United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HEALTHCARE
SYSTEM, Little Rock, AK, Employer
__________________________________________

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

Docket No. 16-1322
Issued: January 18, 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 June 13, 2016 appellant, through counsel, filed a timely appeal from the April 29,
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 this 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 met her burden of proof to establish a right arm injury
causally related to the accepted June 12, 2013 employment incident.
FACTUAL HISTORY
On September 17, 2014 appellant, then a 42-year-old medical instrument technician filed
a traumatic injury claim (Form CA-1) alleging that on June 12, 2013 she sprained her right wrist
during a cardiopulmonary resuscitation (CPR) instructor class, and that the sprain evolved into
reflex sympathetic dystrophy and now included her right hand and arm. The claim form did not
indicate that she stopped work.
By letter dated September 30, 2014, the employing establishment controverted
appellant’s claim.
It noted that the June 12, 2013 injury was not reported until
September 17, 2014 and that no medical documentation had been provided to establish causal
relationship.
By letter to appellant dated October 9, 2014, OWCP indicated that further information,
including medical evidence, was necessary to support appellant’s claim. Appellant was afforded
30 days to submit this information.
Appellant submitted statements by two colleagues, L.G. and M.W. She also responded to
OWCP’s questions, noting that, at the time of her injury, she was in a CPR instructor class on the
campus of the employing establishment. Appellant added that the immediate effects of her
injury were weakness in her right wrist with a bit of sharp pain when she moved it forward and
backward. She also noted that by the time she got to her car her right wrist was swollen, so she
went home and used ice packs, wrapped it in an ace bandage, elevated it, and took some
ibuprofen.
Appellant received treatment from numerous physicians and other healthcare personnel at
the University of Arkansas Hospital. In an August 23, 2013 imaging report of appellant’s right
hand, Dr. John Lofton Wilson, an orthopedic surgeon, found no evidence of fracture or
dislocation. In a September 11, 2013 report, Dr. Marcus M. Kessler, a Board-certified
radiologist, noted a normal bone scintigraphy, with no scintigraphic findings suggestive of
complex regional pain syndrome. In a September 13, 2013 report, Dr. Deipti H. Trehun, a
Board-certified family practitioner, listed medical history of decreased reflex, carpal tunnel
syndrome on the right, and complex regional pain syndrome. An October 1, 2013 magnetic
resonance imaging (MRI) scan with contrast of the brain was interpreted by Dr. Samant Rohan, a
radiologist, as evidencing migrational anomaly with periventricular gray matter heterotopia that
was also along the walls of the occipital horns. An October 23, 2013 MRI scan of the thoracic
spine was interpreted by Dr. Ryan T. Fitzgerald, a Board-certified radiologist, as unremarkable.
In an October 29, 2013 report, Dr. Betul Melek Gundogdu, a Board-certified neurologist,
stated that appellant presented with right elbow pain and sensory paresthesias in the right hand
that started after three days of repetitive movements of right elbow and wrist. He noted that the
examination findings suggested that she could possibly have right reflex sympathetic dystrophy.

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Dr. Gundogdu indicated that appellant also had lower extremity symptoms, and that while some
of her symptoms suggest complex regional pain syndrome, the diagnosis could not be confirmed.
He noted that the initial problem started after a CPR course where she had to perform repetitive
flexion movements with her elbow and wrists. Dr. Gundogdu, interpreted an October 30, 2013
electromyogram and never conduction velocity as normal, noting no findings to support upper
extremity entrapment neuropathies or left lumbosacral radiculopathy. In a November 14, 2013
report, Dr. Thomas S. Kiser, a Board-certified physiatrist, noted that appellant had hand pain and
paresthesia.
Appellant had numerous stellate ganglion blocks for treatment of her chronic regional
pain syndrome in her right upper extremity, including injections given by Dr. Michael R. Stone,
a Board-certified anesthesiologist, who submitted reports dated March 26, April 8, 11, and 21,
and July 7 2014. In a June 6, 2014 report, Dr. Mohamed Tolba listed diagnoses of complex
regional pain syndrome. On July 7, 2014 Dr. Luke N. Weiler, an anesthesiologist, added
fibromyalgia to appellant’s diagnosed conditions. In a July 8, 2014 report, Dr. Jamie D. Howard,
a Board-certified family practitioner, noted that appellant had been fatigued for several months,
and that her primary diagnosis was complex regional pain syndrome.
On September 11, 2014 Dr. Kessler reviewed a bone scan and noted normal bone
scintigraphy, no scintigraphic findings suggestive of complex regional pain syndrome.
Appellant received another injection by Dr. Adewumi O. Amole, a Board-certified radiologist on
September 29, 2014.
In an October 30, 2014 attending physician’s report (Form CA-20), Dr. Stone listed
appellant’s diagnosis as complex regional pain syndrome. He checked a box marked “yes”
indicating that he believed that the condition was caused or aggravated by an employment
activity, noting that her history started after CPR.
By decision dated January 12, 2015, OWCP denied appellant’s claim. It determined that
although she established that the incident occurred as alleged and that she suffered from complex
regional pain syndrome, the evidence was insufficient to establish a causal relationship between
her accepted June 12, 2013 incident at the CPR class and the accepted medical diagnosis of
complex regional pain syndrome.
On April 17, 2015 appellant requested reconsideration. In support thereof, she submitted
an April 14, 2015 letter, Dr. Stone stated that since he was not present at the CPR class and he
did not see her until several weeks afterwards, all he could say was that the chronic regional pain
syndrome type 1 was consistent with the injury and timing as she described it. He noted that the
edema, allodynia, and color changes in the hand are consistent for an injury as subsequent to
CPR by appellant. Appellant also submitted information from the internet on complex regional
pain syndrome.
By decision dated April 29, 2015, OWCP reviewed appellant’s case on the merits but
denied modification of its January 12, 2015 decision. It noted the delay in the medical reports
mentioning the accepted employment incident.

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On January 12, 2015 appellant, through counsel, requested reconsideration. In support
thereof, he submitted progress notes dated from February 11, 2015 from Dr. Majid Saleem, a
physician Board-certified in anesthesiology and pain medicine. Dr. Saleem diagnosed reflex
sympathetic dystrophy of the upper limb, unspecified myalgia and myositis, and chronic regional
pain syndrome, and long-term use of other medications. He noted multiple stellate ganglion
blocks had been administered without any significant relief. Dr. Saleem continued to treat
appellant with pain medication, including repeat right, and left stellate ganglion blocks.
By decision dated April 29, 2016, OWCP found that the evidence was insufficient to
modify the April 29, 2015 decision because the evidence of file was devoid of a thorough and
rationalized physician’s opinion that stated unequivocally that the traumatic work injury of
June 12, 2013 resulted in the specific diagnosis of complex regional pain disorder.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused 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.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 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.7
The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
3

Id.

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

8

I.J., 59 ECAB 408 (2008); supra note 5.

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care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
The evidence establishes that the June 12, 2013 employment incident occurred as alleged,
and that appellant suffers from numerous ailments, including complex regional pain syndrome.
However, the Board finds that she has failed to establish a causal relationship between her
accepted employment incident and her alleged medical condition.
Appellant submitted numerous reports from University of Arkansas Hospital. These
reports list multiple ailments including, decreased reflex, weakness, paresthesia, carpal tunnel
syndrome of the right, and in addition to complex regional pain syndrome. However, no
physician provided a well-rationalized opinion explaining how appellant’s complex regional pain
syndrome was caused by the June 12, 2013 employment incident.10
Some of the hospital’s medical reports discuss conditions other than appellant’s complex
regional pain syndrome, including the reports of Drs. Kessler, Rohan, and Weiler. Drs. Trehun,
Amole, Howard, Tolba, Howard, Kiser, and Saleem, all discuss appellant’s treatment for
complex regional pain syndrome, but do not provide any opinion as to what caused this
condition. Accordingly, these reports do not establish a causal relationship.11
The reports by the physicians interpreting diagnostic studies, including the reports from
Drs. Wilson and Fitzgerald, also do not address the cause of any of the diagnosed conditions. As
such these reports are of no probative value on the issue of whether any of appellant’s medical
diagnoses were causally related to the accepted employment incident.12
There is no mention of the work incident in any of the medical reports until the
October 29, 2013 report by Dr. Gundogdu. In his October 29, 2013 report, Dr. Gundogdu
indicates that “it looks like the problem started after a CPR course that she had to give and do
repetitive flexion movements of her elbows and wrists.” He does not provide any rationalized
opinion on causal relationship; rather, he simply notes appellant’s history and checked a box
marked “yes” noting causal relationship. However, the Board has held that a report that
addresses causal relationship with a checkmark, without medical rationale explaining how the
work incident caused the alleged condition, is of diminished probative value and insufficient to
establish causal relationship. Although Dr. Gundogdu provided a vague opinion in support of
appellant’s claim that her right arm condition was causally related to the accepted incident, his
opinion on causal relationship was conclusory.13
9

James Mack, 43 ECAB 321 (1991).

10

Supra note 8.

11

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

12

G.M., Docket No. 14-2057 (issued May 12, 2015).

13

L.N., Docket No. 16-0566 (issued October 18, 2016).

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In an October 30, 2014 attending physician’s report, Dr. Stone listed appellant’s
diagnosis of complex regional pain syndrome and also checked a box marked “yes” indicating
that it was caused or aggravated by an employment activity, noting that appellant’s history
started after CPR. As previously noted, a medical report that addresses causal relationship with a
check mark, without more in the way of medical rationale, is of limited probative value.14
In his April 14, 2015, report, Dr. Stone stated that since he was not present at the class
and did not see appellant until several weeks later, all he could say was that the chronic regional
pain syndrome she was experiencing was consistent with the injury and timing as she described
it. Although this opinion from him is generally supportive of causal relationship, it did not
provide adequate medical rationale explaining the basis of the opinion, nor explain the process
by which appellant’s CPR class caused or contributed to the diagnosed conditions or why the
condition was not related to nonwork factors.15 Furthermore, the Board finds Dr. Stone’s
opinions on causal relationship are speculative. The Board has held that speculative and
equivocal medical opinions regarding causal relationship have no probative value.16
Finally, the Board notes that the statements by the lay witnesses are of no probative
value. Because causal relationship is a medical issue that can only be proven by probative
medical opinion evidence, lay opinions are not relevant.17
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.18 An award of compensation may not
be based on surmise, conjecture, speculation, or upon appellant’s own belief that there was a
causal relationship between her condition and her employment.19 Causal relationship must be
based on rationalized medical opinion evidence.20 A physician must accurately describe
appellant’s work duties and medically explain the pathophysiological process by which these
duties would have caused or aggravated his condition.21 As appellant has failed to submit a
rationalized medical opinion supporting that her medical condition was causally related to the

14

Id.

15

J.S., Docket No. 14-0818 (issued August 7, 2014).

16

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
17

P.K., Docket No. 10-0434 (issued August 20, 2010).

18

L.D., Docket No. 09-1503 (issued April 15, 2010); D.I., 59 ECAB 158 (2007); Daniel O. Vasquez, 57 ECAB
559 (2006).
19

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

20

M.E., Docket No. 14-1064 (issued September 29, 2014).

21

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also G.G., Docket No
15-0234 (issued April 9, 2015).

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accepted employment incident, she did not meet her burden of proof to establish an employmentrelated traumatic injury.
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 right arm
injury causally related to the accepted June 12, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 29, 2016 is affirmed.
Issued: January 18, 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
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Merrifield, VA, Employer
__________________________________________

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

Docket No. 13-534
Issued: June 21, 2013

Case Submitted on the Record

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

JURISDICTION
On January 7, 2013 appellant, through her attorney, filed a timely appeal from a
November 23, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
Morton’s neuroma of the right foot causally related to factors of her federal employment as a
letter carrier.
FACTUAL HISTORY
On July 8, 2011 appellant, then a 55-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed Morton’s neuroma as a result of walking two to
1

5 U.S.C. § 8101 et seq.

six hours a day on the job door-to-door. She stated that the pain would usually occur after three
hours of walking. Appellant first became aware of her condition on May 31, 2008 and of its
relationship to her employment on January 5, 2011. She notified her supervisor on
July 15, 2011. Appellant was last exposed to the condition on July 8, 2011 after her physician
limited her walking to four hours a day. An April 17, 2011 Duty Status Report (Form CA-17)
was submitted which restricted appellant from walking for more than four hours a day. A
June 13, 2011 disability note provided restrictions of no walking for more than three hours a day.
In an attached narrative statement, appellant reported that she first developed Morton’s
neuroma in May 2008 in her right foot after having to walk house-to-house and navigating
staircases on her route. In July 2009, she underwent surgery to have the neuroma removed by
Dr. Seth Rubenstein, a Board-certified podiatric surgeon. Appellant stated that, after eight weeks
of leave, she returned to work with no restrictions but continued to have pain at the surgical site.
She sought treatment with Dr. Mariam Popal, a podiatrist, who referred her for a magnetic
resonance imaging (MRI) scan which showed a small stump neuroma had formed, as well as
inflammation and capsulitis. Appellant underwent physical therapy treatments in March 2010
which helped to alleviate her pain. In the fall of 2010, she stated that she noticed occasional
twinging and electrical jolt sensations in her foot next to the surgical area. Upon examination,
Dr. Popal diagnosed another neuroma in the adjacent metatarsal space. Appellant stated that she
discussed her condition with her supervisor and realized that the neuromas could be a result of
her employment duties. She noted that the pain associated with her neuroma varied from day-today, typically getting stronger as she walked her route. Appellant described her duties as a
carrier technician, noting that she worked five days a week for eight hours a day, walking five
different routes on a regular basis. The routes ranged from two and a half hours to six hours each
day, depending on the mail volume. Appellant was required to walk door-to-door, up and down
sidewalks, cross lawns which were often uneven and pivot at each mailbox. She stated that the
five routes consisted of about 500 to 800 deliveries each. Four of the routes had some apartment
buildings which required walking between the buildings and up and down the stairs. Appellant
concluded that her employment conditions caused the constant movement of the bones in her
foot which irritated her nerve.
By letter dated August 4, 2011, OWCP informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days.
Appellant responded to OWCP’s questionnaire in a September 18, 2011 narrative
statement. She stated that, since June 2005, she was a utility carrier for five different routes.
Appellant stated that, about four years ago, the routes had various adjustments such as the flats
sequencing sortation (FSS) which resulted in longer routes, more deliveries and increased
walking. She stated that her second neuroma occurred over the past two years and her route
schedule varied weekly from two and a half to four and a half hours of walking. Since 2002,
appellant had not participated in running as a sport, noting that she used to occasionally
participate in marathons and had no prior problems with her foot. She stated that she did not
have any other hobbies or activities which would cause her condition and would often sit with
her feet propped up after her shift was over.

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By decision dated October 26, 2011, OWCP denied appellant’s claim on the grounds that
the evidence was insufficient to establish that she sustained an injury. It found that the
occupational exposure occurred as alleged; however, that the evidence failed to provide a firm
medical diagnosis which could be reasonably attributed to the accepted employment factors.
By letter dated November 4, 2011, appellant, through counsel, requested a telephone
hearing before the Branch of Hearings and Review.
In medical reports dated February 26, 2010 to January 5, 2011, Dr. Popal reported that
appellant had been treated by another physician in July 2009 for her neuroma second interspace
right foot, which was excised and removed. Appellant complained of pain in the right foot and
the physician referred her for an MRI scan. In a March 1, 2010 diagnostic report, Dr. Steven
Meyers, a Board-certified diagnostic radiologist, reported that an MRI scan of the right foot
revealed mild stump neuroma, mild capsulitis of the right second MTP joint with thickening and
scarring at its plantar lateral aspect and mild intermetatarsal bursitis in the third interspace. In a
July 2, 2010 report, Dr. Popal diagnosed Morton’s neuroma third interspace of the right foot.
At the February 6, 2012 hearing, appellant testified that she had worked for the postal
service for over 11 years as a letter carrier and first began noticing pain in her right foot on
May 31, 2008. She provided details regarding her neuroma surgery and postoperative treatment
and began seeing Dr. Richard Mendelsohn., a podiatrist, in March 2011. Appellant testified that
she did not have any other injuries to her right foot prior to or after 2008 other than the two
neuromas that developed. Her attorney stated that he would be submitting a report from
Dr. Mendelsohn which provided an opinion on the cause of appellant’s condition. The record
was held open for 30 days.
In support of her claim, appellant submitted medical reports dated February 29, 2008 to
January 21, 2012 from Dr. Rubenstein who documented that appellant’s right heel pain began in
February 2008 after appellant had to use snow boots for two weeks due to inclement weather
while delivering mail. Dr. Rubenstein noted that appellant was a postal carrier and was on her
feet for extensive periods of time during the day. In a July 16, 2008 report, he reported that
appellant complained of mild pain on palpation on the right foot which began after moving her
household in May. Appellant was diagnosed with clinical neuroma second interspace of the
right foot. Her pain was intermittent, becoming worse towards the end of the day. Appellant
was treated with injections and orthopedic shoes but would complain of increased pain after
standing on her feet all day, mostly occurring after work. In a December 2, 2008 report,
Dr. Rubenstein noted that appellant worked for the postal service and was on her feet for 8 to 10
hours a day. On July 19, 2009 he performed an excisional biopsy of the intermetatarsal neuroma
of the right foot. Postsurgery appellant complained of pain in her right foot typically starting
later in the day. In an October 26, 2009 report, Dr. Rubenstein noted that appellant had relief in
her foot for two weeks but then developed achy by the end of the day, noting bilateral due to
walking all day. He further stated that she stood on her feet for nine hours per day and received
injections to alleviate the pain. In a January 21, 2010 report, appellant complained of increased
pain on the ball of her right foot similar to what she experienced prior to her surgery.
In a February 2, 2012 medical report, Dr. Mendelsohn related that he had been treating
appellant for the past year for a number of ailments related to the amount of ambulation she

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performed in her daily duties as a postal worker. He noted that since 2008 appellant suffered
from chronic neurological damage to her right foot that required surgical intervention with the
excision of a traumatically caused nerve lesion, commonly referred to as a Morton’s neuroma.
Unfortunately due to her employment, appellant continued to cause irritation to the remaining
nerve root leading to the development of a stump neuroma, inflammation and capsulitis as
evidenced by her MRI scan. Dr. Mendelsohn noted that appellant underwent physical therapy
treatments in March 2010 which helped relieve some of her pain as she continued to perform her
duties as a postal worker which required walking long distances on hard surfaces throughout the
day.
Appellant was examined by another podiatrist who determined that she developed a
second neuroma in the adjacent metatarsal space in addition to a continuation of inflammation of
the remaining nerve branch that was originally operated on in 2009. The treating physician
recommended treatment of the nerve with spinal alcohol to help permanently relieve her from the
chronic discomfort. Appellant presented to Dr. Mendelsohn in March 2011 for treatment of this
recalcitrant stump neuroma and a new Morton’s neuroma. Dr. Mendelsohn diagnosed a
Morton’s neuroma in appellant’s second intermetatarsal space of the right foot and an irritated
stump neuroma in her third intermetatarsal space of the right foot. He agreed with her previous
physician that given her chronic condition, alcohol injections might be beneficial in relieving the
pain since the previous cortisone injections were only temporarily effective. Dr. Mendelsohn
noted that, due to appellant’s employment as a postal worker, the success rate of the injections
might not be as effective as they would be if she was off her foot. Appellant underwent a series
of sclerosing alcohol injections into her second and third intermetatarsal spaces of her right foot
starting in March 2011 through June 2011. She proceeded to get improvement in the right foot
which was only temporary. In June 2011, Dr. Mendelsohn advised appellant to limit her activity
and reduce her ambulation to allow the alcohol injections to be effective. Appellant returned for
a follow-up visit in August 2011 which revealed that the effects of the sclerosing alcohol had
started to wear off and exacerbation of the original neuroma pain was occurring.
Dr. Mendelsohn determined that appellant had continued to walk on her foot during her
job duties as a postal worker which continued to cause irritation to the remaining nerve root on
the third intermetatarsal space and reinjured the nerve that had successfully been treated with the
alcohol injections in early 2011. He recommended that she try to find a position in the postal
service that allowed her to sit most of the time and did not put any strain on the ball of her foot
where she would reinjure the nerve. Dr. Mendelsohn opined that appellant would continue to
develop neurological damage to her foot as a result of ambulating for long periods of time on
hard surfaces. Surgical intervention had minimal success as the nerve has already been removed
and was continually getting reinjured through trauma. Dr. Mendelsohn noted that numerous
studies of nerve damage of the foot determined that ambulation for long periods of time could
permanently damage the intermetatarsal nerves leading to permanent disability. In order to avoid
permanent damage to her right limb and allow her to function in a normal fashion throughout
life, Dr. Mendelsohn recommended that appellant avoid standing for the long periods of time as
she had been doing so in her job.
By decision dated April 5, 2012, the hearing representative affirmed OWCP’s
October 26, 2011 decision finding that the evidence of record failed to establish that appellant’s
diagnosed condition was causally related to factors of her federal employment.

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By letter dated April 16, 2012, appellant, through counsel, requested reconsideration of
OWCP’s decision. In support of her claim, appellant resubmitted various medical documents
already of record as well as a statement from her noting that she had missed 16 weeks of work as
a result of her foot surgery.
By decision dated November 23, 2012, OWCP affirmed the April 5, 2012 decision
finding that the evidence of record failed to establish that appellant’s diagnosed condition was
causally related to factors of her federal employment.
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.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.3
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.4 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
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.5
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.6 The opinion of the physician must be one of reasonable medical certainty
2

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

3

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

4

Elaine Pendleton, supra note 2.

5

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

6

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

5

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.7
ANALYSIS
The Board finds that this case is not in posture for decision as to whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under FECA has the burden of establishing the
essential elements of her claim. The claimant has the burden of establishing by the weight of
reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.8 However, it is well established that proceedings under FECA are not
adversarial in nature and while the claimant has the burden of establishing entitlement to
compensation, OWCP shares responsibility in the development of the evidence to see that
justice is done.9
In its November 23, 2012 decision, OWCP denied appellant’s claim for failing to
establish that her condition was causally related to her repetitive work activities as the medical
evidence did not provide a clear diagnosis nor provide full details of appellant’s ongoing
employment duties. The Board finds that the medical evidence of record is sufficient to require
further development of the case record.
Appellant provides specific details of her work duties and this description was not
contradicted by the employing establishment.
In a February 2, 2012 report, Dr. Mendelsohn reported that he had been treating appellant
for the past year for a number of ailments related to the amount of ambulation she performed in
her daily duties as a postal worker. He provided a detailed medical history noting that, since
2008, she suffered from chronic neurological damage to her right foot that required surgical
intervention with the excision of a traumatically caused nerve lesion, commonly referred to as a
Morton’s neuroma. Dr. Mendelsohn opined that, due to her employment, appellant continued to

7

James Mack, 43 ECAB 321 (1991).

8

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
9

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, supra note 8; Dorothy L. Sidwell, 36 ECAB
699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

cause irritation to the remaining nerve root leading to the development of a stump neuroma,
inflammation and capsulitis as demonstrated by MRI scan.
Dr. Mendelsohn noted that appellant underwent physical therapy treatments in
March 2010 which helped relieve some of her pain as she continued to perform her duties as a
postal worker which required walking long distances on hard surfaces throughout the day.
Appellant then developed a second neuroma in the adjacent metatarsal space in addition to
continuation of inflammation of the remaining nerve branch that was originally operated on in
2009. She was treated with cortisone and spinal alcohol injections to help relieve her from the
chronic discomfort and presented to Dr. Mendelsohn in March 2011 for treatment of this
recalcitrant stump neuroma and a new Morton’s neuroma. Dr. Mendelsohn diagnosed a
Morton’s neuroma in appellant’s second intermetatarsal space of the right foot and an irritated
stump neuroma in her third intermetatarsal space of the right foot.
As previous cortisone injections had proved temporary, appellant underwent a series of
sclerosing alcohol injections in March 2011 through June 2011 which also only provided
temporary relief. Dr. Mendelsohn noted that, due to appellant’s employment as a postal worker,
the success rate of the injections would not be as effective as if she was off her foot. He advised
her to limit her activity and reduce her ambulation to allow the alcohol injections to be effective.
Appellant returned for a follow-up visit in August 2011 which revealed that the effects of the
sclerosing alcohol started to wear off and exacerbation of the original neuroma pain was
occurring.
Dr. Mendelsohn determined that appellant had continued to walk on her foot during her
employment duties as a postal worker which continued to cause irritation to the remaining nerve
root on the third intermetatarsal space and reinjured the nerve that had successfully been treated
with the alcohol injections in early 2011. He recommended that she try to find a position in the
postal service that allowed her to sit most of the time and did not put any strain on the ball of her
foot where she would reinjure the nerve. Dr. Mendelsohn opined that appellant would continue
to develop neurological damage to her foot as a result of ambulating for long periods of time on
hard surfaces and could permanently damage the intermetatarsal nerves leading to permanent
disability. Surgical intervention had minimal success as the nerve had already been removed and
was continually getting reinjured through trauma. In order to avoid permanent damage to her
right limb and allow her to function in a normal fashion throughout life, Dr. Mendelsohn
recommended that appellant avoid standing for long periods of time as she had been doing so in
her job.
Dr. Mendelsohn provided a detailed review of appellant’s medical history, documenting
treatment of her first Morton’s Neuroma in 2008 and her second neuroma in 2010. He opined
that she was developing neurological damage to her foot as a result of ambulating for long
periods of time on hard surfaces as required by her job in the postal service. Dr. Mendelsohn
addressed appellant’s recurrent condition, noting that surgery and injections were unsuccessful
because of her continued employment duties which required walking long distances on hard
surfaces throughout the day. Thus, as a result of her employment, appellant continued to cause
irritation to the remaining nerve root leading to the development of a stump neuroma,
inflammation and capsulitis. Dr. Mendelsohn noted that surgical intervention had minimal
success as the nerve has already been removed and was continually getting reinjured through

7

trauma. He recommended that appellant try to find a position in the postal service that would
allow her to sit most of the time and did not put any strain on the ball of her foot where she
would reinjure the nerve.
The Board notes that, while none of Dr. Mendelsohn’s reports are completely
rationalized, they are consistent in indicating that appellant sustained an employment-related
injury and are not contradicted by any substantial medical or factual evidence of record.10
While he did not fully describe the mechanism of the injury, he provided a clear, if limited,
opinion based on examination findings and an accurate factual and medical background, that
appellant’s Morton’s neuroma was caused or at least aggravated as a result of her federal
employment duties as a letter carrier. Dr. Mendelsohn demonstrated a general understanding
of appellant’s work duties and discussed how these duties would cause appellant’s injuries.
He provided a medical history and based his findings on diagnostic testing and physical
examination. Dr. Mendelsohn noted treating appellant for a number of ailments related to the
amount of ambulation she performed in her daily duties as a postal worker, walking long
distances on hard surfaces throughout the day.
The treatment notes submitted from Dr. Popal and Dr. Rubenstein accurately
document appellant’s continued treatment for Morton’s neuroma, the unsuccessful results
procured through surgery, injections and physical therapy and noted appellant’s complaints of
intermittent pain as a result of standing for long periods of time, all of which were detailed in
Dr. Mendelsohn’s report. Though Dr. Mendelsohn’s reports are not sufficient to meet
appellant’s burden of proof to establish her claim, they raise an uncontroverted inference
between her condition and the identified employment factors and are sufficient to require
OWCP to further develop the medical evidence and the case record.11
On remand, OWCP should prepare a statement of accepted facts which includes a
description of appellant’s work duties and refer appellant to an appropriate medical specialist for
a second opinion as to whether her current condition is causally related to factors of her
employment, either directly or through aggravation, precipitation or acceleration. Following this
and any other further development as deemed necessary, OWCP shall issue an appropriate merit
decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for a decision as to whether appellant
developed a right foot condition causally related to factors of her federal employment as a letter
carrier.

10

Frank B. Gilbreth, Docket No. 02-1310 (issued May 14, 2003).

11

See Virginia Richard, supra note 9; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41
ECAB 354 (1989).

8

ORDER
IT IS HEREBY ORDERED THAT the November 23, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: June 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Forest Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1332
Issued: November 7, 2007

Case Submitted on the Record

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

JURISDICTION
On April 18, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ hearing representative’s March 22, 2007 merit decision. Under
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that her
claimed cervical condition was sustained in the performance of duty.
FACTUAL HISTORY
On March 15, 2004 appellant, a 36-year-old modified custodial laborer, filed a Form CA-2
claim for benefits, alleging that she developed a cervical condition caused by factors of her
employment. She alleged several injuries to her spine during her 10 years of employment, for
which she had not received proper medical treatment. The employing establishment controverted
the claim, noting that appellant had previously filed traumatic and occupational disease claims on

January 10, 2004, which were denied on March 3, 2004. Appellant’s supervisor also noted that she
had stopped work on January 10, 2004 and had not returned.
In order to determine appellant’s current condition, the Office had referred her to
Dr. Richard H. Sidell, Board-certified in orthopedic surgery, for a second opinion examination. In
a report dated February 11, 2004, Dr. Sidell noted that appellant underwent a work capacity
evaluation, which noted deficits in lifting, walking, carrying, stair climbing, positional activities
and handgrip measurements. He stated, however, that the evaluation also indicated that appellant’s
subjective complaints were inconsistent with the objective findings. Dr. Sidell advised that the
examiners were unable to determine appellant’s actual physical capabilities as she did not put forth
maximum effort on all test items. He stated:
“[Appellant shows] no evidence of obvious discomfort. By inspection her neck,
back and upper extremities appear normal. There is full range of motion of the
cervical spine in all direction with a negative Spurling test and a negative
distraction test.
“This essentially is a normal orthopedic evaluation of a [patient] with multiple
subjective complaints, the majority of which began well after she had ceased doing
any type of work. Her subjective complaints are vague and generalized in nature
and not specifically related to any identifiable injury.”
Dr. Sidell found that appellant had no objective abnormalities in the neck, upper back or
shoulder areas. He advised that she could return to work at her usual modified custodial job.
Dr. Sidell concluded:
“[Appellant’s] objective findings do not in any way correlate with her subjective
complaints. Specifically, I do not feel that the activities performed since returning
to work on January 10, 2004 resulted in her right shoulder condition or her cervical
spine condition. I do not feel that any work activities performed by [appellant] in
her date[-]of[-]injury position as a mail handler resulted in a right shoulder or
cervical spine condition [which] began many months after she discontinued
working.”
A February 18, 2004 magnetic resonance imaging (MRI) scan revealed moderate central
stenosis at the C5-6 level due to the presence of a small central and right paramedian disc
protrusion, superimposed upon a congenitally slender spinal canal. The report indicated that
uncovertebral joint osteophytes and bilateral foraminal narrowing were seen at this level.
Appellant also had a diminished signal intensity in the cervical spinal narrow requiring clinical
correlation.
By letter dated March 23, 2004, the Office advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits.
The Office asked her to submit a comprehensive medical report from a treating physician
describing her symptoms and the medical reasons for her condition and an opinion as to whether
her claimed condition was causally related to her federal employment. The Office requested that
appellant submit the additional evidence within 30 days.

2

In a report dated March 29, 2004, Dr. Samuel Chmell, Board-certified in orthopedic
surgery and appellant’s treating physician, stated:
“[Appellant] has sustained injuries to her upper back, her neck and her shoulders at
work. In [her] work with [the employment establishment] over a period of 10 years
her job required her repetitively and repeatedly to be pulling sacks of mail with her
left upper extremity and to be keying with the right upper extremity. This caused
repetitive motion trauma to her upper extremities, but most notably the left
shoulder. [Appellant] sustained injuries to her right shoulder, her upper back and
neck on September 16, 1997 when a defective [cart] fell and hit her. She sustained
contusions/sprains of her right scapula and shoulder, her cervical spine and her
thoracic spine. [Appellant] sustained an injury to her neck and right shoulder at
work on January 10, 2004 when she was assigned repetitive motion activities and
being able to only use her right upper extremity for these. Her physical
examination has repeatedly demonstrated muscle spasm and tenderness in the upper
back as well as her cervical spine with reduced range of motions. She demonstrates
positive Spurling’s test in her cervical area. Both shoulders demonstrate crepitus,
impingement, diminished motion and weakness. She has had an MRI scan of the
cervical spine on December 11, 2003. This study demonstrated C5-6 disc
herniation centrally and to the left side. She underwent another MRI scan on
February 18, 2004 and this MRI scan demonstrated that the C5-6 disc had further
herniated and now included the right side. There was also another herniation
present at the C6-7 level. An MRI scan of the right shoulder demonstrated rotator
cuff tend[i]itis with a partial tear of the supraspinatous tendon. My diagnoses for
[appellant] are as follows: (1) Bilateral shoulder rotator cuff tend[i]nitis with partial
tear right shoulder supraspinatous; (2) Cervical disc derangement with disc
herniation C5-6 and C6-7 with cervical radiculopathy; and (3) Thoracic/scapular
sprain and contusion.
“My opinion, based upon a reasonable degree of medical and orthopedic surgical
certainty, is that the above diagnoses are causally related to the work injuries that
[appellant] has sustained as well as the repetitive motion trauma she has offered.
She requires further medical and orthopedic care and treatment.”
In an amendment to the statement of accepted facts dated April 27, 2004, the Office noted
that appellant had claimed that her work as a mail handler for 10 years resulted in several injuries
to her back as well as pulled muscles. She also claimed that her work as a keyer and repetitive
pulling, keying and truck loading activity resulted in cervical spine problems, upper extremity
problems and shoulder problems.

3

The Office found a conflict in medical opinion between Dr. Chmell and Dr. Sidell as to
whether appellant’s cervical condition was causally related to her employment duties. In order
to resolve the conflict, the Office scheduled an impartial medical examination with Dr. Paul
Belich, Board-certified in orthopedic surgery. In a report dated August 10, 2004, Dr. Belich
stated:
“[Appellant] has been on restricted duty with weight restrictions that have been
noted above. These were placed on her based on a functional capacity evaluation
done in December 2002…. A second functional capacity evaluation done in
January 2004 showed a great deal of inconsistent performance on the test, making
the results not valid. She has also had MRI’s [scan] of her right shoulder and
cervical spine, which do not in my opinion show any significant problems. I
disagree with Dr. Chmell’s assertion that [appellant] has a rotator cuff tear either
by MRI [scan] or clinically. I also do not believe that she has a herniated disc in
her neck, since this definitely has not shown on the MRI [scan] of the cervical
spine. It is somewhat dubious to me how this [appellant] could have injured her
right shoulder using a feather duster. I do not think that any of the repetitive
motions or work that she was doing in January [2004] would have caused any
significant problem with her neck or right shoulder and I question how
significant, if any, type of injury could have occurred during this job.
“It is my opinion that [appellant] can go back to custodial work and I see no
reason at all why she could not do this on a daily basis. I do not believe [that]
[appellant] has really any significant problem involving her right shoulder and I
think her neck shows some minor soft-tissue tightness that can easily be treated
with a home exercise program consisting of postural exercises, stretching and
strengthening exercises to the neck and shoulder girdle. It appear that [appellant]
has had multiple, additional types of complaints to various parts of the upper
extremities and neck even after she had been off work for a while … I definitely
do not think that there is any work related to any of these symptoms at all….”
By decision dated November 30, 2004, the Office denied appellant’s claim, finding that
she failed to submit medical evidence sufficient to establish that she sustained the claimed
cervical condition in the performance of duty.
On December 20, 2004 appellant requested an oral hearing, which was held on
August 23, 2005. In a report dated August 8, 2005, Dr. Chmell stated:
“[Appellant] remains under my care and treatment. She sustained injuries to her
cervical, thoracic and lumbosacral areas of her spine due to repetitive strain injury
in her work at [the employing establishment] between the years of 1993 and 2003.
Her job required her to perform repetitive lifting, pushing and pulling. Due to the
strenuous repetitive movements required of her at her spine she sustained in
injuries to her cervical, thoracic and lumbosacral areas. These injuries did result
in some impairment to her but she was able to continue working. [Appellant]
then had to miss a period of work due to injuries involving her upper extremities.
She was compelled to return to work against medical advice and sustained further

4

injury/aggravation of her spinal injuries involving cervical, thoracic and
lumbosacral disc derangements.
“[Appellant] requires further evaluation, care and treatment for cervical, thoracic
and lumbosacral disc derangements.”
By decision dated November 8, 2005, an Office hearing representative set aside the
November 30, 2004 decision. The hearing representative noted that the Office had already
denied appellant’s prior claim for a January 10, 2004 right shoulder and neck injury because it
found that the claimed conditions were not causally related to the employment duties of
January 10, 2004. He stated that the issue at hand was whether appellant’s work duties prior to
her return to work in January 2004 caused her cervical condition. The hearing representative
noted that Dr. Belich’s report did not address whether appellant’s work duties as a mail handler
prior to January 2004 may have caused her cervical condition. He found that Dr. Belich’s report
required further clarification. The hearing representative directed the Office to obtain a
supplemental medical report which would clarify his findings. He specifically instructed the
Office to ask Dr. Belich to address the significance of the prior MRI scan and EMG/NCV results
in determining the presence of any cervical injury and to provide a reasoned opinion as to
whether appellant’s prior work duties as a mail handler may have caused or contributed to any
current cervical condition.
In a report dated November 28, 2005, Dr. Belich reviewed the medical record reports and
stated that it did not reveal that appellant had cervical radiculopathy. He stated:
“The referencing of the cervical radiculopathy is not supported by any of the
EMG/NCV study reports that I reviewed nor any diagnostic reason for cervical
radiculopathy given in the MRI [scan] reports or the MRI [scan] that I reviewed
personally. I reviewed three reports of EMG/NCV studies of the upper
extremities. The first one on August 5, 2004, which showed a mild swelling of
the sensory velocities of both median nerves. The second one ... showed a mild
early right carpal tunnel syndrome and no evidence of cervical radiculopathy....
There was another EMG/NCV study on January 5, 2005, which showed mild
compression of the median nerve at the wrist, greater on the right than on the
left….”
***
“I reviewed an MRI [scan] of the cervical spine which goes back as far as
December 11, 2003, which showed small left-sided posterolateral osteophytes at
C5-6 leading to some bony stenosis of the left neural foramen. Another MRI
[scan] of the cervical spine on February 18, 2004 showing as small central left
paramedical disc protrusion at C5-6 superimposed on a slender spinal canal.
Neither of these reports of the cervical spine indicated disc herniation or
compromised with the nerve root at the C5-6 level.”
***
“I do not believe that the duties of [appellant] as a mail handler from 1993 to 2003
contributed to any cervical condition. She has osteophytes of her cervical spine.

5

These are degenerative in nature and they were not caused by any specific injury
or any repetitive type of work that she did as a mail handler. These types of
osteophytes can be found in the general population of individuals regardless of
their type of employment. Also I would like to state that I did not diagnose a
moderate central stenosis at C5-6. This is in fact, the impression given on the
MRI [scan] report but this is not a diagnosis of mine. If my original report is
read, you will see that I might diagnose this with a mild soft tissue and mild
cervical strain. I have stated before that central stenosis is developmental or even
a congenital problem. It is not attributable to her employment as a mail handler
and this condition is not medically conducted with her mail handling duties
from 1993 to 2003.
“Also, I reviewed the report of an EMG/NCV testing she had done on
February 27, 2004. It does not mention any evidence of a cervical radiculopathy.
Therefore, to continue to state this as a diagnosis based on that report is
inaccurate. There was no evidence of radiculopathy or neuropathy evident on that
examination; therefore, this diagnosis should not be entertained and the use of this
diagnosis should be stopped. It has no basis.
“[B]ased on the records that I reviewed and the numerous diagnostic tests reports
that are reviewed ... this individual’s work duties as a mail handler prior to
January 2004 have not caused a cervical condition. This patient quite frankly has
no cervical condition that can be demonstrated clinically. Her MRI [scans] do not
support any disc herniation, nerve root entrapment or impingement and therefore
these were all soft tissue type problems. The diagnostic studies as numerous as
they are have simply never failed to show any sort of significant problem in this
patient’s cervical spine. The moderate central stenosis at C5-6 due to the
presence of a small central and right paramedian disc protrusion is something that
can be found on the large percentage of the population. A slight small central and
either right or left-sided paramedian disc protrusions are very common. These are
ordinary findings on MRI [scan] and they are not related and not associated with
radicular type symptoms because they do not encroach into the neural foramen or
impinge on the nerve root. There was no indication from the wording of these
reports of nerve root encroachment, impingement, or displacement being present.
Therefore, this condition is not medically connected to her duties as a mail
handler from 1993 to January 2003.
“I reviewed the EMG/NCV report of February 27, 2005 and there is absolutely no
wording in that report to suggest that this patient has a cervical radiculopathy.”
***
“[N]one of these diagnostic tests have [indicated] a condition that would justify
this patient to be fully incapacitated and unemployable. I believe this patient
should be returned to work as a modified custodian. I do not see anything in her
exam[ination] and in her diagnostic tests that would preclude her from being able
to perform these duties.”

6

By decision dated December 19, 2005, the Office denied appellant’s claim for an
employment-related cervical condition. It found that Dr. Belich’s referee opinion represented the
weight of the medical evidence.
On January 5, 2006 appellant requested an oral hearing.1
In a report dated January 31, 2006, Dr. Chmell stated that the Office erred in finding that
the February 18, 2004 cervical MRI scan report provided no indication of disc herniation or
compromised nerve root at the C5-6 level. He enclosed a copy of the February 18, 2004 report.
Dr. Chmell opined that this deformity of the spinal cord meant that the disc herniation led to a
significant protrusion pressing on the spinal cord, with bilateral foraminal narrowing. He stated
that the Office’s December 19, 2005 decision was wrong. Dr. Chmell also submitted an
April 16, 2006 MRI scan report, performed by Dr. Avi Mazumdar, a Board-certified radiologist,
who diagnosed a left paracentral disc herniation at C5-6, causing moderate central canal stenosis,
left lateral recess and left neural foramen narrowing.
By decision dated March 22, 2007, an Office hearing representative affirmed the
December 19, 2005 decision. The hearing representative found that the medical evidence
appellant submitted was not sufficient to overcome the report of Dr. Belich.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained 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 upon 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.
1

The hearing was scheduled for December 20, 2006. Appellant, however, did not appear at the hearing. The
hearing representative considered the issue in this case based on a review of the written record.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

7

The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
The claimant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed bilateral carpal tunnel condition
and her federal employment. This burden includes providing medical evidence from a physician
who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.6
ANALYSIS
The Office found that there was a conflict in the medical evidence between the opinions
of Drs. Chmell and Sidell regarding whether appellant had developed a cervical condition
causally related to her federal employment. The case was referred to Dr. Belich, selected as the
impartial medical examiner. In a November 28, 2005 report, he found that, based on the records
and numerous diagnostic tests reports of record, appellant’s cervical condition was not caused or
aggravated by her work duties as a mail handler prior to January 2004. Dr. Belich advised that
she had no significant cervical condition demonstrated clinically or diagnostically by MRI scan
or EMG/NVC tests. He stated that none of the many diagnostic tests appellant underwent
indicated any significant problems such as disc herniation, nerve root entrapment, impingement
or displacement; therefore, appellant’s cervical symptoms resulted from soft tissue type
problems. Dr. Belich stated that appellant had moderate central stenosis at C5-6 due to the
presence of a small central and right paramedian disc protrusion which was revealed by the
diagnostic tests. However, he noted that this finding was ordinary and very common among a
large percentage of the population. He did not associate these symptoms with radicular-type
symptoms because they did not encroach into the neural foramen or impinge on the nerve root.
Dr. Belich advised that cervical radiculopathy was not supported by any of the EMG/NCV or
MRI scan reports he reviewed. Although appellant had osteophytes of her cervical spine, these
were degenerative in nature and not caused by any specific injury or any repetitive type of work
she performed as a mail handler. Such degenerative changes could be found in the general
population regardless of the type of employment. Dr. Belich felt that appellant had no condition
that would justify her being totally incapacitated and unemployable. He did not see anything on
examination or in her diagnostic tests that precluded her from being able to perform the duties of
a mail modified custodian.

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

8

The Board finds that Dr. Belich’s referee opinion, negating the causal relationship
between her cervical condition and factors of her employment, was thorough, sufficiently
probative, well rationalized and based upon a proper factual background. Therefore, his opinion
is entitled to the special weight of an impartial medical examiner.7 Accordingly, the Board finds
that Dr. Belich’s opinion constituted sufficient medical rationale to support the Office’s
December 19, 2005 decision finding that appellant did not sustain a cervical condition in the
performance of duty.
Following the December 19, 2005 decision, appellant requested an oral hearing and
submitted an additional report from Dr. Chmell. This report, however, merely restated one side
of the conflict resolved by Dr. Belich’s impartial medical opinion. The weight of medical
opinion is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of a physician’s knowledge of the facts of the case, the medical history provided,
the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.8 Dr. Chmell’s report did not contain countervailing, probative medical evidence
that appellant’s claimed cervical condition was caused or aggravated by her work duties. It is
therefore of limited probative value as it did not contain any medical rationale explaining how or
why appellant’s claimed cervical condition was currently affected by or related to factors of
employment.9 Dr. Chmell also submitted an April 16, 2006 MRI scan report which showed a
left paracentral disc herniation at C5-6, causing moderate central canal stenosis, left lateral recess
and left neural foramen narrowing. However, although he provided a diagnosis of appellant’s
current condition based upon objective medical evidence, Dr. Chmell did not relate this
diagnosis to factors of appellant’s employment. Without a rationalized opinion regarding causal
relationship, his opinion regarding appellant’s condition is of limited probative value. Thus,
Dr. Chmell’s report did not satisfy appellant’s burden of proof to submit medical evidence
sufficient to warrant modification of the Office’s December 19, 2005 decision, which properly
found that Dr. Belich’s referee opinion constituted the weight of the medical evidence.
Accordingly, the Board affirms the hearing representative’s March 22, 2007 decision, affirming
the December 19, 2005 decision.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establish that her
claimed cervical condition was sustained in the performance of duty.

7

Where there exists a conflict of medical opinion and the case is referred to an impartial specialist for the purpose
of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, is entitled to special weight. Gary R. Seiber, 46 ECAB 215 (1994); Aubrey Belnavis, 37 ECAB
206 (1985).
8

See Anna C. Leanza, 48 ECAB 115 (1996).

9

William C. Thomas, 45 ECAB 591 (1994).

9

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 7, 2007
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, PROCTOR STATION,
Tacoma, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Docket No. 14-17
Issued: August 4, 2014

Appearances:
Coby Jones, for the appellant
No appearance, for the Director

Oral Argument June 12, 2014

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 11, 2013 appellant, through her representative, filed a timely appeal from an
April 18, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her emotional condition 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.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition in the
performance of duty; and (2) whether OWCP properly rescinded its August 3, 2012 statement of
accepted facts.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 26, 2012 appellant, then a 47-year-old city letter carrier, filed an occupational
disease claim alleging that she sustained depression and anxiety causally related to factors of her
federal employment. She related that a coworker, Nick Bogajczyk, disliked her and that her
belongings had been stolen. Appellant stopped work on March 22, 2012.
In statements dated March 26 and April 9, 2012, appellant related that in 2010 she
became the union steward assistant and safety captain. She had to speak with Ken Sage, a
manager, about helping carriers after dog incidents. Appellant found out that dog letters were
not being properly sent but only got excuses from management when she complained.
Mr. Bogajczyk made fun of her speech because she talked in a different manner due to her
deafness. On December 16, 2010 appellant witnessed Mr. Bogajczyk cross an individual’s name
off of a union steward nomination list. She told him that he should not have crossed the name
out. On December 22, 2010 Mr. Bogajczyk told Dan Salido, a manager, that appellant had taken
a 45-minute lunch at her home. Both Mr. Bogajczyk and Mr. Salido drove to her home and
conducted surveillance. On December 24, 2010 Area Manager Zack Carter and Union President
Mike Touchet held a stand-up meeting. Mr. Touchet told employees not to remove names from
nominations sheets. Mr. Bogajczyk became rude and pointed a finger at appellant, stating that
she should “mind her damn business.” The next day appellant found a key scratch on her car.
She asked Mr. Sage in a written note for the telephone number for the Employees’ Assistance
Program (EAP) and two days later Mr. Bogajczyk knew that she was going to EAP counseling.
In April 2011 Mr. Bogajczyk almost crashed a nutting cart into appellant. Appellant complained
to Mr. Salido but nothing was done. Mr. Bogajczyk accused her of walking around when she
was on safety patrol duty. On May 16, 2011 when appellant returned from vacation,
Mr. Bogajczyk instructed her carrier not to give her vacation mail. On May 28, 2011 she went to
her house, an authorized break location, to use the restroom. Appellant saw Mr. Bogajczyk and
Eric Hetrick, a supervisor, driving away from her home. Mr. Hetrick informed her that a carrier
had told him that she was at home. At an intervention meeting on July 7, 2011, Mr. Touchet told
appellant that Mr. Bogajczyk believed that she was taking too many breaks. Mr. Bogajczyk also
believed that she was spying on him with a mirror at her case. Appellant had difficulty
understanding everything at the meeting due to her deafness but management refused to let her
husband be present. She asked that Mr. Bogajczyk not deliver her mail. Appellant agreed to
move the mirror to another spot. On July 20, 2011 she learned that Mr. Hetrick had put a letter
of warning in her file without giving it to her. Mr. Salido removed the letter of warning and
apologized. After a July 28, 2011 meeting, management rearranged the work floor so that
appellant and Mr. Bogajczyk were not within one another’s view. Appellant moved her mirror
back to its usual spot. She asserted that Mr. Bogajczyk took breaks at Dairy Queen to spy on
her.
On January 2012 appellant quit her safety captain job because she was denied interpreter
services. She believed a coworker hid her mirror on March 2, 2012. On March 10, 2012
appellant’s mirror was again missing. Mr. Sage laughed when she told him. On March 12, 2012
he told appellant she was “stirring the pot.” Appellant questioned Katherine Parks, a coworker,
about her mirror. On March 21, 2012 Ms. Parks gave appellant a mean look. She mouthed to
another carrier that appellant was crazy. Appellant made many mistakes on her route.
2

In support of her claim, appellant submitted grievances settled between the union and the
station manager.2 On June 30, 2011 a Step A grievance resolution determined that
Mr. Bogajczyk inappropriately denied her request for her vacation hold mail and that
management was responsible for ensuring that Mr. Bogajczyk’s behavior was appropriate. An
August 5, 2011 Step A grievance resolution found that a letter of warning from appellant’s file
should be removed and that management should “cease and desist from keeping records of
unissued discipline in files and records.” A December 25, 2011 Step A grievance resolution
found that the safety captain should be notified of meetings and receive information about the
meetings.
Appellant also submitted settled class action grievances.3 On July 24, 2010 union and
management agreed that management should follow dog policies in place from a prior grievance.
On February 4, 2011 union and management agreed that management had the responsibility to
take action regarding violence in the workplace and intimidation. On April 28, 2011 union and
management agreed to a group intervention about the events in prior grievances. On May 3,
2011 union and management agreed that management should have kept the name of a grievant
confidential. On May 4, 2011 union and management concurred that management was failing to
follow procedures for dog bite prevention. In a June 15, 2011 settlement, union and management
agreed as follows:
“Supervisor Hetrick[’s] actions on May 28, 2011 displayed poor judgment and
negatively affected the work environment of [appellant]. Carrier Bogajczyk’s
report that [appellant] was at her house should not have been taken as a report of
misconduct. [Appellant’s] house is an authorized lunch location. Carrier
Bogajczyk has displayed numerous times a dislike for [her] and reports by him
about [her] should be weighed against this bias.
“Supervisor Hetrick’s discussion on the workroom floor was not the appropriate
place for the discussion. When [appellant] asked him on the workroom floor
about the street observations, Supervisor Hetrick should have moved the
conversation to the office with a steward.”
The agreement cited as procedure that management should not spy on employees and
concluded, “Management is responsible for [appellant’s] work environment. In the future,
[m]anagement shall take appropriate action to guard [her] from the harassing actions of
employees in the work unit.” In another June 15, 2011 grievance settlement, management and
the union agreed that management had not corrected Mr. Bogajczyk’s behavior and that this had
affected appellant’s work environment.

2

On March 24, 2011 a Step A grievance resolution determined that management failed to weigh the needs of
appellant against the needs of the employing establishment in denying her request for a temporary schedule change
and that it would approve her request.
3

Appellant submitted an April 30, 2012 report from Dr. Ryan Coon, a clinical psychologist, in support of her
claim.

3

On August 3, 2012 OWCP prepared a statement of accepted facts accepting as a
compensable work factor that on May 28, 2011 Mr. Bogajczyk told Mr. Hetrick that appellant
was taking lunch at her house and that they went to her home and observed her from a vehicle.
On October 2, 2012 OWCP advised appellant of its proposed rescission of the August 3,
2012 statement of accepted facts. It determined that a supervisor observing her at lunch was an
administrative matter outside the course of her employment.
On October 29, 2012 appellant submitted witness statements in support of her allegations.
In a witness statement dated October 12, 2012, Christopher Lao, a coworker, confirmed that
Mr. Bogajczyk told him that appellant could not pick up her vacation mail from him. On
October 13, 2012 Sherry R. Stevens, a coworker, related that Mr. Bogajczyk believed that
appellant was observing him from a mirror on her case.4 In an October 16, 2012 statement,
Joseph Barsalona, a coworker, indicated that he saw Mr. Bogajczyk bump the nutting truck in an
intentional looking way. On October 18, 2012 Tom Botkey, a coworker, asserted that
Mr. Bogajczyk was upset at a stand-up meeting. Mark Marsik, a coworker, submitted an
October 19, 2012 statement relating that Mr. Bogajczyk removed a name from an election signup sheet without permission. At a stand-up meeting addressing his action, Mr. Bogajczyk
shouted about the union. In a statement dated October 26, 2012, Jim Hubbard, shop steward,
maintained that Mr. Bogajczyk was often rude and hostile and that there was friction between
appellant and Mr. Bogajczyk. Management moved the equipment so that there would be little
contact between them. Mr. Salido did not want to be alone in a room with Mr. Bogajczyk.
When appellant asked for accommodation to work as safety captain due to her hearing loss,
Mr. Sage remarked that she could be found unfit for work.
By decision dated November 13, 2012, OWCP denied appellant’s emotional condition
claim after finding that she had not established any compensable factors of employment. In
another decision dated November 14, 2012, it rescinded its August 30, 2012 statement of
accepted facts.
On November 20, 2012 appellant requested an oral hearing before an OWCP hearing
representative.5
At the hearing, held on February 6, 2013, appellant’s representative contended that the
grievance settlements established that the alleged incidents occurred as alleged. He maintained
that a settled grievance supported that the employing establishment erred in placing a letter of
warning in her file without notice.
In a statement dated February 20, 2013, appellant described again the incidents with
Mr. Bogajczyk to which she attributed her stress-related condition.

4

A witness also related that Mr. Hetrick spoke with appellant about seeing her at her home on May 28, 2011.
Another witness asserted that Mr. Bogajczyk had not received discipline yet for matters concerning appellant.
5

In a statement dated May 4, 2010, appellant described an attacked by a dog and maintained that Mr. Salido did
not follow the proper dog letter procedures.

4

In another statement dated February 20, 2013, appellant’s representative summarized the
witness statements and the grievance settlements. He noted that the employing establishment
had not challenged her version of events. The representative alleged that the grievance
settlements established error or abuse by the employing establishment.
By decision dated April 18, 2013, OWCP’s hearing representative affirmed the
November 13, 2012 decisions. She found that appellant had not established any compensable
work factors.
On appeal appellant’s representative asserts that Mr. Bogajczk’s actions constituted
harassment. He notes that the employing establishment did not refute her allegations. The
representative describes the grievance settlements and witness statements and asserts that
appellant has established error and abuse by the employing establishment.
LEGAL PRECEDENT
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.6 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.7
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.8 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.9
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.10
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
6

Supra note 1; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

7

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

8

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
9

See William H. Fortner, 49 ECAB 324 (1998).

10

Ruth S. Johnson, 46 ECAB 237 (1994).

5

employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.11 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and Equal Employment Opportunity complaints, by themselves, do not establish that
workplace harassment or unfair treatment occurred.12 The issue is whether the claimant has
submitted sufficient evidence under FECA to establish a factual basis for the claim by supporting
his or her allegations with probative and reliable evidence.13 The primary reason for requiring
factual evidence from the claimant in support of his or her allegations of stress in the workplace
is to establish a basis in fact for the contentions made, as opposed to mere perceptions of the
claimant, which in turn may be fully examined and evaluated by OWCP and the Board.14
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.15 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. 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.16
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must,
therefore, initially review whether these alleged incidents and conditions of employment are
covered employment factors under the terms of FECA.
Appellant has not alleged that she developed an emotional condition as a result of the
performance of her regular or specially assigned duties or out of a specific requirement imposed
by her employment under Cutler. Instead, she primarily attributed her condition to error and
abuse by management in administration matters and in failing to control actions taken by a
coworker, Mr. Bogajczyk. Specifically, appellant alleged that Mr. Bogajczyk inappropriately
refused to give her held vacation mail when she returned to work. She also maintained that
management put a letter of warning in her file without notification. Appellant further asserted
11

See Michael Ewanichak, 48 ECAB 364 (1997).

12

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

13

See James E. Norris, 52 ECAB 93 (2000).

14

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

15

Dennis J. Balogh, 52 ECAB 232 (2001).

16

Id.

6

that on May 28, 2011 Mr. Bogajczyk told Mr. Hetrick that she was at her house, which she
described as an authorized lunch and break location. She saw both men driving away from her
home when she left the premises.
In Thomas D. McEuen,17 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated.18
Appellant submitted a grievance settlement dated June 30, 2011 in which management
and the union agreed that Mr. Bogajczyk wrongly refused to give her vacation hold mail and that
it was management’s responsibility to ensure that he behaved appropriately. In an August 5,
2011 grievance settlement, management and the union agreed that management should remove
the letter of warning from appellant’s file and refrain from keeping future records of unissued
discipline. In a class action grievance settlement dated June 15, 2011, it agreed that
Mr. Hetrick’s actions on May 28, 2011 showed “poor judgment and negatively affected”
appellant’s work environment when he acted upon Mr. Bogajczyk’s report that she was at her
house, an authorized lunch location. Management and the union further found that Mr. Hetrick
should not have addressed appellant’s concerns on the work floor and that it had the
responsibility to ensure that she was not harassed by coworkers. The grievance settlements
establish error or abuse by Mr. Bogajczyk and Mr. Hetrick in the above administrative matters.
Appellant has established as compensable work factors that management erred when
Mr. Bogajczyk refused to give her vacation mail and Mr. Hetrick erred in acting on information
from Mr. Bogajczyk on May 28, 2011, that Mr. Hetrick should not have addressed her concerns
about the incident at a meeting in front of a coworker and that management erred in keeping an
unissued letter of warning in her file.
Appellant also alleged that management failed to send appropriate dog letters, disclosed
to Mr. Bogajczyk that she was receiving EAP counseling and wrongly denied her an interpreter
while performing her job as safety captain. Appellant, however, has not submitted evidence that
the employing establishment erroneously denied her request for an interpreter or informed
Mr. Bogajczyk about her EAP counseling. Regarding the dog letters, a class action grievance
dated July 24, 2010 indicated that management should follow the dog policies already in place.
On May 4, 2011 union and management agreed that management was not following proper
procedures for preventing dog bites. The grievances, however, are general in nature rather than
particular to appellant and thus insufficient to establish a compensable work factor.
Appellant further attributed her condition to harassment by Mr. Bogajczyk and other
coworkers. She related that Mr. Bogajczyk made fun of her speech, pointed a finger at her in a
17

See Thomas D. McEuen, supra note 8.

18

See Richard J. Dube, 42 ECAB 916 (1991).

7

meeting, accused her of walking around when she was on safety patrol duty, almost hit her with
a nutting cart and believed that she was spying on him with a mirror. Appellant believed that a
coworker took her mirror. She also asserted that Mr. Sage told her she was “stirring the pot”
when she asked about her missing mirror and that Ms. Parks gave her a mean look. Harassment
and discrimination by supervisors and coworkers, if established as occurring and arising from the
performance of work duties, can constitute a compensable work factor.19 A claimant, however,
must substantiate allegations of harassment and discrimination with probative and reliable
evidence.20 Appellant has not established that Mr. Sage told her that she was stirring the pot
about her mirror or that Ms. Parks looked at her in a hostile manner. While she has submitted
witness statements supporting that Mr. Bogajczyk believed that she was watching him from a
mirror case, had an outburst at a meeting and bumped a nutting cart, she has not established that
these incidents rose to the level of harassment.21 Appellant thus has not established a
compensable work factor with regard to her allegation of harassment.
As discussed, appellant has established compensable employment factors. OWCP did
not analyze or develop the medical evidence given its finding that there were no compensable
employment factors. The case will be remanded to OWCP for this purpose.22 After such further
development as deemed necessary, it should issue a de novo decision on this matter.23
CONCLUSION
The Board finds that the case is not in posture for decision.

19

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

20

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

21

See M.H., Docket No. 13-1585 (issued January 24, 2014); William P. George, 43 ECAB 1159 (1992).

22

See Robert Bartlett, 51 ECAB 664 (2000).

23

In view of the Board’s disposition of the first issue, the issue of whether OWCP properly rescinded the
August 3, 2012 statement of accepted facts is moot.

8

ORDER
IT IS HEREBY ORDERED THAT the April 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 4, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Alternate Judge, concurring:
I join the majority opinion in finding that further development of the present claim is
warranted to determine whether appellant sustained an emotional condition causally related to a
compensable factor of her federal employment under Thomas D. McEuen.1 I write this opinion
as I find that the November 14, 2012 decision of OWCP’s claims examiner purporting to rescind
acceptance of the August 30, 2012 statement of accepted facts is not supported by the Board’s
case precedent.

1

41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).

9

In Leroy Thomas, III,2 the Board had the opportunity to address case law regarding
rescission of acceptance of a claim under Daniel E. Phillips,3 and its progeny. As stated in
Phillips:
“Once the Office has accepted a claim, it has the burden of justifying the
termination or modification of compensation benefits. Under such circumstances,
the Office must either establish that its original determination was erroneous or
that the employment-related disability has ceased.
“The act of reopening and rescinding its prior acceptance of a claim, based on an
erroneous acceptance, should not become a surreptitious route for the Office to
readjudicate a case.… In the opinion of the Board, in order for the Office to
reopen and rescind its prior acceptance of a claim, it must establish that its prior
acceptance was erroneous through new or different evidence and that it is not
merely second guessing the initial set of adjudicating officials.”4 (Emphasis
added.)
The facts in Thomas reflect that the employee filed a claim for an emotional condition
alleging various compensable factors. In the original statement of accepted facts, OWCP
accepted as a compensable factor the employee’s allegation that his supervisor threatened to kill
him during a conversation on January 28, 1993. However, after further development, the June 2,
1994 OWCP decision denying the claim, found that the incident did not constitute a
compensable factor of employment as a death threat was not factually established.
The dissenting opinion in Thomas asserted that this factual pattern raised an issue of a
rescission of acceptance. The majority found, however, that the Board case law applicable to
rescission of acceptance of a claim is not applicable in a situation in which OWCP modifies a
statement of accepted facts. As the employee’s claim of an emotional condition had never been
accepted by OWCP, he retained the burden of proof to establish his claim for compensation
benefits under FECA. The majority emphasized that the rescission standard was applicable only
following acceptance of a claim by OWCP. The Board stated:
“Prior to acceptance of a claim, [OWCP] retains the discretionary authority to
make factual findings based on the evidence submitted to the record, either in a
statement of accepted facts or in a memorandum to the Director incorporated into
a compensation order. In effect, the rescission position raised in the dissent
would contort ordinary notions of burden of proof as it would bind [OWCP] to
factual findings proposed or prepared prior to the formal acceptance of a claim
and during a period in which [the employee] retains the burden of proof of
establishing his or her claim for compensation. The Board finds that this
approach would be administratively burdensome and add unnecessary complexity
to the informal claims adjudication process employed by the Office under the Act.
2

46 ECAB 946 (1995).

3

40 ECAB 1111 (1989).

4

Id. at 1117-18.

10

For this reason, the Board finds that the Phillips standard is applicable only in
cases following acceptance of a claim for compensation by [OWCP].”5
The November 12, 2014 decision of an OWCP claims examiner purporting to rescind the
August 30, 2012 statement of accepted facts is not consistent with the Board’s long established
case precedent concerning modification of a statement of accepted facts. The majority finds that
issue two is moot, based on the disposition of the decision to remand the case for further
development. I find that the November 12, 2014 decision is void ab initio for the reasons stated.6

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

5

46 ECAB at 953-54.

6

See P.V., Docket No. 12-1822 (issued June 7, 2013); D.C., Docket No. 12-51 (issued June 25, 2012).

11