United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Hollywood, CA, Employer
__________________________________________

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

Docket No. 16-0125
Issued: October 2, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 28, 2015 appellant, through counsel, filed a timely appeal from an October 8,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly rescinded its acceptance of appellant’s claim for
aggravation of post-traumatic stress disorder (PTSD).
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 8, 2012 appellant, then a 29-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained Bell’s palsy, trigeminal
neuralgia, and anxiety due to exposure to stress at work. He indicated that he first became aware
of his claimed condition on November 17, 2011 and that he first realized on October 8, 2012 that
it was caused or aggravated by his employment. Appellant noted, “I had been supervising and
Managing Studio City Post Office working 12-14 hour shifts. I had previously informed my
Postmaster it was too much workload and she said, ‘deal with it.’ I was also working 12-16
hours [sic] shifts concurrently.” On the same form, appellant’s immediate supervisor indicated
that his usual work schedule was 6:00 a.m. to 3:00 p.m. on a rotating basis for five days per
week. Appellant stopped work on October 13, 2012.3
Appellant submitted a November 5, 2012 report in which Dr. Michael Su, an attending
Board-certified neurologist, indicated that appellant was disabled from work through
November 26, 2012 because his headaches, tinnitus, insomnia, PTSD, and hearing loss were
exacerbated by prolonged work hours and exposure to loud noises.4
In a November 9, 2012 letter, appellant’s immediate supervisor indicated that appellant’s
claim for a stress-related condition was being challenged by the employing establishment. The
supervisor noted that, prior to September 10, 2011, appellant worked with her in the Laurel
Canyon Carrier Annex and that he did not work any overtime prior to September 10, 2011.
Beginning September 10, 2011, appellant worked on a detail assignment as a customer service
supervisor in the Studio City Post Office. The supervisor noted that timekeeping record entries
showed that from September 10, 2011 to March 16, 2012 appellant worked 49 days of overtime.
She indicated that appellant never worked over 13 hours per day and only worked over 12 hours
per day on one occasion. The rest of the time his overtime work averaged approximately 30
minutes to 2 hours.5 The supervisor indicated that this overtime work was not authorized by her.
She asserted that she was unaware of appellant’s use of overtime at first and that, after she
became aware of this usage (on an unspecified date), she told appellant and another management
official that it needed to stop. The supervisor indicated that management conducted an
investigative interview with appellant regarding his poor performance at the Studio City Post
Office. She denied appellant’s allegation that she told him to “deal with it” in response to his
concerns about his workload.
Appellant’s immediate supervisor submitted timekeeping record entries on which she
added handwritten notes for 49 days that overtime had been worked, i.e., days that more than

3

OWCP has acknowledged that appellant had a preexisting diagnosis of PTSD which he sustained in the military.

4

Appellant’s allegation of developing an occupational disease due to exposure to workplace noise has been
developed and considered under a separate claim (File No. xxxxxx768). On April 3, 2013 appellant filed a Form
CA-2 alleging physical and emotional conditions due to exposure to workplace noise. In a September 13, 2013
decision, OWCP denied his claim. This matter is not currently before the Board.
5

The supervisor indicated that appellant started working at the Chandler Post Office on March 18, 2012 and then
worked on a detail assignment at the Palmdale Post Office from August 25 to November 2, 2012.

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eight hours had been worked. The time worked records are not clearly legible but the
handwritten notes provided by the supervisor are legible.
In a letter dated December 11, 2012, OWCP requested that appellant submit additional
factual and medical evidence in support of his claim.
Appellant submitted a November 2, 2012 statement in which he further discussed his
belief that he did not have adequate staffing while working in a detail assignment as a customer
service supervisor at the Studio City Post Office beginning in September 2011. He indicated that
he worked 10 to 16 hour days for 6 days per week in order to complete work tasks and meet
deadlines. Appellant indicated that he advised his immediate supervisor that supervising the unit
“was too much” and that she told him to “deal with it.” He asserted that, after his request for
another supervisor to help out was turned down, he was wrongly demoted in November 2011 by
his immediate supervisor to being a line supervisor at the Studio City Post Office. Appellant
claimed that his immediate supervisor unfairly criticized him for how he utilized a subordinate
and that he was unfairly passed up for promotions on two occasions.
In a December 14, 2012 statement, a fellow customer service supervisor indicated that
she observed appellant working 10 to 12 hour days due to staffing shortages at the Studio City
Post Office. On December 14, 2012 a subordinate of appellant noted that she witnessed
appellant working more than 10 hours per day between August and October 2012.
Appellant submitted additional medical reports dated between 2010 and 2013.
In May 2013 OWCP referred appellant to Dr. Larisa Levin, a Board-certified psychiatrist,
for a second opinion examination and evaluation of his medical condition, particularly with
regard to stress-related conditions. In the May 9, 2013 statement of accepted facts (SOAF)
provided to Dr. Levin, OWCP indicated one accepted employment factor, “[Appellant] worked
overtime on approximately 49 days from [September 10, 2011 to March 16, 2012]. The
employing agency verified he never worked over 13 hours a day and only once worked over 12
hours.”6
The employing establishment submitted additional timekeeping record entries, including
records of time clock punches, on which handwritten notes indicated that appellant worked 49
days of overtime between September 2011 and March 2012.7 These additional records are
legible.
In a June 15, 2013 report, Dr. Levin discussed appellant’s factual and medical history and
reported the findings of her evaluation. She diagnosed chronic PTSD, migraine headaches,
history of traumatic brain injury, tinnitus, bilateral decreased hearing, and history of Bell’s palsy.
Dr. Levin determined that appellant’s preexisting PTSD and traumatic brain injury were
aggravated while he was working for the employing establishment due to the factors mentioned
6

OWCP repeated these facts in a SOAF dated July 2, 2013.

7

The records reflect that appellant never worked more than 13 hours per day and that other overtime work
averaged approximately 30 minutes to 2 hours on the days overtime work was performed.

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in the SOAF, including “a stressful shift and long hours of work.” She indicated that appellant
could work eight hours per day, but no more, if he was given “limited assignment, duties.”
In a decision dated July 2, 2013, OWCP accepted aggravation of PTSD.
On July 30, 2013 the employing establishment offered appellant a position as a customer
care agent. On October 8, 2013 OWCP advised appellant that the position of customer care
agent constituted suitable work.8 Appellant reported to work on November 4, 2013 and stopped
work on November 5, 2013.
On November 18, 2013 appellant filed a claim for recurrence (Form CA-2a) alleging a
recurrence of disability on November 5, 2013 due to his accepted work injury.
In a May 8, 2014 letter entitled “Notice of Proposed Decision,” OWCP advised appellant
that it had reviewed his claim to determine his entitlement to benefits and it had been determined
that the claim had been accepted prematurely, and that further development was necessary to
establish his entitlement to benefits under FECA. It noted that it had requested further
information from appellant to support his occupational disease claim. OWCP indicated that,
once appellant provided a response and supporting evidence, it accepted the compensable factor
of employment of overtime and accepted his claim for aggravation of PTSD. It noted, however,
that the employing establishment had not been afforded an opportunity to provide a statement
responding to appellant’s statement regarding the claimed events and work factors. OWCP
discussed appellant’s other claimed employment factors which had not been accepted, indicated
that additional development of the factual elements of appellant’s claim was required, and noted:
“You are asked to respond to the questions on the attached questionnaire, sign and
date the questionnaire, and return it to this office within 30 days from the date on
this letter.9 The employing [establishment] will be asked to provide a response to
the allegations you previously submitted, as well as to your response to the
attached questions. This information from you and the [employing establishment]
is necessary in order for this office to determine whether you sustained an injury
due to compensable work factors arising in and out of the performance of duty.
“Once this information is received, or after the allotted timeframe has elapsed,
[OWCP] will undertake further review of the merits of the claim. This review
may entail additional factual or medical development, and will result in a de novo
decision regarding the merits of your claim for a work-related injury.”
In a June 5, 2013 statement, appellant challenged the proposed rescission action by
OWCP. He argued that he was, in fact, overworked due to staffing shortages and had to work

8

OWCP indicated that it proposed to terminate appellant’s wage-loss and schedule award compensation if he
failed to return to the offered position without good cause. It does not appear from the record that OWCP took any
further action regarding the offered position after making this suitability determination.
9

The attached questionnaire requested answers to various questions about appellant’s claimed employment
factors, including questions about his claims of overwork and overtime usage.

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overtime as alleged. Appellant argued that the medical opinion of Dr. Levin showed that he
sustained an aggravation of PTSD due to this overwork.10
Appellant submitted several statements from employees at the Studio City Post Office.
In a statement dated May 14, 2014, a subordinate indicated that appellant was forced to work
more than eight hours per day at the Studio City Post Office in 2011 in order to finish his work
duties given the lack of adequate staff support. On May 14, 2014 another subordinate reported
that appellant’s immediate supervisor at the Studio City Post Office knew that he worked
additional hours and asserted that appellant was not paid for all the additional hours he worked.
In a statement dated June 1, 2014, another subordinate advised that she worked under appellant’s
supervision at the Studio City Post Office and that, due to unreasonable adjustment to mail
delivery routes without adequate staffing, appellant had to stay at work for more than eight hours
per day.
In a statement dated June 11, 2014, appellant’s immediate supervisor at the Studio City
Post Office asserted that appellant was not required to work extra hours but that he worked these
extra hours on a voluntary basis. She indicated that in September 2011, in response to his desire
to prepare for upward mobility, appellant was given the opportunity for a higher level detail at
the Studio City Post Office. The immediate supervisor indicated that appellant oversaw
subordinate supervisors and managed delivery, collection, window, box section, mail
distribution, and dispatch operations in the unit. She indicated that appellant’s work tasks and
deadlines were reasonable and noted:
“As a promoted Supervisor of Customer Service, [appellant] may be required to
stay overtime occasionally or to cover fellow supervisors in another station within
North Hollywood.11 However, [appellant’s] claim that he was required to work
more than 12 [to] 16 hours is untrue. I did not require or authorize [appellant] to
work long hours. This action on his part to work over 10 to 16 hours, as he
claimed, was clearly an independent decision without a mandate, authorization, or
instruction from me.”
In a decision dated July 14, 2014, OWCP rescinded its acceptance of appellant’s claim
for aggravation of PTSD noting that it now had determined that appellant failed to establish any
compensable employment factors in connection with his emotional condition claim. It found that
it had properly denied the various other claimed employment factors prior to the July 2, 2013
acceptance of his claim. It discussed the one employment factor it had accepted, relating to
overtime usage, and noted that it had been accepted that appellant worked long hours. OWCP
advised that the issue was whether appellant was authorized to work the extra overtime hours
beyond his normal eight-hour shift, and whether this was a part of his regular or specially

10

Appellant also submitted additional medical evidence in support of his claim.

11

The record reflects that the Studio City Post Office is part of the North Hollywood area for the employing
establishment’s organizational purposes.

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assigned job duties which would confer coverage in the performance of duty. It indicated:
“Based on the evidence received from the employing [establishment], it is clear
that your expected work shift is [eight] hours and that any additional time worked
past this timeframe requires prior approval from your supervisor. The statements
from supervisors make it clear that the additional hours you worked were not
authorized or condoned by your employing [establishment]. Therefore they were
not part of your regular or specially assigned work duties. It was made clear to
you once it was realized you were working beyond your scheduled hours that it
needed to stop. You state yourself that managers and supervisors would not be
paid for overtime. Any extra hours you may have worked beyond your regular
shift without approval represent work that is found to have been voluntary and not
a part of your regular[-]duty requirements.
“With regard to your claim that you had to work 10 to 16 hour shifts, the evidence
from the employing [establishment] explicitly states that you were not assigned or
expected to work such hours, that doing so required prior approval from your
supervisor, and that when [your supervisor] found out about your unauthorized
work hours, she specifically instructed you to cease working more than your
allowed hours. Your reaction to these work factors is therefore not found to arise
in the performance of duty, as the long hours you worked were not part of your
regular or specially assigned duties. As such, the allegations that working
overtime up to 16 hours per shift caused your Bell’s palsy, trigeminal neuralgia,
and anxiety are not covered under FECA as the overtime you worked was not
authorized by your [employing establishment] and therefore not a part of your
regular job duties.”12
In a letter dated July 13, 2015 and received by OWCP on July 14, 2015, appellant,
through counsel, requested reconsideration of his claim. Appellant submitted a July 13, 2015
report in which Dr. Carolyn Feigel, an attending clinical psychologist, discussed her treatment of
appellant’s PTSD. Dr. Feigel noted that appellant reported that this condition had been
aggravated by several factors, including long hours and pressure to meet deadlines while
working for the employing establishment. Appellant also submitted a job description of the
position of customer service supervisor.
By decision dated October 8, 2015, OWCP denied modification of its July 14, 2014
decision rescinding its acceptance of appellant’s claim for aggravation of PTSD.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.13 The Board
12

OWCP cited the case of Sandra F. Powell, 45 ECAB 877 (1994) for the proposition that overwork may be a
compensable factor of employment if the evidence establishes that the claimant was in fact overworked.
13

5 U.S.C. § 8128.

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has upheld OWCP’s authority to reopen a claim at any time on its own motion under section
8128 of FECA and, where supported by the evidence, set aside, or modify a prior decision and
issue a new decision.14 The Board has noted, however, that the power to annul an award is not
an arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.15
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud. It is well established
that, once OWCP accepts a claim, it has the burden of justifying the termination or modification
of compensation benefits. This holds true where, as here, OWCP later decides that it erroneously
accepted a claim. In establishing that its prior acceptance was erroneous, OWCP is required to
provide a clear explanation of the rationale for rescission.16
OWCP procedures require a proposed and final decision rescinding the original finding.17
These procedures further provide that a rescission decision should contain a brief background of
the claim, discuss the evidence on which the original decision was based, and explain why
OWCP finds that the decision should be rescinded. The evidence used to rescind the claim
should be thoroughly discussed so that it is clear to the reader how the case was incorrectly
adjudicated and why the original decision is now being invalidated.18
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.19 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.20
A claimant has the burden of proof to establish by the weight of the reliable, probative
and substantial evidence that the condition for which he or she claims compensation was caused

14

John W. Graves, 52 ECAB 160, 161 (2000).

15

See 20 C.F.R. § 10.610.

16

See supra note 14.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.19(b) (February 2013);
see also R.C., Docket No. 16-0594 (issued December 1, 2016).
18

Id. at Chapter 2.1400.19(d); R.C., id.

19

Lillian Cutler, 28 ECAB 125 (1976).

20

Gregorio E. Conde, 52 ECAB 410 (2001).

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or adversely affected by employment factors.21 This burden includes the submission of a
detailed description of the employment factors or conditions which the claimant believes caused
or adversely affected a condition for which compensation is claimed, and a rationalized medical
opinion relating the claimed condition to compensable employment factors.22 When a claimant
has not established any compensable employment factors, it is not necessary to consider the
medical evidence of record.23
ANALYSIS
On November 8, 2012 appellant filed a Form CA-2 alleging that he sustained stressrelated conditions due to working overtime and exposure to stressful incidents and conditions at
work. He asserted that he did not have adequate staffing while working in a detail assignment as
a customer service supervisor at the Studio City Post Office between September 2011 and
March 2012. Appellant indicated that he worked overtime in order to complete work tasks and
meet deadlines. He asserted that he advised his immediate supervisor that supervising the unit
“was too much” and that she told him to “deal with it.” Appellant claimed that, after his request
for another supervisor to help out was turned down, he was wrongly demoted in November 2011
by his immediate supervisor to being a line supervisor at the Studio City Post Office. He
asserted that his immediate supervisor unfairly criticized him for how he utilized a subordinate
and that he was unfairly passed up for promotions on two occasions.
In May 9 and July 2, 2013 SOAFs, OWCP indicated that it had only accepted one
employment factor, “[Appellant] worked overtime on approximately 49 days from
[September 10, 2011 to March 16, 2012]. The employing establishment verified he never
worked over 13 hours a day and only once worked over 12 hours.” In a June 15, 2013 report,
Dr. Levin, an OWCP referral physician, determined that appellant’s preexisting PTSD and
traumatic brain injury were aggravated while he was working for the employing establishment
due to the accepted factors mentioned in the SOAF, including “a stressful shift and long hours of
work.” In a decision dated July 2, 2013, OWCP accepted aggravation of PTSD.
In a decision dated July 14, 2014, OWCP rescinded its acceptance of appellant’s claim
for aggravation of PTSD noting that it now had determined that appellant failed to establish any
compensable employment factors in connection with his emotional condition claim. On
October 8, 2015 it denied modification of its July 14, 2014 rescission determination.
The Board finds that OWCP improperly rescinded its acceptance of appellant’s claim for
aggravation of PTSD.
As noted above, once OWCP accepts a claim, it has the burden of proof to justify the
termination or modification of compensation benefits and, in establishing that its prior

21

Pamela R. Rice, 38 ECAB 838, 841 (1987).

22

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

23

See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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acceptance was erroneous, it is required to provide a clear explanation of the rationale for
rescission.24
The Board finds that OWCP has not adequately explained the basis for rescinding its
acceptance of appellant’s claim for aggravation of PTSD. OWCP’s rescission action is primarily
premised on its new determination that the employment factor it had previously accepted, related
to overtime, did not constitute a compensable employment factor.25 However, it has not justified
its finding that this previously accepted employment factor does not constitute a compensable
employment factor.
It is important to note that, in its rescission determination, OWCP has not denied the
factual aspect of appellant’s overtime work, namely that he worked overtime on approximately
49 days from September 10, 2011 to March 16, 2012.26 OWCP’s rationale for no longer
accepting this factual circumstance as an employment factor remains unclear. The Board has
held that a claimant’s demonstrated overwork in attempting to carry out work duties and meet
deadlines, including through the use of overtime, may constitute a compensable employment
factor.27 In its rescission determinations, OWCP suggested that appellant’s complaints of
engaging in overwork to carry out work tasks and meet deadlines lacked validity. However,
OWCP did not provide any detailed discussion of this aspect of appellant’s claim. While
appellant’s immediate supervisor indicated that his work tasks and deadlines were reasonable,
she did, in fact, acknowledge that his job as a customer service supervisor would require him at
times to perform overtime work. The record contains several statements in which appellant’s
subordinates and a fellow customer service supervisor testified that the Studio City Post Office
lacked adequate staffing and that appellant had to work overtime to finish work tasks and meet
deadlines. In its rescission determinations, OWCP did not discuss these statements and explain
how they impacted its apparent determination that appellant did not engage in overwork.
In rescinding its acceptance of appellant’s claim for aggravation of PTSD, OWCP placed
great emphasis on the fact that appellant’s immediate supervisor asserted that his overtime work
was not mandated or preapproved.28 OWCP suggested that appellant’s overtime work could not
be considered a compensable employment factor because it was deemed to be voluntary or
24

See supra note 16.

25

In its rescission determinations, OWCP continued to find that appellant had not established his other claimed
employment factors. It indicated that it was not necessary to consider the medical evidence of record, given the
finding that appellant had not established any compensable employment factors. See supra note 21.
26

The evidence of record, including timekeeping records, supports that this overtime work occurred.

27

See M.D., Docket No. 15-1796 (issued September 7, 2016) (appellant established a compensable factor of
routinely working overtime during a specified period as the evidence of record supported her allegation and the
employing establishment did not dispute the allegation); see also Bobbie D. Daly, 53 ECAB 691 (2002); Sherman
Howard, 51 ECAB 387 (2000).
28

Appellant’s immediate supervisor indicated that, after she became aware of appellant’s overtime usage, she told
him that it needed to stop. However, the supervisor did not identify when she became aware of appellant’s overtime
usage and the record does not contain any document memorializing her statement to appellant that the overtime
usage needed to stop.

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nonmandatory in nature. However, it did not provide sufficient justification for its implication
that overwork or overtime work that is voluntary could not be considered an employment factor.
In Richard S. Donohue,29 the Board made no such distinction between voluntary and
nonvoluntary overwork in determining that OWCP had properly found an employment factor
due to the claimant’s voluntary overtime usage. In that case, the claimant worked overtime to
meet work requirements, and the Board, in noting that OWCP properly found an employment
factor in this regard, indicated, “Regardless of whether appellant volunteered to do the overtime
work, the record supports that appellant worked overtime when necessary to perform his job.” In
the present case, there is no factual dispute that appellant worked approximately 49 days of
overtime in late-2011 and early-2012 and OWCP did not adequately explain, in connection with
its rescission determination, why this factual circumstance no longer constituted an employment
factor.
For these reasons, OWCP has not justified the rescission of its acceptance of appellant’s
claim for aggravation of PTSD.
CONCLUSION
The Board finds that OWCP improperly rescinded its acceptance of appellant’s claim for
aggravation of PTSD.

29

Docket No. 03-2145 (issued February 27, 2004).

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ORDER
IT IS HEREBY ORDERED THAT the October 8, 2015 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 2, 2017
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
K.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tucson, AZ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0807
Issued: April 18, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On March 6, 2018 appellant filed a timely appeal from a November 27, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his schedule award claim.
The Clerk of the Appellate Boards docketed the appeal as No. 18-0807.
On February 7, 2014 appellant, then a 30-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on January 7, 2014 he developed swelling and pain in his
right knee while in the performance of duty. On June 18, 2015 OWCP accepted the claim for tear
of the medial meniscus and tear of the lateral meniscus in the right knee. It authorized right knee
arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, and synovectomy
performed on August 13, 2015.
On May 24, 2017 appellant filed a claim for a schedule award (Form CA-7). He did not
submit any additional evidence.
In a development letter dated September 7, 2017, OWCP advised appellant of the
deficiencies of his claim and requested a medical report from his physician assessing his permanent
impairment based on the sixth edition of the American Medical Association, Guides to the

Evaluation of Permanent Impairment (A.M.A., Guides)1 and establishing the date on which he had
reached maximum medical improvement. It afforded him 30 days to submit the requested medical
evidence.
OWCP’s September 7, 2017 correspondence was returned and marked “RETURN TO
SENDER.” Appellant subsequently advised OWCP of his new address. By letter dated
October 18, 2017, OWCP acknowledged receipt of appellant’s change of address request and, on
that same day, it resent the development letter to his new address. Its October 18, 2017
correspondence was returned and marked “RETURN TO SENDER.”
By decision dated November 27, 2017 decision, OWCP denied appellant’s claim for a
schedule award, finding the evidence of record was insufficient to establish permanent impairment
of a scheduled member or function of the body due to the January 7, 2014 employment injury. It
noted that he had not responded to the September 7 and October 18, 2017 development letters.
The Board has duly considered the matter and finds that this case is not in posture for
decision. On October 18, 2017 OWCP mailed appellant a properly addressed development letter.
The mailbox rule provides that proper and timely mailing of a document in the ordinary course of
business raises a rebuttable presumption of receipt by the addressee.2 However, as a rebuttable
presumption, receipt will not be assumed when there is evidence of nondelivery.3 The record in
this case contains direct evidence of nondelivery of the October 18, 2017 development letter.
Although properly addressed to appellant at his address of record, the U.S. Postal Service returned
the letter to OWCP as undeliverable. OWCP received the nondelivered development letter on
October 23, 2017. Consequently, appellant has rebutted the presumption of receipt of the
October 18, 2017 development letter under the mailbox rule.4
As appellant did not receive the October 18, 2017 development letter, the case will be
remanded to OWCP to issue a new development letter followed by a de novo decision on
appellant’s schedule award claim.

1

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

2

See James A. Gray, 54 ECAB 277 (2002).

3

L.M., Docket No. 16-0144 (issued March 22, 2016).

4

See M.U., Docket No. 09-0526 (issued September 14, 2009) (the Board found that presumption of receipt of a
Notice of an Oral Hearing was rebutted when the envelope enclosing the Notice of an Oral Hearing was returned and
marked Return to Sender and remanded the case for reissuance of the Notice of an Oral Hearing).

2

IT IS HEREBY ORDERED THAT the November 27, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: April 18, 2019
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 13-282
Issued: May 17, 2013

Case Submitted on the Record

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

JURISDICTION
On November 20, 2012 appellant, through her counsel, filed a timely appeal from an
August 1, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
bilateral carpal tunnel syndrome (CTS), right cubital tunnel syndrome or left trigger thumb
causally related to factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 26, 2011 appellant, then a 49-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral CTS and right cubital tunnel
syndrome as a result of 15 years of repetitive postal service work. She first became aware of her
condition on April 22, 2010 and of its relationship to her employment on May 15, 2010.
Appellant notified her supervisor on March 26, 2011 and continued to work full duty without
restrictions.
In March 28, 2011 narrative statement, appellant reported that she was employed by the
United States Postal Service (USPS) for over 15 years. She stated that her employment duties
consisted of repetitive work from processing mail, transporting equipment, pushing, pulling and
lifting equipment and loading heavy bags of mail which weighed up to 70 pounds. Appellant
stated that she was required to load a conveyer belt at a fast pace to keep up with the bins and
that her performance duties caused her pain, numbness and tingling in the hands and fingertips.
By letter dated May 12, 2011, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised to submit additional medical and factual
evidence within 30 days. She did not respond.
By decision dated July 18, 2011, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that she sustained an injury. It found that the work-related
activities were established; but the medical evidence failed to provide a firm medical diagnosis
which could be attributed to the accepted employment factors.
By letter dated May 3, 2012, appellant, through counsel, requested reconsideration and
submitted medical evidence in support of her claim.
Appellant underwent an electromyography (EMG) study on April 29, 2010 by
Dr. Aurora P. Dela Rosa, an EMG consultant, who noted that appellant complained of sore neck
muscles, burning like pain in the left hand and tingling in the right fingers. She denied any
history of recent trauma and stated that her hand and finger condition began approximately two
to three months prior. Dr. Dela Rosa stated that appellant’s neurophysiologic findings revealed
bilateral CTS, more involved in the right with evidence of moderately severe median sensory
loss in the right and mild in the left median sensory nerve conduction slowing across the wrists.
She also noted right cubital tunnel syndrome with evidence of mild ulnar motor and sensory
nerve partial conduction block across the elbow.
In an April 29, 2010 medical report, Dr. Mark J. Reiner, an osteopath, stated that
appellant was treated the previous week for complaints to her hands. He noted that an EMG was
performed, which showed bilateral CTS, right greater than left and cubital tunnel syndrome.
Dr. Reiner noted a positive Phalen’s and Tinel’s sign to the median nerve at the wrists bilaterally.
In a June 2, 2010 diagnostic report, Dr. Thomas Yu, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging (MRI) scan of the right wrist revealed
tenosynovitis along the exterior digitorum tendon sheath and extensor hallucis longus tendon

2

region. A scapholunate ligament tear was suspected although there was no significant separation
of the scapholunate space.
In a June 11, 2010 report, Dr. Daniel DePrince, an osteopath, noted that appellant was
evaluated regarding injuries sustained in a work-related incident on May 15, 2010. He stated
that she worked for the postal service for many years. On May 15, 2010 appellant reported
experiencing severe pain, burning and tingling in her right and left wrists. On examination,
Dr. DePrince noted severe bilateral wrist pain and swelling. Appellant underwent an MRI scan
on June 2, 2010 which revealed a suspected scapholunate ligament tear and was positive for
tenosynovitis along the extensor digitorum tendon sheath and extensor hallucis longus tendon
region. Dr. DePrince diagnosed post-traumatic scapholunate ligament tear of the right wrist and
post-traumatic bilateral CTS. Upon reviewing appellant’s job description, he opined with a
reasonable degree of medical certainty that her bilateral condition was a result of repetitive
employment duties and directly caused by her job at the employing establishment.
In medical reports dated June 28 and July 21, 2010, Dr. Stuart G. Dubowitch, an
osteopath, listed a history that, prior to May 15, 2010, Dr. Reiner diagnosed appellant with
bilateral CTS and right cubital tunnel syndrome. Appellant complained of numbness and
tingling in the hands as well as triggering and locking about the left thumb which occurred on
May 15, 2010 after utilizing a machine at work. Dr. Dubowitch diagnosed left trigger thumb,
right wrist tendinitis, bilateral CTS and right cubital tunnel.
In a September 17, 2010 surgical report, Dr. Barry Gleimer, an osteopath, advised that
appellant underwent release of the left trigger thumb. In reports dated September 28 to
November 30, 2010, he stated that her left trigger thumb was resolved postsurgical release. On
November 30, 2010 Dr. Gleimer released appellant to full duty, stating that she had reached
maximum medical improvement.
In an April 11, 2012 report, Dr. DePrince reported that appellant was evaluated beginning
April 2010 for conditions involving her work-related duties. Appellant was previously evaluated
on May 15, 2010 for a work-related injury. Dr. DePrince stated that she worked as a mail
processer for over 15 years. Appellant initially experienced painful symptoms in the wrists and
hands bilaterally. She was evaluated by Dr. Reiner who diagnosed bilateral CTS and cubital
tunnel syndrome. Appellant was treated at the emergency room on May 15, 2010 following
symptoms experienced at work when she felt a “pop” in her left wrist and a flare up of pain to
the bilateral wrists and hands. She underwent left trigger thumb release on September 17, 2010
and Dr. Gleimer released her to full duty, finding that she had reached maximum improvement
on November 30, 2010. Upon physical examination and review of diagnostic tests, Dr. DePrince
diagnosed bilateral CTS, left trigger thumb and cubital tunnel syndrome of the right elbow.
Dr. DePrince stated that working on the automation machines for years caused
appellant’s symptoms of pain and spasms in the hands and wrists. He noted that her duties
included processing mail and transporting equipment to machines such as knockers, cages, trays
and sleeves. Transporting equipment involved pushing, pulling, lifting and loading heavy mail
onto a ledge weighing up to 70 pounds. Dr. DePrince stated that the repetitive motion in
appellant’s work and the weight of the mail caused her to drop mail as her hands were weak and
she was required to keep up with the loading of the machines. Due to appellant’s bilateral wrist

3

pain and spasm, left trigger finger, mechanism of injury, damage to surrounding soft tissue and
the severity and persistence of her symptoms, Dr. DePrince opined within a reasonable degree of
medical probability that her injuries sustained to her hands bilaterally, left trigger finger and
upper extremities were a direct result of the repetitive motion and work-related incidents
beginning in April 2010 and an incident on May 15, 2010.
Progress notes dated May 19 to December 17, 2010 were also submitted from South
Jersey Health and Wellness Center, which documented appellant’s treatment.2
By decision dated August 1, 2012, the Branch of Hearings and Review affirmed OWCP’s
July 18, 2011 decision finding that the evidence failed to establish that she sustained an injury as
a result of her accepted federal employment duties. The hearing representative noted that the
medical evidence submitted referenced a May 15, 2010 injury and not factors relating to an
occupational disease from April 22, 2010.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition

2

The Board notes that many of the signatures on the progress notes were illegible or signed by physician’s
assistants and physical therapists.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 3.

4

for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities as a mail processor. The
issue, therefore, is whether she submitted sufficient medical evidence to establish that the
employment exposure caused her bilateral CTS, left trigger thumb and cubital tunnel syndrome
of the right elbow. The Board finds that appellant did not submit sufficient medical evidence to
support that she developed bilateral CTS, left trigger thumb and cubital tunnel syndrome causally
related to factors of her federal employment as a mail processor.
In an April 29, 2010 EMG report, Dr. Dela Rosa stated that appellant complained of pain
and tingling in the hands and fingers beginning approximately two to three months prior. The
EMG revealed bilateral CTS and right cubital tunnel syndrome. In another April 29, 2010
report, Dr. Reiner reported that appellant was being treated for bilateral CTS and right cubital
tunnel syndrome. In medical reports dated June 28 and July 21, 2010, Dr. Dubowitch reported
that she was diagnosed with bilateral CTS and right cubital tunnel syndrome prior to
May 15, 2010. He also diagnosed left trigger thumb. In medical reports dated June 11, 2010 and
April 11, 2012, Dr. DePrince stated that appellant was treated for bilateral CTS and right cubital
tunnel syndrome in April 2010. After an employment incident on May 15, 2010, appellant was
diagnosed with left trigger thumb. Dr. DePrince discussed her repetitive employment duties and
opined that they were a direct result of her conditions.
In its July 18, 2011 and August 1, 2012 decisions, OWCP found insufficient evidence to
establish a firm medical diagnosis of appellant’s injury. It noted that the medical evidence of
record pertained to a May 15, 2010 employment incident rather than an occupational disease
beginning in April 2010. The medical evidence of record establishes a diagnosis of bilateral
CTS, left trigger thumb and right cubital tunnel syndrome. The medical reports discussed above
all provide a firm medical diagnosis of these conditions. Appellant sought treatment and was
6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

5

diagnosed with bilateral CTS and right cubital tunnel syndrome in April 2010, prior to the
May 15, 2010 injury, as evidenced by the reports of Dr. Dela Rosa and Dr. Reiner.
Dr. Dubowitch and Dr. DePrince confirm that appellant was diagnosed with bilateral CTS and
right cubital tunnel syndrome in April 2010. Appellant received continued treatment for her
conditions and was diagnosed with left trigger thumb after a May 15, 2010 injury. While
associating left trigger thumb to her occupational duties may be more difficult because the
condition was diagnosed after the May 15, 2010 injury, she has clearly established a diagnosis of
bilateral CTS and right cubital tunnel syndrome beginning in April 2010. The question is
whether appellant’s employment duties caused or aggravated her bilateral CTS, left trigger
thumb and right cubital tunnel syndrome. She must submit rationalized medical evidence to
establish that her diagnosed medical conditions were causally related to the accepted factors of
employment.
In medical reports dated June 11, 2010 and April 11, 2012, Dr. DePrince stated that
appellant was evaluated beginning in April 2010 for conditions involving her work-related duties
and was diagnosed with bilateral CTS and cubital tunnel syndrome. On May 15, 2010 appellant
sought emergency treatment when she felt a “pop” in her left wrist and a flare up of pain to the
bilateral wrists and hands following symptoms experienced at work. On September 17, 2010 she
underwent left trigger thumb release. Dr. DePrince diagnosed bilateral CTS, left trigger thumb
and cubital tunnel syndrome of the right elbow. He provided a history of working for the
employing establishment for 15 years. This involved using automation machines which
procured appellant’s symptoms of pain and spasms in the hands and wrists. Dr. DePrince noted
that her duties included processing mail and transporting equipment to machines such as
knockers, cages, trays and sleeves. Transporting equipment involved pushing, pulling, lifting
and loading heavy mail onto a ledge weighing up to 70 pounds. Dr. DePrince stated that the
repetitive motion in appellant’s work and the weight of the mail was causing her to drop mail as
her hands were weak. Due to appellant’s bilateral wrist pain and spasm, left trigger finger,
mechanism of injury, damage to surrounding soft tissue and the severity and persistence of her
symptoms, he opined within medical certainty that her injuries sustained to her hands bilaterally,
left trigger finger and upper extremities were a direct result of the repetitive motion and workrelated incidents beginning in April 2010 and an incident on May 15, 2010.
The Board finds that the opinion of Dr. DePrince is not well rationalized. Dr. DePrince
diagnosed bilateral CTS, left trigger thumb and cubital tunnel syndrome of the right elbow. He
opined that with a reasonable degree of medical probability that appellant’s conditions were a
direct result of the repetitive motion and work-related incidents beginning in April 2010 and an
incident on May 15, 2010. Dr. DePrince’s opinion on causal relationship is equivocal as
provided two different opinions regarding the cause of appellant’s conditions. While he
attributed her conditions to a May 15, 2010 traumatic injury from a single occurrence within a
single workday, he also attributed her condition to an occupational injury produced by her work
environment over a period longer than a single workday or shift, as alleged by her in this claim.9
It is unclear which conditions were caused by the occupational injury and which, if any, were
caused or aggravated by the May 15, 2010 injury.
9

A traumatic injury means a condition of the body caused by a specific event or incident or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

6

Moreover, while Dr. DePrince stated an opinion on causal relationship, he failed to
provide an explanation of how pushing, pulling, lifting and transporting heavy mail and
equipment would cause or aggravate appellant’s bilateral CTS, left trigger thumb and cubital
tunnel syndrome of the right elbow. Although the bilateral CTS and right cubital tunnel
syndrome conditions were established prior to the May 15, 2010 injury, his opinion lacks support
as he failed to adequately describe her work duties, how many hours she worked a day, used the
conveyer belt, transported equipment and the frequency of other physical movements and tasks.
Medical reports without adequate rationale on causal relationship are of diminished probative
value and do not meet an employee’s burden of proof.10 The opinion of a physician supporting
causal relationship must rest on a complete factual and medical background supported by
affirmative evidence, address the specific factual and medical evidence of record and provide
medical rationale explaining the relationship between the diagnosed condition and the
established incident or factor of employment.11 Dr. DePrince’s reports do not meet that standard
and are insufficient to meet appellant’s burden of proof.
The remaining medical evidence of record is also insufficient to establish causal
relationship between appellant’s injuries and her federal employment duties as a mail processor.
The reports of Dr. Dela Rosa and Dr. Reiner diagnosed bilateral CTS and right cubital tunnel
syndrome but failed to state any opinion on causal relationship. Dr. Yu’s June 2, 2010 report
only provided diagnostic findings pertaining to appellant’s right wrist. Dr. Gleimer’s reports
dated September 17 to November 30, 2010 reported left trigger thumb release, which was
resolved postsurgery, stating that she could return to full duty having reached MMI on
November 30, 2010. Dr. Dubowitch noted that appellant complained of numbness and tingling
in the hands as well as triggering and locking about the left thumb, which occurred on May 15,
2010 after utilizing a machine at work. He diagnosed left trigger thumb, right wrist tendinitis,
bilateral CTS and right cubital tunnel but failed to state any opinion on causal relationship.
While all of appellant’s physician’s provided a firm medical diagnosis, they failed to state any
opinion on causal relationship.12 Thus, the additional medical reports are of limited probative
value.
South Jersey Health and Wellness Center progress notes dated May 19 to December 17,
2010 merely noted appellant’s complaints and treatment but failed to provide any opinion on
causal relationship. Many of the notes were signed by physician’s assistants and physical
therapists. However, a nurse, physician’s assistant or physical and occupational therapist is not a
physician as defined by FECA. Their opinions regarding diagnosis and causal relationship are
not probative medical evidence.13 The remaining progress notes contained illegible signatures

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

See Roy L. Humphrey, 57 ECAB 238 (2005).

7

and thus, it is unclear if they were signed by a physician.14 These notes lack probative medical
value as the author(s) cannot be identified as a physician.15
On appeal, appellant’s counsel argues that the medical reports submitted are sufficient to
establish her claim. While OWCP shares responsibility in the development of the evidence to
see that justice is done, it is appellant’s burden of proof to submit the evidence necessary to
establish her claim.16 The Board has reviewed the medical evidence and no physician has
provided a completely rationalized opinion that her federal employment duties as a mail
processor caused or aggravated her medical conditions. As previously noted, Dr. DePrince’s
opinion failed to provide a fully rationalized opinion that appellant’s conditions were caused by
an occupational injury rather than an incident on May 15, 2010. The single, equivocal statement
by him that causal connection exists is not sufficient to meet appellant’s burden of proof.17 As
appellant is alleging that her injury was produced by her work environment over a period longer
than a single workday or shift, she must submit rationalized medical evidence from a physician
which describes her employment duties and provides an explanation on how these duties caused
her injury.18
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a mail processor and her bilateral
CTS, left trigger thumb and right cubital tunnel syndrome. Thus, appellant has failed to meet her
burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral CTS, left trigger thumb and right cubital tunnel syndrome are causally related to factors
of her employment as a mail processor.

14

Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA,
their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.
See also Roy L. Humphrey, 57 ECAB 238 (2005).
15

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

16

Phillip L. Barnes, 55 ECAB 426 (2004).

17

The Board notes that, if appellant is alleging that her injury was caused or aggravated by a specific event or
incident or series of events or incidents, within a single workday or shift, she should pursue her claim by filing a
Form CA-1 and submitting rationalized medical evidence which establishes that the May 15, 2010 incident caused
her injury. Supra note 9.
18

Supra note 11.

8

ORDER
IT IS HEREBY ORDERED THAT the August 1, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2013
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, ALLENDALE
CARRIER ANNEX, Allendale, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1837
Issued: April 12, 2012

Case Submitted on the Record

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

JURISDICTION
On August 4, 2011 appellant, through her attorney, filed a timely appeal from a May 3,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) finding that she
did not establish a recurrence of disability. 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.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability beginning
January 27, 2010 due to her accepted work injury; and (2) whether she sustained a consequential
emotional condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on October 29, 1996 appellant, then a 32-year-old mail carrier,
sustained the toxic effect of venom from a snake bite to her left calf in the performance of duty.
She stopped work on October 29, 1996 and returned to limited-duty employment on
January 13, 1997.2
In a report dated August 11, 1997, Dr. M.J. Izbal, a Board-certified psychiatrist,
diagnosed post-traumatic stress disorder (PTSD) and found that appellant was unable to perform
outside work. On September 28, 1999 Dr. Bruce Johnson, a Board-certified psychiatrist, noted
that appellant had experienced “an event that was an actual threat to physical integrity itself.”
He discussed her symptoms of recurrent dreams about the snake bite and determined that she had
intense psychological distress. Dr. Johnson diagnosed PTSD due to the October 29, 1996 snake
bite. On September 26, 2000 Dr. Claudio I. Dicovsky, a psychiatrist, diagnosed major
depression, PTSD and adjustment disorder and found that work aggravated appellant’s condition
due to her serious employment injury and harassment by supervisors.
On August 21, 2006 appellant accepted a position as a modified letter carrier. The job
required intermittent sitting for seven hours, reaching above the shoulders for two hours,
intermittent twisting and turning for two hours and intermittent walking for 30 minutes.
Appellant’s duties included answering the telephone for five hours, filing express mail for one
hour, casing mail for 30 minutes and verifying addresses for one hour and 30 minutes a day. In a
duty status report dated March 6, 2007, Dr. James M. Katz, a Board-certified dermatologist,
found that she could work sitting up to seven hours a day and standing and walking up to 30
minutes a day.
On January 27, 2010 the employing establishment offered appellant a position as a
modified city carrier for four hours a day. The duties included casing mail on a stool for up to
three hours and delivering mail for 30 minutes. The job offer set forth the physical requirements
as picking up mail and reaching to a shelf case for up to three hours, standing while casing mail
for one hour, operating a motor vehicle for 30 minutes and walking for 30 minutes. Appellant
indicated on the offer that she would accept casing mail but refused to deliver mail outside.
In a duty status report dated January 27, 2010, Dr. Katz diagnosed severe anxiety, PTSD,
pain, swelling and cellulitis. He found that appellant could not work outside due to her cellulitis.
Dr. Katz further indicated that she could not stand more than 30 minutes a day.
On February 3, 2010 appellant filed a notice of recurrence of disability beginning
January 27, 2010 due to her October 28, 1996 employment injury. She related that the
employing establishment sent her home under the National Reassessment Process (NRP). On the
claim form, the employing establishment noted that, following appellant’s original injury, it
accommodated her by providing work answering the telephone and customer questions and other
administrative duties.

2

By decision dated March 22, 2000, OWCP granted appellant a schedule award for a 15 percent permanent
impairment of the left lower extremity.

2

By letter dated March 10, 2010, Rick Yannotti, a supervisor, related that appellant “was
sent home on January 27, 2010 and has not returned to work because the [employing
establishment] cannot accommodate the restrictions set forth by her physician.” On April 8,
2010 the employing establishment notified OWCP that after appellant received a new job offer
she submitted a duty status report with new restrictions.
In a report dated April 22, 2010, Dr. Katz related that he had treated appellant from
October 1996 to the present. He found that she was disabled from employment and stated:
“[Appellant] sustained a snake bite while working on the job in 1996. I have been
evaluating and treating [her] for severe pain, cellulitis and lymphatic obstruction
of the lower extremities associated with severe swelling and difficulty ambulating
and walking. [Appellant] is also experiencing symptoms associated with stress
disorder because of her condition. She has also developed chronic infections
from the above conditions.”
On April 26, 2010 Dr. Frank L. Gazzillo, a Board-certified neurologist, evaluated
appellant for “persistent painful paresthesias in the left leg” since a snake bite on
October 29, 1996. On examination he found decreased sensation in the left leg and pain moving
the left ankle. Dr. Gazzillo determined that appellant was disabled due to painful paresthesias
related to her superficial peroneal nerve injury in the left leg.
In a report dated May 18, 2010, Dr. Dicovsky related that he had treated appellant since
August 31, 2000 for depression and suicidal and homicidal ideation related to stress at work. He
indicated that she believed that she was harassed at work when she began working modified duty
as a result of an employment-related snake bite. Dr. Dicovsky diagnosed major depression,
PTSD and adjustment disorder. He found that appellant’s current employment aggravated her
condition because she “suffered a serious injury while at her job” and as she asserted that she
was harassed by her supervisors. Dr. Dicovsky opined that she was disabled from employment.
On May 17, 2010 OWCP referred appellant to Dr. Lynne Carmickle, a Board-certified
neurologist, for a second opinion evaluation. In a report date June 2, 2010, Dr. Carmickle
reviewed appellant’s history of injury on October 29, 1996 and provided findings on
examination. She determined that appellant had no objective evidence of a nerve injury and that
her sensory complaints had a functional overlay. Dr. Carmickle advised that appellant had
“shiny skin in the left lower extremity but no tenderness” that might be due to persistent
scratching rather than the snake bite. She noted that appellant had recently stopped work after 10
years. Dr. Carmickle found that there was “no objective evidence of any change in neurological
status that would affect appellant’s ability to work” and opined that she had no work restriction
neurologically.
On June 10, 2010 Dr. Gazzillo diagnosed “painful paresthesias as the result of a
superficial peroneal nerve injury in the left lower extremity from the previous snake bite. At this
time [appellant] remains unable to function in any type of work setting and she is totally and
permanently disabled.”

3

By decision dated June 23, 2010, OWCP found that appellant had not established a
recurrence of disability beginning January 27, 2010 due to her October 29, 1996 employment
injury. It determined that the medical evidence did not show that she was now disabled from her
employment or that she had a psychiatric condition due to the work injury.3
On July 2, 2010 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative. In a report dated July 22, 2010, Dr. Gazzillo described his
evaluation of her for paresthesias in the left leg.4 He attributed the condition to appellant’s snake
bite and found that she was totally disabled due to her inability to stand or walk.
At the hearing, held on November 5, 2010, appellant related that the job offer by the
employing establishment as part of the NRP was outside of her work restrictions. She asserted
that she could not case mail on a stool due to the pressure on her legs.
On December 1, 2010 the employing establishment related that as part of the NRP “all
employees working limited-duty assignments had their jobs evaluated to determine if they were
performing necessary work.” It noted that appellant submitted new medical evidence when
offered another position.
By decision dated December 30, 2010, OWCP’s hearing representative affirmed the
June 23, 2010 decision. She discussed the findings of the second opinion physician that
appellant could return to full duty. The hearing representative also determined that appellant had
not submitted sufficient medical evidence to show a psychiatric condition due to her work injury.
On January 9, 2011 appellant was admitted to the hospital after complaining of having
snakes all over her. Dr. Mariza Del Rosario-Garcia, a Board-certified psychiatrist, diagnosed a
somatic-type delusional disorder, PTSD and left leg pain due to a snake bite 13 years earlier.
On January 31, 2011 counsel requested reconsideration. He requested expansion of the
claim to include PTSD. Counsel also argued that appellant had established a recurrence of
disability through the withdrawal of her light-duty work.
By decision dated May 3, 2011, OWCP denied modification of its December 30, 2010
decision.
On appeal, counsel argued that appellant has established a recurrence of disability due to
the withdrawal of her limited-duty employment under the NRP. He further contended that
OWCP should have developed the issue of whether appellant sustained a consequential injury
due to her work injury.

3

OWCP noted that appellant worked 12 hours a week in private employment.

4

On September 13, 2010 Dr. Gazzillo again found that appellant was disabled and diagnosed a peroneal nerve
injury with persistent painful paresthesias.

4

LEGAL PRECEDENT -- ISSUE 1
Where an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury-related condition or a change
in the nature and extent of the light-duty job requirements.5
OWCP regulations provide that a recurrence of disability means an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition which
had resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness.6 This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn, (except when
such withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reductionin-force) or when the physical requirements of such an assignment are altered so that they exceed
his or her established physical limitations.7
Section 8123(a) 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.8 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained the toxic effect of venom from a snake bite to
her left calf on October 29, 1996. She returned to limited-duty employment on January 13, 1997.
On February 3, 2010 appellant filed a notice of recurrence of disability beginning January 27,
2010 due to her October 29, 1996 work injury. She maintained that the employing establishment
sent her home on that date after withdrawing her limited-duty position as part of the NRP.

5

Richard A. Neidert, 57 ECAB 474 (2006); Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB
222 (1986).
6

20 C.F.R. § 10.5(x).

7

Id.

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

5

The employing establishment offered appellant a position on January 27, 2010 for four
hours a day. The position had increased physical requirements from her prior limited-duty
position of standing for one hour rather than 30 minutes a day and delivering mail outside for 30
minutes.
OWCP procedures as outlined in FECA Bulletin No. 09-0510 provide that in cases where
a formal wage-earning capacity decision has not been issued and limited-duty work is
withdrawn, OWCP should evaluate the medical evidence to determine if the current evidence
establishes that the employment-related residuals continue.
In a duty status report dated January 27, 2010, Dr. Katz diagnosed severe anxiety, PTSD
and cellulitis. He advised that appellant could not work outside due to cellulitis or stand over 30
minutes a day. On April 22, 2010 Dr. Katz related that he had treated her since 1996 for a snake
bite and diagnosed cellulitis and lymphatic obstruction. He found that appellant was disabled
from employment.
On April 26, 2010 Dr. Gazzillo noted that appellant experienced painful paresthesias
secondary to an October 29, 1996 snake bite. He found that she was disabled due to a peroneal
nerve injury in the left leg resulting in paresthesias. On June 10, 2010 Dr. Gazillo attributed the
peroneal nerve injury to the snake bite and again advised that appellant was totally disabled.
OWCP referred appellant to Dr. Carmickle for a second opinion examination. On
June 22, 2010 Dr. Carmickle determined that appellant had no objective evidence of a nerve
injury and no neurological disability. She found that appellant had some shiny skin on the left
leg that might be a result of scratching rather than the snake bite.
The Board finds that a conflict in medical opinion exists between Dr. Katz and
Dr. Gazzillo, appellant’s attending physicians and Dr. Carmickle, who provided a second opinion
examination, regarding whether the current evidence establishes that her work-related residuals
continue. Section 8123 of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician, who shall make an examination.11 The case will therefore be
remanded for an impartial medical examiner to resolve the conflict in medical opinion.
Following this and such further development as deemed necessary, it should issue a de novo
decision.
LEGAL PRECEDENT -- ISSUE 2
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
10

FECA Bulletin No. 09-05 (issued August 18, 2009, expiration date August 18, 2010).

11

Supra note 8 at § 8123; see Y.A., 59 ECAB 701 (2008).

6

primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an permanent residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.12
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.13
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary
injury, the rules that come into play are essentially based upon the concepts of direct and natural
results and of claimant’s own conduct as an independent intervening cause. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.14
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained the toxic effect of venom from an October 29,
1996 snake bite to her left calf. She alleged that she sustained an emotional condition as a
consequence of the accepted snake bite. Appellant has the burden to establish that her
stress-related condition is the direct and natural result of her injury.15
On August 11, 1997 Dr. Izbal diagnosed PTSD and found that appellant could not work
outdoors. In a report dated September 28, 1999, Dr. Johnson noted that the snake bite was a
life-threatening event that caused recurrent dreams and significant psychological distress. He
diagnosed PTSD due to the October 29, 1996 snake bite. On September 26, 2000 Dr. Dicovsky
diagnosed major depression, adjustment disorder and PTSD. He found that work aggravated
appellant’s condition and attributed the aggravation to both her significant work injury and
harassment. In a report dated May 18, 2010, Dr. Dicovsky related that he had treated her
beginning August 31, 2000 for depression and suicidal and homicidal ideation caused by
employment-related stress. He discussed appellant’s belief that she was harassed at work due to
her snake bite injury and needed her to work modified duty. Dr. Dicovsky diagnosed PTSD,
adjustment disorder and major depression due to a serious work injury and her belief that she
was harassed by her supervisors. He found that appellant was disabled. On January 9, 2011
12

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

13

Charles W. Downey, 54 ECAB 421 (2003).

14

Larson, The Law of Workers’ Compensation § 10.01; see supra note 13.

15

See supra note 12.

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Dr. Rosario-Garcia noted that appellant reported snakes climbing over her and admitted her to
the hospital with diagnoses of delusional disorder, PTSD and leg pain due to a snake bite 13
years earlier.
It is well established that proceedings under FECA are not adversarial in nature.16 While
appellant has the burden to establish entitlement to compensation, OWCP shares responsibility in
the development of the evidence.17 It has an obligation to see that justice is done.18 The medical
reports from appellant diagnosed PTSD beginning near the time of her snake bite. While the
opinions of Dr. Johnson and Dr. Dicovsky that her emotional condition arose from her work
injury are not completely rationalized, they are sufficient to raise an uncontroverted inference of
causal relationship sufficient to warrant further development.19 On remand, OWCP should refer
appellant for a second opinion examination to determine whether appellant sustained a
consequential emotional condition due to her October 29, 1996 snake bite. After such further
development as deemed necessary, it should issue a de novo decision on this issue.
CONCLUSION
The Board finds that the case is not in posture for decision.

16

William B. Webb, 56 ECAB 156 (2004); John J. Carlone, 41 ECAB 354 (1989).

17

Peter C .Belkind, 56 ECAB 580 (2005); Dorothy L. Sidwell, 36 ECAB 699 (1985).

18

R.E., 59 ECAB (2008); Rebecca O. Bolte, 57 ECAB 687 (2006).

19

See Phillip L. Barnes, 55 ECAB 426 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2011 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: April 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9