United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
U.S. POSTAL SERVICE, MADISON SQUARE
STATION, New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-558
Issued: October 1, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 23, 2008 appellant, through his attorney, filed a timely appeal from July 7
and November 6, 2008 merit decisions of the Office of Workers’ Compensation Programs
denying his emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On May 16, 2008 appellant, then a 51-year-old customer services manager, filed an
occupational disease claim alleging that he sustained insomnia and major depressive disorder due
to stress. He related: “My employment has caused me both mental and physical illness. The
hostile work environment has created harassment along with stressful conditions which has
caused me major depressive disorder, paranoia, stress, insomnia and physical tensions such as

body and headaches.” Appellant stopped work on April 24, 2008. In a statement accompanying
his claim, he described his current work duties as a manager. Appellant stated:
“Since April 2007 the [employing establishment] has attempted to reduce my
grade/salary for no just cause. A settlement agreement was reached in
October 2007 with my voluntary reassignment to the current position I now hold.
My emotional reaction is specific to my employment duties as it relates to the
collection of mail. The harassment of being treated differently from my peers.
The disparate treatment and double standard exhibited by the [employing
establishment].”
Appellant related that an October 26, 2007 settlement agreement from the Merit Systems
Protection Board (MSPB) established that the employing establishment failed to prove
misconduct when it tried to reduce his grade due to failures in collecting mail.1
On May 16, 2008 Mitch Sturman, a manager at the employing establishment,
controverted appellant’s claim. He related that appellant received a proposed reduction in grade
on May 1, 2007 from his position as postmaster Executive and Administrative Schedule (EAS)
level 24 to manager EAS level 21. Appellant filed a complaint with the MSPB. In an
October 26, 2007 settlement agreement, the employing establishment permitted him to
voluntarily request a reduction in grade. Appellant received another proposed reduction in grade
on April 18, 2008. Mr. Sturman noted that appellant was attributing his condition to disciplinary
actions rather than his work duties.
On May 1, 2007 the employing establishment notified appellant of a proposed reduction
in grade and pay from a level EAS-24 to a level EAS-21 for failing to acceptably perform his
work duties. It asserted that appellant failed to properly verify that collection boxes were
properly labeled and failed to properly download collection data. In a letter decision dated
May 30, 2007, the employing establishment finalized the proposed reduction in grade and
salary.2
In an October 26, 2007 MSPB settlement and release agreement, the employing
establishment agreed to rescind its May 1, 2007 notice or proposed reduction in grade and pay
and the May 30, 2007 letter decision and allow appellant to request a voluntary reassignment and
grade and pay reduction to level EAS-21. It also rescinded a September 21, 2007 notice of
proposed removal and appellant agreed not to seek a promotion for three years. The agreement
stipulated that it was not an admission of wrongdoing by the employing establishment.
On April 18, 2008 appellant received a notice of proposed reduction in grade from a
manager, EAS-21, to a supervisor, EAS-17, for failing to properly discharge his assigned duties.
The employing establishment found that he failed to document that he tested all collection
points.
1

Appellant also submitted medical evidence in support of his claim.

2

On July 17, 2007 the employing establishment submitted a response to the MSPB outlining the reasons for its
disciplinary action.

2

In a statement dated May 12, 2008, appellant related that he worked for the employing
establishment for 27 years, eventually reaching the position of EAS-24 postmaster in
August 2004. In 2005, the employing establishment began treating him disparately allegedly
because of his race. Appellant indicated that he received a letter of warning for failing to timely
complete a task in June 2006. The action was resolved after mediation. In May 2007, appellant
received a proposed reduction in grade and salary and a decision reducing his grade and salary
effective June 9, 2007. He filed a grievance with the MSPB on June 12, 2007 alleging
discrimination due to race and national origin. On June 19, 2007 appellant interviewed for a
position as a postmaster in Virginia. He believed that Sherry Harper, the interviewer, knew of
his MSPB grievance. Appellant accepted the offered position of postmaster and relocated to
Virginia from New York. He met with Ms. Harper and informed her of his MSPB claim. On
August 20, 2007 appellant was discharged from his duties as postmaster and placed on
administrative leave. After the October 26, 2007 MSPB settlement, he began working as a
manager in New York. On April 21, 2008 appellant received a notice of proposed reduction in
grade/salary for failing to perform his assigned duties and a settlement agreement on the same
day. He signed the agreement “under duress acknowledging fault along with a one[-]week loss
of pay and 14[-]day suspension….” Appellant sought medical treatment for depression,
insomnia, paranoia and stress.
By decision dated July 7, 2008, the Office denied appellant’s claim on the grounds that
he did not establish an emotional condition in the performance of duty. It found that appellant
had not established any compensable employment factors.
On August 1, 2008 appellant, through his attorney, requested reconsideration. Counsel
argued that his “allegation of mistreatment or harassment occurred in the course of regular work
duties, as well as in the performance of requirements imposed as a condition of employment.”
He contended that the Office accepted the employing establishment’s denial or error or abuse in
its actions without making an adequate factual investigation. Counsel asserted that all
disciplinary matters were resolved in appellant’s favor, including the June 2006 letter of warning
for failing to timely complete a task and its May 2007 proposed notice of reduction in grade and
salary. He alleged that appellant was not represented, as found by the Office, in matters related
to the April 21, 2008 notice of proposed reduction in grade. Counsel further argued that the
medical evidence was sufficient to establish the claim.
In an October 30, 2008 response, the employing establishment reviewed the disciplinary
actions taken and the settlement reached and maintained that appellant had not established either
harassment or error or abuse in administrative actions. It submitted a copy of the June 9, 2006
letter of warning issued to appellant for failing to follow instructions by failing to timely
complete 3,999 submissions. A November 28, 2006 settlement agreement between appellant and
the employing establishment established that the June 6, 2006 letter of warning would be
removed from his personnel file as soon as the requested work was completed but no later than
April 30, 2007. On November 29, 2007 an administrative law judge with the MSPB found that
the parties freely entered into the settlement agreement. The employing establishment also
submitted an April 21, 2008 settlement agreement regarding the April 17, 2008 notice of
proposed reduction in grade. Appellant admitted to and agreed with the charges and the
employing establishment modified the 14-day suspension to 7 days without pay.

3

By decision dated November 6, 2008, the Office denied modification of its July 7, 2008
decision. It found that appellant had not established either harassment or error or 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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.4
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 the Act.5 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.6
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.7
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.8 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.9 The issue is whether the claimant has
submitted sufficient evidence under the Act to establish a factual basis for the claim by

3

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

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

5

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
6

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

7

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

8

See Michael Ewanichak, 48 ECAB 364 (1997).

9

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

4

supporting his or her allegations with probative and reliable evidence.10 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 the Office and the
Board.11
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.12 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.13
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied his emotional condition claim on the
grounds that he did not establish any compensable employment factors. The Board must review
whether these alleged incidents and conditions of employment are covered employment factors
under the terms of the Act.
Appellant asserted that management harassed and discriminated against him by trying to
reduce his grade and salary without any justification and by treating him differently from his
coworkers. 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.14 A claimant, however, must substantiate allegations of harassment and discrimination
with probative and reliable evidence.15 Further, disciplinary actions are administrative functions
of the employer and not duties of the employee and, unless the evidence discloses error or abuse
on the part of the employing establishment, not compensable employment factors.16 On June 9,
2006 the employing establishment issued appellant a letter of warning for failing to timely
complete work duties. A November 28, 2006 settlement agreement provided that the letter of
10

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

11

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

12

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

13

Id.

14

Doretha M. Belnavis, 57 ECAB 311 (2006).

15

Robert Breeden, 57 ECAB 622 (2006); David C. Lindsey, Jr., 56 ECAB 263 (2005).

16

See Andrew Wolfgang-Masters, 56 ECAB 411 (2005); Lori A. Facey, 55 ECAB 217 (2004).

5

warning would be removed from his personnel file as soon as the work was completed. On
May 30, 2007 it reduced appellant’s grade and salary from an EAS-24 to an EAS-21. Appellant
filed a grievance with the MSPB. In an October 26, 2007 settlement agreement before the
MSPB, the employing establishment rescinded the May 30, 2007 demotion and appellant agreed
to voluntarily accept the lower grade and salary. The settlement was obtained without any
admission of fault on the part of the employing establishment. The employing establishment
issued appellant another proposed reduction in grade on April 18, 2008, which was modified to a
14-day suspension after he admitted to the charges. Appellant has not shown that the
disciplinary actions taken against him were erroneous or abusive or the result of harassment or
discrimination against him. The Board has held that the mere fact that personnel actions are later
modified or rescinded does not, in and of itself, establish error or abuse on the part of the
employing establishment.17
On appeal, appellant contends that his emotional and physical condition arose from
compensable work factors. He, however, did not attribute his emotional condition to the
performance of regular or specially assigned duties but instead to harassment and discrimination
by the employing establishment and erroneous disciplinary actions. As discussed, appellant
failed to submit any evidence corroborating his allegations of harassment and discrimination.
Perceptions and feelings alone are not compensable. To establish entitlement to benefits, a
claimant must establish a factual basis for the claim by supporting appellant’s allegations with
probative and reliable evidence.18 Additionally, as noted, reactions to disciplinary matters
pertain to actions taken in an administrative capacity and are not compensable unless it is
established that the employing establishment erred or acted abusively.19 Appellant did not
submit any evidence supporting that the employing establishment erred or acted abusively in
issuing the disciplinary action. Consequently, he has not met his burden of proof.
Appellant’s attorney further asserted that, contrary to the Act and Board precedent, the
Office took an adversarial approach to the claim and failed to assist in developing the evidence to
see that justice was done. Appellant has the burden of proof; however, to establish by the weight
of the reliable, probative and substantial evidence that the condition for which he claims
compensation was caused or adversely affected by compensable work factors.20
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty.21

17

Peter D. Butt, Jr., 56 ECAB 117 (2004); Paul L. Stewart, 54 ECAB 824 (2003).

18

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).

19

Joe M. Hagewood, 56 ECAB 479 (2005).

20

See Robert Breeden, supra note 15.

21

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 6 and July 7, 2008 are affirmed.
Issued: October 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1271
Issued: October 5, 2015

Case Submitted on the Record

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

JURISDICTION
On May 19, 2015 appellant filed a timely appeal from a March 26, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to a July 10, 2014 employment incident.
FACTUAL HISTORY
On July 15, 2014 appellant, then a 44-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on July 10, 2014 he aggravated a preexisting
1

5 U.S.C. § 8101 et seq.

low back and neck condition performing “repetitive bending and lifting of scopes….” He
stopped work on July 10, 2014. The employing establishment controverted the claim and argued
that the injury resulted from his willful misconduct, intoxication, or intent to injure himself or
others. It stated, “[Appellant] did not follow facility policies/procedures[;] it is stated by other
employees that [he] removed the ergonomically placed sink grate rises from the sinks when he
was reprocessing the scopes. The purpose of the risers [is] to prevent any staff from having to
repeatedly bend in order to reprocess the scopes.”
In a statement dated July 14, 2014, Joe Yawn, a supervisor, related that on July 10, 2014
appellant sought treatment from the employing establishment’s clinic because his back hurt
“from bending over the sink….” He related that risers were placed to raise the depth of the
sinks, but that coworkers had claimed that appellant had not used the risers.
By letter dated July 28, 2014, OWCP requested additional factual and medical
information from appellant, including a detailed report from his attending physician addressing
the causal relationship between any diagnosed condition and the identified work incident. It also
advised that the employing establishment had controverted the claim based on willful
misconduct because he removed risers from the sink that were present to prevent injury.
On July 14, 2014 Dr. David Melvin Walker, a Board-certified psychiatrist who works for
the employing establishment, diagnosed neck spasms, back strain and spasms, and a
reoccurrence of a back injury. He provided work restrictions.
In a progress report dated July 15, 2014, Dr. Walker evaluated appellant for increased
back pain and right hip pain that worsened with activity. He diagnosed back strain, a
reoccurrence of a back injury, and back and neck spasms. Dr. Walker advised that appellant
could work with restrictions.
On July 17, 2014 Dr. Walker discussed appellant’s complaints of increased pain in his
low back and right hip radiating into his right leg. He stated, “[Appellant] reports that his right
leg gave way over the weekend and he suffered a fall and fractured the fifth metacarpal bone in
[his] right hand.” Dr. Walker diagnosed lumbar and thoracic strain and spasm and hip pain. He
opined that appellant should not work until July 21, 2014.
In a report dated July 21, 2014, Dr. Walker evaluated appellant for recurrence of back
pain and spams from [a] previous injury. He referred appellant for diagnostic studies and found
that he could work with restrictions.
A July 23, 2014 magnetic resonance imaging (MRI) scan study of the thoracic spine
revealed a right foraminal disc protrusion causing neuroforaminal narrowing on the right at
T10-11 that was moderate-to-severe and degenerative disc disease at multiple levels in the
cervical and thoracolumbar spine. An MRI scan study of the lumbar spine showed mild disc
desiccation.
By letter dated July 31, 2014, the employing establishment formally controverted the
claim, alleging that the evidence did not support the occurrence of the incident and that the
medical evidence was insufficient to support that the work incident aggravated a preexisting

2

condition. It further maintained that appellant’s injury was the result of willful misconduct as he
did not follow established policy.
On August 8, 2014 Dr. Walker indicated that appellant had been off work for the past two
weeks as there was no work available within his restrictions. He noted that he related that
bending, stooping, and lifting caused muscle spasms and pain. Dr. Walker diagnosed muscle
spasm and lumbar strain and found that appellant had work restrictions.
On August 11, 2014 a physician found that appellant was totally disabled from August 11
to 26, 2014. On August 27, 2014 the same physician advised that appellant could perform
light-duty work beginning September 2, 2014.2
In a statement received August 14, 2014, appellant described the process of
decontaminating medical scopes. He noted that the risers were “not permanently attached in the
sink and must be repeatedly removed after the washing of a scope.” After appellant drained and
cleaned the sink, he put back in the riser, noting that the riser “must be removed before water can
be added or taken away.” He stated, “Each scope requires a minimum of 25 minutes to clean,
which is also the amount of time I am bent over in a sink. This is a commercial deep bottom
sink….” Appellant related, “After three consistent days of bending and lifting for over 4 hours
continuously, I reinjured my back. The risers weigh greater than 25 pounds that I have to
repeatedly remove to perform my duties.”
By decision dated August 28, 2014, OWCP accepted that the events of July 10, 2014
occurred as alleged, but denied appellant’s claim as the medical evidence was insufficient to
establish a diagnosed condition as a result of the accepted work incident.
In a disability certificate dated August 15, 2014, received by OWCP on September 30,
2013, Dr. Walker found that appellant could return to work with restrictions.
In a report dated August 28, 2014, Dr. Robert Smith, a Board-certified neurosurgeon,
advised that he was treating appellant for “an exacerbation of his chronic pain….” He found that
x-rays revealed chronic strain of the lumbar spine and degenerative changes. Dr. Smith related
that it “would be helpful to all concerned if [appellant] could have some job assignment that did
not involve excessive stooping, lifting and bending….”
In a statement dated September 20, 2014, appellant asserted that on July 10, 2014 he
injured his back, right shoulder, arms, and legs cleaning a colon scope. He described the process
of cleaning the scope, noting that he had to lift a heavy grate to add or drain water from the sink
and that he had to bend over the sink cleaning the scope for prolonged periods of time.
Appellant related that while cleaning the fifth scope on July 10, 2014 he experienced significant
pain in his back, legs, and shoulder. He promptly informed his supervisor of the incident.
Appellant indicated that he had a prior accepted claim for a lumbar strain on May 13, 2009,
assigned file number xxxxxx632.3 He asserted that processing scopes aggravated his prior injury
2

The name of the physician is not legible.

3

The record indicates that OWCP accepted that appellant sustained lumbar sprain under file number xxxxxx632.

3

and that he sustained an occupational disease. Appellant also related that on July 13, 2014 he
experienced pain and spasms on the right side of his body which resulted in him falling and
fracturing his hand. After he fractured his hand, the employing establishment did not have work
available within his restrictions.
On September 23, 2014 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated March 26, 2015, the hearing representative affirmed the August 28,
2014 decision. She noted that in an August 14, 2014 statement appellant related that he
aggravated a preexisting condition after three days of bending and lifting, which would constitute
a claim for an occupational disease. The hearing representative determined, however, that he
subsequently specified that repetitive bending and lifting grates and scopes on July 10, 2014
resulted in his back injury. She found that the employing establishment had not established that
appellant’s actions regarding the use of the risers constituted negligence and determined that the
factual evidence supported that the incident occurred as alleged. The hearing representative
concluded, however, that the medical evidence was insufficient to demonstrate that the July 10,
2014 work incident caused or aggravated a diagnosed condition.
On appeal appellant contends that Dr. Walker was not his attending physician, but instead
only treated him as he was injured at work. He argues that OWCP should accept his claim
because he received treatment through the employee health service.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his claim, including the fact that the individual is an “employee of the United States”
within the meaning of FECA; that the claim was filed within the applicable time limitation; that
an injury was sustained while in the performance of duty as alleged; and that any disability
and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition

4

Supra note 1.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

4

for which compensation is claimed.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.9
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10
ANALYSIS
The Board notes that appellant attributed the claimed aggravation of a preexisting back
and neck condition to bending and lifting over the course of more than one work shift and to
repetitive bending and lifting cleaning scopes on July 10, 2014. Appellant however filed a
traumatic injury claim for the July 10, 2014 work incident and OWCP adjudicated his claim as a
traumatic injury. If he believes that he has sustained an aggravation of a back or neck condition
or other injury due to events occurring over the course of more than one workday or shift, he
should file an occupational disease claim.11
Appellant alleged that he aggravated a preexisting neck and low back condition on
July 10, 2014 performing repetitive bending and lifting of scopes. He subsequently maintained
that he also injured his right shoulder, arms, and legs. Appellant stopped work on the date of
injury. He sought medical treatment within five days of the July 10, 2014 incident. An
employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong or persuasive evidence.12 OWCP
accepted the occurrence of the July 10, 2014 incident and the Board finds that there are no
inconsistencies in the evidence sufficient to cast doubt on the validity of the claim.13
The employing establishment maintained that appellant’s actions in removing risers from
the sink constituted willful misconduct. An OWCP hearing representative, however, properly
8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

See I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
12

Caroline Thomas, 51 ECAB 451 (2000).

13

See Betty J. Smith, 54 ECAB 174 (2002) (an employee has not met his or her burden of proof to establish the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim).

5

found that the employing establishment had not submitted any evidence supporting its allegation
of willful misconduct. Willful misconduct is generally regarded as deliberate conduct involving
premeditation, obstinacy, or intentional wrongdoing with the knowledge that it is likely to result
in serious injury or conduct that is in wanton or reckless disregard of probable injurious
consequences.14 An allegation of willful misconduct is an affirmative defense. The adjudicating
agency has the burden, if it makes such an allegation, to prove that there was willful misconduct
and that such misconduct caused the injury.15 Appellant explained that he removed the risers in
order to drain and clean the sink while washing the scopes. The employing establishment has
not disputed his contention that he had to repeatedly remove the risers in order to complete the
washing of the scopes and thus has not supported its allegation of willful misconduct. The issue,
consequently, is whether the medical evidence establishes that appellant sustained an injury as a
result of this incident.
The Board finds that appellant has not established that the July 10, 2014 employment
incident resulted in an injury. The determination of whether an employment incident caused an
injury is generally established by medical evidence.16
On July 14, 2014 Dr. Walker diagnosed back strain, a recurrence of a back injury, and
spasms of the back and neck. He found that appellant could work with limitations, but failed to
address the cause of the diagnosed conditions. Dr. Walker’s report is thus of little probative
value.17
Dr. Walker evaluated appellant on July 15, 2014 for back and right hip pain. He
diagnosed back strain, a recurrence of a back injury, and back and neck spasm. Dr. Walker
provided a series of work restrictions. He did not, however, provide a description of the July 10,
2014 work incident. A physician’s report is entitled to little probative value if not based on a full
and accurate history.18 Additionally, Dr. Walker did not address the cause of the diagnosed
conditions. While he noted a history of an unspecified prior back injury, he did not attribute any
condition to the July 10, 2014 employment incident. Consequently, Dr. Walker’s report is
insufficient to meet appellant’s burden of proof.19
Dr. Walker’s July 17, 2014 report discussed appellant’s symptoms of low back and right
hip pain that radiating through his right leg. He noted that appellant had fallen and fractured a
bone in his hand after his right leg “gave way.” Dr. Walker diagnosed lumbar and thoracic strain
and spasm and hip pain. He found that appellant was disabled from employment until
14

See S.G., Docket No. 12-499 (issued September 6, 2013); J.J., Docket No. 09-982 (issued January 6, 2010).

15

Id.

16

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

17

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of
diminished probative value on the issue of causal relationship. B.W., Docket No. 13-39 (issued February 7, 2013);
S.E., Docket No. 08-221 (issued May 6, 2009).
18

See D.T., Docket No. 14-2024 (issued June 24, 2015).

19

See Willie M. Miller, 53 ECAB 697 (2002).

6

July 21, 2014. In his July 21, 2014 report, Dr. Walker evaluated appellant for recurrent back
pain after an unspecified prior injury. He determined that appellant could work with restrictions.
On August 8, 2014 Dr. Walker indicated that appellant was off work as there was no work
available within his limitations. On August 15, 2014 he advised that appellant could work with
restrictions. In his reports, Dr. Walker did not evidence knowledge of the July 10, 2014
employment incident or otherwise address causation. Without a detailed medical report
describing the employment incident and explaining how and why the incident caused an
aggravation of a preexisting back condition or other diagnosed condition as a result of the
July 10, 2014 work incident, Dr. Walker’s reports are of little probative value.20
The August 11 and 27, 2014 reports of an unidentifiable physician are of no probative
value, as the author cannot be readily identified as a physician.21
In his August 28, 2014 report, Dr. Smith evaluated appellant for an increase in chronic
pain. He interpreted x-rays as showing chronic lumbar strain and degenerative arthritis.
Dr. Smith related that appellant should work in a position that did not require prolonged bending,
lifting, or stooping. He did not, however, address the cause of appellant’s condition or in any
way attribute a diagnosed condition to the July 10, 2014 work incident. Consequently,
Dr. Smith’s opinion is insufficient to meet appellant’s burden of proof.22
On appeal appellant contends that the fact that he was treated by Dr. Walker, who works
for the employing establishment, establishes that appellant’s condition was employment related.
However, he has the burden to submit a well-reasoned medical report based on an accurate
history explaining how the work incident caused a diagnosed medical condition.23 The issue of
causal relationship is a medical question that must be established by probative medical evidence
from a physician.24 Appellant failed to submit any evidence supporting that he sustained a back
or neck condition caused or aggravated by the July 10, 2014 employment incident.
Consequently, he did not meet his burden of proof to establish an employment-related 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 and
20 C.F.R. §§ 10.605 through 10.607.

20

See W.S., Docket No. 14-1022 (issued July 1, 2014); D.L., Docket No. 13-1226 (issued August 22, 2013).

21

See Merton J. Sills, 39 ECAB 572 (1988) (where the Board found that unsigned treatment notes could not be
considered as probative evidence as they lacked proper identification).
22

Id.

23

See D.B., Docket No. 14-1815 (issued December 16, 2014).

24

See C.B., Docket No. 14-1973 (issued July 27, 2015).

7

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury causally related to a July 10, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Artesia, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1290
Issued: December 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 2, 2011 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ (OWCP) decision dated March 25, 2011. 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 sustained permanent impairment to a scheduled member of
his body causally related to his accepted neck, thoracic or lumbosacral conditions entitling him
to a schedule award under 5 U.S.C. § 8107.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 32-year-old border patrol officer/instructor, experienced discomfort in his
chest when the vehicle in which he was a passenger crashed into a building on January 22, 2009.
He filed a claim for benefits, which OWCP accepted for neck sprain, thoracic sprain,
lumbosacral sprain and muscle spasm.
On January 11, 2010 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his right upper extremity.
In a March 29, 2010 report, Dr. Stanley E. French, a chiropractor, found that appellant
had a four percent right upper extremity impairment pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed.) (A.M.A., Guides). He
diagnosed a herniated nucleus pulposus of the cervical spine, cervical radiculitis and muscle
spasm. Dr. French rated a class 1 impairment of the cervical spine pursuant to the cervical spine
regional grid at Table 17-2, page 564 of the A.M.A., Guides,2 for intervertebral disc herniation.
Pursuant to the Adjustment Grid Summary for rating cervical impairments at Table 17-6, page
575 of the A.M.A., Guides,3 he found that the grade modifier at Table 17-5, page 575, for
functional history was two, for pain/symptoms with normal activity; the grade modifier at Table
17-7, page 5764 for physical examination was zero, for negative cervical compression/foraminal
compression of the spine; the grade modifier at Table 17-9, page 581,5 for clinical studies was
zero, for normal electrodiagnostic testing. Dr. French then subtracted the grade modifier of one
from grade modifier 2 at Table 17-6 and zero from grade modifier 1 at Table 17-7 and Table 179 for a net adjusted impairment of one; this yielded a total, adjusted grade B impairment of the
right upper extremity. He then found that a class 1, adjusted grade B default impairment yielded
a four percent impairment of the cervical spine and whole person pursuant to Table 17-10, page
582 of the A.M.A., Guides.6
In a June 23, 2010 impairment evaluation, OWCP’s medical adviser reviewed
Dr. French’s report. He noted that OWCP did not give schedule awards due to impairment of the
spine or for whole person impairments, therefore, Dr. French’s report was not sufficient to
support any impairment under the A.M.A., Guides. Dr. French recommended that appellant be
referred for a second opinion impairment evaluation to determine whether he had any permanent
impairment of the right upper extremity.
Appellant was referred to Dr. Sofia W. Weigel, a Board-certified in physical medicine
and rehabilitation, for a second opinion impairment evaluation. In a September 20, 2010 report,
Dr. Weigel reviewed the medical history, stated findings on examination and determined that
2

A.M.A., Guides 564.

3

Id. at 575.

4

Id. at 576.

5

Id. at 581.

6

Id. at 582.

2

appellant had a zero percent (no) impairment of the right upper extremity. She noted that he had
a diagnosis of cervical strain under Table 17-2 of the A.M.A., Guides. Dr. Weigel stated that
this diagnosis was not a basis for a ratable impairment because appellant showed no evidence of
spinal/peripheral nerve injury, cervical nerve injury or peripheral nerve involvement under any
of the relevant tables at Chapter 15, the section of the A.M.A., Guides utilized for rating upper
extremity impairments.
In a November 15, 2010 report, relying on Dr. Weigel’s impairment evaluation, OWCP’s
medical adviser found that appellant had no permanent impairment rating arising from the
accepted conditions.
By decision dated March 25, 2011, OWCP found that appellant had no ratable
impairment causally related to an accepted condition and therefore was not entitled to a schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 The claimant has the burden of proving
that the condition for which a schedule award is sought is causally related to his or her
employment.10
ANALYSIS
OWCP accepted the conditions of neck strain, thoracic strain, lumbosacral strain and
muscle spasm. The Board finds that the medical evidence of record does not establish that
appellant sustained any permanent impairment of the right arm due to his accepted conditions.
Dr. French, a chiropractor, found that appellant had a class 1, adjusted grade B default
impairment, which yielded a four percent impairment of the cervical spine and whole person
pursuant to Table 17-10, page 582 of the A.M.A., Guides. The Board has held that the opinion
of a chiropractor, regarding a permanent impairment of a scheduled extremity or other member

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

9

Id.

10

Veronica Williams, 56 ECAB 367, 370 (2005).

3

of the body is beyond the scope of the statutory limitation of a chiropractor’s services.11 A
chiropractor is recognized under FECA as a physician only to the extent that services are for
treatment consisting of manual manipulation of the spine to correct a subluxation of the spine as
demonstrated by x-ray to exist.12
OWCP’s medical adviser reviewed Dr. French’s report on June 23, 2010 and noted that a
schedule award was not payable under FECA for injury to the spine13 or based on whole person
impairment.14 A claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originated in the spine.15 Appellant was
referred to Dr. Weigel, who found that the diagnosis of cervical strain under Table 17-2 of the
A.M.A., Guides did not constitute a ratable impairment because appellant showed no evidence of
spinal/peripheral nerve injury, cervical nerve injury or peripheral nerve involvement pursuant to
any of the relevant tables at Chapter 15, the section of the A.M.A., Guides utilized for rating
upper extremity impairments.
The Board notes that appellant has the burden to establish impairment to a scheduled
member caused by the accepted condition before any impairment due to a preexisting condition
can be assessed.16 The instant record is not sufficient to establish that appellant has an
impairment caused by his accepted neck, thoracic and lumbosacral strains. As Dr. Weigel
properly determined, appellant had no findings of spinal/peripheral nerve injury, cervical nerve
injury or peripheral nerve involvement sufficient to warrant an impairment rating for cervical
strain in her September 20, 2010 report. The Board will affirm OWCP’s March 25, 2011
decision.
Appellant may request a schedule award or increased schedule award based on evidence of
a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to a
scheduled member of his body causally related to his accepted neck, thoracic, lumbosacral and
muscle spasm conditions, thereby entitling him to a schedule award under 5 U.S.C. § 8107.

11

Pamela K. Guesford, 53 ECAB 726 (2002); see also George E. Williams, 44 ECAB 530 (1993) (a chiropractor
may only qualify as a physician in the diagnosis and treatment of spinal subluxation and his or her opinion is not
considered competent medical evidence in evaluation of other disorders, including those of the extremities, although
these disorders may originate in the spine); see also M.E., Docket No 10-2277 (issued June 13, 2011).
12

See 5 U.S.C. § 8101(2).

13

Pamela J. Darling, 49 ECAB 286 n.7 (1998).

14

N.M., 58 ECAB 273 n.9 (2007).

15

Thomas J. Engelhart, 50 ECAB 319 n.8 (1999).

16

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Charlotte, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1668
Issued: March 4, 2013

Case Submitted on the Record

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

JURISDICTION
On July 3, 2012 appellant filed a timely appeal of the May 18, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). He also appealed a June 21, 2012
nonmerit decision of OWCP. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained a traumatic injury in the performance of duty; and (2) whether OWCP properly denied
his request for reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 8, 2012 appellant then a 31-year-old transportation security screener, filed a
Form CA-1 traumatic injury claim, alleging that he was injured when he fell while carrying a
bag. He stopped work on January 9, 2012.
Appellant was initially treated on January 8, 2012 by a physician’s assistant. He reported
falling at work and injuring his back, neck, left upper extremity and left lower extremity. The
physician’s assistant diagnosed elbow sprain and returned appellant to work with restrictions. In
an attending physician’s report dated January 8, 2012, he noted that appellant tripped and fell on
his left side and sustained a sprain of the elbow. The physician’s assistant checked a box “yes”
that appellant’s condition was caused or aggravated by work activity and returned appellant to
work with restrictions. In a January 8, 2012 duty status report, he diagnosed contusion and
sprain of the left elbow and advised that appellant could resume work. A January 8, 2012 x-ray
of the left elbow revealed no acute fracture. Appellant was treated by Dr. Mary K. Gentry, a
Board-certified family practitioner, on January 9, 2012 who noted that he was disabled from
January 9 to 14, 2012 due to medications and required bed rest. On January 17, 2012 he sought
treatment from Dr. Chad Weston, a Board-certified family practitioner, who noted that appellant
was disabled from January 15 to 22, 2012 and would undergo therapy.
On January 27, 2012 OWCP advised appellant of the type of evidence needed to establish
his claim. It particularly requested that he submit a physician’s reasoned opinion addressing the
relationship of his claimed condition and specific work factors.
Appellant submitted a January 23, 2012 return to work certificate from Dr. Weston who
noted that appellant was disabled on January 23, 2012 and could return to work on
January 29, 2012. In a January 26, 2012 work capacity evaluation, Dr. Weston diagnosed upper
back strain. He returned appellant to work with restrictions for four weeks and recommended
physical therapy. Also submitted were physical therapy notes.
On March 13, 2012 OWCP denied appellant’s claim on the grounds that the evidence
was insufficient to establish that a medical condition was diagnosed in connection with the
claimed work factor.
On March 27, 2012 appellant requested reconsideration. By decision dated April 9,
2012, OWCP denied his request for reconsideration on the grounds that the evidence submitted
was insufficient to warrant a merit review.
On April 18, 2012 appellant requested reconsideration and submitted additional medical
evidence. In a January 9, 2012 report, Dr. Gentry treated appellant for neck stiffness and left leg
and arm soreness after a work-related fall on January 8, 2012. Appellant reported falling off a
one foot platform while at work and landing on the left side of his body. Dr. Gentry noted
tenderness over the right trapezius and diagnosed cervicalgia, sprain/strain of the ribs and pain in
the joint, multiple sites secondary to a fall. She advised appellant was disabled for one week and
then could return to full duty. A January 17, 2012 report from Dr. Weston noted appellant’s
treatment for neck pain, soreness and residual lower back pain. Appellant reported falling off a
one foot platform at work a week earlier and later having back pain and left shoulder pain.
Dr. Weston noted tenderness over the right trapezius and mild residual tenderness and spasm to
2

the lower paravertebrals. He diagnosed joint pain in multiple sites secondary to fall, cervicalgia
and lower back pain. Dr. Weston noted that appellant was off work for one week and
recommended physical therapy. On January 23, 2012 he noted appellant had persistent pain in
the upper and lower back which was aggravated by prolonged standing and sitting. Dr. Weston
noted tenderness over the right trapezius and mild residual tenderness and spasm to the lower
paravertebrals. He diagnosed pain in the joint, multiple sites secondary to fall, cervicalgia and
lower back pain.
In a decision dated May 18, 2012, OWCP denied the claim on the grounds that the
medical evidence was insufficient to establish that the diagnosed condition was causally related
to the work incident.
On June 1, 2012 appellant requested reconsideration and submitted additional medical
evidence. He submitted a May 31, 2012 report from Dr. Weston who treated appellant for neck
stiffness and generalized pain. Dr. Weston noted that appellant fell off a one foot platform and
complained of soreness in the neck, left leg and left arm. He diagnosed cervicalgia and lower
back pain and returned appellant to light-duty work.
By decision dated June 21, 2012, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
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
of FECA, 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 is causally related to the
employment injury. 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.2
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.3 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. 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.4

2

Gary J. Watling, 52 ECAB 357 (2001).

3

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

4

Id.

3

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 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.6
ANALYSIS -- ISSUE 1
It is not disputed that appellant worked as a transportation security screener and that on
January 8, 2012, he fell from a one foot platform onto his left side. However, appellant has not
submitted sufficient medical evidence to establish that his diagnosed conditions are causally
related to the January 8, 2012 work incident. On January 27, 2012 OWCP advised appellant of
the type of medical evidence needed to establish his claim. Appellant did not submit a
rationalized medical report from a physician sufficiently explaining how the January 8, 2012
incident caused or aggravated a diagnosed medical condition.
Appellant submitted a January 17, 2012 report from Dr. Weston who diagnosed pain in
the joint, multiple sites secondary to fall, cervicalgia and lower back pain. He reported falling
off a one foot platform at work a week earlier and subsequently experiencing back pain and left
shoulder pain. Similarly in a January 23, 2012 report, Dr. Weston noted that appellant presented
with persistent pain in the upper and lower back and diagnosed pain in the joint, multiple sites
secondary to fall, cervicalgia and lower back pain. The Board finds that, although he supported
causal relationship by noting appellant’s diagnosed conditions were secondary to a fall, he did
not provide medical rationale explaining the basis of his conclusory opinion regarding the causal
relationship between appellant’s diagnosed conditions and the employment incident.7 Return to
work certificates from Dr. Weston dated January 17 and 23, 2012 noted that appellant was
disabled from January 15 to 29, 2012 and would be undergoing physical therapy. Similarly, in a
January 26, 2012 work capacity evaluation he diagnosed upper back strain and returned appellant
to work with restrictions. However, these notes are insufficient to establish the claim as
Dr. Weston did not provide a history of injury or specifically address whether appellant’s
employment activities had caused or aggravated a diagnosed medical condition.8
A January 9, 2012 report from Dr. Gentry noted treating appellant for neck stiffness and
left leg and arm soreness after he fell from a platform at work and landed on the left side of his
body on January 8, 2012. Dr. Gentry diagnosed cervicalgia, sprain/strain of the ribs and joint
5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Id.

8

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

pain in multiple sites secondary to a fall and was disabled for one week. The Board finds that,
although she supported causal relationship, she did not provide medical rationale explaining the
basis of her opinion regarding the causal relationship between the diagnosed conditions and the
workplace fall. Dr. Gentry did not explain the process by which falling off a platform would
cause or aggravate the diagnosed conditions. A January 9, 2012 return to work certificate from
her, which noted appellant was disabled for a period, is insufficient as it did not address the
cause of appellant’s disability.
Appellant submitted reports from a physician’s assistant dated January 8, 2012 and a
physical therapist. However, this evidence is of no probative medical value as the Board has
held that physician’s assistants and physical therapists are not competent to render a medical
opinion under FECA.9
The remainder of the medical evidence, including an x-ray of the left elbow dated
January 8, 2012 fail to provide an opinion on the causal relationship between appellant’s job and
his diagnosed cervical condition. For this reason, this evidence is not sufficient to meet
appellant’s burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.10 Appellant failed to submit such evidence and OWCP
therefore properly denied his claim for compensation.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,11 OWCP has the discretion to reopen a case for review
on the merits. OWCP must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provides that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
10

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

11

5 U.S.C. § 8128(a).

5

“(2) Advances a relevant legal argument not previously considered by (OWCP);
or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”12
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.13
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for a traumatic injury on the grounds that the evidence
submitted was insufficient to establish that appellant sustained a back, upper torso, left leg, left
shoulder and forearm injury in the performance of duty. It denied his June 1, 2012
reconsideration request, without a merit review. The issue is whether appellant met any of the
requirements of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the
merits of the claim.
In his June 1, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. A claimant may be entitled to a merit review by submitting new and
relevant evidence.
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by OWCP, appellant submitted a May 31, 2012 report from Dr. Weston,
who treated appellant for neck stiffness and generalized pain. Dr. Weston noted that appellant
fell off a one foot platform at work and complained of soreness in the neck, left leg and left arm.
He diagnosed cervicalgia and lower back pain. The Board notes that this report, while new, is
similar to Dr. Weston’s prior report dated January 17, 2012 which was previously considered by
OWCP in its decision dated May 18, 2012 and found to be insufficient. Therefore, this report is
insufficient to require OWCP to reopen the claim for a merit review.14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

12

20 C.F.R. § 10.606(b)(2).

13

Id. at § 10.608(b).

14

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).

6

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
claimed conditions were causally related to his employment. The Board further finds that
OWCP properly denied appellant’s request for reconsideration.15
ORDER
IT IS HEREBY ORDERED THAT the June 21 and May 18, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 4, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

15

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1338
Issued: October 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 21, 2014 appellant filed a timely appeal from the December 16, 2013 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’s left thumb arthritis and bilateral carpal tunnel syndrome
are causally related to his federal employment.
FACTUAL HISTORY
On October 31, 2013 appellant, a 45-year-old rural mail carrier, filed an occupational
disease claim alleging that his carpal tunnel syndrome was the result of his federal employment.

1

5 U.S.C. § 8101 et seq.

He indicated that he first became aware of his condition and that it may be causally related to his
employment, on January 31, 2013.
Appellant stated that he worked as a carrier from 1994 to 2007. After injuries in other
cases, he helped in the office from 2007 to 2010. On September 21, 2010 the employing
establishment removed appellant from those duties and sent him home, as productive work was
no longer available for him. Appellant finished his Business Administration degree. While in
his first semester, which was the spring of 2011, he had some problems with his neck and mostly
his left hand. Appellant stated that it was while having an electromyogram for his neck that his
bilateral carpal tunnel syndrome was identified. He stated that for years he had problems with
his hands falling asleep.
Dr. Scott M. Wein, a Board-certified orthopedic surgeon specializing in surgery of the
hand, saw appellant on October 16, 2013 for evaluation of bilateral hand numbness and left hand
pain. Appellant was also treated by another physician for carpal tunnel syndrome. An
electrodiagnostic study in January 2013 showed a moderate degree of median neuropathy on the
left, mild on the right. Dr. Wein noted that appellant was formerly employed as a rural mail
carrier and had been out of work since 2010. Appellant was also treated for bilateral shoulder
problems with surgery. He had intermittent numbness and tingling in the forearm and hands
bilaterally for 10 years or so. Appellant also complained of pain along the base of his left thumb.
Dr. Wein noted that appellant’s job had entailed quite a bit of lifting packages and such with his
left hand. Appellant’s paresthesias were aggravated by driving, and as a mail carrier, he drove
up to five hours a day.
X-rays showed moderate arthritic changes to the left thumb carpometacarpal (CMC)
joint. Carpal tunnel compression test was positive bilaterally. Dr. Wein diagnosed left thumb
CMC joint arthritis and bilateral carpal tunnel syndrome. He remarked: “I do think that his
former occupation as a mail carrier, which requires prolonged driving and repetitive hand use for
sorting and such, would predispose him to both conditions.”
In a decision dated December 16, 2013, OWCP denied appellant’s occupational disease
claim. Appellant indicated that he first became aware of his condition on January 31, 2013,
almost three years after he stopped working. He noticed problems with his neck and mostly his
left hand after being sent home and while he was completing his business degree. Dr. Wein
believed that employment as a rural carrier may have predisposed appellant, but he did not
address intervening events, such as completing his degree and not having worked in three years.
OWCP therefore found that appellant had not established the element of performance of duty.
The evidence was insufficient to establish that the claimed injury arose in the course of federal
employment and within the scope of compensable factors.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
2

5 U.S.C. § 8102(a).

2

employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue,4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty,6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
ANALYSIS
OWCP has denied appellant’s occupational disease claim because the evidence was
insufficient to establish that the claimed injury arose in the course of federal employment. It
based this finding on evidence that, notwithstanding the duties appellant performed as a rural
mail carrier through 2007 and in his limited-duty assignment through 2010, he did not become
symptomatic in his neck or left hand until approximately six months after he was sent home and
was thus no longer exposed to the implicated employment factors. It was not until January 2013,
when he underwent an EMG for his neck pain, that his bilateral carpal tunnel syndrome was
identified.
As OWCP does not dispute the duties appellant performed in his federal employment, he
has met his burden to establish that he experienced a specific event, incident or exposure
occurring at the time, place and in the manner alleged. The question that remains is whether
those work activities caused the left thumb arthritis and bilateral carpal tunnel syndrome for
which he seeks compensation.
There is only one medical report that addresses the issue. When he saw appellant on
October 16, 2013, Dr. Wein, the attending orthopedic surgeon, noted that appellant was formerly
employed as a rural mail carrier and had been out of work since 2010. He noted that appellant’s
job entailed quite a bit of lifting packages and such with his left hand. Appellant’s paresthesias
were aggravated by driving, and as a mail carrier, he drove up to five miles a day. It was
Dr. Wein’s opinion that appellant’s former occupation, which required prolonged driving and
repetitive hand use for sorting and such, would predispose him to both left thumb CMC joint
arthritis and bilateral carpal tunnel syndrome.
3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

3

Dr. Wein supported appellant’s occupational disease claim, but failed to explain how
lifting packages or driving or sorting mail could have caused arthritis or carpal tunnel syndrome.
He did not point to any evidence in the record that convinced him the activities appellant
performed as a rural mail carrier until 2007 had, in fact, caused the current conditions.
Sound medical reasoning is particularly needed in this regard, as it appears from
appellant’s statements that he was not actually symptomatic with neck or hand pain until the
spring of 2011, about four years after he last worked as a carrier. During his first educational
semester that year, as he pursued his business degree, he had some problems with his neck and
mostly his left hand. It was in January 2013, while having an electromyogram for his neck, that
appellant’s bilateral carpal tunnel syndrome was identified. Dr. Wein did not explain how, the
diagnosed condition was related to employment duties nor did he address nonwork activities in
the intervening period which could have been causative. He did not address, for instance,
whether appellant’s pursuit of a degree involved the repetitive use of his hands for typing.
Dr. Wein’s opinion is insufficient. The temporal relationship between the duties
appellant performed as a carrier until 2007, or the duties he performed in his limited-duty
assignment until 2010, and the later expression of his diagnosed conditions is not sufficient to
establish causal relationship. The Board finds that Dr. Wein’s opinion lacks the sound medical
reasoning required by the circumstances of the case to establish this critical element.
Accordingly, the Board finds that appellant has not met his burden of proof. The Board affirms
OWCP’s December 16, 2013 decision denying his occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that his left thumb
arthritis and bilateral carpal tunnel syndrome are causally related to his federal employment.

4

ORDER
IT IS HEREBY ORDERED THAT the December 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
DEPARTMENT OF THE ARMY, MONTCRIEF
ARMY HOSPITAL, Fort Jackson, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1230
Issued: June 8, 2020

Case Submitted on the Record

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

JURISDICTION
On June 1, 2018 appellant filed a timely appeal from an April 10, 2018 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.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective April 10, 2018, as she no longer had residuals or
disability causally related to her accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On May 20, 2002 appellant, then a 40-year-old medical records clerk, filed a traumatic
injury claim (Form CA-1) alleging that on May 14, 2002 she experienced burning in her nasal
passages after inhaling fumes from a stained door and perfume from coworkers while in the
performance of duty. OWCP accepted the claim for a temporary aggravation of chronic chemical
irritant contact dermatitis. It subsequently expanded acceptance of the claim to include an
aggravation of allergic rhinitis. Appellant stopped work on May 14, 2002 and returned to work on
May 16, 2002. On August 9, 2002 she stopped work.
By decision dated February 5, 2010, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective February 13, 2010.
By decision dated July 1, 2011, the Board reversed OWCP’s February 5, 2010 decision.4
The Board found that OWCP had not met its burden of proof to terminate appellant’s compensation
benefits effective February 13, 2010 as a conflict in medical opinion existed between Dr. David
Amrol, a Board-certified pulmonologist and OWCP referral physician, who found that she could
resume successful employment in an environment in which there were no excessive irritant
exposures, and Dr. Billy J. Lance, Board-certified in family medicine and her treating physician,
who opined that she continued to have significant residuals of her work-related injury and was
totally disabled.
Commencing November 20, 2011, OWCP paid appellant wage-loss compensation on the
periodic rolls.
On February 24, 2016 OWCP referred appellant to Dr. Gregg J. Colle, a Board-certified
dermatologist, for a second opinion examination regarding the status of her employment-related
conditions.5
3

Docket No. 10-2012 (issued July 1, 2011).

4

Id.

5

In a report dated June 1, 2012, Dr. James Atkinson, a Board-certified dermatologist and OWCP referral physician,
diagnosed chronic rhinitis, pruritus. He indicated that he found no specific objective findings to support disabling
residuals; however, by history he believed that this condition had not resolved as appellant was sensitive to skin
contacts and her rash is likely to recur upon reexposure. Dr. Atkinson advised that she was likely to be exposed to
cleaning agents, colognes, perfumes, and other odors beyond the employing establishment’s control. He opined that
appellant was totally disabled from her date-of-injury position.

2

In a March 14, 2016 report, Dr. Colle reviewed appellant’s history of injury and noted that
she had experienced periodic pruritus over the prior 10 years that she attributed to exposure at
work to photographic developing chemicals and other scents. He noted that she was currently
asymptomatic with no rashes or pruritus. Dr. Colle found no current employment-related
pathology based on appellant’s lack of symptoms or clinical findings. In a work capacity
evaluation for cardiovascular and pulmonary conditions (Form OWCP-5b) of even date, he
indicated that appellant was able to perform her usual job without restriction. In a supplemental
report dated June 4, 2016, Dr. Colle opined that her skin condition had resolved and that she could
resume her usual employment.
In a report dated September 19, 2016, Dr. Lance discussed appellant’s history of
employment exposure to chemicals used to develop x-rays as well as other chemicals and cleaning
agents. He noted that “[Appellant] was chronically exposed by inhalation and dermal contact;
[appellant] continues to have bronchospasms and respiratory inflammations when exposed to
chemicals.” Dr. Lance found that she had “chronic sinusitis, tinnitus, vertigo, allergic rhinitis,
non-allergic rhinitis,” and gastroesophageal reflex disease. He opined that appellant’s residual
symptoms resulted from exposure to chemicals in the workplace. Dr. Lance noted that she had
attempted to perform clerical work, but was unsuccessful as she continued to be exposed to dust,
fumes, and other environmental irritants. He advised that a prior physician had diagnosed chronic
rhinitis and pruritus and indicated that there was no treatment for contact dermatitis “other than
avoidance or treatment as it occurs.” Dr. Lance opined that she had been treated by various
professionals and that her diagnoses were chronic rhinitis, chronic sinusitis, vertigo, tinnitus,
gastroesophageal reflux disease, pruritus, and joint pain. He further opined that appellant was
totally disabled from work due to workplace exposure to chemicals that “significantly inhibit[ed]
her ability to perform daily activities.”
On February 9, 2017 OWCP determined that a conflict in medical opinion existed between
Dr. Lance and Dr. Colle and referred appellant to Dr. James Seward, a Board-certified
dermatologist, for an impartial medical examination. It prepared a statement of accepted facts
(SOAF), noting that she had five established employment-related exposures to flumes, odors,
and/or chemicals from May 2001 to May 2002.6
In a report dated March 1, 2017, Dr. Seward reviewed appellant’s history of injury and her
current complaints of pain in her joints, dry eyes, weakness, and gastrointestinal issues. On
examination he found mild dry skin on the hands, face, and body, but no dermatitis. Dr. Seward
diagnosed contact dermatitis by history with no current evidence of the disease.
In a report dated March 15, 2017, Dr. Seward opined that appellant had mild dry skin on
examination due to low humidity without any dermatitis or skin disease. He concluded that she
had no objective findings of an active skin disease requiring further treatment and that any past
6

In the SOAF, OWCP noted that appellant had five documented chemical exposure incidents: from May to
June 2001 she was exposed to paint fumes, which caused the condition of paint fume inhalation. On May 22, 2001
appellant was exposed to noxious odors while the mammography room was painted, on December 13, 2001 she was
exposed to chloroform from a spill in the employees work area, on April 2, 2002 she was exposed to odors related to
the draining of a sprinkler system, on April 22, 2002 she was exposed to perfume fumes in her work area, and on
May 14, 2002 she was exposed to fumes from paint stain applied to a door in the medical records area.

3

contact dermatitis had resolved. Dr. Seward opined that appellant could work without limitations
from a dermatologic standpoint.
On April 4, 2017 OWCP referred appellant to Dr. Emeka M. Eziri, a Board-certified
pulmonologist, for a second opinion examination.
In an April 25, 2017 report, Dr. Eziri reviewed appellant’s history of injury and discussed
her current complaints of “progressive fatigue and weakness….” On examination he found no
rales, rhonchi, or wheezing, and normal respiratory effort. Dr. Eziri performed a pulmonary
function test (PFT) which demonstrated moderate restrictive lung disease. He diagnosed
bronchitis and pneumonitis as a result of exposure to chemicals, gas, fumes, and vapors, as well
as occupational exposure to toxic agents in other industries, Sicca syndrome with lung
involvement, and an abnormal PFT revealing moderate restrictive lung disease. Dr. Eziri noted
that appellant had a “paucity of pulmonary complaints” and recommended a gastrointestinal and
rhematological evaluation. In a Form OWCP-5b of even date, he indicated that appellant was
unable to perform her usual job.
On July 24, 2017 OWCP requested that Dr. Eziri address whether appellant was capable
of performing her regular job and describe the physical limitations, if any, resulting from the
accepted employment-related exposure. It also requested that he discuss whether appellant’s
gastrointestinal or rheumatological conditions were related to the work event of May 14, 2002.
In a supplemental report dated August 9, 2017, Dr. Eziri summarized his April 25, 2017
report, noting that since that there was a scarcity of pulmonary complaints he had recommended a
gastrointestinal and rheumatological workup. He opined that appellant’s gastrointestinal and
rhematological complaints were unrelated to her accepted employment injury. In an
accompanying OWCP-5b, Dr. Eziri found that she could perform her usual job without
restrictions.
On September 29, 2017 Dr. Lance noted that appellant had a history of exposure at work
to darkroom chemicals and other chemicals and cleaning agents and that she “continued to have
bronchospasms and respiratory inflammations when exposed to chemicals.” He diagnosed
connective tissue disease, chronic sinusitis, tinnitus, vertigo, allergic rhinitis, and nonallergic
rhinitis and opined that the residual symptoms were the result of exposure to chemicals in the
workplace. Dr. Lance found that appellant was totally disabled from work.
In an October 25, 2017 letter, OWCP advised appellant that it proposal to terminate her
wage-loss compensation and medical benefits because she no longer had residuals of her accepted
employment injury. It afforded her 30 days to submit additional evidence and argument if she
disagreed with the proposed termination.
In response, appellant resubmitted reports previously of record and the results of diagnostic
testing dated November 12, 2006 and March 22, 2011.
On May 27, 2016 and January 20, 2017 Dr. Lance treated appellant for coughing, chest
congestion, and wheezing. He diagnosed allergic rhinitis, cough, and maxillary sinusitis. In
reports dated March 28 and May 12, 2017, Dr. Lance diagnosed conjunctivitis in the right eye,
back pain, and fatigue.
4

In an August 7, 2017 report, Dr. Annette W. Lynn, a Board-certified dermatologist, treated
appellant for bumps on her cheeks, around mouth and chin that was very itchy. She diagnosed
contact dermatitis.
On November 3, 2017 appellant challenged the proposed termination of her wage-loss
compensation and medical benefits. She asserted that there were discrepancies and contradictions
in OWCP’s referral physician reports and these physicians were influenced by OWCP. Appellant
advised that the opinions of her treating physicians should be given greater weight than the second
opinion and referee physicians who only saw her one time and provided superficial opinions. She
provided a summary of her medical care since 2002 and asserted that her accepted injury/illness
continued and had resulted in systemic connective tissue disorder.
By decision dated April 10, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date, finding that the opinions of Dr. Seward
and Dr. Eziri constituted the weight of the medical evidence and established that she had no further
disability or need for medical treatment causally related to the accepted May 14, 2002 employment
injury.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
modification or termination of benefits.7 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment.8 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.9 The right to medical benefits for an accepted
condition is not limited to the period of entitlement to compensation for disability.10 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.11
Section 8123(a) of FECA12 provides that if there is disagreement between the physician
making the examination for OWCP and the employee’s physician, the Secretary shall appoint a
third physician, known as a referee physician or impartial medical specialist, who shall make an
examination.13 This is called a referee examination and OWCP will select a physician who is

7

M.M., Docket No. 17-1264 (issued December 3, 2018); Curtis Hall, 45 ECAB 316 (1994).

8

E.B., Docket No. 18-1060 (issued November 1, 2018); Jason C. Armstrong, 40 ECAB 907 (1989).

9

See G.H., Docket No. 18-0414 (issued November 1, 2018); Del K. Rykert, 40 ECAB 294-96 (1988).

10
L.W., Docket No. 18-1372 (issued February 27, 2019); Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas
Olivarez, Jr., 32 ECAB 1019 (1981).
11

R.P., Docket No. 18-0900 (issued February 5, 2019); Calvin S. Mays, 39 ECAB 993 (1988).

12

5 U.S.C. § 8123(a).

13

Id. at 8123(a); L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

5

qualified in the appropriate specialty and who has no prior connection with the case.14 Where
there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial specialist for the purpose of resolving conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.15
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to medical benefits effective April 10, 2018 for the accepted
condition of contact dermatitis. The Board further finds, however, that it has not met its burden
of proof to terminate her wage-loss compensation for the accepted condition of an aggravation of
allergic rhinitis.
Regarding the accepted condition of contact dermatitis, on prior appeal, the Board found
that OWCP had not met its burden of proof to terminate appellant’s wage-loss compensation and
medical benefits effective February 13, 2010. It found that a conflict in medical opinion existed
between Dr. Amrol, an OWCP referral physician, and Dr. Lance, her attending physician,
regarding whether she had continuing disability and residuals of her accepted employment injury.
Following the Board’s reversal, OWCP referred appellant to Dr. Colle for a second opinion
examination. On March 14, 2016 Dr. Colle determined that she had no further employmentrelated skin condition based on her lack of symptoms or clinical findings. On September 19, 2016
Dr. Lance found that appellant had residual symptoms and disability. OWCP properly found a
conflict between Dr. Colle and Dr. Lance and referred her to Dr. Seward, a Board-certified
dermatologist, for an impartial medical examination.
In situations where there exists a conflict in the medical evidence and the case is referred
to an impartial medical examiner (IME) for the purpose of resolving the conflict, the opinion of
the IME, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.16
The Board finds that Dr. Seward’s opinion is entitled to the special weight of the evidence
regarding the accepted condition of a temporary aggravation of chronic chemical irritant contact
dermatitis. On March 1, 2017 Dr. Seward noted that appellant complained of dry eyes, weakness,
and gastrointestinal problems. He found mild dry skin without dermatitis on examination. On
March 15, 2017 Dr. Seward attributed appellant’s dry skin to low humidity and opined that she
had no residuals of her accepted condition of contact dermatitis. He provided rationale for his
opinion by explaining that she had no objective findings demonstrating an active skin condition or
dermatitis. The Board finds that Dr. Seward’s opinion, which is well rationalized and based upon
a proper factual and medical history, constitutes the special weight of the medical evidence on the
14

20 C.F.R. § 10.321.

15

D.G., Docket No. 19-1259 (issued January 29, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
Gloria J. Godfrey, 52 ECAB 486 (2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).
16

Id.

6

issue of whether appellant has continuing residuals or disability causally related to her temporary
aggravation of chronic chemical irritant contact dermatitis.17
On August 7, 2017 Dr. Lynn evaluated appellant for itchy skin and bumps on her cheeks,
around her mouth and on her chin. She diagnosed contact dermatitis, but did not note any residuals
or disability due to this condition. Therefore, Dr. Lynn’s opinion is of no probative value and is
insufficient to overcome the special weight afforded to the opinion of Dr. Seward.18
Regarding the accepted condition of an aggravation of allergic rhinitis, the Board finds that
OWCP has not met its burden of proof to terminate appellant’s wage-loss compensation and
authorization for medical benefits.
OWCP referred appellant to Dr. Eziri, a Board-certified pulmonologist, for a second
opinion regarding whether she had disability or residuals of her aggravation of allergic rhinitis. In
an April 25, 2017 report, Dr. Eziri found that objective testing showed moderate restrictive lung
disease with variable upper airway obstructive physiology. He diagnosed bronchitis and
pneumonitis as a result of exposure to chemicals, gas, fumes, and vapors, occupational exposure
to toxic agents in other industries, Sicca syndrome with lung involvement, and moderate restrictive
lung disease. In a supplemental report dated August 9, 2017, Dr. Eziri indicated that appellant’s
current complaints, which were gastrointestinal and rheumatological in nature, were unrelated to
the accepted employment injury and opined that she could resume her usual employment.
In a report dated September 29, 2017, Dr. Lance discussed appellant’s history of exposure
to chemicals and cleaning agents at work. He diagnosed connective tissue disease, chronic
sinusitis, tinnitus, vertigo, allergic rhinitis, and nonallergic rhinitis. Dr. Lance opined that
appellant had residuals of her accepted workplace exposure to chemicals and remained totally
disabled from work.
The Board finds that a conflict in medical opinion exists between Dr. Eziri, an OWCP
referral physician, and Dr. Lance, appellant’s physician, regarding whether she has continuing
disability or residuals of the accepted condition of an aggravation of allergic rhinitis. Section 8123
of FECA provides that, if there is a disagreement between the physician making the examination
for the United States and the employee’s physician, OWCP shall appoint a third physician who
shall make an examination.19 OWCP should have resolved the conflict in medical opinion before
terminating her wage-loss compensation and medical benefits.20 As OWCP failed to resolve the
conflict in medical opinion evidence, the Board finds that it has not met its burden of proof to
terminate appellant’s wage-loss compensation and authorization for medical treatment for the
accepted condition of an aggravation of allergic rhinitis.

17

See L.C., Docket No. 18-1759 (issued June 26, 2019); D.M., Docket No. 17-1052 (issued January 24, 2019).

18

L.S., Docket No. 19-0959 (issued September 24, 2019).

19

5 U.S.C. § 8123(a).

20

R.C., Docket No. 18-0463 (issued February 7, 2020); A.E., Docket No. 18-0891 (issued January 22, 2019).

7

CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective April 10, 2018 for the accepted condition of a
temporary aggravation of chronic chemical irritant contact dermatitis. The Board further finds that
OWCP has not met its burden of proof to terminate her entitlement to wage-loss compensation and
medical benefits for the accepted condition of an aggravation of allergic rhinitis.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part.
Issued: June 8, 2020
Washington, DC

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

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

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

8