United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., widow of D.H., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY
& HEALTH ADMINISTRATION,
Boulder City, NV, Employer
__________________________________________

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Appearances:
Toby Rubenstein, for the appellant
Office of Solicitor, for the Director

Docket No. 13-505
Issued: May 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On January 2, 2013 appellant, through her representative, timely appealed the
September 18, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether the employee’s May 22, 2001 death was causally related to his
federal employment.

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
This case was previously before the Board.2 The decedent-employee, a former
supervisory mine safety and health inspector, passed away on May 22, 2001 at the age of 54. He
suffered cardiac arrest while at home and was transported via ambulance to Boulder City
Hospital emergency room where he was pronounced dead at 4:06 a.m. The death certificate
identified cardiopulmonary arrest as the immediate cause of death.3
A June 15, 2001 heart pathology report identified the cause of death as cardiac arrest.4
The report also revealed left ventricular hypertrophy and subendocardial fibrosis consistent with
scarring secondary to a past myocardial infarction involving the posterior left ventricle. There
was also evidence of severe coronary atherosclerosis. The right coronary artery was 90 percent
occluded, the left anterior descending coronary artery was 80 percent occluded, and the left
circumflex coronary artery was 60 percent occluded. There was no coronary thrombosis
identified. Additionally, the aortic valve and conduit showed mild atherosclerosis.
Appellant claimed that job-related stress caused her husband’s death. She subsequently
alleged that the employing establishment failed to inform the decedent-employee of the results of
a May 8, 1995 electrocardiogram (ECG) that was administered as part of an employing
establishment sponsored periodic medical examination.
The decedent-employee had a lengthy smoking history and reportedly weighed in excess
of 200 pounds at the time of death.5 His primary care physician, Dr. Robert E. Kessler, a Boardcertified family practitioner, advised that he last saw the decedent on April 13, 2001 and had
never treated him for any heart-related problems.6 He attributed the employee’s death to an
acute myocardial infarction and indicated that stress could have been a factor. Dr. Kessler was
misinformed about the June 15, 2001 pathology findings and initially believed the decedent’s
coronary arteries were “fairly clear.” After personally reviewing the pathology report, he
acknowledged that the decedent-employee had very significant coronary atherosclerosis.
At appellant’s request, Dr. Irwin Hoffman, a Board-certified internist with a subspecialty
in cardiovascular disease, reviewed the decedent’s medical records. In a March 24, 2004 report,
Dr. Hoffman noted that the decedent had severe triple vessel coronary artery disease and an old
myocardial infarction. Risk factors for developing progressive coronary atherosclerosis included

2

Docket Nos. 05-380 (issued October 3, 2005) and 06-2019 (issued March 13, 2007 and February 11, 2008).

3

An autopsy was not performed.

4

Appellant had donated her deceased husband’s heart valves and associated tissue. The heart specimen analysis
and pathology report was part of the organ donor process. Dr. Gregory S. Ray, a Board-certified pathologist,
prepared the June 15, 2001 report.
5

The emergency medical technician indicated that the decedent weighed approximately 100 kg (220 pounds).
His latest fitness-for-duty examination in June 1999 noted a height of 5’9” and a weight of 192 pounds.
6

Dr. Kessler signed the May 29, 2001 death certificate. He began treating the employee in January 1998.

2

cigarette smoking, mild dyslipidemia and job-related stress.7 Dr. Hoffman indicated that jobrelated stress accelerated the decedent-employee’s coronary atherosclerosis, making him
increasingly likely to sustain coronary disease complications, such as the ventricular fibrillation
episode that caused his death. Dr. Hoffman also stated that the failure to inform the decedent of
the May 8, 1995 abnormal ECG findings allowed his disease to progress unchecked by medical
intervention.8
The employing establishment submitted a May 8, 1995 authorization of disclosure of
medical information that was signed by the decedent. A copy of all examination components
from the May 1995 in-service evaluation were to be sent to the decedent’s home address. He
also authorized the release of medical information to the employing establishment.
The May 8, 1995 ECG computer printout noted a preliminary assessment of “borderline
ECG” and “consider inferior ischemia.” However, the examining physician, Dr. John P.
Holland, Board-certified in occupational medicine, noted on the same computer printout that the
results were “essentially normal” and the employee was “asymptomatic.” The employing
establishment provided copies of reports dated July 11 and August 15 to 16, 1995, which advised
that the decedent-employee should consult with his private physician regarding the recent ECG
results, as well as borderline cholesterol, LDL. The employing establishment represented that
this information had been conveyed to the employee.
The employing establishment also submitted a May 12, 2004 report from Dr. Barbara J.
Connors, Board-certified in both internal medicine and occupational medicine, who reviewed the
decedent-employee’s medical records, as well as Dr. Hoffman’s March 24, 2004 report. She
disagreed with Dr. Hoffman’s interpretation of the May 1995 ECG results, and instead concurred
with Dr. Holland’s finding that this study was essentially normal. With respect to job-related
stress having played a role in the employee’s death, Dr. Connors noted that during his June 24,
1999 in-service examination, the employee denied depression, excessive worry and nervous
trouble of any sort.
In a September 15, 2004 report, Dr. Hoffman expressed disagreement with Dr. Connors’
opinion. He also noted that the decedent-employee reported depression or excessive worry
during his May 8, 1995 in-service examination, which Dr. Hoffman found responsible for the
employee’s then-elevated cholesterol. In a March 31, 2006 report, Dr. Hoffman reiterated both
his finding that the employee’s death was job related, as well as his challenge to Dr. Connors’
opinion.

7

Dr. Hoffman noted the decedent-employee could not accomplish his job without working nights and weekends.
He also noted the decedent received personal and legal threats as a result of a mine investigation. OWCP accepted
as compensable the factor that the decedent worked prolonged hours and that he had been threatened regarding the
Rattlesnake Pit mine investigation.
8

Dr. Hoffman interpreted the May 1995 ECG as demonstrating abnormalities diagnostic of an inferior wall
myocardial infarction. A preemployment ECG from September 1991 was reportedly normal.

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The last time the case was on appeal, the Board set aside OWCP’s August 15 and
March 14, 2006 decisions and remanded the survivor’s claim for further medical development.9
The Board initially found a conflict in medical opinion between Dr. Connors and Dr. Hoffman
based on the mistaken belief that OWCP had referred the record to Dr. Connors. On petition for
reconsideration before the Board, the Director of OWCP noted that the employing establishment
secured Dr. Connors’ May 12, 2004 report, not OWCP. As such, there was no conflict in
medical opinion. Rather than remand for an impartial medical evaluation, OWCP requested that
the case be referred for a second opinion evaluation. Accordingly, by order dated February 11,
2008, the Board modified its March 13, 2007 decision, and remanded the case to OWCP for
referral to a Board-certified cardiologist for a second opinion evaluation.10
Since the case was last on appeal, OWCP prepared a July 1, 2008 statement of accepted
facts and then amended it three times, most recently on October 5, 2011. Additionally, it has
referred the case record for three second opinion evaluations and two impartial medical
evaluations (IME). Appellant’s claim has been consistently denied by OWCP, and the Branch of
Hearings and Review has remanded the case on several occasions for further development.
By decision dated September 20, 2011, the hearing representative found a conflict in
medical opinion between Dr. Hoffman and Dr. Raye L. Bellinger, a Board-certified cardiologist
and OWCP-referral physician. In a December 16, 2010 report, Dr. Bellinger indicated that there
was insufficient evidence to conclude that any factor(s) of employment caused, precipitated or
contributed to the employee’s May 22, 2001 death due to myocardial infarction. In reports dated
January 22 and February 15, 2011, Dr. Hoffman disagreed with Dr. Bellinger, particularly his
finding of death due to myocardial infarction. He indicated that death threats the decedentemployee received caused stress, which more than likely precipitated his fatal arrhythmia.
In a report dated October 23, 2011, Dr. Anjum Ismail, a Board-certified internist and
IME, indicated that there was no evidence the employee died of an acute fatal myocardial
infarction.11 He explained that there was no acute myocardial damage or coronary thrombosis
noted in the heart pathology report, but there was evidence of chronic coronary artery disease
with previous myocardial damage and scar involving the posterior wall of the left ventricle.
Dr. Ismail indicated that the most likely cause of death was a fatal ventricular arrhythmia due to
electrical instability of damaged myocardium. He then proceeded to address the question of
what triggered the arrhythmia. Dr. Ismail explained that factors of having a stressful job,
working long hours, being involved in a job-related investigation in April 2000, and receiving
threatening calls “can all exacerbate a cardiac condition.” However, these factors alone did not
cause the underlying chronic coronary artery disease. Dr. Ismail indicated that the decedent’s
40-year smoking history, his elevated cholesterol and gender (male) were all important risk
factors in the development of coronary artery disease. He also discussed the prevalence of
sudden cardiac death in the U.S. and identified risk factors, such as chronic smoking and left
9

The Board had earlier found that the decedent-employee’s regular job duties of investigating fatalities and
carrying out his supervisory duties, including investigating those employees he supervised, were also compensable.
10

The Board’s prior decisions are incorporated herein by reference.

11

Dr. Ismail is also Board-certified in the subspecialties of cardiovascular disease and interventional cardiology.

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ventricular hypertrophy. Dr. Ismail further noted that coronary artery disease and scarred
myocardium are sufficient to provoke ventricular tachyarrhythmia causing sudden cardiac death.
He explained that the decedent had a scar on the posterior wall of this heart, which was evidence
of a prior myocardial infarction.12
Dr. Ismail found that the decedent-employee suffered sudden cardiac death from most
likely a fatal ventricular arrhythmia rather than an acute fatal myocardial infarction. The
arrhythmia occurred because of underlying coronary disease. Dr. Ismail further explained that
the decedent developed coronary artery disease because of multiple risk factors. In response to
the question of whether job-related stress could have aggravated the decedent’s coronary artery
disease, Dr. Ismail stated “It remains a possibility.”
In a supplemental report dated January 2, 2012, Dr. Ismail discussed the difference
between ventricular tachycardia (VT) due to acute ischemia versus VT due to structural heart
disease (myocardial scar). He reiterated that the most likely cause of the employee’s death was
fatal ventricular arrhythmia due to electrical instability surrounding the previous myocardial
damage and scar involving the posterior wall of his left ventricle, as noted on the pathology
report.
By decision dated March 15, 2012, OWCP denied appellant’s claim based on the IME’s
opinion. It subsequently denied modification in a September 18, 2012 decision.13
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.14 Appellant
has the burden of proving by the weight of the reliable, probative and substantial evidence that
the employee’s death was causally related to his or her employment.15 This burden includes the
necessity of furnishing rationalized medical opinion evidence demonstrating a causal
relationship.16 The physician’s opinion must be based on a complete factual and medical
background, must be expressed in terms of a reasonable degree of medical certainty, and must be

12

Dr. Ismail noted the results of particular study which revealed that as many as half of myocardial infarctions
may be clinically silent and unrecognized by patients. He also provided statistical data on U.S. deaths due to
cardiovascular disease, including the number of annual deaths due to coronary heart disease.
13

Appellant’s representative questioned whether OWCP’s September 18, 2012 decision was a non-merit denial of
reconsideration or a merit view denying modification. The Board acknowledges that the notice of decision is
internally inconsistent. OWCP stated that a “merit review was undertaken,” but later concluded that the new
evidence submitted was insufficient to “warrant a merit review of the prior decision.” Despite the contradictions in
the body of the decision, the September 18, 2012 cover page indicated that OWCP had “not modified [its] prior
decision,” but had evaluated the evidence submitted and “reviewed the merits of [appellant’s] case.” Based on this
latter representation, the Board will exercise jurisdiction over the merits of the claim.
14

5 U.S.C. §§ 8102(a) and 8133.

15

L.R., 58 ECAB 369, 375 (2007).

16

Id.

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supported by medical rationale explaining the relationship between the employee’s death and his
or her previous employment.17
If there is disagreement between an OWCP-designated physician and the employee’s
physician, OWCP shall appoint a third physician who shall make an examination.18 For a
conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”19 Where OWCP has referred the case to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well reasoned
and based upon a proper factual background, must be given special weight.20
ANALYSIS
Appellant’s representative argued that the employing establishment was liable for the
employee’s May 22, 2001 death because of its failure to disclose to him the abnormal results of
his May 8, 1995 ECG. The purported failure to disclose this information allegedly caused a
deleterious effect on the course of the employee’s cardiac condition.
Coverage for the deleterious effects of employer-provided medical services is limited to
“employees who are voluntary participants in the employer’s sponsored health service
program....”21 Deleterious effects of employer-provided medical services may be unavoidable or
may occur because of error or agency failure to report examination results to the employee or to
the employee’s physician in time to alter the course of a disease.22 They may also result from an
act such as inadvertently administering the wrong drug, or failure to inform an employee of
positive test results.23 Following appropriate development, all cases of this type should be
referred to a district medical adviser for an opinion on whether the condition claimed was
causally related to the agency medical service or was adversely affected by the failure to
promptly alert the employee or the employee’s physician.24
Dr. Hoffman surmised that had the decedent-employee been provided information
regarding the May 8, 1995 ECG results, his life would have been prolonged. First, there is a
difference of opinion regarding the interpretation of the May 8, 1995 ECG results. While
Dr. Hoffman believed the results were indicative of a prior myocardial infarction, Dr. Holland,
who reviewed the study in conjunction with his 1995 examination of the employee, interpreted
the ECG findings as essentially normal and noted that the employee was asymptomatic at the
17

Id.

18

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321 (2012); Shirley L. Steib, 46 ECAB 309, 317 (1994).

19

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

20

Gary R. Sieber, 46 ECAB 215, 225 (1994).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.19b (March 1994).

22

Id. at Chapter 2.804.19d.

23

Id.

24

Id. at Chapter 2.804.19e.

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time. Also, Dr. Connors disagreed with Dr. Hoffman’s interpretation of the May 8, 1995 ECG
results. Second, the record does not demonstrate that the employing establishment failed to
disclose the May 1995 in-service examination findings and test results to the employee.
According to the release signed by the employee, this information was to be mailed to his home
address. Also, the employing establishment prepared contemporaneous reports disclosing the
May 1995 ECG findings, as well as information regarding the employee’s borderline cholesterol
results. Whether or not he personally received this information is unclear, and unfortunately, the
decedent-employee is unavailable to shed light on the issue. The fact that appellant and
Dr. Kessler were previously unaware of the May 1995 test results is not proof that the employing
establishment failed to timely disclose the information to the decedent-employee.25 Apart from
Dr. Hoffman’s speculation, there is no proof that the employee’s May 22, 2001 death was
adversely affected by the employing establishment’s purported failure to promptly alert him of
the May 1995 examination results.
Appellant’s representative also invoked the human instincts doctrine as a basis for
liability. However, her reliance on this doctrine is misplaced. An employer has the duty to make
reasonable efforts to procure medical aid or other means of relief for an employee who becomes
ill or injured on the job, and as a result is helpless to provide for his own care.26 A failure to
satisfy this duty -- the human instincts doctrine -- may be sufficient to establish a causal
connection between an employee’s condition and the employment if it is shown that the
employer’s failure contributed to the claimed condition.27 The decedent employee was off-duty
and at home just prior to his death at 4:06 a.m. on May 22, 2001. Consequently, the human
instincts doctrine is inapplicable.
Notwithstanding the above-noted findings, the question of whether the employee’s death
was employment related is not in posture for decision. Dr. Ismail, the IME, did not adequately
resolve the issue of whether job-related stress contributed to the decedent-employee’s coronary
artery disease. In his October 23, 2011 report, Dr. Ismail stated “It remains a possibility.”
Earlier in his report, the IME noted that the factors of having a stressful job, working long hours,
being involved in a job-related investigation in April 2000, and receiving threatening calls “can
all exacerbate a cardiac condition.” He did not definitively state whether the decedentemployee’s job duties exacerbated his cardiac condition. The IME merely noted that it remains a
possibility. Thus, the question remains as to whether the accepted compensable employment
factors contributed to the employee’s May 22, 2001 cardiac arrest.
The IME’s report must actually fulfill the purpose for which it was intended; it must
resolve the conflict in medical opinion.28 OWCP should ensure that the IME’s report is
comprehensive, clear and definite and that it is based on current information and supported by

25

Moreover, Dr. Kessler did not begin to treat the employee until approximately two-and-a-half years later.

26

J.W., Docket No. 11-1655 (issued May 18, 2012); Joseph J. Rotelli, 40 ECAB 987, 992 (1989).

27

J.W., id.

28

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing & Evaluating Medical Evidence, Chapter
2.810.11d(2) (September 2010).

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substantial medical reasoning, as well as a review of the case file.29 If the referee specialist
submits an opinion which is equivocal, lacks rationale, or fails to address the specified medical
issues or conflict, OWCP is obliged to seek clarification from the IME.30 Because of the abovenoted defect in Dr. Ismail’s opinion, the Board finds the case is not in posture for decision.
Accordingly, OWCP’s September 18, 2012 decision shall be set aside and the case remanded for
further development.
If Dr. Ismail is either unwilling or unable to provide the necessary clarification, then
OWCP should refer appellant to another IME.31 After OWCP has developed the case record
consistent with the Board’s directive, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.

29

Id.

30

Id. at Chapter 2.810.11e.

31

Id.

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ORDER
IT IS HEREBY ORDERED THAT the September 18, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: May 8, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, PARCEL POST
ANNEX, Cleveland, OH, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1128
Issued: March 3, 2016

Case Submitted on the Record

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

On April 22, 2015 the Clerk of the Appellate Boards received a medical report
referencing appellant. Appellant later, on May 4, 2015, filed an appeal of a February 11, 2015
decision of the Office of Workers’ Compensation Programs (OWCP) OWCP File No.
xxxxxx451. The Board assigned Docket No. 15-1128. On May 12, 2015 an appeal was filed
from an April 27, 2015 OWCP decision.
On August 19, 1977 appellant filed a traumatic injury claim (Form CA-1) alleging that on
August 17, 1977 he injured his back while lifting a heavy trash can. OWCP accepted the claim
for minimal spasm left paravertebral muscles, which was subsequently expanded to included left
knee dislocation, loosening of a left knee arthroplasty, and right knee medial meniscus tear.1

1

This was assigned OWCP File No. xxxxxx451. A FECA nonfatal summary form noted concurrent disability
not due to injury under OWCP File No. xxxxxx591 with a May 18, 1978 injury date and OWCP File No.
xxxxxx105 with an injury date of November 29, 1978. OWCP accepted a lumbar strain for the May 18, 1978 injury
and a recurrent right inguinal hernia with an April 1, 1979 repair due to a November 29, 1978 injury. A
December 3, 2013 memorandum to file assigned OWCP File No. xxxxxx451 as the master file and there were
subsidiary files. The subsidiary files included OWCP File Nos. xxxxxx968, xxxxxx590, xxxxxx105, and
xxxxxx591.

On October 16, 2012 appellant filed a claim for a schedule award. By decision dated
December 21, 2012, OWCP denied appellant’s claim for a schedule award. Appellant
subsequently submitted a May 1, 2013 report from Dr. Audley M. Mackel, III, a treating Boardcertified orthopedic surgeon. Dr. Mackel determined that appellant had a 50 percent left lower
extremity permanent impairment due to total knee replacement using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).
An OWCP medical adviser reviewed Dr. Mackel’s impairment rating and determined that
appellant was entitled to an impairment rating of 23 percent for the left lower extremity.2 By
decision dated March 13, 2014, OWCP denied appellant’s request for an additional schedule
award. It found that, as he had previously received a schedule award on May 16, 1994 for 37
percent for each lower extremity under OWCP File No. xxxxx593 and the current medical
evidence established a 23 percent left lower extremity impairment, he was not entitled to an
additional schedule award.
In response to the denial of his request for an additional schedule award appellant
submitted an October 31, 2014 report by Dr. Susan E. Stephens, an examining Board-certified
orthopedic surgeon, who determined that appellant had a 30 percent whole person impairment
using the sixth edition of the A.M.A., Guides. An OWCP medical adviser reviewed
Dr. Stephens’ impairment rating and determined that appellant was entitled to an impairment
rating of 23 percent for the left lower extremity. By decision dated February 11, 2015, OWCP
denied appellant’s request for an additional schedule award. In support of the denial, it related
that on September 28, 1976 appellant had previously been granted a schedule award for a 10
percent left lower extremity impairment under OWCP File No. xxxxxx590. OWCP stated that
appellant had also been granted a schedule award for 37 percent right lower extremity
impairment and 37 percent left lower extremity impairment under OWCP File No. xxxxx593.
As he had previously received schedule awards totaling 47 percent left lower extremity
impairment and the current medical evidence established 23 percent left lower extremity
impairment, he was not entitled to an additional schedule award.
The Board has duly considered the matter and concludes that the case is not in posture for
a decision. OWCP procedures provide that cases should be doubled when a new injury is
reported for an employee who had previously filed an injury claim for a similar condition and it
further states that the cases should be doubled as soon as the need to do so becomes apparent.3
The record contains evidence that under OWCP File No. xxxxxx593 it had accepted a claim for
lumbosacral strain, L4 herniated disc, and postlaminectomy, secondary to 1992 back surgery.
Under this claim appellant had been awarded 37 percent left lower extremity impairment and a
37 percent right lower extremity impairment.

2

OWCP’s medical adviser mistakenly referred to the right lower extremity instead of the left lower extremity.
He referenced this error in his February 5, 2015 report.
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Doubling Case Files, Chapter 2.400.8(c)(1)
(February 2000); see T.M., Docket Nos. 09-1090 & 09-2226 (issued March 8, 2010).

2

As OWCP determined that appellant was not entitled to an additional schedule award
since he had previously received a schedule award for 37 percent left lower extremity
impairment under OWCP File No. xxxxxx593, the Board concludes that OWCP should have
doubled the case files in accordance with its procedures. As the record before the Board does not
contain evidence from the prior claim referenced by OWCP, the Board is unable to properly
address and adjudicate the schedule award issue. On remand OWCP should combine the present
case record, OWCP File No. xxxxxx451, with OWCP File No. xxxxxx593. After combining
these case records, it should consider the evidence contained in the combined case record and,
following any necessary further development, issue a de novo decision on the issue of whether
appellant is entitled to an additional schedule award. Accordingly, the February 11, 2015
decision denying appellant’s claim for an additional schedule award should be set aside.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 11, 2015 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: March 3, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., claiming as widow of S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lubbock, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1420
Issued: June 20, 2019

Case Submitted on the Record

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

On July 17, 2018 appellant filed a timely appeal from a January 18, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 18-1420.
The employee, then a 45-year-old letter carrier, was injured on November 4, 1987 when he
reached up to place mail in a receptacle while in the performance of duty. OWCP accepted right
shoulder strain and approved multiple surgeries. It also accepted the condition of major
depression. The employee was placed on the periodic compensation rolls in 2004.
On EN1032 forms signed by the employee dated April 1, 2008 to April 16, 2015, he
reported that he was receiving Social Security Administration (SSA) benefits. On May 3, 2015
SSA forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits calculation
form to OWCP. This indicated that the employee had received SSA retirement benefits beginning
in February 2008. SSA also provided information regarding the rates at which he received benefits
through 2014.
On June 4, 2015 OWCP issued a preliminary finding that an overpayment of compensation
in the amount of $31,239.00 had been created. It explained that the overpayment occurred because
a portion of the employee’s SSA benefits that he received from February 1, 2008 to May 30, 2015
was based on credits earned while working in the Federal Government, and that this portion of his

SSA benefits was a prohibited dual benefit. OWCP found the employee not at fault in the creation
of the overpayment and provided an overpayment action request form and an overpayment
recovery questionnaire (Form OWCP-20).
Appellant’s wife notified OWCP that the employee died on July 15, 2015.1 The
preliminary overpayment was resent on July 28, 2015. In a separate letter dated July 28, 2015,
OWCP forwarded a questionnaire to be completed by the employee’s estate. On August 4, 2015
appellant forwarded an incomplete overpayment action request and an overpayment questionnaire
listing household income and household expenses. She attached financial information regarding
the employee’s burial. On August 11, 2015 appellant submitted her responses to the questionnaire.
She indicated that she was the only relative who could be entitled to a share in the distribution of
the estate, and responded “NA” to the question of whether an executor or administrator had been
appointed. Appellant reported that the employee did not die intestate.
On May 11, 2016 OWCP issued a new preliminary determination, addressed to the
employee’s estate, finding that an overpayment of compensation in the amount of $31,239.00 had
been created. On an overpayment action request form dated June 10, 2016, appellant requested
waiver of the overpayment. She wrote that there was $0.00 in the employee’s estate and she was
still paying credit card debt that he owed. Appellant attached an overpayment questionnaire which
indicated zero income, zero assets, and credit card expenses of $16,770.31.
By decision dated January 18, 2018, OWCP finalized the preliminary determination of a
$31,239.00 overpayment of compensation. It determined that the estate was without fault in the
creation of the overpayment, but that the circumstances of the case did not warrant waiver of
recovery of the overpayment because no supportive financial information had been submitted.
Upon review of the case record submitted by OWCP, the Board finds that the record before
it is incomplete. OWCP’s procedures provide that when information is received which establishes
that benefits have been overpaid, OWCP is responsible for ensuring that an overpayment exists, is
formally identified, and that compensation is adjusted accordingly. An overpayment can occur
when compensation is not reduced by the FERS/SSA offset.2 OWCP’s procedures discuss
recovery of an existing debt from a deceased debtor’s estate, noting that OWCP must quickly and
efficiently obtain pertinent information about the estate, noting that state law differs in this regard.
The procedures describe action OWCP should take to collect the balance of an overpayment from
an estate.3 The procedures indicate that OWCP should immediately contact the Office of
Personnel Management (OPM), immediately send a letter to the employee’s estate directed to the
individual most likely to be named personal representative, and must state that OWCP is making
a claim against the estate. It should also request the name of the personal representative or executor
for the estate and the name of the court where a probate estate case would be opened. The

1

The employee’s death certificate lists the cause of death as coronary artery disease.

2

5 U.S.C. § 8116(d).

3

These include contacting OPM with specific questions regarding availability of OPM benefits payable at the time
of death that may be administratively offset. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.4(e) (June 2009).

2

procedures continue that after 30 days, OWCP should send a final overpayment letter to the estate
and include additional steps to be taken following a final overpayment determination.4
The record establishes that OWCP mailed appellant a form to complete. Appellant’s
answers were partially nonresponsive, e.g., “NA” to the question of whether an executor or
administrator had been appointed, and she indicated that the employee did not die intestate. OWCP
did not follow-up and ask more specific questions regarding whether there was an administrator
or where the probate case would be opened. Moreover, it did not promptly issue a final
overpayment decision. Rather, it waited 20 months before rendering a final overpayment
determination.
The Board finds the record lacks sufficient evidence for it to render an informed decision
as to the issues pending on appeal. Although OWCP obtained some evidence from OPM, the
Board is unsatisfied that this is the type of evidence required under OWCP procedures. The case
shall, therefore, be remanded to OWCP for further development. On remand OWCP should obtain
more specific information regarding the employee’s estate, including probate information, and a
marriage license showing that appellant is his widow. After OWCP has developed the record
consistent with the above-noted procedures, it shall issue a de novo decision regarding the
overpayment of compensation.
IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.

4

Id.

3

Issued: June 20, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Montgomery, AL,
Employer
__________________________________________

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

Docket No. 16-1034
Issued: October 4, 2016

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 April 20, 2016 appellant filed a timely appeal from an April 7, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has established more than two percent permanent
impairment for binaural tinnitus, for which he received a schedule award.
On appeal, appellant argues that he has greater than two percent impairment from tinnitus
affecting activities of daily living, and that OWCP miscalculated his award of compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 24, 2014 appellant, then a 53-year-old human resources officer, filed an
occupational disease claim (Form CA-2) alleging hearing loss as a result of high levels of noise
exposure from military and civilian equipment. He became aware of his condition and of its
relationship to his employment on September 10, 2008. In a letter of the same date, appellant
explained that his claim was based on additional hearing loss incurred since September of 2008
due to hazardous noise conditions related to his employment.2
OWCP referred appellant to Dr. Dennis G. Pappas, a Board-certified otolaryngologist, for
a second opinion evaluation. In a December 4, 2014 report, Dr. Pappas diagnosed appellant with
sensorineural hearing loss. He opined that appellant’s hearing loss was due in part to noise
exposure encountered in appellant’s civilian employment. Audiometric testing at the frequency
levels of 500, 1,000, 2,000, and 3,000 cycles per second revealed the following: left ear 55, 45,
50, and 55 decibels; right ear 50, 40, 30, and 50 decibels. Dr. Pappas recommended that
appellant continue to wear a hearing aid.
OWCP forwarded Dr. Pappas’ report to a district medical adviser (DMA) for review on
January 12, 2015. In a January 13, 2015 report, the DMA calculated that appellant had a
binaural hearing loss of 28 percent. He authorized hearing aids.
By decision dated January 15, 2015, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On January 23, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated January 23, 2015, OWCP noted that it had not received sufficient
evidence to expand appellant’s claim to include tinnitus. It requested that appellant submit
additional evidence.
In a report dated March 5, 2015, Dr. Pappas related that appellant had a history of noise
exposure from his work and has filed previous hearing loss claims in 2001 and 2007 and in 2014.
He also noted that despite hearing aid use, appellant’s tinnitus continued in both ears.
Dr. Pappas specifically related that “the tinnitus is bothersome as it can interfere sometimes with
sleep or routine daily activities. [Appellant] also reports difficulty concentrating and even
reading because of the tinnitus symptoms. He has difficulty relaxing in this regard.... In my
opinion, according to [appellant’s] history, hearing test findings, [appellant’s] hearing loss and
tinnitus are due to noise exposure encountered with [appellant’s] federal civilian employment.”

2

Appellant had previously received schedule awards for hearing loss under OWCP file numbers xxxxxx259 and
xxxxxx128. In a decision dated May 17, 2001, under OWCP file number xxxxxx259, OWCP issued a schedule
award for 15 percent binaural hearing impairment. In a decision dated December 22, 2008, under claim number
xxxxxx128, it issued a schedule award for an additional 5 percent binaural hearing impairment, noting that
appellant’s total binaural impairment was 20 percent.

2

On March 12, 2015 OWCP requested more information from appellant’s treating
physician on the issue of appellant’s tinnitus and whether it was related to duties of his federal
employment.
By decision dated April 14, 2015, OWCP issued a schedule award for an additional 8
percent binaural hearing impairment, noting that appellant’s total impairment was 28 percent.
On July 8, 2015 Dr. Pappas responded to OWCP’s March 12, 2015 letter, diagnosing
appellant with hearing loss and explaining that tinnitus can be a symptom of hearing loss
regardless of etiology.
By decision dated August 27, 2015, OWCP expanded appellant’s claim to accept bilateral
tinnitus.
By letter dated November 5, 2015, appellant requested an additional schedule award
based on his hearing loss due to tinnitus.
On December 9, 2015 OWCP replied that appellant needed to exercise his appeal rights
from the decision of April 14, 2015 in order to claim additional impairment related to his
tinnitus.
By letter dated December 23, 2015, appellant requested reconsideration of OWCP’s
April 14, 2015 decision. In an attached letter, he noted that Dr. Pappas had opined that his
tinnitus impacted activities of daily living.
On March 23, 2016 OWCP forwarded the case file and a statement of accepted facts to a
district medical adviser for calculation of appellant’s percentage of hearing impairment. In a
report dated March 31, 2016, the DMA noted:
“In the March 5, 2015 report, Dr. Pappas indicated that [appellant’s] tinnitus
affects the ability to concentrate and read. He states that tinnitus ‘can interfere
sometimes with sleep and routine daily activities’ but did not say this was
happening with [appellant]. Based upon this I assigned an additional two percent
for [appellant’s] tinnitus bringing the final binaural hearing impairment of 30.4
percent.... [Appellant] has tinnitus in presence of binaural hearing impairment.
The tinnitus impacts the following activities of daily living (ADLs):
Concentration when Reading. Based upon this I recommend an additional 2
percent impairment for the tinnitus.”
By decision dated April 6, 2016, OWCP vacated its decision of April 14, 2014. On
April 7, 2016 it issued a schedule award for an additional 2 percent impairment due to tinnitus,
for a total of 30 percent binaural impairment. The weekly pay listed in this schedule award was
$2,855.13, which, multiplied by the 75 percent compensation rate, resulted in $2,141.35. The
number of weeks of compensation was listed as four weeks, and the total payment was listed as
$7,622.44.

3

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.5 The A.M.A., Guides have been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides point out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions. The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.9 The A.M.A., Guides state that, if tinnitus
interferes with ADLs, including sleep, reading (and other tasks requiring concentration),
enjoyment of quiet recreation and emotional well-being, up to five percent may be added to a
measurable binaural hearing impairment.10
ANALYSIS
The Board finds that this case is not in posture for decision because the DMA’s report
upon which OWCP relied in granting appellant an additional two percent schedule award for
tinnitus was not well rationalized.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See D.K., Docket No. 10-174 (issued July 2, 2010); Michael S. Mina, 57 ECAB 379, 385 (2006).

6

20 C.F.R. § 10.404; see F.D., Docket No. 09-1346 (issued July 19, 2010).

7

See A.M.A., Guides 250 (6th ed. 2009).

8

J.H., Docket No. 08-2432 (issued June 15, 2009); J.B., Docket No. 08-1735 (issued January 27, 2009).

9

See A.M.A., Guides 249 (6th ed. 2009).

10

Id. See also R.O., Docket No. 13-1036 (issued August 28, 2013); R.H., Docket No. 10-2139 (issued July 13,
2011); Robert E. Cullison, 55 ECAB 570, 573 (2004).

4

In a report dated March 31, 2016, the DMA noted:
“In the March 5, 2015 report, Dr. Pappas indicated that [appellant’s] tinnitus
affects the ability to concentrate and read. He states that tinnitus ‘can interfere
sometimes with sleep and routine daily activities’ but did not say this was
happening with [appellant]. Based upon this I assigned an additional 2 percent for
[appellant’s] tinnitus bringing the final binaural hearing impairment of 30.4
percent.... [Appellant] has tinnitus in presence of binaural hearing impairment.
The tinnitus impacts the following ADLs: Concentration when Reading. Based
upon this I recommend an additional two percent impairment for the tinnitus.”
In Dr. Pappas’ report dated March 5, 2015, he noted:
“Despite the hearing aid use, the patient’s tinnitus continues in either ear. The
tinnitus is bothersome as it can interfere sometimes with sleep or routine daily
activities. [Appellant] also reports difficulty concentrating and even reading
because of the tinnitus symptoms. He has difficulty relaxing in this regard.... In
my opinion, according to [appellant’s] history, hearing test findings, [appellant’s]
hearing loss and tinnitus are due to noise exposure encountered with [appellant’s]
federal civilian employment.”
The Board notes that the DMA mischaracterized Dr. Pappas’ report. The DMA claimed
that Dr. Pappas did not say that tinnitus interfered with appellant’s sleep and routine daily
activities. The DMA claimed that Dr. Pappas instead only addressed tinnitus’ effect on sleep and
daily routines generally. However, Dr. Pappas’ report is clearly referencing the effect
appellant’s tinnitus has on activities of appellant’s daily life, specifically, and not the effects of
tinnitus generally. Moreover, the DMA’s report ignores Dr. Pappas’ stated effects of appellant’s
tinnitus on his sleep, his general level of concentration, his ability to relax, and his routine daily
activities in general. Because the DMA’s report is not well-rationalized based on its incorrect
interpretation of the medical case record, it cannot serve as a basis for appellant’s increased
schedule award for tinnitus.11
The Board further notes that it is unclear as to whether OWCP miscalculated appellant’s
total payment in its April 7, 2016 schedule award decision. In its April 7, 2016 schedule award
decision, OWCP noted that appellant was entitled to four weeks of compensation at a weekly pay
rate of $2,855.13 at a compensation rate of 75 percent, resulting in weekly compensation of
$2,141.35. However, OWCP calculated his total award to be only $7,622.44, which would
equate to weekly compensation of only $1,905.61. There are no deductions or cost-of-living
adjustments contained in OWCP’s calculations that would explain this difference. As such, it is
unclear how OWCP calculated appellant’s total schedule award. In deciding matters pertaining
to a given claimant’s entitlement to compensation benefits, OWCP is required by statute and
regulation to make findings of fact.12 As this case is not in posture for decision due to
11

See generally Daniel E. Shown, Docket No. 05-0610 (issued June 16, 2005). In addressing questions regarding
hearing loss, the opinion of the DMA must be well rationalized.
12

See F.M., Docket No. 16-0198 (issued July 6, 2016).

5

insufficient medical evidence, this issue regarding calculation of the schedule award should be
resolved upon the issuance of a de novo schedule award decision after appropriate medical
development.
The Board will set aside OWCP’s April 7, 2016 schedule award decision and remand to
OWCP for a second opinion evaluation as to whether appellant is entitled to an additional
impairment from tinnitus. After this and any other development OWCP deems appropriate, it
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 7, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for additional development
consistent with the Board’s decision.
Issued: October 4, 2016
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-571
Issued: May 9, 2008

Case Submitted on the Record

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

JURISDICTION
On December 18, 2007 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decisions dated January 18 and November 15, 2007,
terminating her medical benefits and finding that she failed to establish continuing employmentrelated disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of this appeal.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s medical benefits
on the grounds that she no longer had any residuals causally related to her May 7 and July 24,
1985 employment-related injuries; and (2) whether she had any continuing employment-related
residuals after January 18, 2007.

FACTUAL HISTORY
This case has previously been before the Board on three occasions. In decisions dated
September 14, 2000,1 August 4, 20032 and February 9, 2005,3 the Board found that the Office
properly denied appellant’s requests for reconsideration regarding its finding that she did not
sustain a recurrence of disability on November 7, 1986 causally related to her May 7, 1985 injury
on the grounds that they were not timely filed and failed to establish clear evidence of error. The
facts and the circumstances of the case as set forth in the Board’s prior decisions are incorporated
herein by reference.4 The facts and the history relevant to the present issue are hereafter set
forth.
On December 1, 2003 appellant filed a traumatic injury claim assigned number 102028103 alleging that on July 24, 1985 she hurt her left side, arms and neck while working on a
letter sorter machine. The Office accepted the claim for cervical and thoracic strains and left
trapezius myositis. The Office combined the files into a master claim assigned number
100348086.
On March 17, 2005 appellant filed a claim for wage-loss compensation (Form CA-7)
beginning November 7, 1986. She submitted a May 18, 2005 medical report of Dr. Robin D.
Snead, an attending internist, who opined that appellant’s May 7 and July 24, 1985 work-related
injuries had not resolved. Dr. Snead stated that an April 2005 magnetic resonance imaging
(MRI) scan showed a partially torn left supraspinitis muscle. He further stated that appellant
experienced pain in her left shoulder, neck and back since her 1985 work injury.
By decision dated June 23, 2005, the Office found the medical evidence of record
insufficient to establish that appellant was totally disabled during the period November 7, 1986
through March 17, 2005 due to her accepted injuries. The Office, however, stated that she would
be referred to a second opinion examination to determine whether she had residuals of her
accepted employment injuries.
By letter dated July 6, 2005, the Office referred appellant, together with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Richard H.
Sidell, Jr., a Board-certified orthopedic surgeon, for a second opinion medical examination.
In a letter dated July 11, 2005, appellant requested a review of the written record by an
Office hearing representative regarding the June 23, 2005 decision.
1

Docket No. 99-958 (issued September 14, 2000).

2

Docket No. 03-956 (issued August 4, 2003).

3

Docket No. 04-1741 (issued February 9, 2005).

4

On May 7, 1985 appellant, then a 28-year-old letter sorter machine operator, filed a traumatic injury claim
(Form CA-1) assigned number 10-0348086 alleging on that date she hurt her ankle, left hip and the left side of her
neck when she slipped down a flight of stairs. The Office accepted the claim for cervical and lumbar strains and left
hip and ankle sprains. The Office later accepted that appellant sustained a recurrence of disability on July 24, 1985
causally related to her May 7, 1985 employment injuries.

2

In an August 12, 2005 report, Dr. Sidell stated that appellant suffered from Marfan
syndrome by history. She also had multiple subjective complaints of a relatively normal
examination of the musculoskeletal system with the exception of minimal sclerosis. Dr. Sidell
opined that appellant did not have any condition causally related to her May 7 or July 24, 1985
employment injuries. He stated that she could return to her preinjury level of work with no
restrictions.
By decision dated December 1, 2005, an Office hearing representative affirmed the
June 23, 2005 decision. She found that appellant failed to submit sufficiently rationalized
medical evidence establishing that her disability beginning on November 7, 1986 was causally
related to her July 24, 1985 employment injuries.
On December 19, 2005 the Office determined that there was a conflict in the medical
opinion evidence between Dr. Snead and Dr. Sidell as to whether appellant had any continuing
employment-related residuals. By letter dated January 6, 2006, it referred appellant, together
with a statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Mukund Komanduri, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a February 6, 2006 report, Dr. Komanduri provided a detailed review of appellant’s
medical records including the April 26, 2005 MRI scan which he found demonstrated a partial
thickness rotator cuff tear. He also reviewed a history of her employment injuries and medical
treatment. Dr. Komanduri reported essentially normal findings regarding the cervical and
lumbar spines, shoulders and upper and lower extremities, with the exception of muscular
spasms in the neck, shoulders and hip on the left side which he was unable to identify any
anatomic cause. He also reported some mild tenderness in the left shoulder with impingement
testing. Dr. Komanduri opined that appellant did not have any ongoing medical condition
causally related to her May 7 and July 24, 1985 employment injuries. He found no evidence of
ongoing pathology. Dr. Komanduri stated that, based on appellant’s current level of function,
she could work without restrictions. Appellant also did not require any further medical care or
treatment. Dr. Komanduri concluded that no specific diagnosis of Marfan syndrome was noted
in appellant’s medical records in response to the Office’s question as to whether the May 7 and
July 24, 1985 employment injuries caused or aggravated this condition.
In a March 8, 2006 letter, the Office issued a notice of proposed termination of medical
compensation based on Dr. Komanduri’s February 6, 2006 medical opinion. On April 6, 2006
appellant contended that she had experienced residuals of her accepted employment injuries
during the prior 20 years. She also contended that her preexisting connective tissue disorder was
aggravated by her injuries.
A May 6, 1986 x-ray report of a physician whose signature is illegible stated that
appellant had a slight loss of normal cervical lordosis in the neutral position. Dr. Snead’s
April 4, 2006 report stated that she sustained a tear of the left supraspinitis tendon, left
supraspinitis tendinitis, left scapula myositis, left trapezius myositis, muscle spasm of the
cervical spine, thoracic and lumbar sacral arthropathy-osteopenia of the left hip, Marfan
syndrome, hypertension and migraines. He opined that appellant’s May 7 and July 24, 1985

3

employment injuries had not resolved. Dr. Snead did not know if the pain appellant experienced
would ever resolve since it had lasted for 20 years.
By decision dated April 13, 2006, the Office terminated appellant’s medical
compensation benefits. It found that the evidence she submitted was insufficient to overcome
the special weight accorded to Dr. Komanduri’s impartial medical report. In an April 17, 2006
letter, appellant requested an oral hearing before an Office representative.
By decision dated August 4, 2006, an Office hearing representative reversed the April 13,
2006 decision. He found that the Office did not meet its burden of proof in terminating
appellant’s medical compensation benefits based on Dr. Komanduri’s opinion. The hearing
representative found that the opinion was of diminished probative value because it was not
sufficiently rationalized. The Office was instructed to prepare a new statement of facts and refer
appellant back to Dr. Komanduri for examination and opinion as to whether his physical and
diagnostic findings represented residuals of the accepted May 7 or July 24, 1985 employment
injuries. The Office was also instructed to ask Dr. Komanduri to review and comment on
Dr. Snead’s May 18, 2005 and April 4, 2006 reports.
By letter dated November 2, 2006, the Office requested that Dr. Komanduri submit a
supplemental report clarifying his examination findings related to muscle spasms in appellant’s
lumbar and cervical area, mild tenderness on the left shoulder impingement test and a partial
thickness tear based on the April 2005 MRI scan.
In a November 30, 2006 supplemental report, Dr. Komanduri noted that his statement
regarding the presence of muscular spasm was a typographical error. His examination of the
cervical and lumbar spine showed preexisting degenerative disc disease that was not causally
related to a work injury. Dr. Komanduri stated that the positive MRI scan was performed almost
a year prior to his examination and that the findings regarding the partial thickness tear from
April 2005 had clearly resolved. He related that a June 7, 2005 left shoulder arthrogram was
completely negative for any sign of a full thickness tear. Dr. Komanduri opined that any
residuals of the accepted employment injuries had resolved. He stated that Dr. Snead had not
met any reasonable medical standards to make a diagnosis of Marfan syndrome. Dr. Komanduri
examined appellant and did not find any evidence of joint hypermobility or arachnodactyly that
would support a diagnosis of Marfan syndrome. Appellant did not have such a long thumb that
jetted out from her closed fist. Outside of her being tall and thin, there were no findings to
support a diagnosis of Marfan syndrome. Dr. Komanduri noted that he was not professionally
qualified as geneticist or a rheumatologist to classify the nature of appellant’s connective tissue
disorder.
By letter dated December 8, 2006, the Office issued a notice of proposed termination of
medical compensation based on Dr. Komanduri’s November 30, 2006 medical opinion. It
provided 30 days in which appellant could respond.
Appellant submitted an August 24, 2006 chest x-ray report of Dr. Jesse M. Reyes, a
Board-certified radiologist, which was normal. A November 2, 2006 treatment note of
Dr. Huma T. Mulk, an internist, stated that appellant had several conditions including, Marfan
syndrome. An April 4, 2006 report of Dr. James N. Dreyfus, a Board-certified internist, stated

4

that she suffered from cervical and lumbosacral osteoarthritis and degenerative disc disease, and
Marfan syndrome and chronic pain following the May 7, 1985 employment incident.
By letter dated December 19, 2006, the Office requested that Dr. Komanduri review the
evidence submitted by appellant and provide an opinion as to whether she had Marfan’s
syndrome and any continuing residuals of her May 7 and July 24, 1985 employment injuries. In
a supplemental report dated January 17, 2007, Dr. Komanduri stated that appellant did not have
Marfan syndrome as there was no evidence that she had a history of aortic disease or had been
diagnosed with Marfan syndrome. He noted that she simply related to Dr. Dreyfus that she
suffered from this condition. Dr. Komanduri stated that Dr. Dreyfus’s finding that appellant had
an extremely long thumb that extended past the palm when she made a fist was not consistent
with his original physical examination findings. The length of the thumb and the arachnodactyly
were not substantial enough to make a diagnosis of Marfan syndrome. Dr. Komanduri noted the
major criteria for diagnosing this condition which were not present on appellant’s examination.
He reiterated that she no longer had any residuals of her accepted employment injuries had not
changed.
By decision dated January 18, 2007, the Office terminated appellant’s medical benefits
compensation. It accorded special weight to Dr. Komanduri’s opinion in finding that appellant
did not sustain Marfan syndrome and that she no longer had any residuals of her accepted May 7
and July 24, 1985 employment injuries.
In reports dated April 23, July 30 and August 13, 2007, Dr. Ronald Michael, a Boardcertified neurosurgeon, stated that appellant sustained a herniated nucleus pulposus at C4-5 and
C5-6 and cervical degenerative disc disease at C6-7. She also had a disc protrusion at L4-5 and
lumbar degenerative disc disease. An August 27, 2007 addendum report of Dr. Steven W.
Fitzgerald, a Board-certified radiologist, found that appellant had some degree of tendinopathy of
the rotator cuff tendon centered upon the supraspinatus tendon. Dr. Fitzgerald stated that there
was no tendon disruption or retraction identified. The previously discussed abnormality of the
inferior glenoid and labrum was not present on the prior examination which was suggestive of an
interval injury. Dr. Fitzgerald stated that no labral pathology on a prior examination in 2005 was
identified. An August 26, 1985 x-ray report of a physician whose signature is illegible
diagnosed hypolordosis of the cervical spine and stated that the lumbar spine was unremarkable.
In an August 18, 2007 letter, appellant, through her attorney, requested a review of the
written record by an Office hearing representative regarding the January 18, 2007 decision. She
submitted Dr. Fitzgerald’s August 23, 2007 MRI scan report regarding her left shoulder.
Dr. Fitzgerald stated that appellant had degenerative changes of the acromioclavicular joint in
association with lateral acromial downstopping and rotator cuff tendinopathy without evidence
of a tendon tear. He also found an abnormal appearance of the inferior labrum which extended
to involve the anterioinferior and posteroinferior regions. The appearance and signal of this
lesion was suggestive of a nondisplaced labral tear. Some associated irregularity of the inferior
portion of the glenoid was present which may represent an area of a previous injury. No
osteochondral defects or fractures were identified. Dr. Fitzgerald recommended further
evaluation of these findings with an MRI scan shoulder arthrography and/or shoulder
arthroscopy if clinically warranted.

5

By decision dated November 15, 2007, an Office hearing representative affirmed the
January 18, 2007 decision. He accorded special weight to Dr. Komanduri’s medical opinion as
an impartial medical specialist in finding that appellant no longer had any residuals causally
related to her May 7 and July 24, 1985 employment injuries.
LEGAL PRECEDENT -- ISSUE 1
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that the employee no longer has residuals of an employment-related condition, which
require further medical treatment.5
Section 8123 of the Federal Employees’ Compensation Act provides that, 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.6 When 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.7
ANALYSIS -- ISSUE 1
The Board notes that a conflict in medical opinion arose between Dr. Snead, an attending
physician, and Dr. Sidell, an Office referral physician, as to whether appellant had any
continuing residuals causally related to her accepted cervical, lumbar and thoracic strains, left
hip and ankle sprains and left trapezius myositis. Dr. Snead opined that appellant had continuing
residuals of her accepted employment injuries. Dr. Sidell opined that appellant had no residuals
or disability causally related to her employment-related injuries.
The Office referred appellant to Dr. Komanduri, selected as the impartial medical
specialist. In a February 6, 2006 report and a November 30, 2006 supplemental report,8 he listed
no objective findings of residuals relative to the accepted May 7 and July 24, 1985 employmentrelated injuries. After reviewing appellant’s medical records and reporting essentially normal
findings on physical examination, he opined that any residuals of the accepted employment
injuries had resolved. Dr. Komanduri found no evidence of ongoing pathology. He explained
5

T.P., 58 ECAB ___ (Docket No. 07-60, issued May 10, 2007); John F. Glynn, 53 ECAB 562 (2002).

6

5 U.S.C. § 8123.

7

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Robert V. Disalvatore, 54 ECAB 351 (2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager,
54 ECAB 317 (2003); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).
8

The Board notes that it was proper for the Office to seek clarification from Dr. Komanduri as the Board has held
that, when the Office secures an opinion from an impartial medical specialist for the purpose of resolving a conflict
in the medical evidence and the opinion from the specialist requires clarification or elaboration, the Office has the
responsibility to secure a supplemental report from the specialist. See Phillip H. Conte, 56 ECAB 213 (2004).

6

that his prior finding of muscular spasms in the neck, shoulders and left hip was a typographical
error. Dr. Komanduri further explained that his cervical and lumbar findings showed preexisting
degenerative disc disease that was not causally related to a work injury. He stated that the
positive April 26, 2005 MRI scan was performed almost a year prior to his examination and that
the findings regarding the partial thickness tear had clearly resolved. Dr. Komanduri related that
a June 7, 2005 left shoulder arthrogram was completely negative for any sign of a full thickness
tear. He stated that Dr. Snead had not met any reasonable medical standards to make a diagnosis
of Marfan syndrome. Dr. Komanduri also stated that he found no evidence of joint
hypermobility or arachnodactyly on examination of appellant that would support a diagnosis of
Marfan syndrome. He indicated that she did not have such a long thumb that jetted out from her
closed fist. Outside of appellant being tall and thin, there were no findings to support a diagnosis
of Marfan syndrome. Dr. Komanduri noted that he was not professionally qualified as geneticist
or a rheumatologist to classify the nature of appellant’s connective tissue disorder. Based on
appellant’s current level of function, Dr. Komanduri opined that she could work without
restrictions. In addition, she did not require any further medical care or treatment.
The Board finds that Dr. Komanduri’s opinion is based on a proper factual and medical
background and is entitled to special weight. He found that appellant no longer had any
residuals due to the accepted May 7 and July 24, 1985 employment-related cervical, lumbar and
thoracic strains, left hip and ankle sprains and left trapezius myositis. For this reason, his reports
constitute the special weight of the medical opinion evidence afforded an impartial medical
specialist.
LEGAL PRECEDENT -- ISSUE 2
As the Office met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.9 To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.10 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.11 Rationalized medical evidence
is medical evidence which includes a physician’s rationalized medical opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.12

9

See Manuel Gill, 52 ECAB 282 (2001).

10

Id.

11

Elizabeth Stanislav, 49 ECAB 540 (1998).

12

Leslie C. Moore, 52 ECAB 132 (2000); Victor J. Woodhams, 41 ECAB 345 (1989).

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ANALYSIS -- ISSUE 2
Appellant submitted Dr. Michael’s reports, noting that she sustained a herniated nucleus
pulposus at C4-5 and C5-6, cervical degenerative disc disease at C6-7, a disc protrusion at L4-5
and lumbar degenerative disc disease. Dr. Fitzgerald’s August 23 and 27, 2007 MRI scan reports
addressed appellant’s left shoulder condition. He found degenerative changes of the
acromioclavicular joint in association with lateral acromial downstopping and rotator cuff
tendinopathy without evidence of a tendon tear that centered upon the supraspinatus tendon.
Dr. Fitzgerald stated that there was no tendon disruption or retraction identified. There was an
abnormal appearance of the inferior labrum which extended to involve the anterioinferior and
posteroinferior regions. Dr. Fitzgerald stated that the abnormal inferior glenoid and labrum were
not present on a prior 2005 examination which was suggestive of an interval injury. He related
that no osteochondral defects or fractures were identified. Dr. Fitzgerald recommended further
evaluation of these findings with an MRI scan shoulder arthrography and/or shoulder
arthroscopy if clinically warranted. The August 26, 1985 x-ray report of the physician whose
signature is illegible stated that appellant had hypolordosis of the cervical spine and an
unremarkable lumbar spine. The Board notes that appellant’s claims have not been accepted for
a left shoulder condition. Dr. Michael, Dr. Fitzgerald and the unknown physician did not
provide any opinion to establish that the diagnosed conditions were causally related to
appellant’s May 7 and July 24, 1985 employment-related cervical, lumbar and thoracic strains,
left hip and ankle sprains and left trapezius myositis.
The Board finds that appellant did not submit the necessary rationalized medical evidence
to substantiate that the claimed continuing residuals on or after January 18, 2007 were causally
related to her May 7 and July 24, 1985 employment injuries.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s medical
benefits on January 18, 2007. The Board further finds that appellant did not establish continuing
employment-related residuals after January 18, 2007.

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ORDER
IT IS HEREBY ORDERED THAT the November 15 and January 17, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 9, 2008
Washington, DC

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

Michael E. Groom, Alternate 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
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Novato, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0417
Issued: May 12, 2021

Case Submitted on the Record

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

On January 28, 2021 appellant filed a timely appeal from a November 16, 2020 decision
of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 21-0417.
In a letter dated February 24, 2021, and received March 15, 2021, appellant requested that
the appeal be dismissed.
The Board has duly considered the matter and concludes that appellant’s request for the
dismissal of the appeal should be granted. Accordingly,

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal is
granted. The appeal docketed as No. 21-0417 is dismissed.
Issued: May 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF THE AIR FORCE,
KADENA AIR BASE, Okinawa, Employer
__________________________________________

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

Docket No. 15-1888
Issued: August 16, 2016

Case Submitted on the Record

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

JURISDICTION
On September 14, 2015 appellant filed a timely appeal from an August 20, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional or physical condition
causally related to compensable work factors.
FACTUAL HISTORY
On March 9, 2015 appellant, then a 37-year-old materials handler supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained anxiety, depression, gastritis,
and hypertension as a result of his federal employment. He asserted that there was no proper
1

5 U.S.C. § 8101 et seq.

accountability and communication with management. The reverse of the claim form reported
that appellant had taken sick leave and then was offered a change in duty location and
supervisor, but declined the offer. Appellant submitted a January 15, 2014 report from Dr. Eric
Santiago, an internist, indicating that appellant was being treated for “excessive stress” and
recommended that he take sick leave. In a report dated February 27, 2014, Dr. Santiago reported
that appellant was being treated for medical issues that stemmed from acute stress disorder
related to the work environment. By letter dated March 10, 2015, OWCP requested that
appellant submit additional factual and medical evidence to support his claim for compensation.
Appellant submitted additional evidence on March 31, 2015. Some of the evidence had
been submitted in connection with an Equal Employment Opportunity (EEO) complaint for
discrimination. In an undated statement, appellant asserted that he was often “out of the loop and
the last to know” what was going on in his area. He reported that a supervisor told him that
employees working in the holding/receiving area no longer worked for appellant and alleged that
he was not properly instructed to return to work in October 2013 after the Federal Government
shutdown. Appellant reported that he was told he signed a form and it was his responsibility to
return to work. In a letter dated September 14, 2014, he wrote that he did not feel safe in his
working environment as there were many items that could be used as a weapon. Appellant
submitted an undated letter indicating that a supervisor, J.C., had asked him to listen to a tape of
a racist radio station and had laughed at appellant.
By letter dated December 26, 2013, appellant wrote that he was “filing a grievance” due
to “hostility in the work environment and hazing.” He asserted that there was no team work in
the organization and he had been marginalized and undermined. The record indicates that
appellant filed an EEO complaint for alleged discrimination as he was contacted by management
while on sick leave. Appellant submitted a January 28, 2014 e-mail correspondence from J.C.,
who indicated that he was disappointed that appellant had filed a grievance as he had always
been ready to do anything to make appellant feel appreciated. J.C. wrote that appellant’s feelings
of individual persecution were wrong and he tried to give him as much autonomy as possible.
In a statement submitted with the EEO proceeding, appellant wrote that he felt like he
was treated as an outsider. He indicated that in September 2013 he asked about a promotion or
taking leadership courses, but was told it depended on funding. Appellant referred to returning
to work on December 12, 2013 and having to process 98 percent of the paperwork without help.
He asserted that from June to December 2013 “games were being played in my office,” such as
disconnecting his computer and printer, placing a dead mouse in the trash can outside his office,
and putting stapled paper in the printer. Appellant alleged that on January 16, 2014 J.C.
contacted his wife and left her a voice mail.
In a report of investigation dated October 7, 2014, the investigator indicated that
appellant had filed a complaint alleging discrimination based on disability against his supervisor,
J.C. The investigator indicated that appellant had e-mailed J.C. on January 14, 2014 that he was
going to be on “stress leave” beginning January 15, 2014. According to the report, J.C. had left a
message with appellant’s wife that the medical documentation for the request period of leave was
insufficient as it lacked detail. He indicated that he did not know it was appellant’s wife’s cell
phone he had called, although he was aware that appellant had been diagnosed with posttraumatic stress disorder (PTSD). J.C. was also unaware that appellant had been having current

2

stress-related medical issues.2 The report indicated that J.C. asserted that he always tried to help
appellant, including trying to help him get promoted.
Appellant submitted e-mail correspondence dated October 20, 2014 from T.D., the
employing establishment “operations management.” T.D. discussed a meeting between
appellant and J.C. regarding the hiring of a new employee. According to T.D., appellant accused
J.C. of lying and treating him unfairly, including raising his voice and accusing him of being a
liar as he could give no examples of unfair treatment. He wrote that J.C. used an expletive in
telling appellant to get out of his office.
The record contains a February 6, 2015 letter from the employing establishment
indicating that appellant had applied for disability retirement. The employing establishment
reported that requests for sick leave in January and February 2014 were approved, but a request
for additional sick leave in April 2014 was not approved as the medical evidence did not support
his continuing absence. According to it, in the fall of 2014, appellant was offered a change in
duty location and supervisor, but he declined the offer.
With respect to medical evidence, appellant submitted additional reports from
Dr. Santiago regarding treatment in 2014. In a report dated July 28, 2014, Dr. Santiago reported
that appellant was requesting eight weeks of leave for complications related to stress at work.
By report dated February 4, 2015, he indicated that appellant continued to have issues at work
and would be ending employment.
In a March 12, 2015 report, Dr. Santiago reported that appellant was seen for severe
stress “related to a reported hostile work environment. The main reported factors were
difficulties with his supervisors who treated the patient unfairly and with malice.” Dr. Santiago
wrote that appellant had been treated in April 2014 for panic attacks and has gastritis associated
with anxiety. He diagnosed anxiety, depression, gastritis, and hypertension, which he opined
were directly related to the “malignant work environment.”
On July 27, 2015 appellant submitted additional evidence, including e-mail
correspondence from his supervisor, J.C. He did not note the relevance of this additional
evidence to his claim for compensation. The e-mail correspondence included a coworker noting
in a July 2, 2014 e-mail that the prior year he observed that appellant’s printer power cord was
disconnected.
By decision dated August 20, 2015, OWCP denied appellant’s claim for compensation.
It found the following compensable work factors: appellant was asked by his supervisor to listen
to a segment from a radio station that appellant alleged was racist, appellant worked on a project
regarding vehicle disposal with little help, and Supervisor J.C. used abusive language in an
October 20, 2014 meeting. OWCP also indicated that unplugging the printer and putting stapled
paper in the printer occurred as alleged, but the evidence did not establish a pattern of hazing or
harassment. As to appellant’s other allegations, it found no other compensable work factors
were established. OWCP determined the medical evidence of record insufficient to establish a
diagnosed condition causally related to compensable work factors.
2

The record contains a July 22, 2014 affidavit from J.C. regarding the January 14, 2014 request for sick leave.

3

LEGAL PRECEDENT
Appellant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he claims compensation was caused or adversely
affected by factors of his federal employment.3 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.4 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.6
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.7 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively, or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.8
ANALYSIS
In the present case, appellant filed a claim for compensation alleging that he sustained
anxiety and depression, as well as gastritis and hypertension, as a result of his federal
employment. The initial issue is the determination of the compensable work factors that have
been alleged and substantiated by the evidence of record. Once compensable work factors have
been established, then the medical evidence is reviewed to determine if there is a rationalized
medical opinion establishing a diagnosed condition causally related to the compensable work
factors.
3

Pamela R. Rice, 38 ECAB 838 (1987).

4

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

5

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

6

Lillian Cutler, 28 ECAB 125 (1976).

7

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

8

Margreate Lublin, 44 ECAB 945, 956 (1993).

4

Appellant has submitted a number of documents, including e-mail correspondence from a
supervisor, J.C. Several of these documents have limited or no relevance to the claim for
compensation. Appellant did file an EEO complaint alleging discrimination against J.C.
regarding his request for sick leave submitted on January 14, 2014. Grievances and EEO
complaints, by themselves, do not establish that workplace harassment or unfair treatment
occurred.9 There is no probative evidence establishing a compensable work factor with respect
to the sick leave request. No findings of error or abuse by the employing establishment were
submitted. J.C. indicated that appellant was asked to submit additional evidence because the
medical evidence lacked sufficient detail. The January 15, 2014 report from Dr. Santiago was
very brief and referred only to “excessive stress.” The record also indicated that the sick leave
was subsequently approved. As to contacting appellant’s wife, J.C. explained that he called the
telephone number that he was given and did not know it was appellant’s wife’s cell phone
number. The Board finds no evidence of error or abuse regarding the request for sick leave on
January 14, 2014.
In addition, appellant made general allegations that he was “out of the loop and the last to
know” regarding decision making. He provided no probative evidence establishing a
compensable work factor in this regard. Appellant’s frustration with what he perceived to be a
lack of communication, or wanting a job with more responsibility, does not establish a
compensable work factor.10 He also made a reference to believing his life was in danger at work.
Appellant does not provide any additional explanation or any probative evidence in this regard.
Appellant also alleged the employing establishment had failed to advise him of his need
to return to work after the Federal Government shutdown in October 2013. There was no
evidence of error or abuse by the employing establishment. Appellant acknowledged that he was
required to listen to news reports regarding the ending of the shutdown and provided no evidence
to support that the employing establishment was required to notify him personally that he must
return to work.
There was an allegation that appellant was subject to “hazing” or “games” played by
coworkers. No probative evidence was submitted to establish a compensable work factor due to
the allegations. OWCP accepted that there was an incident where appellant’s printer was found
to be unplugged, or stapled paper was in the printer. However, the witness statements of record
do not support a finding that there was a pattern of hazing or intentional acts of harassment.
Appellant has also made general allegations regarding promotions or attending leadership
classes. To the extent he is arguing there was administrative error or abuse in this regard, no
probative evidence was submitted. Supervisor J.C. asserted that he attempted to help appellant
with a promotion and attending classes, but these acts were dependent on budget issues.
OWCP did find that compensable work factors were established in this case. As to work
performed, such as working on a vehicle disposal project, it is well established that the

9

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

10

See H.D., Docket No. 12-1246 (issued April 11, 2013).

5

performance of regular or specially assigned work duties are compensable work factors.11 In
addition, OWCP found there was an incident of verbal abuse on October 20, 2014. A witness
reported that J.C. used expletives and yelled at appellant. There was also an incident where
appellant was asked to listen to a radio station segment that he found offensive, and Supervisor
J.C. laughed at him. OWCP accepted the incident occurred and was a compensable work factor.
Having established compensable work factors, the issue is whether the medical evidence
of record is sufficient to establish a diagnosed condition causally related to the compensable
work factors. In this case, the medical evidence does not establish a diagnosed condition
causally related to a compensable work factor. Dr. Santiago made general references to work
stress without providing a complete history that identified the compensable work factors. In his
March 12, 2015 report, he referred to a hostile work environment and being treated with malice
by a supervisor. The only accepted compensable work factors are those noted above.
Dr. Santiago does not provide a rationalized medical opinion, based on a complete background,
on causal relationship between a diagnosed condition and the compensable work factors.12 It is
appellant’s burden of proof to establish the claim. For the above reasons, the Board finds
appellant did not meet his burden of proof.
On appeal appellant writes that he disagrees with OWCP’s decision, and that even with
the evidence submitted, he is still at fault. The issue is not whether appellant was at fault.
Appellant must submit probative evidence to establish the claim for compensation. OWCP did
accept some compensable work factors, but the evidence of record is insufficient to establish
additional compensable work factors. Moreover, the medical evidence of record was insufficient
to establish a diagnosed condition causally related to compensable factors.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional or physical condition
causally related to compensable work factors.

11

Supra note 6.

12

See A.V., Docket no. 15-1394 (issued December 22, 2015) (rationalized medical evidence must be based on a
complete background and explain causal relationship between diagnosed condition and specific compensable work
factors).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 20, 2015 is affirmed.
Issued: August 16, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7