United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
CENTRAL ALABAMA HEALTHCARE
SYSTEM, Montgomery, AL, Employer
__________________________________________

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Appearances:
John S. Bennett, for the appellant
Office of Solicitor, for the Director

Docket No. 10-109
Issued: August 11, 2010

Case Submitted on the Record

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

JURISDICTION
On October 14, 2009 appellant filed a timely appeal from a September 3, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
This case has previously been before the Board. In a May 8, 2009 decision, the Board
affirmed in part the Office’s denial of appellant’s emotional condition claim finding that the
claimed employment factors alleged by appellant and considered by the Office were not

compensable.1 The Board found that the Office failed to review appellant’s allegations
pertaining to drawings and comments by coworkers or evidence and arguments pertaining to
Phillip Knight, a retired pharmacy chief. The Board remanded the case to the Office for a
determination as to whether these additional allegations constituted compensable factors of
employment. The facts of the prior Board decision are incorporated herein by reference.
In a March 17, 2007 statement, appellant alleged that several insulting and derogatory
comments were made about him while the front of the pharmacy was under construction. He
stated that someone drew a valentine heart that stated, “Brenda loves Tom C.” Appellant found
this humiliating and disturbing because his wife could see this from a pick-up window in front of
the pharmacy. He stated that the valentine heart remained up for several months even though he
told his supervisor it was offensive. Appellant’s supervisor finally marked it out on
December 22, 2006. Appellant advised that another drawing showed him looking at his watch
with the caption, “What time is it?” He found the drawing offensive and derogatory as it
insinuated that he was always gone. On December 13, 2006 another pharmacist, Phelicia Bush,
made a derogatory comment about appellant when she stated, “I would ask [appellant] to do it
but he would say, Oh! My blood pressure is too high!” Appellant submitted photographs of the
drawing. His representative argued that the drawing embarrassed and belittled appellant and
remained in view for months after he complained about them. Appellant’s representative
contended this was objective evidence of a hostile work environment. It was also argued that the
employing establishment did not deny appellant was exposed to drawings in the workplace or
took timely action to remove the drawings. Appellant’s representative argued that allowing such
drawings to be displayed for an unnecessary length of time was error.
Appellant also alleged that Mr. Knight repeatedly returned to the restricted pharmacy
area even though he had retired. He stated that having Mr. Knight in his work area made the
work environment hostile. Mr. Knight stood behind him in his personal work space and harassed
him on May 14 and December 23, 2005, October 31, 2006 and January 10, 2007. Appellant
alleged that Mr. Knight had never been informed that he had to sign in as a guest of the
pharmacy. He alleged that Mr. Knight threatened him with 14-inch scissors and he experienced
stress when he found out that Mr. Knight had five loaded guns on federal property. Appellant
provided a visitor log which noted Mr. Knight came to the pharmacy on October 31, 2006 at
9:45 a.m. No time out time was indicated. In a handwritten note, appellant indicated that
Mr. Knight came into the pharmacy at 3:00 p.m. on January 10, 2007 and he went to the line
away from Mr. Knight.
In an undated statement received on March 25, 2008, Marilynn Wallace, a supervisor,
noted that the drawings on the temporary wall were of various persons in the pharmacy and were
not malicious. The one which said “Brenda loves Tom C or Tom Cruise” was marked out when
appellant mentioned that it bothered him. Ms. Wallace also indicated that Mr. Knight frequently
visited the pharmacy to see how the ScriptPro machine worked. She indicated the person who
1

Docket No. 08-2015 (issued May 8, 2009). With respect to appellant’s allegations pertaining to Mr. Knight, the
Board addressed why appellant’s allegations pertaining to Mr. Knight were insufficient to establish error or abuse
with polices and procedures of the employing establishment regarding sign in procedures. The Board also found
that appellant failed to establish a factual basis for his claim of harassment or discrimination by Mr. Knight and the
employing establishment was under no obligation to make any special accommodations, as the present claim is
based on exposure to new employment factors and is separate from file number xxxxx997.

2

let him in must have forgotten to make him sign in. Ms. Wallace did not recall any contact
between Mr. Knight and appellant.
In a decision dated September 3, 2009, the Office denied modification of its previous
decisions. It found that appellant did not establish compensable factors of employment as his
statements did not show that the employing establishment erred or acted abusively or subjected
him to harassment or discrimination. The Office found that the photographs of drawings were
not offensive or ill-intended.
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 illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.2 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.3
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.4 Where the evidence
demonstrates that the employing establishment either erred or acted abusively in discharging its
administrative or personnel responsibilities, such action will be considered a compensable
employment factor.5
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.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
2

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

3

Id.

4

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

5

Kim Nguyen, 53 ECAB 127 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
6

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

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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.7 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim, but rather, must be corroborated by the
evidence.8 Mere perceptions and feelings of harassment will not support an award of
compensation.9
ANALYSIS
Appellant attributed his emotional condition to Mr. Knight, the retired chief of pharmacy,
being allowed into the restricted pharmacy area and to drawings and comments by coworkers
which he found were a source of embarrassment. These allegations do not relate to appellant’s
performance of his regular or specially assigned duties under Cutler. Instead, they relate to
administrative matters, his desire to work in a particular environment and his perceptions of
unfair treatment or harassment.
Allegations relating to administrative or personnel matters are unrelated to the
employee’s regular or specially assigned-work duties and do not generally fall within the
coverage of the Act.10 The Board has held, however, that an administrative or personnel matter
will be considered an employment factor where the evidence discloses error or abuse on the part
of the employing establishment. In determining whether the employing establishment erred or
acted abusively, the Board has examined whether the employer acted reasonably.11 Appellant
has not shown that his employer’s decision to allow drawings on a temporary wall or its allowing
Mr. Knight to visit at the pharmacy was unreasonable. The statement from Ms. Wallace supports
that the drawings were temporary and that the one to which appellant objected was marked out
when he mentioned that it bothered him. She noted that it could be construed as not directed at
appellant. Ms. Wallace acknowledged that Mr. Knight frequently visited the employing
establishment to see how a piece of equipment worked. She did not recall any contact between
appellant or Mr. Knight. The Board finds that these administrative matters do not rise to the
level of compensable employment factors. The employer provided a reasonable explanation for
Mr. Knight’s presence and it noted that the drawings were temporary and that it took appropriate
action when appellant voiced an objection. The photographs of the drawings do not reflect
anything demeaning or offensive specifically towards appellant.
Appellant also alleges that these matters show that he was subjected to a hostile work
environment and harassment, retaliation and improper treatment by management with respect to
7

Id.

8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
9

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

10

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB 450 (1999).
11

See Richard J. Dube, 42 ECAB 916, 920 (1991).

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being exposed to drawings on the employer’s wall and comments made by coworkers, which he
considered to be a source of embarrassment.12 He stated that he found the drawing of the
valentine heart which stated “Brenda loves Tom C” very humiliating and disturbing and that it
took several months for his supervisor to mark it out. Appellant stated that the drawing of him
looking at his watch was very insinuating because it was not true that he was always gone.
However, these appear to be his perceptions regarding the drawings. The evidence of record
does not establish that the drawings were demeaning or disrespectful toward appellant.13 As
noted, when appellant objected to one of the drawings, the employer marked it out. The Board
finds that appellant’s reaction to the drawings is self-generated and not a compensable factor of
employment.
The Board finds that the statement attributed to Ms. Bush on December 13, 2006, that she
would not ask appellant to do a task because he would say his blood pressure was too high, does
not constitute verbal abuse under the Act. There is no evidence that Ms. Bush made such a
comment to appellant. Appellant has submitted no evidence, such as witness statements, to
establish his allegation as factual. General allegations that he was treated disrespectfully are
insufficient to establish that harassment did, in fact, occur. While the Board has recognized the
compensability of verbal abuse in certain situations, this does not imply that every statement
uttered in the workplace will give rise to coverage under the Act.14 The Board finds that this
allegation is not factually established as alleged.15 Appellant has not established a compensable
employment factor with respect to these allegations.
The majority of appellant’s allegations pertaining to Mr. Knight were addressed in the
Board’s prior decision. Appellant has since alleged that Mr. Knight stood behind him in his
personal space, threatened him with 14 inch long scissors; and that Mr. Knight had five loaded
guns on federal property. The record supports that Mr. Knight entered the pharmacy area after
he retired; but there is no evidence to support appellant’s allegations that Mr. Knight had stood in
his work space. Appellant noted only that he moved to another work area away from
Mr. Knight. There is also no evidence to support his allegations that Mr. Knight ever threatened
him with scissors or had firearms on federal property. Appellant has failed to establish a factual
basis for his allegations of harassment with probative and reliable evidence.16 The evidence

12

For harassment or discrimination to give rise to compensable disability under the Act, there must be evidence
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. A
claimant must establish a factual basis for his or her allegations with probative and reliable evidence. The issue is
whether the claimant has submitted sufficient evidence under the Act to establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence. C.T., 60 ECAB ___ (Docket No. 08-2160,
issued May 7, 2009).
13

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007) (mere perceptions and feelings of
harassment or discrimination will not support an award of compensation; the claimant must establish such
allegations with probative and reliable evidence).
14

See Leroy Thomas, III, 46 ECAB 946, 954 (1995).

15

See Denis M. Dupor, 51 ECAB 482, 486 (2000).

16

See Mary J. Summers, 55 ECAB 730 (2004).

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instead suggests that appellant’s perceptions of harassment were self-generated and not
compensable under the Act.17
While appellant’s representative contends that the Office failed to address the additional
evidence and argument pertaining to Mr. Knight, the record does not support this. The Office’s
September 3, 2009 decision reflects that it considered the allegations as directed by the Board
and made appropriate findings. Appellant has not established a compensable employment factor
under the Act. He has not met his burden of proof to establish that he sustained an emotional
condition in the performance of duty.18
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 3, 2009 is affirmed.
Issued: August 11, 2010
Washington, DC

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

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

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

17

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

18

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496 (1992).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF THE ARMY,
TOBYHANNA ARMY DEPOT,
Tobyhanna, PA, Employer
__________________________________________

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

Docket No. 11-572
Issued: January 17, 2012

Case Submitted on the Record

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

JURISDICTION
On January 6, 2011 appellant filed a timely appeal from the July 28, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On November 4, 2009 appellant, then a 60-year-old sheet metal mechanic, filed a claim
for compensation alleging that he developed hearing loss due to his federal employment. He
1

5 U.S.C. § 8101 et seq.

became aware of his hearing loss on March 16, 2007 and realized it was causally related to his
employment on November 12, 2009. Appellant retired on February 28, 2009.
By letter dated December 10, 2009, OWCP advised appellant of the type of evidence
needed to establish his claim. It also requested that the employing establishment address the
sources of his noise exposure, decibel and frequency level, period of exposure and hearing
protection provided.
Appellant submitted a statement and noted that from 1985 to February 2009 he worked as
a sheet metal worker and progressed to a sheet metal mechanic leader. He noted being exposed
to noise from grinders, air and electric sanders, hand and air operated chisels, cut off saws,
circular saws, reciprocating saws and band and panel saws. Appellant noted working with punch
presses, air and electric drills, routers, riveters, nibblers, impact hammers, air cut off tools,
chippers, scalers and other tools required to perform sheet metal fabrication and sheet metal
structural repair. He noted being exposed to noise nine hours a day for 24 years. Appellant wore
earplugs for his hearing protection while driving forklifts and other motorized equipment.
Appellant was treated by Dr. John Bosi, an osteopath and family practitioner, on
September 16, 2009, for gradual hearing loss. He reported a history of loud noise exposure at
work where he was a sheet metal worker and was exposed to noise for 24 years. Dr. Bosi noted
examination of the head, ears, nose and throat. He diagnosed sensorineural hearing loss
secondary to occupational noise exposure. Dr. Bosi noted that an audiogram revealed hearing
loss consistent with occupational noise exposure. In a patient hearing history, appellant noted
working 24 years as a sheet metal mechanic and was exposed to sheet metal machine noise and
had tinnitus in the left ear. Also submitted was a September 16, 2009 audiogram.2
The employing establishment submitted a statement from John P. Stanley, who concurred
with appellant’s stated work exposure. Mr. Stanley noted that appellant participated in the
hearing conservation program and received hearing conservation training, annual audiograms
and was issued appropriate hearing protection.
By letter dated March 24, 2010, OWCP referred appellant to Dr. Emil Liebman, a Boardcertified otolaryngologist, for otologic examination and audiological evaluation. It provided
Dr. Liebman with a statement of accepted facts, available exposure information, and copies of all
medical reports and audiograms.
Dr. Liebman performed an otologic evaluation of appellant on March 31, 2010 and
audiometric testing was conducted on the doctor’s behalf on the same date. Testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following: right
ear 20, 20, 10 and 20 decibels; left ear 20, 10, 20 and 20 decibels. In a report dated April 6,
2010, Dr. Liebman noted that appellant noted a decrease in hearing and tinnitus that he had
noticed for several years. He noted appellant’s noise exposure history and advised that physical
examination of the canals and eardrums revealed normal tympanic membranes bilaterally.
Dr. Liebman noted left facial asymmetry secondary to an episode of Bell’s palsy. He diagnosed
bilateral high-frequency sensorineural hearing loss. Dr. Liebman opined that based on a
2

Most of the audiometric test results are illegible.

2

reasonable degree of medical certainty appellant’s hearing loss was secondary to presbycusis and
not related to his work exposure. He explained that the degree of hearing loss was compatible
with presbycusis at age 60 or 61. Dr. Liebman also noted that appellant’s hearing loss was not
ratable for schedule award purposes.
By a decision dated April 20, 2010, OWCP denied appellant’s claim on the grounds that
the medical evidence did not support that his hearing loss was causally related to workplace
noise exposure.
On May 13, 2010 appellant requested a review of the written record. He submitted a
September 16, 2009 audiogram and a patient hearing history, all previously of record. Also
submitted were audiometric records from February 2009 and February 2010. In a May 13, 2010
report, Dr. Bosi noted seeing appellant on May 7, 2010 for hearing loss and tinnitus. He noted
reviewing the September 16, 2009 audiogram which revealed sensorineural hearing loss.
Dr. Bosi noted that, based upon history, physical examination findings and the audiogram,
appellant’s hearing loss was secondary to his occupational noise exposure. He noted that
constant exposure to noise has been shown to cause high-frequency sensorineural hearing loss
which was documented in medical literature. Dr. Bosi further noted that despite protective
equipment guidelines an employee who works in a loud environment and is exposed to noise
greater than 120 decibels on a daily basis can have lasting hearing loss. He noted that the
chronic exposure to loud noise-induced hearing loss from direct mechanical damage of cochlear
structures and metabolic overload due to over stimulation. Dr. Bosi opined that this can also
cause tinnitus. He opined that appellant had sensorineural hearing loss and tinnitus as a result of
occupational noise exposure.
In a July 28, 2010 decision, the hearing representative affirmed the April 20, 2010
OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that the injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
3

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

3

employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is 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.4
ANALYSIS
On November 4, 2009 appellant filed a claim alleging that he developed hearing loss due
to his federal employment. OWCP denied his claim finding that the report of Dr. Liebman, an
OWCP referral physician and Board-certified otolaryngologist, was the weight of the evidence
and established that appellant’s hearing loss was not related to his federal employment.
The Board finds that there is a conflict in medical opinion between Dr. Liebman and
Dr. Bosi, appellant’s treating physician, both of whom are Board-certified specialists in their
respective fields.
In his report dated April 6, 2010, Dr. Liebman diagnosed bilateral high-frequency
sensorineural hearing loss and noted that it was more probable than not that appellant did not
have any hearing loss as a result of working at the employing establishment as a sheet metal
mechanic. He opined that the degree of hearing loss was compatible with presbycusis at age 60
to 61. By contrast, in reports dated September 16, 2009 and May 13, 2010, Dr. Bosi, appellant’s
treating physician, reviewed the September 16, 2009 audiogram which revealed sensorineural
hearing loss and opined that appellant’s condition was employment related. In his May 13, 2010
report, he explained that appellant’s sensorineural hearing loss and tinnitus was secondary to his
occupational noise exposure based upon appellant’s history, examination findings and review of
the audiogram. Dr. Bosi noted that constant exposure to noise has been shown to cause highfrequency sensorineural hearing and noted that despite protective equipment guidelines an
employee who works in a loud environment and exposed to noise greater than 120 decibels on a
daily basis can have lasting hearing loss and tinnitus. He noted that the chronic exposure to loud
noise induces hearing loss from direct mechanical damage of cochlear structures and metabolic
overload due to over stimulation. The Board finds that the reports of Drs. Liebman and Bosi are
of virtually equal weight and that a conflict in medical opinion has been created.
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.5
4

Solomon Polen, 51 ECAB 341 (2000).

5

5 U.S.C. § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000); Leonard M. Burger, 51 ECAB
369 (2000); Shirley L. Steib, 46 ECAB 39 (1994).

4

The case, therefore, requires remand for appellant’s referral to an impartial medical
specialist to resolve the conflict in the medical opinions. On remand, OWCP should refer
appellant, the case record and a statement of accepted facts to an appropriate Board-certified
physician to examine appellant and provide reasoned medical opinion to resolve the medical
conflict pursuant to section 8123(a). Following this and such further development as OWCP
deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2010 Office of Workers’
Compensation Programs’ decision is set aside and the case remanded to OWCP for further action
consistent with this decision.
Issued: January 17, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
LIBRARY OF CONGRESS, COPYRIGHT
OFFICE, Washington, DC, Employer
__________________________________________

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

Docket No. 19-0593
Issued: September 9, 2019

Case Submitted on the Record

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

JURISDICTION
On January 23, 2019 appellant, through counsel, filed a timely appeal from a November 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related to the accepted April 25, 2017 employment incident.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 2, 2017 appellant, then a 44-year-old lead library technician, filed a traumatic
injury claim (Form CA-1) alleging that on April 25, 2017 he sustained a right knee condition when
pulling/pushing a tub of 407 books while in the performance of duty. He stopped work that day
and returned to work on May 1, 2017.
In a development letter dated May 4, 2017, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the medical and factual evidence
required to establish his claim. Appellant was afforded 30 days to submit the requested
information.
In an April 25, 2017 emergency room report, Dr. Natasha Yvonne Powell, a Boardcertified emergency room physician, provided physical findings, noted appellant’s subjective
complaints, and diagnosed “right knee injury.”
A duty status report (Form CA-17) dated April 26, 2017 diagnosed a right knee strain and
noted an injury date of April 25, 2017.3
An April 26, 2017 x-ray of appellant’s right knee found no dislocation or fracture, no joint
effusion, and no suspicious radio densities.
An April 27, 2017 note, signed by Y. Taylor, a nurse practitioner, indicated that appellant
was seen that day, and related that he would be disabled from work until April 30, 2017.
By decision dated June 5, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish that the employment incident occurred as
alleged. It further found that the medical evidence of record was insufficient to establish a medical
diagnosis in connection with the alleged incident.
On June 20, 2017 appellant requested reconsideration.
By decision dated July 26, 2017, OWCP affirmed the June 5, 2017 decision, as modified.
It found that the evidence at the time of the May 4, 2017 development letter was in fact sufficient
to establish that the April 25, 2017 incident had occurred as alleged. However, OWCP noted that
pain was not a diagnosis and the record contained no diagnosis of a medical condition in
connection with the accepted April 25, 2017 incident.
In a report dated October 16, 2017, Dr. Steven C. Saddler, Board-certified in orthopedic
surgery and sports medicine, diagnosed right knee patella chondromalacia.
On April 18, 2018 appellant, through counsel, requested reconsideration.
In support of the reconsideration request, appellant submitted an April 10, 2018 report by
Dr. Saddler who noted that he had treated appellant for a right knee injury since May 9, 2017. He
described this injury as occurring on April 25, 2017 while he was at work and “pushing a child.”
Physical examination findings from May 9, 2017 included right knee medial joint line tenderness,
3

The signature on the form is illegible.

2

mild effusion, and positive McMurray sign. A review of an x-ray interpretation revealed some
mild patellar tilting. A magnetic resonance imaging (MRI) scan was performed as appellant
continued to have right knee swelling, pain, and catching and locking. Dr. Saddler reviewed the
MRI scan which showed some patellofemoral chondrosis and lateral patellar tracking. He noted
that appellant’s chondrosis and patella maltracking were preexisting conditions, which he opined
had been exacerbated by the April 25, 2017 employment incident.
By decision dated June 28, 2018, OWCP denied modification of the July 26, 2017 decision
finding that Dr. Saddler’s opinion was insufficient to establish causal relationship as it was based
on an inaccurate factual history.
On August 22, 2018 appellant, through counsel, requested reconsideration. In support of
the request, counsel submitted Dr. Saddler’s April 10, 2018 report, which had been revised to
describe the incident as pushing a tub at work instead of pushing a child at work. The remainder
of the report remained unchanged. Dr. Saddler again opined that the April 25, 2017 employment
incident exacerbated appellant’s preexisting right knee chondrosis and patella maltracking.
By decision dated August 29, 2018, OWCP denied reconsideration of the merits of the
claim.
On October 22, 2018 appellant, through counsel, again requested reconsideration. In
support his request, counsel resubmitted Dr. Saddler’s revised April 10, 2018 report. He asserted
OWCP erred in its August 29, 2018 decision as it had not properly reviewed the corrected April 10,
2018 report from Dr. Saddler.
By decision dated November 14, 2018, OWCP denied modification finding that, while
Dr. Saddler’s corrected April 10, 2018 report was new and relevant evidence, he had not provided
sufficient medical rationale explaining how the accepted April 25, 2017 employment incident had
caused or aggravated the diagnosed medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6

4
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.7 The second component is whether the employment incident caused a personal injury.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 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 incident.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted April 25, 2017 employment incident.
The record contains an April 10, 2018 report from Dr. Saddler diagnosing right knee
patella maltracking and chondrosis. This report, however, provided an inaccurate history of injury.
Dr. Saddler reported that the condition resulted from appellant pushing a child while at work, but
OWCP had accepted that appellant was pulling/pushing a tub of 407 books on April 25, 2017, as
he noted on his CA-1 form. The Board has held that medical reports must be based on a complete
and accurate factual and medical background. Medical opinions based on an incomplete or
inaccurate history are of limited probative value.12 Therefore, this report from Dr. Saddler is
insufficient to establish causal relationship.
In a revised report dated April 25, 2018, Dr. Saddler noted an accurate history of the
accepted incident, relating that appellant pushed a tub at work. The remainder of the report was
unchanged. Dr. Saddler again diagnosed preexisting right knee chondrosis and patella
maltracking, which he opined had been exacerbated or aggravated by the accepted April 25, 2017
employment incident. However, his mere recitation of appellant’s history is insufficient to
establish a causal relationship between an accepted employment incident and the diagnosed
7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

S.S., Docket No. 18-1488 (issued March 11, 2019).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).

12

A.W., Docket No. 17-0285 (issued May 25, 2018); C.L., Docket No. 14-1585 (issued December 16, 2014);
Douglas M. McQuaid, 52 ECAB 382 (2001).

4

conditions.13 Without explaining how, physiologically, the accepted employment incident caused
or contributed to the diagnosed conditions, Dr. Saddler’s report is of limited probative value.14
This is especially important because he diagnosed preexisting right knee conditions.15 Therefore,
this revised report of Dr. Saddler is insufficient to establish appellant’s claim.
Dr. Saddler, in an October 16, 2017 report, diagnosed right knee patella chondromalacia,
but provided no opinion on causal relationship. In an April 25, 2017 report, Dr. Powell diagnosed
a right knee strain without addressing causal relationship. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.16 These reports therefore are insufficient to
establish appellant’s claim.
Appellant also submitted diagnostic studies to the record. However, diagnostic studies lack
probative value as they do not address whether an employment incident caused the diagnosed
condition.17
The record also contains April 26, 2017 duty status report (Form CA-17) containing an
illegible signature and an April 27, 2017 note from a physician assistant. These reports are
insufficient to establish the claim. A report that is unsigned or bears an illegible signature
lacks proper identification and cannot be considered probative medical evidence as the author
cannot be identified as a physician.18 Furthermore, a report from a physician assistant has no
probative medical value in establishing a claim because such a healthcare provider is not
considered a “physician” as defined under FECA.19 Consequently, these medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.20
As appellant has not submitted a rationalized medical opinion establishing that his
diagnosed condition is causally related to the accepted April 25, 2017 employment incident, the
Board finds that he has not met his burden of proof to establish an employment-related traumatic
injury.
On appeal counsel asserts that OWCP failed to properly adjudicate the causation issue. In
addition, he also asserts that OWCP failed to defer to findings from appellant’s treating physician.
13

N.W., Docket No. 19-0167 (issued June 21, 2019); J.G., Docket No. 17-1382 (issued October 18, 2017).

14

N.W., id. A.B., Docket No. 16-1163 (issued September 8, 2017).

15
See supra note 11; M.C., Docket No. 18-0361 (issued August 15, 2018); S.D., Docket No. 16-0999 (issued
October 16, 2017).
16

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

17

F.S., Docket No. 19-0205 (issued June 19, 2019).

18

K.C., Docket No. 18-1330 (issued March 11, 2019); Thomas L. Agee, 56 ECAB 465 (2005).

19

5 U.S.C. § 8101(2). This subsection defines a physician as surgeons, podiatrist, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
20

Supra note 11 at Chapter 2.805.3a(1) (January 2013); see S.Y., Docket No. 18-1814 (issued April 18, 2019);
M.F., Docket No. 17-1973 (issued December 31, 2018). K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57
ECAB 316, 320 n.11 (2006).

5

Contrary to counsel’s assertions, OWCP properly found Dr. Saddler’s reports insufficient to
establish appellant’s claim as he had not provided a rationalized medical opinion, based upon a
proper factual and medical background, establishing causal relationship.
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 of proof to establish a right knee
condition causally related to the accepted April 25, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Redmond, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0439
Issued: December 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 20, 2016 appellant, through counsel, filed a timely appeal from an
August 31, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
factors of her federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On January 6, 2012 appellant, then a 51-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that she sustained major depression, panic
attacks, and anxiety due to factors of her federal employment. She stopped work on
December 12, 2011.
Appellant, in a January 11, 2012 statement, advised that she began working as a letter
carrier in 1984. She injured her elbow in 2002 and her shoulder in 2003. In 2008 appellant
reassigned to a position as a supervisor. She had difficulties with a supervisor, who used work
time inappropriately, and with the new postmaster, who allegedly changed appellant’s schedule
and implemented policies that violated the union contract. In March 2011 appellant’s office
changed locations and she had additional employees to supervise. Appellant’s work location had
poor scanning results so R.M., a manager in charge of the operation, ordered her to scan parcels
inaccurately so that they could “get off the poor performers list.” She received calls from
customers who were not getting their packages. R.M. wanted her to indicate that carriers ended
tours without overtime even where it was not true. Appellant related, “I did this a few times
because I was given a direct order to do so, but felt bad because it was wrong.” On
November 23, 2011 she refused to change the times for the carrier who worked overtime.
Appellant worried that if she reported the situation her coworkers might lose their positions.
In a February 27, 2012 statement, R.M. advised that appellant requested his assistance in
2010 because the postmaster, H.W., had changed appellant’s work hours such that she could not
easily attend Employees’ Assistance Program (EAP) sessions. After R.M. became postmaster in
2011, the location had fewer employees but more work, and there was pressure to make sure the
carriers stopped work at 5:00 p.m. R.M. “gave direct orders to [appellant] to ensure that any
employee who worked over 10 hours would fill out a 1260 stating their end tour time was 10
hours or less.” He related:
“In July and August 2011, our office kept showing up on the poor performance
list for scans for express mail and delivery confirmation packages. I tried
everything I could think of to improve our performance but nothing seemed to
work. I finally gave direct orders to [appellant] that when she checked our
express mail delivery and delivery confirmation labels at the end of the day, to fix
any errors. That meant she would have to manually input false information so
that we could get off the poor performer list. When she told me that she had been
told not to do that by [a manager], I told her to still do it anyway. When she
finally refused to do it anymore, I assigned that task to my morning supervisors.”
In September and October 2011, appellant claimed that R.M. instructed her to “falsely
manually input any missing scans” on parcels not sorted before carriers left on their routes. In
3

Docket No. 14-0433 (issued July 3, 2014); Docket No. 16-0161 (issued May 24, 2016).

2

October 2011 she claimed that he instructed her to enter a coworker’s absence as sick rather than
annual leave.
On February 29, 2012 appellant again described the actions to which she attributed her
condition. She provided the dates from October through November 2011 that R.M. told her to
change clock rings for carriers to avoid overtime.
OWCP, by decision dated April 13, 2012, denied appellant’s claim because she had not
established any compensable employment factors. On May 11, 2012 she requested an oral
hearing. A hearing was held on October 25, 2012. Counsel asserted that R.M. had confirmed
appellant’s allegation that management ordered her to change data to meet standards.
Dr. David P. Shaw, an attending Board-certified psychiatrist, evaluated appellant on
November 12, 2012. He obtained a history from appellant of management asking her to break
the rules or overlook rule breaking, noting that R.M. had told her to manually input inaccurate
data.
Appellant had explained that managers performed personal business at work,
misrepresented vacation days, and changed appellant’s schedule. She claimed that she had an
additional 40 employees when she returned to work in March 2011 after the death of her mother,
and that customers were angry because they had not received their packages. Dr. Shaw
diagnosed moderate major depression, anxiety disorder with panic attacks, and post-traumatic
stress disorder in part due to work stressors and opined that appellant was unable to perform her
usual employment.
In a January 2, 2013 decision, an OWCP hearing representative set aside the April 13,
2012 decision. She found that R.M.’s ordering appellant to inaccurately fill out 1260 forms
showing carriers worked 10 hours or less in July and August 2011 and to falsify scans on express
mail in October and November 2011 were compensable work factors. OWCP found that
appellant had established error or abuse in July, August, September, and October 2011, when she
was to input false information regarding carrier time, scanning express mail delivery, delivery
confirmation and leave. OWCP was instructed to prepare a statement of accepted facts (SOAF)
describing the compensable and noncompensable work factors and refer appellant for a second
opinion examination.
OWCP prepared a January 18, 2013 SOAF indicating that R.M. had ordered appellant to
alter express mail scans and carrier clock rings, instructed her to hand out 1260s, and had ordered
appellant to approve leave under the FMLA when it was not warranted. It referred her to
Dr. Douglas Robinson, a Board-certified psychiatrist, for a second opinion examination.
On February 28, 2013 Dr. Robinson reviewed appellant’s work history and the factors to
which she attributed her condition. He noted that she had nonwork-related stress, including a
custody dispute over grandchildren. Dr. Robinson diagnosed recurrent major depressive
disorder, panic disorder with agoraphobia, and some obsessive-compulsive personality traits
unrelated to compensable work factors. He noted that appellant’s condition began before
October 2011 and that she had not experienced recurrent depression or a panic disorder until the
onset of nonwork-related stress. Dr. Robinson found that it was not clear from the SOAF
whether she had established her allegations of wrongdoing by her supervisor.

3

By decision dated April 25, 2013, OWCP denied appellant’s emotional condition claim.
It found that Dr. Robinson’s opinion represented the weight of the medical evidence and
established that she had not sustained any condition due to the accepted work factors. On
April 30, 2013 counsel requested a review of the written record.
Dr. Shaw, in a report dated May 20, 2013, diagnosed a single episode of moderate major
depression, anxiety disorder with panic attacks, and post-traumatic stress disorder. He noted that
appellant’s supervisor instructed her to ignore or break the rules. Dr. Shaw related:
“Thus, as I have said before, work factors have certainly contributed to
[appellant’s] emotional condition. Her family, personal and occupational history,
and perhaps her genetic vulnerability, rendered her unable to cope with and
conflicted over requirements to violate [employing establishment] and union
rules. Even when she was excused from some of those requirements, she
remained conflicted over disobeying her superiors for the same reasons.”
In a November 5, 2013 decision, an OWCP hearing representative affirmed the April 25,
2013 decision. She determined that the weight of the evidence established that appellant had not
established an emotional condition due to compensable work factors.
Appellant appealed to the Board. In a July 3, 2014 decision, the Board set aside the
November 5, 2013 OWCP decision.4 It noted that OWCP had accepted that appellant’s
supervisor, R.M., erred in instructing her to improperly input scans on Express Mail, telling her
to place a coworker on sick leave, and requiring her to indicate on forms that carriers worked
under 10 hours. Dr. Robinson, however, found that she had not shown misconduct by her
supervisor and thus did not base his opinion on the SOAF. The Board directed OWCP to prepare
a SOAF clearly describing the compensable work factors and to further develop the medical
evidence.5
On July 17, 2014 OWCP prepared an amended SOAF. It provided as compensable work
factors that, in October and November 2011, R.M. instructed appellant to alter scans on express
mail and delivery packages and ordered her to change clock rings to avoid overtime penalties. It
also indicated that in November 2011 R.M. erroneously told her to hand out 1260 forms to
carriers out after 6:00 p.m. and told appellant to approve leave which was not appropriate.
By letter dated July 17, 2014, OWCP requested that Dr. Robinson review the SOAF and
address whether appellant had sustained a diagnosed condition causally related to the accepted
work factors. Dr. Robinson, in a supplemental report dated August 26, 2014, noted that the
events listed as compensable in the SOAF occurred in October and November 2011, after the
onset of symptoms. He advised that his opinion had not changed and that her condition was not
related to the compensable work factors.
4

Docket No. 14-0433 (issued July 3, 2014).

5

The Board found that appellant had not established as compensable factors that her schedule changed
unreasonably, she was forced to give up a bid position, she was overworked, or she had to deal with angry
customers.

4

In a decision dated September 30, 2014, OWCP denied appellant’s claim after finding
that Dr. Robinson’s opinion constituted the weight of the evidence. On October 22, 2014
counsel requested a telephone hearing, which was held on June 18, 2015. By decision dated
September 4, 2015, OWCP’s hearing representative affirmed the September 30, 2014 decision.
Appellant appealed to the Board. In a decision dated May 24, 2016, the Board set aside
the September 4, 2015 decision.6 The Board found that Dr. Robinson, in his August 26, 2014
supplemental report, discussed the compensable work factors set forth in the SOAF and noted
that the incidents occurred in October and November 2011, significantly later than the start of
appellant’s psychiatric condition. Dr. Robinson opined that her condition was “not directly”
related to the compensable work factors. The Board determined that Dr. Robinson based his
conclusion on an incomplete SOAF that failed to set forth that R.M. erroneously told appellant to
manually input incorrect information on express mail scans and delivery confirmation packages
in July and August 2011. The Board thus found that Dr. Robinson based his conclusion that her
condition was unrelated to work factors as it began well before the occurrence of the
compensable work factors in November 2011 on an inaccurate history. The Board further found
that Dr. Robinson’s opinion that compensable work factors did not directly cause appellant’s
condition was insufficient to negate causal relationship, noting that, if a work factor contributed
in any way to appellant’s condition, such condition is employment related. It remanded the case
for OWCP to prepare an updated SOAF and refer her for a new second opinion examination.
On remand OWCP prepared a June 29, 2016 SOAF setting forth the accepted work
factors as follows:
“The claimant alleged in July 2011, August 2011, October 2011, and
November 2011, [R.M.] made her change the scans on express mail and delivery
confirmation packages. She alleged [R.M.] gave her direct orders to alter
overtime forms during an unspecified period from March 2011 to January 2012.
This is a compensable factor of her employment.”
“The claimant alleged on November 23, 2011 several carriers were out past 6:00;
and [R.M.] told her to hand out 1260’s. [OWCP] received a statement from
[R.M.] that substantiated this allegation.”
“The claimant alleged on October 10, 2011, [R.M.] told her to give [J.C.] FMLA
when she was n[o]t entitled to it. [OWCP] received a statement from [R.M.] that
substantiated this allegation.”
For the factors of employment not accepted as compensable, OWCP provided, “The claimant
eventually refused to do improper scans or alter carrier’s penalty overtime, but did not like
disobeying orders from her supervisor. There is no evidence that any adverse action resulted due
to [her] refusal, therefore her emotional reaction to this refusal is not directly related to her
duties.” It further listed the events not established as factually occurring.

6

Docket No. 16-0161 (issued May 24, 2016).

5

On July 7, 2016 OWCP referred appellant to Dr. Aaron Hunt, Board-certified in
psychiatry and forensic psychiatry, for a second opinion examination.
In a July 26, 2016 report, Dr. Hunt reviewed the SOAF and the medical evidence of
record. He discussed the SOAF with appellant and she advised that a prior supervisor had
written a statement confirming that the events occurred. Dr. Hunt noted that the statement from
the supervisor was not in the record that he received. He indicated that appellant had family
problems related to a custody dispute and estrangement with family members. Appellant had
relocated to Mexico where she continued to receive psychological treatment. Dr. Hunt
diagnosed an adjustment disorder with mixed anxiety and depressed mood with “limited
evidence of problems due to workplace rules violations,” recurrent major depression “primarily
aggravated by factors outside the industrial claim,” and anxiety disorder not related to
employment. He further diagnosed a personality disorder not otherwise specified impacting the
other diagnoses. Dr. Hunt related, “While [appellant] maintains she was forced or coerced to
‘lie, cheat and steal,’ there is simply no evidence that I have seen suggesting her behavior was
anything but volitional. There was no evidence that she was coerced in such a fashion that she
would not have the ability to willingly refuse to do something she found to be contradictory to
her value system….” Dr. Hunt noted that appellant’s condition ultimately deteriorated due to
conflicts with her supervisor over “these and other issues.” He found that there was no
verification of her allegations except for a statement from a manager who had retired, and that
there were issues assuming her account of events was completely accurate. Dr. Hunt concluded
that “factors outside of the industrial injury played a substantial role in her continued
deterioration and it is not the fact that she had the ‘injury event occur’ but rather the fact that she
finally had enough of the conflicts that she was having within the workplace. This is evidenced
by the ongoing problems she had after leaving work, and her eventual hospitalization in 2015.”
Dr. Hunt opined that appellant’s confrontational personality and lack of flexibility led to
difficulty and conflicts. He noted that a supervisor “apparently supported her version of events”
but he did not have the letter, noting that it was accepted under the SOAF. Dr. Hunt related:
“In the mind of this examiner, [appellant’s] problems are primarily associated
[with] adjustment[-]related problems to a plethora of stresses that have occurred
in her life and not solely due to these events that occurred. Being asked to change
employees’ time cards, alter Express Mail scans and other issues, which she
considered to be ‘illegal’ or at best contrary to administrative policy, did not cause
her to become depressed, anxious or overtly stressed to the point of evident
difficulty performing her work[-]related duties.”
He concluded that appellant’s depression began before the events set forth as compensable in the
SOAF and that those events did not cause her condition to deteriorate but rather that stress due to
relationships in the workplace worsened her condition and arose as a result of her personality.
Dr. Hunt related, “While [appellant] may have elements of major depression, this does not
appear to accurately capture the entirety of what she has experienced that may be work related.
Appellant’s work-related problems are adjustment related, the major depression that she has then
subsequently developed is related to preexisting and nonindustrial[-]related factors.”

6

In an August 31, 2016 decision, OWCP denied the emotional condition claim. It found
that Dr. Hunt’s opinion constituted the weight of the evidence and established that she did not
have a psychiatric condition causally related to a compensable employment factor.
On appeal counsel argues that Dr. Hunt did not rely on the compensable work factors to
frame his opinion and used an improper standard for causation, noting that Board case law
provided that it was not necessary to show a work factor was solely responsible for a condition to
establish causal relationship. He requests a new second opinion examination.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.7 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.8
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.9 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 The opinion of the
physician must be based on a complete factual and medical background of the claimant,12 must

7

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

8

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

9

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

10

Id.

11

John J. Montoya, 54 ECAB 306 (2003).

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

be one of reasonable medical certainty13 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.14
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.15 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.16 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.17
ANALYSIS
In prior appeals, the Board found that appellant had established as compensable work
factors that R.M. told her to inaccurately input Express Mail scans, improperly indicate that a
coworker was on sick leave, and fill out forms incorrectly showing that carriers did not work
overtime. The Board determined that the medical evidence was insufficient to resolve the issue
of whether she experienced a diagnosed condition as a result of the compensable work factors
and remanded the case for further development of the medical evidence.
On July 7, 2016 OWCP referred appellant to Dr. Hunt for a second opinion examination.
The Board finds, however, that Dr. Hunt’s opinion is insufficiently rationalized to resolve the
medical issue presented.
In his July 26, 2016 report, Dr. Hunt discussed the SOAF with appellant and indicated
that while she maintained that a supervisor wrote a letter confirming her account of events, the
letter was not in the record. He opined that she could have refused to lie at work and noted that
only one manager verified her description of what happened. Dr. Hunt questioned the
truthfulness of appellant’s account, again asserting that he did not have the letter from the
supervisor that “apparently supported” her version. While acknowledging that OWCP had
accepted the supervisor’s statement as factual, in his report he examined the accuracy of the
accepted factors, repeatedly noting that he did not have a copy of the supervisor’s statement.
The Board finds that it was improper for Dr. Hunt to question OWCP’s factual findings as a
physician’s function is only to provide an opinion on the medical questions, not to determine
facts.18 OWCP provided him with a SOAF to ensure his report was based on a proper factual

13

John W. Montoya, supra note 11.

14

Judy C. Rogers, 54 ECAB 693 (2003).

15

Jimmy A. Hammons, 51 ECAB 219 (1999).

16

20 C.F.R. § 10.121.

17

Melvin James, 55 ECAB 406 (2004).

18

See M.C., Docket No. 09-1880 (issued June 21, 2010); George Tseko, 40 ECAB 948 (1989).

8

background.19 To the extent that Dr. Hunt’s opinion is outside the framework of the statement of
accepted facts, it is based on an inaccurate history and, thus, of diminished probative value.20
Additionally, Dr. Hunt diagnosed an adjustment disorder with mixed anxiety and
depression with “limited evidence” of a link to violation of rules at work, major depression
“primarily aggravated” by factors outside the claim, and anxiety disorder unrelated to
employment. He found that appellant’s condition was “primarily associated” with various life
stressors and “not solely” due to the compensable work factors. The Board notes that there is no
requirement that the work factors be the only cause of the diagnosed conditions. If work-related
exposure cause, aggravated, or accelerated a condition, appellant is entitled to compensation.21
As discussed, once OWCP undertakes development of the medical evidence it has the
responsibility to do so in a manner that will resolved the relevant issues in the case.22 Upon
return of the case record, it should obtain a reasoned opinion addressing whether she sustained an
emotional condition caused or aggravated by the compensable employment factors. Following
such further development as OWCP deems necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

19

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990) (when OWCP’s medical adviser, second opinion specialist or referee physician renders a medical
opinion based on a statement of accepted facts which is incomplete or inaccurate or does not use the statement of
accepted facts as the framework in forming his or her opinion, the probative value of the opinion is seriously
diminished or negated altogether).
20

See Douglas M. McQuaid, 52 ECAB 382 (2001) (medical reports must be based on a complete and accurate
factual and medical background and medical opinions based on an incomplete or inaccurate history are of little
probative value).
21

See Beth P. Chaput, 37 ECAB 158 (1985).

22

See M.C., supra note 18.

9

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.23
Issued: December 13, 2017
Washington, DC

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

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

23

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 21-1307
Issued: March 22, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2021 appellant, through counsel, filed a timely appeal from an August 20,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 29, 2021 employment incident.
FACTUAL HISTORY
On February 18, 2021 appellant, then a 50-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2021 he overstretched the ligaments in his
neck and left arm when torquing drone shafts while in the performance of duty. He asserted that
he experienced extreme pain from the base of his cranium to the tips of the fingers on his left hand.
On the reverse side of the claim form, C.S., an employing establishment supervisor, contended
that appellant’s condition may not have been the result of a traumatic incident. Appellant did not
stop work.
In an attached statement, C.S. further explained that appellant called out of work on
January 28 and 29, 2021 due to shoulder pain and was advised to return to work with a physician’s
note indicating that it was safe for him to return to his regular duties. The following day, appellant
reported that his physician held him out of work February 1 through 5, 2021. On February 8, 2021
he returned to work with a physician’s note releasing him to full duty. However, later that day, at
2:50 p.m., appellant asserted that he reinjured his shoulder and stopped work.
In February 23, 2021 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of factual and medical evidence needed to establish his claim
and requested a narrative medical report from his treating physician containing a detailed
description of findings and a diagnosis, explaining how his work incident caused or aggravated a
medical condition. OWCP afforded appellant 30 days to submit the necessary evidence.
In an undated statement, appellant explained that on January 28, 2021 he was installing a
right-sided engine driveshaft, which required him to contort the left side of his body and lean into
the engine in order to reach the bolts and nuts. He related that he felt a click in his neck and
shoulder, followed by a sharp pain in his left arm, shoulder, and neck. Appellant sought emergency
treatment that night and notified his supervisor the following morning. He noted that he attempted
to return to work one week later and experienced excruciating pain while completing another drive
shaft. Appellant recounted that he immediately notified his supervisor and sought additional
medical care.
In a return to work note, Sherri McCarty, a nurse practitioner, indicated that she held
appellant off from work until further notice.
By decision dated April 1, 2021, OWCP accepted that the January 29, 2021 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
he had not submitted medical evidence containing a medical diagnosis in connection with the
accepted employment incident. Consequently, OWCP found that he had not met the requirements
to establish an injury as defined by FECA.

2

On April 8, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP continued to receive evidence. On April 7, 2021 appellant sought treatment with
Dr. Maxsimo Torres, a family medicine specialist, with complaints of left shoulder and neck pain
with numbness related to a work injury he sustained while installing a drive shaft. Dr. Torres
performed a physical examination and documented tenderness of the left acromioclavicular (AC)
and glenohumeral joints, bicipital groove, and shoulder. He diagnosed joint pain, osteoarthritis,
adhesive capsulitis, and articular cartilage disorder of the left sh oulder and recommended an
orthopedic evaluation, medication, an x-ray of the cervical spine, magnetic resonance imaging
(MRI) scan of the left shoulder, and a rheumatology panel.
In an attending physician’s report (Form CA-20) also dated April 7, 2021, Dr. Torres noted
that appellant sustained an injury to his left shoulder on January 29, 2021. He checked a box
marked “Yes” indicating that the condition was caused or aggravated by an employment activity.
By decision dated August 20, 2021, OWCP’s hearing representative modified the April 1,
2021 decision, finding that appellant had established a medical diagnosis in connection with the
accepted January 29, 2021 employment incident. However, the claim remained denied, because
the evidence of record was insufficient to establish causal relationship between the accepted
January 29, 2021 employment incident and his diagnosed left shoulder conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 4 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. The second component is
3

Id.

4

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

whether the employment incident caused a personal injury and can be established only by medical
evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.
In his narrative report dated April 7, 2021, Dr. Torres noted that appellant related a history
of an injury to his left shoulder while installing a drive shaft at work on the date of the alleged
injury. He diagnosed joint pain, osteoarthritis, adhesive capsulitis, and articular cartilage disorder
of the left shoulder. Dr. Torres did not, however, offer an opinion as to whether these diagnosed
conditions were causally related to the accepted employment injury. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 11 Therefore, Dr. Torres’ April 7, 2021
report is insufficient to establish appellant’s claim.
In a Form CA-20 dated April 7, 2021, Dr. Torres noted appellant’s January 29, 2021 left
shoulder injury. He checked a box marked “Yes” to indicate that the condition was caused or
aggravated by an employment activity. While the Form CA-20 provided an affirmative opinion
which supported causal relationship, Dr. Torres did not provide a pathophysiological explanation

7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

A.S., Docket No. 19-1955 (issued April 9, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
11

See S.S., Docket No. 21-0837 (issued November 23, 2021); J.M., Docket No. 19-1926 (issued March 19, 2021);
L.D., Docket No. 20-0894 (issued January 26, 2021); T.F., Docket No. 18-0447 (issued February 5, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

4

as to how the accepted incident either caused or contributed to appellant’s diagnosed conditions. 12
The Board has held that when a physician’s opinion as to the cause of a condition consists only of
a checkmark on a form, without further explanation or rationale, that opinion is of diminished
probative value and is insufficient to establish a claim. 13 Therefore, the April 7, 2021 Form CA20 is also insufficient to establish appellant’s claim.
The remaining medical evidence of record consists of a return-to-work note signed by a
nurse practitioner. Nurse practitioners are not considered “physician[s]” as defined under FECA
and thus their reports do not constitute competent medical opinion evidence.14
As appellant has not submitted rationalized medical evidence establishing a medical
condition causally related to the accepted January 29, 2021 employment incident, the Board finds
that he has not met his burden of proof to establish his 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 of proof to establish a medical
condition causally related to the accepted January 29, 2021 employment incident.

12

Id.; J.G., Docket No. 20-0009 (issued September 28, 2020).

13

See A.C., Docket No. 21-0087 (issued November 9, 2021); O.M., Docket No. 18-1055 (issued April 15, 2020);
Gary J. Watling, 52 ECAB 278 (2001).
14

Section 8101(2) provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 10 at Chapter 2.805.3a(1) (January 2013); David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists
are not competent to render a medical opinion under FECA); see also D.S., Docket No. 19-1657 (issued July 20, 2020)
(nurse practitioners and registered nurses are not considered physicians under FECA).

5

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Augusta, GA, Employer
__________________________________________

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

Docket No. 17-1615
Issued: August 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 20, 2017 appellant filed a timely appeal from a July 10, 2017 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
Whether appellant has met her burden of proof to expand the acceptance of her claim to
include dental conditions thereby warranting authorization for orthodontic treatment.
FACTUAL HISTORY
On July 21, 2016 appellant, a 62-year-old social worker, filed a traumatic injury claim
(Form CA-1) alleging that she sustained injuries to her face, shoulder, knees, hands, and head on
1

5 U.S.C. § 8101 et seq.

July 18, 2016 due to falling face-forward onto asphalt. She stopped work on the date of injury and
returned on July 20, 2016.
In support of her claim, appellant submitted emergency room discharge instructions dated
July 18, 2016 and a July 21, 2016 report from Dr. Joseph J. Korwin, a Board-certified internist,
who diagnosed traumatic facial abrasions, contusions, frontal headache, mild neck strain, and right
temporomandibular joint strain superimposed on chronic arthrosis.
In an August 26, 2016 development letter, OWCP indicated that when appellant’s claim
was received it appeared to be a minor injury that resulted in minimal or no lost time from work
and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It stated that it had reopened the claim for consideration because she
called to report that she needed continual medical care. OWCP requested additional evidence and
afforded appellant 30 days to respond to its inquiries.
In response appellant submitted hospital records dated July 18, 2016 from Dr. Przemyslaw
Iwanowski, an emergency medicine physician, who noted that she was walking on an uneven
sidewalk when she tripped and fell onto her face. Dr. Iwanowski diagnosed bleeding nose, facial
abrasion, fall, and loose teeth.
Appellant further submitted dental bills and reports dated October 8, 2014 and May 19,
June 10, July 26, and August 12, 2016 from her dentists, Drs. Muis F. Miranda and Harini S.
Jindal. On October 8, 2014 Dr. Miranda reported that appellant had not had a cleaning in one year
and found “slight bone loss [four millimeter] pocket.”
On May 19, 2016 Dr. Jindal noted that appellant presented with some numbness on the
upper right side of the mouth.
In a June 10, 2016 report, Dr. Jindal indicated that she referred appellant to her physician
regarding her numbness and discussed an Arkiclosure in the front teeth because appellant was very
concerned about the way the front teeth were functioning with the lower teeth. She found that
teeth numbers eight and nine had severe stress fractures.
On July 26, 2016 Dr. Jindal noted that appellant presented with trauma to her face,
specifically the right side had been impacted by a fall. She advised that appellant wait to see if the
swelling and soreness would go down before deciding on a proper treatment plan. Dr. Jindal also
discussed that appellant’s bite would need to be corrected in the future with orthodontics.
In an August 12, 2016 report, Dr. Jindal found that appellant was only occluding on her
anterior teeth, was unable to bite or chew food on her posterior teeth, and was developing soreness
and fracturing on her anterior teeth due to this malocclusion.
By decision dated September 15, 2016, OWCP accepted appellant’s claim for abrasion of
facial front.

2

In letters received by OWCP on October 11, November 14, and December 20, 2016,
appellant requested authorization for orthodontic treatment in the form of Invisalign to correct her
bite.
By decision dated December 20, 2016, OWCP denied authorization for expanding the
acceptance of her claim to include shifted teeth out of alignment because the evidence of record
was insufficient to establish that appellant’s teeth shifted out of alignment causally related to the
July 18, 2016 work injury. It noted that additional evidence was requested in order to establish
that authorization to address the effects of her work-related injury or conditions, but that she had
not responded with a medical report with a firm diagnosis and a medical opinion explaining the
cause and effect between the July 18, 2016 work injury and the medical condition claimed.
On January 4, 2017 appellant requested an oral hearing by a representative of OWCP’s
Branch of Hearings and Review.
Appellant submitted narrative statements reiterating her contentions, a photograph of her
face, and a July 26, 2016 report from Dr. Jindal who noted that appellant fell face-forward onto an
asphalt sidewalk while walking to work on July 18, 2016. She was treated immediately in an
emergency department and they recommended that she follow-up with a dentist. Appellant was
seen by her dentist on July 26, 2016 and at that time the injuries were too recent and routine dental
work had to be delayed due to facial injuries and bruising to the gums. Dr. Jindal opined that, as
a result of her fall, appellant’s teeth were pushed out of place resulting in misalignment, her bottom
and top teeth were no longer correctly aligned to allow a proper bite. Top teeth 5 through 12, 14,
and 15 remained painful to touch and pressure, which further impacted appellant’s bite. Dr. Jindal
further opined that appellant’s chronic headaches were “most likely” related to misalignment of
her teeth. She concluded that orthodontics was the only solution to correct appellant’s injury and
allow her to return to her normal bite and to realign her teeth into proper alignment. Dr. Jindal
advised that Invisalign was recommended due to appellant’s age because it would reduce further
trauma and dental decay underneath brackets. She noted that appellant previously had
orthodontics in her early 30s.
A telephonic hearing was held before an OWCP hearing representative on June 7, 2017.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
By decision dated July 10, 2017, OWCP’s hearing representative affirmed the prior
decision. She explained that Dr. Jindal’s reports did not contain a full factual background,
including discussion of any preinjury bite problems and appellant’s prior orthodontia. The hearing
representative found, therefore, that the medical evidence of record was insufficient to establish
causal relationship between the accepted work injury and the recommended treatment.
LEGAL PRECEDENT
In order to be entitled to reimbursement of medical expenses, it must be shown that the
expenditures were incurred for treatment of the effects of an employment-related injury or

3

condition.2 Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation.3
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA.4 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal. The
only limitation on OWCP’s authority is that of reasonableness.5 Abuse of discretion is generally
shown through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.6 It is not enough
to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.7
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.8 To establish 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.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.10
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.11

2

S.W., Docket No. 17-1319 (issued December 7, 2017); Zane H. Cassell, 32 ECAB 1537 (1981)

3

5 U.S.C. § 8103.

4

See J.B., Docket No. 11-1301 (issued March 22, 2012).

5

Id.

6

Id.

7

See Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

8

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

9

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

10

See John W. Montoya, 54 ECAB 306 (2003).

11

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

4

ANALYSIS
OWCP accepted that appellant sustained an abrasion of facial front due to falling faceforward onto asphalt on July 18, 2016. Appellant subsequently requested authorization for
orthodontic treatment based on reports from her dentist, Dr. Jindal.
Dr. Jindal opined that, as a result of appellant’s fall on July 18, 2016, her teeth were pushed
out of place resulting in misalignment; her bottom and top teeth were no longer correctly aligned
to allow a proper bite. Top teeth 5 through 12, 14, and 15 remained painful to touch and pressure,
which further impacted appellant’s bite. Dr. Jindal further opined that appellant’s chronic
headaches were “most likely” related to misalignment of her teeth. She concluded that
orthodontics was the only solution to correct appellant’s injury and allow her to return to her
normal bite and to realign her teeth into proper alignment. Dr. Jindal advised that Invisalign was
recommended due to appellant’s age because it would reduce further trauma and dental decay
underneath brackets. She noted that appellant previously had orthodontics in her early 30s.
Dr. Jindal noted that appellant’s conditions occurred while she was at work, but such
generalized statements do not establish causal relationship because they merely repeat appellant’s
allegations and are unsupported by adequate medical rationale explaining how her physical activity
at work actually caused or aggravated the diagnosed conditions.12 Her opinion was based, in part,
on temporal correlation. However, the Board has held that neither the mere fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or condition
was caused or aggravated by employment factors or incidents is sufficient to establish a causal
relationship.13 The need for rationale is particularly important as the evidence of record indicates
that appellant had a preexisting dental condition and prior orthodontic treatment. Dr. Jindal did
not otherwise sufficiently explain the reasons why diagnostic testing and examination findings led
her to conclude that the July 18, 2016 incident at work caused or contributed to the diagnosed
conditions and/or need for Invisalign. Thus, the Board finds that the reports from Dr. Jindal are
insufficient to establish that appellant sustained an employment-related dental injury and, thus,
OWCP did not abuse its discretion by denying appellant authorization for orthodontic treatment.
CONCLUSION
The Board finds that as appellant did not meet her burden of proof to establish expansion
of the acceptance of her claim to include dental conditions, authorization for orthodontic treatment
is not warranted.

12

See K.W., Docket No. 10-0098 (issued September 10, 2010).

13

See E.J., Docket No. 09-1481 (issued February 19, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 23, 2018
Washington, DC

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

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

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

6