United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 06-2020
Issued: July 17, 2007

Case Submitted on the Record

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

JURISDICTION
On September 5, 2006 appellant, through his representative, filed a timely appeal of a
November 30, 2005 merit decision of the Office of Workers’ Compensation Programs,
terminating his compensation benefits because he refused an offer of suitable work. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this termination
appeal.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits
effective November 30, 2005 on the grounds that he refused an offer of suitable work, pursuant
to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On November 2, 1988 appellant, then a 39-year-old letter carrier, sustained injury to the
right side of his neck right shoulder and upper arm while lifting his mail pouch in the
performance of duty. The Office accepted his claim for cervical and right shoulder strains and a

herniated nucleus pulposus at C3-4. It authorized cervical surgery which was performed on
June 16, 1989. The Office paid appellant appropriate compensation for total disability.
On June 15, 2005 appellant underwent a functional capacity evaluation. Based on this
examination, Dr. Ronald G. Corley, an orthopedic surgeon, diagnosed postcervical strain with
postcervical fusion and decompression. He stated that this condition was likely due to
underlying degenerative disc disease. Dr. Corley indicated that appellant’s continued difficulty
was related to postsurgical changes and underlying degenerative disease. He opined that there
was no objective evidence of any residuals of appellant’s accepted employment-related
conditions. Dr. Corley noted that appellant only had subjective complaints. He further opined
that the accepted employment injuries had resolved and that appellant reached maximum medical
improvement as of the date of his examination. Dr. Corley opined that appellant could work four
hours per day with restrictions which included no overhead work or heavy pushing, pulling or
lifting especially with the left arm.
In an August 10, 2005 medical report, Dr. Farooq I. Selod, an attending Board-certified
orthopedic surgeon, opined that appellant could work two hours per day with restrictions. He
stated that appellant could sit, walk, perform normal hand functions and use his feet to operate
foot controls two hours per day. Appellant could not climb, perform fine manipulation, reach or
work above his shoulder, operate a car, truck, tractor or other vehicle, perform repetitive
activities and lift no more than 10 pounds. Dr. Selod stated that appellant could not work in the
heat, cold or dampness.
On September 28, 2005 the employing establishment offered appellant a modified carrier
position based on the restrictions set forth in Dr. Corley’s June 15, 2005 report. The position
involved assisting the lobby director with customers four hours per day, stocking supplies and
forms in the lobby one hour per day, writing second notices for accountable mail, answering the
telephone and filing “COA” two hours per day. The physical requirements included talking
intermittently from two to four hours per day, sitting, standing and walking within restrictions
intermittently up to four hours per day, fine manipulation and simple grasping intermittently four
hours per day, and lifting no more than 10 pounds intermittently four hours per day.
By letter dated September 29, 2005, the Office informed appellant that a suitable position
based on his medical limitations was available. Pursuant to 5 U.S.C. § 8106(c)(2), appellant had
30 days to accept the position or provide reasons for his refusal. The Office advised him that he
would be paid for any difference in salary between the offered position and his date-of-injury
position and that he could accept the job without penalty. It notified appellant that his
compensation would be terminated based on his refusal to accept a suitable position pursuant to
section 8106(c)(2).
By letter dated October 21, 2005, appellant rejected the offered position due to the
difference in medical opinion between Dr. Selod and Dr. Corley regarding his ability to return to
work. He stated that he had submitted paperwork to the employing establishment for retirement.
On November 15, 2005 the employing establishment offered appellant a revised modified
carrier position based on Dr. Selod’s August 10, 2005 restrictions. The position required
appellant to work two hours per day. It also involved writing up accountable mail intermittently

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two hours per day, stocking supplies and forms in the lobby one hour per day, answering the
telephone and assisting customers and the lobby director with customers intermittently two hours
per day. The physical requirements included lifting no more than 10 pounds and sitting,
standing, walking, fine manipulation, simple grasping and talking intermittently up to two hours
per day.
In a November 15, 2005 letter, the Office advised appellant that, based on his October 21,
2005 letter, the initial position had been modified by the employing establishment to conform to
Dr. Selod’s restrictions. It further advised him that he had 15 days to accept the position.
On November 30, 2005 the employing establishment advised the Office that appellant
had rejected the job offer and that he had submitted paperwork for retirement. The employing
establishment stated that the position was still available.
By decision dated November 30, 2005, the Office terminated appellant’s compensation
benefits effective that date on the grounds that he refused an offer of suitable work. It found that
the employing establishment’s November 15, 2005 revised job offer conformed to Dr. Selod’s
August 10, 2005 restrictions.1
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 Under section 8106(c)(2) of the Federal Employees’
Compensation Act, the Office may terminate the compensation of a partially disabled employee
who refuses or neglects to work after suitable work is offered to, procured by, or secured for the
employee.3 To justify termination, the Office must show that the work offered was suitable and
must inform appellant of the consequences of refusal to accept such employment.4 Section
8106(c) will be narrowly construed as it serves as a penalty provision, which may bar an
employee’s entitlement to compensation based on a refusal to accept a suitable offer of
employment.5

1

On February 23, 2006 appellant filed a claim for a schedule award. By letter dated March 9, 2006, the Office
advised him that he was not entitled to a schedule award based on its November 30, 2005 decision, which terminated
his compensation. Appellant was further advised to exercise the appeal rights that accompanied this decision. The
Office’s March 9, 2006 correspondence to appellant is not a final decision. Section 10.126 of the Office’s
regulations provides that a decision shall contain findings of fact and a statement of reasons. 20 C.F.R. § 10.126.
The letter did not identify itself as a final decision and the Office attached no appeal rights for appellant to pursue.
Further, the content of the letter was informational in nature as a response to appellant’s February 23, 2006 request
for a schedule award.
2

Linda D. Guerrero, 54 ECAB 556 (2003).

3

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

4

Ronald M. Jones, 52 ECAB 190 (200).

5

Joan F. Burke, 54 ECAB 406 (2003).

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Section 10.517 of the regulations promulgating the Act provides that an employee who
refuses or neglects to work after suitable work has been offered or secured has the burden of
showing that such refusal or failure to work was reasonable or justified.6 Pursuant to section
10.516, the employee shall be provided with the opportunity to make such a showing before a
determination is made with respect to termination of entitlement to compensation.7
ANALYSIS
The Office accepted that appellant sustained cervical and right shoulder strains and a
herniated nucleus pulposus at C3-4, which required cervical surgery. It subsequently terminated
his compensation benefits effective November 30, 2005 finding that he refused an offer of
suitable work based on the medical opinion of Dr. Selod, his attending physician. The initial
question in this case is whether the Office properly determined that the offered position was
medically suitable. The issue of whether an employee has the physical ability to perform a
modified position is primarily a medical question that must be resolved by the medical
evidence.8
Dr. Selod opined in an August 10, 2005 report, that appellant could work two hours per
day with restrictions. Appellant could sit, walk, perform normal hand functions and use his feet
to operate foot controls two hours per day. He could not climb, perform fine manipulation, reach
or work above his shoulder, operate a car, truck, tractor or other vehicle, perform repetitive
activities and lift no more than 10 pounds. Dr. Selod stated that appellant could not work in the
heat, cold or dampness.
The Board finds that Dr. Selod’s opinion is sufficiently well rationalized and based upon
a proper factual background such that it represents the weight of the medical evidence on the
issue of the extent of appellant’s disability and work restrictions.
On November 15, 2005 the employing establishment offered appellant a revised modified
carrier position based on Dr. Selod’s August 10, 2005 report. This position conformed to
Dr. Selod’s work restrictions. It required appellant to work two hours per day. The position
involved writing up accountable mail intermittently two hours per day, stocking supplies and
forms in the lobby one hour a day, answering the telephone and assisting customers and assisting
the lobby director with customers intermittently two hours per day. The physical requirements
included lifting no more than 10 pounds and sitting, standing, walking, fine manipulation, simple
grasping and talking intermittently up to two hours per day. Although the offered position
involved fine manipulation, it did not require appellant to do so for extended periods only
intermittently up to two hours.
The Board finds that the Office properly found that the offered modified carrier position
was suitable. The weight of the medical evidence establishes that appellant was no longer totally
6

20 C.F.R. § 10.517(a); see Ronald M. Jones, supra note 4.

7

20 C.F.R. § 10.516.

8

See Gayle Harris, 52 ECAB 319 (2001).

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disabled from work and has the physical capacity to perform the duties listed in the
November 15, 2005 job offer.
The Board further finds that the Office complied with its procedural requirements in
advising appellant that the position was found suitable, providing him with the opportunity to
accept the position or provide his reasons for refusing the job offer and notifying him of the
penalty provision of section 8106(c).9 By letter dated September 29, 2005, the Office advised
appellant that the offered position was suitable and provided him 30 days to accept the position
or provide reasons for his refusal. It further notified him that the position remained open, that he
would be paid any difference in pay between the offered position and his date-of-injury job, that
he could still accept without penalty and that a partially disabled employee who refused suitable
work was not entitled to compensation. Appellant refused the job offer because he was seeking
disability retirement. Retirement, however, is not considered an acceptable reason for refusing
an offer of suitable work.10 He also rejected the position on the grounds that Dr. Selod restricted
his work hours more than Dr. Corley.
The Office, in its November 15, 2005 letter, advised appellant that it had determined that
the revised offered position was suitable and based on Dr. Selod’s restrictions. Appellant had 15
days to accept the position. However, he again rejected the position because he was seeking
disability retirement. As noted, retirement is not considered an acceptable reason for refusing an
offer of suitable work.11 The Board finds that appellant has submitted no probative medical
evidence providing support for his refusal of suitable work. There is no medical evidence
establishing that he is totally disabled due to residuals of his accepted condition. Therefore,
appellant has not established a reasonable basis for refusing the offered position. As the weight
of the medical evidence established that he could perform the duties of the offered position,
appellant did not offer sufficient justification for refusing the position. The Board finds that the
Office met its burden of proof to terminate appellant’s compensation benefits effective
November 30, 2005, as he refused an offer of suitable work.12
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective November 30, 2005 on the grounds that he refused an offer of suitable work, pursuant
to 5 U.S.C. § 8106(c)(2).

9

See Bruce Sanborn, 49 ECAB 176 (1997).

10

Robert P. Mitchell, 52 ECAB 116 (2000) (where the claimant chose to receive disability retirement benefits
rather than accept a position offered by the employing establishment).
11

Id.

12

Karen L. Yaeger, 54 ECAB 323 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the November 30, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF THE AIR FORCE,
96th CIVIL ENGINEER GROUP,
ELGIN AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 18-1012
Issued: October 29, 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 April 16, 2018 appellant filed a timely appeal from an October 24, 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
The issue is whether appellant has met his burden of proof to establish an injury causally
related to the accepted September 12, 2017 employment incident.
FACTUAL HISTORY
On September 13, 2017 appellant, then a 29-year-old forestry technician, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a headache, abdominal pain, and ringing in
1

5 U.S.C. § 8101 et seq.

his right ear that arose while in the performance of duty on September 12, 2017. He claimed that
while working to extinguish a wildfire, he was knocked off his feet due to a large, loud explosion
to the west of his location. Appellant stopped work on September 12, 2017 and resumed his
regular duties the following day.
In support of the claim, OWCP received a May 18, 2017 notification of personnel action
(Form SF-50) and a civilian forestry technician position description.
By a September 19, 2017 claim development letter, OWCP advised appellant that he
needed to submit medical evidence in support of his claim for FECA benefits. It specifically noted
that no medical evidence had been received, and therefore, there was no diagnosis of a condition
resulting from the alleged injury. OWCP afforded appellant at least 30 days to submit the
requested information.2
OWCP subsequently received September 14, 2017 discharge instructions from Elgin
Emergency Department. Cherly Athern, a certified physician assistant, treated appellant for a
headache. Appellant was discharged that same day with instructions to take Tylenol or Motrin for
pain and to follow-up with his primary care physician in two to three days.
By decision dated October 24, 2017, OWCP found that, although appellant established the
factual component of fact of injury, he failed to establish a medical diagnosis in connection with
the accepted September 12, 2017 employment incident. Consequently, it found that he failed to
establish the “medical component” of fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that any
specific condition or disability claimed is causally related to the employment injury.4
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal
injury.6
Although properly addressed, OWCP’s September 19, 2017 claim development letter was returned as
undeliverable.
2

3

Id.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

2

Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.7
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury
causally related to the accepted September 12, 2017 employment incident.
Appellant submitted emergency room discharge instructions dated September 14, 2017
prepared by a physician assistant who diagnosed headache and recommended Tylenol or Motrin
for pain. He was instructed to follow-up with his primary care physician. Under FECA, a
physician assistant is not competent to render a medical opinion unless his or her findings have
been countersigned by a qualified physician.9 In this instance, there is no indication that
Ms. Athern’s September 14, 2017 diagnosis of a headache was countersigned by a qualified
physician.10 Accordingly, the physician assistant’s discharge instructions are insufficient to satisfy
appellant’s burden of proof with respect to establishing the medical component of fact of injury.11
Currently, there is no competent medical evidence of record that establishes a medical diagnosis
in connection with the accepted employment incident. Consequently, appellant failed to establish
that he sustained an injury causally related to the accepted September 12, 2017 employment
incident.
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 an injury
causally related to the accepted September 12, 2017 employment incident.

7

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

8

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).
9

Supra note 8.

10

The Elgin Emergency Department discharge instructions made no mention of a particular date of injury or cause
of injury.
11

Supra note 8; see Deborah L. Beatty, 54 ECAB 340, 341 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 29, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., claiming as guardian of A.V. (son of R.V.),
Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lompoc, CA, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1671
Issued: November 6, 2018

Case Submitted on the Record

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

JURISDICTION
On July 27, 2017 appellant, through counsel, filed a timely appeal from an April 10, 2017
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 her burden of proof to establish entitlement to
survivor’s benefits on behalf of the deceased employee’s son.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts as presented in the Board’s
prior decision are incorporated herein by reference. The relevant facts are as follows.
On June 6, 2014 appellant filed a claim for compensation by widow, widower, and/or
children (Form CA-5) in her capacity as mother and guardian of the minor son of the deceased
employee. She claimed that the employee’s death on February 10, 2012 was causally related to
his work as a correctional officer for the employing establishment.4 The record contains an
amended certificate of death, issued by Santa Barbara County on March 19, 2012, listing the
employee’s immediate cause of death on February 10, 2012 (estimated time, 7:36 a.m.) as
“gunshot wound of head,”5 The manner of death as “suicide,” and “other significant conditions”
as depression, bipolar disorder, and paranoia.6
In an undated statement received by OWCP on June 9, 2014, appellant indicated that she
was the mother of the employee’s minor son who was born on April 9, 2006. She noted that she
moved with her son to Wyoming in March 2011 and later divorced the employee, but that she still
remained good friends with the employee and talked with him nearly every day. Appellant asserted
that, beginning in approximately May 2011, the employee repeatedly told her that he was afraid
of what might happen to him at work. The employee told her that he found a weapon with his
name on it, which was not his weapon, and kept saying, “They’re going to kill me,” referring to
people at the prison. Appellant noted that the employee had been receiving treatment in 2011 for
emotional problems.
In an undated statement received by OWCP on June 9, 2014, the employee’s stepmother
indicated that in August 2011, after his divorce, the employee came to live with her, his father, and
his brother and sister. She noted that the employee was saddened by losing his son and by his
girlfriend making him move out of the residence they shared. The employee’s stepmother advised
3

Docket No. 15-0905 (issued September 19, 2016).

4

Appellant indicated on the form that she was not living with the employee at the time of his death. Other
documents of record, including marriage and birth certificates, show that the minor son was born to appellant and the
employee while they were married. Divorce papers for appellant and the employee were filed in April 2011 and were
finalized in August 2011. The employee worked as a correctional officer at the time of his death.
5

The description of how the injury occurred was listed as “decedent shot himself in the head with a handgun.”

6

A March 29, 2012 coroner’s report indicated that on February 10, 2012 the employee committed suicide at work
with a prison-issued weapon. The report contained statements from several people, including the employee’s mother
who indicated that he was being treated for depression related to his divorce, his girlfriend who noted that he had
commented on “having problems at work,” and his psychiatrist who indicated that he displayed signs of paranoia by
reporting that unspecified people were out to get him. A March 2, 2012 toxicology report showed post-death positive
findings for caffeine, nicotine/cotinine, and Olanzapine (an anti-psychotic medication).

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that the employee reported being harassed and threatened at work by two coworkers, one of whom
caused him to be very afraid, and that agents from the Federal Bureau of Investigation (FBI) and
Immigration and Customs Enforcement (ICE) were following him and calling him. She noted that
one night in October 2011 the employee came home and told his brother that a “hit” had been
placed on him and that a Washington, DC, gang tried to kill him. The employee reported that he
proceeded to lock up a prisoner in a cell and was then cornered in the cell by six Washington, DC
gang members, one of whom was crouched down with a weapon. The employee’s stepmother
noted that the employee advised that, before the gang members harmed him, a prisoner (whom the
employee previously protected against guards) came into the cell, called off the gang members,
and yelled, “Remember, I saved you.” She indicated that the employee claimed to have hit the
panic button to call for backup, but that no one came and that, the next evening when he was off
on sick leave, a fellow guard told him that they found a plexiglass shank “on the keyboard by [his]
office.”
Counsel produced a document entitled “Cast of Characters” detailing incidents and
conditions at work between 2009 and 2012 that appellant believed contributed to the employee’s
suicide. The document indicated that, on December 3, 2009, the employee assisted two officers
who were handcuffing an inmate, on August 10, 2010, he was threatened by a coworker who stated
that he would assault him when he saw him downtown, on August 15, 2010, the same coworker
stared at him threateningly and told him that he and another coworker would be waiting for him in
the parking lot;7 and on September 29, 2011 the employee found a knife in a lockbox in his unit at
work and called for assistance. The summary document noted that, on an unspecified date in
October 2011, several prisoners cornered and attacked the employee. The employee allegedly
pressed a panic button, but did not receive immediate assistance. It was indicated that a prisoner
saved the employee by calling off the attack after the employee reminded him of a favor he had
done for him and that the employee believed that the attack was a “set-up.” The document noted
that a plexiglass knife was later found near the employee’s office and that, on unspecified dates in
October 2011, the prisoner who saved the employee from attack was beaten by prison guards and
transferred to another location shortly thereafter.8
The record contains a photocopy of a photograph of an object identified as a homemade
weapon comprised of two pieces of plexiglass (approximately five-and-a-half inches long) fused
together and sharpened on one end. The document indicates that the weapon was found on
October 5, 2011 in the F-Unit on top of the D-Range lock box.
The record contains notes of sessions conducted by the employee’s marriage and family
therapist. On October 17, 2011 the therapist indicated that the employee had reported that he had
a traumatic incident at work approximately two and half weeks prior and that he thought he was
going to get killed. She noted that the employee reported that he had been cornered by inmates in
7
The document indicated that, on an unspecified date in September 2010, the coworker repeated his threats and
that, on an unspecified date in November 2010, the coworker’s wife told the employee that the coworker intended to
provoke him at work.
8

Counsel indicated that in December 2011 appellant filed a workers’ compensation claim with OWCP. However,
he later acknowledged in an August 26, 2014 letter to OWCP that he could find no evidence that appellant filed a
workers’ compensation claim at any time.

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a cell and that people were “messing [with] him” at work. The employee also indicated that his
divorce had been finalized several months prior and that his ex-wife got full custody of their child
using “phoney” documents.
In a report dated October 20, 2011, Dr. Steven K. Yao, an attending Board-certified
emergency medicine physician, indicated that the employee presented with a chief complaint of
paranoia and reported symptoms of gradual onset within the past four days. He noted that the
employee believed that there was a “hit on his life” from a man in prison and that he had been
followed by the FBI and the U.S. Secret Service for the past four days. The employee also noted
that “other individuals” informed him that the FBI would stop following him if he went to the
hospital. Dr. Yao indicated that the employee did not display suicidal ideation, but that he
exhibited evidence of acute psychosis characterized by paranoid delusions. The employee
voluntarily admitted himself to the hospital and was given medication. In medical records dated
October 20 and 21, 2011, the employee reported that he was having frequent flashbacks to a prison
incident two weeks prior “where his safety and the safety of his unit was [sic] compromised.” He
also asserted that an inmate put a “hit on me on the street,” that a friend was told by the FBI that
there was a “hit on me,” and that he was subjected to camera surveillance at a friend’s house and
followed by the U.S. Secret Service. The records show that he tested positive for marijuana and
amphetamines. A hospital discharge summary dated October 23, 2011 contained the diagnosis of
bipolar I disorder, most recent episode mixed, severe with psychotic features.9
In reports from late-October 2011, Dr. Angeline Y. DeGuzman, an attending Boardcertified psychiatrist, noted that the employee claimed to have had flashbacks from an incident at
work. The employee felt that he was being watched at work and reported that a knife was found
in his unit on September 29, 2011. On October 27, 2011 Dr. DeGuzman diagnosed bipolar I
disorder, most recent episode manic with psychotic features, rule out alcohol and cannabis abuse.
In an October 31, 2011 note, Dr. DeGuzman related that, in the beginning of October 2011,
the employee alleged to have been cornered in a cell when getting bags from an inmate and the
other prisoners gave him the “death look.” The employee indicated that he was able to leave
unharmed, but that his “gripe” was that he was left alone in a cell block (with no lock down) and
he felt that he could have been killed.10
In a report May 22, 2014, produced after the employee’s death, Dr. Seth Bricklin, a clinical
psychologist, who evaluated the case postmortem at the request of counsel, interpreted the
evidence of record to show that a “precipitating event” led to the employee’s mental health
diagnosis, ultimately causing his suicide. The precipitating event occurred in early October 2011
when the employee was cornered by several prisoners and, as the prisoners were closing in and
about to attack, another prisoner intervened and stopped the attack. Dr. Bricklin diagnosed the
9
The discharge summary noted that the employee felt that the FBI had been following him and reported that his
symptoms especially worsened after “an incident at work when he had unsafe interactions with prisoners.”
10

In a November 7, 2011 note, the employee’s therapist noted that the employee believed that prison officials were
monitoring him and, in other notes from mid to late 2011, he mentioned “his incident” or “precipitating event.” The
therapist advised on December 17, 2011 that the employee had shown improvement with treatment and was cleared
to return to work.

4

employee as having chronic post-traumatic stress syndrome (PTSD) prior to his February 10, 2012
death and indicated, “In my opinion, the [precipitating event], which occurred while [the
employee] was performing his work duties, caused his diagnosis of PTSD. Furthermore, the
impairment caused by his diagnosis of PTSD was the primary cause of his suicide.” Dr. Bricklin
opined that, while there were several stressors that may have impacted the employee’s functioning
(i.e., the separation from his son, break-up with his girlfriend, and reported cannabis use), none of
them were sufficient to break the chain of causation between the precipitating event and his suicide.
In a June 12, 2014 development letter, OWCP requested that appellant submit additional
factual and medical evidence/information in support of her claim for survivor’s benefits, including
a description of the employee’s activities and symptoms for the week prior to his death, medical
records regarding previous treatment for similar symptoms, and a comprehensive narrative
medical report from a treating physician providing a reasoned opinion on the cause of the
employee’s death. It afforded her 30 days to respond.11 On June 30, 2014 OWCP received the
June 12, 2014 letter back with the notation, “Return to sender, attempted -- not known, unable to
forward.”
OWCP also sent a July 31, 2014 letter to the employing establishment requesting
information about the employee’s work, including information about any aspects of the
employee’s work that could be perceived as stressful (e.g., overtime, deadlines, quotas, travel,
intense assignments, and any conflict between the employee and coworkers or supervisors). It
requested that the employing establishment advise whether appellant had filed a stress claim prior
to his death.12 OWCP afforded the employing establishment 30 days to respond, but there is no
indication in the current case record that the employing establishment responded to the letter.
On August 11, 2014 counsel provided OWCP with a new address for appellant.
In a second development letter of August 14, 2014 sent to this new address, OWCP
requested that appellant submit additional factual and medical evidence/information in support of
her claim for survivor’s benefits, including any written statements the employee made about his
mental condition and incidents at work which influenced his medical condition, statements from
witnesses involved in any claimed incidents, and copies of grievances/complaints the employee
filed with respect to any such matters. It afforded her 30 days to respond.
In a separate letter dated August 14, 2014, OWCP requested that the employing
establishment provide information similar to that requested in its July 31, 2014 letter. It afforded
the employing establishment 30 days to respond.13
OWCP sent the letter to appellant’s address of record at the time. The letter contained a notation, “NOTE TO
THE EMPLOYER: Please provide all available assistance to the claimant to obtain the supporting documentation
necessary to facilitate this claim.” OWCP also sent a copy of the letter to an address for the employing establishment
that appellant listed on the Form CA-5 she filed on June 6, 2014 for survivor’s benefits.
11

12

For the July 31, 2014 letter, OWCP again used the address for the employing establishment that appellant listed
on her Form CA-5.
13
For the August 14, 2014 letter, OWCP again used the address for the employing establishment that appellant
listed on her Form CA-5.

5

In an August 26, 2014 letter, counsel indicated that he was unable to obtain any further
witness statements regarding the employee’s work situation prior to his death on
February 10, 2012. He advised that he believed that one of the employee’s medical records
referenced the filing of an unspecified claim, but he could not find any evidence that appellant
filed a workers’ compensation claim with OWCP. Counsel advised that the reference most likely
referred to a veteran’s application for compensation and/or pension.
By decision dated September 22, 2014, OWCP denied appellant’s claim for survivor’s
benefits on behalf of the deceased employee’s son because she had failed to establish any
compensable employment factors that could have caused an emotional condition that led to the
employee’s suicide on February 10, 2012. It noted that, while various workplace incidents were
alleged, “the specific incident of being cornered by inmates in October 2011 was not verified by
any of the evidence received in file.” OWCP noted, “The employing [establishment] has not
confirmed that the alleged harassment took place nor has other corroborating evidence been
received in file, such as statements from coworkers who witnessed the harassment, a workers’
compensation claim made by the decedent prior to his death, or findings of an agency/board/
arbitrator/investigative report….”
Appellant appealed her case to the Board and, in a September 19, 2016 decision,14 the
Board set aside OWCP’s September 22, 2014 decision and remanded the case for further
development. The Board found that OWCP had not properly developed appellant’s claim for
survivor’s benefits on behalf of the deceased employee’s son. The Board indicated that appellant
alleged that numerous work factors between 2009 and 2012 caused the employee to develop an
emotional condition that led to his suicide, but that OWCP had not adequately developed the record
regarding these allegations. The Board directed OWCP, on remand, to obtain additional
information from the employing establishment, including information about the employee’s
alleged work and incidents or conditions that might have caused him stress prior to his death on
February 10, 2012. The Board directed OWCP, after carrying out such development, to issue a de
novo decision regarding appellant’s claim for survivor’s benefits which contained adequate facts
and findings.
On remand OWCP sent a November 8, 2016 letter to the employing establishment again
requesting information about the employee’s work and incidents or conditions that might have
caused him stress. It requested that the employing establishment provide information similar to
that requested in its letters sent on July 31 and August 14, 2014.15 OWCP afforded the employing
establishment 30 days to respond. On December 1, 2016 it received the November 8, 2016 letter
back with the notation, “Return to sender, not deliverable as addressed, unable to forward.”16

14

See supra note 3.

15
OWCP used an address for the employing establishment that appellant listed on the Form CA-5 she filed on
June 6, 2014 for survivor’s benefits.
16

OWCP had also sent the letter to counsel at his address of record and to appellant at the outdated address used
for the June 12, 2014 letter. It is unclear whether the letter was received back on December 1, 2016 due to an improper
address pertaining to the employing establishment, counsel, or appellant.

6

OWCP also sent a November 29, 2016 letter to the employing establishment requesting
that it respond to additional questions about stressors the employee might have encountered at
work.17 It afforded the employing establishment 30 days to respond. On December 19, 2016
OWCP received the November 29, 2016 letter back with the notation, “Return to sender, not
deliverable as addressed, unable to forward.”18
By decision dated April 10, 2017, OWCP denied appellant’s claim for survivor’s benefits
for the benefit of the deceased employee’s son because she had failed to establish any compensable
employment factors that could have caused an emotional condition that led to the employee’s
suicide on February 10, 2012. It noted that, while various workplace harassment incidents were
“indicated by the decedent in medical evidence and witness statements on file,” the specific
incident of being cornered by inmates in October 2011 was not verified by any of the evidence
received in file. OWCP indicated, “The employing [establishment] has not confirmed that the
alleged harassment took place nor has other corroborating evidence been received in file, such as
statements from coworkers who witnessed the harassment, a workers’ compensation claim made
by the decedent prior to his death, or findings of an agency/board/arbitrator/investigative report,
[Equal Employment Opportunity Commission], or grievance, etc.”
LEGAL PRECEDENT
A claimant for survivor’s benefits has the burden of proof to establish by the weight of the
reliable, probative, and substantial evidence that the employee’s death was causally related to his
or her employment.19 To establish his or her claim that a deceased employee sustained stress in
the performance of duty, which precipitated his or her death, a claimant must submit the following:
(1) factual evidence identifying and supporting employment factors or incidents alleged to have
caused or contributed to his or her condition; (2) rationalized medical evidence establishing that
his or her death was due to or aggravated by an emotional reaction; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his or her death.”20
Appellant has the burden of proof to establish by a preponderance of the reliable, probative,
and substantial evidence the existence of a causal relationship between the employee’s death by
suicide and factors of his or her federal employment.21 The suicide itself must arise out of the
employee’s assigned duties to such an extent as to be regarded as arising out of and in the course
of employment.22 In determining whether an employee’s suicide is causally related to factors of
17

OWCP again used the address for the employing establishment that appellant listed on the Form CA-5.

18

OWCP had also sent the letter to counsel at his address of record and to appellant at the outdated address used
for the June 12, 2014 letter. It is unclear whether the letter was received back on December 19, 2016 due to an
improper address pertaining to the employing establishment, counsel, or appellant.
19

L.R. (E.R.), 58 ECAB 369 (2007).

20

See Martha L. Watson, 46 ECAB 407 (1995).

21

Rosita Mahana (Wayne Mahana), 53 ECAB 503 (2002).

22

Id.

7

his or her federal employment, OWCP has adopted the chain of causation test.23 OWCP’s Federal
(FECA) Procedure Manual explains that all suicide claims are not precluded by 5 U.S.C.
§ 8102(a)(2)24 and provides, “[C]ompensation can be paid if the job-related injury (or disease) and
its consequences directly resulted in the employee’s domination by a disturbance of the mind and
loss of normal judgment which, in an unbroken chain, resulted in suicide.”25 Under the chain of
causation test, OWCP’s Federal (FECA) Procedure Manual provides that, if the injury and its
consequences directly resulted in a mental disturbance, or physical condition which produced a
compulsion to commit suicide, and disabled the employee from exercising sound discretion or
judgment so as to control that compulsion, then the test is satisfied and the suicide is
compensable.26 OWCP’s Federal (FECA) Procedure Manual adds that, for the suicide to be
compensable, the chain of causation from the injury to the suicide must be unbroken.27
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,28 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.29 Where the claimed condition 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
condition comes within the coverage of FECA.30 A claimant must support his or her allegations
with probative and reliable evidence. Personal perceptions alone are insufficient to establish an
employment-related emotional condition.31
In cases involving emotional or stress-related 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
23

Id.

24

Section 8102(a)(2) of FECA precludes payment of compensation for disability or death sustained in the
performance of duty where the injury or death is caused by the employee’s intention to bring about the injury or death
of himself, herself, or another. See 5 U.S.C. § 8102(a)(2).
25

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.15 (September 1995).

26

Id. at Chapter 2.804.15b(2).

27

Id. at Chapter 2.804.15b(3).

28

28 ECAB 125 (1976).

29

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

30

L.S., Docket No. 16-0769 (issued July 11, 2016).

31

Roger Williams, 52 ECAB 468 (2001). For harassment to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in fact, occur. James E.
Norris, 52 ECAB 93 (2000).

8

employment and may not be considered.32 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.33
OWCP’s Federal (FECA) Procedure Manual provide that, if an employing establishment
fails to respond to a request for comments on a claimant’s allegations, OWCP’s claims examiner
may usually accept the claimant’s statements as factual. However, acceptance of the claimant’s
statements as factual is not automatic in the absence of a reply from the employing establishment,
especially in instances where performance of duty is questionable. OWCP’s Federal (FECA)
Procedure Manual further notes that the Board has consistently held that allegations unsupported
by probative evidence are not established and that OWCP’s claims examiner should consider the
totality of the evidence and evaluate any inconsistencies prior to making a determination.34
ANALYSIS
The Board finds that the case is not in posture for decision.
On June 6, 2014 appellant filed a claim for compensation by widow, widower, and/or
children (Form CA-5) in her capacity as mother and guardian of the minor son of the deceased
employee. She claimed that the employee’s February 10, 2012 death by suicide was due to an
emotional condition caused by incidents and conditions related to his job as a correctional officer
for the employing establishment. Appellant claimed that numerous work factors between 2009
and 2012, including an incident when the employee was attacked by inmates in October 2011,
caused him to develop an emotional condition that led to his suicide. She submitted medical
reports in which some of the claimed factors were discussed, including medical reports of
treatment of the employee shortly before he died.
In a September 19, 2016 decision, the Board set aside OWCP’s September 22, 2014
decision and remanded the case for further development. The Board found that OWCP had not
properly developed appellant’s claim for survivor’s benefits on behalf of the deceased employee’s
son. The Board indicated that appellant alleged that numerous work factors between 2009 and
2012 caused the employee to develop an emotional condition that led to his suicide, but that OWCP
had not adequately developed the record regarding these allegations. The Board directed OWCP,
on remand, to obtain additional information from the employing establishment, including
information about the employee’s alleged work and incidents or conditions that might have caused
him stress prior to his death on February 10, 2012. The Board directed OWCP, after carrying out
such development, to issue a de novo decision regarding appellant’s claim for survivor’s benefits
which contained adequate facts and findings.

32

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

33

Id.

34
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5d(1)
(June 2011). See also R.B., Docket No. 14-1663 (issued September 29, 2015) (citing Chapter 2.800.5d(1)).

9

On remand OWCP sent a November 8, 2016 letter to the employing establishment
requesting information about possible stressors at the employee’s work. It afforded the employing
establishment 30 days to respond. On December 1, 2016 OWCP received the November 8, 2016
letter back with the notation, “Return to sender, not deliverable as addressed, unable to forward.”
It also sent a November 29, 2016 letter to the employing establishment requesting information
about possible stressors at the employee’s work. OWCP again afforded the employing
establishment 30 days to respond. On December 19, 2016 it received the November 29, 2016 letter
back with the notation, “Return to sender, not deliverable as addressed, unable to forward.” The
Board notes that, after the November 9 and 29, 2016 development letters were returned, OWCP
did not conduct any further evidentiary development to obtain additional relevant evidence.
In its April 10, 2017 decision, OWCP denied appellant’s survivor benefits claims because
she had failed to establish any compensable employment factors that could have caused an
emotional condition that led to the employee’s suicide on February 10, 2012. In reaching this
determination, it indicated that, “The employing [establishment] has not confirmed that the alleged
harassment took place nor has other corroborating evidence been received in file, such as
statements from coworkers who witnessed the harassment, a workers’ compensation claim made
by the decedent prior to his death, or findings of an agency/board/arbitrator/investigative report,
EEO, or grievance, etc.” OWCP emphasized that appellant had not established “the specific
incident of being cornered by inmates in October 2011,” but it did not make any further specific
findings regarding the numerous employment factors appellant alleged the employee was exposed
to between 2009 and 2012.
The Board finds that OWCP has not fully developed appellant’s claim for survivor’s
benefits on behalf of the deceased employee’s son and, therefore, the case shall again be remanded
to OWCP for further development. Appellant alleged that numerous work factors between 2009
and 2012 caused the employee to develop an emotional condition that led to his suicide, but OWCP
has not adequately developed the claim regarding these specific allegations. In sending
development letters to the employing establishment, including those sent on November 8 and 29,
2016, OWCP used an address appellant listed on the Form CA-5 she filed on June 6, 2014 for
survivor’s benefits. As noted, these letters were returned to OWCP as undeliverable. On remand
it should verify the proper address for obtaining additional evidence from the employing
establishment necessary for development of the present claim and should take additional
appropriate steps for obtaining such evidence.
In addition, the Board notes that OWCP’s April 10, 2017 decision does not contain
significantly greater discussion of appellant’s claimed employment factors than OWCP’s
September 22, 2014 decision that the Board found deficient in its prior decision.
For these reasons, the case will be remanded to OWCP for further development to include
obtaining additional information from the employing establishment regarding the alleged workrelated incidents or conditions that might have caused him stress prior to his death on
February 10, 2012.35 After carrying out such further development, OWCP shall issue a de novo

35

See G.V., Docket No. 15-1899 (issued February 11, 2016); T.M., Docket No. 14-1631 (issued December 2, 2014).

10

decision, containing adequate findings of fact and a statement of reasons, with respect to
appellant’s claim for survivor’s benefits on behalf of the deceased employee’s son.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2017 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further action
consistent with this decision.
Issued: November 6, 2018
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dayton, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1405
Issued: April 16, 2008

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 May 1, 2007 appellant filed a timely appeal from the April 9, 2007 merit decision of
an Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial
of his claim for traumatic injury. Pursuant to 20 C.F.R. §§ 502.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury on March 20, 2006.
FACTUAL HISTORY
On April 4, 2006 appellant, then a 35-year-old letter carrier, filed a claim alleging that he
injured his low back on March 20, 2006 when he slipped on his postal route. He stopped work
on April 4, 2006 and returned to duty in May, before stopping work again. Appellant’s claim
was controverted by the employing establishment.1
1

It was noted that, prior to April 4, 2006, appellant moved firewood at the home of a supervisor.

By letter dated April 10, 2006, the Office advised appellant that it had received his claim
and that he should provide a physician’s opinion as to how his low back condition resulted from
the March 20, 2006 incident.
Appellant submitted an April 6, 2006 disability certificate from Dr. Choong Young Rhee,
an internist and staff physician at a local urgent care facility. Dr. Rhee noted that appellant
would be off work until April 10, 2006. A magnetic resonance imaging (MRI) scan was
obtained on April 6, 2006, which revealed some degenerative disc desiccation at L3-5, otherwise
testing was normal and reported negative for any disc herniation or spinal stenosis. On April 19,
2006 Dr. Joseph T. Ewing, a chiropractor, stated that appellant would be totally disabled until
May 1, 2006. He reported a history that appellant experienced low back pain while in the
military and claimed to have reinjured his back on March 20, 2006. Dr. Ewing diagnosed a
lumbosacral sprain/strain with an aggravation of preexisting lumbar disc disease. He reviewed
x-rays obtained on April 4, 2006 and stated that they revealed “typical lumbar vertebrae and
spacing.” Dr. Ewing noted osseous malalignment and lordosis with mild spondylosis at L3 and
L4. He advised that appellant would be treated with chiropractic manipulation.
By decision dated May 15, 2006, the Office denied appellant’s claim. It found the
medical evidence of record insufficient to establish that the March 20, 2006 incident caused a
low back injury.
Appellant requested an oral hearing which was held on January 9, 2007. He submitted
records pertaining to his treatment at a local emergency room on April 4, 2006, where he was
seen by a Dr. Charles M. McIntosh who noted that x-rays were obtained, indicating on form
report that there was no sign of fracture or disc displacement. Dr. McIntosh provided a diagnosis
of acute low back pain and acute myofascial lumbar strain. In a February 7, 2007 note,
Dr. Kingsley A. Ozoude, a Board-certified radiologist, stated that he saw appellant on
January 19, 2007, at which time “I thought the patient’s symptoms were the result of a fall on
March 20, 2006.” He noted that appellant related that severe pain started on April 4, 2006. An
MRI scan was obtained on December 26, 2006 by a Dr. J. Keith Birdwell. He noted
degenerative spurring at L2-3 and L3-4, minimally at L1-2 and a four millimeter (mm)
retrolisthesis of L3 on L4. Dr. Raymond J. Poelstra, a Board-certified neurosurgeon, reported on
December 26, 2006 that appellant presented with a history of low back pain “on and off” over
time, with a bulging disc diagnosed while in the military. He noted appellant’s employment as a
letter carrier and obtained a history of low back pain on April 4, 2006, for which he went to a
local emergency room. Presently, appellant experienced low back pain with no radiation of pain
to the legs. Dr. Poelstra noted findings on examination, including bilateral extremity strength
and negative straight leg raising. An MRI scan was obtained that day, which revealed bilateral
facet arthropathy from L2-3 through L5-S1 with mild diffuse disc bulging at L3-4 and L4-5 with
loss of disc hydration at L2-3 and L4-5.
In an undated note, Dr. Ewing advised counsel for appellant that x-rays had been
obtained on April 4, 2006, which he reviewed on his initial evaluation of appellant. He noted
that they demonstrated osseous malalignment of the lumbar spine, with a rotational subluxation
of L5 and retrolisthesis of L3. Dr. Ewing stated that appellant’s treatment had consisted of
manipulation to reduce the subluxations. He submitted his treatment notes for the period
April 19 to November 1, 2006. Appellant also submitted the notes of Dr. Rhee. On April 6,

2

2006 Dr. Rhee stated that appellant sought treatment at the urgent care facility for chronic back
pain. Appellant related a history of back problems for 10 years, with an MRI scan obtained in
1998 while in the service, which showed a herniated disc. He stated that lifestyle changes helped
relieve the pain until he slipped in snow several weeks prior. Appellant was treated
intermittently at the urgent care facility.
In a November 27, 2006 report, Dr. John Petty, Board-certified in physical medicine and
rehabilitation, evaluated appellant at the request of Dr. Timothy Heyd. He reviewed a history of
injury and medical treatment, noting that appellant’s chief complaint was pain in the midline low
back. Appellant originally injured his back while in military service and was treated with
epidural steroid injections. He was discharged in 1999 and did well until April 2006. Appellant
described slipping in the snow while delivering mail and experiencing acute low back pain.
Dr. Petty noted that appellant’s pain symptoms did not radiate into either leg but increased with
activity. He provided findings on physical examination, noting palpable tenderness of the
midline of the lumbar spine from L3 through S1. Lumbar flexion and extension were both
limited. Dr. Petty recommended repeat diagnostic studies for which appellant was referred to
Dr. Poelstra. As appellant believed he was improving with chiropractic treatment, he would
continue that program.
In a note dated January 19, 2007, Dr. Poelstra noted that the recent MRI scan showed
degenerative changes compatible with appellant’s age but which was not amenable to surgical
intervention. He stated: “[appellant] is a letter carrier and stated that he started to notice [pain]
about two weeks after he slipped on some ice while on his mail route. It was discussed with the
patient that while this may have been causative it is difficult to evaluate the exact origin.”
Dr. Poelstra indicated that other duties at the post office might need to be considered.
On January 19, 2007 Dr. Ozoude advised that the December 26, 2006 MRI scan
demonstrated bilateral facet arthropathy of L2-3 through L5-S1. However, appellant had been
advised that he was not a surgical candidate. Dr. Ozoude recommended facet joint injections,
following which his condition would be evaluated.
Appellant returned to Dr. Petty on February 2, 2007, at which time he noted that no
evidence of a focal disc herniation, stenosis or nerve root compression had been found. He noted
improvement in his back pain with the facet joint steroid injections.
In an April 9, 2007 decision, an Office hearing representative affirmed the denial of
appellant’s claim. She noted that, although the medical evidence revealed a preexisting low back
condition, the medical evidence submitted to support the claim did not adequately address how
the March 20, 2006 incident aggravated or contributed to appellant’s back condition and need for
medical treatment commencing April 6, 2006.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his claim. When the employee claims injury in
the performance of duty, he must submit sufficient evidence to establish that he sustained a
specific incident at the time, place and in the manner alleged and that such incident caused an

3

injury.2 The mere fact that a condition manifests itself or worsens during a period of
employment does not raise an inference of causal relationship.3
To establish a causal relationship between an employee’s condition and an alleged
employment injury, he must submit rationalized medical opinion from a physician based on a
complete and accurate medical and factual background.4 The physician’s opinion must be
expressed in terms of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the claimant’s
employment factors.5 The issue of whether an employee sustained an aggravation of a
preexisting back condition is medical in nature and can only be resolved by the submission of
probative medical evidence.6
ANALYSIS
Appellant alleged injury to his low back on March 20, 2006 when he slipped in snow
while on his postal route. The Office accepted that the employment incident occurred as alleged.
The issue on appeal, therefore, is whether appellant submitted sufficient medical evidence to
establish that his low back condition was caused or contributed to by the employment incident.
The evidence reflects that appellant did not seek medical attention for his low back
condition following the March 20, 2006 incident until April 4, 2006, when he sought treatment at
a local emergency room. He was treated by Dr. McIntosh, who noted that x-rays obtained that
date were negative for fracture or disc herniation. Dr. McIntosh diagnosed acute low back pain
and myofascial back strain. Appellant was next treated at an urgent care facility for back pain on
April 6, 2006. He was seen by Dr. Rhee, who obtained a medical history that appellant had
previously injured his low back while in military service. Although stating that appellant had
chronic back pain, Dr. Rhee did not provide a firm medical diagnosis. Appellant was thereafter
referred for diagnostic studies and an MRI scan was obtained on April 6, 2006. It revealed
degenerative disc disease of the lumbar spine, but was otherwise reported as negative for any
herniated disc or significant spinal stenosis.
On April 19, 2006 appellant came under the treatment of Dr. Ewing, a chiropractor, who
stated that he reviewed the x-rays obtained on April 4, 2006. He initially diagnosed a
lumbosacral strain with an aggravation of preexisting lumbar disc disease. After being advised
as to the limitations of treatment by chiropractors under the Act, Dr. Ewing subsequently

2

See John W. Montoya, 54 ECAB 308 (2003).

3

See Louis T. Blair, Jr., 54 ECAB 348 (2003).

4

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

See Charles W. Downey, 54 ECAB 421 (2003).

6

George C. Vernon, 54 ECAB 319 (2003).

4

diagnosed a rotational subluxation and his treatment records indicate that he provided manual
manipulation of the spine.7
On November 27, 2006 appellant was evaluated by Dr. Petty for complaints of midline
low back pain. Dr. Petty noted appellant’s history of a prior back injury while in military
service, noting that he did well from 1999 until April, 2006. After providing findings on
examination of appellant, he recommended additional diagnostic studies. Another MRI scan was
obtained and reviewed by Dr. Poelstra, who noted degenerative changes compatible with
appellant’s age but not amenable to surgical intervention. Dr. Poelstra noted appellant’s history
of injury medical treatment and advised that his duties at the post office might need to be
changed. The reports of Dr. Petty and Dr. Poelstra do not provide a firm medical diagnosis of
appellant’s medical condition or provide a reasoned medical explanation as to how the March 20,
2006 incident of slipping in snow would cause or contribute to appellant’s low back symptoms
commencing April 4, 2006. The record reflects that appellant returned to Dr. Petty on
February 7, 2007, at which time the physician advised that there was no evidence of a focal disc
herniation, stenosis or nerve root compression. Appellant continued with chiropractic treatment
and also received facet joint steroid injections.
As submitted, the medical evidence of record does not provide a fully rationalized
opinion from any physician addressing the issue of causal relationship. While it is apparent that
appellant sustained injury to his low back while in military service, a preexisting condition; the
medical evidence does not provide any explanation based on reasonable medical certainty
detailing how appellant’s low back degenerative disc disease was aggravated or contributed to by
the March 20, 2006 slip in snow while delivering mail. Although there are extensive treatment
records, there is a lack of a firm medical diagnosis. Dr. McIntosh noted a myofascial strain of
the low back on April 4, 2006, but did not provide any explanation of how the strain related back
to the incident accepted in this case. Dr. Ozoude saw appellant on January 19, 2007 and stated:
“I thought the patient’s symptoms were the result of a fall on March 20, 2006.” However, this
opinion is inaccurate as appellant has made it clear he did not fall on March 20, 2006. Moreover,
there was no explanation by Dr. Ozoude for his stated conclusion on causal relationship.
Dr. Ewing, the chiropractor, diagnosed a spinal subluxation but his reports do not adequately
address how this condition was caused or contributed to by appellant’s slipping on snow. For
these reasons, the Board finds that appellant has not met his burden of proof to establish that his
preexisting low back condition was aggravated or contributed to by the March 20, 2006
employment incident.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical evidence to establish
that the March 20, 2006 incident at work caused or contributed to an injury or disability
commencing April 4, 2006.

7

Section 8101(2) of the Act defines the term “physician” to include chiropractors only to the extent that their
reimbursable services as limited to treatment consisting of manual manipulation of the spine to correct a subluxation
as demonstrated by x-ray to exist. See 5 U.S.C. § 8101(2); 20 C.F.R. § 10.311. The regulations provide that a
chiropractor may interpret his or her x-rays to the same extent as any other physician.

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ORDER
IT IS HEREBY ORDERED THAT the April 9, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 16, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF COMMERCE,
DECENNIAL CENSUS, Jackson, MS, Employer
__________________________________________

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Appearances:
Robert Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1416
Issued: August 20, 2015

Case Submitted on the Record

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

JURISDICTION
On June 10, 2014 appellant, through counsel, filed a timely appeal from a March 25,
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.2
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits as of July 15, 2013; and (2) whether appellant
met his burden of proof to establish residuals or continuing disability causally related to the
accepted injury, after July 15, 2013.

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.321.

FACTUAL HISTORY
On October 19, 2000 appellant, then a 38-year-old census office manager, filed a
traumatic injury claim (Form CA-1) alleging that on September 20, 2000 he sustained a back
injury in the performance of duty, when he was moving a soda machine in the staff break room.
The reverse of the claim form indicated that appellant stopped work on September 22, 2000.
Appellant received treatment from Dr. Guy Vise, a Board-certified orthopedic surgeon.
In a report dated October 24, 2000, Dr. Vise provided a history and results on examination. He
noted that x-rays had been taken in September 2000 and films revealed normal disc spaces.
Dr. Vise diagnosed acute lumbar strain. On January 10, 2001 OWCP accepted the claim for a
lumbar strain. Appellant remained off work and received compensation benefits.
OWCP referred appellant for a second opinion examination by Dr. Wallace Weatherly, a
Board-certified orthopedic surgeon to determine his ability to return to work. In a report dated
June 3, 2002, Dr. Weatherly provided a history and results on examination. He diagnosed
subjective complaints of lumbar pain with minimal objective findings. Dr. Weatherly stated that
appellant’s condition had probably resolved.
Following proper notices, by decision dated July 26, 2002, OWCP terminated appellant’s
compensation. After a request for hearing, in a decision dated December 5, 2002, an OWCP
hearing representative affirmed the termination of compensation. Appellant requested
reconsideration by letter dated May 31, 2003 and submitted a January 9, 2003 report from
Dr. Harold J. Wheeler, Board-certified in internal medicine.
OWCP again referred appellant for a second opinion examination. In a report dated
October 7, 2003, Dr. Neal Capel, a Board-certified orthopedic surgeon, provided a history and
results on examination. He stated that the lumbosacral strain was now chronic, and a July 29,
2002 magnetic resonance imaging (MRI) scan showed a L5-S1 herniated disc. Dr. Capel opined
that the herniated disc was causally related to the employment injury.
By decision dated April 6, 2004, OWCP vacated the December 5, 2002 OWCP decision.
It accepted an L5-S1 herniated disc and appellant’s wage-loss compensation was retroactively
restored to the prior date of termination.
Appellant continued treatment with Dr. Wheeler. Multiple form reports were submitted
to the record during 2006 and 2007 from Dr. Wheeler in which he indicated that appellant was
unable to return to work due to his back condition.
On December 14, 2007 OWCP referred appellant for another second opinion examination
to determine the extent of appellant’s employment-related disability. In a report dated
January 23, 2008, Dr. Fred Sandifer, a Board-certified orthopedic surgeon, provided a history
and results on examination. He opined that appellant’s employment-related condition had not
resolved. Dr. Sandifer stated that the work-related condition had “eventuated in a degenerative
disc disease of L5-S1 with collapse of the disc.”
Appellant underwent a functional capacity evaluation on April 9, 2009. OWCP referred
him for a second opinion examination by Dr. Daneca DiPaolo, a Board-certified orthopedic
surgeon. In a report dated April 29, 2009, Dr. DiPaolo provided a history and results on
2

examination. He stated that appellant needed more recent diagnostic tests of the lumbar spine,
including an MRI scan and electromyogram (EMG). The record indicates that appellant
underwent an MRI scan on May 28, 2009, and an EMG/nerve conduction study was performed
on June 17, 2009.
In addition, appellant underwent a lumbar MRI scan on August 12, 2010. In a report of
that date, Dr. Dean Tanner, a radiologist, diagnosed spondylolisthesis and associated central
canal stenosis. He stated no significant focal disc herniation was seen. In an MRI scan report
dated May 23, 2012, Dr. Tanner diagnosed a L5-S1 grade 2 spondylolisthesis with moderate
central canal and bilateral foraminal stenosis. He stated the overall appearance of the
degenerative changes were unchanged from the previous study.
OWCP referred appellant to Dr. James Galyon, a Board-certified orthopedic surgeon, for
a second opinion examination. In a report dated March 28, 2013, Dr. Galyon provided a history
and results on examination. He diagnosed moderate spondylolisthesis aggravated by an injury in
September 2000. Dr. Galyon further stated:
“I do not believe that [appellant] has a herniated nucleus pulposus. There is one
MRI [scan] report that says that there may be a small herniated nucleus pulposus
but I do not believe so with my physical examination. I do believe that
[appellant] has a spondylolisthesis which is not caused by work. I do believe that
he had an aggravation of his spondylolisthesis in 2000. It is unlikely that is the
persistent cause of [appellant’s] back pain. I believe that his back pain was due to
a congenital spondylolisthesis which is demonstrated on multiple studies and
morbid obesity which is obvious to any examiner and the patient admits to current
weight of between 368 [to] 390 pounds. I do believe that the lumbar sprain has
resolved.”
By letter dated May 31, 2013, OWCP advised appellant that it proposed to terminate his
compensation for wage-loss and medical benefits based on the medical evidence. Appellant was
advised to submit evidence or argument within 30 days if he disagreed with the proposed action.
In a decision dated July 15, 2013, OWCP terminated compensation for wage-loss and
medical benefits. It found Dr. Galyon represented the weight of the medical evidence.
Appellant requested a hearing before an OWCP hearing representative.
On December 27, 2013 OWCP received a June 13, 2013 MRI scan report from Dr. Mary
Moss, a radiologist, diagnosing spondylolisthesis L5-S1 with degenerative disease and right
paracentral disc protrusion.
Appellant also submitted a February 18, 2014 report from Dr. Wheeler, who stated that
appellant continued to be totally disabled, and in view of his excessive weight it was unlikely he
could be gainfully employed. According to Dr. Wheeler, appellant’s employment injury had
contributed to a fall on October 30, 2008, and this resulted in a torn right rotator cuff, right hip
edema, and aggravated degenerative joint disease. He stated that appellant did have a herniated
disc, referring to diagnostic studies from 2002 and 2009, and a June 13, 2013 MRI scan.
Dr. Wheeler stated that Dr. Galyon seemed to say that appellant was disabled due to his weight,
without considering whether weight gain was a consequential injury. As to appellant’s weight,
3

Dr. Wheeler stated that appellant was obese prior to the employment incident, but it did not keep
appellant from working. According to Dr. Wheeler, Dr. Galyon failed to take into account
appellant’s right shoulder and right hip conditions and failed to consider whether these
conditions were consequential injuries.
By decision dated March 25, 2014, the hearing representative affirmed the July 15, 2013
decision. She found Dr. Galyon represented the weight of the medical evidence and
Dr. Wheeler’s report was not sufficiently rationalized to establish continuing disability.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.3 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition which require further medical treatment.4
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested, and the medical rationale expressed is support of the physician’s
opinion.5
ANALYSIS -- ISSUE 1
In the present case, OWCP terminated compensation for wage-loss and medical benefits
as of July 15, 2013. It found that the weight of the medical evidence was represented by
Dr. Galyon, the second opinion physician, in his March 28, 2013 report.
Dr. Galyon opined that appellant did not have a continuing employment-related
condition. He found that there was no continuing herniated disc or lumbar strain, and any
aggravation of spondylolisthesis had resolved. Dr. Galyon opined that appellant’s current back
condition was casually related to his underlying, congenital spondylolisthesis.
In this regard the Board notes that OWCP had accepted a lumbar strain and a herniated
L5-S1 disc. Appellant argues that Dr. Galyon did not properly adhere to the SOAF and did not
find a herniated disc as employment related, but he stated that appellant “has” no herniated disc
at the time of examination, and the issue in a termination case is whether appellant has residuals
of an employment-related condition. In this regard Dr. Galyon had noted the diagnostic studies,
which included the most recent MRI scan studies at that time dated August 12, 2010 and
3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Furman G. Peake, 41 ECAB 361 (1990).

5

Gary R. Sieber, 46 ECAB 215 (1994).

4

May 23, 2012. Neither of these reports diagnosed a disc herniation. The opinion that appellant
did not have a continuing herniated disc was consistent with the medical evidence.
To the extent that Dr. Galyon deviated from the SOAF, it was to find that appellant had
an additional employment-related condition. Dr. Galyon indicated that appellant had sustained
an aggravation of underlying spondylolisthesis from the September 2000 injury. But again, the
issue is whether appellant continued to have an employment-related condition or disability, at the
time his compensation was terminated. Dr. Galyon explains that appellant’s current condition
was not an employment-related aggravation, but rather preexisting spondylolisthesis and obesity.
The Board finds that Dr. Galyon provided a medical opinion, supported by sound medical
rationale, that appellant’s accepted conditions of lumbar strain and L5-S1 herniated disc had
resolved as of July 15, 2013.
LEGAL PRECEDENT -- ISSUE 2
After termination of compensation benefits clearly warranted on the basis of the
evidence, the burden of reinstating compensation shifts to the claimant. To prevail, the claimant
must establish by the weight of the reliable, probative, and substantial evidence that he had
employment-related residuals or disability which continued after termination of compensation
benefits.6
FECA provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make the examination.7 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee or impartial examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.
ANALYSIS -- ISSUE 2
The Board finds that there was an unresolved conflict in the medical evidence as to
whether appellant continued to have an employment-related disabling condition after
July 15, 2013. Dr. Galyon opined that appellant did not have a continuing employment-related
condition. He found that there was no continuing herniated disc or lumbar strain, and any
aggravation of spondylolisthesis had resolved. Dr. Galyon opined that appellant had an
aggravation of his congenital spondylolisthesis due the accepted back injury, but that this
aggravation had resolved and his current back condition was causally related to his underlying,
congenital spondylolisthesis.
On the other hand, Dr. Wheeler, appellant’s long time treating physician, opined in his
February 18, 2014 report that appellant continued to have employment-related residuals and
6

See R.J., 59 ECAB 695 (2005).

7

5 U.S.C. § 8123.

5

disability. He opined that appellant had sustained a consequential fall on October 30, 2008
resulting in a torn right rotator cuff, right hip edema, and aggravated degenerative joint disease.
According to Dr. Wheeler, appellant’s weight gain was also a consequential injury, and
appellant’s herniated disc had not resolved. The Board thus finds an unresolved conflict in the
medical evidence as to whether appellant continued to have residuals or continuing disability
causally related to the accepted employment injury, after the termination of benefits. This case
must therefore be remanded to OWCP for preparation of a new statement of accepted facts and
selection of an impartial medical examiner to resolve the conflict of medical evidence. After
such further development as necessary, OWCP shall issue an appropriate decision.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation for wage-loss and medical benefits effective July 15, 2013. The Board also finds
that a conflict exists in the medical evidence as to whether he had residuals or continuing
disability after July 15, 2013, causally related to the accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2014 is affirmed in part, and set aside and remanded in
part.
Issued: August 20, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6