United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Carol Stream, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1697
Issued: April 15, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 14, 2010 appellant filed a timely appeal from a May 11, 2010 merit decision of
the Office of Workers’ Compensation Programs denying her claim for compensation. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
left shoulder and neck injury in the performance of duty on March 21, 2008.
FACTUAL HISTORY
On October 10, 2009 appellant, then a 29-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that on March 21, 2008 she first became aware of her
condition and first realized that the illness was caused or aggravated by her employment. She
1

5 U.S.C. § 8101 et seq.

failed to specify the nature of her injury or its relationship to her employment. On the reverse
side of the form, the employing establishment indicated that appellant first reported her condition
to her supervisor on June 25, 2009. Appellant stopped work on March 23, 2008 and returned to
work on March 25, 2008. The employing establishment controverted the claim.
In an October 9, 2009 narrative statement, appellant reported that, on March 21, 2008,
Sharon Christensen sent her out on route to carry mail which was beyond her restrictions,
causing her to injure her left shoulder up to her neck area. She noted that she delayed in filing a
claim because her supervisor refused to give her the claim form and because she did not know
about the paperwork for an on-the-job injury. Appellant also stated that the Office accepted the
new injury as a recurrence, claim number xxxxxx487.2
In a July 27, 2009 medical report, Dr. Verlina Cobb performed an impartial medical
examination at the request of the Office in claim number xxxxxx487. It is of interest that, while
Dr. Cobb noted appellant’s medical history and found objective evidence for left shoulder
tendinitis, she opined that it was likely degenerative and not traumatic because her conditions did
not occur as a result of carrying a heavy weight over her shoulder but rather through repetitive
overhead activity or more significant trauma. Dr. Cobb determined that the initial diagnosis
from November 9, 2004 more likely reflected the work-related condition as a trapezius strain
which had resolved over time because appellant had not carried mail for close to five years. She
further reported that the location of appellant’s pain, the base of the neck, trapezius, anterior
chest and left axilla, corresponded to the diagnosis of shoulder impingement syndrome and
rotator cuff tendinitis. Dr. Cobb recommended no further treatment and stated that appellant was
capable of returning to work without restrictions other than pushing a cart if carrying a mailbag
aggravated her left shoulder symptoms.
In an October 14, 2009 medical report, Dr. Jacob Salomon, a treating surgeon, stated that
appellant had complaints of neck pain and pain radiating down her left shoulder and arm. He
2

The Board notes appellant has additional compensation claims which are distinct from the claim currently on
appeal but have some relevance to factual matters. This is because the claims involve the same body parts and were
being developed during a period close to this traumatic injury claim.
The following claims are not before the Board. Appellant had a previous traumatic injury to her left shoulder on
November 3, 2004 while carrying mail that day in the performance of duty. The Office accepted that her injury
resulted in left shoulder strain plus brachial neuritis/radiculitis of the left upper extremity, claim number xxxxxx487.
Appellant submitted another traumatic injury notice alleging that on November 9, 2004 she was lifting a tub of mail
which resulted in an injury to her left arm and left side of her neck, claim number xxxxxx295. The claim was
accepted and combined with the prior claim and expanded to include left shoulder impingement, left rotator cuff
tear, and complete rupture of left rotator cuff, claim number xxxxxx487. Appellant stopped work on November 9,
2004 and returned to restricted duty on April 15, 2005.
On August 16, 2008 appellant filed a claim for recurrence under claim number xxxxxx487. She stopped work on
August 16, 2008 and underwent arthroscopic subacromial decompression and partial acromioplasty with clavicle
resection on September 26, 2008, which the Office authorized as being related to the work injury which occurred on
November 3, 2004. Appellant returned to work with restrictions on February 2, 2009 and stopped work on
September 15, 2009.
Appellant also submitted an occupational disease notice alleging that her exposure to walking worsened her
bilateral foot problems. The Office accepted the aggravation of bilateral pes planus, claim number xxxxxx217.

2

reported that appellant had an original left shoulder injury from November 3, 2004 and was
diagnosed with tendinitis. Appellant noted that on March 21, 2008 she was delivering mail and
lifting packages when she experienced shoulder pain. Dr. Salomon stated that appellant
underwent surgical repair of her left rotator cuff but continued to have pain in her left shoulder
and neck area.3 He reported that her neck pain dated back to her March 21, 2008 recurrence and
diagnosed cervical disc disease. Dr. Salomon stated that appellant filed a new occupational
injury form on October 10, 2009 because she was continuing to suffer with her neck pain. He
opined that the cervical neck pain and bulging disc disease were related to her job injuries from
November 3, 2004 as well as March 21, 2008.
By letter dated November 4, 2009, the employing establishment challenged appellant’s
claim for a work-related cervical condition which is the subject of this appeal. It asserted that
this claim was not an occupational disease claim, but rather a recurrence. The employing
establishment alleged that appellant refused suitable work and that she had not worked since
September 16, 2009.
By letter dated November 12, 2009, the Office requested additional factual and medical
evidence from appellant.
In a November 24, 2009 medical report, Dr. Salomon stated that appellant had filed a
claim for her neck because of her past history of having left shoulder surgery for rotator cuff tear
with chronic pain in her left shoulder which radiated into her neck. In this report, he opined that
the repetitive use of her left extremity, turning her head and bending to reach for mail as a postal
employee related to her neck pathology and left shoulder chronic postoperative symptoms.
By decision dated January 26, 2010, the Office denied appellant’s claim finding that
appellant did not establish fact of injury. It specifically noted that her claim was being denied
pending the findings of the referee medical examination to be scheduled under claim number
xxxxxx487 since both claims involved the same condition.4
On February 22, 2010 appellant requested review of the written record.
In a February 19, 2010 medical report, Dr. Salomon responded to an unspecified Office
letter and reported that appellant’s left shoulder and neck pain was a result of cervical disc
disease and that she had a history in March 2008 of recurrent left shoulder pain. He stated that
the cervical disc injury could not be directly attributed to her employment but that her
employment aggravated her cervical disc disease and radiculopathy from carrying mail and
excess weight on her left shoulder which resulted in pain and swelling. Dr. Salomon opined that
the cervical disc disease was related to an original injury from carrying the mailbag on the left
shoulder.

3

The Office authorized this surgery as being related to the work injury which occurred on November 3, 2004,
claim number xxxxxx487.
4

Regardless of the apparent qualification of this order, the hearing examiner did not alter the decision or
elaborate on the referee medical examination mentioned in the order.

3

By decision dated May 11, 2010, the Office hearing representative affirmed the Office’s
January 26, 2010 decision which denied this claim. He noted that it was unclear whether
appellant was alleging that her employment injury was caused or aggravated by her work duties
on March 21, 2008 or by duties performed over the course of more than one work shift. In
addition, the hearing representative noted that Dr. Salomon’s reports were equivocal which
opined that appellant’s cervical condition was a recurrence of a previous injury, related to the
traumatic incident on March 21, 2008 and also a result of occupational work duties.5
LEGAL PRECEDENT
An employee seeking benefits under the Act 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 the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or occupational disease.7
A traumatic injury means a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused
by external force, including stress or strain, which is identifiable as to the time and place of
occurrence and member or function of the body affected.8 An occupational disease is defined as
a condition produced by the work environment over a period longer than a single workday or
shift.9 A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.10 A recurrence of a disability does not include a condition which results
from a new injury, even if it involves the same part of the body previously injured or caused by
renewed exposure to the causative agent of a previous occupational disease.11

5

The Board notes that appellant submitted additional evidence after the Office rendered its May 11, 2010
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its
final decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 10.510.2(c)(1);
Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit
this evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).
6

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

7

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

8

20 C.F.R. § 10.5(ee).

9

Id. at § 10.5(q).

10

Id. at § 10.5(x).

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b)(2) (May 1997).

4

When an employee claims that he sustained an injury in the performance of duty he must
establish the “fact of injury,” namely, he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged. He must also establish that such event, incident or exposure caused an injury.12 Once
an employee establishes that he sustained an injury in the performance of duty, he has the burden
of proof to establish that any subsequent medical condition or disability for work for which he
claims compensation is causally related to the accepted injury.13
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and her subsequent course of action. In determining whether a case has been
established, such circumstances as late notification of injury, lack of confirmation of injury, and
failure to obtain medical treatment may, if otherwise unexplained, cast substantial doubt on the
employee’s statements. The employee has not met her burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.14
To establish a causal relationship between the condition, as well as any attendant
disability claimed, and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.15 Rationalized medical opinion evidence 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.16
ANALYSIS
In this case, appellant filed an occupational disease claim on October 10, 2009 claiming
that she first became aware of her condition and its relationship to her work duties on
March 21, 2008. She failed to adequately describe the nature of the illness or disease. In an
October 9, 2009 narrative statement, appellant reported that on March 21, 2008 she was carrying
mail which caused her to injure her left shoulder and neck.

12

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
13

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

14

Betty J. Smith, 54 ECAB 174 (2002).

15

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

16

James Mack, 43 ECAB 321 (1991).

5

Appellant indicated a belief that her condition was an occupational disease by filing a
Form CA-2 but described a traumatic injury in her narrative statement. Her decision to delay
filing her claim significantly hampers the ability of the Office to investigate the factual and
medical evidence in her claim. The Board will treat this claim as a traumatic injury case because
it appears that appellant is alleging an injury resulting from a single occurrence within a single
workday.17
The Board finds that appellant failed to establish that she sustained a traumatic injury
while in the performance of duty on March 21, 2008.
Appellant must establish all of the elements of her claim in order to prevail. Before the
medical evidence submitted can be considered, she must prove her employment, the time, place
and manner of injury, a resulting personal injury and that her injury arose in the performance of
duty. The evidence received prior to the May 11, 2010 decision does not provide any detail
regarding appellant’s employment incident on March 21, 2008. Appellant submitted a
nonspecific Form CA-2 and a brief narrative statement. She has not alleged with specificity the
time and place of the incident, nor has she provided the sufficient detail needed to establish that
the incident occurred in the manner alleged.18
In her October 9, 2009 narrative statement, appellant alleged that, on March 21, 2008, she
was sent out on her route to carry mail that was beyond her restrictions and aggravated her
condition, causing a new injury to her left shoulder and neck.19 She provided no further, detailed
account of her injury and presented no evidence regarding the specific mechanism of injury.
Appellant stated that she delayed filing a claim because a supervisor refused to provide claim
forms and because she did not know about the paperwork for dealing with an on-the-job injury.
Because appellant has filed prior claims under the Act, the Board must conclude that appellant
knew or should have known how to file another claim.
The evidence submitted does not establish that appellant actually experienced an
employment-related incident at a given time and place and in a given manner.20 Appellant failed
to describe the details of her injury and failed to provide supporting factual evidence to
substantiate her claim. She did not provide corroborating facts either before or after the incident.
Appellant never stated what her alleged work restrictions were. She failed to discuss how much
weight she was carrying on March 21, 2008, the distances or other physical demands which she
associated with her alleged incident. The employing establishment controverted the claim and
indicated on the Form CA-2 that appellant delayed over a year before reporting her condition to

17

The Board finds no evidence in this claim of events or circumstances which would make this an occupational
disease claim. Any consideration of a recurrence would not involve a new claim but a revisiting of a prior claim
which was alleged to be the basis of the recurrence.
18

Paul Foster, 56 ECAB 208 (2004).

19

The record on appeal does not contain any reference to medical restrictions limiting appellant’s work activity
on or about March 21, 2008.
20

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

6

her supervisor on June 25, 2009. Appellant has not addressed this assertion of a substantial delay
in reporting the incident.
The Board will review the medical evidence available to the Office at the time of its
decision because this claim falls close in time to appellant’s other claims which were also being
developed by the Office. There is overlap of medical conditions and although appellant fails to
establish an alleged incident, the medical reports are not irrelevant.
The earliest medical reports submitted by appellant date from July 2009 and she has not
adequately explained this gap of 16 months from the date of the alleged incident. Her delay in
seeking medical treatment makes it more difficult for any physician to determine whether there
was a medically identifiable event on March 21, 2008. The absence of contemporaneous
medical treatment for her neck and shoulder in the record weighs against appellant’s statement of
the time, place and manner of the alleged injury. An examination of the medical evidence does
not clarify the factual deficiencies of her claim.
Appellant submitted a July 27, 2009 referee examination medical report from Dr. Cobb
who noted objective evidence for left shoulder tendinitis, which was degenerative rather than
traumatic. Dr. Cobb stated that the location of appellant’s pain, the base of the neck, trapezius,
anterior chest and left axilla, corresponded to the diagnosis of shoulder impingement syndrome
and rotator cuff tendinitis and that appellant was capable of returning to work without
restrictions. While her report provided a diagnosis, it does not support appellant’s allegation that
she hurt her shoulder and neck on March 21, 2008. Therefore, Dr. Cobb’s medical report is not
relevant in establishing appellant’s factual basis to support her claim.
Medical reports dated October 14, 2009 to February 19, 2010 from Dr. Salomon noted by
history that appellant was delivering mail and lifting packages when she experienced shoulder
pain on March 21, 2008. He diagnosed her with cervical disc disease and opined that her injury
was related to injuries of November 3, 2004 and March 21, 2008. Dr. Salomon also stated that
the repetitive use of appellant’s left extremity, turning her head and bending to reach for mail
contributed to her neck pathology and chronic postoperative symptoms. He reported that
carrying mail and excess weight on her left shoulder aggravated her cervical disc injury.
Dr. Salomon’s diagnosis and opinion on causal relationship does not establish that the
employment incident occurred at the time, place and in the manner alleged.21 Based on the
record, it appears that Dr. Salomon did not see appellant until almost a year and a half after the
alleged incident. Further, his reports suggest that her neck and shoulder injury represented a
recurrence of her November 3, 2004 injury, or that her neck pain was a residual of her shoulder
surgery. Dr. Salomon’s reports also state that carrying mail on March 21, 2008 and repetitive
stress and trauma of carrying mail caused her condition. He has not distinguished the effects of
these various factors. Appellant’s medical condition may be complex in its cause and progress.
Dr. Salomon’s reports do not offer any rationalized opinion evidence on the occurrence or
significance of the March 21, 2008 incident.

21

Tracey P. Spillane, 54 ECAB 608 (2003); Julie B. Hawkins, 38 ECAB 393, 396 (1987).

7

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.22 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.23 Appellant failed to provide evidence to prove the fact of injury, its time, place and
manner, and that the injury was causally related to her federal employment. The Office properly
denied her claim for compensation.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on March 21, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

22

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

23

D.D., 57 ECAB 734 (2006).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-211
Issued: May 1, 2014

Case Submitted on the Record

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

JURISDICTION
On November 4, 2013 appellant filed a timely appeal from a June 26, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of a medical condition on May 3,
2012 due to the accepted May 1, 2006 occupational injury.
FACTUAL HISTORY
On December 4, 2006 appellant, then a 43-year-old occupational health nurse, filed an
occupational disease clam (Form CA-2) alleging a hand condition from use of her keyboard. She
1

5 U.S.C. § 8101 et seq.

first became aware of her condition on May 1, 2006, and of its relationship to her employment
on August 14, 2006. On March 2, 2007 OWCP accepted appellant’s claim for bilateral radial
styloid tenosynovitis, also known as de Quervain’s tenosynovitis. Appellant did not claim wage
loss as a result of her condition. She received authorization for payment of medical procedures,
including surgery and physical therapy. Appellant returned to full-time limited-duty work on
May 22, 2008.
In a form report dated June 7, 2007, Dr. George A. Macer, Jr., a Board-certified
orthopedist, diagnosed appellant with carpal tunnel syndrome. In a report dated August 13,
2007, Dr. Fred H. Batkin, Board-certified in physical medicine and rehabilitation, stated that an
electromyogram/nerve conduction velocity (EMG/NCV) study of appellant’s bilateral upper
extremities revealed normal sensory nerve conduction and bilateral median motor conduction
with no evidence of median nerve neuropathy across the wrist and no evidence of peripheral
polyneuropathy.
In a February 20, 2008 record of a telephone conversation, appellant requested that carpal
tunnel syndrome be added to her accepted conditions. On March 5, 2008 Dr. Macer called
OWCP by telephone. OWCP informed him that appellant’s claim was not accepted for carpal
tunnel syndrome or a shoulder condition; but he could provide a supplemental report discussing
the diagnoses of carpal tunnel syndrome in light of the negative EMG/NCV test. Dr. Macer
submitted additional reports listing a diagnosis of carpal tunnel syndrome, but did not provide
the requested opinion addressing causal relation. On May 6, 2008 Dr. Macer stated that he
believed nearly all of her symptoms were due to her accepted de Quervain’s tenosynovitis and
recommended surgery, which was performed on May 19, 2008.
In a report dated August 16, 2008, Dr. Sangarapillai Manoharan, Board-certified in
emergency medicine, diagnosed appellant with bilateral carpal tunnel syndrome, status post left
de Quervain’s tendon release and left shoulder tendinitis. Appellant reported that she developed
pain in both wrists and hands in May 2006, and that her position involved prolonged writing,
typing and data entry. On examination, Dr. Manoharan noted slight to moderate pain with
flexion and extension of the left wrist and bilaterally negative Finklestein’s, Tinel’s and Phalen’s
tests. He stated that scar tissue resulting from surgery to correct appellant’s left de Quervain’s
tenosynovitis caused her symptoms. Dr. Manoharan referred her to a hand specialist and noted
that her carpal tunnel syndrome appeared mostly on the left side.
On August 20, 2008 Dr. Robert Sundstrom, a Board-certified orthopedic surgeon,
diagnosed appellant with a superficial left radial nerve neuritis secondary to her radial wrist
surgery and probable left carpal tunnel syndrome. While the radial neuritis was related to the
previous surgery, the carpal tunnel syndrome “may have been present to some degree before the
de Quervain’s surgery” and “was more likely than not aggravated by the surgery and had been a
result of previous work experience.” On examination, he noted a positive Finklestein’s test and a
positive Phalen’s test. Dr. Sundstrom reviewed appellant’s history of injury, stating that she had
worked at the employing establishment for three years in a position that involved typing and
prolonged writing and data entry. He noted that in May 2006, she developed pain in both wrists
and hands without any acute event. Appellant’s pain was aggravated by typing and writing
activity at work. Dr. Sundstrom stated that on initial discussion regarding her carpal tunnel
syndrome, appellant described only numbness on the volar aspect of her thumb, but that, after he

2

informed her about typical carpal tunnel syndromes, she became aware of some parasthesias in
the index, long and radial ring fingers.
In a diagnostic report dated October 9, 2008, Dr. Arnold S. Rappoport, a Board-certified
radiologist, obtained a magnetic resonance imaging (MRI) scan of appellant’s left wrist. He
noted no abnormality in the flexor and extensor tendons; normal components of the carpal
tunnel, including normal extensor pollicis brevis and abductor pollicis longus tendons; no
evidence of increased signal, thickening, or abnormality in the surrounding soft tissue of these
tendons; articulations within normal limits; normal intracarpal ligaments; and a normal triangular
fibrocartilaginous complex.
Dr. Rappoport concluded that no abnormality had been
demonstrated.
In a progress report dated November 14, 2008, Dr. Manoharan reviewed the results of a
bilateral bone scan study and the MRI scan of appellant’s left hand. The bone scan study
revealed no evidence for reflex sympathetic dystrophy and the MRI scan was normal.
Dr. Manoharan stated that most of appellant’s bilateral carpal tunnel syndromes were localized
over the left wrist, particularly over the site where she had a surgical excision for her
de Quervain’s tendinitis. He recommended continuing modified duty under the prior restrictions.
On January 16, 2009 Dr. Joshua Sussman, Board-certified in physical medicine and
rehabilitation, conducted an EMG/NCV study of appellant’s hands and wrists. He stated that
appellant’s study was abnormal, finding evidence suggestive of a right ulnar motor neuropathy
with relative slowing across the elbow.
On April 9, 2009 Dr. Manoharan reviewed appellant’s history of injury, stating that she
worked as a registered nurse at the employing establishment. Her usual duties involved
prolonged writing, typing and data entry. Dr. Manoharan noted that she had developed pain in
the wrists and hands in May 2006 and was diagnosed with bilateral carpal tunnel syndrome and
left de Quervain’s tenosynovitis. She underwent surgery for her left de Quervain’s tenosynovitis
and, following surgery, she noticed increased pain as well as weakness and numbness in her left
hand and thumb. Dr. Manoharan diagnosed bilateral carpal tunnel syndrome, status post left
de Quervain’s tendon release and left shoulder tendinitis. He treated appellant by prescribing
bilateral wrist braces and medication for the surgical incision site. Dr. Manoharan stated that her
pain was mainly coming from the surgical site of her left de Quervain’s tendon release. Even
though she had carpal tunnel syndrome, appellant’s pain was mainly confined and localized to
the left thumb. Dr. Manoharan recommended a bone scan to rule out reflex sympathetic
dystrophy. The study showed findings consistent with a prior surgery to the left wrist and
subsequent dystrophic changes involving only the left thumb. On referral to Dr. Sundstrom, he
found that appellant had superficial left radial nerve neuritis secondary to radial wrist surgery,
and recommended physical therapy. Her symptoms slowly ameliorated and appellant worked
modified duty. Dr. Manoharan stated that appellant had slight pain at rest bilaterally at the wrist
and hand, and that, after prolonged movements, it would increase to moderate pain, which was
mostly localized over the left thumb. On examination, he noted a positive Tinel’s sign bilaterally
and a positive Finkelstein’s sign on the left. Dr. Manoharan stated that “[B]ased on the history,
measureable objective findings, review of the medical records, it is the opinion of this examiner
more likely than not [that] the repetitive/repetitive cumulative trauma that the patient sustained at
work is the cause of her symptoms in both wrists/hands.” Dr. Manoharan recommended work

3

restrictions of no lifting over 30 to 40 pounds, no prolonged gripping or grasping, and no typing
or data entry for more than 45 minutes every hour.
On May 3, 2012 Dr. Manoharan noted that appellant complained of thumb pain, neuritis
and bilateral carpal tunnel syndrome. He requested authorization for occupational therapy for
appellant’s wrists and an ergonomic work station evaluation.
In a report dated May 24, 2012, Dr. Manoharan stated that appellant was seen for
complaint of slight dull intermittent bilateral wrist pain. On examination of the wrists and hands,
he noted tenderness bilaterally. Appellant was referred to occupational therapy and attended for
one session. Dr. Manoharan noted that she had reached maximum medical improvement as of
May 24, 2012 and that she had permanent work restrictions.
On June 19, 2012 Dr. Manoharan noted that appellant’s slight dull intermittent bilateral
wrist pain improved with rest and medication and worsened with typing. Appellant had other
symptoms, such as numbness and tingling of the first three fingers. Dr. Manoharan advised her
to continue with a wrist brace.
On September 5, 2012 Dr. Manoharan noted that appellant had completed the treatment
modalities of taking nonsteroidal anti-inflammatory drugs, physical therapy and bracing, with
good improvement upon each. He observed no tenderness to the wrists or hands upon physical
examination. Dr. Manoharan released appellant from care as of that date and noted that she
continued with her permanent work restrictions. He stated that she had reached maximum
medical improvement as of September 5, 2012, diagnosing her with bilateral carpal tunnel
syndrome, aftercare following surgery for left de Quervain’s tenosynovitis and resolved bilateral
wrist pain.
Appellant submitted October 5, 2012 requests for authorization for durable medical
equipment and further physical therapy for treatment of her bilateral radial styloid tenosynovitis,
bilateral carpal tunnel syndrome and limb pain. The dates of service were from August 13
through September 4, 2012. Appellant had also submitted requests for authorization of physical
therapy on June 22, 2012, noting a diagnoses of bilateral carpal tunnel syndrome and wrist pain,
and on August 15, 2012, noting a diagnosis of carpal tunnel syndrome. Payment for physical
therapy on appellant’s claim had last been authorized on February 6, 2009.
On May 17, 2013 appellant filed a claim for recurrence of medical condition. She noted
that she continued to perform her regular duties after surgery because she was the only nurse at
the employing establishment. The employing establishment noted that appellant was removed
from its rolls effective February 20, 2013. Appellant did not claim wage loss and stated that she
had not worked since leaving the employing establishment.
By letter dated May 23, 2013, OWCP requested additional medical evidence from
appellant to support her claim for a recurrence of her medical condition. It noted that the
evidence she had submitted was insufficient to support her claim because it contained no medical
explanation of how her diagnosis of bilateral carpal tunnel syndrome was the result of a material
change or worsening of her accepted bilateral radial tenosynovitis.

4

In a report dated June 12, 2013, Dr. Manoharan noted that appellant had been declared
permanent and stationary as to her bilateral wrist condition. Appellant’s diagnoses at the time of
the declaration were carpal tunnel syndrome and wrist pain. Dr. Manoharan noted that she had a
flare-up of her symptoms of carpal tunnel syndrome, and noted tenderness of the wrists and
hands bilaterally. He stated that appellant had intermittent slight dull pain in her wrists
bilaterally. Dr. Manoharan diagnosed her with bilateral carpal tunnel syndrome and wrist pain
and released her from his care.
By decision dated June 26, 2013, OWCP denied appellant’s claim for a recurrence of her
medical condition. It noted that she had not provided a medical report from a physician
explaining how her carpal tunnel syndrome was related to her accepted condition of radial
styloid tenosynovitis.
LEGAL PRECEDENT
A claimant has the burden of establishing that she sustained a recurrence of a medical
condition2 that is causally related to her accepted employment injury. To meet her burden, she
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment
injury and supports that conclusion with sound medical rationale.3 Where no such rationale is
present, the medical evidence is of diminished probative value.4
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.5
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed (PRN), or computed by the
claims examiner from the date of last examination), a claimant is responsible for submitting an
attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.6
2

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a need for further medical treatment after release from
treatment, nor is an examination without treatment. 20 C.F.R. § 10.5(y).
3

Ronald A. Eldridge, 53 ECAB 218 (2001).

4

Mary A. Ceglia, 55 ECAB 626 (2004); Albert C. Brown, 52 ECAB 152 (2000).

5

20 C.F.R. § 10.5(y).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b) (September 2003). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id. at Chapter 2.1500.5(a).

5

ANALYSIS
The Board finds that appellant has not established that she sustained a recurrence of her
medical condition. OWCP accepted her occupational disease claim for bilateral radial styloid
tenosynovitis on March 2, 2007, for which she underwent surgery. Appellant has claimed
compensation for medical treatment of her condition. She failed, however, to submit sufficient
rationalized medical evidence to establish that she required further medical treatment for her
employment-related condition.
In a report dated September 5, 2012, Dr. Manoharan stated that he released appellant
from care as of that date but that she should continue with her permanent work restrictions. He
listed the diagnoses of bilateral carpal tunnel syndrome, aftercare following surgery for left
de Quervain’s tenosynovitis and resolved bilateral wrist pain. Dr. Manoharan noted that
appellant had completed the recommended treatment modalities of taking nonsteroidal antiinflammatory drugs, physical therapy and bracing, with good improvement upon each.
Appellant’s last physical therapy visit was on September 4, 2012, according to an authorization
request dated October 5, 2012. There is no evidence of record documenting that she received
medical treatment for her accepted condition between September 5, 2012, the date she was
released from Dr. Manoharan’s care, and June 12, 2013, when she was again examined by
Dr. Manoharan. Appellant’s examination on June 12, 2013 was more than 90 days after her
release from medical care. Therefore, she must submit an attending physician’s report on the
causal relationship of her current medical condition to her accepted bilateral radial styloid
tenosynovitis.7 Appellant had the burden of submitting sufficient medical evidence to document
the need for further medical treatment.8 She did not submit such evidence as required and failed
to establish a need for continuing medical treatment.9
Dr. Manoharan’s reports are insufficient to establish appellant’s claim. In a report dated
June 12, 2013, he diagnosed her with carpal tunnel syndrome and wrist pain, noting that he had
previously declared her condition permanent and stationary. Dr. Manoharan noted that appellant
had a flare-up of her symptoms of carpal tunnel syndrome, and noted tenderness of the wrists
and hands bilaterally. He stated that she had intermittent slight dull pain in her wrists bilaterally.
This is the only report of record submitted by Dr. Manoharan after he released appellant from his
care on September 5, 2012. It does not contain an opinion addressing the causal relationship
between appellant’s current condition or need for continuing medical treatment and her accepted
injury. It does not contain any reference to appellant’s accepted condition. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value.10 The Board notes that appellant’s claim was not accepted for carpal tunnel
syndrome, but for radial styloid tenosynovitis, or de Quervain’s tenosynovitis. To establish a
recurrence, appellant must submit a rationalized medical opinion addressing the causal

7

Federal (FECA) Procedure Manual, supra note 6.

8

Supra note 5.

9

See J.F., 58 ECAB 331 (2006).

10

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

6

relationship between her current condition and her accepted condition of radial styloid
tenosynovitis.
Appellant also submitted notes from physical therapists. Physical therapy notes do not
constitute probative medical evidence, as a physical therapist is not a “physician” under FECA.11
The reports of diagnostic studies, magnetic resonance imaging and x-rays, do not provide any
opinion as to the cause of appellant’s condition. These are also of diminished probative value
and are insufficient to establish her claim.12
The medical evidence of record must be supported by rationalized medical evidence
explaining the nature of the relationship between appellant’s current condition and her accepted
injury.13 An award of compensation may not be based on surmise, conjecture, speculation or
upon appellant’s own belief that there was a causal relationship between her claimed condition
and her employment.14 The Board finds that OWCP properly denied appellant’s claim, as she
did not meet her burden of proof to establish that she sustained a recurrence of a medical
condition.
On appeal, appellant contends that OWCP misunderstood the nature of her claim, and
that she was not claiming monetary compensation for time lost from work, but rather only for
additional medical treatment in the form of physical therapy. As noted, however, the medical
evidence submitted to the record is not sufficient to establish that her need for physical therapy
on or after May 3, 2012 is due to residuals of her accepted de Quervain’s tenosynovitis or the
surgery performed in 2008.
Section 8103(a) of FECA states in pertinent part: 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 the Secretary of Labor considers
likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the
amount of the monthly compensation.15 The Board has found that OWCP has great discretion in
determining whether a particular type of treatment is likely to cure or give relief.16 The only
11

Section 8101(2) of FECA provides as follows: (2) “physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.”
12

See Mary E. Marshall, 56 ECAB 420 (2005).

13

While the medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative or equivocal. The
opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition
for which compensation is claimed is causally related to federal employment, and such relationship must be
supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate
medical and factual background of the claimant. See Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow,
50 ECAB 370 (1999).
14

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

15

5 U.S.C. § 8103.

16

Vicky C. Randall, 51 ECAB 357 (2000).

7

limitation on OWCP’s authority is that of reasonableness.17 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. It is not
enough to merely show that the evidence could be construed so as to produce a contrary factual
conclusion.18 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 the employment-related injury
or condition.19 Proof of causal relationship in a case such as this must include supporting
rationalized medical evidence.20
The Board finds that OWCP did not abuse its discretion in denying authorization for
physical therapy. Appellant did not establish that the expenditures claimed were incurred for
treatment of the residuals arising from her accepted condition or surgery. OWCP did not abuse
its discretion by denying authorization for payment of physical therapy.
The Board notes that appellant submitted evidence after the issuance of the June 26, 2013
decision. The Board lacks jurisdiction to review evidence for the first time on appeal.21
Appellant may submit new evidence or argument with a written request for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of a medical condition causally related to her accepted injury.

17

Lecil E. Stevens, 49 ECAB 673, 675 (1998).

18

Rosa Lee Jones, 36 ECAB 679 (1985).

19

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

20

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

21

20 C.F.R. § 501.2(c).

8

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2014
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
LOS ANGELES TELESERVICE CENTER,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-357
Issued: June 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 24, 2014 appellant, through counsel, filed a timely appeal from an
October 20, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition on November 7, 2011 in the performance of duty causally related to factors of his
federal employment.
On appeal counsel asserts that, because the employing establishment violated appellant’s
Weingarten rights and the human instincts doctrine, appellant established a compensable
emotional condition.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 27, 2014 appellant, then a 49-year-old teleservice representative, filed a
traumatic injury claim alleging that on June 12, 2014 he was required to be present at a meeting
with his supervisor, and this caused anxiety, chest pain, respiratory distress, headache, and
diminished feeling in his face. He was hospitalized overnight and this resulted in long-term
emotional and physical consequences such that he could not return to work.
By letter dated August 12, 2014, OWCP informed appellant of the evidence needed to
support his claim. Appended to the letter was a note addressed to the employing establishment
stating, “If the employee was treated at the employing establishment medical facility for this
injury, the employing establishment must provide the treatment notes directly to OWCP.”
In support of his claim, appellant submitted an affidavit indicating that on June 10, 2014
his supervisor, Raymond Leung, called him for a discussion regarding performance. He
requested union representation so the discussion was postponed until the next day, but that
Mr. Leung was not available the next day. Appellant continued that on June 12, 2014 Mr. Leung
interrupted him and told him to go to his cubicle to have the discussion which, appellant
maintained, was code for a possible disciplinary action, so he again requested union
representation. Mr. Leung refused and appellant claimed that was a violation of his Weingarten
rights.2 Appellant alleged that Mr. Leung criticized his work performance and implicitly
indicated an adverse action against him, stating that Mr. Leung would lower appellant’s grade.
He stated that he continued to ask for union representation, but it was refused. Appellant began
to feel stress and his blood pressure was getting high. He told Mr. Leung that he was not feeling
well and needed to go to the doctor. Appellant stated that he then went to urgent care for
treatment, but was told that his supervisor refused to authorize treatment. He later went to an
emergency room and was hospitalized overnight.
Medical evidence includes reports from Glendale Memorial Hospital and Health Center
dated June 12 and 13, 2014. Dr. Brigeli P. Westerband, a Board-certified internist, noted seeing
appellant in the emergency department for a complaint of chest pain, weakness, and possible
stroke. Dr. Mikhail Blinchik, a Board-certified internist, obtained an admission history and
examined appellant. He noted that appellant’s symptoms began approximately two days prior.
Examination findings included a left arm deformity, present since birth. Appellant was admitted
with a diagnostic impression of chest pain, etiology unclear; weakness, rule out acute stroke.
While hospitalized, he was seen by Dr. Onkarjit Marwah, Board-certified in internal medicine
and cardiovascular disease, who noted appellant’s complaint of stress at work with shortness of
breath, chest pain, and weakness of the right side of the face. Dr. Marwah discussed examination
findings and diagnosed chest pain, hypertension, sinus tachycardia on electrocardiogram,
shortness of breath, and stress. He ordered additional studies.
On a discharge summary, Dr. Blinchik indicated that appellant was admitted on June 12,
2014 and discharged on June 13, 2014. He noted that acute myocardial infarction was ruled out,
2

The Weingarten decision gave employees the right to representation during an investigative interview when the
employee had the reasonable belief that the interview could lead to discipline. N.L.R.B. v. Weingarten, Inc., 420
U.S. 251 (1975).

2

and that a stress test was normal. Dr. Blinchik reported that a computerized tomography scan of
the brain showed no evidence of intracranial hemorrhage, no large vessel distribution ischemic
changes, an old right frontal cortical infarction, and encephalomalacia. A carotid ultrasound
showed no evidence of hemodynamically significant carotid arteries, and a magnetic resonance
imaging (MRI) scan of the brain showed an old right cerebral infarct and no acute intracranial
change. Discharge diagnoses were atypical chest pain, possibly related to anxiety attacks versus
musculoskeletal; numbness and tingling sensation of perioral area and right arm, possibly due to
anxiety attacks versus transient ischemic attack of the brain; old cerebrovascular accident in right
frontoparietal lobe; hypertension; diabetes mellitus type 2; anxiety disorder; and weakness of the
left arm from childhood that had not changed recently. Appellant was to follow-up with his
primary care physician.
In a report dated June 24, 2014, Dr. Edgar Agvanyan, Board-certified in family medicine,
stated that a hostile work environment caused severe panic/anxiety attacks, and that appellant
could not have contact with work supervisors or return to work. On August 22, 2014 he found
that appellant’s altercation at work caused acute anxiety, acute stress reaction, and panic attacks.3
In reports dated September 10, 2014, Dr. Sara Epstein, a Board-certified psychiatrist,
noted appellant’s description of employment events. She maintained that denying him union
representation on June 12, 2014, continuing the discussion when appellant was stressed, and
denying him basic medical care put appellant’s life in danger. Dr. Epstein diagnosed posttraumatic stress disorder; major depression; high, labile blood pressure; birth injury involving
left upper extremity; and occupational, health, and financial stressors. She further indicated that
a recent brain scan suggested two strokes, possibly as a direct result of the events of
June 12, 2014.
Dr. Epstein recommended psychotherapy and medication.
She also
recommended appellant be seen by a cardiologist and a neurologist, and have a repeat brain MRI
scan study. Dr. Epstein advised that he could never return to his prior work unit.
In a September 5, 2014 statement, Charlotte Elmore, a union representative, advised that
on June 12, 2014 she received several telephone calls from distressed employees concerning
appellant’s meeting with Mr. Leung. She stated that many employees would not complete
witness statements for fear of reprisal. Lily Monterroso, a coworker, stated that she witnessed
the confrontation between appellant and Mr. Leung. She stated that she was unsure why the
confrontation was taking place, but witnessed that appellant was becoming very agitated and
stressed, and that Mr. Leung denied his request for union representation and to seek medical
assistance.
In an e-mail dated July 2, 2014, Eddie Taylor stated:4
“The Social Security Administration, in settlement of unfair labor practice
charges filed by various Locals of the American Federation of Government
Employees, agrees to provide those Locals with advance notice and the
opportunity to be represented at any formal discussion between one or more
3

Dr. Agvanyan also discussed orthopedic conditions, which are not at issue in this case.

4

The record before the Board does not further identify Mr. Taylor.

3

representatives of the [employing establishment] and one or more employees in
the unit or their representatives concerning any grievance or any personnel policy
or practices or other general condition of employment.”
In a pleading dated September 11, 2014, counsel maintained that appellant’s Weingarten
rights and the human instincts doctrine were violated on June 12, 2014.5
By decision dated October 20, 2014, OWCP denied the claim. It found that, while
appellant had a discussion with his supervisor, Mr. Leung, on June 12, 2014, he did not establish
error and abuse by the employing establishment in this administrative function.
LEGAL PRECEDENT
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.6 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.7 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.8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,9 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment but nevertheless does not come within
coverage under FECA.10 When an employee experiences emotional stress in carrying out his or
her employment duties and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
results from his emotional reaction to a special assignment or other requirement imposed by the
employing establishment or by the nature of the work.11 Allegations alone by a claimant are
5

Counsel forwarded a copy of the decision N.L.R.B. v. Weingarten, Inc., supra note 2.

6

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

7

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

8

Id.

9

28 ECAB 125 (1976).

10

See Robert W. Johns, 51 ECAB 137 (1999).

11

Supra note 9.

4

insufficient to establish a factual basis for an emotional condition claim.12 Where a claimant
alleges compensable factors of employment, he or she must substantiate such allegations with
probative and reliable evidence.13 Personal perceptions alone are insufficient to establish an
employment-related emotional condition.14
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.15 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.16
ANALYSIS
The Board finds that this case is not in posture for decision. Appellant attributed his
stress-related condition to a meeting with his supervisor, Mr. Leung, on June 12, 2014. He
submitted supportive statements and medical evidence. Other than a brief mention in a
development letter OWCP sent appellant, stating that the employing establishment should
forward medical information, OWCP did not request further information from the employing
establishment. OWCP procedures, however, require that, in development of an emotional
condition claim, it must obtain statements from witnesses, coworkers, and supervisors, among
others, before it makes a determination of whether the incidents alleged by a claimant occurred
and whether such incidents or factors constitute compensable factors of employment. The
procedures specifically provide that, in certain types of claims, such as a stress claim, a statement
from the employing establishment is imperative to properly develop and adjudicate the claim.17
The Board has concurred that evidence from the employing establishment regarding specific
allegations of error or abuse is critical to a proper adjudication of the claim.18
As OWCP did not seek to obtain evidence by sending a development letter to the
employing establishment, the case record is incomplete, and the Board cannot render a fully
informed adjudication.19

12

J.F., 59 ECAB 331 (2008).

13

M.D., 59 ECAB 211 (2007).

14

Roger Williams, 52 ECAB 468 (2001).

15

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

16

Kim Nguyen, 53 ECAB 127 (2001).

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7(a)(2)
(June 2011).
18

L.B, Docket No. 13-552 (issued November 21, 2013).

19

See. B.D., Docket No. 14-1556 (issued December 10, 2014).

5

Although it is a claimant’s burden to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment or other government source. It shares responsibility to see that justice is done.20
OWCP’s regulations provide that an employer who has reason to disagree with an aspect of the
claimant’s allegation should submit a statement that specifically describes the factual argument
with which it disagrees and provide evidence or argument to support that position.21 If the
employer does not submit a written explanation to support its disagreement, OWCP may accept
the claimant’s report of injury as established.22
In the absence of information from the employing establishment regarding the allegations
in this case, the case will be remanded to OWCP to further develop the factual evidence and,
thereafter, to make appropriate findings regarding appellant’s allegations. OWCP shall request
that the employer address the assertions set forth in appellant’s statements and provide any
relevant evidence to which it has access. Following this and such further development as
deemed necessary, it should issue a de novo decision.
CONCLUSION
The Board finds this case is not in posture for decision and is remanded to OWCP to
secure relevant evidence from the employing establishment necessary to properly adjudicate the
claim.

20

R.E., 59 ECAB 323 (2008).

21

20 C.F.R. § 10.117(a).

22

Id. at § 10.117(b).

6

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: June 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD,
Portsmouth, NH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-1285
Issued: October 12, 2017

Case Submitted on the Record

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

JURISDICTION
On May 24, 2017 appellant filed a timely appeal from a May 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 to
consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has received an overpayment of compensation in
the amount of $2,110.15 for the period February 15 through March 4, 2017 for which he was not
at fault; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On October 16, 2012 appellant filed an occupational disease claim (Form CA-2) alleging
that on January 10, 2005 he became aware of his hearing loss and on June 1, 2006 realized that
1

5 U.S.C. § 8101 et seq.

this loss of hearing was caused or aggravated by his employment. He attributed his hearing loss
to noises at the employing establishment with varying intensities. Appellant reported that the
noises could be unexpected, constant, extreme, or short in duration on a daily basis. OWCP
accepted his claim for bilateral sensorineural hearing loss on May 22, 2013.
Appellant filed a claim for a schedule award (Form CA-7) on February 4, 2014. By
decision dated March 28, 2014, OWCP granted him a schedule award for 84 percent permanent
binaural loss of hearing. The period of the award was from November 27, 2013 through
February 14, 2017 totaling 168 weeks. Appellant retired from the employing establishment in
May 2015.
OWCP continued to make a schedule award payment in the amount of $2,110.15 through
March 4, 2017.
In a March 10, 2017 preliminary determination, OWCP informed appellant that he had
received a $2,110.15 overpayment of compensation because it failed to terminate his schedule
award payments on February 14, 2017 and continued to make an additional payment through
March 4, 2017 in the amount of $2,110.15. It found that he was not at fault in the creation of the
overpayment. OWCP provided appellant with his appeal rights, an overpayment recovery
questionnaire, OWCP-20, and allowed him 30 days to respond.
Appellant responded on March 27, 2017 and indicated that he disagreed that an
overpayment had occurred and that he disagreed with the amount of the overpayment. He
requested waiver of recovery of the overpayment. Appellant also requested that OWCP allow
him to retain the overpayment as he could not regain his hearing.
By decision dated May 10, 2017, OWCP determined that appellant had received an
overpayment of compensation in the amount of $2,110.15 for which he was not at fault. It
denied waiver of recovery as he failed to complete an overpayment recovery questionnaire.
OWCP requested payment of the full amount of the overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. Section 10.404 states that
compensation is provided for specified periods of time for the permanent loss or loss of use of
certain members.4

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

Id. Effective May 1, 2009, OWCP began using the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009). Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700, Exhibit 1 (January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and
Permanent Disability Claims, Chapter 2.808.5a (February 2013). See J.L., Docket No. 14-0898 (March 26, 2015).

2

Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.5 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.6
FECA procedures identify various situations when overpayments of compensation may
occur, including when a claimant receives schedule award compensation after the expiration of
the award.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $2,110.15, for the period February 15, through March 4, 2017.
OWCP granted appellant a schedule award on March 28, 2014 for the period
November 27, 2013 through February 14, 2017. The evidence of record establishes that he
continued to receive schedule award payments from OWCP after February 14, 2017, the date the
award was scheduled to expire, until March 4, 2017. Consequently, any concurrent payments
appellant received from OWCP beginning February 15, 2017 constituted an overpayment of
compensation benefits. OWCP properly calculated the $2,110.15 overpayment by totaling the
amount of compensation checks appellant received during the period February 15 through
March 4, 2017. The Board affirms its finding of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.8 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise it discretion to determine whether
recovery of the overpayment would “defeat the purpose of [FECA] or would be against equity

5

5 U.S.C. § 8102(a).

6

Id. at § 8129(a).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(c) (May 2004); see V.F., Docket No. 10-1394 (issued February 23, 2011).
8

Supra note 6.

3

and good conscience,” pursuant to the guidelines provided in the implementing federal
regulations.
Section 10.436 of the implementing regulations9 provides that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship by depriving a
presently or formerly entitled beneficiary of income and resources needed for ordinary and
necessary living expenses and outlines the specific financial circumstances under which recovery
may be considered to defeat the purpose of FECA.
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.10
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.11 This information would
also be used to determine the repayment schedule, if necessary. Section 10.438(b) provides that
failure to submit the requested information within 30 days of the request shall result in denial of
waiver.12
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.13 In a March 10,
2017 preliminary notice of overpayment, it advised appellant of its preliminary determination
and instructed appellant to complete the enclosed overpayment recovery questionnaire and
submit supporting financial documents. Additionally, OWCP notified appellant that, within 30
days of the date of the letter, he could request a telephone conference, a final decision based on
the written evidence, or a prerecoupment hearing. Appellant did not submit an overpayment
recovery questionnaire or supporting financial documents. Thus, it did not have the necessary
financial information to determine if recovery of the overpayment would defeat the purpose of
FECA or if recovery would be against equity and good conscience such that it would cause a
financial burden.

9

20 C.F.R. § 10.436.

10

Id. at § 10.437.

11

Id. at § 10.438(a).

12

Id. at § 10.438(b).

13

5 U.S.C. § 8129.

4

Consequently, as appellant did not submit the financial information it had properly
requested from him as required under section 10.438 of OWCP’s regulations,14 which was
necessary to determine his eligibility for waiver, OWCP properly denied waiver of recovery of
the overpayment in the amount of $2,110.15 for the period February 15 through March 4, 2017.
With respect to recovery of an overpayment, the Board’s jurisdiction is limited to
reviewing those cases when OWCP seeks recovery from continuing compensation benefits under
FECA. As appellant is no longer in receipt of compensation benefits, the Board has no
jurisdiction over the recovery of the overpayment.15
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,110.15 for the period February 15 through March 4, 2017 for which he was not at fault.
The Board further finds that OWCP properly determined that this overpayment was not subject
to waiver of recovery.
ORDER
IT IS HEREBY ORDERED THAT the May 10, 2017 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 12, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

14

20 C.F.R. § 10.438; R.L., Docket No. 16-1564 (issued January 4, 2017).

15

See Lewis George, 45 ECAB 144, 154 (1993).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Big Rapids, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0026
Issued: April 13, 2018

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 October 3, 2017 appellant filed a timely appeal from an August 3, 2017 merit decision
and an August 28, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a back injury
in the performance of duty on June 15, 2017, as alleged; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of OWCP’s August 28, 2017 decision, appellant submitted new
evidence. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Thus, the Board is precluded from reviewing this new evidence for the first time on appeal. See 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On June 16, 2017 appellant, then a 56-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that, on June 15, 2017, she sustained a middle back sprain as a
result of a vehicle collision. She noted that the claimed injury occurred at “20822 Meceola Road,
Paris, Michigan 49338, 826 Division Street, Big Rapids, Michigan 49307.” Appellant stopped
work on the date of injury and returned to work two days later on June 18, 2017.
In support of her claim, appellant submitted discharge instructions dated June 15, 2017
from Big Rapids Hospital’s Emergency Department.
A June 15, 2017 work release form from a physician with an illegible signature indicated
that appellant could return to work with restrictions on June 16, 2017.
By development letter dated June 23, 2017, OWCP notified appellant of the deficiencies
of her claim and afforded her 30 days to submit additional medical and factual evidence.3
Appellant was also provided a questionnaire for her completion regarding the factual
circumstances of her injury. She did not respond.
In an August 3, 2017 decision, OWCP denied appellant’s traumatic injury claim. It found
that she had failed to respond to its June 23, 2017 development questionnaire and failed to describe
the June 15, 2017 incident in sufficient detail to establish that the employment incident occurred
as alleged. OWCP further found that appellant failed to submit medical evidence containing a
medical diagnosis in connection with the claimed injury or event(s).
On August 18, 2017 appellant requested reconsideration by placing an “x” on the
applicable line of an appeal request form. She did not submit additional evidence.
By decision dated August 28, 2017, OWCP denied further merit review of appellant’s
claim. It found that her request for reconsideration neither raised substantive legal questions, nor
included new and relevant evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.6

3

OWCP stated that the date of injury was June 16, 2017.

4

Supra note 1.

5

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

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.7 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that she actually experienced the employment incident at the time,
place, and in the manner alleged.8
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.9 The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon complete factual and medical
background, showing causal relationship between the claimed condition and the identified
factors.10 The belief of the claimant that a condition was caused or aggravated by the employment
is insufficient to establish a causal relationship.11
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish an injury in the performance of duty
on June 15, 2017, as alleged.
Appellant has not provided sufficient detail to establish that a traumatic incident occurred
as alleged in the performance of duty.12 On her Form CA-1, she alleged that she sustained a back
injury on June 15, 2017 due to a vehicle collision. However, the Board notes that appellant
indicated that the alleged injury occurred on two street locations in different cities in Michigan.
Moreover, appellant’s description of the traumatic incident is vague and fails to provide any
specific detail to determine the manner in which she sustained her alleged injury. Her description
did not relate with specificity the circumstances of the injury.13 Appellant did not explain how the
vehicle collision caused her claimed injury. While the evidence from Big Rapids Hospital’s
Emergency Department and a physician with an illegible signature establishes that she was treated
on June 15, 2017, this evidence is insufficient to establish that the injury occurred while in the
performance of duty on June 15, 2017.
Appellant was provided an opportunity to submit evidence to establish how her alleged
injury occurred on June 15, 2017. By letter dated June 23, 2017, OWCP requested that she
describe the factual circumstances of her injury and provided her with a factual development
questionnaire for completion. Appellant did not respond to the questionnaire and failed to provide
7

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

8

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

9

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
10

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

12

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

13

See T.N., Docket No. 16-1099 (issued December 16, 2016).

3

a narrative statement detailing the traumatic incident prior to the issuance of OWCP’s denial of
her claim on August 3, 2017. The only explanation she provided pertaining to the alleged June 15,
2017 traumatic incident was the generalized and vague statement noted on her Form CA-1. By
failing to describe the employment incident and circumstances surrounding her alleged injury,
appellant has not established that the traumatic injury occurred at work in the performance of duty,
as alleged.14 Thus, the Board finds that she has not met her burden of proof.15 As such, it is
unnecessary to address the medical evidence regarding causal relationship.16
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128 of FECA vests OWCP with a discretionary authority to determine whether it
will review an award for or against compensation, either under its own authority or on application
by a claimant.17 Section 10.608(b) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the claimant has presented evidence
and/or argument that meet at least one of the standards described in section 10.606(b)(3).18 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.19 Section 10.608(b) provides that, when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.20
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim.

14

Id.

15

Id.

16

See Bonnie A. Contreras, 57 ECAB 364 (2006); Alvin V. Gadd, 57 ECAB 172 (2005).

17

5 U.S.C. § 8128(a).

18

20 C.F.R. § 10.608(a).

19

Id. at § 10.606(b)(3).

20

Id. at § 10.608(b).

4

Appellant disagreed with OWCP’s denial of her traumatic injury claim for a back injury
causally related to the alleged June 15, 2017 incident. On August 18, 2017 she requested
reconsideration.
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
provide relevant and pertinent new evidence not previously considered by OWCP.
Appellant’s August 18, 2017 reconsideration request consisted only of an “x” on an appeal
request form indicating that she wanted reconsideration. She did not offer any argument or submit
any evidence in support of her request. Appellant suggested no reason for OWCP to reconsider
the denial of her traumatic injury claim. Such a bare request is insufficient to warrant a reopening
of her case.21
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back injury in
the performance of duty on June 15, 2017, as alleged. The Board further finds that OWCP properly
denied her request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).

21
See I.J., Docket No. 16-1380 (issued November 22, 2016); L.B., Docket No. 14-2064 (issued February 3, 2015);
J.A., Docket No. 14-1447 (issued October 21, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the August 28 and 3, 2017 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: April 13, 2018
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