United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
NETWORK DISTRIBUTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0101
Issued: December 15, 2021

Case Submitted on the Record

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

JURISDICTION
On October 29, 2020 appellant, through counsel, filed a timely appeal from a May 26, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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.

3
Appellant submitted additional evidence to OWCP following the May 26, 2020 decision. However, the Board’s
Rules of Procedures provides: “The Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for
the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective March 20, 2019, as he no longer had
disability or residuals causally related to his accepted September 26, 2017 employment injury; and
(2) whether appellant has met his burden of proof to establish continuing disability or residuals
causally related to his accepted September 26, 2017 employment injury on or after
March 20, 2019.
FACTUAL HISTORY
On September 28, 2017 appellant, then a 70-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that, on September 26, 2017, he sustained injuries to the right hip and
buttocks when an all-purpose container struck his left hip and he fell on his right hip, while in the
performance of duty. He stopped work on that date.
A November 6, 2012 magnetic resonance imaging (MRI) scan of appellant’s lumbar spine
interpreted by Dr. Thomas Chayapruks, a Board-certified diagnostic radiologist, revealed
advanced multilevel degenerative changes, most severe at L2-3 and L4-5.
A September 27, 2017 MRI scan of appellant’s hips, interpreted by Dr. Antoni J. Parellada,
a Board-certified diagnostic radiologist, revealed end-stage left hip joint osteoarthritis with
subchondral marrow edema and diffuse maceration of the labrum and moderate right hip joint
osteoarthritis.
In October 13, 2017 reports, Dr. Christopher Selgrath, Board-certified in orthopedic
surgery, noted that he had treated appellant over the years for osteoarthritis of the left hip. He
explained that appellant’s condition was worsened by the work-related accident of September 26,
2017, and that appellant had an acute aggravation of preexisting osteoarthritis of the left hip and
joint with new acute disc injury of the lumbar spine. Dr. Selgrath’s diagnoses included: primary
osteoarthritis of the left hip; contusion of left hip, initial encounter; strain of lumbar region, initial
encounter; and left hip pain. He noted that there appeared to be no acute edema soft tissue
abnormality on the left hip MRI scan and that appellant had a mild-to-moderate contusion, with
an anticipated full recovery within four to six weeks. Dr. Selgrath explained that appellant’s
computerized tomography (CT) and MRI scans were consistent with preexisting end-stage
degenerative joint disease of the left hip, which could have flared up due to temporary aggravation
by the recent trauma; however, he indicated that he did not believe the work-related injury had
anything to do with causing the abnormalities or contributing to any further damage.
A November 3, 2017 MRI scan of the lumbar spine, read by Dr. Joel Swartz, a Boardcertified diagnostic radiologist, demonstrated disc desiccation with disc bulging in the lumbar
spine, facet arthritis and neuroforaminal stenosis, posterior ligamentous thickening resulting in
severe-to-critical canal stenosis at L2-3, no fracture, dislocation, or focal disc herniation, and
borderline congenital stenosis.
On November 20, 2017 OWCP accepted the claim for temporary aggravation of unilateral
primary osteoarthritis of the left hip, contusion of the left hip, and lumbar spine strain. It paid
appellant compensation for disability from work on the supplemental rolls from November 11,
2017 to June 8, 2018.
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In a March 1, 2018 report, Dr. Laura Ross, an attending osteopathic Board-certified
orthopedic surgeon, provided a detailed history of the September 26, 2017 employment injury.
She noted that appellant had back issues in 2012, left hip issues since 2015, and that at the time of
the September 26, 2017 employment incident he was scheduled to undergo left hip replacement
surgery. Dr. Ross diagnosed left hip osteoarthritis and contusion, lumbar spine sprain/strain,
lumbar spine disc herniations, thoracolumbar radiculopathy, and lumbar radiculopathy. She
opined that the conditions were a direct result of the work incident. Dr. Ross explained that,
although the claimant had a history of previous disc herniation at L2 -3 and L4-5, the conditions
were exacerbated by the work incident. She explained that she had compared the MRI scans from
2012 and 2017, and there was objective worsening of the disc herniations at these levels in addition
to worsening disc degeneration at L1-2, L3-4, and L5-S1. Dr. Ross further explained that the
work-related incident involved the impact and the trauma of being struck by a power jack on the
left side, causing appellant to fall on a concrete floor on his right side from a standing position,
which led to worsening of the underlying disc herniations and overall disc degeneration of the
lumbar spine that was objectively demonstrated on the MRI scans performed prior to and following
the incident. She noted that appellant had new complaints of persistent and severe pain in the left
leg, left lateral thigh, left buttock region, and radiation of symptoms down the left leg and into the
lower leg and foot. Dr. Ross indicated that, although appellant had underlying degenerative joint
disease of the left hip and was already scheduled to undergo a left hip replacement prior to his
injury, “his symptoms are not typical to symptoms of degenerative joint disease and are not
attributed to the underlying condition.” She opined that the “aforementioned injuries can be
directly attributed to the work-related incident that occurred on September 26, 2017.” Dr. Ross
explained that she relied upon objective medical evidence, including multiple diagnostic studies
of the lumbar spine, pelvis, and hips, correlated by her own physical examinations, which were
consistent with appellant’s description of the injury.
An April 17, 2018 electromyography (EMG) scan interpreted by Dr. Brad Tinkelman,
Board certified in neurology, revealed ongoing left L4-5 radiculopathy and underlying sensory
motor neuropathy, likely due to age and wear.
On October 1, 2018 OWCP referred appellant to Dr. Robert F. Draper, a Board-certified
orthopedic surgeon for a second opinion evaluation to determine the status of appellant’s accepted
conditions. Dr. Draper was also asked to address whether appellant had preexisting left hip
osteoarthritis, L2-3, L4-5 lumbar disc pathology, with left lower extremity radiculitis, which were
caused or temporarily/permanently aggravated by the accepted employment injury.
In an October 26, 2018 report, Dr. Draper noted appellant’s history of injury and medical
treatment. He concluded that appellant’s accepted medical conditions from the September 26,
2017 employment injury had resolved. Dr. Draper explained that the work injury did not produce
a permanent aggravation of the preexisting degenerative disc disease of the lumbar spine or the
underlying osteoarthritis of the left hip. He noted that his opinion was based upon his review of
imaging studies which did not show any evidence of fracture or dislocation, and no traumatic
pathology. Dr. Draper opined that “[a]ll of the pathology evidence on the imaging studies are
preexisting conditions. It is my opinion that the preexisting conditions are not materially worsened
by this accident.” He explained that appellant had a temporary aggravation of the preexisting
conditions of the low back and the left hip, which would last two to four weeks, at most six months,
and not years. Dr. Draper advised that any discomfort in these areas lasting longer than six months
was due to preexisting conditions, not the employment injury, and that appellant’s degenerative
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conditions had returned to the preinjury level according to the pathology documented on the
imaging studies.
In a November 1, 2018 report, Dr. Ross reiterated that appellant suffered from a series of
degenerative conditions to the spine at the L2-3 and L4-5 levels, as well as degenerative joint
disease to the left hip, which were materially worsened by the accepted work injury of
September 26, 2017. She opined that the work injury caused a permanent aggravation of the
underlying disc and left hip conditions. Dr. Ross noted that appellant had been off work since
November 11, 2017, and was permanently unable to return to work.
OWCP determined that there was a conflict in the medical opinion evidence between
Dr. Ross, the attending physician, and Dr. Draper, OWCP’s referral physician, regarding the status
of his employment-related conditions. It referred appellant, the case record, and a statement of
accepted facts (SOAF) to Dr. Joseph Jelen, a Board-certified orthopedic surgeon, for an impartial
medical examination. Dr. Jelen was specifically asked to address whether appellant had residuals
of the accepted September 26, 2017 employment injury, whether appellant had preexisting left hip
osteoarthritis and degenerative disc disease at L2-3 and L4-5, with left lower extremity
radiculopathy, and whether appellant’s September 26, 2017 employment injury contributed to the
additional diagnoses by cause, temporary or permanent aggravation.
In a January 8, 2019 report, Dr. Jelen, the impartial medical examiner (IME), noted
appellant’s history of injury and medical treatment and provided physical examination findings.
He noted appellant’s accepted diagnoses of temporary aggravation of unilateral primary
osteoarthritis of the left hip, contusion of the left hip, and strain of the lumbar spine. Dr. Jelen
related that appellant had no residuals of the September 26, 2017 employment injury. He opined
that appellant had recovered from his hip contusion, and hip and lumb ar strains. Dr. Jelen also
noted “present symptoms, based on objective evidence and record review over present preexisting
conditions.” He explained that radiculopathy was present and appellant was a candidate for a hip
replacement prior to the injury. Dr. Jelen opined that the work injury did not worsen the condition
and explained that the MRI scan after the November 3, 2017 accident showed “no marrow edema
to suggest contusion,” there was no mention of disc herniation, and all discs were described as
bulging, which was a chronic condition. He noted the April 17, 2018 EMG showed ongoing left
L4-5 lumbar radiculopathy that was not described as acute. Dr. Jelen opined that any aggravation
was temporary and had resolved. He further opined that appellant had returned to his preinjury
level and any residual symptoms were from the progression of his preexisting condition. Dr. Jelen
noted that appellant might need ongoing pain care for conditions unrelated to the work injury and
opined that appellant had reached maximum medical improvement (MMI). He advised that
appellant had no limitations as a result of the work injury and explained that appellant’s limitations
were secondary to his preexisting severe arthritis of the left hip that would require hip replacement.
On January 24, 2019 OWCP requested clarification from Dr. Jelen, noting that his report
was unclear as to when the work-related temporary aggravation of appellant’s left hip osteoarthritis
had resolved.
In a February 4, 2019 addendum report, Dr. Jelen noted that Dr. Selgrath in his October 13,
2017 report advised that appellant had a mild-to-moderate hip contusion with no acute edema or
soft tissue abnormality on the MRI scan and that full recovery was anticipated in four to six weeks.
He advised that the aggravation had resolved by October 26, 2018, based on the report of
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Dr. Draper, who examined appellant on that date and found no work injury-related residuals, and
based on his assessment of appellant.
In a February 12, 2019 notice, OWCP advised appellant that it proposed to terminate his
wage-loss compensation and medical benefits, as he no longer had disability or residuals causally
related to his accepted September 26, 2017 employment injury. It explained that the special weight
of the medical opinion evidence rested with the opinion of Dr. Jelen, the IME. OWCP provided
appellant 30 days to submit evidence or argument challenging the proposed termination action.
No response was received.
By decision dated March 19, 2019, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective March 20, 2019, as he no longer had disability or residuals causally
related to his accepted September 26, 2017 employment injury.
On March 28, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Subsequently, on April 16, 2019,
counsel for appellant provided a report from Dr. Ross who noted that she “identified deficiencies
in the opinion of the referee examiner.”
In an April 8, 2019 report, Dr. Ross discussed the report from Dr. Draper, OWCP’s referral
physician. She noted that Dr. Draper advised that he saw “no evidence of permanent aggravation
of the preexisting conditions based on the fact that the imaging studies do not show any evidence
of fracture dislocation, no traumatic pathology at all. All the pathology evident in these imaging
studies are preexisting conditions. It is my opinion that the preexisting conditions are not
materially worsened by this accident.” Dr. Ross indicated that Dr. Draper was “just going by the
studies alone.” She explained that “to fully evaluate this patient, one needs to not only look at the
objective imaging studies, but also to listen to the subjective complaints of the patient and do a
physical examination of the patient and put this all together to determine whether or not the patient
has had traumatic injury.” Dr. Ross also noted that Dr. Draper found that appellant had a
temporary aggravation of the preexisting conditions for the low back and left hip that would last
two to four months and at most six months, but would not last years, and that any discomfort in
these areas lasting longer than six months would be due to the preexisting conditions and not the
accident. However, she explained that “Dr. Draper is surmising based on no speciﬁc evidence or
any documentation that I have ever read. I ﬁnd that this is a generalized statement and does not
apply to this patient and should not be used in this case.”
Dr. Ross also discussed the report of Dr. Jelen, the IME, and noted that he reviewed all of
the studies, evaluated the patient, and opined that the work injury did not contribute to the
underlying radiculopathy, the hip arthritis, or the degenerative disc disease. However, she noted
that Dr. Jelen found no marrow edema on the November 3, 2017 MRI scan, while this was clearly
untrue. Dr. Ross noted that her report dated March 1, 2018, discussed the subchondral marrow
edema revealed by the September 27, 2017 MRI scan of the left hip. She indicated that it appeared
that Dr. Jelen did not review both the 2012 and 2017 MRI scans. Dr. Ross explained that appellant
had previously noted disc herniations at L2-3 and L4-5, but upon reviewing the more recent
November 3, 2017 MRI scan of the spine, which was post trauma, there was an exacerbation of
those disc herniations. She advised that this was evidence on objective testing that showed that
there had been injury as a result of the work incident. Dr. Ross also noted that Dr. Jelen in his
February 4, 2019 addendum clarified that the aggravation of the preexisting degenerative disc
disease had ceased by October 26, 2018, which was the date appellant was examined by
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Dr. Draper. However, she indicated that Dr. Jelen’s opinion was arbitrary and did not make any
medical sense because he did not evaluate the patient on October 26, 2018. Dr. Ross referred to
her March 1, 2018 report, noting that she found injury to appellant’s left hip and low back, as well
as radiculopathy down his left leg, as a result of the accident at work. She also noted that appellant
currently had symptoms which were not present prior to the work-related injury, including
shooting pain down his left leg that changed with different movements and complaints of persistent
and severe pain in the left leg, left lateral thigh, and left buttock region, and radiation of symptoms
down left leg and into the lower leg and foot. Dr. Ross opined that these persistent symptoms were
related to a permanent aggravation of his low back and left hip underlying pathology due to the
work injury. She advised that “it is imperative that you take another look at this case and reevaluate
the facts, including the ﬁndings of an exacerbation of the disc herniations in the lumbar spine and
the marrow edema in the left hip.”
A telephonic hearing was held on July 25, 2019.
By decision dated October 9, 2019, OWCP’s hearing representative affirmed the
March 19, 2019 termination decision, finding that OWCP had met its burden of proof. However,
she remanded the case for further development of the issue as to whether appellant had continuing
employment-related disability or residuals. The hearing representative determined that OWCP
should undertake further development of the medical evidence, to include providing the IME,
Dr. Jelen, with a copy of Dr. Ross’ April 8, 2019 report and the additional evidence received from
appellant.
On October 15, 2019 OWCP noted that it had received an April 8, 2019 report from
Dr. Ross disagreeing with the report of Dr. Jelen. It requested that Dr. Jelen review the report and
the additional medical records and treatment notes from February 21 through September 6, 2019,
and provide an addendum with regard to whether they altered his opinion.
Dr. Jelen provided an October 21, 2019 addendum. With regard to Dr. Ross’ comments
relative to Dr. Draper’s report, he noted that Dr. Ross inaccurately stated that Dr. Draper reached
his conclusions by reviewing the studies alone. Dr. Jelen noted that Dr. Draper’s report noted
subjective complaints and documented extensive physical examination findings. With regard to
Dr. Ross’ comments regarding his own report, Dr. Jelen noted that Dr. Ross inaccurately stated
that he found no marrow edema on the November 3, 2017 MRI scan of the lumbar spine and that
he did not mention the bone marrow edema revealed in the September 27, 2017 MRI scan of the
hip and pelvis. He noted that the November 3, 2017 MRI scan of the lumbar spine indicated no
bone marrow to suggest contusion. Dr. Jelen also related that he had clearly reported the bone
marrow edema of the hip and pelvis from the September 27, 2017 MRI scan and explained that it
was from “end stage left hip joint osteoarthritis” and chronic arthritis, and did not represent an
acute finding. Dr. Ross opined that the change in appellant’s condition revealed by comparison of
the November 11, 2012 and November 3, 2017 MRI scans of the spine was the result of an
exacerbation caused by trauma from the work injury. However, Dr. Jelen opined, “this cannot be
substantiated. This can occur, as degenerative changes evolve.”
In a November 25, 2019 de novo decision, OWCP found that appellant’s medical benefits
and wage-loss compensation remained terminated effective March 20, 2019.
In a letter dated December 5, 2019, counsel for appellant requested a hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on March 13, 2020.
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OWCP received an April 9, 2018 report from Dr. Douglas Diorio, Board-certified in family
medicine, who noted appellant’s history of injury and diagnosed chronic pain syndrome, other
intervertebral lumbar disc displacement, lumbosacral radiculopathy, and neuralgia/neuritis.
Dr. Diorio recommended interventional therapy, pain management, nerve conduction studies of
the bilateral lower extremities, and a series of epidural steroid injections.
OWCP received a copy of a September 26, 2017 emergency room report indicating that
appellant was admitted after being struck by a mail bin at work.
By decision dated May 26, 2020, OWCP’s hearing representative affirmed the
November 25, 2019 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits f or an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment. 8
Section 8123(a) of FECA provides in pertinent part: “if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.”9 In situations where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well-rationalized and based upon a proper factual background, must be
given special weight. 10
4

See M.E., Docket No. 20-0877 (issued August 2, 2021); D.G., Docket No. 19-1259 (issued January 29, 2020);
S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
5

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
6

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

9

5 U.S.C. § 8123(a).

10

D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31 ECAB
1010 (1980).

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ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2019.
OWCP properly determined that there was a conflict in the medical opinion evidence
regarding employment-related residuals and referred appellant, pursuant to section 8123(a) of
FECA (5 U.S.C. § 8123(a)), to Dr. Jelen for an impartial medical examination and an opinion on
the matter as to whether appellant had residuals of the accepted conditions of lumbar strain, left
hip contusion and temporary aggravation of primary osteoarthritis of the left hip, and whether
appellant’s preexisting left hip osteoarthritis and degenerative disc disease at L2-3 and L4-5, with
left lower extremity radiculopathy, were temporarily or permanently aggravated by the accepted
employment injury. The Board finds, however, that the IME’s opinion is not sufficiently
rationalized to constitute the special weight of the medical opinion evidence.11
Dr. Jelen failed to provide an adequate medical rationale to explain how he determined that
all of appellant’s accepted conditions had resolved by October 26, 2018. He cited Dr. Draper’s
prior opinions, but did not offer his own opinion, based upon the entire medical record and specific
findings from his own medical evaluation, which explained that appellant no longer had residuals
of the accepted lumbar strain, left hip contusion, and temporary aggravation of unilateral left hip
primary osteoarthritis. The Board has held that a medical report is of limited probative value
regarding a given medical matter if it does not contain medical rationale explaining that matter. 12
The Board, therefore, finds that the IME report is insufficient to meet OWCP’s burden of proof to
terminate appellant’s wage-loss compensation and medical benefits for the accepted conditions.
The Board finds that Dr. Jelen’s reports were not sufficiently rationalized to constitute the
special weight of the medical evidence. 13 OWCP therefore did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective March 20, 2019.14

11

Id.

12

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

13

Supra note 10

14

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the May 26, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: December 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 16-0419
Issued: May 19, 2016

Case Submitted on the Record

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

JURISDICTION
On January 4, 2016 appellant filed a timely appeal of a July 27, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Since more than 180 days has
elapsed between the last merit decision dated February 7, 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 and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. The Board’s jurisdiction is limited to reviewing the evidence that
was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be considered by the
Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35,
36 n.2 (1952).

On appeal appellant contends that her request for reconsideration was timely filed.
FACTUAL HISTORY
Appellant, a 55-year-old electronics technician instructor, filed an occupational disease
claim (Form CA-2) on September 26, 2013 alleging that she developed a respiratory condition
causally related to employment factors. She asserted that her worksite had ongoing mold issues,
but that while some improvements were made to room 103 in LSTC Building #211 within the
past couple of years, a permanent fix was not accomplished. Appellant explained that instructors
who had been in the building for the majority of a workweek had allergies sneezing, and
coughing. She stated that her whole body itched, her eyes also burned, and she had bad, constant
headaches.
On October 9, 2013 OWCP advised appellant that it required factual and medical
evidence to determine whether she was eligible for compensation benefits. It requested that she
submit a comprehensive report from her treating physician describing her symptoms, the medical
reasons for her condition, and an opinion as to whether her claimed condition was causally
related to her federal employment. OWCP afforded appellant 30 days to submit this evidence.
In a report dated September 24, 2013, Dr. Gregg S. Govett, Board-certified in internal
medicine, noted that appellant was examined on August 26, 2013 for a three-year history of
malaise, fatigue, insomnia, throat irritation, gastroesophageal reflux disease, coughing, dyspnea,
irritable bowel syndrome, left forearm pain, back pain, cervical spine pain, blurred vision, carpal
tunnel symptoms, hives, and chemical sensitivities that developed after being exposed to mold in
her workplace. He noted that her laboratory testing was positive for tricothecenes, a mycotoxin
secreted by several species of mold, most notably stachybotris, the “black mold.” Allergy testing
did not indicate any evidence of mold allergy. Laboratory testing was normal except for a
positive titer for autoimmune thyroiditis. Dr. Govett concluded that appellant was currently
infected with the mycotoxin tricothecenes, which could cause other illness. He advised that she
must stop the pollution from entering her body by completely avoiding all moldy buildings.
On October 27, 2013 OWCP received a supplemental statement from appellant wherein
she described in detail her alleged employment-related exposure.
By decision dated February 7, 2014, OWCP denied appellant’s claim. It accepted that
she had become infected with mycotoxin tricothecenes, and that the alleged work factors
occurred, but found that she failed to submit sufficient medical evidence to establish that her
claimed condition was causally related to the accepted work factors.
By letter dated February 4, 2015, received on February 10, 2015 appellant requested
reconsideration.
With her request for reconsideration appellant submitted a supplemental statement. She
asserted that her employing establishment had the responsibility to make her work environment a
pleasant and safe place to work. Appellant explained that her employing establishment was
aware that the Heating Ventilation and Air Conditioning (HVAC) units were oversized for the
rooms in LSTC Building #211 causing relative humidity levels to regularly exceed 70 percent in

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the building. She also noted that annual inspections of the building, if properly conducted,
would have revealed evidence of roof leaks, and water entry from all sides of the building due to
improper ground levels and improper caulking. Appellant alleged that the employing
establishment knew of excess humidity and mold occurring in the LSTC Building #211 since
2008, but only took minimal steps to correct the situation at that time. She further outlined that,
from September 2008 until August 2013, she worked in the LSTC Building #211, averaging 50
hours/week. Appellant concluded that, due to high humidity levels, having oversized HVAC
units that could not draw out excess moisture, and having high temperatures in the building due
to energy conservation mandates, the building became moldy, and as a result, her work
environment became unpleasant and unsafe. She stated that she exhibited symptoms of mold
exposure. Appellant noted that she had sinus problems with a constant headache and new
neurological symptoms including odd senses of smell, tingling back sensations, and constant skin
itch of the head, back, and especially nose. She related that she tested positive for tricothecene
mycotoxins on September 3, 2013. Appellant stated that she moved out of the LSTC Building
#211 in August 2013 and began a daily medical regimen by Dr. Govett to rid her body of
tricothecene mycotoxins. After the employing establishment advised that, mold abatement had
been completed (approximately mid-May 2014), she was advised that employees could reenter
the L5TC Building #211. However, proper mold abatement included cleaning building to ensure
no dust remains after work has been finished. The LSTC Building #211 was not clean. Heavy
dust covered everything that had remained in the building during the abatement process only
after cleaning 95 percent of the lab, was appellant informed that management had provided
cleanser to use when wiping the mold. Appellant concluded that as of February 2015 her
condition had improved.
Appellant submitted a September 3, 2013 mycotoxin panel report, which noted that she
tested positive for tricothecene. She also submitted a December 2, 2014 report from Dr. Govett,
wherein he reported that she was initially seen on August 26, 2013 with a number of symptoms,
after mold exposure. Dr. Govett noted that upon testing appellant was found to have diagnoses
of autoimmune thyroiditis, adrenal hypofunction, food sensitivities, and tricothecenes. He
concluded that, after treatment, she had resolved most of her initial complaints and her repeat
urinalysis showed a significant reduction in triocthecenes.
OWCP also received from appellant a September 25, 2006 booklet entitled “Guidance for
Management of Mold in FAA Facilities.”
By decision dated July 27, 2015, OWCP denied appellant’s request for reconsideration
without a merit review, finding the request was untimely filed and failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant’s application for review must be received within one year of the date of that decision.3

3

20 C.F.R. § 10.607(a).

3

The Board has found that the imposition of the one-year limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.4
OWCP will reopen a claimant’s case for merit review, notwithstanding the one-year
filing limitation, if the claimant’s application for review shows clear evidence of error on the part
of OWCP in its most recent merit decision. To establish clear evidence of error, a claimant must
submit evidence relevant to the issue decided by OWCP. The evidence must be positive, precise
and explicit and it must manifest on its face that OWCP committed an error.5
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.6
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.7 It is not enough merely to show that
the evidence could be construed so as to produce a contrary conclusion.8 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.9 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.10
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. It issued its most recent merit decision in this case on February 7, 2014.
Appellant’s request for reconsideration was received by OWCP on February 10, 2015.
Therefore, the Board finds that the request was untimely as it was received outside of the oneyear time limit.
The Board further finds that appellant’s February 10, 2015 untimely request for
reconsideration failed to demonstrate clear evidence of error. OWCP has accepted that she was
diagnosed with mycotoxin tricothecenes, and that the alleged work factors occurred, but found
that she failed to submit sufficient medical evidence to establish that her claimed condition was
causally related to the accepted work factors. With her request for reconsideration, appellant
submitted the myocotoxin panel report and Dr. Govett’s December 2, 2014 report, both of which
4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

6

Annie L. Billingsley, 50 ECAB 210 (1998).

7

Jimmy L. Day, 48 ECAB 652 (1997).

8

Id.

9

Id.

10

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

confirmed the diagnosis. She did not however submit medical evidence which explained how
her diagnosed condition was caused by the accepted employment factors. Appellant did not
submit medical evidence sufficient to prima facie shift the weight of the evidence in her favor or
raise a substantial question as to the correctness of OWCP’s decision. Consequently, she has
failed to demonstrate clear evidence of error on the part of OWCP such that it abused its
discretion in denying merit review.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s reconsideration request
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
DEPARTMENT OF THE ARMY, ARMAMENT
RESEARCH, DEVELOPMENT &
ENGINEERING CENTER,
Picatinny Arsenal, NJ, Employer
__________________________________________

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

Docket No. 07-1481
Issued: January 7, 2008

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 May 9, 2007 appellant filed a timely appeal of the November 3, 2006 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the denial of his claim for an
employment-related emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the
Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
Appellant, a 45-year-old electronics technician, filed a claim for employment-related
stress and anxiety. He alleged that his condition arose on March 28, 2003 when the employing
establishment once again changed directions on a project he was assigned. Appellant also stated

that the employing establishment had changed deadlines numerous times which contributed to
his stress and anxiety. At the time, he was being treated for preexisting attention deficit
hyperactivity disorder (ADHD). Because of the increased stress at work, appellant had been
taking almost three times as much medication (Ritalin) in order to meet his deadlines. On
April 4, 2003 his psychiatrist excused him from work for approximately four weeks while his
psychiatric and blood pressure medications were being adjusted. Appellant reportedly
experienced severe chest pains beginning April 5, 2003 and he underwent an electrocardiogram
(EKG) on April 7, 2003. Although the EKG results were normal, appellant claimed that the
increased medication was affecting his heart. He also said he had been advised to get off of
Ritalin in favor of a less addictive medication. Appellant filed the instant claim on April 7, 2003.
In an April 18, 2003 statement, appellant’s supervisor, Robert J. Schlenner, indicated that
appellant was currently working under a 90-day performance improvement plan (PIP), which
was initiated January 30, 2003 and scheduled to conclude May 1, 2003.1 On March 27, 2003
Mr. Schlenner, Division Chief, Frank P. Puzycki and two other managers met with appellant to
review his progress under the PIP. According to Mr. Schlenner, biweekly meetings were a
normal part of the PIP process. The purpose was to provide appellant with as much coaching,
mentoring and direction as possible. Another purpose of the biweekly meeting was to ensure
that appellant fully understood his assignment. In prior meetings, he repeatedly assured the
group that he would have no problem completing his assignment by the May 1, 2003 PIP
deadline. During the March 27, 2003 meeting, appellant provided a progress report and
acknowledged that he had fallen behind his own project implementation schedule. He reportedly
assured the group that the prior delays would not prevent him from finishing the project on time.
Mr. Schlenner indicated that appellant also advised the group that the work originally slated for
completion that day would be available in about a week. Appellant was instructed to report back
the following day with an update on when the group would meet for next week’s progress report.
Soon after the meeting adjourned, there was some confusion about when appellant was next
expected to provide a project update. He was under the impression he had been given a few
weeks’ reprieve to complete the first two stages of the project. However, Mr. Schlenner said that
that was not the case and he reiterated to appellant that the project was to be completed by
May 1, 2003 as originally scheduled. He denied that he or any of the other managers ever
changed appellant’s deadlines, except for the one instance on March 27, 2003 when appellant
was afforded additional time to complete an interim task.
Group Leader, Harvey L. Moore, Jr., was one of the participants in the March 27, 2003
meeting. He provided an April 17, 2003 statement corroborating Mr. Schlenner’s account of
what transpired during the meeting. Mr. Moore further indicated that with approximately two
weeks left before the conclusion of the PIP appellant had completed no more than 10 percent of
the required work. Senior Project Leader, Hardev (Dave) Singh also attended the March 27,
2003 meeting and provided a similar statement dated April 16, 2003. He indicated that, by
March 27, 2003, appellant was expected to deliver a detailed electronic layout, wiring schematics

1

Appellant was previously on a PIP in 2001. Because of his unsuccessful performance on the earlier PIP,
appellant was downgraded from an Electronics Engineer (GS-12) to an Electronics Technician (GS-7) effective
December 2, 2001.

2

and parts list with all the specifications. Appellant failed to complete the work by the scheduled
date, but promised he would provide the information the following week.
In a supplemental statement dated July 9, 2003, appellant indicated that there was an
apparent misunderstanding regarding the basis of his complaint. He explained that he was not
complaining about changed due dates, but that management had changed the project’s
requirements. Appellant also alleged that management failed to recognize his disability. He
believed the employing establishment should have taken steps to accommodate his ADHD rather
than placing him on a PIP. Additionally, appellant claimed that he worked in a hostile
environment as a result of having previously filed an equal employment opportunity (EEO)
complaint. He alleged that management falsely testified during a November 2001 EEO
deposition. Appellant also stated that he was traumatized when his previous request for a
transfer to another department, at a higher grade level (GS-12), was mistakenly denied.
Another reported incident involved Mr. Schlenner’s refusal to approve appellant’s
request for a week off from work. Appellant indicated that upon receiving the PIP on
January 29, 2003 he requested a week off to “recover.” However, he was given only one day off.
Appellant argued that management should have recognized the problem he was having and
granted the additional time off. After the first week of the PIP, appellant reportedly told
management that he was in no condition to continue. He also stated that there was some initial
confusion regarding the commencement date of the PIP. Appellant believed the start date was
February 6, 2003, the day he went over the assignment, rather than January 29, 2003 when he
received the PIP. He stated that it was unfair for the PIP to begin prior to the time when he and
management first reviewed and discussed the “game plan.”
Appellant also identified what he considered to be technical deficiencies with the project
assigned under the PIP. He stated that he had no prior experience and the assignment required
extensive reading and writing which was too difficult given his ADHD. Appellant also stated
that the person who initiated the PIP did not fully understand what it would take to successfully
complete the project. Two experts reportedly advised appellant that the project could take from
16 weeks to 6 months to complete, rather than the 3 months allotted.2 Additionally, appellant
claimed that certain parts needed for the project were unavailable. He further stated that at one
point he was ahead of schedule by more than a week and then management began adding more
requirements to the previously agreed upon schedule.
Appellant claimed that his progress was impeded when Mr. Schlenner inexplicably failed
to approve a request to copy a video he needed to complete his technical drawings. He also
alleged that during their regularly scheduled biweekly meetings Mr. Singh belittled him in front
of the other managers. Another alleged incident involved Mr. Schlenner chastising appellant for
working one Saturday despite appellant having obtained prior approval from Mr. Puzycki.
Appellant provided the Office a copy of the PIP as well as the project implementation
schedule he prepared. He also submitted copies of various emails he exchanged with the
2

The “16 weeks to 6 months” timeframe appellant referenced pertained to the estimated time it would take to
obtain certain parts from outside vendors. One particular device was not expected to be available until the end
of 2003.

3

employing establishment and outside vendors regarding the project.
The employing
establishment submitted copies of emails pertaining to several meetings with appellant regarding
the PIP. Also submitted were documents regarding his proposed transfer in January 2003.
In response to appellant’s allegations, Mr. Schlenner and Mr. Puzycki submitted joint
statements dated September 12 and 25, 2003. They explained that he was placed on a PIP in
January 2003 because of poor technical performance during the prior rating period. Under the
PIP, appellant was tasked to design and fabricate a test bed device to evaluate thyristors -- highpower electronic switches. Mr. Schlenner and Mr. Puzycki specifically denied changing project
requirements and deadlines. They explained that the May 1, 2003 PIP completion date remained
fixed and that appellant developed his own project implementation schedule which he did not
adhere to. Although appellant acknowledged falling behind his own implementation schedule,
he reassured management that he would still be able to finish the assignment by May 1, 2003.
Mr. Schlenner and Mr. Puzycki also stated that, what appellant claimed were
modifications to the PIP, were all part of the original plan. Regarding appellant’s confusion
about the PIP commencement date, Mr. Schlenner and Mr. Puzycki indicated that the document
he received January 30, 2003 clearly identified the beginning and end dates of the project.
Mr. Schlenner also verbally informed appellant of the January 30, 2003 PIP commencement
date. Moreover, appellant had previously been on a PIP and, therefore, should have known from
prior experience that the date one received the PIP was also the date the assignment started.
Mr. Schlenner and Mr. Puzycki refuted appellant’s allegation that the project required
more than 90 days to complete. They explained that he was tasked to design a test bed, but not
to actually test the product.3 Appellant was specifically told that the existence or nonexistence of
the item to be tested was irrelevant. But despite management’s guidance, he was preoccupied
with ordering items to be tested rather than designing the actual test bed. The capacitors
appellant claimed were unavailable for at least “16 weeks” had already been acquired and were
located at another building on the employing establishment’s premises. He was apprised of their
location. Mr. Schlenner and Mr. Puzycki indicated that all the technical information necessary to
complete the project was made available to appellant and the project could have been completed
in 12 weeks.
Mr. Schlenner also addressed the incident involving appellant’s video. On March 13,
2003 appellant asked to have an eight millimeter videotape transferred to VHS format so that he
could take it home to view over the weekend. The request was by email and directed to Kobi
O’Malley. Mr. Schlenner was copied on the March 13, 2003 email. A week later, appellant
forwarded a copy of the original email to Mr. Schlenner and asked if he would “give Kobi the
green light” to make the copy. Appellant stated that Mr. Schlenner never approved the request.
Mr. Schlenner responded that his approval was not necessary to have the tape copied. He also
indicated that appellant could have viewed the eight millimeter tape on the same video camera he
used to record it. Additionally, Mr. Schlenner noted that appellant chose to make the video on
his own. It was neither required by the PIP nor was it a necessary component to completing the
assigned project.
3

The particular model of thyristor appellant’s test bed was designed to evaluate was not currently in production
and unavailable commercially.

4

As to the incident involving overtime, Mr. Schlenner explained that he was responsible
for approving all overtime requests and appellant had not obtained prior approval from him to
work one Saturday in March 2003. The policy in place at the time required employees to obtain
prior approval for any overtime work. Contrary to appellant’s assertion, Mr. Puzycki did not
authorize him to work on the weekend. He said he merely responded to appellant’s inquiry
about whether the building would be open on Saturday. The following Monday when
Mr. Schlenner learned that appellant had worked overtime, he reminded him of the policy
regarding the need for prior approval.
Mr. Schlenner also stated that appellant never requested a week off after receiving his
PIP January 30, 2003. According to him, appellant only requested one day off which was
Monday, February 3, 2003.4 The leave request was made via email and Mr. Schlenner approved
it. Had appellant asked for additional time off, Mr. Schlenner said he would have granted the
request.
Mr. Schlenner denied any wrongdoing with respect to appellant’s failed attempt to obtain
a transfer to the Fire Support Armaments Center (FSAC). He stated that he concurred with the
transfer, but FSAC denied appellant’s request because, in their opinion he did not qualify for the
job. FSAC notified appellant of its decision, whereupon, he returned to his former job.
Mr. Schlenner indicated that apart from agreeing to the transfer he was not otherwise involved in
the decision-making process. He and Mr. Puzycki denied that management falsely testified
during a November 2001 deposition regarding an EEO complaint appellant filed. They also
denied that there was a hostile work environment.
Appellant submitted July 8 and 17, 2003 progress reports from his psychiatrist,
Dr. Alene P. Strahan, who diagnosed anxiety, depression and ADHD. Dr. Strahan also indicated
that appellant’s current symptoms which she attributed to his employment prevented him from
returning to work. The Office also received a July 9, 2003 report from appellant’s
psychotherapist, Catherine Bergman, who attributed appellant’s severe anxiety, depression and
stress to his employment. On January 12, 2004 Dr. Strahan indicated that appellant was able to
return to work which he did the following day.5
In a decision dated March 11, 2004, the Office denied appellant’s claim as he failed to
establish any compensable employment factors as the cause of his emotional condition.
Appellant requested an oral hearing which was held on August 1, 2006. By decision dated
November 3, 2006, the Office hearing representative affirmed the March 11, 2004 decision.
LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
4

Friday, January 31, 2003 was appellant’s scheduled day off. He returned to work Tuesday, February 4, 2003.

5

Effective August 24, 2004, the employing establishment dismissed appellant because of his inability to maintain
regular attendance.

5

(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or
specially assigned work duties or a requirement imposed by the employment, the disability is
deemed compensable.7 Disability is not compensable, however, when it results from factors
such as an employee’s fear of a reduction-in-force or frustration from not being permitted to
work in a particular environment or hold a particular position.8 Perceptions and feelings alone
are not compensable. To establish entitlement to benefits, a claimant must establish a basis in
fact for the claim by supporting his allegations with probative and reliable evidence.9 When the
matter alleged represents a compensable factor of employment and the evidence of record
establishes the truth of the matter, the Office must then base its decision on an analysis of the
medical evidence.10
ANALYSIS
Appellant initially based his claim on alleged modifications to the January 30, 2003 PIP
plan. On April 7, 2003 he filed a traumatic injury claim (Form CA-1), alleging that he was
injured as of March 28, 2003 “because management again changed directions on a project.”
Appellant also stated that management had changed deadlines numerous times which caused
stress and anxiety problems for him, but according to his July 9, 2003 supplemental statement,
there were numerous other employment incidents that caused or contributed to appellant’s
psychiatric disorder.
Several of the alleged incidents, even if factually established, would generally not be
considered compensable employment factors because they fall into the category of
administrative or personnel matters. An employee’s emotional reaction to administrative or
personnel matters generally falls outside the scope of the Federal Employees’ Compensation
Act.11 However, to the extent the evidence demonstrates that the employing establishment either

6

See Kathleen D. Walker, 42 ECAB 603 (1991).

7

Lillian Cutler, 28 ECAB 125 (1976).

8

Id.

9

See Kathleen D. Walker, supra note 6.

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
11

Andrew J. Sheppard, 53 ECAB 170, 173 (2001).

6

erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor.12
Appellant’s counsel argued that the deadlines imposed by the PIP and the fact that
appellant had to work harder to meet those deadlines are compensable factors of employment.
However, counsel’s arguments are not consistent with the facts of the case. An emotional
reaction to a situation in which an employee is trying to meet his position requirements is
compensable.13 Additionally, employment factors such as an unusually heavy workload and the
imposition of unreasonable deadlines are covered under the Act,14 but appellant’s emotional
reaction to his PIP is not compensable.15
The design, implementation and oversight of appellant’s PIP are purely administrative
functions. Even if he established that project requirements and deadlines had been altered, this
too would not be compensable absent evidence of error or abuse on the part of the employing
establishment. With respect to meeting the May 1, 2003 PIP deadline, appellant has not
demonstrated that the project was either unmanageable or that it could not have been completed
within the 90-day time frame. He worked less than two months on the project. On March 27,
2003 the day before he stopped work, he assured Mr. Schlenner that he would still be able to
meet the May 1, 2003 project deadline. Access to capacitors, the availability of thyristors and
videotape conversion delays were proven to be inconsequential factors with respect to the timely
completion of the PIP project.
Appellant stopped work with a month remaining under the PIP and only 10 percent of the
work completed. Although there was skepticism regarding the likelihood of him completing the
project on time, there is no evidence that his limited progress was a function of the plan’s design
and implementation as opposed to appellant’s abilities or limitations. Moreover, there is no
evidence that appellant would not have completed the project had he persevered beyond
March 28, 2003. Counsel claims that appellant had to work harder to meet the requirements of
the PIP and therefore, this factor should be compensable. By definition a PIP is designed to
improve one’s performance. Therefore, it is not unreasonable to expect that an employee might
have to increase his efforts to improve his overall performance. Appellant completed only 10
percent of the work after 60 percent of the allotted time had elapsed. These statistics do not lend
credence to counsel’s contention that appellant had to work harder and in fact worked harder, to
meet the deadlines imposed. The record indicates that appellant did not meet his self-imposed
deadlines and his overall progress towards completing the PIP was less than stellar.
Accordingly, the circumstances regarding the design, implementation and oversight of the
January 30, 2003 PIP are noncompensable factors of employment.

12

Id.

13

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

14

See Georgia F. Kennedy, supra note 13.

15

Sherry L. McFall, 51 ECAB 436, 439 (2000).

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Appellant identified two incidents regarding time and attendance issues which are
inherently administrative matters.16 He claimed to have been denied a week off following
receipt of the January 30, 2003 PIP. However, Mr. Schlenner said that he approved the leave
appellant requested at the time which was only for one day absence. Appellant also claimed to
have gotten into trouble for working one Saturday in March 2003. Mr. Schlenner indicated that
he merely reminded appellant of the agency’s policy of requiring preapproval for all overtime
work. Appellant claimed that nmhe had already received permission from Mr. Puzycki, but
Mr. Puzycki denied authorizing him to come in on Saturday. The circumstances surrounding
both incidents are in dispute. However, even if appellant established the facts as alleged, neither
incident is compensable because there is no evidence of error or abuse on the part of the
employing establishment.
Some of appellant’s other allegations are too vague to be considered factually
established. One example is his claim that Mr. Singh belittled him during their biweekly
meetings. While verbal abuse is compensable under certain circumstances, appellant did not
specify what Mr. Singh allegedly said during the biweekly meetings that appellant found
belittling.17 Appellant’s allegation of a hostile work environment is similarly vague. He did not
describe any particular offensive workplace circumstances, but merely accused management of
lying during a November 2001 deposition concerning his EEO complaint. Both Mr. Schlenner
and Mr. Puzycki denied this allegation. Thus, appellant has not established that he was subjected
to a hostile work environment or that Mr. Singh was verbally abusive.
Appellant also claimed to have been traumatized when his request to transfer to another
agency (FSAC) was denied. The record indicates that, while Mr. Schlenner supported
appellant’s proposed reassignment, the transfer was not approved by FSAC because appellant
was not fully qualified for the particular position. An employee’s frustration from not being
permitted to work in a particular environment or hold a particular position is not compensable.18
Appellant did not establish that a compensable employment factor caused his psychiatric
disorder. Therefore, the Office properly denied his claim for an employment-related emotional
condition.
CONCLUSION
Appellant has not established that he sustained an emotional condition in the performance
of duty.

16

Although leave requests and attendance matters are generally related to the employment, they are
administrative functions of the employer and not duties of the employee. Dinna M. Ramirez, 48 ECAB 308,
313 (1997).
17

Verbal altercations and difficult relationships with supervisors, when sufficiently detailed and supported by the
record, may constitute compensable factors of employment. Marguerite J. Toland, 52 ECAB 294, 298 (2001).
18

Lillian Cutler, supra note 7.

8

ORDER
IT IS HEREBY ORDERED THAT the November 3, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
DEFENSE AGENCIES, DEFENSE
INFORMATION SYSTEMS AGENCY,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 18-1755
Issued: April 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 17, 2018 appellant filed a timely appeal from a June 11, 2018 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 11, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted March 7, 2018 employment incident.
FACTUAL HISTORY
On May 1, 2018 appellant, then a 51-year-old information technology (IT) specialist, filed
a traumatic injury claim (Form CA-1) alleging that on March 7, 2018 he sustained a severe right
knee strain during an office move while in the performance of duty. He explained that he was
bending down in his new cubicle to plug in his computer equipment when he strained his right
knee. Appellant first received medical treatment on April 23, 2018 and notified his supervisor on
May 1, 2018.
In support of his claim, appellant submitted an April 23, 2018 visit summary from Susan
Arnold, a physician assistant. Ms. Arnold diagnosed right lower leg strain of muscle/tendon and
noted March 7, 2018 as the date of injury.
On April 30, 2018 Dr. Peter Su, Board-certified in family medicine, recommended a
magnetic resonance imaging (MRI) scan of appellant’s right knee due to complaints of pain since
March 7, 2018.
By development letter dated May 11, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It noted that the medical evidence received failed
to document a diagnosed condition which could be related to the claimed employment incident.
OWCP provided appellant with a questionnaire for completion and advised him of the medical
evidence required to establish his claim. It afforded appellant 30 days to submit the necessary
evidence.
In a narrative statement dated May 22, 2018, appellant responded to OWCP’s
questionnaire and described the circumstances surrounding the claimed March 7, 2018
employment incident. He reported that he did not file a Form CA-1 until May 1, 2018 because he
thought his pain was temporary and did not know the severity of his injury at that time. Appellant
noted submission of a signed witness statement on his Form CA-1 which corroborated his account
of the March 7, 2018 employment incident.
In an April 30, 2018 report, Dr. Su reported that appellant complained of right knee pain
for one to two months, and noted the mechanism of injury as “moving.” He diagnosed right knee
joint pain and recommended a right knee MRI scan.
In a May 14, 2018 diagnostic report, Dr. James Reinig, a Board-certified diagnostic
radiologist, reported that appellant’s right knee MRI scan revealed a tear of the posterior horn of
the medial meniscus with extensive edema seen in the proximal medial tibia adjacent to that site.
By decision dated June 11, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish a diagnosed right knee condition causally related
to the accepted March 7, 2018 employment incident. It concluded, therefore, that he had not met
the requirements to establish an injury as defined by FECA.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation,
that an injury was sustained while in the performance of duty as alleged, and that any disability or
specific condition for which compensation is claimed are causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.6 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.7
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.8 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.9

3

Gary J. Watling, 52 ECAB 278 (2001).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
7

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

8

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

9

Dennis M. Mascarenas, 49 ECAB 215 (1997).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted March 7, 2018 employment incident.10
In support of his claim, appellant submitted an April 30, 2018 report from Dr. Su who noted
appellant’s complaints of right knee pain for one to two months. This report is of limited probative
value as Dr. Su failed to provide a firm medical diagnosis, and only noted right knee joint pain.
The Board has consistently held that pain is a symptom and is not considered a firm medical
diagnosis.11
Dr. Reinig’s May 14, 2018 diagnostic report is also insufficient to establish appellant’s
claim. While this report interpreted right knee diagnostic findings and noted a tear of the posterior
horn of the medial meniscus, diagnostic studies lack probative value as they do not address whether
the employment incident caused the diagnosed condition.12
Appellant also submitted an April 23, 2018 visit summary from Ms. Arnold, a physician
assistant. This report does not constitute competent medical evidence because a physician assistant
is not considered a “physician” as defined under FECA.13 As such, this evidence is also
insufficient to meet appellant’s burden of proof.
The Board finds that the record of evidence lacks rationalized medical evidence
establishing a diagnosed right knee condition causally related to the accepted March 7, 2018
employment incident. Thus, appellant has failed to meet his burden of proof.14
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted March 7, 2018 employment incident.

10

See Robert Broome, 55 ECAB 339 (2004).

11

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
12

See L.T., Docket No. 18-1603 (issued February 21, 2019).

13
See M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23,
2018); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law).
14

T.O., Docket No. 18-0139 (issued May 24, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 4, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0550
Issued: March 7, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 22, 2021 appellant filed a timely appeal from a January 22, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left knee condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 5, 2020 appellant, then a 54-year-old postal carrier, filed an occupational disease
claim (Form CA-2) alleging that he suffered a torn left meniscus due to factors of his federal
employment, including repetitive and prolonged walking for 8 to 10 hours per day for seven years.
He further noted that he switched his delivery route after he realized that his knee was injured.
1

5 U.S.C. § 8101 et seq.

Appellant underwent meniscus surgery in 2016 and alleged that his knee condition has worsened.
He noted that he first became aware of his condition on January 1, 2010 and first realized that it
was caused or aggravated by his federal employment on April 20, 2020. Appellant did not stop
work.
In an attached statement, appellant explained that about 10 years prior he realized that the
route he was walking was causing pain in his left knee, noting that the route contained 100 houses
with four to five steps. He walked this route for five years before switching to a different route
with fewer steps. Appellant reported that changing his route helped with his knee pain , but that
the pain was still present. In June 2016, he was involved in a motorcycle accident that forced him
to miss six weeks of work due to a broken clavicle and two broken ribs he sustained in the accident.
Four weeks after his accident, appellant underwent surgery to repair a torn meniscus in his left
knee. He did not file a workers’ compensation claim at that time because he was already off from
work and did not want to have to go back in to take more time off from work for his knee.
Appellant subsequently returned to work two weeks later. In the fall of 2019 his knee pain returned
slowly and was now constant.
In an April 7, 2015 diagnostic report Dr. Tariq Suwan, a Board-certified radiologist,
performed an x-ray scan of appellant’s left knee and noted that it was unremarkable.
In an April 16, 2015 diagnostic report, Dr. Mark Fritze, a Board-certified diagnostic
radiologist, performed a magnetic resonance imaging (MRI) scan of appellant’s left knee,
observing degenerative changes of the medical meniscus.
Dr. Brennen Lucas, a Board-certified orthopedic surgeon, in an April 29, 2015 medical
report, evaluated appellant for complaints of left knee pain, swelling, and stiffness. Appellant
noted that his pain began approximately five weeks earlier without an injury. Dr. Lucas reviewed
the April 7 and 16, 2015 diagnostic studies of appellant’s left knee which found degenerative
changes of the medial meniscus. He diagnosed left knee pain, left internal derangement of the
knee, and left derangement of the medial meniscus. Dr. Lucas expressed concern that appellant
may have sustained a small medial meniscus tear and administered a corticosteroid injection to
appellant’s left knee to treat his symptoms.
In an April 27, 2020 medical note, Malissa Paxton, a physician assistant, explained that
appellant underwent an MRI scan on April 23, 2020 that revealed a probable tear of his left
meniscus. She opined that his job detail of walking aggravated his pain daily.
In a May 12, 2020 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence necessary and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
In an April 7, 2015 medical report, Dr. Kurt Hesse, Board-certified in family medicine,
evaluated appellant for pain in his low back and left knee. On examination, he diagnosed low back
pain and left knee pain and prescribed medications to treat appellant’s symptoms.

2

In a July 13, 2015 medical report, appellant informed Dr. Lucas that he was experiencing
pain in his left knee and of his employment duties involved excessive walking to carry mail. On
review of an MRI scan of appellant’s left knee and examination, Dr. Lucas diagnosed left internal
derangement of the knee, left derangement of the medial meniscus and left knee pain. He arranged
for appellant to undergo surgery to treat his condition.
In an April 20, 2020 medical report, Ms. Paxton noted that appellant previously underwent
meniscus surgery in 2016 and that he was now experiencing pain in his left knee. Appellant
reported that he suffered no injury to his knee and opined that his condition was work related.
Ms. Paxton diagnosed chronic left knee pain2 and ordered that he undergo an MRI scan for further
evaluation.
In an April 23, 2020 diagnostic report, Dr. Kamran Ali, a Board-certified radiologist,
performed an MRI scan of appellant’s left knee, observing findings of appellant’s previous medial
meniscus surgery. He recorded increased T2 signal along the inferior articular surface of the
posterior horn of the medial meniscus that was suspicious for a possible retear. Dr. Ali also noted
that prior surgical changes could also appear like this.
In a May 7, 2020 medical report, Gregory Knoblauch, a physician assistant, evaluated
appellant for a possible retear of his left meniscus. Appellant informed Mr. Knoblauch that he
previously underwent an arthroscopy and partial medial meniscectomy five years p rior and that he
recently underwent an MRI scan that revealed a retear of his medial meniscus. Mr. Knoblauch
diagnosed a retear of the left knee medial meniscus and degenerative arthritis of the left knee
medial compartment/patellofemoral joint.
In a May 18, 2020 e-mail response to OWCP’s development questionnaire, T.G.,
appellant’s supervisor, noted that she did not have reason to dispute his claim as she was not his
supervisor at the time of his first surgery. She detailed his current workload in wh ich he worked
eight plus hours a day, casing mail for three to four hours and spending four to five hours walking
and standing to deliver mail. T.G. explained that appellant was previously on an overtime desired
list, which had him working additional hours, but had since removed himself from the list a couple
of months ago. Appellant had returned to working eight hours per day and reported that he did not
want to sit in the office performing limited-duty work, asserting that he would rather perform his
regular carrier assignments.
In a May 19, 2020 response to OWCP’s development questionnaire, appellant advised that
his left knee injuries began in 2010 and had since continued to hinder his ability to perform his
job. His job consisted of walking, going up and down stairs, twisting, turning, lifting, squatting,
and being on his feet for six to seven hours daily. Appellant explained that he had been performing
these duties for 16.5 years and that he did not sustain a specific injury that caused his conditions.
By decision dated June 25, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between a diagnosed medical condition and the accepted factors of his federal employment. It

2

Ms. Paxton’s medical report diagnosed chronic right knee pain; however, this appears to be a typographical error.

3

concluded therefore that the requirements had not been met to establish an injury as defined under
FECA.
On July 28, 2020 appellant requested a review of the written record by a representative of
OWCP’s Branch of Hearings and Review.
Appellant submitted a copy of Mr. Knoblauch’s May 7, 2020 medical report.
In a June 1, 2020 operative report, Dr. Bradley Bruner, a Board-certified orthopedic
surgeon, performed an arthroscopic left partial medial meniscectomy, an arthroscopic left loose
body removal and an arthroscopic left chondroplasty to treat appellant’s left medial meniscus tear.
Dr. Bruner reported on June 11, 2020 that he evaluated appellant following his June 1,
2020 left knee surgical procedure. He diagnosed a medial meniscus tear of the left knee, loose
body of the left knee, and possible deep vein thrombosis of the left lower extremity.
In a September 16, 2020 statement, appellant detailed his employment duties over the past
17 years in which he walked approximately four to five miles a day, lifted packages, walked up
and down stairs, bended, squatted, and stood for long periods of time. He alleged that these
activities caused him to tear his meniscus twice. Appellant attached an information sheet
explaining that postal workers were susceptible to repetitive stress injuries due to their employment
duties.
In a September 23, 2020 medical report, Dr. Bruner recounted his treatment of appellant
for a retear of appellant’s left medial meniscus. He opined that appellant’s condition was a direct
result of appellant’s work for the employing establishment over the past 17 years where appellant
carried mail for approximately 10 miles per day.
In a September 24, 2020 duty status report (Form CA-17), Dr. Bruner diagnosed a tear of
the left medial meniscus and advised that appellant was able to perform his normal work duties as
of July 13, 2020.
By decision dated October 21, 2020, an OWCP hearing representative vacated the June 25,
2020 decision and remanded the case for further development.
On remand OWCP routed the case file, along with a statement of accepted facts (SOAF),
to Dr. Michael J. Johnson, a Board-certified orthopedic surgeon, for an evaluation and review of
the medical evidence of record as to whether appellant sustained a left knee condition causally
related to the accepted factors of his federal employment. In his January 7, 2021 narrative medical
report, Dr. Johnson indicated that he reviewed the SOAF as well as the medical evidence of record.
He reviewed appellant’s employment duties, history of left knee pain and left knee surgeries in
2016 and 2020. Dr. Johnson diagnosed a left knee medial meniscus tear in 2015, a left knee medial
meniscus tear in 2020 and left knee grade III chondromalacia. Referring to page 370 of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),3 he opined that, while there was “some evidence” of kneeling and squatting,
3

A.M.A., Guides (6 th ed. 2009).

4

the A.M.A., Guides did not mention standing or walking as a job task risk for a medial meniscus
tear. Dr. Johnson therefore concluded that appellant’s medial meniscus tears were secondary to
appellant’s preexisting, unrelated, degenerative chondromalacia and his age, but not his
employment duties. Referring to page 364 of the A.M.A., Guides, he explained that there was
“insufficient evidence” support a relationship between appellant’s occupation and his diagnosed
left knee arthritis/chondromalacia. Consequently, Dr. Johnson opined that appellant’s
chondromalacia was caused by a combination of appellant’s age and genetics, not his employment
tasks.
By de novo decision dated January 22, 2021, OWCP again denied appellant’s occupational
disease claim, finding that the medical evidence of record was insufficient to establish that his
diagnosed medical condition was causally related to the accepted factors of his federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 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. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

5

complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
Dr. Bruner, in his September 23, 2020 medical report, recounted his treatment for a retear
of appellant’s left medial meniscus and opined that appellant’s condition was a direct result of his
employment duties over the past 17 years where he carried mail for approximately 10 miles per
day. While he provided an affirmative opinion on causal relationship, he did not offer any medical
rationale sufficient to explain why he believes that appellant’s employment duties could have
resulted in or contributed to appellant’s diagnosed condition. Without explaining how walking
approximately 10 miles per day caused or aggravated his diagnosed medical condition,
Dr. Bruner’s September 23, 2020 medical report is of limited probative value.11
Dr. Bruner’s remaining medical evidence consisted of medical reports dated June 1 and 11,
2020 in which he indicated that he performed an arthroscopic left partial medial meniscectomy, an
arthroscopic left loose body removal, and an arthroscopic left chondroplasty to treat appellant’s
left medial meniscus tear and subsequently conducted a follow-up evaluation of his repaired knee.
He also submitted a September 24, 2020 Form CA-17 wherein he diagnosed a tear of the left
medial meniscus and advised that appellant was able to perform his normal work duties as of
July 13, 2020. However, Dr. Bruner did not offer an opinion on causal relationship in any of these
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 12 For
this reason, Dr. Bruner’s remaining medical evidence is insufficient to meet appellant’s burden of
proof.
Dr. Lucas, in medical reports dated April 29 and July 13, 2015, reviewed appellant’s
complaints of pain in his left knee and appellant’s employment duties involving walking to carry
mail. He reviewed diagnostic studies of appellant’s left knee, expressed concern that appellant
may have sustained a small medial meniscus tear, but did not offer an opinion on causal
relationship. As noted above, medical evidence that does not offer an opinion regarding the cause

9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor J. Woodhams, supra note 7.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

6

of an employee’s condition is of no probative value on the issue of causal relationship. 13
Consequently, Dr. Lucas medical reports are insufficient to meet appellant’s burden of proof.
On April 7, 2015 Dr. Hesse evaluated appellant for his complaints of pain in his low back
and left knee diagnosed low back pain and left knee pain. The Board has consistently held that a
diagnosis of “pain” does not constitute the basis for payment of compensation, as pain is a
symptom not a specific diagnosis. 14 As Dr. Hesse did not offer a valid diagnosis, his April 7, 2015
medical report is insufficient to establish appellant’s claim.
Appellant submitted multiple diagnostic studies. The Board has held, however, that
diagnostic reports standing alone lack probative value on the issue of causal relationship as they
do not address the relationship between accepted employment factors and a diagnosed condition. 15
For this reason, these diagnostic reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted medical evidence by physician assistants. However, certain
healthcare providers such as physician assistants, physical therapists, nurses, and social workers
are not considered physicians as defined under FECA. 16 Consequently, their medical findings
and/or opinions will not suffice for purposes of establishing entitlement to FECA benefits.
The remaining medical evidence consisted of Dr. Johnson’s January 7, 2021 second
opinion narrative medical report wherein he opined that appellant’s conditions were caused by a
combination of appellant’s age and genetics and not his employment tasks. As his report is
well-rationalized and based on examination and an accurate history of the employment injury, the
Board finds that Dr. Johnson’s report constitutes the weight of the medical evidence. 17
As appellant has not submitted rationalized medical evidence establishing that his left
medial meniscus tear is causally related to the accepted factors of his federal employment, the
Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

Id.

14

T.S., Docket No. 20-0343 (issued July 15, 2020); D.H., Docket No. 19-0931 (issued October 2, 2019); R.R.,
Docket No. 18-1093 (issued December 18, 2018); A.C., Docket No. 16-1587 (issued December 27, 2016); Robert
Broome, 55 ECAB 339 (2004).
15

W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB
271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
16

17

See B.B., Docket No. 20-1187 (issued November 18, 2021).

7

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left knee
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 7, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8