United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Horseheads, NY, Employer
_________________________________________

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

Docket No. 16-0919
Issued: July 12, 2016

Case Submitted on the Record

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

JURISDICTION
On April 1, 2016 appellant filed a timely appeal from a February 9, 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 met her burden of proof to establish a left elbow condition
causally related to factors of her federal employment.
On appeal appellant contends that her work duties contributed to her left elbow condition
and resultant surgery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2015 appellant, then a 53-year-old rural mail carrier, filed an occupational
disease claim (Form CA-2) under OWCP File No. xxxxxx703 alleging that on February 17, 2014
she first realized that her left cubital tunnel syndrome was aggravated by her previously accepted
January 24, 2013 left elbow injury (OWCP File No. xxxxxx331) and her work duties. In an
accompanying statement dated February 14, 2015, she indicated that she had a prior accepted
traumatic injury claim for a left elbow contusion and left forearm strain sustained on January 24,
2013 under OWCP File No. xxxxxx331.2 Appellant described the medical treatment she
received for these conditions and the development of her current left elbow condition and
medical treatment. She also described her work duties which involved lifting, grasping, and
casing mail, pulling down four to eight trays of mail a day, loading bundles weighing 10 to 20
pounds and trays into her postal vehicle, delivering and picking up mail from 499 mailboxes on
her route, and placing collected mail and parcels in their designated location. Appellant did not
stop work when she filed her claim.
In an April 13, 2015 letter, Dr. Saeed A. Bajwa, a Board-certified neurosurgeon, noted
that appellant had been under his care for ulnar neuropathy since January 16, 2014. He noted
that on January 24, 2013 she apparently sustained a left elbow injury triggered by her left cubital
tunnel syndrome. Dr. Bajwa also noted that as a rural carrier appellant had to twist her arm and
hand multiple times during her daily work. He opined that these duties further aggravated and
contributed to her left cubital tunnel syndrome that required surgery on May 28, 2014.
By letter dated July 2, 2015, OWCP informed appellant of the deficiencies in her claim
and afforded her 30 days to submit additional factual and medical evidence.
In a July 24, 2015 letter, appellant indicated that the duration she performed the daily
work duties was set forth in her February 24, 2015 statement. For 20 years she sorted mail 1½
hours, bundled mail 30 minutes, loaded and unloaded mail 15 minutes, and delivered mail 3½ to
4 hours.
In an August 7, 2015 decision, OWCP denied appellant’s occupational disease claim. It
found that she failed to submit a rationalized medical opinion to establish that her left cubital
tunnel syndrome was causally related to the accepted employment factors.
By letter dated and received on November 17, 2015, appellant, through her thenrepresentative, requested reconsideration and submitted medical evidence. In a November 7,
2015 letter, Dr. Thomas R. Mitchell, a Board-certified family practitioner, advised that appellant
suffered from cubital tunnel syndrome. He opined that her rural mail carrier job, which involved

2

In a July 22, 2014 decision, OWCP denied authorization for revised ulnar nerve surgery. It found that the
medical evidence of record did not establish that the proposed surgery was causally related to the January 24, 2013
employment-related injuries. In an August 8, 2014 decision, OWCP denied appellant’s claim for a recurrence of
disability on May 28, 2014. It found that the medical evidence of record did not establish a material worsening of
her employment injuries. On November 19, 2014 OWCP denied modification of the August 8, 2014 decision
denying appellant’s recurrence claim. OWCP File No. xxxxxx331 is not before the Board on the present appeal.

2

repetitive use of both extremities, certainly contributed to her condition and subsequent May 28,
2014 surgery.
In a February 9, 2016 decision, OWCP denied modification of the August 7, 2015
decision. It again found that appellant failed to submit a rationalized medical opinion to
establish that her left cubital tunnel syndrome was caused by the accepted work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.5
ANALYSIS
OWCP accepted as factual that appellant performed repetitive work duties as a rural mail
carrier. The Board finds, however, that the medical evidence of record is insufficient to establish
that she sustained left cubital tunnel syndrome caused or aggravated by the accepted work
factors.
Drs. Bajwa and Mitchell found that appellant had left cubital tunnel syndrome. The
physicians opined that her condition which required surgery on May 28, 2014 was causally
related to her work duties as a rural carrier. Dr. Bajwa noted that appellant had to twist her arm
3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

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I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

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and hand multiple times while performing her daily work duties. Dr. Mitchell noted that her
work duties involved repetitive use of both extremities. Although the physicians opined that
appellant’s left elbow condition was related to her duties as a rural mail carrier, the Board finds
that they did not provide any medical rationale to support their opinion of causal relationship.
The Board has found that a medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.6 Neither Dr. Bajwa nor Dr. Mitchell explained how the accepted repetitive
work duties caused or aggravated appellant’s left cubital tunnel syndrome for which she
underwent surgery. Moreover, neither physician provided a history of her medical background
or detailed objective findings supporting the existence of a left elbow condition and their opinion
on causal relationship. The Board finds that the lack of medical rationale significantly
diminishes the probative value of the opinions of Drs. Bajwa and Mitchell.7
Appellant’s belief that factors of employment caused or aggravated her condition is
insufficient, by itself, to establish causal relationship.8 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s left elbow
condition was caused or aggravated by the established employment factors. Appellant did not
meet her burden of proof.
On appeal appellant contends that her work duties contributed to her left elbow condition
and resultant surgery. The Board finds that the weight of the medical evidence does not establish
that appellant’s left elbow condition, for which she underwent surgery on May 28, 2014, was
caused or contributed to by the accepted employment 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 met her burden of proof to establish a left elbow
condition causally related to factors of her federal employment.

6

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

8

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 12, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0725
Issued: May 17, 2018

Case Submitted on the Record

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

JURISDICTION
On February 13, 2017 appellant, through counsel, filed a timely appeal from a
December 19, 2016 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 the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her herniated
cervical disc condition was causally related to the accepted June 11, 2015 employment incident.
FACTUAL HISTORY
On November 6, 2015 appellant, then a 46-year-old logistics management specialist, filed
a traumatic injury claim (Form CA-1) alleging that, on June 11, 2015, she sustained a herniated
C5-6 disc and cervical disc displacement with radiculopathy pain as a result of her federal
employment duties. She recounted that she was tasked to pick-up, carry and hang large magnetic
whiteboards on the walls for viewing by management and take down and carry the boards to her
cubicle area after their usage. Appellant alleged that she injured her back when she lifted one of
the whiteboards to carry back to her desk, which caused her right arm to tingle and hurt.
Dr. Jarrod Curry, an osteopath and diagnostic radiologist, interpreted a June 15, 2015
cervical spine computerized tomography (CT) scan. He found no evidence of fracture or
subluxation. Dr. Curry opined that appellant’s right upper extremity symptoms were likely
secondary to a broad-based disc osteophyte complex at the C5-6 level, which was compressed
upon the right ventral aspect of the cord.
In a June 15, 2015 report, Dr. Aivars Vitols, an osteopath and orthopedic surgeon, noted
that appellant worked as an accountant and performed lots of typing. He indicated that her right
shoulder pain, with radiation down her arm to her hand, began on June 10, 2015. Appellant did
not report an injury, but indicated that she had increased her activity at work last week and
developed a knot in the back of her right shoulder which radiated toward her head and down her
right arm. Dr. Vitols provided an assessment of acute right shoulder pain and capsulitis of the
shoulder. He indicated that x-rays of the right shoulder showed mild degenerative changes to the
acromioclavicular (AC) joint, but no soft tissue injury or fractures.
In a June 19, 2015 report, Dr. Scott West, an osteopath and neurosurgeon, indicated that
appellant’s symptoms of right-sided posterior cervical pain with radiation into her right shoulder
and down her entire right arm with dysesthesias involving all the fingers of her right hand with the
exception of the thumb began about one week ago from an unknown cause. He noted that she had
performed heavy lifting at work a week or two prior to the above symptoms. Dr. West noted
physical findings and reviewed the June 15, 2015 CT scan of the cervical spine. He provided an
impression of herniated cervical disc with spondylosis C5-6 right. Appellant was scheduled for
one month of physical therapy and cervical epidural injections.
On June 29, 2015 appellant underwent a cervical epidural steroid injection. She went to
physical therapy from July 10 to 16, 2015, but was discharged on August 25, 2015 as she had
stopped attending therapy.
In a November 9, 2015 statement, G.B., a coworker, related that appellant assisted in a
cubicle reconstruction and that she had unpacked and carried large whiteboards to various
locations. He stated that the whiteboards were not light as he had moved some of the whiteboards
short distances within the visual display areas. In another November 9, 2015 statement, M.B., a

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coworker, stated that he had delivered approximately 15 large white magnetic dry-erase boards to
appellant. He also saw her working on the whiteboard project.
By development letter dated November 16, 2015, OWCP advised appellant of the
deficiencies in her claim and requested additional factual and medical evidence, including a
detailed narrative report from her physician, which included a history of the injury and a medical
explanation with objective evidence of how the reported work incident caused or aggravated the
claimed conditions. Appellant was afforded 30 days to submit such evidence.
In response, OWCP received a December 11, 2015 request from appellant for additional
time to respond. Additional e-mails from appellant’s coworkers in response to the employing
establishment’s investigation into appellant’s injury were received. OWCP also received a copy
of e-mails appellant had sent to the employing establishment describing her injury. In an
August 14, 2015 e-mail, appellant again described her employment activities regarding the
whiteboard project. She alleged that her back followed by her arm began to hurt on June 11, 2015.
Appellant noted that she had complained of the pain to her coworkers on June 11, 2015. She went
to the emergency room on June 15, 2011 and was told that she had a herniated disc at C5-6 and
that the pain in her right arm was an impinged nerve.
In a December 16, 2015 attending physician’s form report (Form CA-20), Dr. West
diagnosed herniated disc with spondylosis. He checked a box marked “yes” indicating that the
condition was caused or aggravated by employment activity and added that “patient had no
symptoms prior to injury.” For the history of injury and findings, Dr. West noted “see enclosures.”
No further evidence was attached.
By decision dated December 17, 2015, OWCP denied the claim, finding that appellant had
not established fact of injury. It found that the evidence of record was insufficient to establish that
the event(s) occurred as alleged as appellant had not answered the questions that were sent with
the development letter. OWCP also noted that there was no medical evidence of record which
contained a diagnosis that could be connected to the work injury or event.
On September 26, 2016 OWCP received counsel’s March 18, 2016 request for
reconsideration.
OWCP received several interoffice e-mails from May 18 to November 9, 2015 regarding
appellant’s alleged injury and exhibits regarding the whiteboard project.
In a different June 19, 2015 report, Dr. West indicated that appellant’s cervical pain started
one and a half weeks ago, while driving to work. He noted that she saw an orthopedic surgeon,
who had diagnosed a displaced rib which was manipulated back in place. Dr. West also noted the
progression of her neck pain and that she was seen in the emergency room. He noted that
appellant’s symptoms of right-sided posterior cervical pain with radiation into her right shoulder
and down her entire right arm with dysesthesias involving all the fingers of her right hand with the
exception of the thumb began about one week ago from an unknown cause. Appellant indicated
that she had performed heavy lifting at work a week or two prior to the above symptoms. Dr. West

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noted physical findings, his review of the June 15, 2015 CT scan of the cervical spine and provided
an impression of herniated cervical disc with spondylosis C5-6 right.
In a July 22, 2016 report, Dr. West indicated that appellant was seen one year ago with a
new onset of neck pain. He noted that she had some improvement in her symptoms following
physical therapy and injections and had returned to work. However, over the winter, her pain
gradually increased. Appellant stated the initial onset of symptoms began following a work injury
of June 11, 2015 while moving whiteboards. Dr. West provided an impression of herniated
cervical disc C5-6 and recommended surgery. On September 6, 2016 she underwent microscopic
anterior cervical discectomy with allograft fusion C5-6.3
In an October 11, 2016 report, Dr. West stated that he initially evaluated appellant on
June 19, 2015 when she presented with right-sided posterior cervical pain with radiation into her
right shoulder, right arm, and right hand involving all fingers of her right hand with the exception
of her thumb. During that visit, appellant stated that she had done some heavy lifting at work
approximately one week prior to the date of the onset of her symptoms. Dr. West indicated that a
CT scan of appellant’s cervical spine demonstrated a disc herniation with spondylosis at the C5-6
level on the right and that he had recommended conservative care. Approximately one year later,
on July 22, 2016, he saw appellant for continued pain in the cervical spine and right shoulder.
During that visit, appellant had stated that her work injury occurred on June 11, 2015 when she
lifted some 80-pound magnetic whiteboards at work. She was off work for two weeks and
returned, but had continued difficulties. Dr. West noted that appellant’s January 21, 2016 MRI
scan of the cervical spine showed a herniated disc with spondylosis at C5-6. He indicated that she
had surgery at that level on September 6, 2016 and that her arm pain had resolved following
surgery. Dr. West opined that, given the history he was presented with, appellant’s disc herniation
at the C5-6 level was the direct result of her work injury. He explained that she had a significant
disc herniation at that level and that her pain persisted until surgery relieved the pressure.
In an October 17, 2016 statement, appellant again explained that her supervisor tasked her
to disassemble, move and hide cubical walls, overhead storage bins, desks, and cabinets in three
separate areas of the building in May 2015. The reconfiguration of the cubicles occurred over a
week and she used her own tools from home. Over a period of several weeks leading up to June 11,
2015, appellant had stored, delivered and hung the magnetic white boards. The magnetic
whiteboards were heavy and fell as she could not get them on the hooks. On the morning of
June 10, 2015, while driving to work, appellant felt sore and had pain in her right upper back. On
June 11, 2015 she carried a whiteboard from her cubicle approximately 30 feet and hung it on the
wall. Appellant also removed the desks and filing cabinets. Once management viewed the
whiteboards, she took down the whiteboards and carried them back to her cubicle. When appellant
turned around after lifting the magnetic whiteboard, she felt an uncomfortable sensation down her
right arm. She told her coworker about what happened and that her arm hurt. Appellant stayed
home on June 11 to 13, 2015 due to the pain and then went to urgent care.
OWCP forwarded a statement of accepted facts (SOAF) and the medical record to
Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, its district medical adviser (DMA)
3
Treatment notes from Dr. West dated October 7, 2016 and an October 7, 2016 magnetic resonance imaging (MRI)
scan report indicated a good surgical result.

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for a determination as to whether appellant’s herniated disc at C5-6 was a consequence of the
claimed June 11, 2015 employment incident. In a November 1, 2016 report, the DMA noted
appellant’s history of injury, his review of the SOAF and the medical records. He stated that
appellant had significant preexisting degenerative disease at the C5-6 level. The DMA stated that
the onset of pain was not work related as it occurred while driving to work, which was a normal
activity. He opined that the pain was not occupationally related and the work-related activities
were not competent to produce the herniated disc and subsequent surgical procedure. Rather, the
condition was caused by a degenerative basis and would have occurred with normal activity
regardless of the occupational requirements. Therefore, the DMA opined that appellant’s C5-6
herniated disc and subsequent anterior cervical discectomy and fusion were not caused by a work
injury.
By decision dated December 19, 2016, OWCP modified its prior decision to reflect that
fact of injury was established, but it denied the claim as the medical evidence of record was
insufficient to establish that appellant’s diagnosed cervical condition was causally related to the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic 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 that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident that is alleged to have occurred.7 An employee has not met his or her burden
of proof in establishing the occurrence of an injury when there are such inconsistencies in the
evidence as to cast serious doubt upon the validity of the claim.8 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.9
4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

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

8

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

9

Deborah L. Beatty, 54 ECAB 340 (2003).

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The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is 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.10 Neither the fact that a disease or condition manifests itself during a
period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.11
ANALYSIS
The Board finds that appellant has not established that her diagnosed herniated cervical
disc condition was causally related to the accepted employment incident.
OWCP accepted that the June 11, 2015 work incident occurred as alleged and that a
medical diagnosis had been provided. However, it denied the claim, finding that the medical
evidence of record failed to establish causal relationship between the June 11, 2015 employment
incident and the claimed C5-6 herniated disc and subsequent anterior cervical discectomy and
fusion.
Medical evidence submitted to support a claim for compensation should reflect a correct
history of injury and should offer a medically-sound explanation of how the employment incident
caused or aggravated the diagnosed condition.12 Appellant did not submit medical evidence
sufficient to meet her burden of proof.13
In his June 15, 2015 report, Dr. Vitols related that appellant’s problems with right shoulder
pain and radiation down her arm to her hand began June 10, 2015. He noted that she had increased
her activity at work the week before and developed a knot in the back of her right shoulder. While
Dr. Vitols provided an assessment of acute right shoulder pain and capsulitis of shoulder, he did
not mention the June 11, 2015 employment incident or indicate what increased activities appellant
had been involved in at work.14 Dr. Vitols also did not provide an opinion as to whether the
diagnosed condition was due to the accepted work-related activity of June 11, 2015. The Board
has found that medical evidence that does not offer any opinion regarding the cause of an

10

Solomon Polen, 51 ECAB 341 (2000).

11

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

12

S.H., Docket No. 17-1447 (issued January 11, 2018); D.D., Docket No. 13-1517 (issued April 14, 2014);
Michael S. Mina, 57 ECAB 379 (2006).
13

See R.H., Docket No. 18-0021 (issued March 21, 2018).

14

Supra note 11.

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employee’s condition is of limited probative value on the issue of causal relationship.15 Thus, this
report is insufficient to establish appellant’s claim.
In several reports, Dr. West provided an impression of herniated cervical disc with
spondylosis C5-6 right. In his June 19, 2015 report, he indicated that appellant’s cervical pain
started one and a half weeks ago while driving to work and that her symptoms of right-sided
posterior cervical pain with radiation into her right shoulder, arm and hand began about one week
ago from an unknown cause. Dr. West noted that appellant had done heavy lifting at work a week
or two prior to the above symptoms, but did not indicate what the heavy lifting involved and the
duration of such activity. While he indicated some awareness of appellant’s employment activity
during the period surrounding June 11, 2015, Dr. West failed to note any specific incident on
June 11, 2015 and he failed to provide an opinion regarding appellant’s diagnosed condition.16 As
such, his report did not reflect a correct history of injury and did not offer a medically-sound
explanation of how the employment incident caused or aggravated the diagnosed condition.17
In his December 15, 2015 Form CA-20 report, Dr. West again diagnosed herniated disc
with spondylosis. He, again, offered no explanation regarding appellant’s history of injury,
specifically the accepted June 11, 2015 employment incident; rather, he noted “see enclosures”
which were not attached. Dr. West’s opinion is therefore also of limited probative value as it is
not based on a proper history of injury.18 Although Dr. West noted that appellant was
asymptomatic prior to the injury, the lack of symptoms prior to an employment injury does not in
itself provide rationale in support of causal relationship.19 Thus, this report is insufficient to
establish appellant’s claim.
In his July 22, 2016 report, Dr. West noted that appellant stated the initial onset of
symptoms began following a work injury of June 11, 2015 while moving whiteboards. He
provided an impression of herniated cervical disc C5-6 and recommended surgery. Dr. West,
however, did not offer his own opinion on causal relationship. As previously indicated, medical
evidence which does not offer an opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.20
In an October 11, 2016 report, Dr. West described his interactions with appellant on
June 19, 2015 and July 22, 2016 and that he had diagnosed herniated cervical disc C5-6 based on
objective studies. During the July 22, 2016 visit, appellant stated that her work injury occurred on
June 11, 2015 when she lifted some 80-pound magnetic white boards at work. Dr. West opined
that, given the history he was presented with, appellant’s C5-6 disc herniation was the direct result
15

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

16

Id.

17

Supra note 11.

18

Id.

19

See Walter J. Neumann, Sr., 32 ECAB 69 (1980).

20
A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Willie M. Miller, 53 ECAB 697 (2002);
Michael E. Smith, 50 ECAB 313 (1999).

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of her claimed work injury. He indicated that she had a significant disc herniation at that level and
that her pain persisted for an extended period of time until surgery was performed to relieve the
pressure. However, Dr. West did not provide a rationalized medical opinion relating the diagnosed
condition to the accepted June 11, 2015 employment incident.21 While he appeared to know that
appellant’s heavy lifting at work one week prior to the onset of her symptoms involved lifting
heavy magnetic whiteboards, Dr. West did not provide an explanation as to how the cervical
herniated disc condition was related to the lifting events on June 11, 2015. A well-rationalized
opinion is particularly warranted when there is a history of a preexisting condition.22 Rather, he
generally opined that based on the history given, appellant’s disc herniation was the direct result
of her claimed work injury. Dr. West provided no discussion on the role of her preexisting neck
condition, if any, may have played a role in relation to the disc herniation and the subsequent need
for surgery. Without explaining how physiologically the lifting events of June 11, 2015 caused or
contributed to the diagnosed condition, Dr. West’s diagnosis of cervical herniated disc at C5-6 and
opinion on causal relationship is of limited probative value.23
The remainder of the evidence appellant submitted to the record, including reports of
diagnostic testing, are insufficient to establish the claim as it fails to provide an opinion on causal
relationship between appellant’s job, the June 11, 2015 employment incident, and her diagnosed
conditions.24
The Board also notes that OWCP’s DMA explained that appellant’s claimed work injury
could not have caused the cervical herniated disc condition as the condition was degenerative in
nature and had occurred in the course of normal activities prior to the accepted employment event.
On appeal counsel argues that the decision is contrary to fact and law. As discussed above,
none of the medical evidence appellant submitted constituted rationalized medical evidence, based
upon a specific and accurate history of employment conditions, which were alleged to have caused
or exacerbated her medical condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.25 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.
Causal relationship must be based on rationalized medical opinion evidence.26 As appellant has
not submitted a rationalized medical opinion supporting that her cervical condition was causally

21

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

22

M.B., Docket No. 16-0884 (issued September 8, 2016).

23

See J.P., Docket No. 16-0954 (issued December 13, 2016); see Lee R. Haywood, 48 ECAB 145 (1996).

24

L.L., Docket No. 16-0896 (issued September 13, 2016).

25

Daniel O. Vasquez, 57 ECAB 559 (2006).

26

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

8

related to the accepted June 11, 2015 employment incident, she has not met her burden of proof to
establish an employment-related traumatic injury.27
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
herniated cervical disc was causally related to the June 11, 2015 accepted employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated December 19, 2016 is affirmed.
Issued: May 17, 2018
Washington, DC

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

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

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

27

See E.V., Docket No. 17-0269 (issued April 4, 2018).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Brockton, MA, Employer
__________________________________________

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

Docket No. 15-1717
Issued: December 11, 2015

Case Submitted on the Record

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

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from an August 3, 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 met his burden of proof to establish that he developed an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 12, 2015 appellant, then a 55-year-old accounting technician, filed an
occupational disease claim (Form CA-2) alleging that he developed severe stress because his
1

5 U.S.C. § 8101 et seq.

supervisor, Deborah Purvis, was pressuring him to write statements against his Chief, Li Liu. He
stated that this continued for a while and Ms. Purvis became very aggressive with him when she
realized he was not willing to cooperate. Appellant first became aware of his condition and of its
relationship to his employment on October 17, 2014. He first sought medical treatment on
January 15, 2015 and notified supervisor, Warren Berger, of his condition on March 30, 2015.
On the reverse side of the claim form, Mr. Berger stated that appellant was moved to another
office to separate him from another employee.
In hospital reports dated January 15 and 16, 2015, Dr. Sarah C. Grudberg, Board-certified
in internal medicine, reported that appellant presented to the cardiology clinic after complaints of
chest pain and dizziness which lasted at least eight hours. Appellant reported burning and
pressure-like chest pain at rest one month prior when he presented to the emergency room and
was told the condition was noncardiac. He also noted a history of similar chest pains while in
Iraq, which he attributed to anxiety. Dr. Grudberg diagnosed obesity, post-traumatic stress
disorder, and sinus bradycardia. In a January 16, 2015 report, she diagnosed noncardiac chest
pain and recommended that appellant explore potential emotional stressors which were driving
his symptoms. Appellant reported significant stress at times which he did not believe were
related to his symptoms.
By letter dated May 11, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and afforded him 30 days to respond to the provided questions. OWCP requested that he
describe in detail the employment-related activities which he believed contributed to his
condition, details pertaining to aggressive behavior from Ms. Purvis, relevant dates, locations,
how often and how long the events occurred, signed witness statements from anyone who could
verify the allegations made, whether he had filed previous grievances or Equal Employment
Opportunity complaints, relevant documents, sources of stress outside of his federal
employment, details pertaining to any prior emotional conditions, medical care, the development
of the claimed condition, when he first experienced his cardiac symptoms, any activities he was
performing prior to the onset of his symptoms, and any treatment pertaining to his claimed
condition. By letter of the same date, it requested additional information from the employing
establishment.
In a June 8, 2015 report, William Hyman, a clinical nurse specialist, reported that he
prescribed appellant psychiatric medications after he presented on February 25, 2015 with a chief
complaint of, “I just can’t deal with my supervisor.” Nurse Hyman diagnosed a panic disorder,
noting that appellant had 11 out of 13 symptoms of a panic attack. He further noted that
appellant would become extremely anxious when he would look at his supervisor, found it to be
intolerable to be in the same room with her, and requested a note restricting him from being in
the same room with her.
By letter dated June 9, 2015, the employing establishment controverted the claim, stating
that appellant failed to establish fact of injury. It further stated that he had a history of the same
type of chest pain from when he served in Iraq and failed to establish that his condition was
causally related to factors of his employment. In support of its controversion, OWCP submitted
a narrative statement from Mr. Berger responding to OWCP’s questionnaire.

2

In a June 9, 2015 narrative statement, Mr. Berger reported that Ms. Purvis was
appellant’s direct supervisor and the only knowledge he had of conflicts between appellant and
Ms. Purvis were based on statements made by appellant that she was creating a hostile work
environment for him, did not like him, and failed to respond to his e-mails in a timely manner.
He noted knowledge of one incident involving appellant and Ms. Purvis when appellant was
assisting a traveler and she questioned why the traveler was in the office. Appellant informed
him that traveler felt that Ms. Purvis’ tone was not appropriate. Mr. Berger did not directly
witness this interaction. He further stated that appellant was moved to another office due to an
altercation he had with another fellow employee. Mr. Berger stated that to the best of his
knowledge he did not know of any other accommodations made to reduce appellant’s stress.
By decision dated August 3, 2015, OWCP denied appellant’s claim finding that he failed
to establish fact of injury because the evidence did not support that the occupational exposure
occurred as alleged. It noted that the circumstances he claimed were responsible for his
condition were unclear and vague and he failed to respond to OWCP’s questionnaire. OWCP
also found that appellant failed to establish a firm medical diagnosis which could be reasonably
attributed to the alleged occupational exposure.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition, and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.2 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable, and probative evidence.3
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.4 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.5
The Board has held that the manner in which a supervisor exercises his or her discretion
falls outside the coverage of FECA. This principle recognizes that a supervisor or manager must
be allowed to perform their duties and that employees will, at times, disagree with actions taken.
2

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

3

See Ruth C. Borden, 43 ECAB 146 (1991).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Id.

3

Mere disagreement with or dislike of actions taken by a supervisor or manager will not be
compensable absent evidence establishing error or abuse.6
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.7 Mere perceptions of harassment or discrimination are not compensable under FECA.8 A
claimant must substantiate allegations of harassment or discrimination with probative and
reliable evidence.9 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.10 A claimant must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.11
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.13 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
ANALYSIS
Appellant has not attributed his emotional condition to the performance of his regular
work duties or to any special work requirement arising from his employment duties under
Cutler.15 He alleged that he sustained an emotional condition as a result of Ms. Purvis pressuring
him to write statements against Chief Liu and that she displayed increasing aggression towards
6

S.M., Docket No. 09-2290 (issued July 12, 2010); Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

7

K.W., 59 ECAB 271 (2007); Robert Breeden, 57 ECAB 622 (2006).

8

M.D., 59 ECAB 211 (2007); Robert G. Burns, 57 ECAB 657 (2006).

9

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7.

10

G.S., Docket No. 09-764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005); Penelope C.
Owens, 54 ECAB 684 (2003).
11

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

12

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

13

K.W., supra note 7; David C. Lindsey, Jr., 56 ECAB 263 (2005).

14

Robert Breeden, supra note 7.

15

Supra note 4.

4

him when he would not comply. OWCP denied his emotional condition claim as he did not
establish that any compensable factors of employment occurred. The Board affirms this finding.
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.16 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected a condition for which compensation is claimed.17
Appellant has not provided sufficient detail to establish compensable work factors.18 The
Board notes that his allegation regarding his supervisor’s request for a statement against
Chief Liu is vague and fails to provide any detail regarding the date of the alleged request, or the
actual nature of what appellant was requested to do. Similarly, appellant’s allegation that his
supervisor acted with increasing aggression is vague and lacking in detail. By letter dated
May 11, 2015, OWCP requested he describe the factual circumstances of his claim and provided
him with a questionnaire for completion. Appellant did not respond. The only explanation
provided pertaining to his employment duties was the generalized and vague statement noted on
his CA-2 form. Moreover, the employing establishment controverted the claim. By failing to
describe his employment duties and circumstances surrounding his alleged injury, appellant has
not established that the occupational exposure occurred as alleged.19
The Board notes that actions of a claimant’s supervisor, which the claimant characterizes
as harassment, may constitute a compensable factor of employment. However, for harassment to
give rise to a compensable disability under FECA, there must be evidence that harassment or
discrimination did, in fact, occur. Mere perceptions or feelings of harassment do not constitute a
compensable factor of employment.20 However, appellant failed to provide any details
pertaining to the factors alleged. While Mr. Berger’s statement added some details to his claim,
noting an incident involving a traveler, it also fails to establish his occupational exposure claim
as he failed to witness any of the incidents first hand.21 The Board finds that appellant has failed
to establish that he was subjected to harassment by the employing establishment.
As appellant has not established any compensable employment factors, the Board need
not consider the medical evidence of record.22

16

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

17

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

18

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

19

P.T., Docket No. 14-598 (issued August 5, 2014).

20

J.C., 58 ECAB 594 (2007); Robert G. Burns, supra note 8; Lorraine E. Schroeder, 44 ECAB 323 (1992).

21

See Robert J. Vitello, Docket No. 01-318 (issued January 3, 2002).

22

Margaret S. Krzycki, 43 ECAB 496 (1992).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 3, 2015 is affirmed.
Issued: December 11, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 12-42
Issued: May 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 11, 2011 appellant filed a timely appeal from the July 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back or hip
condition as a result of his employment.
FACTUAL HISTORY
On April 13, 2011 appellant, then a 43-year-old city carrier, filed an occupational disease
claim alleging that his back and hip condition occurred as a result of delivering packages
weighing over 50 pounds. He indicated that he first realized on February 27, 2011 that his
1

5 U.S.C. § 8101 et seq.

condition was caused or aggravated by his employment. Appellant also stated that he reported
his injury on February 25, 2011. No evidence was submitted in support of his claim.
In an April 29, 2011 letter, OWCP advised appellant of the deficiencies in his claim and
requested additional factual and medical evidence, including a comprehensive medical report
from his treating physician explaining how and why the incidents in his employment caused or
contributed to his medical condition. Appellant was provided 30 days to submit the requested
information.
In a May 27, 2011 statement, appellant indicated that his lower back pain developed
while hand delivering heavy boxes weighing 50 to 60 pounds to a certain resident for several
weeks during the month of February 2011. He indicated that he was seen by a physician on
March 1, 2011.
Back to work letters from Dr. Douglas B. Szeto, a Board-certified family practitioner,
from March 1 to April 11, 2011 were received along with a copy of a March 14, 2011 After Visit
Summary. In a March 14, 2011 letter, Dr. Szeto stated that appellant has lower back and hip
pain related to a work-related lifting injury. He requested that appellant be excused from work
the rest of the week and to resume duties only he could tolerate upon return. In an April 21,
2011 letter, Dr. Szeto indicated that appellant was seen for back pain due to a work-related
injury. He restricted appellant to light duty until May 5, 2011. In a May 5, 2011 letter, Dr. Szeto
indicated that appellant was initially seen on March 1, 2011 for a work-related injury with back
pain and hip pain. He released appellant to light duty on May 9, 2011. In an April 11, 2011
letter, Dr. Szeto stated that appellant may return to work April 18, 2011.
By decision dated July 21, 2011, OWCP denied appellant’s claim on the grounds that fact
of injury was not established. It noted that he failed to establish that he sustained an injury.
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
period of FECA2 and that an injury was sustained in the performance of duty.3 These are the
essential elements of each compensation claim, regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
When an employee claims that he sustained an injury in the performance of duty, he must
submit sufficient evidence to establish a specific event, incident or exposure occurring at the
time, place and in the manner alleged. The employee must also establish that such event,

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

2

incident or exposure caused an injury.5 Once he establishes that he sustained an injury in the
performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation, is causally related to the
accepted injury.6
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, 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.7
ANALYSIS
The Board finds that appellant failed to establish that he sustained a back or hip condition
in the performance of duty as a city carrier.
Appellant alleged that he sustained back and hip pain from his duties as a city carrier. He
must establish all of the elements of his claim in order to prevail. Appellant must prove his
employment, time, place and manner of injury, a resulting personal injury and that his injury
arose in the performance of duty.
The Board finds that appellant has provided sufficient detail to establish that an
occupational exposure occurred as alleged.8 In his May 27, 2011 statement, appellant indicated
that his lower back pain developed while hand delivering heavy boxes weighing 50 to 60 pounds
to a certain resident for several weeks during the month of February 2011. This information has
not been specifically controverted by the employing establishment and is within the realm of his
duties as a city carrier. Thus, it is established as factual that appellant engaged in heavy lifting
during the month of February 2011 while in the performance of his duties.
Appellant however did not submit sufficient medical evidence to establish his claim.
Dr. Szeto stated that appellant has lower back and hip pain related to a work-related lifting
injury. He does not provide a firm diagnosis. Pain is a symptom, not a compensable diagnosis.9
Additionally, Dr. Szeto does not provide an adequate explanation of the activities performed
during employment which might have caused a back or hip injury. He failed to describe a
5

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
6

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

7

I.J., 59 ECAB 408 (2008).

8

It is not clear if OWCP accepted that an occupational exposure occurred as alleged.

9

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

3

mechanism of injury other than generally stating it was caused by lifting. No other medical
evidence was submitted.
While the factual element of appellant’s claim is established, the record lacks rationalized
medical evidence to establish an injury causally related to his employment. An award of
compensation may not be based on surmise, conjecture or speculation. Because appellant did not
submit sufficient evidence establishing the alleged occupational injury claim, OWCP properly
denied his claim.
On appeal, appellant contended that he had submitted the requested documentation to
support that a work-related injury had occurred. As discussed above, while he established the
factual element of his claim, the medical evidence fails to diagnose a specific medical condition
and explain how delivering packages at work caused such condition. A firm diagnosis of the
injury is necessary not only to support the element of fact of injury, it will allow OWCP to
accept a specific medical condition and authorize appropriate medical treatment.10
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 did not meet his burden of proof to establish that he
sustained a medical condition in the performance of duty as a city carrier.

10

On appeal, appellant submitted new evidence. The Board cannot consider evidence that was not before OWCP
at the time of the final decision. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389
(2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: May 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 08-757
Issued: August 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 17, 2008 appellant filed a timely appeal from the October 18, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs, which denied reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit
denial.
ISSUE
The issue is whether the Office properly denied appellant’s October 9, 2007 request for
reconsideration.
FACTUAL HISTORY
On May 29, 1995 appellant, then a 34-year-old city carrier, filed a claim alleging that her
right hand and wrist condition was a result of her federal employment: “My illness started when
I was filing mail, keying on the computers, writing up certified letters. Then my right hand
started to swell up on me.” The Office accepted her claim for de Quervain’s and carpal tunnel
syndrome, right wrist. Appellant underwent a right carpal tunnel release with neurolysis of the

median nerve on March 26, 2001. On May 22, 2003 she received a schedule award for a 20
percent permanent impairment of her right upper extremity.
Appellant underwent a left carpal tunnel release on October 28, 2004. The Office
expanded its acceptance of her claim to include bilateral carpal tunnel syndrome and, on
October 24, 2006, issued a schedule award for a 15 percent permanent impairment of appellant’s
left upper extremity.
On December 20, 2006 appellant requested reconsideration. In a decision dated
January 3, 2007, the Office denied this request on the grounds that appellant raised no
substantive legal questions and submitted no new and relevant evidence.
On October 9, 2007 appellant again requested reconsideration. She submitted two
evaluations from Dr. Kevin E. McGovern, an attending orthopedic surgeon. On August 31, 2007
Dr. McGovern reported that appellant presented with increasing pain and swelling in her left
wrist and hand. Physical examination showed some mild swelling in her wrist, no tenderness
over the first dorsal compartment, mild Finkelstein’s test, no instability and decreased grip
strength. Dr. McGovern diagnosed status post carpal tunnel release with residual symptoms. On
October 2, 1007 he reported that appellant continued to have pain and some swelling. On
physical examination Dr. McGovern found tenderness along the first dorsal compartment and the
dorsal and volar aspect of her hand, mild swelling and decreased grip strength. He diagnosed
de Quervain’s and carpal tunnel syndrome.
In a decision dated October 18, 2007, the Office denied appellant’s October 9, 2007
request for reconsideration. It found that the medical evidence she submitted was irrelevant
because Dr. McGovern did not address permanent impairment.1
On appeal, appellant explains that she still has significant tenderness and swelling in the
incisional area and that she went back to Dr. McGovern on August 31 and October 2, 2007.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Office may review an
award for or against payment of compensation at any time on its own motion or upon
application.2 The employee shall exercise this right through a request to the district Office. The
request, along with the supporting statements and evidence, is called the “application for
reconsideration.”3
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
1

On October 22, 2007 the Office corrected its October 18, 2007 memorandum to clarify that neither of
Dr. McGovern’s reports, dated August 31 and October 2, 2007, was relevant.
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.605 (1999).

2

arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.4
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.5 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.6
ANALYSIS
Appellant filed her October 9, 2007 request for reconsideration within one year of the
Office’s October 24, 2006 schedule award. The request is therefore timely. The question is
whether the request meets at least one of the standards for reopening her case.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law when issuing the October 24, 2006 award, nor did she advance a relevant legal argument
not previously considered by the Office.
She submitted two medical reports from
Dr. McGovern, but these reports do not address the Office’s October 24, 2006 schedule award.
Dr. McGovern did not evaluate appellant’s left upper extremity in these reports and he did not
suggest that the permanent impairment of her left upper extremity was more than 15 percent.
The reports show only that appellant continues to have de Quervain’s and residual carpal tunnel
syndrome. The issue, however, is not whether appellant continues to have tenderness and
swelling; the issue is whether the impairment of her left upper extremity is greater than 15
percent. Dr. McGovern’s reports have no bearing on this. The Board finds that this evidence is
not relevant and pertinent to the issue the Office decided on October 24, 2006.
Because appellant’s October 9, 2007 request for reconsideration does not meet at least
one of the three standards for reopening her case, the Board will affirm the Office’s October 18,
2007 decision denying her request.
CONCLUSION
The Board finds that the Office properly denied appellant’s October 9, 2007 request for
reconsideration.

4

Id. at § 10.606.

5

Id. at § 10.607(a).

6

Id. at § 10.608.

3

ORDER
IT IS HEREBY ORDERED THAT the October 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Oxford, WI, Employer
__________________________________________

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

Docket No. 12-675
Issued: October 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 6, 2012 appellant filed a timely appeal of an August 10, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment.1 Pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $6,387.84 for the period August 26, 2010 through February 12, 2011 for which he was
not at fault; and (2) whether OWCP properly denied waiver of recovery of the overpayment.

1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm a
continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board
has decided the appeal on the record.
2

5 U.S.C. § 8101 et seq.

On appeal, appellant contested the amount of the overpayment, alleging that OWCP
should have ended his benefits in a timely manner to avoid an overpayment and that interest
should not be collected on the overpayment. He stated that he and his wife maintained separate
households and that her income should not have been considered. Appellant argued that his
Thrift Savings Plan should not have been considered as available to him when determining
waiver of recovery of the overpayment.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On October 31, 2002
appellant, then a 49-year-old correction treatment specialist, filed an occupational disease
alleging that he developed work stress due to his federal employment. OWCP denied his claim
and he appealed to the Board. By decision dated April 26, 2005, the Board found that appellant
had established a compensable factor of employment, error in his termination from work in
November 1999. The Board further found that the medical evidence in the record did not
establish that this factor caused or contributed to his diagnosed emotional condition.3 The facts
and circumstances in the case as set out in the Board’s prior decision are adopted herein by
reference.
Following the April 26, 2005 decision, OWCP accepted appellant’s claim for anxiety
state and major depressive disorder. In a letter dated August 16, 2010, appellant informed
OWCP that beginning August 26, 2010 he would be working as an assistant professor. He
requested that his retirement annuity begin and his OWCP payments cease on August 26, 2010.
OWCP responded on September 24, 2010 and stated that appellant would soon receive an
election of benefits form. In a memorandum dated October 21, 2010, the Office of Personnel
Management (OPM) informed OWCP of his election of retirement benefits effective
August 26, 2010. In a letter dated December 14, 2010, OWCP again stated that appellant would
soon receive an election of benefits form.
Appellant completed a Form CA-1032 on December 24, 2010 and listed his employment
beginning August 26, 2010 earning $17,777.78 in 2010 or $4,444.00 per month. He further
indicated that he was married and that his wife lived with him. Appellant stated that he was not
receiving retirement or disability retirement benefits from OPM. On December 31, 2010 he
informed OWCP that he had not yet received the election of benefits form.
In a letter dated February 16, 2011, OWCP informed appellant that his compensation
benefits were terminated effective February 13, 2011 as his actual wages appear to meet or
exceed the wages of the job he held when injured. It noted that he had received an overpayment
of compensation and requested information regarding his earnings since August 26, 2010.
Appellant responded on March 1, 2011 and stated that his salary was $40,000.00 per year
or $3,333.33 per month. He provided a paystub supporting his monthly pay rate. Appellant
elected to receive his compensation over nine months rather than one year. He stated that his
monthly OWCP compensation rate was $3,897.00.
3

Docket No. 04-2190 (issued April 26, 2005).

2

On March 9, 2011 OWCP informed appellant that he was entitled to compensation every
four weeks of $1,713.00 or $1,855.75 per month. It provided him with an election form. In a
letter dated March 14, 2011, OWCP informed appellant that, at the time of receipt of his
August 16, 2011 letter, OWCP should have determined his wage-earning capacity and provided
him with an election of benefits. Because it failed to perform these actions, appellant received an
overpayment as he received compensation benefits as well as earnings.
Appellant completed the election form on March 20, 2011 and elected retirement benefits
effective August 26, 2010. In a letter dated April 8, 2011, OWCP requested $21,387.84 from
OPM as reimbursement for compensation paid from August 26, 2010 through February 12, 2011.
OPM responded on May 18, 2011 and noted that $15,000.00 had been collected from appellant’s
accrued annuity. It stated that, before the balance of the overpayment could be collected, OWCP
must establish that he had received due process.
In a letter dated June 13, 2011, OWCP informed appellant of the preliminary
determination that he had received an overpayment of compensation in the amount of $6,387.84
because he received both OPM and OWCP benefits during the period August 26, 2010 through
February 12, 2011. It found that he was without fault in the creation of the overpayment.
OWCP calculated the overpayment by determining the gross amount of compensation paid from
August 1, 2010 to February 12, 2011, to be $27,279.00 and the net overpayment to be
$24,465.30. These calculations were based on seven full 28-day periods from August 1, 2010
through February 12, 2011 with gross compensation of $3,897.00 each. OWCP then reduced
this amount by $3,479.46 the gross amount that appellant was entitled to for the period August 1
through 25, 2010 to reach a gross overpayment of $23,799.54. It reduced the $3,479.46 by his
health deductions, optional and basic life insurance deductions to reach the net amount of
overpayment for August 1 through 25, 2010 of $3,077.46. OWCP subtracted the net
overpayment of $24,465.30 minus $3,077.46 to reach $21,387.84. It then deducted the
$15,000.00 provided by OPM to reach a remaining overpayment of $6,387.84. OWCP requested
financial information from appellant within 30 days and informed him of the penalties of section
10.438 of OWCP’s regulations.4 In a telephone memorandum dated July 12, 2011, the claims
examiner noted allowing appellant a two-week extension to provide financial information or to
July 27, 2011.
Appellant completed an overpayment recovery questionnaire on July 28, 2011. He
indicated that his monthly retirement income was $2,348.79, that his salary was $3,553.61 and
that his wife received benefits in the amount of $1,643.00 per month for monthly income of
$7,545.40. Appellant indicated that he owned stocks valued at $5,267.72. He reported three
bank accounts with current balances of $921.75, $790.26 and $10,426.44. Appellant alleged
outstanding and projected debts of $11,500.00 due to contracted household repairs of $3,500.00
and projected medical expenses due to dental, eye and shoulder surgeries of $8,000.00. He also
listed credit card debts of $1,300.63 per month. Appellant provided the expenses for two
households including rent, food and utilities for a home in Pulaski, Tennessee totaling $969.65
per month and mortgage, food, utilities and expenses of $2,126.76 for his permanent residence.

4

20 C.F.R. § 10.438.

3

He provided estimates of medical costs based on surgeries for both his wife and himself.
Appellant noted that the value of his Thrift Savings Plan was $29,000.00.
Appellant also disagreed with the amount of the overpayment stating that the difference
between the gross OPM benefits and FECA benefits was $463.46 per month and that multiplying
this amount by six months, to account for the period from the end of August 2010 to the middle
of February 2011 resulted in an overpayment of $2,780.76 rather than $6,387.84. He stated that
more funds should have been recovered from OPM.
In a decision dated August 10, 2011, OWCP found that appellant received an
overpayment in the amount of $6,387.84 for the period August 26, 2010 through February 12,
2011 as he received dual benefits. It found that he was not at fault in the creation of the
overpayment and determined to recover the overpayment by collecting $250.00 from his OPM
benefits per month. OWCP determined that waiver of recovery of the overpayment was not
appropriate as appellant had monthly income of $6,830.39 and household assets of $46,406.17
including bank accounts, stocks and his Thrift Savings Plan. Appellant’s monthly expenses were
$6,591.21. OWCP found that his monthly expenses exceeded income by more than $50.00 but
that as his assets were more than $8,000.00 he was not entitled to waiver of recovery of the
overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA5 provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except for
services actually performed or for certain payments related to service in the Armed Forces,
including benefits administered by the Department of Veterans Affairs unless such benefits are
payable for the same injury or the same death being compensated for under FECA.7 The
implementing regulations provide that a beneficiary may not receive wage-loss compensation
concurrently with a federal retirement or survivor annuity.8 The beneficiary must elect the
benefit that he or she wishes to receive.9

5

5 U.S.C. §§ 8101-8193, 8102.

6

Id.

7

5 U.S.C. § 8116(a).

8

20 C.F.R. § 10.421(a).

9

Id.

4

ANALYSIS -- ISSUE 1
Appellant elected to receive OPM benefits effective August 26, 2010, but continued to
receive compensation benefits from OWCP through February 12, 2011. As he was not entitled
to receive dual benefits under FECA, he received an overpayment.
OWCP calculated the amount of the overpayment by determining the amount of
compensation benefits that appellant received from August 26, 2010 through February 12, 2011
and reducing this amount by the $15,000.00 paid by OPM. It determined that he received an
overpayment in the amount of $6,387.84. OWCP has provided detailed calculations and
documentation of the method used to calculate the amount of the overpayment.
On appeal, appellant disagreed with the amount and opined that the overpayment should
only be $2,780.76, as the difference between the gross OPM benefits and his FECA benefits was
$463.46 per month. He has not submitted the necessary documentation in the record to support
his claim. Appellant reported that he was currently receiving $2,348.79 from OPM and the
record supports that his net 28-day payment from OWCP was $3,371.98. Based on this rough
method of calculating the overpayment, there is a difference of $1,023.19 every 28 days rather
than $463.46 as asserted by appellant, resulting in a calculation of an overpayment of
approximately $6,139.14. Thus using appellant’s own method of calculating the overpayment
results in a figure greater than $2,780.76.
The Board finds that OWCP has established that appellant received an overpayment of
compensation in the amount of $6,387.84 and that he received dual benefits from OPM and
OWCP for the period August 26, 2010 through February 12, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.10 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive recovery of the overpayment. OWCP must exercise it discretion to determine
whether recovery of the overpayment would “defeat the purpose of [FECA] or would be against
equity and good conscience,” pursuant to the guidelines provided in the implementing federal
regulations.

10

5 U.S.C. § 8129(a).

5

Section 10.436 of the implementing regulations11 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.12
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.13 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.14
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of
compensation. The overpayment cannot be waived, however, unless recovery would defeat the
purpose of FECA or be against equity and good conscience. In order to defeat the purpose of
FECA it must be established that a claimant needs substantially all current income to meet
current ordinary and necessary living expenses and that his assets do not exceed the established
limit (currently $8,000.00 for a claimant with a spouse and $960.00 for each additional
dependent).15 If the nonexempt assets exceed the established limit, then recovery of the
overpayment would not defeat the purpose of FECA.
Appellant provided financial information in support of his request for waiver of recovery
of the overpayment. He stated that his Thrift Savings Plan contained $29,000.00. The Board has
held that a claimant’s contributions to a Thrift Savings Plan and earnings from these

11

20 C.F.R. § 10.436.

12

Id. at § 10.437.

13

Id. at § 10.438(a).

14

Id. at § 10.438(b).

15

Id. at § 10.436. OWCP’s procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004); C.W., Docket No. 11-1338 (issued December 19, 2011).

6

contributions are assets which OWCP may consider in determining waiver.16 Appellant has
nonexempt assets that exceed the established limit. Therefore, recovery of the overpayment
would not defeat the purpose of FECA.17
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience. The availability of assets indicates that appellant would
not experience financial hardship attempting to repay the debt. The factors considered regarding
financial hardship are substantially the same as those for defeat the purpose of FECA and, as
noted above, he has sufficient available assets.18 Moreover, appellant has not presented evidence
that he gave up a valuable right or changed his position for the worse in reliance on the
overpayment. The Board finds that the recovery of the overpayment would not be against equity
and good conscience since there is no evidence of record from which to conclude that he relied
on the overpayment to relinquish a valuable right or change his position for the worse. As the
evidence fails to support that, recovery of the overpayment would defeat the purpose of FECA or
be against equity and good conscience, the Board finds that OWCP did not abuse its discretion
by denying waiver of recovery.19
On appeal, appellant alleged that OWCP improperly considered his Thrift Savings Plan
as an available resource and that OWCP improperly calculated his income and living expenses as
he and his wife maintained two homes. The Board has directly addressed that the issue of his
Thrift Savings Plan and noted that this was appropriate. As appellant exceeds the resource base,
the calculations of his income and living expenses are not determinative of waiver of recovery of
an overpayment and not relevant. He has failed one prong of the test for waiver of recovery of
an overpayment and therefore waiver is not appropriate.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $6,387.84 for
the period August 26, 2010 through February 12, 2011, for which he was not at fault and that
OWCP properly denied waiver of recovery of the overpayment.

16

Id.; see also P.C., Docket No. 10-1386 (issued April 26, 2011) Eloise K. Hahn, Docket No. 01-1199 (issued
June 25, 2002).
17

As appellant has not met the second prong of the two-prong test of whether recovery of the overpayment would
defeat the purpose of FECA, it is not necessary to consider the first prong of the test, i.e., whether he needs
substantially all his income to meet current ordinary and necessary expenses.
18

See Jan K. Fitzgerald, 51 ECAB 659 (2000); Federal (FECA) Procedure Manual, supra note 15, Chapter
6.200.6(b)(1) (June 2009).
19

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004) (with
respect to the recovery of overpayments, the Board’s jurisdiction is limited to reviewing those cases where OWCP
seeks recovery from continuing compensation benefits under FECA).

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ORDER
IT IS HEREBY ORDERED THAT August 10, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 9, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8