reports were not entitled to the special weight of the medical evidence. As such OWCP
improperly weighed Dr. Elkin’s reports in its August 6, 2018 decision.5 The Board also previously
remanded the case for OWCP to further develop the medical evidence regarding appellant’s
entitlement to an additional schedule award. The Board finds that Dr. Elkins’ July 6, 2018
supplemental report did not address the specific deficiencies the Board described in its April 3,
2018 decision.6 Dr. Elkins failed to provide the requested medical rationale addressing the issue
of whether appellant’s additional permanent impairment ratings of nine percent of the right upper
3

K.B., Docket No. 17-0969 (issued March 13, 2018); see Paul Raymond Kuyoth, 27 ECAB 498, 503-04 (1976);
Anthony Greco, 3 ECAB 84 (1949). See also Frank W. White, 42 ECAB 693 (1991) (the Board’s order in a prior
appeal imposed an obligation on the Director to take particular actions as directed). See L.C., Docket No. 09-1816
(issued March 17, 2010) (OWCP did not follow the Board’s instructions); T.S., Docket No. 13-2135 (issued
April 3, 2014).
4

See K.B., id.; 20 C.F.R. § 501.6(d); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998). There is no indication
that a petition for reconsideration was filed within 30 days of the issuance of the Board’s April 3, 2018 decision and
the decision became final after 30 days had elapsed. 20 C.F.R. § 501.6(d).
5

R.S., Docket No. 17-0344 (issued February 15, 2019); K.B., id.

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T.D., Docket No. 16-1883 (issued December 27, 2017).

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extremity due to ulnar nerve cubital tunnel syndrome and carpal tunnel, and five percent permanent
impairment of the left upper extremity due to carpal tunnel were or were not duplicative of the
bilateral upper extremity schedule awards that she had previously received.7
The Board will therefore set aside OWCP’s August 6, 2018 decision and remand the case
for further development of appellant’s claim for an additional schedule award, including resolution
of the issues that the Board first raised in its April 3, 2018 decision.8 Following this and other
such further development as deemed necessary, OWCP shall issue a de novo decision regarding
appellant’s bilateral upper extremity impairment for schedule award purposes. Accordingly,
IT IS HEREBY ORDERED THAT the August 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: September 18, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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L.C., Docket No. 18-0519 (issued March 8, 2019); J.K., Docket No. 16-1361 (issued April 19, 2017).

8

J.H., Docket No. 15-0546 (issued May 20, 2015).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Englewood, CO, Employer
__________________________________________

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

Docket No. 09-1880
Issued: June 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2009 appellant filed a timely appeal from an April 15, 2009 decision of the
Office of Workers’ Compensation Programs denying her emotional condition claim.1 Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On November 28, 2007 appellant, then a 53-year-old city letter carrier, filed an
occupational disease claim for an emotional condition due to various incidents at work. She was
aware of her condition on May 9, 2007 and first related it to her job on November 7, 2007.
1

Appellant was originally represented by John J. Zodrow, Esq., on appeal. However, she advised the Board on
August 14, 2009 that she wished to proceed with the appeal without her attorney.

Appellant stated that she was subjected to intense pressure and frequent dismissive and belittling
treatment in being told that she was not working hard or fast enough. She stated that her work
was never observed nor did she get suggestions for improvement despite her requests to be
inspected. Appellant stated that the requested overtime for her route was routinely reduced or
denied, which added to her stress. She stopped work on November 8, 2007 after being
hospitalized for self-inflicted lacerations to both arms. Appellant was discharged the next day
with diagnoses of recurrent, major depressive disorder and adjustment disorder. In December 6,
2007 reports, Dr. Lindy S. Gilchrist, a Board-certified family practitioner, diagnosed stress,
anxiety and suicidal ideation and placed appellant off work from November 8, 2007.
After the Office’s requested additional evidence, appellant provided a statement.
Appellant alleged a stressful and hostile work environment due to constant pressure from her
station manager, Linda Woods, and her supervisor, Paula Harmon, about her job performance.
She stated that she was told daily that she was not doing a good enough job and that she took too
long to deliver her route. Appellant stated that her route had significant growth, due to the
addition of four new apartment buildings, which was not included in her street time and her
overtime requests to complete the mail delivery were denied. When she asked for a route count
in September 2007, she was told that she did not qualify for a route count. Appellant stated that
her route took more than eight hours a day to complete. She alleged that the process of filling
out the required Form 3996 (request for additional time) to estimate the amount of overtime
needed was stressful. Appellant stated that her suggestion that someone follow her on the street
and identify any time-wasting practices she could change was ignored. She noted that, while
Edward Simmons, afternoon supervisor, had followed her on the street on August 7, 2007 and
told her that she did fine, the criticism of her performance continued. Appellant alleged that,
when she asked Ms. Harmon if Mr. Simmons’ report would mean she might have less pressure
applied to her regarding her performance, Ms. Harmon replied someone else would follow her.
She stated that on September 15, 2007 Ms. Woods observed her after her request for 40 minutes
of overtime was denied. Appellant stated that she did not receive any comment about her
working behavior or performance until Ms. Harmon told her weeks later that if she had gotten to
her business deliveries earlier that day she might not have been as affected by traffic. She
alleged that she continued to be harassed when told that she could do better if she tried harder.
Appellant stated that, in October 2007, she had stress from having to sort out-of-sequence mail
and her request for overtime was not allowed. She stated that she needed more time to sort mail
that was given to her out of sequence. Appellant stated that she was refused a route audit. She
asserted that, in an October 16, 2007 informal meeting, Ms. Woods told her no one else had
overtime on her route. Appellant indicated that, when she mentioned that the route had grown a
lot, Ms. Woods stated that she was given office time to case mail. She noted that no mention
was made that it took both office and street time to deliver the mail. During the meeting,
Ms. Woods claimed that appellant did not meet the “five o’clock window” deadline a few days
prior. Appellant stated that she had told Mr. Simmons that she would not be back before 5:00
p.m. but Ms. Woods misconstrued what he said. She stated that, when Mr. Simmons, who was
present at the meeting, read from his notes that she would not make the five o’clock window,
Ms. Woods told her that she should do whatever it takes to be back by 5:00 p.m. Appellant
alleged this comment did not constitute clear and complete direction.
Appellant asserted that she had almost daily harassment to do more in less time, despite
her efforts to reason with her supervisors. She expressed to Ms. Harmon that, it seemed that no
2

matter what she did, she could not meet her expectations. Appellant alleged that, on January 4,
2007, when she called to request more overtime than had been allowed, Ms. Harmon told her
that her performance was unacceptable and hung up. On November 7, 2007 Ms. Harmon gave
her only 30 minutes of overtime when she requested 45 minutes. Appellant indicated that, when
she called Ms. Harmon to tell her she could not make the 30 minutes, Ms. Harmon told her to
“get in gear.” She indicated that these comments were not clear and complete instructions and
contributed to her overwhelming feeling of being under pressure with no ability to change her
circumstances. Appellant asserted that her supervisor hanging up on her contributed to a hostile
environment and left her feeling that she failed to perform her duties satisfactorily. She noted
reaching a crisis point on November 8, 2007 when her overtime request was completely denied.
Appellant felt that nothing in her job would improve and took those feelings out on herself by
cutting her arms. On November 28, 2007 she went to her duty station to give her statement to
Ms. Harmon. However, Ms. Harmon refused to accept her statement and ordered her to exit the
building immediately.
Appellant also alleged Ms. Woods was hostile. She stated that Ms. Woods interfered
with her October 2006 route bid. Appellant stated that, when she protested that her bid had been
disregarded, as the route was awarded to a more junior carrier, Ms. Woods stated that she did not
receive the bid. She questioned Ms. Woods’ veracity and noted that she ultimately received the
route. Appellant alleged that Ms. Woods improperly interfered with a November 2006 motor
vehicle accident when she backed her work vehicle into a parked vehicle. She stated that
Ms. Woods requested that the owner of the parked vehicle file a complaint against her although
there was no damage and he had no complaint. Appellant alleged that Ms. Woods wanted to
begin a disciplinary process against her. In June 2007, she found a payroll error in her health
insurance premiums. Appellant stated a check reimbursing her for the double premiums was
sent to the station manager’s attention, but Ms. Woods claimed she never received it. She
advised that a stop order had to be placed on the first check and another check reissued which
was sent directly to her home.
In a January 15, 2008 letter, Dr. Gilchrist advised that appellant had a significant
emotional reaction to stress in her workplace. She advised that appellant was not able to return
to work as the workplace was a dangerous environment for her mental wellbeing.
In a February 12, 2008 statement, the employing establishment controverted the claim
either refuting appellant’s allegations or asserting that they were not compensable. It provided
statements from Ms. Harmon and Ms. Woods. In a January 15, 2008 statement, Ms. Harmon
verified that appellant’s route had grown and that there was disagreement about the time required
for completion. She stated that appellant was generally able to perform the required duties and
that she was unaware of appellant’s stress until November 8, 2007. In a January 23, 2008
statement, Ms. Harmon indicated that on November 28, 2007 appellant gave her an incomplete
occupational disease claim. She indicated that she had been led to believe that appellant was not
allowed on the employing establishment’s premises and that she contacted the postmaster, who
instructed her to advise appellant that she was not allowed on the premises. Ms. Harmon noted
that appellant had requested a special inspection of her route and the required reports were
submitted to the district Office for review. The district Office, however, determined that
appellant’s route did not qualify for a special inspection. Ms. Harmon stated that she did not
believe appellant’s behavior needed to change but her work methods needed improvement. She

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advised that she attempted to accommodate the growth factor on appellant’s route. Ms. Harmon
denied appellant using the word “stress” in her presence or of having any direct knowledge of
Ms. Woods observing appellant on her route on September 15, 2007. She verified that
Ms. Woods had followed appellant on the street and indicated to her that, had appellant done her
business deliveries earlier, she might not have been so affected by traffic. In a February 6, 2008
statement, Ms. Harmon advised that she told appellant that she believed someone else would
follow her.
In January 23 and 30 and February 12, 2008 statements, Ms. Woods responded to the
allegations. Regarding appellant’s October 2006 bid on her route, Ms. Woods stated that only
bids that were in the bid box were accepted. She indicated that appellant put in her bid at the
Englewood main office and management pulled the bid box and sent the bids to the Englewood
downtown station, where the job was awarded by seniority. Ms. Woods indicated that appellant
had not been at work for a long period of time due to knee surgery and, because of this,
documentation that she could perform the job was required before awarding the bid to her. She
denied that the bid was awarded to anyone else. Ms. Woods also indicated that, before appellant
bid on the route, management and the previous route carrier agreed that the new growth made the
route an eight-hour assignment. She indicated that, prior to the new growth, the route was a
seven-hour assignment. Ms. Woods stated that carriers fill out a Form 3996 based on
demonstrated workload, not anticipated need. She denied that the procedure was stressful and
indicated it was based on daily information computed by hours and volumes on all carriers.
Ms. Woods noted that no other carriers reported problems with the 3996 process. Regarding
appellant’s vehicular accident, she stated that appellant did not report the accident as required.
Ms. Woods stated that Shawna Steiger, a carrier, reported the parking lot accident to her and that
the manager of the Goodyear store where the accident occurred approached Ms. Steiger about
what the employing establishment would do. She acknowledged contacting the Goodyear
manager as she was required to investigate allegations of employee misconduct. Ms. Woods
denied discussing appellant’s accident record with the store manager or asking him to file a
complaint. She stated that she had to call the store manager again as he did not supply the
information needed to properly complete the investigation. Ms. Woods denied knowing that
appellant was reimbursed for double insurance premiums or receiving a check for appellant. She
advised that the employing establishment’s policy was for all carriers to return by 5:00 p.m. for
service and appellant’s workload did not justify going past 5:00 p.m. The workload for the day
justified overtime or assistance for all employees. Management made its projections by
9:30 a.m. as to how many carriers would be out after 5:00 p.m. Ms. Woods advised that
performance was based on the time used to perform the work on a daily basis based on workload
and observations, both in the office and on the street. She indicated that management as
responsible to correct all observed time-wasting practices of employees. Ms. Woods stated that
appellant’s pulling one slot at a time was considered a time-wasting practice and pulling out of
order was not following handbook rules. She noted that, when she observed appellant on
September 15, 2007, there were about two hours of delivery left based on appellant’s location.
Ms. Woods stated that appellant was delivering the route out of sequence. She advised that street
management was management’s responsibility and carriers could expect to be supervised at all
times while performing their daily duties. Ms. Woods stated that management observed carriers
for a reasonable time for work methods and safety.

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In a January 23, 2008 statement, Ms. Steiger stated that she reported appellant’s
automobile accident to Ms. Woods but did not know if Ms. Woods contacted the store manager.
In a February 4, 2008 statement, Vi Tien, carrier supervisor, confirmed that appellant bid for a
job at Englewood carrier annex. He stated that he forwarded the bids to Englewood downtown
station for processing. Mr. Tien stated that appellant was awarded that bid.
In a February 26, 2008 decision, the Office denied the claim finding that no compensable
work factors were established. On March 12, 2008 appellant requested a hearing that was held
on July 24, 2008. She provided testimony and witness statements regarding the factors of
employment she believed caused or contributed to her emotional condition. The employing
establishment continued to controvert appellant’s claim.
Appellant provided copies of her November 8, 2007 emergency room visit where
Dr. Ahmed R. Stowers, Board-certified in emergency medicine, diagnosed depression with selfinflicted wounds. In a November 8, 2007 report, Dr. Claudia L. Clopton, a Board-certified
psychiatrist, noted that appellant was treated for depression for the last five to six years. She
noted events at work on November 8, 2007 “when [appellant] was denied overtime for the
second time.” Dr. Clopton diagnosed major depressive and adjustment disorder with mixed
features of emotion and behavior. She stated that appellant should not return to work until
December 11, 2007.
In a November 14, 2007 report, Dr. Gilchrist noted appellant’s
hospitalization and diagnosed specified adjustment reactions. In a January 15, 2008 report, she
noted that appellant experienced “significant emotional reaction to stressful conditions in her
workplace” and could not return to work. In a July 11, 2008 report, Dr. Gilchrist advised that
she had diagnosed appellant with severe depression and anxiety in November 2007 and had
admitted her to the hospital. She stated that there was “no doubt that her stressful work
environment contributed to her severe depression and anxiety and led to her self-inflicted
wounds.”
In a January 16, 2008 statement, Tom Kopriva, union steward, verified that the informal
meeting on October 16, 2007 occurred as appellant alleged. He indicated that, while Ms. Woods
told appellant that no one else had overtime on her route, her statement was false. Mr. Kopriva
stated that, as a union steward for 2007, he was aware that other carriers needed overtime to
complete that route. He also verified that in October 2007 appellant did not pull down only one
slot at a time, but rather adjusted her pulling down depending on mail volume. Mr. Kopriva
stated that she was subjected to repeated criticism and reprimand for on-the-job behaviors and
the work atmosphere was very hostile. He stated that Ms. Woods spoke to him many times
about appellant’s job habits, but did not inform appellant or give her an opportunity to correct
alleged deficiencies.
In a March 12, 2008 statement, Mr. Simmons indicated that, before appellant arrived at
her new bid route, Ms. Woods commented that she should have gotten rid of appellant when she
had the chance and she would get her this time. He stated that Ms. Woods indicated that extra
scrutiny of appellant’s work would happen with a goal to harass appellant until she resigned or
bid to another station. Mr. Simmons asserted that Ms. Woods singled out appellant because of
her disability. He indicated that the bids from each of the three Englewood stations were
removed, copied and forwarded to the station where the available route was located.
Mr. Simmons stated that, while it was true appellant’s bid was placed in a bid box at the

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Englewood main office, the bids were not sent to the downtown station but rather were
forwarded to the Englewood carrier annex. He opined that Ms. Woods ignored appellant’s bid
and then lied about it. Mr. Simmons described the Form 3996 process and opined that it was
discriminatory for Ms. Woods to use it as a pretext for a disciplinary interview. He stated that
his observation of appellant’s performance on August 7, 2007 showed no errors in conduct or
discharge of her duties. Mr. Simmons noted that there were errors in the delivery point sorted
(DPS) mail, which caused appellant to place mail out of sequence in apartment mailboxes and
naturally slowed her down. He noted, however, that this was out of appellant’s control as
carriers are not allowed to handle the DPS mail before street delivery. Mr. Simmons stated that
he was present on at least two occasions when appellant asked Ms. Woods for observation
results. He noted one of those occasions took place at his desk and, after Ms. Woods told
appellant that she had not finished entering the information, she stated, “I’ll give it to her when I
am good and ready.” Mr. Simmons stated that this was unprofessional and hostile.
In an undated and unsigned statement received on August 1, 2008, David Jungwirth,
former Goodyear store manager, confirmed that appellant bumped into a vehicle parked outside
the store in early November 2006 and no damage was done. He stated that, several weeks later,
Ms. Woods called him about the accident and, although he told her that there was no reason to
pursue the matter, she persisted in asking him to file a complaint. Mr. Jungwirth stated that
Ms. Woods told him that appellant had a history of accidents in her work vehicle and he should
file a complaint so she could pursue disciplinary action. He noted telling Ms. Woods that he saw
no reason to file a complaint.
In an undated statement received August 1, 2008, Russell Shamah, former union
president, noted that he had spoken with appellant about her bid for a route at the carrier annex.
He indicated that he explained to her about how to qualify to be a successful bidder.
Mr. Shamah noted that he also called Ms. Woods and she was unaware that appellant had
submitted a bid. He noted that, after he called Ms. Woods, appellant got the bid.
In a letter dated July 28, 2008, Julie Rudiger, a licensed social worker, noted that
appellant reported that her manager at the employing establishment had “unreasonable
performance expectations” of her and that this issue was never resolved.
In an August 22, 2008 report, Dr. Thomas P. O’Hearn, a Board-certified licensed clinical
psychologist, described appellant’s events of November 8, 2007, her mental status and her
treatment. He noted that her ongoing work environment and the events of November 8, 2007
that led to her self-mutilation were causative factors in her behavior. Dr. O’Hearn diagnosed
probable major depressive disorder, recurrent and acute stress disorder. Based on his review of
appellant’s records and statements, he opined that her behavior on November 8, 2007 was
directly related to her workplace environment.
In a February 13, 2009 decision, an Office hearing representative found that appellant
had established three compensable employment factors but did not submit sufficient medical
evidence to show that her emotional condition was due to the established factors. The hearing
representative remanded the case to the Office for a referral of appellant for a second opinion
psychiatric evaluation. The compensable factors of employment were identified as: the
additional assignment of delivering mail to a recently-built apartment complex consisting of

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approximately four hundred residents; appellant’s reaction to having to spend more time sorting
and delivering mail that was not properly sequenced; and appellant’s request for suggestions for
job improvement and for a route audit, both of which affected her assigned duties, but she
received no suggestions and a route audit was denied without any reasons.
On February 25, 2009 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Randolph Pock, a Board-certified psychiatrist, for a second
opinion examination.2 Dr. Pock was asked whether the accepted factors of employment caused,
aggravated precipitated or accelerated appellant’s psychological disorder and whether she was
capable of performing her regular position. In an April 1, 2009 report, he reviewed the history of
injury, the medical record and the statement of accepted facts. Dr. Pock diagnosed adjustment
disorder with depression and anxiety, rule out major depression. He noted that, although the
Office instructed him to base his opinion only on the compensable factors of employment, the
factors of employment designated as compensable essentially eliminated the many interactions
which appellant, her treating social worker, the examining psychologist and several of her
coworkers described. Dr. Pock concluded that he was essentially asked whether an assigned
route which experiences significant growth or an employing establishment which refuses the
claimants requests for suggestions of how to improve delivery time, constitutes grounds for
appellant’s symptoms. His answer was “No they do not.” Dr. Pock advised that, with the
elimination of all appellant’s significant interactions at work, the “two (token) factors currently
named ‘compensable’ do not explain her depression.” He indicated that he did not feel that the
current statement of accepted facts was a fair representation of appellant’s work situation.
In an April 15, 2009 decision, the Office denied appellant’s claim on the grounds that the
medical evidence did not establish that her emotional condition was causally related to
compensable work factors.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.3
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
2

The February 25, 2009 statement of accepted facts noted three compensable factors of employment. These
were: the assigned route experienced significant growth with the addition of a 400 unit apartment complex; due to
mail sorter malfunction, appellant requested additional time to sort out-of-sequence mail, but overtime was not
allowed; and the employing establishment refused her request for suggestions of how to improve delivery time and
refused a formal route audit.
3

D.L., 58 ECAB 217 (2006).

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results from an employee’s emotional reaction to her regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of her work or
her fear and anxiety regarding her ability to carry out her work duties.4 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.5
ANALYSIS
The Office found three compensable work factors. These were: appellant’s route
experienced significant growth with the addition of a new apartment complex that had about 400
residents; her reaction to having to spend more time sorting and delivering mail that was not
properly sequenced; and the employing establishment’s refusal of her request for suggestions of
how to improve delivery time and the denial of a formal route audit without any reason given.
The Board finds that the evidence supports the Office’s findings on these factors.
However, appellant’s burden of proof is not discharged by establishing compensable
work factors. She must also submit rationalized medical evidence establishing that she has an
emotional condition that is causally related to the accepted compensable employment factor.6 In
a November 9, 2007 report, Dr. Clopton described the events at work when overtime was denied
for a second time. While she diagnosed major depressive disorder and adjustment disorder with
mixed features of emotion and behavior, she provided no specific opinion on the relationship
between the diagnosis and appellant’s work factors. Likewise, while Dr. Gilchrist provided
treatment following appellant’s November 8, 2007 hospitalization and diagnosed other specified
adjustment reactions in various reports, she did not provide an opinion on whether accepted work
factors caused the diagnosed condition. As neither Dr. Clopton nor Dr. Gilchrist provided an
opinion on causal relationship, their reports are insufficient to meet appellant’s burden of proof.7
Dr. O’Hearn diagnosed appellant with probable major depressive disorder, recurrent and
acute stress disorder. While he opined that her behavior of November 8, 2007 was directly
related to her workplace environment, he did not sufficiently explain his conclusion and relate it
to established work factors. Thus, Dr. O’Hearn’s opinion is insufficient to meet appellant’s
burden of proof.8 Appellant also submitted a July 28, 2008 report from a social worker,
4

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

5

Id.

6

Charles D. Gregory, 57 ECAB 322 (2006).

7

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship. Conard Hightower, 54 ECAB 796 (2003).
8

A medical report is of limited probative value on causal relationship if it contains a conclusions regarding causal
relationship which is unsupported by medical rationale. Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

8

Ms. Rudiger. However, social workers are not considered to be physicians under the Act and
their opinions do not represent competent medical evidence.9
The Office referred appellant to Dr. Pock for a second opinion. In an April 1, 2009
report, Dr. Pock diagnosed adjustment disorder with depression and anxiety and possible major
depression. While he noted that he was to base his opinion of causality only on the compensable
factors of employment, he felt that the statement of accepted facts was not a fair representation
of appellant’s workstation. Thus, Dr. Pock concluded that he was essentially asked whether an
assigned route which experiences significant growth or an employing establishment which
refuses the claimants requests for suggestions of how to improve delivery time, constitutes
grounds for appellant’s symptoms. He opined that, with the elimination of all appellant’s
significant interactions at work, the “two (token) factors currently named ‘compensable’ do not
explain her depression.” Dr. Pock did not indicate awareness that three compensable factors
were accepted. The Board finds that it was improper for him to question the Office’s fact
findings as a physician’s function is only to provide opinion on medial questions, not to
determine facts.10 The Office provided Dr. Pock with a statement of accepted facts to assure that
his report was based upon a proper factual background.11 To the extent that Dr. Pock’s opinion
is outside the framework of the statement of accepted facts, it is based on an inaccurate history
and, thus, of diminished probative value.12 The Board notes that he did not address all
compensable factors found by the Office and did not otherwise provide sufficient medical
rationale, based on an accurate history, to support his opinion on causal relationship.
It is well established that proceedings under the Act are not adversarial in nature and that,
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.13 Once the Office undertakes development of
the medical evidence, it has the responsibility to do so in a manner that will resolve the relevant
issues in the case.14 Upon return of the record, it should refer appellant for another second
opinion and obtain a rationalized opinion addressing whether she sustained an emotional
condition caused or aggravated by the compensable employment factors. Following such further
development as the Office deems necessary, it should issue a de novo decision.
9

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007) (social worker is not a “physician” as
defined by section 8101(2); their reports are not competent medical evidence). See 5 U.S.C. § 8101(2).
10

See George Tseko, 40 ECAB 948, 953 (1989) (a physician’s function is only to provide opinions on medical
questions, not to determine facts).
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(December 1994) (when the Office medical adviser, second opinion specialist or referee physician renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use the statement of
accepted facts as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether).
12

See Douglas M. McQuaid, 52 ECAB 382 (2001) (medical reports must be based on a complete and accurate
factual and medical background and medical opinions based on an incomplete or inaccurate history are of little
probative value).
13

Jimmy A. Hammons, 51 ECAB 219 (1999).

14

See Melvin James, 55 ECAB 406 (2004).

9

With regard to appellant’s other allegations, the Board finds that she did not submit
sufficient evidence to establish her allegations that management engaged in a pattern of
harassment, intimidation or discrimination. For harassment or discrimination to give rise to a
compensable disability under the Act, there must be evidence introduced which establishes that
the acts alleged or implicated by the employee did, in fact, occur. As a rule, allegations alone by
a claimant are insufficient to establish a factual basis for an emotional condition claim but rather
must be corroborated by the evidence.15 Mere perceptions of harassment or discrimination are
not compensable; a claimant must establish a basis in fact for the claim by supporting her
allegations with probative and reliable evidence.16 Appellant alleged that her relationship with
Ms. Woods and Ms. Harmon was very hostile and negative. She made general allegations that
she was yelled at and subjected to other unprofessional treatment as a result of her performance.
Appellant also asserted that Ms. Woods made disparaging remarks about her. The Office
reviewed appellant’s allegations of alleged harassment and mistreatment and found that they
were not substantiated or corroborated. The Board notes that she did not provide any specific
examples of how Ms. Woods was negative or hostile towards her. Thus, this allegation is not
accepted as factual. While there is some evidence that Ms. Woods made disparaging remarks
about appellant, the allegations by appellant and the witnesses are general or vague statements as
no specific information was provided to indicate the times, dates and circumstances under which
Ms. Woods statements were made. As such, they constitute mere perceptions or generally stated
assertions of dissatisfaction with a certain superior at work which do not support her claim for an
emotional disability.17 Appellant has not submitted evidence sufficient to establish that
management engaged in a pattern of harassment and intimidation toward her or created a hostile
workplace environment.
The Board further finds that the evidence of record does not establish that the
administrative and personnel actions taken by management in this case were in error and are
therefore not considered factors of employment. An employee’s emotional reaction to an
administrative or personnel matter is not covered under the Act, unless there is evidence that the
employing establishment acted unreasonably.18 Appellant has not presented sufficient evidence
that the employing establishment acted unreasonably or committed error with regard to the
incidents of alleged unreasonable actions involving personnel matters on the part of the
employing establishment.
Appellant alleged that the process of requesting overtime by submitting a Form 3996
(request for additional time) was stressful. She asserted that, when her overtime requests were
not approved or partially approved, it contributed to her emotional condition. Matters relating to
overtime and the assignment of work are administrative functions of a supervisor and are not

15

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).
16

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

17

See Debbie J. Hobbs, 43 ECAB 135 (1991).

18

See Alfred Arts, 45 ECAB 530 (1994).

10

compensable absent error and abuse.19 Ms. Woods noted the process of submitting a Form 3996
and how the need for additional time was determined. The Board finds that Ms. Woods provided
a reasonable explanation of the process and appellant has not submitted sufficient evidence to
establish error or abuse on the part of her supervisors. Also, complaints about the manner in
which a supervisor performs his or her duties or the manner in which a supervisor exercises his
or her discretion fall, as a rule, outside the scope of coverage provided by the Act. This principle
recognizes that a supervisor or manager must be allowed to perform his or her duties and
employees will, at times, dislike the actions taken. Mere disagreement or dislike of a supervisory
or managerial action will not be compensable, absent evidence of error or abuse.20
Appellant also alleged that Ms. Woods interfered with her route bid in October 2006 and
used inappropriate methods to investigate a motor vehicle accident she had in November 2006.
The record reflects that she ultimately received the bid. Appellant submitted evidence regarding
the process in which bids were processed and considered but she did not submit any evidence
clearly corroborating that Ms. Woods acted abusively in this administrative matter in which
appellant received the bid. Ms. Woods explained that appellant was required to provide
documentation that she could perform the bid position as she had been out of work for a long
period of time due to knee surgery. She denied that the bid was awarded to anyone other than
appellant. As appellant has not shown that management erred or acted unreasonably in this
administrative matter, this is not a compensable factor of employment.
Regarding Ms. Woods’ investigation of appellant’s motor vehicle accident, investigations
are considered to be an administrative function of the employer. The employing establishment
retains the right to investigate an employee if wrongdoing is suspected.21 Ms. Woods explained
that appellant did not report the accident in accordance with postal regulations, so she
investigated the accident. Appellant alleged that Ms. Woods inappropriately told the store
manager of the Goodyear store that she had a history of accidents and that he should file a
complaint so she could pursue discipline. While an undated statement from the former manager
of the store that gave some support for appellant’s version of events, the Board notes that this
statement is unsigned and, despite whether Ms. Woods suggested follow-up by the manager,
there is no evidence to support that the investigation by Ms. Woods was abusive or improper
under the circumstances presented. As such, there is no evidence that Ms. Woods engaged in
inappropriate behavior in investigating appellant’s accident. This does not rise to the level of a
compensable employment factor.
While appellant alleged that Ms. Woods interfered with a check issued to her in
June 2007 for health insurance premiums, she had not submitted any evidence to collaborate this
event. Ms. Woods denied any knowledge of this event or ever receiving a check for appellant.
Thus, this allegation is not accepted as factual or having occurred as alleged.

19

See Beverly R. Jones, 55 ECAB 411 (2004).

20

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

21

K.W., supra note 9.

11

Appellant also alleged that her meeting with Ms. Woods on October 16, 2007 regarding
why she failed to make the “five o’clock window” deadline contributed to her condition. While
Mr. Simmons supports appellant’s claim that she had told him she would not make the “five
o’clock window” deadline, she has submitted no evidence to show how Ms. Woods erred or
acted abusively in holding the informal meeting. Ms. Woods explained that the 5:00 p.m.
deadline was employing establishment policy that applied to all employees. Appellant’s
dissatisfaction with perceived poor management constituted frustration from not being permitted
to work in a particular environment or to hold a particular position and is not compensable.22
The Board finds that appellant’s contention regarding this administrative matter is not
compensable.
CONCLUSION
The Board finds that the case is not in posture for decision with regard to whether
appellant sustained an emotional condition causally related to accepted factors of her
employment. The Board affirms the Office’s findings that the other factors alleged by appellant
are not compensable employment factors.

22

Peter D. Butt, Jr., 56 ECAB 117 (2004).

12

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to the Office for further action consistent with this decision of the Board.
Issued: June 21, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

13


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Hempstead, NY, Employer
__________________________________________

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Appearances:
William Bothwell, for the appellant1
No Appearance for the Director

Docket No. 16-0629
Issued: October 19, 2016

Oral Argument August 25, 2016

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 5, 2016 appellant, through his representative, filed a timely appeal from a
November 12, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant’s fall on March 3, 2015 occurred in the performance of
duty.
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.

FACTUAL HISTORY
On March 11, 2015 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 3, 2015 he “just fainted.” The reverse of the claim
form indicated that he stopped working on March 3, 2015. Appellant submitted a note dated
March 3, 2015 from Dr. Bryan Tran, Board-certified in emergency medicine, reporting that
appellant was treated at the emergency room on March 3, 2015 and could return to work on
March 6, 2015. By report dated March 4, 2015, Dr. Daniel Reinharth, a Board-certified internist,
diagnosed syncope and collapse, hyperglycemia, and concussion.
By letter dated March 18, 2015, OWCP requested that appellant submit additional factual
and medical evidence to support the claim for compensation. In a report dated March 6, 2015,
Dr. David Podwall, a Board-certified neurologist, reported that appellant had a syncopal episode
on March 3, 2015, while standing outside his truck, with no preceding symptoms. He indicated
that appellant hit his head and had been having headaches since that time. Dr. Podwall noted a
past medical history that included anxiety, asthmatic bronchitis, hyperglycemia, hypertension,
and mitral valve prolapse. He also listed syncope and collapse under his medical history without
further explanation. Dr. Podwall wrote that appellant “while in his usual capacity as a postal
worker had an episode of unprovoked syncope. He was evaluated in the hospital and was
released. Dr. Podwall’s neurologic examination is nonfocal. As far as neurological causes of
syncope, one would be a potential seizure though no stigmata of seizure were recorded. Less
likely would be a stroke as he had no focality.”
In a statement dated March 27, 2015, appellant indicated that he was delivering mail at
approximately 10:30 a.m. on March 3, 2015, and while he was standing at the back door of his
truck he fainted and could not remember anything until he was in an ambulance. He asserted
that he did not have a history of fainting or seizures.
Appellant submitted a report dated March 6, 2015 from Dr. Marco Papaleo, a Boardcertified cardiologist, who reported a medical history of asthma, hypertension, hyperlipidemia,
probably borderline diabetes, active smoking, and family history of heart disease. Dr. Papaleo
indicated that appellant’s reported syncope was his first episode and it was not preceded by
symptoms. He provided results on examination, noting that appellant had a murmur in the mitral
area, but it was not significant and most likely was not the cause of the syncope.
In a report dated March 19, 2015, Dr. Antonio Moretta, a Board-certified internist,
provided a history of injury and results on examination. He wrote that, although the vast
majority of syncope are vasovagal, especially in the absence of structural heart disease,
appellant’s presentation was concerning. Dr. Moretta indicated that appellant should have an
ischemic evaluation to assess valvular abnormalities. By report dated March 27, 2015,
Dr. Papaleo reported appellant’s cardiac positron emission tomography (PET) scan was negative
for ischemia and an echocardiogram showed a structurally normal heart.
By decision dated April 23, 2015, OWCP denied the claim for compensation. It found
that the evidence showed the fall on March 3, 2015 was an idiopathic fall from a
nonoccupational pathology. Thus, appellant did not sustain an injury in the performance of duty.

2

On May 22, 2015 appellant requested an oral hearing before an OWCP hearing
representative. A hearing was held on October 5, 2015. In a report dated May 14, 2015,
Dr. Podwall indicated that an April 5, 2015 brain magnetic resonance imaging (MRI) scan was
negative, as was an electroencephalogram (EEG). He indicated that appellant’s headaches and
reported loss of smell were causally related to hitting his head in the March 3, 2015 fall.
Appellant submitted an October 26, 2015 report from Dr. Reinharth, who indicated that
he had treated appellant for conditions that included hypertension and hyperlipidemia.
Dr. Reinharth opined, “To my knowledge his preexisting condition did not cause him to faint on
[March 3, 2015] nor have I known him to faint at any other time. In addition, it is my
understanding that his head injury was consistent with him hitting his head on a mail truck.”
By decision dated November 12, 2015, the hearing representative affirmed the April 23,
2015 decision. He found that appellant’s medical history included hypertension and “past
syncope (reported by Dr. Podwall)” as well as arrhythmia and mitral insufficiency. According to
the hearing representative, the treating physicians did not explain whether any positive findings
on diagnostic tests caused the claimant to faint, and Dr. Reinharth’s opinion that preexisting
conditions were not causative was not supported by rationale.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning FECA, that the claim was timely filed, that an injury was
sustained in the performance of duty as alleged, and that any disability or medical condition for
which compensation is claimed is causally related to the employment injury.3
It is a well-settled principle of workers’ compensation law, and the Board has so held,
that an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology
causes an employee to collapse and to suffer injury upon striking the immediate supporting
surface, and there is no intervention or contribution by any hazard or special condition of
employment -- is not within coverage of FECA.4 Such an injury does not arise out of a risk
connected with the employment and is, therefore, not compensable. However, as the Board has
made equally clear, the fact that the cause of a particular fall cannot be ascertained or that the
reason it occurred cannot be explained, does not establish that it was due to an idiopathic
condition.5
This follows from the general rule that an injury occurring while in the performance of
duty is compensable unless the injury is established to be within an exception to such general
rule.6 OWCP has the burden of proof to submit medical evidence showing the existence of a
3

Steven S. Saleh, 55 ECAB 169 (2003).

4

Carol A. Lyles, 57 ECAB (2005).

5

See M.M., Docket No. 08-1510 (issued November 25, 2008).

6

Dora Ward, 43 ECAB 767 (1992).

3

personal, nonoccupational pathology if it chooses to make a finding that a given fall is idiopathic
in nature.7 If the record does not establish that the particular fall was due to an idiopathic
condition, it must be considered as merely an unexplained fall, one which is distinguishable from
a fall in which it is definitely proved that a physical condition preexisted and caused the fall.8
ANALYSIS
In the present case, appellant alleged that he fell while in the performance of duty on
March 3, 2015. OWCP does not contest that appellant fell while performing his job duties as a
mail carrier. The evidence indicated that he was on his mail route near his employing
establishment vehicle when he lost consciousness and fell.
OWCP found that appellant had not established that the incident was an unexplained fall.
The general rule, as discussed above, is that a fall while in the performance of duty is an
unexplained fall, unless the evidence establishes that the fall was due to a personal,
nonoccupational pathology. It is not appellant that must show it was an unexplained fall, but
OWCP that must show it was an idiopathic fall that was caused by a nonemployment-related
condition.
The Board finds that the record in this case does not support a finding that the fall was an
idiopathic fall due to a personal, nonoccupational pathology. There is no probative evidence as
to the cause of the loss of consciousness on March 3, 2015. Dr. Podwall referred to an
“unprovoked syncope” with no preceding symptoms in his March 6, 2015 report. While the
hearing representative refers to appellant as having a prior syncope, per Dr. Podwall, it is not
clear from his reports that appellant had any prior history of syncopal episodes. Dr. Podwall lists
syncope under his medical history, but he may have been referring to the March 3, 2015 incident,
and Dr. Papaleo specifically indicated in his March 6, 2015 report that this was the first syncopal
episode. Moreover, having a medical history of preexisting conditions does not in itself establish
that a fall was idiopathic.9
The only physician providing an opinion regarding the cause of the fall was
Dr. Reinharth in his October 26, 2015 report. Dr. Reinharth opined that a preexisting condition
did not cause the fall on March 3, 2015.
The Board finds the evidence of record does not establish that the fall on March 3, 2015
was an idiopathic fall. As noted above, if the evidence does not show that the fall was
idiopathic, it is a compensable unexplained fall. OWCP has not established the fall was
idiopathic in this case. On return of the case record, it should determine the nature and extent of
any injury or disability resulting from the fall on March 3, 2015. After such further development
as OWCP deems necessary, it should issue a de novo decision.

7

P.P., Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

8

John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988).

9

L.N., Docket No. 06-2053 (issued April 9, 2007).

4

CONCLUSION
The Board finds that the March 3, 2015 fall was an unexplained fall that occurred in the
performance of duty. The case is remanded to properly determine the nature and extent of any
injury or disability resulting from the unexplained fall.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 12, 2015 is reversed and the case remanded to OWCP
for further action consistent with this decision of the Board.
Issued: October 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Canoga Park, CA, Employer
__________________________________________

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Docket No. 08-977
Issued: September 12, 2008

Appearances:
Thomas Martin, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2008 appellant, through his representative, filed a timely appeal from a
November 16, 2007 nonmerit decision of the Office of Workers’ Compensation Programs
denying his request for reconsideration on the grounds that it was untimely filed and failed to
establish clear evidence of error. Because more than one year has elapsed between the last merit
decision dated April 22, 2004 and the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the November 16, 2007 nonmerit decision.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On March 12, 1998 appellant, then a 41-year-old letter carrier, filed an occupational
disease claim alleging that he developed upper extremity and lower back conditions as a result of
employment activities. He stopped working on April 20, 1998. The Office accepted the claim
for right trapezius strain, bilateral medial epicondylitis, bilateral wrist tendinitis and low back
strain. Appellant returned to work without restrictions on September 23, 1998.
On December 12, 2003 appellant filed a claim for a recurrence of disability.1 He stated
that he was unsure of the date of the alleged recurrence because his accepted conditions had
never resolved, and he had worked in “chronic pain always.” Appellant indicated that he was no
longer working at the employing establishment and that he attended El Camino College.
On April 22, 2004 the Office denied appellant’s recurrence claim, finding that the
evidence did not establish that his claimed disabling condition was causally related to his
accepted work injury.
Appellant submitted a June 22, 2004 report from Dr. Mark Goldstein, a Board-certified
osteopath, specializing in the area of family practice. Dr. Goldstein stated that appellant was
“alert, oriented x4, and in no acute distress.” He described the history of the occupational work
injury, as related to him by appellant, noting his complaints of cumulative trauma to his wrists,
hands, elbows, feet, ankles, shoulder and low back. Dr. Goldstein diagnosed fibromyalgia,
bilateral bunions, left knee cyst, scoliosis and chronic left index mallet finger, and indicated that
all of the diagnosed conditions were nonoccupational. He opined that appellant’s symptoms
were attributable to his fibromyalgia and that there was no causal relationship between
appellant’s diagnoses and his prior work as a letter carrier.
On July 11, 2007 appellant, through his representative, requested reconsideration. The
representative acknowledged that appellant’s request was submitted more than a year after the
last merit decision, but contended that the time limitation should be tolled under 5 U.S.C. § 8122,
due to his mental incapacity, and stayed due to the filing of his December 12, 2003 emotional
condition claim. The representative cited as error the Office’s failure to process appellant’s
occupational disease claim for stress.
Appellant submitted a September 6, 2006 report from Dr. Louis Ragonetti, a Boardcertified psychiatrist, who stated that he had been treating appellant since 1995 for “severe
depression and anxiety,” which he opined was caused “by a variety of circumstances including
work stress and personal issues such as the death of a young daughter.” Dr. Ragonetti also
opined that appellant “was too dysfunctional in the year 2004 to respond appropriately and in a
timely way to correspondence related to his workers’ compensation case.”
In a decision dated November 16, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and failed to establish clear evidence of
error. It found that the evidence was insufficient to establish that appellant was incompetent
1

Appellant also filed an occupational disease claim on December 12, 2003 alleging work-related stress
(No. 132095069). The emotional condition claim was denied by the Office in a decision dated February 23, 2004.

2

within the meaning of 20 C.F.R. § 10.607(c), so as to toll the one-year time limitation. The
Office also found appellant’s emotional condition claim was properly developed and therefore
his contention that the Office committed error in that regard was without merit.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.3 In implementing the one-year time
limitation, the Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.4
When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.5 The Office procedures state that the Office will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s application for review shows clear evidence of error on the part of the Office.6 In this
regard, the Office will limit its focus to a review of how the newly submitted evidence bears on
the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record,
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

4

5

Veletta C. Coleman, 48 ECAB 367 (1997); Larry L. Lilton, 44 ECAB 243 (1992).
Id.

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.”
20 C.F.R. § 10.607(b).
7

See Nelson T. Thompson, 43 ECAB 919 (1992).

8

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

3

probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.9 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office, such that the Office abused its discretion in denying merit review in the face
of such evidence.10
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.11 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.12
As appellant’s July 11, 2007 request for reconsideration was submitted more than one year after
April 22, 2004, the date of the last merit decision of record, it was untimely. Consequently, he
must demonstrate clear evidence of error by the Office in denying his recurrence claim.13
Medical evidence submitted subsequent to the April 22, 2004 decision consists of a
June 22, 2004 report from Dr. Goldstein and a September 6, 2006 report from Dr. Ragonetti.
Neither report is sufficient to establish clear evidence of error on the part of the Office.
On June 22, 2004 Dr. Goldstein diagnosed fibromyalgia, bilateral bunions, left knee cyst,
scoliosis and chronic left index mallet finger. He did not address whether appellant was
disabled, but he opined that there was no causal relationship between appellant’s diagnosed
conditions and his prior work as a letter carrier. The Board finds that Dr. Goldstein’s report does
not establish error, but rather supports the Office’s decision denying appellant’s claim that he
experienced a recurrence of disability causally related to his accepted injury.
On September 6, 2006 Dr. Ragonetti opined that appellant’s “severe depression and
anxiety” was caused “by a variety of circumstances including work stress and personal issues
such as the death of a young daughter.” He also opined that appellant “was too dysfunctional in
the year 2004 to respond appropriately and in a timely way to correspondence related to his
workers’ compensation case.” Dr. Ragonetti’s report does not contain an opinion on the relevant
issue, namely, whether appellant was disabled as a result of his accepted injury. Rather, it
addresses his depression, a condition which was not accepted in this case.14 Therefore, the report
lacks probative value and is not sufficient to establish error on the part of the Office.

9

Id.

10

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, 57 ECAB 292 (2005).

13

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

14

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value. Michael E. Smith, 50 ECAB 313 (1999).

4

The term “clear evidence of error” is intended to represent a difficult standard. The
submission of a detailed well-rationalized medical report which, if submitted before the denial
was issued, would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.15 The evidence must prima facie shift the weight of the evidence in
favor of appellant.16 None of the medical reports submitted manifests on its face that the Office
committed an error in denying appellant’s recurrence claim. Moreover, none contains an opinion
that appellant was disabled as a result of his accepted conditions. Thus, the reports are
insufficient to establish clear evidence of error.
Appellant’s representative acknowledged that his reconsideration request was submitted
more than a year after the last merit decision, but contended that the time limitation should be
tolled under 5 U.S.C. § 8122, due to appellant’s mental incapacity and lack of representation.17
The Board finds this argument to be without merit. There is no medical evidence of record that
contains an opinion that appellant was mentally incompetent during the period in question.
Dr. Ragonetti stated that he suffered from severe depression and anxiety. He also opined that
appellant was too dysfunctional in the year 2004 to respond appropriately and in a timely way to
correspondence related to his workers’ compensation case. However, Dr. Ragonetti did not
indicate that appellant’s condition rendered him mentally incompetent.
Moreover,
Dr. Goldstein’s June 22, 2004 report reflects that appellant was “alert, oriented x4, and in no
acute distress” at that time. Appellant was able to describe the history of his occupational work
injury, noting his complaints of cumulative trauma to his wrists, hands, elbows, feet, ankles,
shoulder and low back. There was no evidence that he was unable to communicate, or that he
was otherwise incompetent and unable to satisfy the time requirements for requesting
reconsideration within one year of the Office’s decision.18
Appellant’s representative also contended that the Office erred by failing to process
appellant’s December 12, 2003 emotional condition claim and argued that the time limitation for
filing a reconsideration request in the instant case should be stayed due to the filing of his other
claim. Procedures in appellant’s emotional condition claim are not relevant to the issues in this
case and the filing of his emotional condition claim, without actual evidence of appellant’s actual
mental incompetence, is insufficient to stay the time limitation for filing a reconsideration
request.19

15

Joseph R. Santos, 57 ECAB 554 (2006).

16

See Darletha Coleman, supra note 8.

17

Time limitations for filing claims for compensation under the Act do not run against an incompetent individual
while he is incompetent and has no duly appointed legal representative. 5 U.S.C. § 8122(d)(2).
18

Office regulations provide that the one-year time limit to file a reconsideration request does not include any
time following the decision that the claimant can establish (through medical evidence) an inability to communicate
and that his testimony would be necessary. See 20 C.F.R. § 10.607(c). The Board notes that appellant has not
provided any probative medical evidence establishing that he was unable to communicate, or any evidence that his
testimony would be necessary for a proper determination of his case.
19

Office records reflect that appellant’s emotional condition claim was processed and a final decision was issued
on February 23, 2004 denying the claim.

5

As the evidence submitted by appellant is insufficient to prima facie shift the weight of
evidence in favor of the claimant and raise a substantial question as to the correctness of the
Office’s last merit decision, he has not established clear evidence of error.20
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the November 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

See Veletta C. Coleman, supra note 4.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cabo Rojo, PR, Employer
__________________________________________

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Appearances:
Susan Cordero-Ladner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0450
Issued: June 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On December 24, 2014 appellant, through counsel, filed a timely appeal of a July 8, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Since more than
180 days has elapsed between the last merit decision on February 11, 2014 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, under 5 U.S.C.
§ 8128(a).
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 19, 2013 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging injuries as a result of his federal employment. On the claim
1

5 U.S.C. § 8101 et seq.

form, he stated that, as part of his job routine, he must stand and walk constantly. Appellant
indicated that he must twist, bend, or stretch frequently because of the position of the racks
where the letters and packages are located. He stated there was repetitive fingering, handling,
lifting, pulling, pushing, and reaching in his job. Appellant described his injuries as chronic
cervical, dorsal and lumbosacral pain, L5-S1 herniated disc, L5 radiculopathy, and bilateral
carpal tunnel syndrome, pain and numbness in the legs. In addition, he noted “severe major
depression” and stated that there was constant stress from work and his body pain.
In a narrative statement, appellant again discussed the physical requirements of his
position. He stated that he had to stand and walk, and that his job involved twisting, bending,
and crouching because of the position of the racks. According to appellant, there were packages
weighing up to 40 pounds and there was frequent fingering, handling, lifting, pulling, pushing,
and reaching. The injuries sustained included cervical, dorsal, and lumbosacral pain, numbness
and pain in the legs, arms, and hands, herniated L5-S1 disc, left L5 radiculopathy, bilateral carpal
tunnel syndrome, and patellofemoral syndrome in the right leg. As to an emotional condition,
appellant stated that this was caused by his physical condition and pain, and stress due to a heavy
workload.
OWCP requested that appellant submit additional evidence to support his claim, by letter
dated September 10, 2013. Appellant submitted medical evidence with respect to both physical
and emotional conditions. In a note dated March 8, 2013, two coworkers of appellant requested
that the employing establishment investigate a March 5, 2013 incident involving appellant and a
supervisor. The record contains an undated note from appellant alleging that on March 5, 2013 a
supervisor yelled and pointed a finger at his chest. In a March 15, 2013 letter, the employing
establishment controverted appellant’s claim for a “mental illness.” It contended that the
incident did not occur as alleged by appellant. The record contains a March 5, 2013 statement
from a supervisor denying that she pointed at appellant, or harassed him. In addition, appellant
submitted a statement alleging that he had been denied overtime in February 2013, and he felt his
supervisors did not treat him with respect.
As to medical evidence, appellant submitted a report dated May 13, 2013 from
Dr. Manuel Martinez, a Board-certified physiatrist, who indicated that appellant had chronic
neck pain and carpal tunnel syndrome and was disabled for the letter carrier position. In a report
dated May 20, 2013, Dr. Japhet Montes, a psychiatrist, opined that appellant was unable to work
due to severe major depression.
By decision dated February 11, 2014, OWCP denied appellant’s claim, finding that,
while appellant had filed a claim for an emotional condition from “both the physical
requirements of [his] job and stress of [his] job,” no compensable work factors were established.
It found the March 5, 2013 incident was not a compensable work factor,2 nor were denied
requests for leave or overtime in February 2013.
In a letter dated June 12, 2014, appellant, through counsel, requested reconsideration of
the February 11, 2014 decision. Counsel noted that appellant had alleged physical injuries,
2

Appellant filed a traumatic injury claim for an emotional condition from alleged incidents on March 5, 2013.
That claim is not before the Board on this appeal.

2

including carpal tunnel syndrome, disc protrusion, and radiculopathy. She stated that his claim
was based on the performance of his job duties, which required repetitive activity. Counsel
argued that diagnosed physical and emotional conditions were causally related to appellant’s job
duties. In addition, she argued that his injuries “are causally related to the work he performs and
are within the scope of compensable work factors.” Appellant also resubmitted medical
evidence. New medical evidence included hospital laboratory reports dated April 3, 2014.
By decision dated July 8, 2014, OWCP declined to review the merits of the claim. It
stated that evidence was duplicative and counsel’s statements were not germane to the issue
because she did not outline the specific stress claimed to have caused appellant’s emotional
condition.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(i) shows that OWCP erroneously applied or interpreted a specific point of
law; (ii) advances a relevant legal argument not previously considered by OWCP; or
(iii) constitutes relevant and pertinent evidence not previously considered by OWCP.”4 20
C.F.R. § 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in 20 C.F.R. § 10.606(b)(3) will be denied by OWCP without review of the
merits of the claim.5
ANALYSIS
In the present case, appellant filed a Form CA-2 on August 19, 2013 in which he clearly
claimed both physical injuries and an emotional condition. He alleged that he sustained chronic
cervical, dorsal, and lumbosacral pain, L5-S1 herniated disc, L5 radiculopathy, and bilateral
carpal tunnel syndrome. As to an emotional condition, appellant alleged both a consequential
injury from the physical injuries, as well as to job stress.
The February 11, 2014 OWCP decision found that appellant had alleged an emotional
condition due to the “physical requirements” and stress of the job. However, OWCP found that
appellant had not established compensable work factors. The decision discussed a March 5,
2013 incident with a supervisor and requests for overtime and leave, without discussing the
claim for physical injuries resulting from performance of job duties.
On reconsideration, counsel argues that appellant did allege the performance of his job
duties and compensable work factors as to his claim for physical and emotional conditions. The
Board finds that appellant has advanced a new and relevant legal argument with respect to the
3

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
4

20 C.F.R. § 10.606(b)(3).

5

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

3

February 11, 2014 decision. In that decision, OWCP failed to acknowledge that appellant had
discussed the performance of specific assigned duties and the repetitive activity involved,
including standing, walking, twisting, bending, reaching, and lifting. It is well established that
the performance of regularly assigned duties are compensable work factors.6 When a claimant
alleges both physical injuries from assigned duties and an emotional condition, OWCP must
properly adjudicate all of the issues presented.7 Appellant alleged that the performance of
repetitive activity from his assigned duties resulted in diagnosed injuries. OWCP did not address
the claim for injuries resulting from the identified physical duties of a letter carrier.
The Board accordingly finds that appellant’s application for reconsideration met the
requirements of 20 C.F.R. § 10.606(b)(3)(ii). Appellant advanced a new and relevant legal
argument as to the compensability of the work factors alleged. He was entitled to a proper merit
decision on the claim. On return of the case record OWCP should issue a merit decision with
respect to the claim for physical and emotional conditions.
CONCLUSION
The Board finds that appellant was entitled to a merit review of his claim for
compensation.

6

See Trudy A. Scott, 52 ECAB 309 (2001); see also D.F., Docket No. 13-2036 (issued February 26, 2014).

7

See, e.g., J.C., Docket No. 13-202 (issued May 6, 2013) (the hearing representative found an emotional
condition was not established, but remanded the case for further development of the medical evidence because the
claimant had identified the work duties to which he attributed his physical injuries).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 8, 2014 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: June 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 15-576
Issued: June 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 22, 2015 appellant, through counsel, filed a timely appeal from the
December 2, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has established that her left knee condition is causally
related to the December 10, 2009 employment injury.
FACTUAL HISTORY
On December 10, 2009 appellant, a 57-year-old part-time flexible clerk, sustained an
injury in the performance of duty when she fell in the snow while delivering mail. OWCP

1

5 U.S.C. § 8101 et seq.

accepted her claim for a right anterior cruciate ligament tear, a right medial meniscus tear, and a
right rotator cuff strain. It also accepted right intersubstance tears of the rotator cuff tendon.
Appellant underwent authorized right knee surgery on February 25, 2010. OWCP issued
appellant a schedule award on December 20, 2011 for an eight percent impairment of her right
lower extremity and a four percent impairment of her right upper extremity.
On July 10, 2013 appellant asked OWCP to expand her claim to include her left knee
condition as a consequential injury resulting from favoring her injured right side. She explained
that she returned to work at another post office on March 1, 2013. After approximately eight
weeks of fulfilling her assigned clerk duties, appellant began to have sharp pains in both knees
with burning sensations, swelling, and charley horse pains in her legs and thighs. She relied
heavily on her left knee to be a stabilizing force to help her accomplish her work.
An imaging study obtained on July 3, 2013 revealed a complete oblique tear through the
posterior horn of the left medial meniscus, as well as periarticular soft-tissue swelling and
edema. On July 5, 2013 Dr. Ian Lin, the attending Board-certified orthopedic surgeon,
recommended a diagnostic left knee arthroscopy and medial meniscectomy. He observed:
“With the history that she didn’t have any pain in her knee until she began work in March and
the fact that she does a lot of twisting and turning on that left knee and trying to be
overprotective of the right knee, I think this is a work-related condition.”
An OWCP medical adviser reviewed appellant’s medical record and noted that if a
consequential left knee condition had developed, it seemed medically improbable that no care
provider had even discussed a left knee complaint since the 2009 employment injury. As
recently as June 24, 2013, Dr. Lin did not mention, even in passing, that appellant had any left
knee pain.
OWCP later received a May 24, 2013 report from Dr. Philip D. Sundquist, Boardcertified in family medicine, who noted that appellant returned to work in March “and since then
her knees have been hurting again.”
In a decision dated February 27, 2014, OWCP denied appellant’s consequential injury
claim. It found that medical evidence did not support that any left knee condition was related to
the December 2009 employment injury or to any overcompensation due to her right knee
condition. OWCP advised appellant that if she felt that she sustained a left knee condition due to
work factors after the December 2009 injury, she should file the appropriate claim form.
During a telephonic hearing on March 12, 2014, appellant testified that on May 27, 2013
she was waiting on a customer at the front line counter. As she pulled a package across the
counter to the scale, she felt a painful pop and her left knee locked, causing her to stumble and
nearly fall. An OWCP hearing representative observed that appellant appeared to be describing
a new traumatic workplace injury. Asked whether that made sense, appellant’s representative
stated, “Yes, it does.”
Dr. Peter D. Wirtz, a Board-certified orthopedic surgeon and second opinion physician,
evaluated appellant and reviewed her medical record on April 8, 2014. Appellant informed him
that she returned to employment activity on March 1, 2013 and was okay for 10 weeks. Then, on
2

May 1, 2013 both her knees developed pain. Appellant also noticed that slipping and twisting
produced symptoms. An imaging study showed cartilage tear. Dr. Wirtz commented: “This
recent symptomatology to the left knee relates by her history, May 1, 2013 to current.” It was
Dr. Wirtz’s opinion that the etiology of appellant’s left knee symptomatology, as noted in
Dr. Lin’s examination just prior to the July 3, 2013 imaging study, was indicative of a natural
degenerative process in the knee joint. He noted no specific traumatic history of initiation of
these symptoms. As for using the left lower extremity in favor of her symptomatic right lower
extremity, Dr. Wirtz observed that the left lower extremity was free of symptoms for an extended
period of time to become symptomatic in May 2013.
In a decision dated December 2, 2014, an OWCP hearing representative affirmed the
February 27, 2014 denial of appellant’s consequential injury claim.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from a personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of her claim by the weight of the
evidence,3 including that she sustained an injury in the performance of duty and that any specific
condition or disability for work for which she claims compensation is causally related to that
employment injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an

2

5 U.S.C. § 8102(a).

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

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

independent, intervening cause attributable to the employee’s own intentional conduct.9
Disability resulting from surgery or treatment authorized by OWCP is compensable.10
ANALYSIS
Appellant has asked OWCP to expand its acceptance of her December 10, 2009 injury
claim to include her left knee condition, diagnosed as a complete oblique tear through the
posterior horn of the left medial meniscus. She therefore has the burden to establish that her left
knee condition was causally related to her December 2009 employment injury.
However, appellant does not attribute her left knee condition to the December 2009 work
injury. She explained that she returned to work in March 2013, and after approximately eight
weeks of fulfilling her assigned clerk duties, she began to have sharp pains in both knees.
Appellant stated that she relied heavily on her left knee to be a stabilizing force to help her
accomplish her work.
Appellant told Dr. Lin, her orthopedic surgeon, that she did not have any pain in her left
knee until she began to work again in March 2013 and did a lot of twisting and turning on her
left knee trying to be overprotective of her right knee. She told Dr. Sundquist, the family
physician, that she started back to work in March 2013, and since then, her knees began hurting.
At the March 12, 2014 hearing, appellant described a traumatic left knee injury. After
returning to work, she was waiting on a customer at the front line counter on May 27, 2013. As
she pulled a package across the counter to the scale, she felt a painful pop and her left knee
locked, causing her to stumble and nearly fall. Appellant’s counsel agreed that appellant
appeared to be describing a new traumatic workplace injury.
Thus, when Dr. Lin noted that appellant’s left knee condition was work related, he was
not attributing her left knee condition to the December 2009 work injury. It appears to the Board
that he was referring instead to appellant’s history of not having any left knee pain until she
returned to work in March 2013. Dr. Lin was supporting a new work injury.
An OWCP medical adviser found it medically improbable that a consequential left knee
injury had arisen when no care provider had even mentioned a left knee complaint since the 2009
employment injury. Dr. Wirtz, the second opinion orthopedic surgeon, was of the opinion that
appellant’s left knee symptomatology beginning May 1, 2013 was indicative of a natural
degenerative process. He noted no specific traumatic history that began these symptoms.
Dr. Wirtz cast doubt on the possibility that appellant developed her symptoms from favoring the
right leg because the left leg had been free of symptoms for an extended a period of time.
The Board finds that appellant has not met her burden to establish that her left knee
condition was causally related to her December 10, 2009 employment injury. Appellant has not
9

John R. Knox, 42 ECAB 193 (1990); Lee A. Holle, 7 ECAB 448 (1955).

10

Carmen Dickerson, 36 ECAB 409 (1985) (this is so even though the surgery or treatment was not for an
employment-related condition).

4

submitted a well-rationalized medical opinion to establish that her left knee condition was a
natural consequence flowing from the December 10, 2009 work injury. The Board will therefore
affirm OWCP’s December 2, 2014 decision denying her consequential injury 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 her burden to establish that her left knee
condition was causally related to her December 10, 2009 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 9, 2015
Washington, DC

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

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

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

5