United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Olathe, KS, Employer
__________________________________________

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

Docket No. 17-1020
Issued: July 10, 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 April 10, 2017 appellant filed a timely appeal from a November 3, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition causally related to work factors occurring on April 29, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On May 5, 2010 appellant, then a 46-year-old air traffic control specialist, filed a traumatic
injury claim (Form CA-1) alleging that, on April 29, 2010, she sustained post-traumatic stress
disorder (PTSD) as a result of harassment and intimidation in the course of her federal
employment. She stopped work on April 29, 2010.
In a report dated May 13, 2010, Dr. Michael I. Gruenebaum, a Board-certified internist,
noted that appellant had experienced stress at work for months. He diagnosed sinus tachycardia
and acute anxiety disorder. On May 28 and June 24, 2010 Dr. Gruenebaum diagnosed PTSD as a
result of intimidation in the workplace.2
By decision dated August 12, 2010, OWCP denied appellant’s emotional condition claim.
It adjudicated her claim as an occupational disease claim and found that she had not established
any compensable employment factors. OWCP reviewed appellant’s allegation that, on April 29,
2010, a coworker wrongly accused her of deviating aircraft into his sector in retaliation for her
allegation of harassment. It determined that she had not established that the April 29, 2010 incident
occurred as alleged.
On August 18, 2010 appellant requested an oral hearing before an OWCP hearing
representative. During the December 15, 2010 telephone hearing, her representative advised that
she was claiming a traumatic injury on April 29, 2010, noting that, on that date, a coworker accused
her of an operational error while she was performing her work duties. The representative explained
that an operational error occurred when an air traffic controller failed to adhere to federal
regulations designed to prevent encroachment by an aircraft on another aircraft’s airspace. The
employing establishment investigated the incident and found that appellant did not commit an
error. The representative asserted that appellant’s resulting stress was compensable as it occurred
as part of her regular work duties. During the hearing, appellant related that on April 29, 2010 she
was acting as a training instructor when another controller accused her of deviating aircraft into
his airspace. She started shaking and became nauseous. G.S., the acting air traffic manager at the
employing establishment, related at the hearing that he spoke with appellant on April 29, 2010 and
advised her to file a traumatic injury claim. He indicated that he was not controverting or
disagreeing with the claim in any way.
On October 21, 2010 Dr. Gruenebaum discussed appellant’s filing of a complaint of
harassment against four male coworkers on April 27, 2010. Two days later one of the men
“reported to management that [appellant] had deviated [into] his work sector with an aircraft.
Immediately, following the individual reporting the incident, [appellant] suffered an acute anxiety
attack….” Dr. Gruenebaum found that appellant was afraid that the men had “crossed the line
2

In a progress report dated June 3, 2010, Dr. Gruenebaum diagnosed acute anxiety disorder, palpitations, diarrhea,
abdominal pain, sinus tachycardia, and borderline hypertension. On June 10, 2010 he noted that appellant wanted a
note regarding her disability after “an alleged sexual harassment at work” and to contact him with questions.

2

from intimidation to a dangerous activity, that of using actual aircraft with live persons on board
to prove a point to her. [Appellant] noted that her fear is directly related to the safety of flying
passengers.” He diagnosed PTSD due to the April 29, 2010 work incident.
On December 20, 2010 Dr. Debra F. Johnson, a clinical psychologist, reviewed appellant’s
statement regarding the events of April 29, 2010. She related:
“As described in [appellant’s] statement, the onset of the symptoms occurred
immediately following the incident in which a coworker allowed aircraft to aim at
each other in order to give the impression that she had made a performance error.
Two days prior to the incident an investigation of this man and three other
coworkers had resulted from a formal complaints filed by [appellant]. The
complaint addressed increasingly provocative workplace harassment by the four
men.”
Dr. Johnson diagnosed PTSD and opined that appellant sustained a psychiatric diagnosis due to
the “life-threatening dangerousness of the behavior in the incident on April 29, 2010….”
By decision dated February 7, 2011, OWCP’s hearing representative affirmed the
August 12, 2010 decision as modified to show that appellant had established as a compensable
work factor that on April 29, 2010 she was performing her specially assigned work duties as a
training instructor when she experienced stress working at her sector. She found that appellant’s
removal from her duties due to the accusation of an operational error was not compensable as it
was an administrative error and also determined that appellant had not established that the
April 29, 2010 incident occurred as a result of harassment or retaliation. Further, the hearing
representative determined that appellant failed to submit sufficient medical evidence to establish
that she sustained an emotional condition causally related to factors of her federal employment.
On December 20, 2011 appellant requested reconsideration. She attributed her stress to
the April 29, 2010 employment incident.
In an affidavit dated December 14, 2011, N.T., an air traffic controller and workers’
compensation representative for appellant’s union, related that he spoke with G.S. on August 24,
2010 regarding the April 29, 2010 incident. G.S. did not dispute the validity of appellant’s claim.
In an affidavit dated December 14, 2011, S.B., an air traffic controller, related that G.S.
agreed at a meeting on April 29, 2010 that the coworker’s allegation that appellant committed an
operational error seemed to be retaliation. In an August 24, 2010 meeting, G.S. indicated that he
“was in no way controverting [appellant’s] claim for OWCP benefits….”

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OWCP, by decision dated January 25, 2012, denied appellant’s request for reconsideration,
finding that the evidence submitted was irrelevant and thus insufficient to warrant reopening of
her case for further merit review.3
Appellant appealed to the Board. By decision dated June 25, 2013, the Board set aside the
January 25, 2012 nonmerit decision denying her request for reconsideration under 5 U.S.C.
§ 8128(a).4 The Board found that appellant provided statements from coworkers supporting her
contention that the coworker retaliated against her when he accused her of an operational error on
April 29, 2010. The Board determined that she had submitted sufficient evidence to warrant
reopening her case under section 8128 and remanded the case to OWCP.
On July 17, 2013 OWCP requested that the employing establishment review the statements
submitted by appellant and address their accuracy.
By decision dated September 16, 2013, OWCP denied modification of its February 7, 2011
decision. It noted that the employing establishment had not responded to its request to comment
on whether G.S. told N.T. and S.B. that the coworker acted in a retaliatory way on April 29, 2010.
OWCP thus accepted appellant’s allegation as factual and found that she had established as a
compensable work factor that a coworker harassed and retaliated against her by publically alleging
that she was involved in an operational error. However, it denied the claim, finding that the
medical evidence of record was insufficient to establish causal relationship between the April 29,
2010 work factor and a diagnosed emotional condition.
Appellant subsequently appealed to the Board. By decision dated September 3, 2014, the
Board set aside the September 16, 2013 OWCP decision.5 The Board found that the opinions of
Dr. Gruenebaum and Dr. Johnson were sufficient to warrant further development of the evidence
to determine whether she developed an emotional condition due to the compensable work factors.
The Board noted that OWCP had accepted as compensable that appellant experienced stress while
preforming her regular work duties and harassment and retaliation on April 29, 2010 when a
coworker accused her of an operational error. The Board found that OWCP failed to prepare a
statement of accepted facts (SOAF) setting forth the accepted employment factors. The Board
further noted that OWCP determined that appellant had not established that the coworker’s actions
were life threatening to the passengers on an aircraft. The Board determined, however, that his
accusation that she had committed an operational error while she was in the midst of performing
her work duties and in the presence of other air traffic controllers escalated the situation and
involved the passengers on the aircraft being routed through the airspace. The Board remanded
the case for OWCP to prepare a SOAF and refer appellant for a second opinion examination.
OWCP prepared a SOAF indicating that it had accepted as a compensable work factor that
a coworker harassed appellant on April 29, 2010 by telling a supervisor and other controllers that
3

OWCP referenced a May 13, 2010 employing establishment finding that there was insufficient evidence to
establish that appellant was harassed or discriminated against. However, that finding pertains to events preceding
April 29, 2010.
4

Docket No. 12-1617 (issued June 25, 2013).

5

Docket No. 14-0911 (issued September 3, 2014).

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she had committed an operation error by instructing a trainee to deviate into his airspace.6 It
referred her to Dr. William S. Logan, a Board-certified psychiatrist, for a second opinion
examination.
In a report dated May 6, 2015, Dr. Logan reviewed the SOAF. He noted that appellant
related that when a coworker announced that she had made an operational error, “[appellant’s]
major concern was that aircraft would be too close, causing the potential for numerous collisions
and loss of passenger lives.” Appellant had symptoms of panic and broke out in hives after the
incident. Dr. Logan diagnosed PTSD. Regarding the diagnosis, he related:
“[The coworker’s] announcement that [appellant] had made an operational error
would not seem to qualify alone as there was no threat of death or serious injury to
[her] personally. [Appellant’s] perception, however, was that [the coworker]
diverted numerous aircraft into her sector unannounced. This would qualify as
there was the threat of serious injury or death to passengers which were her
responsibility. Whether this event described above occurred or did not occur is not
addressed in the SOAF. Nonetheless, it was [appellant’s] perception and belief. If
this occurred, either due to the fact that the event actually happened, or in a
statement of anxiety [she] misperceived this to be occurring, it is my opinion that
the threshold criteria for PTSD was met.”
Dr. Logan further advised that appellant’s symptoms met the remaining criteria for PTSD.
He noted that she did not have PTSD until the coworker “not only suggested [appellant] committed
an error, but also diverted planes to her sector in an unauthorized manner creating a situation of
danger which [she] responded to alleviate with the help of others.” Dr. Logan concluded that
appellant experienced stress, acute anxiety, and PTSD on April 29, 2010 when the coworker
accused her of an error while she was performing her employment duties and “escalated the
situation in a manner that directly involved passengers on an aircraft being routed through the
airspace.” He found that appellant was currently able to perform her usual employment duties.
By decision dated June 30, 2015, OWCP denied appellant’s emotional condition claim,
finding that she had not established that she sustained a diagnosed condition causally related to the
accepted work factor. It determined that Dr. Logan’s report represented the weight of the evidence
and established that she did not establish PTSD due to the accepted work factor.
On June 7, 2016 appellant requested reconsideration.7 By decision dated November 3,
2016, OWCP denied modification of its June 30, 2015 decision.
On appeal appellant contends that OWCP did not provide Dr. Logan with a complete
SOAF setting forth the compensable work factors. She notes that she did not know whether she

6

On April 2, 2015 the employing establishment advised that appellant had stopped work on April 29, 2010 and
returned to her usual employment on September 16, 2010.
7

Appellant resubmitted a statement dated October 14, 2014.

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had committed an operational error until a day after April 29, 2010. Appellant asserts that
Dr. Logan’s report supported that she had employment-related PTSD.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned duties or to a requirement imposed by the employment,
the disability comes within the coverage of FECA.8 On the other hand, the disability is not covered
where it results from such factors as an employee’s fear of a reduction-in-force or his or her
frustration from not being permitted to work in a particular environment or to hold a particular
position.9
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship and which working conditions are not deemed factors of employment and may
not be considered.10 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.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 The opinion of the
physician must be based on a complete factual and medical background of the claimant,13 must be
one of reasonable medical certainty14 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.15
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
8

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

9

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

10

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

11

Id.

12

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

13

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

14

Supra note 12.

15

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

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OWCP shares responsibility to see that justice is done.16 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.17 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.18
When OWCP’s medical adviser, a second opinion specialist, or a referee physician renders
a medical opinion based on an incomplete or inaccurate SOAF or that does not use the SOAF as
the framework in forming the opinion, the probative value of the opinion is diminished or negated
altogether.19 OWCP procedures specify that in emotional condition claims, the SOAF is
particularly important since the physician’s opinion on causal relationship must be based on an
accurate identification of the implicated work factors.20
ANALYSIS
On prior appeal, the Board had remanded the case for OWCP to prepare a SOAF setting
forth the compensable work factors and further develop the medical evidence. The Board noted
that OWCP had accepted as compensable work factors that appellant experienced stress on
April 29, 2010 performing her work duties and that a coworker harassed and retaliated against her
on that date by publically accusing her of making an operational error. The Board further found
that while she had not established that the coworker’s actions threatened the lives of passengers,
his making such an accusation while she was performing her work duties of routing air traffic and
in front of other air traffic controllers intensified the situation and involved the passengers being
routed through the controlled air space. The Board noted that OWCP found that the opinions of
Dr. Gruenebaum and Dr. Johnson were insufficient to meet appellant’s burden of proof as the
physicians found that the coworker endangered passengers on April 29, 2010 rather than the
compensable work factors. The Board determined that the physicians’ finding that she sustained
PTSD supportive of her claim and sufficient to warrant further development of the medical
evidence.
On remand OWCP referred appellant to Dr. Logan for a second opinion examination and
provided him with a SOAF indicating that it had accepted as compensable that a coworker harassed
her on April 29, 2010 by telling her supervisor and coworkers that she had instructed a trainee to
deviate into his airspace. It did not include as compensable employment factors that she
experienced stress on that date in the performance of her regularly assigned duties and because the
coworker escalated the situation in a manner that involved passengers on the controlled airspace.
On May 6, 2015 Dr. Logan reviewed the SOAF and diagnosed PTSD. He noted that
appellant experienced fear that she had routed aircraft too close together, potentially jeopardizing
16

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

17

20 C.F.R. § 10.121.

18

See Melvin James, 55 ECAB 406 (2004).

19

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990); A.R., Docket No. 11-0692 (issued November 18, 2011).
20

Id. at Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.2(d)(3) (September 2009).

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lives, when her coworker accused her of an operational error. Appellant had symptoms of panic
and hives. Dr. Logan related that her perception that a coworker had diverted aircraft into her
sector would constitute the threat of serious harm required to support a PTDS diagnosis. He
advised that whether the event occurred or not was not set forth in the SOAF, but that regardless
of appellant believed that it had happened. Dr. Logan attributed the PTSD to being accused of an
operational error on April 29, 2010 while performing her work duties, noting that she feared
passengers had been routed into her airspace.
OWCP denied the claim, finding that the evidence of record was insufficient to establish
that appellant’s coworker actually diverted aircraft into her airspace. Dr. Logan, however, noted
that the event may not have occurred, but that it was her perception of passenger endangerment
during the incident that warranted the diagnosis of PTSD. The SOAF provided to Dr. Logan did
not provide that appellant’s perception of passenger endangerment constituted a compensable
work factor, and thus his opinion is outside the SOAF as provided to him by OWCP. The only
factor outlined in the SOAF is that a coworker alleged that, while training a new controller, she
sent planes into his sector.
As noted, to assure that the report of a medical specialist is based upon a proper factual
background, OWCP provides a SOAF. When a second opinion physician does not use the SOAF
as the framework in forming his opinion, the probative value of the opinion is diminished or
negated altogether.21 To the extent that Dr. Logan’s opinion is outside the framework of the
SOAF, it is based on an inaccurate history and thus of diminished probative value.22
Additionally, as discussed, OWCP did not include all the compensable factors of
employment in the SOAF as it did not set forth that she sustained stress in the performance of her
work duties on that date or that the coworker’s accusation escalated the situation in such a way
that involved the passengers in the controlled airspace. When a second opinion specialist renders
a medical opinion based on an incomplete or inaccurate SOAF, the probative value of the opinion
is diminished or negated altogether.23 OWCP did not provide Dr. Logan with a comprehensive
SOAF including all the compensable work factors; therefore, his report is not based on an accurate
factual framework and cannot represent the weight of the medical evidence.24
Once OWCP undertakes to develop the medical evidence, it has the responsibility to do so
in a manner that will resolve the relevant issues in the case.25 Accordingly, the Board finds that
the case must be remanded to OWCP. On remand OWCP should prepare a complete and accurate
SOAF and request that Dr. Logan submit a clarifying report regarding whether appellant sustained

21

See M.B., Docket No. 14-1689 (issued July 2, 2015).

22

See V.H., Docket No. 17-0439 (issued December 13, 2017); A.A., Docket No. 15-0937 (issued August 17, 2015).

23

See supra note 19.

24

Id.; see also G.W., Docket No. 13-1922 (issued July 29, 2014).

25

See R.B., Docket No. 14-1043 (issued December 12, 2014); V.H., Docket No. 14-0433 (issued July 3, 2014).

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an emotional condition as a result of compensable work factors. Following this and any further
development deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 3, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 10, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, EGLIN
AIR FORCE BASE, FL, Employer
__________________________________________

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

Docket No. 14-1966
Issued: January 23, 2015

Case Submitted on the Record

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

JURISDICTION
On September 11, 2014 appellant filed a timely appeal from a July 16, 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 has met his burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On May 9, 2014 appellant, then a 24-year-old electronics engineer, filed a traumatic
injury claim alleging that on April 24, 2014 he sustained a fractured rib during a team building
activity of ultimate frisbee for the employing establishment’s “Wingman Day.” He alleged that
1

5 U.S.C. § 8101 et seq.

he was accidentally shoved into another participant and struck by a knee or elbow. Appellant
stopped work that day and returned on May 1, 2014. His supervisor indicated that the claimed
injury occurred during appellant’s regular work hours but questioned why he did not sooner file
his claim.
By letter dated June 10, 2014, OWCP notified appellant that evidence was insufficient to
establish his claim and advised him of the type of evidence needed.
Appellant subsequently submitted evidence from his healthcare providers. In an
April 24, 2014 disability status report, a physician’s assistant advised that appellant was
restricted from lifting or pulling more than 10 pounds, overhead work, and climbing for the next
10 days.
In a May 1, 2014 report, Dr. Chinh Van, Board-certified in family medicine, noted that
appellant was experiencing left chest wall/rib pain. He advised that appellant was injured seven
days prior while playing ultimate frisbee. Dr. Van stated that appellant related that his pain was
sharp and stabbing and that on physical examination there was point tenderness at the 10 to 11th
rib on the left. He noted that an x-ray of the ribs was negative for fracture; however, the official
reading of the x-ray was pending. Dr. Van diagnosed left side rib pain and costochondritis. An
accompanying May 1, 2014 clinical summary report from Dr. Van advised that appellant was
instructed to avoid repetitive bending, lifting, pushing, pulling, and twisting. Appellant was also
restricted from lifting more than 25 pounds, squatting, prolonged standing, and strenuous activity
for two weeks. In a May 1, 2014 report, Dr. Norman Clinkscales, a Board-certified diagnostic
radiologist, advised that a rib cage x-ray revealed an anterior left sixth rib hairline fracture.
In a May 31, 2014 statement, appellant explained that there was a delay in filing his claim
because he was unable to work due to his injury. He noted that he stopped work on the date of
injury and returned on May 1, 2014, but his supervisor was out of the office that day. Appellant
also noted that he had to leave work early on May 1, 2014 due to his injury, and that he was not
again at work until the week of May 5 through 9, 2014.
In a June 23, 2014 statement, an employing establishment injury compensation specialist,
Rava Defenbach, controverted appellant’s claim arguing that he was not in the performance of
duty. She argued that he was injured playing ultimate frisbee during “Wingman Day” which was
a voluntary activity that did not provide any substantial direct benefit to the employing
establishment. Ms. Defenbach further argued that appellant was not in the course or scope of his
assigned duties when he was injured.
By letter dated June 24, 2014, OWCP notified appellant that the employing establishment
controverted his claim because he was not in the performance of duty when he was injured and
gave him the opportunity to respond.
In a June 26, 2014 statement, appellant advised that he was injured at Foster Field located
on a multipurpose field at the employing establishment during a team building activity. He
stated that he fractured his ribs while playing in an ultimate frisbee tournament. Appellant noted
that he felt pain, had trouble breathing, standing, and walking. In a June 30, 2014 statement, he
advised that “Wingman Day” was encouraged by all levels of management, the 96th Test Wing

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Commander sent out a memorandum encouraging participation, and set aside an entire day for
the activities. He also noted that such activities were a recurring practice for his work group and
the site where he was injured was an authorized alternate duty location. An accompanying
April 21, 2014 e-mail from Brigadier General David Harris noted that the Spring “Wingman
Day” was scheduled for April 24, 2014. He stated that the theme of the “Wingman Day” event
was encouraging mentorship throughout the department and was a time for units to reflect on
professional work environments and other topics important to personnel. Brigadier General
Harris advised that the “unit locations for morning sessions and the afternoon events at Foster
Field are approved alternate duty locations.”
Appellant also provided statements from coworkers. In a June 20, 2014 statement, Alan
Colthorp advised that he did not witness the incident, but appellant told him that he injured his
ribs when he was struck during the game of frisbee. He stated that it was obvious that appellant
was in pain and that he had to sit out for the two games that followed. In a June 18, 2014
statement, another coworker, Benjamin Baird, advised that he did not see the injury, but
appellant had to sit out for the rest of the game and the subsequent games.
In an April 24, 2014 report, a physician’s assistant advised that appellant was injured
when he collided with another player while playing ultimate frisbee. Appellant was diagnosed
with a chest wall strain and the report advised that a chest x-ray revealed no acute abnormalities.
An undated note from an office desk clerk noted that the healthcare facility only had physician’s
assistants on site and that the overseeing physician only signed charts of patients that he
personally saw.
By decision dated July 16, 2014, OWCP denied appellant’s claim. It found that the
claimed events occurred as alleged but that the medical evidence was insufficient to establish the
claim. OWCP stated that the medical evidence did not establish that a medical condition was
diagnosed in connection with the work event.
On appeal, appellant argued that causal relationship between the work incident and his
diagnosed condition was established by the medical evidence and witness statements.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.3 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.4

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

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

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 Rationalized medical opinion evidence is generally
required to establish causal relationship. The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.7
ANALYSIS
On April 24, 2014 appellant was playing ultimate frisbee in a team building event
sponsored by the employing establishment and the location where appellant the claimed injury
occurred was an approved alternate duty location. The evidence supports that the claimed work
incident occurred and was in the performance of duty. Therefore, the Board finds that the first
component of fact of injury is established. However, medical evidence is insufficient to establish
that the employment incident on April 24, 2014 caused appellant’s fractured rib.
In his May 1, 2014 report, Dr. Van noted that appellant was experiencing left chest
wall/rib pain. He advised that appellant was injured seven days prior while playing ultimate
frisbee and diagnosed left side rib pain and costochondritis. Although Dr. Van’s report included
a history of the injury, he did not offer a clear opinion on causal relationship in which he
specifically addressed how the work incident contributed to the diagnosed condition. His May 1,
2014 clinical summary did not address the cause of appellant’s condition.
In his May 1, 2014 x-ray report, Dr. Clinkscales advised that a rib cage x-ray revealed an
anterior left sixth rib hairline fracture. This report is insufficient to discharge appellant’s burden
of proof because it does not address causal relationship. Dr. Clinkscales did not address what
caused the fracture. The Board has held that a report without an opinion as to causal relationship
is of little probative value.8
Appellant also provided evidence from a physician’s assistant. In an April 24, 2014
report, a physician’s assistant advised that appellant was injured when he collided with another
player while playing ultimate frisbee. Appellant was diagnosed with a chest wall strain. While
5

T.H., 59 ECAB 388 (2008).

6

Jennifer Atkerson, 55 ECAB 317 (2004).

7

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

8

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).

4

this report offers some support for causal relationship, it is of no probative medical value as a
physician’s assistant is not a physician as defined under the FECA.9 Thus, this report is
insufficient to establish the claim.
Consequently, the medical evidence is insufficient to establish that the April 24, 2014
work incident caused or aggravated a diagnosed medical condition.10 Appellant argued that
causal relationship was established by the medical evidence and witness statements. As noted,
causal relationship is a medical question that must be established by probative medical opinion
from a physician. The physician must accurately describe appellant’s work duties and medically
explain the pathophysiological process by which these duties would have caused or aggravated
his condition.11 Because appellant has not provided such medical opinion evidence in this case,
he has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on April 24, 2014.

9

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211
(1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
10

Although causal relationship generally requires rationalized medical opinion, OWCP procedures provide for
acceptance of a claim without a medical report when the following criteria are satisfied: (1) the condition reported is
a minor one which can be identified on visual inspection by a lay person (e.g., burns, lacerations, insect stings, or
animal bites); (2) the injury was witnessed or reported promptly and no dispute exists as to the fact of injury; and
(3) no time was lost from work due to disability. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3 (January 2013); Melissa A. Carter, 45 ECAB 618 (1994). In the present case, the
condition reported, fractured rib, is not the clear-cut type of condition that can be identified on visual inspection by a
lay person. Furthermore, appellant also missed time from work. Thus, rationalized medical evidence is required.
11

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the July 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 23, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.N., Appellant
and
DEPARTMENT OF AGRICULTURE,
POTATO RESEARCH LABORATORY,
East Grand Forks, MN, Employer
__________________________________________

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

Docket No. 07-215
Issued: August 21, 2007

Case Submitted on the Record

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

JURISDICTION
On October 31, 2006 appellant filed a timely appeal from a November 8, 2005 decision
of the Office of Workers’ Compensation Programs denying her request for modification of a loss
of wage-earning capacity decision and an April 14, 2006 decision denying her request for a
hearing before an Office hearing representative. Pursuant to 20 C.F.R. §§ 501.2(c) and
501(d)(3), the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has established that modification of her wageearning capacity determination was warranted; and (2) whether the Office abused its discretion
in denying her request for an oral hearing.

FACTUAL HISTORY
This is the second appeal before the Board.1 In a July 11, 2005 decision, the Board set
aside a September 2, 2004 nonmerit decision.2 The Board found that appellant’s August 10,
2004 request for reconsideration of an August 12, 2003 hearing representative’s decision and
claim for additional compensation raised the issue of whether modification of the Office’s
August 13, 2002 wage-earning capacity determination3 was warranted.4 The facts and the
history contained in the prior appeal are incorporated by reference.5
Subsequent to the Board’s decision, the Office issued a decision dated November 8, 2005
denying appellant’s request for modification of the August 13, 2002 loss of wage-earning
capacity decision.
On December 7, 2005 appellant requested an oral hearing before an Office hearing
representative.

1

Docket No. 05-428 (issued July 11, 2005).

2

On September 20, 1984 appellant, then a 39-year-old engineering technician, filed a traumatic injury claim
alleging that she injured her neck on September 11, 1984 while in the performance of duty. The Office accepted the
claim for cervical strain and temporary aggravation of thyroid which resolved by November 15, 1984. The Office
subsequently expanded the claim to include the conditions of fibrositis and fibromyalgia. On September 11, 2002
appellant requested an oral hearing before an Office hearing representative, which was held on June 11, 2003. By
decision dated August 12, 2003, the Office hearing representative affirmed the August 13, 2002 loss of wageearning capacity decision based on actual earnings.
3

On May 12, 2000 Dr. Joseph B. Sleckman, appellant’s treating Board-certified internist with a subspecialty in
rheumatology, issued permanent restrictions for appellant in work capacity evaluation form (OWCP-5c). The
restrictions included working no more than 32 hours per week, 4 hours per day of walking, repetitive wrist
movement and pushing/pulling 10 pounds, 2 hours standing and operating a motor vehicle, 1 hour of reaching,
twisting, elbow repetitive movements, squatting, kneeling, lifting 10 to 20 pounds and climbing and ½ hour of
reaching above the shoulder. Dr. Sleckman also indicated that appellant required a five-minute break every hour.
4

The Office found that appellant had been working 32 hours per week as an engineering technician with a weekly
wage of $609.72. It found that the employment was effective November 20, 2000. The Office found that the
position fairly and reasonably represented her wage-earning capacity and that she had lost wages of $39.11 per
week.
5

Appellant retired from the employing establishment effective January 3, 2005.

2

By decision dated April 14, 2006, the Office denied her request for an oral hearing as she
had previously requested a hearing on her wage-earning capacity determination.6
LEGAL PRECEDENT -- ISSUE 1
The Office’s procedure manual provides that, if a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss.7 The procedure manual further indicates that,
under these circumstances, the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity decision.8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.9 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.10
ANALYSIS -- ISSUE 1
Appellant does not allege a material change in the nature and extent of her injury-related
condition. She contends that the issue is not one of modification of the loss of wage-earning
capacity determination, but whether the Office erred in issuing the loss of wage-earning capacity
determination in the first place. Appellant contends that, as she was performing her date-ofinjury position with periods of disability, the Office erroneously issued a loss of wage-earning
capacity decision. Thus, the issue is whether the original determination was erroneous.

6

On July 17, 2006 appellant requested reconsideration. She contended that she was not requesting modification
of the loss of wage-earning capacity decision, but instead argued that no loss of wage-earning capacity
determination should have been made in the first place. In response to appellant’s request, the Office sent an
informational letter dated October 17, 2006 advising appellant that it was unclear what she was requesting the Office
to reconsider. It informed her that no further action would be taken and advised her as to what was required to
request reconsideration. Appeal rights were attached to the letter for appellant’s future reference. The Board notes
that the Office’s October 17, 2006 correspondence does not, on its face, have the appearance of a final decision. It
does not formally identify itself as a final decision and it advised appellant as to what was needed to request
reconsideration. See 20 C.F.R. § 10.126. As the October 17, 2006 letter was informational in nature and not a
decision, the Board does not have the jurisdiction to review the letter. 20 C.F.R. § 501.2(c).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB ___ (Docket No. 04-1048, issued
March 25, 2005).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Harley Sims, Jr., 56 ECAB ___ (Docket No. 04-1916, issued
February 8, 2005).
9

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000).

10

Harley Sims, Jr., supra note 8; Stanley B. Plotkin, supra note 9.

3

Appellant also has not shown that the original determination of her wage-earning
capacity was erroneous. She noted that she continued to perform the duties of her September 11,
1984 date-of-injury position. However, on May 12, 2000 Dr. Sleckman, appellant’s treating
Board-certified internist with a subspecialty in rheumatology, issued permanent restrictions
including limiting appellant to working no more than 32 hours per week. Appellant contends
that, since she did not stop working, the Office erred in issuing a loss of wage-earning capacity
for her reduced hours. As she was no longer able to work a 40-hour week, this constituted
permanent partial disability which precluded her from performing the full-time duties of her
position. Thus, the Office properly issued a loss of wage-earning capacity determination.11
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that, before
review under section 8128(a) of this title, a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.12 Section
10.615 of the federal regulations implementing this section of the Act provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.13 The Office’s
regulations provide that the request must be sent within 30 days of the date of the decision for
which a hearing is sought and also that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.14
Additionally, the Board has held that the Office, in its broad discretionary authority in the
administration of the Act,15 has the power to hold hearings in certain circumstances where no
legal provision was made for such hearings and that the Office must exercise this discretionary
authority in deciding whether to grant a hearing.16 The Office’s procedures, which require the
Office to exercise its discretion to grant or deny a hearing when the request is untimely or made
after reconsideration, are a proper interpretation of the Board precedent.17

11

See Elsie L. Price, 54 ECAB 734 (2003) (the general test for determining loss of wage-earning capacity is
whether injury-related residuals prevent the employee from performing the kind of work she was doing when
injured).
12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

20 C.F.R. §10.616(a).

15

5 U.S.C. §§ 8101-8193.

16

Marilyn F. Wilson, 52 ECAB 347 (2001).

17

Teresa M. Valle, 57 ECAB __ (Docket No. 06-438, issued April 19, 2006). See Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).

4

ANALYSIS -- ISSUE 2
On August 12, 2003 the Office issued a loss of wage-earning capacity decision reducing
appellant’s wages based upon her actual wages as an engineering technician. Appellant
requested an oral hearing before an Office hearing representative. On August 12, 2003 the
Office hearing representative affirmed the Office’s August 13, 2002 decision. Appellant then
requested reconsideration which the Office denied in a nonmerit decision on September 2, 2004.
She requested review by the Board. On July 11, 2005 the Board set aside the September 2, 2004
nonmerit decision in Docket No. 05-428 and remanded the case for consideration of whether
modification of the August 13, 2002 decision was warranted. By decision dated November 8,
2005, the Office denied appellant’s request for modification of the August 13, 2002 loss of
wage-earning capacity decision. On December 7, 2005 appellant requested an oral hearing
before an Office hearing representative. The Board finds that, as appellant previously had a
hearing on the August 13, 2002 loss of wage-earning capacity decision, the Board finds that she
is not entitled to an oral hearing as a matter of right.18
The Board further finds that the Branch of Hearings and Review properly exercised its
discretion in determining that appellant’s claim could be pursued through the reconsideration
process. As appellant was not entitled to an oral hearing as a matter of right and as the Branch of
Hearings and Review properly exercised its discretion in denying her request for an oral hearing,
the Board finds that appellant’s request for an oral hearing was properly denied.
CONCLUSION
The Office properly refused to modify its August 13, 2002 determination of appellant’s
wage-earning capacity. The Board further finds that the Branch of Hearings and Review
properly denied appellant’s request for an oral hearing as appellant had previously requested an
oral hearing on the issue of her loss of wage-earning capacity decision and as the Branch of
Hearings and Review properly exercised its discretion in denying the request.

18

20 C.F.R. § 10.616(a).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 14, 2006 and November 8, 2005 are affirmed.
Issued: August 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 15-1650
Issued: March 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 30, 2015 appellant filed a timely appeal from an April 30, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the November 27, 2013 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the April 30, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

FACTUAL HISTORY
On December 9, 2013 appellant, then a 39-year-old revenue officer, filed a traumatic
injury claim (Form CA-1) alleging that on November 27, 2013 she sustained lower back, neck,
wrist, elbow, and upper arm stiffness after slipping and falling in the parking lot of the
employing establishment at 7:45 a.m. Her supervisor noted that her regular work hours were
from 7:00 a.m. to 5:30 p.m. He also related that appellant left the employing establishment
building to return to her car to retrieve something when the incident occurred. The record does
not indicate that appellant stopped work.
On November 27, 2013 appellant’s supervisor filed an occupational injury report
indicating that on that date at approximately 7:35 a.m. appellant sustained injuries to her lower
back, neck, wrists, elbows, and upper arms when she slipped and fell in the parking lot near the
employee entrance, while walking back to her car.
In a December 10, 2013 unsigned medical note, the date of injury was recorded as
December 10, 2013. Diagnoses of headache and neck pain were reported.3
On December 12, 2013 appellant was examined by Dr. Jay J. Jones, a Board-certified
family practitioner, who related in a report that appellant sustained injuries on November 27,
2013 when she fell down in a parking lot at work. He reported that he had examined appellant
on two prior occasions on November 11 and 15, 2013 and had performed occipital nerve blocks.
Dr. Jones explained that her headaches and upper cervicalgia were markedly improved and under
control. He reviewed appellant’s history and conducted an examination. Dr. Jones observed
limited range of motion of appellant’s neck and active trigger points in the upper trapezius
cervical paraspinal musculature. He also noted tenderness to palpation of the greater and lesser
occipital nerves bilaterally.
Examination of appellant’s hips and elbow revealed relatively full and pain-free range of
motion. Upon examination of the lumbar spine, Dr. Jones observed limited flexion and
extension. He also noted tenderness over the sacroiliac (SI) joints bilaterally and trigger points.
Dr. Jones diagnosed exacerbation of occipital neuralgia and upper cervicalgia, right rotator cuff
tendon contusion, lumbar whiplash with resultant primarily muscle based pain and possible SI
pain. He opined that appellant had an exacerbation of her upper cervicalgia and cervicogenic
headache with new symptoms in the posterior lateral acromial area on the right and pain at the
lumbosacral junction bilaterally. Dr. Jones concluded that appellant’s current clinical situation
had either been exacerbated by or caused by the fall in the parking lot. He also provided
handwritten prescription notes recommending a physical therapy consult and a duty status report.
In a December 16, 2013 report, Dr. Jones noted that appellant’s signs and symptoms were
unchanged from his December 12, 2013 clinical evaluation. He explained that he was supporting
appellant’s workers’ compensation claim because he believed that appellant had experienced an
exacerbation of occipital neuralgia and upper cervicalgia secondary to whiplash, increase in
myofascial pain syndrome and upper cervical facet syndrome, and right rotator cuff tendon
contusion. Upon examination, Dr. Jones observed tenderness to palpation of appellant’s bilateral
greater and lesser occipital nerves and large hard active trigger points in the upper semispinalis
3

Dr. David McClary, a Board-certified family practitioner, was noted as “provider.”

2

capitis, splenius capitis, bilateral levator scapula, and upper trapezius. He noted preprocedure
diagnoses of bilateral greater and lesser neuralgia with cervical spine and upper shoulder
myofascial pain syndrome. Appellant received trigger point injections and nerve blocks.
Dr. Jones provided a December 16, 2013 attending physician’s report and a work excuse note
which indicated that appellant was examined on December 16, 2013.
Appellant submitted various physical therapy reports indicating that she received
treatment on December 16, 18, and 23, 2013 and January 17 and 22, 2014.
By letter dated September 11, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her traumatic injury claim. It requested that she respond to an
attached questionnaire to substantiate the factual elements of her claim and submit medical
evidence to demonstrate that she sustained a diagnosed condition causally related to the
November 27, 2013 employment incident.
On September 22, 2014 appellant responded to OWCP’s development letter. She stated
that when the alleged injury occurred she was getting something from the car. Appellant noted
that she was injured in the parking lot, which was managed by the building or property manager.
She explained that she was required to park there by her employing establishment.
In a decision dated November 13, 2014, OWCP denied appellant’s claim, finding that the
November 27, 2013 incident did not occur in the performance of duty. It determined that she
failed to establish that she was in the performance of her official work duties when the alleged
November 27, 2013 injury occurred.
On December 5, 2014 OWCP received appellant’s request for reconsideration. Appellant
stated that she was in the parking lot because she was retrieving her work cell phone charger
from her car. She asserted that she fulfilled all of the requirements of her claim and that her only
error was that she did not state that she was retrieving her work cell phone charger from the car.
Appellant explained that she assumed her injury was covered because it occurred on work
premises.
By decision dated April 30, 2015, OWCP affirmed the November 13, 2014 denial
decision with modification. It accepted that appellant was in the performance of duty on
November 27, 2013 when she slipped and fell in the employing establishment parking lot.
OWCP, however, denied the claim finding insufficient medical evidence to establish that she
sustained a diagnosed condition causally related to the accepted event.
LEGAL PRECEDENT
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 she sustained an injury in the performance of duty and that any specific

4

Supra note 1.

5

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

3

condition or disability for work for which he or she claims compensation is causally related to
that employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.7
There are two components involved in establishing the 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 Second, the employee must submit evidence,
generally only in the form of probative medical evidence, to establish that the employment
incident caused a personal injury.9 An employee may establish that the employment incident
occurred as alleged but fail to show that her disability or condition relates to the employment
incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 The weight of the 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.13
ANALYSIS
Appellant alleged that on November 27, 2013 she sustained injuries when she slipped and
fell down in the parking lot at work, while returning to her car to retrieve her work cell phone
charger. OWCP accepted that the November 27, 2013 incident occurred as alleged and that it
occurred in the performance of duty, but denied her claim finding insufficient medical evidence
to establish that she sustained a diagnosed condition causally related to the accepted incident.14

6

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

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

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

13

James Mack, 43 ECAB 321 (1991).

14

The activity of retrieving an item such as a cell phone from an automobile is not in the performance of duty if it
does not occur during work hours and as a requirement of employment. Cf., B.B., Docket No. 13-1730 (issued
January 13, 2014), wherein the Board determined that the retrieval of a personal cellphone from an automobile an
hour before the employee was required to be on duty benefited him not his employer.

4

The Board finds that appellant did not meet her burden of proof to establish her traumatic injury
claim.
Appellant submitted reports of Dr. Jones dated December 12 and 16, 2013. Dr. Jones
noted that he had examined appellant on two prior occasions and provided occipital nerve
blocks. He reported that on November 27, 2013 appellant sustained injuries when she fell down
in a parking lot at work. Upon examination of appellant’s lumbar spine, Dr. Jones observed
tenderness over the SI joint bilaterally and trigger points. He diagnosed exacerbation of occipital
neuralgia and upper cervicalgia, right rotator cuff tendon contusion, lumbar whiplash with
resultant primarily muscle based pain, and possible SI pain. Dr. Jones indicated that appellant
sustained an exacerbation of her upper cervical and cervicogenic headache with new symptoms.
He explained that appellant’s current clinical situation had either been exacerbated by or caused
by the fall in the parking lot. In a December 16, 2013 report, Dr. Jones confirmed that he
supported appellant’s workers’ compensation claim because he believed that appellant had
experienced an exacerbation of occipital neuralgia and upper cervicalgia secondary to whiplash,
increase in myofascial pain syndrome and upper cervical facet syndrome, and right rotator cuff
tendon contusion.
Dr. Jones accurately described the November 27, 2013 incident and provided
examination findings and a diagnosed condition. He opined that appellant sustained an
exacerbation of her occipital neuralgia and upper cervicalgia, myofascial pain syndrome, upper
cervical facet syndrome, and right rotator cuff tendon contusion due to the November 27, 2013
slip and fall at work. Although Dr. Jones provided an opinion on causal relationship, he did not
offer any rationalized medical explanation to support his opinion. The Board has held that a
medical report is of limited probative value on the issue of causal relationship if it contains a
conclusion regarding causal relationship which is unsupported by medical rationale.15 A
rationalized medical opinion is particularly needed in this case as appellant was receiving
medical treatment for preexisting conditions. Dr. Jones did not adequately explain how
appellant’s current conditions resulted from the November 27, 2013 incident as opposed to her
previous conditions.
Appellant also submitted an unsigned medical note dated December 10, 2013. While this
note indicated that appellant’s provider was Dr. McClary, there is no indicia on the note that it
was prepared by Dr. McClary. This note is therefore of no probative value.16
OWCP also received a number of physical therapy records. These physical therapy
records are of no probative value regarding the issue of causal relationship because FECA does
not recognize physical therapists as physicians.17
15

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

Merton J. Sills, 39 ECAB 572 (1988) (unsigned medical evidence with no adequate indication that it was
completed by a physician is not considered probative medical evidence); see also T.B., Docket No. 15-1 (issued
July 1, 2015).
17

See 5 U.S.C. § 8101(2). 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. Physical therapists are not physicians under FECA, see S.S., Docket
No. 15-780 (issued September 3, 2015).

5

On appeal appellant alleges that Dr. Jones reported on two occasions that she suffered
whiplash because of the fall at work. As noted above, Dr. Jones failed to adequately explain,
based on medical rationale, how appellant sustained a diagnosed condition causally related to the
November 27, 2013 employment incident. Causal relationship is a medical question that must be
established by probative medical opinion from a physician.18 Because appellant has not provided
such probative medical evidence in this case, the Board finds that she did not meet her burden of
proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to the November 27, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

18

W.W., Docket No. 09-1619 (issued June 2, 2010); David Apgar, 57 ECAB 137 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
V.S., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Huntington Beach, CA, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 06-2101
Issued: March 21, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 13, 2006 appellant filed a timely appeal of a June 21, 2006 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed the denial of
appellant’s emotional condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On September 24, 2005 appellant, then a 48-year-old letter carrier, filed a traumatic
injury claim. On September 19, 2005 she experienced stress from harassment at the employing
establishment related to the filing of other claims. Appellant alleged that this occurred in the
course of her federal employment.1 The employing establishment controverted the claim and
1

Appellant referred to File No. 132039799. The record reflects that this claim for a date of injury of July 27,
2001 was accepted for adjustment disorder which had resolved.

alleged that appellant was not engaged in any employment related duties. She did not stop work.
On September 8, 2005 appellant alleged that the employing establishment was prohibited by law
from changing her schedule or from making her work a schedule for which she did not bid.
In a September 19, 2005 memorandum, Ron Adkisson, the acting manager of customer
service, explained that on that date, at approximately 7:33 a.m., he was informed that appellant
was on the premises of the employing establishment even though it was her day off. He
explained that appellant was directed to leave the premises as it was her day off and he felt “very
nervous about the situation” as he was “not sure why she would be here.” Mr. Adkisson
explained that, if appellant was “bold enough to disobey direct orders and show up on her day off
what else would she be bold enough to do.” He became concerned that appellant posed a threat
to herself and others and informed appellant that he would call the police if she refused his order.
After making several requests that she leave, with which she refused to comply, the postal police
inspectors were notified. Mr. Adkisson noted that appellant had a tape recorder and he instructed
her to turn it off which she refused. Appellant left the premises at approximately 9:30 a.m.
Mr. Adkisson included a separate statement which reiterated the events which transpired on that
date.2 In a statement also dated September 19, 2005, Bernard Coleman, a supervisor, confirmed
the statement of Mr. Adkisson. He added that this was the third time that appellant had come to
the employing establishment on her day off and that appellant was “refusing to accept the F code
as her day off.” Joann Hinckey, a supervisor of customer service also provided a statement dated
September 19, 2005, which confirmed the events which occurred on that date.
By letter dated November 4, 2005, the Office requested additional factual and medical
evidence from appellant. She was advised that the Office was only considering the events of
September 19, 2005 and her allegation of stress.
The Office subsequently received an October 27, 2005 interview of Mr. Adkisson,
conducted by Gregory Nunnally, the postmaster. He determined that the reason appellant was
coming in on her nonscheduled days was because on August 29, 2005 appellant was informed
that her days were being changed from “Code A to Code F.” Mr. Nunnally was informed by
Mr. Adkisson that when appellant heard the news, she indicated that she would continue to work
on her old scheduled days off. When appellant was informed that “she did not have a choice to
change to Code F, [appellant] claimed that she was being harassed and stressed.” The
postmaster determined that appellant was changed to Code F, because, “a reserve carrier position
had opened up and if nobody wanted it, the carrier with the least seniority would get that
position.” He explained that appellant had the least seniority and was placed in the position.
Mr. Nunnally also confirmed the events of September 19, 2005, as described by Mr. Adkisson.
In statements dated August 29 and 30, 2005, Mr. Adkisson described meetings that occurred
with appellant and her union representative, after she was informed of her new schedule. He
indicated that appellant became angry and refused to accept the change in her work schedule. In
an interview, Javier Flores, appellant’s immediate supervisor, confirmed that appellant was
disappointed with her route being changed or to accept the change in her route. The employing
establishment submitted copies of notices of removal dated January 30, 2002 for failure to follow
2

The date appears to be a typographical error as the incident is described as having occurred on
September 19, 2005.

2

instructions and October 14, 2005 for unauthorized use of a recording device together with a
September 21, 2005 emergency placement in off-duty status. Appellant was placed off duty as a
result of her “strange and unexplained behavior and to ensure the safety and well-being of
yourself and the other employees….”
In a November 17, 2005 investigative memorandum, Mr. Nunnally described the events
surrounding appellant’s schedule change. He noted that appellant was escorted off the premises
on three separate occasions after refusing to adhere to the change in her work schedule.
Mr. Nunnally denied that the employing establishment was prohibited from changing the days
off or rotation codes of the letter carriers.
In a letter dated November 14, 2005, appellant referred to numerous complaints against
the employing establishment dating back to June 2000. As to her September 19, 2005 claim, she
alleged that management had retaliated against her by changing her schedule “of the past 18
years.” She alleged that changing her schedule was a deliberate attempt to harass and aggravate
her and it was against the postal contract. Appellant alleged that her behavior on September 19,
2005 was the same as it had been for the past 18 years. She reported to work and was “escorted
out of the building and punished.”
The Office also received several documents from appellant, which included allegations of
name calling, sexual harassment and verbal threats dating back to 1995. On November 29, 2005
appellant reiterated that the employing establishment was retaliating against her. The Office
received copies of a January 30, 2002 notice of removal, a February 8, 2002 decision pertaining
to benefits, July 26 and August 2, 2001 notices of suspension, a July 27, 2001 emergency
placement in off-duty status report and rescission of emergency placement in off-duty status
dated August 28, 2001. She submitted reports from Dr. Buford Gibson, Jr., a Board-certified
psychiatrist, pertaining to events in 2000 and 2001, together with treatment notes dated
September 19 to November 8, 2005.
By decision dated December 8, 2005, the Office denied appellant’s claim. The Office
found that appellant’s work schedule was changed and that she went to the employing
establishment on September 19, 2005, knowing it was her scheduled day off. The Office found
that she was asked to leave by Mr. Adkisson and refused. She was subsequently escorted off the
employing establishment premises. The Office found that there was no error or abuse in the
actions taken at the employing establishment.
In a statement dated September 24, 2005, appellant indicated that Mr. Adkisson placed
her in an off duty status without pay and sent her certified copies of paperwork pertaining to a
vacancy for which she did not bid. She alleged that she was being harassed because she had
filed a lawsuit regarding her daughter.
On December 14, 2005 appellant requested a hearing, which was held on April 18, 2006.
She noted that she had worked for the employing establishment for over 18 years. When
appellant filed her claim, she tried to file a Form CA-2, but the employing establishment refused
to give her the proper form. She testified that the employing establishment retaliated against her
because she filed a sexual harassment lawsuit. Appellant alleged that she was illegally
terminated in 2001 and when she returned to work, she was placed in another office which was

3

also illegal. She alleged that she was harassed about scanning of packages and certified mail.
Appellant also alleged that the employing establishment tried to change her schedule from
schedule A to schedule F in 2004, but could not do so without a bid for the schedule. In January
or February 2005, her supervisor threatened her if she did not start taking her days off.
The Office received additional information which included correspondence dated
August 17, 2001 pertaining to a fitness-for-duty examination, a copy of the schedule changes
enacted at the employing establishment commencing August 27, 2005, a copy of a vacancy
announcement dated August 20, 2004, a copy of July 29, 2002 arbitration decision pertaining to
actions that occurred in 2001, and documents from a psychologist pertaining to the period
June 13 to July 15, 2000.
On May 17, 2006 the Office received a response from appellant regarding corrections to
the transcript.
In a September 9, 2005 statement, Mr. Adkisson confirmed that on August 30, 2005
appellant was advised by Mr. Flores, Barbra Stickler, the union representative, and himself that
her new day “would be on the F code for day’s off.” Her assignment was to begin on
September 3, 2005. He also confirmed that the employing establishment did not refuse to
provide appellant with the proper forms for filing a claim, that there had been no retaliation or
harassment towards appellant, or that a lawsuit had been filed against him. Appellant was
assigned a reserve position at the employing establishment under the contract and with assistance
from the union. He noted that appellant’s request for a CA-16 was denied because the time limit
to request the form had expired. Her injury was not reported until October 15, 2005. The Office
also received the police incident report pertaining to trespassing on August 30 and
September 9, 2005.
In an undated statement, Chuck Tyma, a union steward, confirmed that appellant was
assigned to a reserve position as a result of her seniority and that he advised her to work her
proper schedule.
By decision dated June 21, 2006, the Office hearing representative affirmed the
December 8, 2005 decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every illness that is somehow
related to an employee’s employment. There are situations where an injury or illness has some
connection with the employment but nevertheless does not come within the concept or coverage
of workers’ compensation. Where the disability results from an employee’s emotional reaction
to his regular or specifically assigned duties or to a requirement imposed by the employment, the
disability comes within the coverage of the Federal Employees’ Compensation Act.3 On the
other hand the disability is not covered where it results from such factors as an employee’s fear

3

5 U.S.C. §§ 8101-8193.

4

of a reduction-in-force or his frustration from not being permitted to work in a particular
environment or to hold a particular position.4
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.5 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office as part of its
adjudicatory function, must make findings of fact regarding, which working conditions are
deemed compensable factors of employment and are to be considered by the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of the
matter establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Board must initially review whether the alleged
incidents and conditions of employment are compensable under the terms of the Act.
Appellant made several allegations related to administrative or personnel matters. These
allegations are unrelated to her regular or specially assigned work duties and do not generally fall
within the coverage of the Act.9 However, the Board has also found that an administrative or
personnel matter will be considered to be an employment factor where the evidence discloses
error or abuse. In determining whether the employing establishment erred or acted abusively, the
Board has examined whether management acted reasonably.10
4

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
5

Pamela R. Rice, 38 ECAB 838, 841 (1987).

6

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

8

Id.

9

An employee’s emotional reaction to administrative actions or personnel matters taken by the employing
establishment is not covered under the Act as such matters pertain to procedures and requirements of the employer
and do not bear a direct relation to the work required of the employee. Sandra Davis, 50 ECAB 450 (1999).
10

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

5

Appellant described a change in her schedule from schedule A to schedule F, and that she
was told to go home on September 19, 2005 when she came to work at her old schedule. She
was removed by the police when she did not comply with an order to leave the premises.
Appellant was placed in a nonpay status and given notices of removal for refusal to follow orders
and unlawful use of recording devices. However, she has not submitted any such evidence to
show erroneous or abusive actions by management related to the change in her schedule or to the
actions taken based on her refusal to follow orders or her use of a recorder.
As to the change in appellant’s schedule, she alleged that it was unlawful to change her
schedule without bidding upon it. In response, she took it upon herself to report to work under her
old schedule. The employing establishment conducted an investigation and Mr. Nunnally, the
postmaster, confirmed that appellant had been escorted off the employing establishment premises
on three separate occasions after refusing to adhere to the change in her work schedule.
Appellant was advised of the change of August 29, 2005 but refused to adhere to the change.
The postmaster denied that the employing establishment was prohibited from changing the days
off or rotation codes of carriers. In addition, he spoke with Mr. Adkisson, the acting manager of
customer service, who confirmed that appellant’s days were changed from “Code A to Code F,”
that she refused to accept the change and attempted to work on her old scheduled days off.
Additionally, the postmaster explained that the reason for the change in schedule was an
administrative decision, based in part on her seniority. He confirmed his findings with
Mr. Flores, her immediate supervisor. On September 19, 2005 Mr. Adkisson noted appellant’s
refusal to adhere to her schedule and he became concerned about the “situation.” After several
requests that she leave, he had her removed from the premises. Mr. Adkisson noted that
appellant had a tape recorder and refused his request to turn it off. Mr. Coleman and
Ms. Hinckey also supported the events as described by Mr. Adkisson. Appellant has submitted
insufficient evidence to establish that there was an error or abuse on the part of her supervisors or
managers. The events of September 19, 2005 are not compensable factors of employment.
Regarding appellant’s allegations that she was not given the proper claim form to file,
Mr. Adkisson confirmed that the employing establishment did not refuse to provide appellant
with the proper forms. She has not substantiated her allegations and failed to show error or
abuse. This is not a compensable factor of employment.
With regard to placing appellant in a nonpay status, the notices of removal for failure to
follow instructions and for unauthorized use of a recording device, the record establishes that
appellant was disciplined based on her failure to follow instructions and to ensure the safety and
well-being of herself and other employees. Reprimands, investigations and other disciplinary
actions are administrative matters that are not covered under the Act, unless there is evidence of
error or abuse.11 The employing establishment noted that appellant refused to follow orders or
comply with the change in her schedule. Mr. Adkisson became concerned for the safety of his
employees and requested the removal of appellant from the premises. She did not comply with
his instructions, despite several requests. The Board finds that there is no evidence of error or
abuse.

11

Id.

6

Regarding appellant’s allegations that she was threatened if she did not take her days off,
the Board finds that she has not submitted any evidence to support this allegation. The
employing establishment denied that there was any form of retaliation or harassment towards
appellant. For harassment to give rise to a compensable disability there must be evidence that
harassment did, in fact, occur.12 A claimant’s mere perception of harassment is not
compensable.13 The allegations of harassment must be substantiated by reliable and probative
evidence.14
As appellant failed to establish a compensable factor of employment as the cause of her
claimed emotional condition, the Office was not obligated to consider the medical evidence of
record.15
CONCLUSION
The Board finds that appellant failed to establish that she sustained an emotional
condition in the performance of duty.

12

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

13

Id.

14

Joel Parker Sr., 43 ECAB 220, 225 (1991).

15

See Kathleen D. Walker, 42 ECAB 603 (1991). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).

7

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Middletown, NY, Employer
__________________________________________

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

Docket No. 09-250
Issued: July 27, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 3, 2008 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated June 25 and October 6, 2008 that denied her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
employment-related injury on May 1, 2008.
FACTUAL HISTORY
On May 2, 2008 appellant, then a 55-year-old sales and service associate, filed a Form
CA-1, traumatic injury claim, alleging that on May 1, 2008 she injured her left side and back
when she fell from her chair at work. She did not stop work. Jennifer Rodriguez, customer
service supervisor, advised that appellant was receiving therapy for a back problem prior to this

incident. Ruth Youngs, a coworker, provided a statement noting that on May 1, 2008 she heard a
noise and saw appellant climbing up to her chair.
By letter dated May 19, 2008, the Office informed appellant of the evidence needed to
support her claim. Appellant was asked to provide a statement describing the claimed incident
and any medical treatment including a detailed report from her physician. She did not respond.
In a June 25, 2008 decision, the Office denied appellant’s claim. It found that she did not
establish a factual basis for her claim or any medical evidence to support an injury.
On July 2, 2008 appellant requested a review of the written record. In reports dated
April 15 and June 11, 2008, Dr. Daniel P. Tomlinson, an orthopedic surgeon, diagnosed bilateral
iliotibial band syndrome and prescribed physical therapy.1 In a May 1, 2008 report,
Dr. Albert Melin, a chiropractor, advised that appellant injured her back, left buttock, hip, neck
and left arm when she fell from a chair at work. He provided findings on physical examination
and diagnosed low back pain, rule out lumbar disc pathology, rule out lumbar radiculopathy;
neck pain, rule out cervical disc pathology, rule out cervical radiculopathy; left shoulder pain,
rule out internal derangement; and left hip pain, rule out internal derangement. Dr. Melin
advised that appellant would undergo chiropractic treatment three times weekly for four to six
weeks. In a June 30, 2008 report, he reiterated his findings and conclusions. On June 30, 2008
Dr. Kevin Trapp, a Board-certified orthopedic surgeon, advised that appellant was under his care
for bilateral hip pain. Appellant also submitted treatment notes with an illegible signature dated
May 1 to August 28, 2008.
By decision dated October 6, 2008, an Office hearing representative accepted the May 1,
2008 incident at work but denied the claim on the grounds that the medical evidence submitted
was insufficient to establish causal relation.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. Regardless of whether
the asserted claim involves traumatic injury or occupational disease, an employee must satisfy
this burden of proof.3
Section 10.5(ee) of Office regulations defines a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
1

Iliotibial band syndrome is defined as a syndrome of knee pain that may result from inflammation due to
mechanical friction of the iliotibial band and the lateral femoral epicondyle. Stedman’s Medical Dictionary (2006).
2

5 U.S.C. §§ 8101-8193.

3

Gary J. Watling, 52 ECAB 278 (2001).

2

workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place and in
the manner alleged, by a preponderance of the reliable, probative and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.6 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.8
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under section 8101(2) of the Act. A chiropractor is not
considered a physician under the Act unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.9
ANALYSIS
The Office accepted that the May 1, 2008 incident occurred in the performance of duty
when appellant fell from a chair at work. The Board finds, however, that the medical evidence
of record is insufficient to establish that she sustained an injury due to the accepted incident.
Dr. Tomlinson diagnosed bilateral iliotibial band syndrome and provided for physical
therapy. Dr. Trapp advised that appellant was under his care for bilateral hip pain. However,
4

20 C.F.R. § 10.5(ee); Ellen L. Noble, 55 ECAB 530 (2004).

5

Gary J. Watling, supra note 3.

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

8

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

9

Mary Ceglia, 55 ECAB 626 (2004). Office regulations define subluxation to mean an incomplete dislocation,
off-centering, misalignment, fixation or abnormal spacing of the vertebrae, which must be demonstrated on x-ray.
20 C.F.R. § 10.5(bb).

3

neither physician addressed the relationship of the diagnosed conditions to the incident in this
case. Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.10 Moreover, the
reports of Dr. Melin, a chiropractor, are insufficient to establish appellant’s claim. The term
“physician” includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.11 Dr. Melin did not diagnose a spinal subluxation based on
x-ray. Therefore, his reports are of no probative medical value.12 Regarding the illegible
reports, they do not constitute probative medical evidence. A medical report may not be
considered as probative evidence if there is no indication that the person completing the report is
a physician as defined at section 8101(2) of the Act.13
To meet his or her burden of proof, an employee must submit a physician’s rationalized
medical opinion on the issue of whether a medical condition was caused by the employment
incident.14 The issue of whether appellant sustained injury on May 1, 2008 is a medical question
which must be established by a physician who, on the basis of a complete and accurate factual
and medical history.15 Appellant did not submit sufficient medical evidence to establish that the
accepted incident at work caused an injury.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an employment injury on May 1, 2007.

10

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

11

5 U.S.C. § 8101(2); see Paul Foster, 56 ECAB 208 (2004).

12

See Michelle Salazar, 54 ECAB 523 (2003). The Board further notes that Dr. Melin diagnosed low back pain,
neck pain, left shoulder pain and left hip pain. Pain is a symptom, not a compensable medical diagnosis. C.F.,
60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008).
13

R.M., 59 ECAB ____ (Docket No. 08-734, issued September 5, 2008).

14

Gary J. Watling, supra note 3.

15

Sandra D. Pruitt, 57 ECAB 126 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 6, 2008 is affirmed.
Issued: July 27, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF LABOR, ENERGY
EMPLOYEES OCCUPATIONAL ILLNESS
COMPENSATION PROGRAM, Denver, CO,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1349
Issued: January 25, 2013

Case Submitted on the Record

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

On June 7, 2012 appellant filed a timely appeal from the May 22, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which found that her reconsideration
request was untimely and did not present clear evidence of error. The appeal was docketed as
number 12-1349.
In this case, OWCP denied appellant’s claim for a traumatic injury on February 3, 2008.
After reconsideration requests, it denied modification of its decision on November 20, 2008,
January 29, 2010 and February 14, 2011. In an appeal request form dated and postmarked
February 13, 2012, appellant requested reconsideration. The request was received by OWCP on
February 21, 2012. Appellant submitted additional evidence and arguments in support of her
request. In its May 22, 2012 decision, OWCP found that the request was untimely as it was not
received until February 21, 2012.
The Board has duly considered the matter and finds that appellant’s request for
reconsideration was timely. Section 10.607(a) of OWCP’s regulations provide that an
application for reconsideration must be received within one year of the date of OWCP decision
for which review is sought.1 OWCP procedures, however, provide that, for decisions issued or
1

20 C.F.R. § 10.607(a).

after June 1, 1987 through August 28, 2011, the one-year period begins on the date of original
decision, and the application for reconsideration must be mailed to OWCP within one year of the
date of the OWCP decision for which review is sought.2 As OWCP’s most recent merit decision
was dated February 14, 2011 and appellant’s request for reconsideration was postmarked on
February 13, 2012, the request was made within one year from the February 14, 2011 merit
decision. Because appellant filed a timely reconsideration request, the case will be remanded to
OWCP for application of the standard for reviewing timely requests for reconsideration.3 The
“clear evidence of error” standard utilized by OWCP in its May 22, 2012 decision is appropriate
only for untimely reconsideration requests. After such further development as OWCP deems
necessary, it should issue an appropriate decision on the timely reconsideration request.
IT IS HEREBY ORDERED THAT the May 22, 2012 decision is set aside and the case
remanded for further action consistent with this order.
Issued: January 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

FECA Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e) (October 2011).

3

See 20 C.F.R. § 10.606(b)(3).

2