United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BILOXI VETERANS ADMINISTRATION
MEDICAL CENTER, Biloxi, MS, Employer
__________________________________________

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Appearances:
Lonnie Boylan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0946
Issued: November 20, 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 5, 2018 appellant, through counsel, filed a timely appeal from a March 9, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability for
intermittent periods beginning January 17, 2017 due to her January 27, 2016 employment injury.
FACTUAL HISTORY
On February 1, 2016 appellant, then a 48-year-old occupational therapist, filed a traumatic
injury claim (Form CA-1) alleging that she sustained injury to her back and legs at work on
January 27, 2016. She asserted that she was injured while lowering a patient to the floor of a
shower in order to prevent him or her from falling, and then helping that patient sit on a shower
bench. Appellant stopped work on March 18, 2016.
OWCP accepted appellant’s claim for muscle, fascia, and tendon strain of her low back
and paid her disability compensation on the daily rolls beginning March 18, 2016 and on the
periodic rolls beginning May 1, 2016.
In September 2016, OWCP referred appellant for a second opinion examination to
Dr. Simon Finger, a Board-certified orthopedic surgeon, in order to evaluate her medical condition
and ability to work.
In an October 11, 2016 report, Dr. Finger detailed the findings of the physical examination
he conducted, noting that appellant had full range of motion of her back and lower extremities and
that she was able to heel walk, toe walk, and squat. Appellant had subjective complaints of pain
traveling from her back down her left leg, but the straight leg raise testing yielded negative results.
Dr. Finger indicated that the January 27, 2016 employment injury had not resolved, but he also
noted that “there are no medical conditions indicating that the condition is still active” given the
negative straight leg raise testing, lack of lower extremity atrophy, and the ability to heel and toe
walk. He advised that appellant was able to perform limited-duty work.
A December 22, 2016 note with an illegible signature indicated that appellant could return
to full-duty work.
On January 9, 2017 appellant returned to her regular work on a full-time basis without
restrictions.
Appellant stopped work again on January 17, 2017 and beginning January 18, 2017, she
filed claims for compensation (Form CA-7) claiming employment-related disability for the period
January 17 to February 9, 2017.3

3

In a January 26, 2017 letter, appellant indicated that she did a great deal of walking, standing, and sitting, and
experienced pain in her low back, groin, and left hip after her January 9, 2017 return to work. On January 16, 2017
the employing establishment controverted her claim for employment-related disability beginning January 17, 2017,
noting that there was no evidence that her work stoppage was related to her employment duties.

2

In support of her disability claim, appellant submitted a January 17, 2017 note from
Dr. Candace Worsham, an attending Board-certified family practitioner, who indicated that
appellant could only return to work after being evaluated by an orthopedic specialist.
In a January 18, 2017 report, Dr. Brent Dilts, an attending Board-certified anesthesiologist,
indicated that appellant presented for follow-up of coccydynia and pelvic pain. Appellant reported
that she had pain relief for a month and a half due to a nerve block injection, but that her pain,
mostly around her perineum, had started to return.4 Dr. Dilts detailed physical examination
findings, noting that she had normal range of motion of her back, negative bilateral straight leg
raising, and normal sensation and 5/5 strength in her lower extremities. He diagnosed lumbar
spondylosis without myelopathy/radiculopathy per a March 23, 2016 magnetic resonance imaging
scan and noted, “[Appellant] with lumbosacral back pain secondary to L5/S1 annular tear as well
as coccydynia that started after a patient fell in [January 2016].”
In a January 20, 2017 note, Dr. Joel Tucker, an attending Board-certified orthopedic
surgeon, indicated that appellant had been seen on January 18, 2017 “for evaluation and treatment
of a work-related injury/condition.” He advised that she was unable to work from January 18,
2017 until her next scheduled follow-up appointment on an unspecified date.
In a February 2, 2017 note, Katherine Jackson, an attending registered nurse, indicated that
appellant was excused from work from February 2 to 9, 2017 in order to rest after undergoing an
injection procedure.
On February 9, 2017 appellant returned to her regular work on a full-time basis without
restrictions.
In February 16, 2017 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim for employment-related disability for
intermittent periods beginning January 17, 2017. It requested that she submit a physician’s
opinion supported by a medical explanation regarding causal relationship between her claimed
periods of disability and the accepted January 27, 2016 employment injury. OWCP afforded
appellant 30 days to submit the requested evidence.
Appellant stopped work again on February 27, 2017 and she filed a claim for compensation
claiming employment-related disability for the period February 27 to March 9, 2017.5
Appellant continued to submit medical evidence relating to her medical condition since her
January 17, 2017 work stoppage, including a January 17, 2017 report from Dr. Vanessa
Duncombe, an attending Board-certified family practitioner, who noted that appellant reported that

4
Dr. Dilts noted that appellant had reported at a previous visit that she started having back pain at work in
January 2016 after a patient fell on her.
5

On March 8, 2017 appellant also filed a notice of recurrence (Form CA-2a) claiming a recurrence of disability
beginning January 17, 2017 due to her January 27, 2016 employment injury. There is no indication in the case record
that appellant returned to work after her February 27, 2017 work stoppage.

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she was hurt in January 2016 when a patient fell on her. Dr. Duncombe diagnosed appellant with
acute pain and indicated that she was unable to work.
In a February 2, 2017 report, Dr. Eric Wolfson, an attending Board-certified neurosurgeon,
noted that appellant presented complaining of left groin pain radiating into her left foot, which she
indicated had started after her return to work on January 9, 2017. He diagnosed lumbar
spondylosis without myelopathy/radiculopathy and left groin pain.
On February 23, 2017 Dr. Francisco Camero, an attending Board-certified family
practitioner, diagnosed appellant with perineal and left groin pain and, in a February 27, 2017 note,
he found her disabled due to a January 27, 2016 workers’ compensation injury from February 27,
2017 until “released for return to work.”
In a March 1, 2017 report, Dr. Camero indicated that appellant’s groin pain prevented her
from working until the problem was resolved. He advised that approval for additional diagnostic
testing was being sought to determine whether her pain was referred from a lumbar diagnosis or
some other source. In a March 2, 2017 duty status report (Form CA-17), Dr. Camero listed the
history of injury as “hurting back on January 27, 2016 while preventing a patient from falling and
lifting the patient into a shower chair.” He provided a diagnosis due to injury of perineal, left hip,
and groin pain, and indicated that appellant was unable to perform work duties.
By decision dated March 28, 2017, OWCP denied appellant’s claim for employmentrelated disability for intermittent periods beginning January 17, 2017. It determined that she failed
to submit medical evidence with sufficient medical rationale to establish causal relationship
between her claimed periods of disability beginning January 17, 2017 and her January 27, 2016
employment injury.
Appellant filed additional claims for compensation claiming employment-related disability
for the period March 19 to June 24, 2014.
In June 7 and July 5, 2017 reports, Dr. Dilts diagnosed lumbar spondylosis without
myelopathy/radiculopathy and left groin pain and noted, “[Appellant] with lumbosacral back pain
secondary to L5/S1 annular tear as well as coccydynia that started after a patient fell in
[January 2016].”
In a July 11, 2017 duty status report, Dr. Camero again listed appellant’s history of injury
to her back on January 27, 2016 while preventing a patient from falling and lifting the patient into
a shower chair. He provided a diagnosis due to injury of nerve entrapment and indicated that she
was unable to resume work.6

6

Appellant also submitted a March 13, 2017 report in which Dr. Camero diagnosed pubic symphysis pain.

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By decision dated August 25, 2017, OWCP denied appellant’s claim for employmentrelated disability for the period March 19 to June 24, 2017, noting that she failed to submit medical
evidence sufficient to establish her disability claim.7
On December 19, 2017 counsel, on behalf of appellant, requested reconsideration of
OWCP’s March 28, 2017 decision denying her claim for employment-related disability beginning
January 17, 2017.8 In a December 19, 2017 letter, he argued that an attached November 29, 2017
report of Dr. Camero supported her claim for employment-related disability beginning on
January 17, 2017 and continuing.9
In his November 29, 2017 report, Dr. Camero provided an extensive discussion of
appellant’s medical treatment and work history since being injured at work on January 27, 2016.
He indicated that she continued to have substantial pain in her groin and pain radiating down her
left leg affecting her bilateral leg adductors, hamstrings, left buttock muscles, and pubic symphysis
joint, which were all related to the accepted January 27, 2016 lower back muscle, fascia, and
tendon strain condition.10 Dr. Camero asserted that the residuals of the January 27, 2016
employment injury were progressive in nature and were exacerbated by the limited-duty
requirements of the position she returned to on January 9, 2017. He also felt that one had to
consider appellant’s deconditioned work readiness state when she returned to work on January 9,
2017 and he concluded that the period after this return to work should be considered to be a failed
work attempt.
Dr. Camero further noted, “The workplace exposure or physiological mechanism of the
requirement of her light-strength position, in addition to her deconditioned physical state, is the
natural and continuous sequence which I have determined to be capable of exacerbating the
residuals contributable to her accepted work-related lower back muscle, fascia, and tendon strain.”
He discussed Dr. Finger’s second opinion evaluation and argued that, based on the physical
examination and diagnostic test findings, it was his “unequivocal opinion that within a reasonable
medical certainty the residuals contributable to [appellant’s] accepted work-related lower back
muscle, fascia, and tendon strain and her deconditioned physical state was [sic] the only reasonable
explanation for the failed work attempt.” Dr. Camero found that appellant continued to be totally
disabled from work.
By decision dated March 9, 2018, OWCP denied modification of its August 25, 2017
decision. It found that appellant failed to submit medical evidence sufficient to establish her claim
for employment-related disability for intermittent periods beginning January 17, 2017.
7

OWCP inadvertently indicated that it was denying appellant’s disability claim for the period May 28 and June 24,
2017 rather than the actual claimed period March 19 to June 24, 2017.
8

After OWCP issued its August 25, 2017 decision, appellant filed additional claims for compensation claiming
employment-related disability for the period September 30 to November 24, 2017.
9

In a September 30, 2017 statement, appellant asserted that her January 27, 2016 low back injury had never
resolved. The employing establishment continued to controvert her disability claim and argued that her work
stoppages were due to nonwork-related conditions.
10

Dr. Camero did not provide any new physical examination findings.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.11 In general, the term disability under FECA means incapacity because
of injury in employment to earn the wages which the employee was receiving at the time of such
injury.12 This meaning, for brevity, is expressed as disability from work.13
The medical evidence required to establish causal relationship between a claimed period
of disability and an employment injury is rationalized medical opinion evidence. 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.14
Whether a particular employment injury causes disability from employment and the
duration of that disability are medical issues, which must be proven by a preponderance of reliable,
probative, and substantial medical evidence.15
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
intermittent periods beginning January 17, 2017 due to her January 27, 2016 employment injury.
OWCP accepted appellant’s claim for muscle, fascia, and tendon strain of her low back.
Appellant claimed disability for intermittent periods beginning January 17, 2017 due to her
January 27, 2016 employment injury. OWCP denied her claim because she failed to submit
medical evidence with sufficient medical rationale to establish causal relationship between her
claimed periods of disability and her January 27, 2016 accepted employment injury.
In support of her disability claim, appellant submitted a January 17, 2017 note from
Dr. Worsham who indicated that appellant could only return to work after being evaluated by an
orthopedic specialist. In a January 17, 2017 report, Dr. Duncombe diagnosed appellant with acute
pain and indicated that she was unable to work. In a January 20, 2017 note, Dr. Tucker indicated
that appellant had been seen on January 18, 2017 “for evaluation and treatment of a work-related
11

J.F., Docket No. 09-1061 (issued November 17, 2009).

12

See 20 C.F.R. § 10.5(f).

13

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1895 (issued April 23, 2010).

14

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

15

W.D., Docket No. 09-658 (issued October 22, 2009).

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injury/condition” and advised that she was unable to work from January 18, 2017 until her next
scheduled follow-up appointment. However, these reports are insufficient to establish her claim
for employment-related disability beginning January 17, 2017 because none of these physicians
provided any opinion on the cause of her disability. Although Dr. Tucker mentioned treatment for
a “work-related injury/condition,” he did not provide an opinion that it was the cause of the
specified disability. The Board has held that medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.16
In a January 18, 2017 report, Dr. Dilts noted that appellant had reported at a previous visit
that she started having back pain at work in January 2016 after a patient fell on her. He diagnosed
lumbar spondylosis without myelopathy/radiculopathy and noted, “[Appellant] with lumbosacral
back pain secondary to L5/S1 annular tear as well as coccydynia that started after a patient fell in
[January 2016].” Although Dr. Dilts suggested that appellant’s lumbar annular tear and
coccydynia were caused by the accepted January 27, 2016 employment injury, the Board finds that
his report is of no probative value regarding appellant’s disability claim because he did not provide
any opinion on disability.17 The Board further notes that OWCP has not accepted that appellant
sustained a lumbar annular tear and coccydynia on January 27, 2016 and Dr. Dilts has not provided
a medical explanation establishing such causal relationship. In June 7 and July 5, 2017 reports,
Dr. Dilts diagnosed lumbar spondylosis without myelopathy/radiculopathy and left groin pain and
noted, “[Appellant] with lumbosacral back pain secondary to L5/S1 annular tear as well as
coccydynia that started after a patient fell in [January 2016].” These reports are also of no
probative value as they do not offer an opinion regarding the cause of appellant’s condition.18
On February 23, 2017 Dr. Camero diagnosed appellant with perineal and left groin pain
and, in a February 27, 2017 note, he found her disabled due to a January 27, 2016 workers’
compensation injury from February 27, 2017 until “released for return to work.” In a March 1,
2017 report, he indicated that her groin pain prevented her from working until the problem was
resolved. In a March 2, 2017 duty status report, Dr. Camero listed the history of injury as hurting
back on January 27, 2016 while preventing a patient from falling and lifting the patient into a
shower chair. He provided a diagnosis due to injury of perineal, left hip, and groin pain, and
indicated that appellant was unable to perform work duties. In a July 11, 2017 duty status report,
Dr. Camero listed the same history of injury, provided a diagnosis due to injury of nerve
entrapment, and indicated that appellant was unable to resume work.
Although Dr. Camero found employment-related disability in some of these reports, they
are of limited probative value in establishing appellant’s claim for employment-related disability
beginning January 17, 2017 because he failed to provide adequate medical rationale in support of
his opinion on causal relationship. He did not describe the January 27, 2016 employment injury
in any detail or provide medical rationale explaining how such a soft-tissue injury could have
caused disability a year later. Moreover, Dr. Camero diagnosed conditions in some of his findings
16

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

17

Id.

18

Id.

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which have not been accepted as related to the January 27, 2016 employment injury, such as nerve
entrapment, and he has not provided a medical explanation establishing a causal relationship
between these conditions and the January 27, 2016 employment injury.
In a November 29, 2017 report, Dr. Camero indicated that appellant continued to have
substantial pain in her groin and pain radiating down her left leg affecting her bilateral leg
adductors, hamstrings, left buttock muscles, and pubic symphysis joint, which were all related to
the accepted January 27, 2016 lower back muscle, fascia, and tendon strain condition. He asserted
that the residuals of the January 27, 2016 employment injury were progressive in nature and were
exacerbated by the limited-duty requirements of the position returned to on January 9, 2017.
Dr. Camero indicated that appellant was deconditioned when she returned to work and he
concluded that the period after this return to work should be considered to be a failed work attempt.
He further noted, “The workplace exposure or physiological mechanism of the requirement of
[appellant’s] light strength position, in addition to her deconditioned physical state, is the natural
and continuous sequence which I have determined to be capable of exacerbating the residuals
contributable to her accepted work-related lower back muscle, fascia, and tendon strain.”
Dr. Camero discussed Dr. Finger’s October 11, 2016 second opinion evaluation and argued that,
based on the physical examination and diagnostic test findings, it was his “unequivocal opinion
that within a reasonable medical certainty the residuals contributable to [appellant’s] accepted
work-related lower back muscle, fascia, and tendon strain and her deconditioned physical state
was [sic] the only reasonable explanation for the failed work attempt.” He found that appellant
continued to be totally disabled from work.
The Board finds that Dr. Camero’s November 29, 2017 report is of limited probative value
in establishing appellant’s claim for employment-related disability beginning January 17, 2017
because he failed to provide adequate medical rationale in support of his opinion on causal
relationship. Dr. Camero did not explain the medical process through which the January 27, 2016
low back strain could have caused disabling conditions that were primarily located in the pelvic
area rather than the low back. Moreover, he did not present specific findings of physical
examination and diagnostic testing which supported his opinion on causal relationship.
Dr. Camero did not provide any new physical examination findings from around the time he
provided his November 29, 2017 report. Although he discussed Dr. Finger’s October 11, 2016
examination, this would be of limited relevance to the underlying issue of the case because the
examination occurred before appellant’s claimed period of employment-related disability
beginning January 17, 2017. Dr. Camero also suggested that she sustained a new injury due to her
work duties after she returned to work on January 9, 2017, but he failed to provide a rationalizedmedical opinion supporting this opinion. As noted above, the Board has held that a report is of
limited probative value regarding causal relationship if it does not contain medical rationale
explaining how an employment activity could have caused or aggravated a medical condition.19
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.

19

See supra note 16.

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
intermittent periods beginning January 17, 2017 due to her January 27, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 9, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 20, 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
__________________________________________
W.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlantic City, NJ, Employer
__________________________________________

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1302
Issued: February 7, 2020

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 May 24, 2019 appellant, through counsel, filed a timely appeal from a February 13,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish lumbar, right hip,
and left knee conditions causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On October 14, 2017 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed degenerative conditions of the spine, right
hip, and left knee due to carrying a heavy mail satchel, repetitive lifting and bending, prolonged
walking, and climbing stairs while in the performance of duty on or before September 16, 2011.
On the reverse side of the claim form, Postmaster F.R., indicated that appellant had never
expressed that his position as a letter carrier had caused any of his medical issue, but instead
attributed his condition to his Parkinson’s disease. It was also noted that appellant had been out
on Family and Medical Leave Act since August 12, 2017, contemplating retirement on November
30, 2017 and he had been assigned a driving route for the three years prior to the date he stopped
working. Appellant retired on November 30, 2017.
In a December 5, 2017 controversion letter, Postmaster F.R., again contended that
appellant had never mentioned that his federal employment caused his injuries and that it was his
Parkinson’s disease causing his physical issues. Additionally, it was noted that he worked a second
job in the private sector, simultaneous with his federal employment, for years.
In a development letter dated December 20, 2017, OWCP advised appellant of the
deficiencies of his claim and instructed him as to the factual and medical evidence necessary to
establish his claim. It afforded him 30 days to submit additional evidence and respond to its
inquiries.
In response, appellant submitted a February 23, 2018 narrative statement. He asserted that
walking six to eight miles a day with frequent stair climbing in the performance of duty had caused
knee, back, and hip conditions. Dr. Alvin Ong, a Board-certified orthopedic surgeon, performed
a total left knee arthroplasty in August 2011. In 2013, appellant experienced lumbar symptoms
and hip pain. Dr. Zachary Post, a Board-certified orthopedic surgeon, performed a total right hip
arthroplasty in November 2014. Dr. Paul Marcotte, a Board-certified neurosurgeon, performed an
L3, L4, and L5 laminectomy in 2017. Appellant submitted additional evidence.
In an April 13, 2017 letter, Postmaster F.R., confirmed that appellant’s job duties required
carrying up to 35 pounds continuously, with driving, walking, climbing steps, bending, stooping,
twisting, and kneeling up to eight hours a day.
In a May 1, 2017 report, Dr. Maureen Gottfried, an osteopathic physician Board-certified
in neurology and psychiatry, found appellant able to perform the primary functions of his letter
carrier position.
In a December 20, 2017 report, Dr. Jerald P. Vizzone, an osteopathic physician Boardcertified in orthopedic surgery, noted that, since 1987, appellant had worked various postal
delivery routes, causing “progressive injury due to wear and tear of [appellant’s] left knee, right

2

hip, and low back.” Appellant underwent a total left knee arthroplasty on August 1, 2011 a total
left right hip arthroplasty on November 6, 2014, and lumbar surgery in August 2017. Dr. Vizzone
diagnosed acute bilateral L5-S1 radiculopathy as demonstrated by a February 2017
electrodiagnostic study, internal derangement of the left knee, left meniscal tear, left knee
osteoarthritis, lumbar degeneration, severe lumbar stenosis from L2 through S1, most severe at
L4-5, internal derangement and osteoarthritis of the right hip, and status post total left knee
arthroplasty. He opined that the diagnosed conditions were directly causally related “to the
significant wear and tear related to [appellant’s] job demands” as a letter carrier.
By decision dated February 26, 2018, OWCP accepted that the identified work factors had
occurred as alleged, but denied the claim as causal relationship had not been established.
In a letter postmarked March 5, 2018, appellant, through counsel, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review, held on July 25, 2018. During
the hearing, counsel contended that Dr. Vizzone’s opinion was of sufficient probative value to
warrant further development. Appellant submitted additional evidence.
In a February 8, 2018 statement, appellant attributed his physical deterioration to wear and
tear caused by his postal duties, with no contribution from private sector employment or
Parkinson’s disease.
In a July 20, 2011 report, Dr. Ong noted appellant’s employment as a letter carrier, with a
history of left knee arthroscopy in November 2010 and right knee arthroscopy on an unspecified
date. He diagnosed end-stage degenerative joint disease (DJD) of the left knee and mild DJD of
the right knee. Dr. Ong performed a total left knee arthroplasty on August 1, 2011. In an August 2,
2011 progress note, he indicated that appellant had a “long history” of DJD of the left knee, with
a recent increase of symptoms.
In an October 16, 2013 report, Dr. Alan S. Hilibrand, a Board-certified orthopedic surgeon,
noted an eight-year history of lumbar pain, with increased symptoms during the previous five
months when carrying a mail satchel while at work. Chiropractic manipulation reduced his pain
symptoms and right-sided radiculopathy.
Dr. Hilibrand diagnosed spinal stenosis and
recommended additional physical therapy. He provided a February 5, 2014 follow-up report
noting that an epidural injection had reduced appellant’s pain symptoms.
Dr. Gottfried provided an April 11, 2016 report noting the gradual onset of a rhythmic right
upper extremity tremor and gait disturbance seven months previously. She diagnosed akinetic
rigid syndrome. In a February 28, 2017 electromyography and nerve conduction velocity study
report, Dr. Gottfried noted a sensory motor axonopathy with secondary demyelination affecting
both lower extremities. She also diagnosed acute bilateral L5-S1 radiculopathy.
In an October 12, 2017 report, Dr. Marcotte noted a normal postoperative course following
L3, L4, and L5 laminectomies performed on August 25, 2017 with a series of routine checks
performed by Benjamin G. Hurtig, a physician assistant.
Appellant retired from the employing establishment effective November 30, 2017.

3

By decision dated October 5, 2018, an OWCP hearing representative affirmed the
February 26, 2018 decision, finding that the medical evidence of record was insufficient to
establish causal relationship.
On November 15, 2018 appellant, through counsel, requested reconsideration and
submitted a September 28, 2018 report by Dr. Zachary D. Post, an associate of Dr. Hilibrand.
Dr. Post indicated that he first examined appellant on September 24, 2014 for complaints of right
hip pain, which appellant attributed to carrying a mail satchel up and down stairs while in the
performance of duty. X-rays demonstrated advanced osteoarthritis of the right hip. At that time,
Dr. Post opined that repetitive work activities, “including lifting and carrying the mailbag over a
course of 30 years contributed to the advanced degeneration of his right hip.” He further noted
that appellant underwent a total right hip arthroplasty on November 6, 2014 and after presenting
with lumbar pain on December 9, 2014 he was diagnosed with degenerative disc disease. Dr. Post
explained that on June 27, 2018 he diagnosed osteoarthritis of the right knee and administered an
intraarticular injection and a magnetic resonance imaging scan revealed a small medial meniscal
tear with degenerative changes throughout the knee. He concluded by opining that within a
reasonable degree of medical certainty, appellant’s “right hip arthritis, which ultimately led to
[appellant’s] replacement, had been exacerbated and was a direct reflection” of work activities
including “walking multiple miles a day, carrying a heavy bag, and going up and down stairs
certainly would have contributed to the advanced degeneration of his right hip.”
By decision dated February 13, 2019, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or

3

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,
40 ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
ANALYSIS
The Board finds that appellant has met not his burden of proof to establish lumbar, right
hip, and left knee conditions causally related to the accepted factors of his federal employment.
In reports from July 20 through August 2, 2011, Dr. Ong noted appellant’s federal
employment as a letter carrier with a long history of DJD of the left knee, with a recent increase
in symptoms. Dr. Gottfried submitted reports dated from April 11, 2016 through February 28,
2017 which diagnosed akinetic rigid syndrome, sensory and motor axonopathy of the bilateral
lower extremities with secondary demyelination, and acute bilateral L5-S1 radiculopathy. In an
October 12, 2017 report, Dr. Marcotte noted a normal postoperative course following August 25,
2017 lumbar laminectomies. However, these physicians did not address whether the accepted
work factors had caused or contributed to the diagnosed conditions. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship.11 These reports therefore are insufficient
to establish appellant’s claim.

6

M.L., Docket No. 19-0813 (issued November 26, 2019); R.G., Docket No. 19-0233 (issued July 16, 2019). See
also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41
ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

M.L., supra note 6; M.V., id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
N.C., Docket No. 19-1191 (issued December 19, 2019); R.D., Docket No. 18-1551 (issued March 1, 2019).
11
M.L., supra note 6; L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued
July 6, 2018). J.B., Docket No. 17-2021 (issued August 8, 2018).

5

Dr. Hilibrand noted on October 16, 2013 that carrying a mail satchel had aggravated
appellant’s lumbar pain symptoms, but did not indicate if the accepted work factors had affected
the diagnosed lumbar degenerative disease. The Board has held that a report is of limited probative
value regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/disability was related to employment factors.12 Additionally, the Board has held
that pain is a symptom and not a compensable medical diagnosis.13 Therefore, this report is
insufficient to establish appellant’s claim.
In a December 20, 2017 report, Dr. Vizzone opined that appellant’s duties as a letter carrier
caused progressive injury due to significant wear and tear of his left knee, right hip, and low back.
Similarly, Dr. Post asserted in his September 28, 2018 report that the accepted work factors of
walking, carrying a mail satchel, and climbing stairs exacerbated and directly contributed to
appellant’s right hip arthritis. As noted above, the Board has held that a report is of limited
probative value regarding causal relationship if it does not contain medical rationale explaining
how a given medical condition/disability was related to employment factors.14 Therefore, these
reports are also insufficient to establish appellant’s claim.
OWCP also received several imaging and electrodiagnostic study reports. The Board has
held that reports of diagnostic tests lack probative value as they do not provide an opinion on
causal relationship between the accepted employment factors and a diagnosed condition.15
As appellant has not submitted rationalized medical evidence sufficient to establish an
injury causally related to the accepted employment incident, the Board finds that he has not met
his burden of proof.
On appeal, counsel contends that Dr. Post’s opinion is sufficiently rationalized to establish
causal relationship. As noted above, Dr. Post did not explain with rationale how and why the
accepted work factors would have caused or aggravated the diagnosed conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish lumbar, right
hip, and left knee conditions causally related to the accepted factors of his federal employment.

12

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

13

T.G., 19-0904 (issued November 25, 2019); R.C., Docket No. 19-0376 (issued July 15, 2019).

14

Supra note 12.

15
See C.F., Docket No. 18-1156 (issued January 22, 2019); M.M., Docket No. 19-0061 (issued
November 21, 2019).

6

ORDER
IT IS HEREBY ORDERED THAT the February 13, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2020
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
POSTGRADUATE SCHOOL, Monterey, CA,
Employer
__________________________________________

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

Docket No. 07-1246
Issued: December 13, 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 April 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 16, 2007 affirming a termination of
compensation effective July 8, 2006. 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 the Office met its burden of proof to terminate compensation for
wage-loss and medical benefits effective July 8, 2006.
FACTUAL HISTORY
Appellant filed a traumatic injury claim alleging that she sustained a lower back injury in
the performance of duty on October 17, 2001 when she was lifting children in the toddler
classroom. The Office accepted the claim for a lumbosacral strain.1 Appellant returned to work
1

A statement of accepted facts dated January 12, 2006 reported that the accepted injury was a lumbosacral sprain.

in June 2002 in a light-duty position at four hours per day. On December 9, 2005 she stopped
working as light duty was no longer available. Appellant began receiving compensation for
temporary total disability.
The Office referred appellant, a statement of accepted facts and medical records to
Dr. Aubrey Swartz, a Board-certified orthopedic surgeon. In a report dated April 27, 2006,
Dr. Swartz provided a history and results on examination. In response to inquiry as to the
diagnosis, he stated that appellant had a disc protrusion or herniation at L5-S1 without nerve root
or spinal cord compression. Dr. Swartz then discussed an “inconsistency” with respect to the
initial claim. He indicated that appellant was seen on October 21, 2001 by a Dr. Wells and the
history reported only that she woke up on October 18, 2001 with major back pain. According to
Dr. Swartz, “This would raise a question regarding this claim or the mechanism of injury.” He
also stated that appellant was diagnosed with myofascial pain syndrome and had reported a
history of fibromyalgia, which raised additional questions regarding the claim. In response to a
question as to whether the diagnosed condition was causally related to the work injury,
Dr. Swartz responded, “There is no evidence at this time of a work-related injury and I would
again refer to the doctor’s first reported work injury by Dr. Wells … dated October 21, 2001.”
He described objective findings of pain with straight leg raising, but reported evidence of
symptom magnification. Asked to describe any nonindustrial or preexisting disability,
Dr. Swartz reported the L5-S1 disc protrusion. He concluded, in response to inquiry as to
whether appellant continued to suffer residuals of an injury, “There is no evidence at this time
that an injury occurred on October 17, 2001.”
By letter dated May 11, 2006, the Office notified appellant that it proposed to terminate
her compensation. In an accompanying memorandum, the Office indicated that Dr. Swartz
represented the weight of the evidence. The Office noted that Dr. Swartz discussed
inconsistencies in the claim, but the point was “somewhat moot, here, however, because the basis
of the decision rests on the medical findings relative to the claimant’s current medical state, not
on her medical condition at the time of her claimed injury.”
In a decision dated June 14, 2006, the Office terminated compensation for wage-loss and
medical benefits effective July 8, 2006. Appellant requested a review of the written record by an
Office hearing representative. By decision dated February 16, 2007, the hearing representative
affirmed the June 14, 2006 decision. The hearing representative found that Dr. Swartz provided
a well-reasoned opinion that represented the weight of the evidence.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.3 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate

2

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

3

Mary A. Lowe, 52 ECAB 223, 224 (2001).

2

authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.4
ANALYSIS
The Office terminated compensation for wage-loss and medical benefits effective July 8,
2006 based on the report of second opinion examiner Dr. Swartz. The Board notes that the
accepted condition in this case was a lumbosacral strain. It is the Office’s burden of proof to
terminate compensation with respect to the accepted condition. In addition, since the Office
referred appellant to Dr. Swartz regarding whether she had any continuing employment-related
condition, the Office has responsibility to secure a report that adequately addresses the relevant
issues.5
The Board finds the April 27, 2006 report of Dr. Swartz to be of diminished probative
value. It is well established that a physician’s opinion must be based on a complete and accurate
factual and medical background. When the Office has accepted an employment injury occurring
in the performance of duty, the physician must base his opinion on the accepted facts.6 The
Office accepted that appellant sustained a lumbosacral strain on October 17, 2001 as a result of
lifting a child. In referring appellant to Dr. Swartz, the Office sought a medical opinion as to
whether appellant continued to have an employment-related condition or disability.
Dr. Swartz did not specifically discuss the lumbosacral strain, other than to note that it
was the accepted injury. He diagnosed an L5-S1 disc herniation or protrusion.7 Dr. Swartz then
discussed at length what he felt were inconsistencies in the claim, in particular an October 21,
2001 report in which the physician did not report an incident involving the lifting of a child. In
response to a question as to whether the diagnosed condition was causally related to the work
injury, Dr. Swartz stated that there was no evidence at this time of a work-related injury, but the
only support he offered for that opinion was to refer to the October 21, 2001 report. While the
Office noted that Dr. Swartz’s reference to inconsistencies in the claim was “somewhat moot,”
the only rationale Dr. Swartz provided for his opinion was reference to a 2001 report that did not
provide a history of the accepted lifting incident. In addition, Dr. Swartz concluded his report by
stating that there was no evidence that an injury occurred on October 17, 2001.
Dr. Swartz premised his opinion that there was no current evidence of a work-related
injury on his observation that appellant did not sustain an employment injury as alleged on
October 17, 2001. His report is therefore not based on a complete and accurate factual
background and is of diminished probative value. The April 27, 2006 report is not sufficient to
establish that appellant had no continuing employment-related residuals or disability. The Office
4

Frederick Justiniano, 45 ECAB 491 (1994).

5

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983); Richard W. Kinder, 32
ECAB 863 (1981).
6

See Paul King, 54 ECAB 356 (2003).

7

A magnetic resonance imaging (MRI) scan dated February 22, 2002 reported L5-S1 degenerative disc disease.
A second opinion examiner, Dr. Ken Ishizue, diagnosed a herniated L5-S1 disc on July 16, 2004.

3

did not meet its burden of proof to terminate compensation based on the accepted lumbosacral
strain, and Dr. Swartz failed to provide a rationalized medical opinion with respect to any other
employment-related condition.
CONCLUSION
The April 27, 2006 report of the second opinion examiner is of diminished probative
value and did not resolve the issues in the case.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 16, 2007 and June 14, 2006 are reversed.
Issued: December 13, 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

4


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

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 10-2216
Issued: July 11, 2011

Case Submitted on the Record

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

JURISDICTION
On August 30, 2010 appellant, through her attorney, filed a timely appeal of a June 1,
2010 Office of Workers’ Compensation Programs (OWCP) merit decision reducing her
compensation benefits to zero. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the
case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits to zero
based on her refusal to undergo vocational rehabilitation as directed.
On appeal, appellant’s attorney alleged that appellant did not fail to cooperate with
vocational rehabilitation services, but instead selected Office of Personnel Management (OPM)
retirement benefits.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 9, 2008 appellant, then a 54-year-old clerk, filed a traumatic injury claim
alleging that she fell in the parking lot that day, injuring her right shoulder in the performance of
duty. OWCP accepted her claim for right labral tear and right rotator cuff tear on
November 7, 2008. Appellant filed a notice of recurrence of disability on December 4, 2008
alleging on that date she stopped work. OWCP accepted this claim on December 31, 2008. On
January 29, 2009 it accepted appellant’s claim for the additional condition of loosening of the
right knee joint.
On August 12, 2009 OWCP referred appellant for vocational rehabilitation counseling.
In a letter dated August 17, 2009, the vocational rehabilitation counselor stated that appellant had
returned her telephone call and agreed to meet with her on August 24, 2009. OWCP informed
her on September 30, 2009 that if she elected to receive a $15,000.00 one-time retirement
incentive payment from the employing establishment, that this amount would have to be offset
against her compensation for total disability. It entered appellant on the periodic rolls on
September 30, 2009 and informed her that benefits from OPM were not payable for the same
time as compensation benefits from OWCP. OWCP stated that she was required to elect the
benefits to be received and that if she elected OPM benefits she would still be entitled to medical
benefits under FECA. It provided appellant with an election form.
In a report dated September 14, 2009, the vocational rehabilitation counselor stated that
appellant was cooperated with the initial meeting on August 24, 2009, but stated that she
expected to receive retirement benefits beginning on September 29, 2009. The vocational
rehabilitation counselor contacted her on August 31, 2009 and she stated that her retirement
would be effective October 31, 2009.
Appellant agreed to testing scheduled on
September 18, 2009.
Appellant completed an election form and selected retirement benefits effective
November 1, 2009. In a letter dated October 15, 2009, OWCP transferred her health benefit
enrollment to OPM effective November 1, 2009.
In a report dated October 15, 2009, the vocational rehabilitation counselor stated that
appellant cooperated with testing and telephone conversations. OWCP completed a letter dated
October 16, 2009 stating that appellant had decided not to continue participating in vocational
rehabilitation. It informed appellant of the penalties for failing to cooperate with vocation
rehabilitation and allowed her 30 days to cooperate or offer a good reason for not participating.
OWCP stated that if she did not provide good cause within 30 days, her rehabilitation effort
would be terminated and her compensation reduced under sections 8113(b) of FECA and 10.519
of OWCP’s regulations. It added, “Please note that you do not have to respond to this notice if
you do not wish to receive monetary FECA benefits in preference to CSRS or FERS benefits.”
In a report dated November 5, 2009, the vocational rehabilitation counselor closed
appellant’s file effective October 15, 2009.
By decision dated December 1, 2009, OWCP noted that appellant had not responded to
the October 16, 2009 letter and reduced her compensation benefits to zero effective December 1,

2

2009 based on her refusal to cooperate with the early stages of vocational rehabilitation. Counsel
requested an oral hearing on December 7, 2009. On March 30, 2010 he converted the request for
an oral hearing to a review of the written record. Counsel argued that appellant cooperated with
vocational rehabilitation efforts through October 15, 2009 and elected to receive OPM benefits
effective November 1, 2009. He referenced OWCP’s procedure manual, noting that appellant
was not entitled to vocational rehabilitation services while collecting benefits from OPM.
Counsel argued that the December 1, 2009 decision should be vacated. Appellant submitted a
statement dated March 5, 2010 asserting that she cooperated with the vocational rehabilitation
efforts until services were terminated pending her retirement.
By decision dated June 1, 2010, OWCP’s hearing representative affirmed the
December 1, 2009 OWCP’s decision stating that appellant’s election of OPM benefits during
vocational rehabilitation placement interrupted the services provided her and disqualified her
from further services such that OWCP was required to issue the sanction decision reducing her
compensation benefits to zero.
LEGAL PRECEDENT
Section 8113(b) of FECA provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would probably have been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.2”
Section 10.519(b) and (c) of OWCP’s regulations provided that if a suitable position is
not identified because of the failure or refusal to cooperate in the early but necessary stages of a
vocational rehabilitation effort i.e., meeting with nurse, interviews, testing, counseling,
functional capacity evaluations or work evaluations, then OWCP will assume that the vocational
rehabilitation effort would have resulted in a return to work with no loss of wage-earning
capacity and will reduce compensation to zero. This reduction will remain in effect until such
time as the employee acts in good faith to comply with the direction of OWCP.3
ANALYSIS
OWCP referred appellant for vocational rehabilitation services on August 12, 2009.
Appellant met with the vocational rehabilitation counselor on August 24, 2009 and informed the
counselor that she expected to retire on September 29, 2009. On August 31, 2009 she informed
the vocational rehabilitation counselor of her retirement effective October 31, 2009, but agreed
2

5 U.S.C. § 8104.

3

20 C.F.R. § 10.519(b) and (c).

3

to undergo testing scheduled on September 18, 2009. OWCP received an election form on
October 9, 2009 in which appellant selected retirement benefits effective November 1, 2009. By
letter dated October 16, 2009, it informed appellant of the penalties for failing to cooperate with
vocation rehabilitation and allowed her 30 days to cooperate or offer a good reason for not
participating. OWCP stated that if she did not provide good cause within 30 days, her
rehabilitation effort would be terminated and her compensation reduced until such time as she
again cooperated with vocational rehabilitation. It directed appellant not to respond if she had
elected OPM benefits. Appellant did not respond and by decision dated December 1, 2009,
OWCP reduced her compensation benefits to zero effective December 1, 2009 based on her
refusal to cooperate with the early stages of vocational rehabilitation.
The Board finds that OWCP improperly reduced appellants’ compensation benefits to
zero effective December 1, 2009 based on her refusal to cooperate with vocational rehabilitation
services. Appellant provided OWCP with a clear election of OPM benefits on October 9, 2009
effective October 31, 2009. She continued to cooperate with the vocational rehabilitation
counselor until OWCP closed her file effective October 15, 2009 noting that she had elected
OPM benefits. While appellant is not entitled to receive dual benefits, as FECA provides that
while an employee is receiving compensation she may not receive salary, pay or remuneration of
any type from the United States except in return for services actually performed or for certain
payments related to service in the Armed Forces, including benefits administered by the
Department of Veterans Affairs unless such benefits are payable for the same injury or the same
death being compensated for under FECA.4 The implementing regulations provide that a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.5 Appellant properly elected the benefit that she wished to receive.6 As she has
elected to receive OPM benefits effective October 31, 2009, she is not entitled to receive
compensation benefits from OWCP on or after that date, including vocational rehabilitation
services.
The Board finds that appellant continued to cooperate until OWCP ended her vocational
rehabilitation services and that OWCP had no basis for its finding reducing her compensation to
zero effective December 1, 2009.
CONCLUSION
The Board finds that, as there is no factual evidence that appellant refused to cooperate
with vocational rehabilitation services, OWCP failed to meet its burden of proof to reduce her
compensation benefits to zero effective December 1, 2009 until such time as she resumed
cooperation.

4

5 U.S.C. § 8116(a).

5

20 C.F.R. § 10.421(a).

6

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2010 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Oakdale, LA, Employer
__________________________________________

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Appearances:
Katherine Smith, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1066
Issued: September 21, 2017

Oral Argument April 25, 2017

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

JURISDICTION
On April 26, 2016 appellant, through counsel,2 filed a timely appeal from a February 4,
2016 decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

At the time appellant filed her appeal she was represented by Toby Rubenstein. By letter dated May 2, 2016,
Ms. Rubenstein informed the Board that she no longer represented appellant as she had retired. By facsimile dated
June 15, 2016, counsel advised that she was now representing appellant and requested oral argument before the
Board.
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On February 8, 2013 appellant, then a 39-year-old senior correctional officer, filed an
occupational disease claim (Form CA-2) alleging that she experienced mental stress on the job
due to constant harassment from various management officials, which exacerbated her existing
mental condition and also caused a new diagnosis of bipolar disorder coupled with dementia.
She noted that she first became aware that her postconcussive syndrome, bipolar disorder,
dementia, and high blood pressure were aggravated by her work stress and harassment on
July 20, 2012. Appellant stopped work on that same date.
In a February 7, 2013 narrative statement, appellant alleged employment-related mental
stress from December 2009 to July 2012. Specifically, she attributed her mental stress to sexual
harassment by management and inmates. Appellant explained that she was diagnosed on
July 21, 1999 with postconcussive syndrome and initially began experiencing mental stress due
to her job from December 2009 to July 19, 2012. On July 20, 2012 she was diagnosed with
bipolar disorder coupled with dementia. Appellant alleged that her conditions worsened due to
stressors that she was experiencing on the job, including being assigned to monitor male inmates
while they were showering. She also alleged a hostile work environment due to the harassment,
intimidation, and bullying. Appellant related that she was improperly removed from her post and
was passed over for promotion. She alleged reprisal for a prior Equal Employment Opportunity
(EEO) complaint. Appellant alleged that she was unfairly investigated, had her performance
evaluations lowered, was written up, was denied leave to attend funerals for family members,
was denied requests for leave without pay (LWOP), and was called derogatory names.
In a letter dated February 22, 2013, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. It advised her regarding the type of medical and factual
evidence required and afforded her 30 days to submit this information.
OWCP subsequently received medical and factual evidence responding to OWCP’s
February 22, 2013 development letter.
In a May 11, 2010 report, Dr. David C. Daniel, Jr., Ph.D., a treating clinical psychologist,
wrote that he began treating appellant on February 8, 2010 for depression and anxiety. He went
on to detail her symptoms and current treatment. Dr. Daniel opined that appellant was capable of
performing her usual job duties except for monitoring male inmates while they were showering.
He explained that she felt sexually harassed by the inmates during their showers and felt
demeaned by their sexual actions which she had to witness.
Appellant submitted evidence regarding her EEO complaint, affidavits, interrogatories,
and correspondence regarding her allegations of harassment and discrimination. She submitted a
December 29, 2011 EEO letter, which accepted 3 of her 10 allegations for consideration and
dismissed the remaining 7 allegations as untimely filed. The accepted allegations included that,

2

from January 2010 to October 7, 2011, appellant was subjected to harassment, intimidation, and
bullying; that appellant was reassigned from her post; and that appellant was not selected for the
position of correctional treatment specialist.
The record contains correspondence from appellant and the employing establishment
concerning leave requests, disciplinary actions, as well as medical evidence.
In a July 2, 2012 treatment note, Dr. Adrien J. Nelson, a treating physician specializing in
psychiatry, wrote that appellant had been hospitalized on June 16, 2012 and was being
discharged that day. He released her to return to her regular work duties except for the
monitoring of showering inmates.
In a July 23, 2012 letter, the employing establishment noted documentation from
Dr. Daniel and Dr. Nelson providing work restrictions. Specifically, Dr. Daniel and Dr. Nelson
indicated that appellant was capable of performing her usual work duties except for monitoring
naked inmates while they were showering. The employing establishment advised her that it was
unable to continue to indefinitely accommodate her and requested further medical documentation
regarding her work restrictions, medical diagnoses, and anticipated return to full-duty date.
The record contains several pages from an affidavit completed by C.P., a coworker,4
describing the area where the inmates showered and noting that appellant felt sexually harassed
by the inmates who were showering. She further related that there were some inmates who liked
to display themselves and commit lewd acts while showering to harass the staff monitoring them.
C.P. related that there were no consequences for inmates for this behavior even when it was
reported.
On March 30, 2013 OWCP received appellant’s May 10, 2010 amendment to her EEO
complaint to include sexual harassment and retaliation due to being forced to monitor inmates
showering during the period April 29 to May 8, 2010. Appellant related that the burglar bars in
front of the shower revealed their nudity. As part of her duties she was required to distribute
soap and razors, even while the inmates behaved lewdly inside the shower area. Appellant
related that she was placed on sick leave because she had a medical restriction regarding
monitoring showering male inmates.
In a February 22, 2013 report, based upon a review of appellant’s Form CA-2,
statements, medical history, medical records, and examination, Dr. Daniel diagnosed
postconcussion syndrome and bipolar disorder with paranoid ideation. He opined that
appellant’s work stress aggravated her bipolar disorder resulting in distrust and anxiety.
On May 12, 2013 OWCP received a May 11, 2010 report from Dr. Daniel noting that
appellant had recently been disabled from work as a result of her depression and anxiety.
Appellant was reevaluated on April 23, 2010 and, at that time, Dr. Daniel opined that she was
capable of returning to work provided that she was not required to monitor any inmates while
they showered. Dr. Daniel explained that the restriction was to prevent the inmates from
sexually harassing her as she felt sexually demeaned by the inmates’ actions in the showers.
4

C.P. signed the affidavit on August 2, 2010 while the investigator signed it on August 16, 2010.

3

By decision dated May 23, 2013, OWCP denied appellant’s claim as it found that she
failed to establish any compensable factors of employment. It determined that she submitted
insufficient evidence to establish any of her allegations.
Appellant subsequently submitted an April 23, 2010 report, wherein Dr. Daniel noted that
he had previously recommended that she be excused from work due to work difficulties.
Dr. Daniel concluded that she was capable of returning to work on April 23, 2010 with the
restriction that she be relieved of monitoring male inmates while they showered.
Dr. Daniel, in a February 22, 2013 report, reviewed appellant’s CA-2 statements, noted
that he had treated her since 2007, and provided a complete medical treatment history. He
opined that, based on her perceptions and work stress, her bipolar condition had been aggravated
by her employment.
In reports dated December 3, 2013 and January 6, 2014, Dr. Daniel wrote that appellant
had been his patient since 2007 and was diagnosed with postconcussion and bipolar disorders. In
both reports, he noted that she discussed her difficulties at work. Dr. Daniel wrote in both
reports that, in early July 2012, appellant was hospitalized and attributed her deterioration to
work stress. In the December 3, 2013 report, he noted that he was reluctant to release her to
return to work. Dr. Daniel, in the January 6, 2014 report, summarized appellant’s treatment
sessions. Appellant, during a Spring 2010 treatment session, related being upset at being
required to monitor male inmates while they showered, and that management had refused her
request for a transfer from this position.
On April 2, 2014 OWCP received a list of appellant’s daily assignments from August 30,
2009 to March 20, 2010. The daily assignment list showed that appellant was assigned to the
special management unit.
On April 7, 2014 appellant’s representative at the time requested reconsideration. She
argued that appellant’s work assignment to monitor male inmates while they showered was a
compensable factor of employment. The representative explained that appellant was required to
march the male inmates to the showers where shower supplies were distributed, leave them in the
shower stalls, and withdraw behind a viewing area with bars, while they showered. Because the
bar provided no privacy, appellant could see the inmates’ entire nude bodies. The inmates
frequently displayed their bodies to her, made lewd gestures, obscene remarks, and inappropriate
sexual advances. The representative also argued that the employing establishment committed
administrative error by not adhering to a statute pertaining to cross-gender searches, 28 C.F.R.
§ 115.15(d).
In a July 2, 2014 narrative statement, appellant provided further details regarding the
monitoring of male inmates in the shower and their lewd acts. She explained that, during her
required rounds, she had to observe all inmate activities within her assigned unit. As a result of
the facility’s architectural design, there were no partitions on the showers and the showering
male inmates were in plain view. At times inmates would expose themselves or perform lewd
acts toward her while she was making her rounds.

4

By decision dated November 20, 2014, OWCP denied modification of its prior decision.
It found that the evidence submitted failed to establish that the incidents occurred as alleged and,
thus, no compensable factors of employment were established.5
In a letter dated October 28, 2015, appellant’s representative again requested
reconsideration. She argued that appellant’s reaction to monitoring inmates in the shower was a
compensable factor of employment as it was part of her regular job duties. Counsel further
argued administrative error on the part of the employing establishment as it failed to follow
established procedures, regulations, and statutes with respect to requiring appellant to monitor
inmates. Thus, she argued that appellant had established two compensable factors of
employment. Counsel noted that documents submitted to Employee’s Compensation Operation
and Management Portal included a settlement agreement; affidavits from M.M., a landscape
foreman, C.P., cook supervisor, and G.K., a captain; responses to interrogatories from J.Y.,
warden; a December 16, 2009 letter of counseling regarding appellant’s work attire; reports
dated July 29 and December 15, 2014 from Dr. Daniel; and an LWOP memorandum. OWCP
also received letters from the employing establishment dated July 14 and August 15, 2014.
The July 14, 2010 affidavit of M.M., a landscape foreman, who stated that he was away
at training on December 15, 2009 when appellant was sent home for wearing inappropriate attire
and described attire appropriate for dress-down day. He related that he had not heard coworkers
referring to her by inappropriate terms or names.
In the October 8, 2010 affidavit, G.K., appellant’s supervisor, stated that around April 23,
2010 he reviewed a note from appellant’s physician restricting appellant from monitoring or
working around male inmates while they showered. He related that following receipt of a
physician’s opinion that she could not monitor inmates while they showered, that he placed her
on sick leave from April 1 to 10 and April 29 to May 8, 2010. When appellant returned to work
on April 23, 2010, G.K. provided her a different work assignment that did not include
monitoring male inmates in the shower. He testified that her five different assignments all
exposed her to male inmates while they were showering. G.K. noted that it was common
practice to accommodate an employee’s medical restrictions for a limited period of time and that
he had been aware of adjustments to appellant’s schedule. He testified that appellant had
returned to her routine work.
In a July 29, 2014 report, Dr. Daniel noted that he had treated appellant since February 8,
2010 and that she had been diagnosed with bipolar disorder with psychosis and postconcussion
disorder. He noted that she had been unable to work due to depression and anxiety caused by
work stress and feelings of sexual harassment by male inmates. Dr. Daniel described the
precipitating cause was appellant’s duty of monitoring male inmates while they showered and
the inappropriate sexual responses from male inmates. He requested that she be excused from
performing this employment duty. On December 15, 2014 Dr. Daniel released appellant to
return to her usual work duties.

5

On March 23, 2015 counsel appealed to the Board. In an order dated August 19, 2015, the Board granted a
request by counsel to dismiss her appeal. Order Dismissing Appeal, Docket No. 15-0935 (issued August 19, 2015).

5

On August 15, 2015 the employing establishment, pursuant to a settlement agreement,
granted appellant LWOP for the period June 27, 2012 to July 18, 2014.
In a December 2, 2015 report, Dr. Daniel diagnosed appellant with postconcussive
syndrome and bipolar syndrome, which was currently in remission. A history of postconcussion
was noted including the symptoms associated with the condition. In Dr. Daniel’s notes from
March 1 and 30, 2010, he noted that appellant complained of harassment at work. He reported
that on April 23, 2010 she was seen for stress as a result of being required to monitor male
inmates while they were showering. A letter was written to the employing establishment
requesting that appellant be relieved of this duty. Appellant, in the June 9, 2010 meeting,
expressed frustration with not being promoted and that the person interviewing her for her EEO
complaint was a former warden. Dr. Daniel discussed other work incidents causing her stress,
including a three-day suspension, her belief that coworkers were watching her, that she was
passed over for promotion numerous times, her fear of being fired, a fitness-for-duty request
from the employing establishment, being placed in a LWOP status, and receiving a proposal to
fire her. He reported that appellant was treated appropriately and was able to return to work in
January 2015. Dr. Daniel concluded that her bipolar disorder had been aggravated by her work
stress.
In a December 8, 2015 report, Dr. Victor J. Vautrot, a treating Board-certified
psychiatrist, diagnosed adjustment disorder, bipolar disorder, panic disorder, and nightmare
disorder. Based on his review of the work allegations and his examination of appellant, he
opined that the diagnosed preexisting conditions had been aggravated by her work experiences.
The work experiences contributing to the aggravation included having to monitor nude male
inmates making lewd gestures, delay in obtaining a work accommodation, and inconsistent
application of work accommodations. Dr. Vautrot also noted that two managers made appellant
remove her jacket and then snickered at her unique body shape, sent her home for inappropriate
dress on a dress-down day, and gave her a letter of counselling. He related that she believed that
management failed to follow appropriate rules, statutes, and procedures and ignored her requests
for union representation. Dr. Vautrot explained that due to her work stress appellant’s
adjustment disorder was aggravated resulting in anxiety, suffering, and panic. He concluded that
she no longer suffered from the aggravation caused by her work stressors and had returned to
work at the employing establishment in January 2015.
By decision dated February 4, 2016, OWCP denied modification of its prior decision as
no compensable work factors were established. It found that the evidence of record failed to
establish that the employing establishment acted abusively with respect to administrative matters.
OWCP also found the evidence of record insufficient to establish harassment or reprisal when
the employing establishment required appellant to monitor showering male inmates and the lack
of promotion.
LEGAL PRECEDENT
To establish a claim for an emotional condition in the performance of duty, an employee
must submit: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to his or her condition; and (3) rationalized medical opinion evidence establishing

6

that the identified compensable employment factors are causally related to his or her emotional
condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 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.8 Where the disability results from an
employee’s emotional reaction to his or her regular or specially assigned duties, or to a
requirement imposed by the employment, the disability comes within the coverage of FECA.9
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.10
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.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor.12 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.13
Administrative and personnel matters, although generally related to employment, are
administrative functions of the employing establishment rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.14 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.15
6

V.W., 58 ECAB 428 (2007); Donna Faye Cardwell, 41 ECAB 730 (1990).

7

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

8

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

9

Supra note 3; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

10

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

11

D.L., 58 ECAB 217 (2006); Jerald R. Gray, 57 ECAB 611 (2006).

12

K.W., 59 ECAB 271 (2007); David C. Lindsey, Jr., 56 ECAB 263 (2005).

13

Robert Breeden, supra note 7.

14

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
15

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

7

In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.16
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact,
occur.17 Mere perceptions of harassment or discrimination are not compensable under FECA.18
The employee must substantiate allegations of harassment or discrimination with probative and
reliable evidence.19 Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.20 An employee must
establish a factual basis for his or her allegations of harassment or discrimination with probative
and reliable evidence.21
ANALYSIS
On appeal, counsel contends that appellant’s primary allegations concerned her assigned
duty of monitoring nude inmates in the shower and harassment by management following her
request to be relieved of this duty. She alleges that these duties aggravated appellant’s
preexisting conditions.
The Board finds that appellant has established compensable factors of employment with
respect to the monitoring of male inmates in the shower area, and harassment following her
request to be relieved of this duty.
Appellant attributed her stress and the aggravation of her preexisting emotional
conditions to her actual work requirements of monitoring male inmates while they were
showering. The Board has consistently held that emotional reactions to situations in which an
employee is attempting to meet his or her position requirements, when supported by sufficient
evidence, are compensable.22 Appellant attributed her emotional condition to the regular or
specially assigned duties of monitoring male inmates while they showered. She alleged that
while performing this duty the inmates made lewd comments and engaged in lewd acts.
The evidence of record establishes that appellant was required to monitor male inmates
while they showered between September 15, 2009 and January 1, 2011. An affidavit from her
16

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

17

K.W., 59 ECAB 271 (2007); Robert Breeden, supra note 7.

18

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

19

J.F., 59 ECAB 331 (2008); Robert Breeden, supra note 7.

20

G.S., Docket No. 09-0764 (issued December 18, 2009); Ronald K. Jablanski, 56 ECAB 616 (2005);
Penelope C. Owens, 54 ECAB 684 (2003).
21

Robert Breeden, supra note 7; Beverly R. Jones, 55 ECAB 411 (2004).

22

See Tina D. Francis, 56 ECAB 180 (2004).

8

supervisor, G.K., acknowledges that part of her duties involved monitoring male inmates in the
shower area. Similarly, C.P., a coworker, provided testimony confirming that monitoring naked
male inmates was a part of appellant’s job duties and describing the actions of some inmates
toward female correctional guards watching them while they showered.
It is appellant’s emotional reaction to the requirements imposed by the employing
establishment that triggers coverage under FECA. She attempted to perform the duty of
monitoring male inmates while they showered and the evidence reflects she did so, but the stress
of doing so caused or aggravated her emotional condition. Given that this duty was a part of
appellant’s regular job requirements, the Board finds that she has established a compensable
employment factor related to assigned tasks which required her to monitor male inmates while
they were showering.23
Appellant also alleged harassment and retaliation based on failure of the employing
establishment to honor her work restrictions when it reassigned her to the duty of monitoring
male inmates while they showered.
The record contains a May 11, 2010 report from Dr. Daniel informing the employing
establishment that appellant was disabled from the duty of monitoring inmates who were
showering. Supervisor G.K., in an October 8, 2010 affidavit noted that an accommodation was
made for her medical restrictions for a limited period of time. He also stated that following
receipt of appellant’s work restriction from her physicians, that he placed her on sick leave
instead of accommodating her work restriction. G.K. in his October 8, 2010 affidavit also
related that she recently returned to her regular work assignment. The evidence of record
establishes that the employing establishment erred by further harassing appellant following her
submission of a medical report restricting her from performing her assignment of monitoring
male inmates while they showered. Thus, appellant has also established a compensable
employment factor with respect to her allegation of harassment.
Appellant further alleged sexual harassment by management; a hostile work environment;
harassment, intimidation, and bullying by coworkers and management; that she was unfairly
investigated; that her performance evaluations were lowered and she was written up; that she was
denied leave to attend funerals for family members; and that she was called derogatory names.
The Board finds, however, that she has not submitted any witness statements or other evidence
corroborating these allegations. The Board has held that mere allegations, in the absence of
factual corroboration, are insufficient to meet a claimant’s burden of proof.24
The Board finds that appellant has established compensable employment factors with
respect to her established work duties and harassment. Thus, OWCP must base its decision on
an analysis of the medical opinion evidence. The case will be remanded to OWCP for this

23

Supra note 8.

24

See Pamela D. Casey, 57 ECAB 260 (2005); Bonnie Goodman, 50 ECAB 139 (1998).

9

purpose.25 After such further development as deemed necessary OWCP shall issue a de novo
decision on this claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2016 is set aside and the case is remanded for further
proceedings consistent with the above opinion.
Issued: September 21, 2017
Washington, DC

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

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

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

25

See T.F., Docket No. 12-0439 (issued August 20, 2012); Robert Bartlett, 51 ECAB 664 (2000).

10