United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hampton, GA, Employer
__________________________________________

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

Docket No. 12-1825
Issued: March 14, 2013

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 4, 2012 appellant filed a timely appeal from the July 2, 2012 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 to modify OWCP’s July 30, 1999 loss
of wage-earning capacity (LWEC) determination.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In 1974, appellant, a 38-year-old air traffic control specialist, sustained an occupational
injury in the performance of duty. OWCP accepted his claim for depressive reaction and
hypertension.2 Appellant received compensation for total disability and medical benefits.
A November 23, 1998 investigative memorandum from the United States Department of
Labor’s Office of the Inspector General (OIG) detailed appellant’s substantial work as a
photographer. As OWCP’s statement of accepted facts summarized, from approximately
August 1988 to October 1996 appellant operated a home-based photography business called
“Donnie’s Studio 10.” While self-employed in this business, he was known to have performed
many different assignments, including group photography, portrait photography and special
events photography. Appellant maintained a studio at his home in a converted pool house.3
OWCP’s rehabilitation specialist determined that the duties appellant performed as a
photographer best fit those of a Still Photographer, from the Dictionary of Occupational Titles
(DOT), a category that included Studio Cameraman, Wedding Photographer and Commercial
Photographer. A labor market survey confirmed the local availability of the selected position on
both a part-time and full-time basis and provided relevant salary information.
Notwithstanding the opinion of Dr. William H. Biggers, the attending Board-certified
psychiatrist, that appellant had neither the skills nor the physical capacity to work as a
professional photographer, on July 30, 1999 OWCP issued a LWEC determination that reduced
his wage-loss compensation to reflect his capacity to earn some wages as a Studio Cameraman
and Wedding Photographer.4 Appellant continued to receive compensation for the partial LWEC
caused by his employment injury.5
OWCP denied modification of its LWEC determination on several occasions. On
April 24, 2012 appellant again requested modification. In support thereof, he submitted a
2

Beginning in 2005, OWCP modified and expanded its acceptance of appellant’s claim: major depression,
recurrent episode, in partial or unspecified remission; malignant hypertension; hypertensive retinopathy; anxiety
state, unspecified; post-traumatic stress disorder; coronary atherosclerosis; atrial fibrillation; erectile
dysfunction/impotence of organic origin.
3

One witness stated that the studio had automated drop scenes and lighting that could be moved by a control
panel. This witness, who knew appellant for more than 36 years and was himself an air traffic controller, estimated
in 1996 that appellant had been engaged in commercial photography for 12 to 15 years.
4

An OWCP hearing representative found that appellant had demonstrated his functional capacity to work as a
Studio Cameraman. But as there was no evidence to support the presumption that appellant could earn additional
wages as a Wedding Photographer, the hearing representative set aside that part of the LWEC determination.
5

The Board would later determine that appellant forfeited his compensation for certain periods because he
knowingly failed to report his work as a photographer. The Board found that appellant’s defense -- it was only a
hobby that involved family and friends and that payments covered only expenses without a profit -- was clearly
inconsistent with the evidence. Further, the Board found that he was at fault in creating the resulting overpayment
of compensation because he failed to provide information that he knew or should have known was material and
because he made statements as to a material fact which he knew or should have known were incorrect. Docket No.
02-506 (issued July 7, 2003).

2

number of medical reports. Two of them, from Dr. Glenn K. Harris, a Board-certified
cardiovascular medicine specialist, supported appellant’s referral to a dentist and speculated that
it was possible his history of hypertension may be a contributing factor to his valvular heart
disease.
Dr. Roger A. Marrero, a Board-certified family physician treating appellant for
hypertension and related conditions, explained that hypertension tends to worsen over time and
that he was at risk for stroke or heart attack. He noted that there were no medical reports
indicating that appellant had recovered from his employment injury to the point that he could
return to any gainful employment. “In the past [appellant] has taken pictures of friends as a
hobby and has not received any wages.”6 Dr. Marrero added that appellant’s depression had
been an aggravating factor for his hypertension and was a factor that has prevented him from
being gainfully employed. He believed that it was a mistake to classify appellant as suitable for
professional photography. “[Appellant] has a history since 1974 of his hypertension getting out
of control and a factor for atrial fibrillation and coronary atherosclerosis; now his hypertension is
a contributing factor for mild aortic valve stenosis and mild-to-moderate mitral regurgitation….”
Dr. Biggers explained that during the period 1988 to 1996, when it was “alleged” that
appellant was conducting a photography business, he was seeing appellant for psychotherapy
every other week for the same disabling anxiety, depression and suicidal ideation that was
reported in 1974. These conditions contributed to bizarre and inappropriate behavior, problems
staying focused, clinical depression and hypersomulance, all resulting in a sedentary lifestyle that
continued to date. Dr. Biggers observed that, if appellant had continued as an air traffic
controller, it was not unlikely that he would have suffered further complications with his
hypertension and that his suicidality would have become a more significant factor. Further, if
appellant had been self-employed in photography, it was likely the same issues would have been
present.
Dr. Biggers indicated that he did not know from appellant or from appellant’s close
friend, another air traffic controller whom Dr. Bigger treated, that appellant had been engaged in
professional photography. He acknowledged that appellant had photography business cards but
did not have a photography business and did not have training in photography. Dr. Biggers
described appellant’s involvement in courtesy photography as occasional, less than two to three
hours a week with weeks and months of activities that did not include photography.
Dr. Biggers noted that appellant’s suicidal ideation had become more pronounced over
the years. He stated that he had been appellant’s treating physician for anxiety, depression and
suicidal ideation since 1977, which was stress related and disabling and indicated that appellant
was not suitable for gainful employment or to be self-employed in photography.
In a later report, Dr. Biggers repeated that appellant’s condition was disabling in 1974
and remained a disabling factor to date “as it continues to worsen as indicated by [post-traumatic
stress disorder].” He continued to argue that appellant’s amateur activities could hardly be
6

The OIG’s investigative memorandum provided copies of invoices, bank records and canceled checks showing
that appellant did receive money for his services. In 1991, for example, he earned $974.13 from Bellwether, Inc., a
business in Hampton, Georgia, which hired appellant several times.

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classified as a full-time commercial photographer and that his swimming pool bath house was
hardly suitable for a commercial photography studio. Dr. Biggers repeated that appellant had no
training and earned no money from photography or any other gainful employment since the date
of injury.7
Dr. Biggers noted that in any case appellant stopped any involvement in photography in
1996 because his depressive condition, accepted in 1974, had worsened, as indicated by posttraumatic stress disorder and more intense thoughts of suicidal ideation. “If [appellant] did
photography after 1996, it is likely the stress could have contributed to his suicide.” Dr. Biggers
repeated that the same psychiatric conditions reported in 1974 have continued without
interruption, preventing appellant from being gainfully employed.
Dr. Biggers made many of these same points in later reports, noting that he had never
reported appellant’s condition improved to the point that he could be gainfully employed. He
stated that appellant did not spend enough time in photography to consider it a hobby.8 Finally,
Dr. Biggers stated that had OWCP requested a psychiatric examination of appellant on July 30,
1999, the examination would have indicated that he was not suitable for gainful employment
since his date of injury because of his low tolerance for stress and a change in these conditions
had not taken place. He repeated that appellant was classified in error as a professional
photographer or studio cameraman or as otherwise gainfully employed.
On July 2, 2012 OWCP denied modification of its LWEC determination. Citing medical
reports from 1997 to 1999, including reports from Dr. Biggers, OWCP observed that appellant’s
hypertension in 1999 became uncontrolled secondary to severe pain with rising sympathetic tone
associated with progressive osteoarthritis pain, unrelated to his employment injury and requiring
bilateral hip replacements, following which his pain improved and his hypertension once again
became manageable. Thus, OWCP noted, it appeared that the worsening of appellant’s disability
after July 1999 was unrelated to his injury claim. “In your case, you have not shown that the
disability after the LWEC determination of July 30, 1999 was a result of the natural
consequence/progression of your accepted [injury]-related conditions but rather was caused and
due to an intervening nonwork[-]related medical condition, namely, osteoarthritis of the hips,
which resulted in a total replacement of the hips.”
OWCP reminded appellant that the OIG investigation was thorough and convincing and
presented overwhelming evidence (invoices, canceled checks, brochures, witness statements)
supporting that he operated a business taking photographs for weddings and birthdays, among
other things. Yet appellant continued to submit the same medical reports from physicians
claiming that he did not work as a photographer and had been totally disabled as a result of his

7

The record indicates that after his date of injury appellant ran for and served as a City Councilman and later ran
for Mayor. He also served as a campaign manager in the 1992 race for Henry County Sheriff.
8

As the OIG investigative memorandum in 1998 reflects: “[Appellant] maintains that his photography was
merely a ‘hobby’ of his … and that he did not consider it self-employment, or a business.” Appellant stated that he
had convinced people that he was operating a photography business so that it would not appear that he, being such a
young person, was not working. As the Board indicated earlier, Dr. Marrero reported that appellant had engaged in
photography as a hobby but received no wages.

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federal employment since 1974. OWCP found that these reports were not based on a complete
and accurate factual and medical background.
Appellant argues on appeal that the medical reports from Dr. Biggers and Dr. Marrero
indicate the original rating was in error and that his condition had clearly worsened.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.9 “Disability” means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.10
Section 8115(a) of FECA provides that in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his or her actual earnings,
if his or her actual earnings fairly and reasonably represent his or her wage-earning capacity. If
the actual earnings of the employee do not fairly and reasonably represent his or her wageearning capacity or if the employee has no actual earnings, his or her wage-earning capacity as
appears reasonable under the circumstances is determined with due regard to the nature of his or
her injury, the degree of physical impairment, his or her usual employment, his or her age, his or
her qualifications for other employment, the availability of suitable employment and other
factors or circumstances which may affect his or her wage-earning capacity in his or her disabled
condition.11
Once the LWEC 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. The burden of proof is on the party attempting to show modification of
the award.12
ANALYSIS
To support his most recent request for modification of OWCP’s July 30, 1999 LWEC
determination, appellant submitted a number of medical reports. Those from Dr. Harris, the
cardiologist, supporting appellant’s referral to a dentist and the possibility of a connection
between hypertension and valvular heart disease, do not appear to be directly relevant to the
1999 LWEC determination. The physician did not address whether appellant was medically
disabled from taking photographs.

9

5 U.S.C. § 8102(a).

10

20 C.F.R. § 10.5(f).

11

5 U.S.C. § 8115(a)

12

Daniel J. Boesen, 38 ECAB 556 (1987).

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Dr. Marrero, the attending family physician, observed as a general matter that
hypertension tends to worsen over time and that appellant was at risk for stroke or heart attack.
He noted that appellant had a history since 1974 of his hypertension getting out of control, being
a factor for atrial fibrillation and coronary atherosclerosis and now contributing to mild aortic
valve stenosis and mild-to-moderate mitral regurgitation. But Dr. Marrero did not explain how
any of this prevented appellant from taking photographs or otherwise meeting the light physical
demands of a Still Photographer, as described in the DOT. Medical conclusions unsupported by
rationale are of little probative value.13
Further, it does not appear that Dr. Marrero reviewed the OIG’s investigative
memorandum and attachments. It appears that he based his opinion instead on the history that
appellant provided: taking pictures of friends as a hobby, not receiving any wages. As the
Board found in 2003, such a history is clearly inconsistent with the evidence. Appellant was not
entirely forthcoming to OWCP and apparently has not been entirely forthcoming to his
physicians, about the nature and extent or even the existence of his photography-related
activities. This critically undermines the opinion his physicians are offering that he had no
capacity to earn wages after 1974. Medical conclusions based on inaccurate or incomplete
histories are of little probative value.14
The opinion of Dr. Biggers, the attending psychiatrist, suffers the same deficiencies. He
does not appear to accept that appellant operated a photography business during the period 1988
to 1996. Dr. Biggers dismisses the idea as an allegation: he saw appellant in psychotherapy
every other week during this period for the same disabling anxiety, depression and suicidal
ideation that was recorded in 1974 and if appellant had been engaged in such activity, he or his
close friend, who was also a patient, would have mentioned this to him. He appears to accept
appellant’s long-standing story that he had some photography business cards made up as a
charade, but such a history is inconsistent with the record and critically undermines his
psychiatric opinion.
Dr. Biggers explained that, if appellant had continued as an air traffic controller, it was
not unlikely he would have suffered further complications with his hypertension and more
significant suicidal ideations and if appellant had been self-employed in photography, he likely
would have had the same issues.
First, appellant was self-employed in photography. Second, it is not apparent how the
stress of being an air traffic controller can be compared to the stress of being a Still
Photographer. One might assume that photography was in some way a beneficial activity for
appellant, something he found sufficiently interesting or productive or enjoyable or relaxing that
he willingly engaged in it for a period of some years. If photography would likely cause the
same issues he experienced as an air traffic controller, it seems counter-intuitive that he would

13

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

14

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).

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choose to engage in such activity. Dr. Biggers did not rationally explain his opinion in this
regard.
To be clear, it was not necessary for OWCP to establish that appellant had worked as a
full-time Studio Cameraman prior to 1999, nor was it necessary for OWCP to establish that he
profited from each transaction. It was sufficient that he had demonstrated his capacity to
perform that kind of work over a period of time and that such work was reasonably available in
the local labor market. This showed that appellant was no longer totally disabled for all work as
a result of his work injury and that he had the capacity to earn at least some wages as a
photographer, for which OWCP adjusted his compensation for wage loss.
Dr. Biggers noted that appellant’s suicidal ideation had become more pronounced over
the years. He stated that appellant’s condition continued to worsen, as indicated by posttraumatic stress disorder, but he did not explain how this prevented appellant from taking
photographs. Dr. Biggers asserted that if appellant performed photography after 1996, the stress
likely could have contributed to suicide. He did not identify this stress or attempt to reconcile it
with appellant’s choice to pursue photography in such a meaningful way over a period of years,
nor did he explain why appellant could no longer perform that activity.15
Dr. Marrero and Dr. Biggers have zealously supported appellant’s attempt to modify the
1999 LWEC determination, but their opinions are weakened by an inaccurate and noncredible
factual history, a history that appellant has long related and one that this Board has found to be
inconsistent with the record. Their opinions are also weakened by insufficient medical rationale.
It is not necessary that the medical opinion evidence be so conclusive as to remove all doubt. The
evidence required is only that necessary to convince the adjudicator that the conclusion drawn is
rational, sound and logical.16 Neither physician has supported his opinion with a convincing
medical explanation.
Accordingly, the Board finds that appellant has not met his burden to show that
modification of OWCP’s 1999 LWEC determination is warranted. Appellant has not shown that
a material change in the nature and extent of his injury-related condition has medically
disqualified him from being a Still Photographer, as described in the DOT. He has not shown
that the 1999 LWEC determination was, in fact, erroneous.17 The Board will therefore affirm
OWCP’s July 2, 2012 decision denying modification.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

15

If Dr. Biggers meant to state that appellant did not suffer from post-traumatic stress disorder in 1974 or shortly
thereafter, but only developed the condition many, many years later, he needs to explain that phenomenon in greater
psychiatric detail.
16

Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.

17

The third criterion, showing that the employee has been retrained or otherwise vocationally rehabilitated, is a
burden usually carried by OWCP in its attempt to modify a LWEC determination.

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CONCLUSION
The Board finds that appellant has not met his burden to show that modification of
OWCP’s July 30, 1999 LWEC determination is warranted.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2013
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISARY AGENCY, Lakehurst, NJ,
Employer
__________________________________________

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

Docket No. 14-1771
Issued: December 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 13, 2014 appellant, through counsel, filed a timely appeal of the June 19,
2014 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 his burden of proof to establish a traumatic injury
claim in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 18, 2012 appellant then a 60-year-old store associate, filed a CA-1, notice of
traumatic injury, alleging that on July 14, 2012, he slipped on ice in a walk-in freezer at work
and fell onto his back. He did not stop work.
On March 28, 2013 appellant filed a CA-2a, recurrence of disability claim. He noted that
he was placed on light duty after his original injury on July 14, 2012.
By letter dated May 15, 2013, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It explained that appellant’s claim was administratively handled to allow medical payments up to
$1,500.00; however, the merits of the claim had not been formally adjudicated. OWCP advised
that, because he had filed a claim for recurrence of disability, his original claim would be
formally adjudicated. It requested that appellant submit additional information including a
comprehensive medical report from his treating physician with a reasoned explanation as to how
the specific work factors or incidents identified by appellant had contributed to his claimed
injury.
In a June 17, 2013 decision, OWCP denied the claim as appellant had not established a
medical condition in connection with the claimed event or work factors.
On June 18, 2013 appellant requested an oral hearing which was held on
September 17, 2013.
The employing establishment submitted a July 14, 2012 letter from the store director,
Donald Mitchell, who noted that on July 14, 2012 he heard a loud noise in the walk-in
refrigerator and saw appellant trying to get up from the floor using one hand. Mr. Mitchell
indicated that appellant appeared to have fallen and was favoring his left arm and shoulder.
A February 28, 2012 magnetic resonance imaging (MRI) scan of the cervical spine
showed multilevel disc bulges with narrowing of the spinal canal at C5-6, multilevel narrowing
of the neural foramina with no evidence of fracture. A July 16, 2012 electromyogram (EMG)
revealed evidence of acute left C5-6 radiculopathy. Appellant was treated by Dr. Robert A.
Sabo, a Board-certified neurosurgeon, from July 14 to September 4, 2012, for left arm weakness
after a fall at work. In a July 17, 2012 report, Dr. Sabo noted that appellant reported falling at
work in November 2011 and July 14, 2012 and experienced left shoulder, neck, and left arm
weakness since that time. He noted findings of marked weakness in motor strength of the left
upper extremity, no atrophy, intact sensory examination, significant ataxia of tandem gait, and
reflexes were equal and symmetric. Dr. Sabo diagnosed cervical spondylitic stenotic myelopathy
with severe weakness of the left arm.
On June 25, 2013 appellant was treated by Dr. Laura E. Ross, an osteopath, for persistent
left arm and right-sided pain after a slip and fall accident on July 14, 2012. Dr. Ross, in her
report dated July 19, 2013, noted findings of limited range of motion of the left shoulder, atrophy
of the girdle muscle, crepitus with range of motion of both hips, tenderness along both knees,
and paravertebral muscle spasm. She diagnosed atrophy of the left shoulder with impingement

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syndrome and probable rotator cuff tear, bilateral hip and knee pain. In reports dated July 22 and
August 19, 2013, Dr. Ross noted that a right shoulder MRI scan revealed impingement
tendinopathy, mild degenerative changes, and a partial rotator cuff tear. She diagnosed left
shoulder atrophy of the girdle, glenohumeral osteoarthrosis, impingement syndrome of the right
shoulder, and polyarthralgias. Appellant also submitted a physical therapy record.
In a decision dated November 21, 2013, an OWCP hearing representative affirmed the
June 17, 2013 decision as modified. The hearing representative noted that appellant had
provided medical evidence supporting a history of injury and diagnosed condition; but the
evidence was insufficient to establish a causal relationship between the diagnosed conditions and
the accepted work accident.
On March 21, 2014 appellant requested reconsideration. He submitted a January 13,
2014 report from Dr. Ross who noted an EMG study revealed brachial plexopathy. Dr. Ross
noted appellant’s left shoulder was progressively worsening since his work injury of
July 14, 2012. She noted findings of left shoulder girdle atrophy with weakness and diminished
sensation in the left upper extremity. Dr. Ross diagnosed status postcervical disc pathology with
left brachial plexopathy causing atrophy to the left shoulder and upper arm. She noted that
appellant’s atrophy and limited range of motion would prevent him from undergoing shoulder
rehabilitation. Dr. Ross opined that this condition was caused by the slip and fall injury that
occurred on July 14, 2012 and not by the normal aging process. In a March 28, 2014 report, she
noted first treating appellant on June 25, 2013 for a work injury that occurred on July 14, 2012.
Appellant reported a history of injury and subsequent limited movement in the left arm, with
arthritis pain in his hips, knees and right shoulder. Dr. Ross noted that appellant had a prior
injury in November 2011 when he had also slipped and fell on an icy floor. She diagnosed status
postcervical disc pathology with left brachial plexopathy causing atrophy to the left shoulder and
upper arm musculature, and exacerbation of degenerative joint disease of the left shoulder.
Dr. Ross opined that appellant sustained the above-mentioned injuries as a direct result of the fall
that occurred while he was working as a commissary worker on July 14, 2012. She advised that
appellant’s injuries were consistent with the traumatic injury that occurred when he slipped and
fell on a slippery floor in a freezer injuring his neck and left arm. Dr. Ross noted appellant’s
condition was caused by the slip and fall injury that occurred on July 14, 2012 and not by the
normal aging process. She noted that her opinion was made within a reasonable degree of
medical probability.
In a decision dated June 19, 2014, OWCP denied modification of the November 21, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, 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 is causally related to the

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employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
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.3
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.4
ANALYSIS
It is undisputed that appellant slipped and fell on ice in a freezer while at work on
July 14, 2012. However, appellant has not submitted sufficient medical evidence to establish
that the diagnosed cervical disc pathology, left brachial plexopathy, atrophy of the left shoulder
and upper arm, and exacerbation of degenerative joint disease of the left shoulder were causally
related to his work injury on July 14, 2012.
On May 15, 2013 OWCP advised appellant of the medical evidence needed to establish
his claim. Appellant did not submit a rationalized medical report from an attending physician
addressing how specific employment factors may have caused or aggravated his claimed
condition.
Appellant submitted reports from Dr. Ross dated January 13 and March 28, 2014 who
noted first treating appellant on June 25, 2013 for the work injury that had occurred on
July 14, 2012. Dr. Ross reported that on July 14, 2012 appellant slipped and fell on a slippery
floor in a freezer injuring his neck and left arm, and right shoulder. She diagnosed status
postcervical disc pathology with left brachial plexopathy causing atrophy to the left shoulder and
upper arm musculature and exacerbation of degenerative joint disease of the left shoulder.
Dr. Ross opined that appellant’s injuries were consistent with the traumatic injury that occurred
when he slipped and fell on a slippery floor in a freezer injuring his neck and left arm and were a
direct result of the fall that occurred. Dr. Ross noted that appellant’s atrophy and loss of range of
motion were caused by the slip and fall injury that occurred on July 14, 2012 and not by the
normal aging process. She noted her opinion was made within a reasonable degree of medical
probability. Although Dr. Ross supported causal relationship, she did not provide sufficient
2

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

3

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

4

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

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medical rationale explaining the basis of her conclusory opinion regarding the causal relationship
between appellant’s diagnosed conditions and the workplace fall. Dr. Ross did not explain how
slipping and falling on ice would cause or aggravate the diagnosed conditions and why the
cervical disc pathology with left brachial plexopathy, atrophy to the left shoulder and upper arm
musculature, and exacerbation of degenerative joint disease of the left shoulder condition were
not the result of nonwork-related factors such as age-related degenerative changes. The need for
rationale is particularly important where Dr. Ross did not start treating appellant until almost a
year after the July 14, 2012 work incident. Therefore, this evidence is insufficient to meet
appellant’s burden of proof.
On June 25, 2013 Dr. Ross treated appellant for left arm pain. Appellant reported
slipping and falling at work on July 14, 2012 and experiencing limited movement in his left arm.
She diagnosed internal derangement of the bilateral knees, atrophy of the left shoulder with
impingement syndrome, advanced degenerative joint disease of the shoulder, right
acromioclavicular joint osteoarthrosis, and probable rotator cuff tear. However, Dr. Ross is
merely repeating the history of injury as reported by appellant without providing her own
opinion regarding whether appellant’s condition was work related. To the extent that Dr. Ross is
providing her own opinion, she failed to provide a rationalized opinion explaining the causal
relationship between appellant’s internal derangement of the bilateral knees, atrophy of the left
shoulder with impingement syndrome, advanced degenerative joint disease of the shoulder, right
acromioclavicular joint osteoarthrosis and probable rotator cuff tear, and the factors of
employment.5 Therefore, these reports are insufficient to meet appellant’s burden of proof. In
reports dated July 22 and August 19, 2013, Dr. Ross noted an MRI scan of the right shoulder
which revealed impingement tendinopathy, mild degenerative changes, and a partial rotator cuff
tear. She diagnosed left shoulder atrophy of the girdle, glenohumeral osteoarthrosis,
impingement syndrome of the right shoulder, and polyarthralgias. However, Dr. Ross did not
provide an opinion on the causal relationship between appellant’s job duties and his diagnosed
left shoulder atrophy of the girdle, glenohumeral osteoarthrosis, impingement syndrome of the
right shoulder, and polyarthralgias. For this reason, this evidence is not sufficient to meet
appellant’s burden of proof.6
In the July 17, 2012 report, Dr. Sabo noted treating appellant for neck and left arm pain.
Appellant reported falling on ice at work in November 2011 and on July 14, 2012. Dr. Sabo
diagnosed cervical spondylitic stenotic myelopathy with severe weakness of the left arm.
However, as noted above, he appears merely to be repeating the history of injury as reported by
appellant without providing his own opinion regarding whether appellant’s condition was work
related. To the extent that Dr. Sabo is providing his own opinion he failed to provide a
rationalized opinion explaining the causal relationship between appellant’s cervical spondylitic
stenotic myelopathy with severe weakness of the left arm and the factors of employment.

5

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
6

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

5

Appellant also submitted physical therapy records. However, the Board has held that
documents from a physical therapist are not considered medical evidence as a physical therapist
is not a physician under FECA.7
The remainder of the medical evidence, including a July 16, 2012 EMG, fails to provide
an opinion on the causal relationship between appellant’s job and his diagnosed shoulder and
back injury.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated, or aggravated by his employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.8 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
On appeal appellant, through counsel, disagrees with OWCP’s decision denying his claim
for compensation and noted that he submitted sufficient evidence to establish his claim. As
noted above, the medical evidence does not establish that appellant’s diagnosed conditions were
causally related to his employment. Reports from appellant’s physicians failed to provide
sufficient medical rationale explaining how appellant’s diagnosed medical conditions were
caused or aggravated by particular employment duties.
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 his burden of proof to establish that his
claimed conditions were causally related to his employment.

7

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals, such as physician’s assistants, nurses, and
physical therapists are not competent under FECA to render a medical opinion); Robert J. Krstyen, 44 ECAB 227,
229 (1992).
8

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

6

ORDER
IT IS HEREBY ORDERED THAT the June 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 29, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monterey Park, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0667
Issued: August 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2018 appellant filed a timely appeal from a September 11, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied an increased
schedule award.1 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 schedule award issue in
this case. Appellant also filed a timely appeal from a November 13, 2017 OWCP nonmerit
decision which denied reconsideration of the denial of expansion of the acceptance of his claim.
As more than 180 days has elapsed from OWCP’s last merit decision, dated October 20, 2015, to
the filing of this appeal, pursuant to FECA and sections 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of the expansion issue in this case.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated August 20, 2018, the Board exercised its discretion and denied the request, finding
that the arguments on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 18-0667 (issued August 20, 2018).
1

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
three percent permanent impairment of each lower extremity, for which he previously received
schedule award compensation; and (2) whether OWCP properly denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On December 10, 2002 appellant, then a 46-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that his job duties caused an injury to his Achilles tendon. He
noted that he first became aware of his claimed condition on August 1, 2002 and related it to his
federal employment on December 4, 2002. OWCP accepted the claim for bilateral calcaneous
spurs. It also accepted the claim for sprain of the right shoulder rotator cuff and upper arm. OWCP
authorized resection of the fractured bone and multiple bone fragments posterior of the left
calcaneus, repair of Achilles tendon of the left ankle, resection of the bone posterior right calcaneus
and repair of Achilles tendon of the right ankle with removal of a calcified bone. The procedures
were performed on July 16, 2003 and March 3, 2004 by Dr. Brad A. Katzman, a Board-certified
podiatrist.
By decision dated March 14, 2007, OWCP granted appellant a schedule award for one
percent permanent impairment of the right arm and one percent permanent impairment of each
leg.3
OWCP subsequently expanded acceptance of the claim to include: bilateral Achilles
tendinitis; crushing injury of the ankle and foot; multiple and unspecified open wound of the leg
without complications; and bilateral shoulder, upper arm, and rotator cuff sprain; and bilateral
shoulder impingement syndrome. It authorized right and left shoulder open subacromial
decompression with open rotator cuff repair performed on March 24, 2009 and October 26, 2010,
respectively, by Dr. Scott Goldman, an attending Board-certified orthopedic surgeon.
On March 25, 2013 appellant returned to modified-duty work as a customer care agent. He
stopped work on July 18, 2013 and filed a notice of recurrence (Form CA-2a) alleging that he
sustained right knee, left hip, and lower back injuries on that day due to his accepted work-related

2

Docket No. 08-1719 (issued January 6, 2009); Docket No. 17-0540 (issued July 26, 2017).

3
By decision dated January 20, 2016, OWCP granted appellant a schedule award for an additional 10 percent
permanent impairment of the right upper extremity.

2

injuries.4 Subsequently, appellant requested expansion of the acceptance of his claim to include
conditions of the right knee, lower back, and left hip.
By decision dated January 14, 2014, OWCP denied expansion of appellant’s claim, finding
that the medical evidence of record failed to demonstrate that the diagnosed conditions were caused
by the accepted work injuries. An OWCP hearing representative, by decision dated October 24,
2014 set aside the January 14, 2014 decision and remanded the case to OWCP for further
development of the medical evidence. The hearing representative found that the August 15 and
September 8, 2014 reports of Dr. Goldman provided an uncontroverted inference of causal
relationship between the accepted work injuries and the claimed additional conditions. She
directed OWCP to refer the medical evidence of record and a statement of accepted facts (SOAF)
to an OWCP district medical adviser (DMA) to determine whether the claimed additional medical
conditions resulted from his accepted work injuries.
On October 4, 2015 Dr. Leonard A. Simpson, a Board-certified orthopedic surgeon serving
as an OWCP DMA, reviewed the medical record and found that appellant’s right knee, lower back,
and left hip conditions were not causally related to the accepted work conditions.
OWCP, by decision dated October 8, 2015, again denied expansion of appellant’s claim.
It found that the weight of the medical evidence rested with Dr. Simpson’s October 4, 2015
opinion.
OWCP subsequently received a May 27, 2016 report by Dr. Goldman. On physical
examination of the ankles, Dr. Goldman reported no gross deformity and moderate tenderness over
the Achilles tendon attachment to the posterior calcaneus bilaterally. He noted that appellant
complained about pain and tightness with motion bilaterally. Dr. Goldman reported range of
motion measurements which included zero degrees of dorsiflexion and 45 degrees of plantar
flexion for the right ankle. He reported the same measurements for the left ankle. Dr. Goldman
further reported no lymphadenopathy present in the bilateral upper and lower extremities. Lower
limbs had dorsalis pedis and posterior tibialis artery that was 2+. Dr. Goldman found that reflexes
on the right and left motor were 5/5 hip flexors, knee extensors (quadriceps), ankle invertors
(tibialis anterior), great toe extensors (EHL), and ankle evertors (peroneus). Sensation was normal
to all dermatomes. Deep tendon reflexes at the L4 patellar tendon and Achilles tendon were 2+
for the right and left. Dr. Goldman reviewed diagnostic test results. He diagnosed impingement
syndrome of the right and left shoulders, tear of the right and left rotator cuffs, unspecified tear
extent, left shoulder muscle weakness, history of right shoulder surgery on March 26, 2009 and
left shoulder surgery on October 26, 2010, Achilles tendinitis of right and left lower extremities,
and history of bilateral ankle surgical repair.
Dr. Goldman determined that appellant had 4 percent permanent impairment of the right
shoulder and 13 percent permanent impairment of the left shoulder in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
By decision dated January 17, 2014, OWCP denied appellant’s claim for a recurrence of disability commencing
July 18, 2013. It found that the medical evidence of record was insufficient to establish that he was disabled due to a
material change or worsening of his accepted work-related conditions. That decision was affirmed on October 24,
2014 by an OWCP hearing representative.
4

3

(A.M.A., Guides).5 He also determined that appellant had five percent permanent impairment of
the left lower extremity and four percent permanent impairment of the right lower extremity.
Regarding impairment to appellant’s bilateral lower extremities, Dr. Goldman identified a
diagnosis of Achilles tendinitis that caused pain and reduced motion. Regarding the left lower
extremity, he utilized Table 16-2, Foot and Ankle Regional Grid, on page 501, and determined
that the identified diagnosis was a class 1 diagnosis under strain, tendinitis speciﬁcally involving
the Achilles. Due to appellant’s motion deﬁcit, he had a default grade C impairment of five
percent. Dr. Goldman assigned a grade modifier 0 for functional history (GMFH) as appellant had
no gait derangement. He assigned a grade modifier 2 for physical examination (GMPE) under
Table 16-7 on page 517, as appellant had moderate observed and palpatory findings. Dr. Goldman
noted that a grade modifier for clinical studies (GMCS) was not relevant. Utilizing the net
adjustment formula on page 411, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) = (0-1) + (21) + (N/A) = 0 to find a net adjustment of 0. Dr. Goldman noted that the net adjustment value did
not change the default grade C impairment and, thus, appellant five percent permanent impairment
of the left ankle. Regarding impairment to the right ankle, he again determined that the identified
diagnosis was a class 1, five percent impairment under Table 16-2 due to motion deficit.
Dr. Goldman also assigned a grade modifier 0 for GMFH as appellant had no gait derangement.
He did not assign a grade modifier for because it was already used to assign the diagnostic class.
Dr. Goldman again noted that a grade modifier for GMCS was not relevant. He utilized the net
adjustment formula of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) = (0-1) to find a net
adjustment of -1. Dr. Goldman indicated that the net adjustment value required movement of the
grade C impairment value down to a grade B impairment value, yielding four percent permanent
impairment of the right ankle.
On August 13, 2016 appellant filed a claim for a schedule award (Form CA-7). He
submitted an impairment evaluation dated October 11, 2006 from Dr. Goldman. Dr. Goldman
determined that appellant 10 percent permanent impairment of each ankle based on the fifth edition
of the A.M.A., Guides.6 He also determined that appellant had no permanent impairment of his
shoulders.
On September 8, 2016 appellant, through counsel, requested reconsideration of OWCP’s
October 8, 2015 decision.
On September 29, 2016 OWCP routed Dr. Xeller’s report, a SOAF, and the case file to
Dr. Herbert White, Jr., an OWCP DMA Board-certified in occupational medicine, for review and
determination regarding whether appellant sustained permanent impairment based on the sixth
edition of the A.M.A., Guides and the date of MMI.
In a report dated October 2, 2016, Dr. White reviewed the SOAF and medical record. He
agreed with Dr. Goldman’s four percent right lower extremity impairment rating. Utilizing
Table 16-2, page 506, Dr. White identified the diagnosis of Achilles tendinitis as a class 1
impairment with mild motion deficits. He assigned a grade modifier 0 for GMFH for normal gait
under Table 16-6, page 516. Dr. White excluded a grade modifier for GMPE as it was used to
5

A.M.A., Guides (6th ed. 2009).

6

A.M.A., Guides (5th ed. 2001).

4

determine the position in the class based on Table 16-7, page 517. He also excluded a grade
modifier for GMCS as there were none at MMI. Dr. White applied the net adjustment formula of
(GMFH - CDX) (0-1=-1), page 521, to find a net adjustment of -1. He noted that a class 1
impairment, grade C, represented five percent impairment based on Table 16-2, page 501.
Dr. White also noted that the net adjustment value did not change the grade from C to B and, thus,
yielded four percent impairment of the right lower extremity. Regarding impairment to the left
lower extremity, he again utilized Table 16-2, page 506 and identified the diagnosis of Achilles
tendinitis as a class 1 impairment with mild motion deficits. Dr. White again assigned a grade
modifier 0 for functional history in accordance with Table 16-6 and excluded grade modifiers for
physical examination and clinical studies for the same reasons as noted above for the right lower
extremity. He applied the net adjustment formula of (GMFH - CDX) (0-1=-1) to find a net
adjustment of -1. Dr. White again determined that a class 1 impairment, grade C, represented five
percent impairment based on Table 16-2, page 501 and that net adjustment value did not change
the grade from C to B, thus yielding four percent impairment. He explained that the difference
between his four percent left lower extremity impairment and Dr. Goldman’s five percent left
lower extremity impairment was that Dr. Goldman used a modifier for physical examination in his
adjustment formula while he excluded it to determine the class placement for the diagnosis of
Achilles tendinitis. Dr. White found that appellant had reached MMI on June 3, 2016.
By decision dated December 16, 2016, OWCP denied appellant’s request for
reconsideration of the merits of his claim, finding that the evidence submitted was duplicative and
irrelevant.
In a letter dated April 6, 2017, OWCP requested that Dr. Goldman review Dr. White’s
findings.
In a report dated April 24, 2017, Dr. Goldman agreed with Dr. White’s four percent
impairment rating for the left ankle Achilles tendon.
On April 28, 2017 OWCP requested that Dr. White clarify his findings in light of
Dr. Goldman’s April 24, 2017 report. In a supplemental report dated April 30, 2017, Dr. White
repeated the exact findings and conclusions made in his October 2, 2016 report.
On January 10, 2017 appellant, through counsel, appealed the December 16, 2016 decision
to the Board. The Board, by decision dated July 26, 2017, affirmed OWCP’s December 16, 2016
nonmerit decision denying appellant’s request for reconsideration of the merits of the claim.7
On August 22, 2017 OWCP requested that Dr. White clarify whether his four percent
bilateral lower extremity impairment ratings included the prior one percent bilateral lower
extremity impairment ratings previously received by appellant.
On August 25, 2017 Dr. White noted that his four percent impairment rating each for the
right and left lower extremities included the previously awarded one percent impairment rating for
each lower extremity. Thus, he advised that appellant had an additional three percent permanent

7

Docket No. 17-0540 (issued July 26, 2017).

5

impairment of each lower extremity. Dr. White also advised that appellant had reached MMI on
May 27, 2016.
By decision dated September 11, 2017, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of each lower extremity. The award ran for the
period May 27 to September 24, 2016 for a total of 17.28 weeks, and was based on the May 27,
2016 and April 24, 2017 reports of Dr. Goldman and October 2, 2016 and April 30 and August 25,
2017 reports of Dr. White.
OWCP subsequently received an operative report dated July 27, 2017 by Dr. Katzman who
diagnosed painful posterior heel spur, left foot, and performed resection of the bone, posterior left
calcaneus.
OWCP also received reports dated July 25, August 1, and October 9, 2017 signed by
Martha Castillo on behalf of Dr. Katzman in which she diagnosed posterior heel spur left, fasciitis
on the left, post cerebrovascular accident, ankle tendinosis, other specified enthesopathies of
unspecified lower limb, excluding foot, and abnormality of gait and mobility.
Additionally, OWCP received a report and daily notes dated June 19 through October 23,
2017 from Premier Physical Therapy.
Dr. Goldman, in a report dated September 15 2017, reiterated his prior diagnoses of
impingement syndrome and tendinitis of the right and left shoulders, history of right shoulder
surgery on March 26, 2009, and Achilles tendinitis of the right and left lower extremities. He also
diagnosed calcaneal spurs of the right and left feet.
On October 10, 2017 appellant requested reconsideration of OWCP’s denial of his request
to expand the acceptance of his claim to include right knee, lower back, and left hip conditions.
In an October 20, 2017 report, Dr. Goldman reiterated the diagnoses set forth in his
September 15, 2017 report.
By decision dated November 13, 2017, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

6

the A.M.A., Guides as the uniform standard applicable to all claimants.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.11
With respect to the knee, the relevant portion of the leg for the present case, reference is
made to Table 16-3 (Knee Regional Grid) beginning on page 509.12 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).13 Under Chapter 2.3, the
evaluators are directed to provide reasons for their impairment rating choices, including the
choices of diagnoses from regional grids and calculations of modifier scores.14
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish greater than
three percent permanent impairment of each lower extremity, for which he previously received
schedule award compensation.
OWCP accepted that appellant sustained bilateral calcaneous spurs, sprain of the right
shoulder rotator cuff and upper arm, bilateral Achilles tendinitis, crushing injury of the ankle and
foot, multiple and unspecified open wound of the leg without complications; bilateral shoulder,
upper arm, and rotator cuff sprain, and bilateral shoulder impingement syndrome with resulting
right and left ankle and right and left shoulder surgeries performed on various dates from July 16,
2003 through October 26, 2010.
Appellant’s physician, Dr. Goldman, and OWCP’s DMA, Dr. White, agreed that appellant
had four percent permanent impairment of his right lower extremity due to his Achilles tendinitis
under the diagnosis-based impairment methodology. The A.M.A., Guides provide that an Achilles
tendinitis is a class 1 impairment with a default grade C impairment value of five percent of the
lower extremity.15 Dr. Goldman and Dr. White determined that appellant had grade 0 modifier for
functional history. The physicians applied the net adjustment formula and determined that
appellant’s default impairment at class 1, grade C was four percent permanent impairment of the
right lower extremity. The Board finds that the medical evidence does not establish more than

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
12

See A.M.A., Guides 509-11 (6th ed. 2009).

13

Id. at 515-22.

14

Id. at 23-28.

15

A.M.A., Guides 503, Table 16-2.

7

four percent impairment of appellant’s right lower extremity for which he previously received a
schedule award.16
Dr. Goldman and Dr. White, however, disagreed regarding the extent of permanent
impairment to appellant’s left lower extremity. Dr. Goldman found that appellant had five percent
permanent impairment of the left lower extremity. He found that Achilles tendinitis was a class 1
impairment with a default grade C impairment value of five percent of the lower extremity.17
Dr. Goldman determined that appellant had a grade 0 modifier for functional history and a grade
2 modifier for physical examination. He applied the net adjustment formula and determined that
appellant’s default impairment at class 1, grade C was five percent permanent impairment of the
right lower extremity. Dr. Goldman explained that the net adjustment value of 0 did not require
movement of the default grade C impairment value.
Alternatively, Dr. White found that appellant had four percent permanent impairment of
the left lower extremity. As Dr. Goldman found that Achilles tendinitis was a class 1 impairment
with a default grade C impairment value of five percent of the lower extremity.18 He assigned a
grade modifier 0 for functional history and applied the net adjustment formula of (GMFH - CDX)
(0-1=-1) to find a net adjustment of -1 and determined that appellant’s default impairment at class
1, grade C was four percent permanent impairment of the left lower extremity. Dr. White
explained that he did not assign a grade modifier for physical examination as the findings were
used placement of the identified diagnosis. If a grade modifier is used for the primary placement
in the regional grid, it is not used again in the impairment calculation.19
The Board finds that Dr. White properly applied the A.M.A., Guides to find that appellant
had no more than four percent permanent impairment of each lower extremity, for which he
previously received schedule award compensation. As such, appellant has not met his burden of
proof to establish increased permanent impairment greater than that which was previously
awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.20 This discretionary authority, however, is subject to certain restrictions. For
16

See K.L., Docket No. 19-0090 (issued May 3, 2019); D.K., Docket No. 18-0135 (issued August 20, 2018).

17

Supra note 14.

18

Id.

19

A.M.A., Guides 515-16.

20
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

8

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.21 Timeliness is determined by the document receipt date of
the request for reconsideration as indicated by the received date in the integrated Federal
Employees’ Compensation System (iFECS).22 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.23
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.24 If an application
demonstrates clear evidence of error, it will reopen the case for merit review.25
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.26
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.27

21

20 C.F.R. § 10.607(a).

22

Supra note 11 at Chapter 2.1602.4(b) (February 2016).

23

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
24
See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).
25

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 21 at Chapter 2.1602.5 (February 2016).
26

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

27

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 21 at Chapter 2.1602.5(a) (February 2016).

9

The Board makes an independent determination of whether a claimant has demonstrated clear
evidence of error on the part of OWCP.28
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations29 and procedures30 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.31
The most recent merit decision regarding the denial of expansion of the acceptance of appellant’s
claim was OWCP’s October 20, 2015 decision. As his request for reconsideration was not
received by OWCP until October 10, 2017, more than one year after the October 20, 2015
decision, the Board finds that it was untimely filed. Because appellant’s request was untimely, he
must demonstrate clear evidence of error on the part of OWCP in having denied his traumatic
injury claim.
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision. As stated, OWCP denied
expansion of the acceptance of appellant’s claim.
Dr. Goldman’s September 15 and October 20, 2017 reports diagnosed impingement
syndrome and tendinitis of the right and left shoulders, history of right shoulder surgery on
March 26, 2009, Achilles tendinitis of the right and left lower extremities, and calcaneal spurs of
the right and left feet. He did not provide an opinion addressing whether the diagnosed conditions
were caused by the accepted employment injury. 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.32 This is insufficient to shift the weight of the medical evidence.
Likewise, Dr. Katzman’s operative report dated July 27, 2017 is insufficient to shift the
weight of the medical evidence. He diagnosed painful posterior heel spur, left foot, and performed
surgery, but did not offer an opinion addressing whether the accepted employment injury caused
the diagnosed condition and resultant surgery.33

28

D.S., Docket No. 17-0407 (issued May 24, 2017).

29

20 C.F.R. § 10.607(a); see J.W., supra note 26; Alberta Dukes, 56 ECAB 247 (2005).

30

Supra note 11 at Chapter 2.1602.4 (February 2016); Veletta C. Coleman, 48 ECAB 367, 370 (1997).

31

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

32

A.T., Docket No. 18-1717 (issued May 10, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
33

Id.

10

Appellant also submitted a physical therapy report and daily notes dated June 19 through
October 23, 2017. This evidence is immaterial as physical therapists are not considered physicians
under FECA.34 Therefore, the report and progress notes do not constitute probative medical
evidence sufficient to demonstrate clear error by OWCP.35
Additionally, appellant submitted reports signed by Ms. Castillo on behalf of Dr. Katzman.
As this evidence lacks adequate documentation that it was completed by a physician it does not
constitute probative medical evidence.36 Thus, the Board finds that her reports do not shift the
weight in favor of appellant to demonstrate clear evidence of error on the part of OWCP.
The Board finds that the evidence submitted in support of the untimely request for
reconsideration is insufficient to shift the weight of the evidence in favor of appellant’s claim or
to raise a substantial question that OWCP erred in its October 20, 2015 decision. Accordingly, the
Board finds that OWCP properly denied appellant’s reconsideration request, as it was untimely
filed and failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than
three percent permanent impairment of each lower extremity, for which he previously received
schedule award compensation. The Board further finds that OWCP properly determined that
appellant’s request for reconsideration was untimely filed and failed to demonstrate clear evidence
of error.

34

See 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law). R.C., Docket No. 17-0198 (issued January 28, 2019); R.S., Docket No. 15-0988 (issued August 12,
2015) (physical therapists are not competent to render a medical opinion under FECA).
35

Id.

36
See R.I., Docket No. 09-2099 (issued May 4, 2010); D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572,
575 (1988).

11

ORDER
IT IS HEREBY ORDERED THAT the November 13 and September 11, 2017 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Austintown, OH, Employer
___________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1534
Issued: April 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2012 appellant, through her attorney, filed a timely appeal from the June 13,
2012 Office of Workers’ Compensation Programs’ (OWCP) decision, which denied her
emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On February 10, 2009 appellant, then a 61-year-old customer service supervisor, filed a
claim alleging an emotional condition in the performance of duty. On February 7, 2009 she
experienced nervousness, anxiety, sleeplessness, loose bowels and fearfulness after a verbal and
1

5 U.S.C. § 8101 et seq.

physical confrontation with a subordinate. Appellant was instructing Ed Hernan, when he
grabbed her right upper arm and “raised his voice.” Mr. Hernan told her not to walk away from
him and she told him not to touch her. Appellant stopped work on February 9, 2009. The
employing establishment controverted the claim, noting that she stated that she was not
concerned for her safety.
On February 23, 2009 OWCP requested that appellant submit additional factual and
medical evidence.
In disability certificates dated February 9 and 16, 2009, Dr. Arthur Lapping, an osteopath
Board-certified in family medicine, advised that appellant was unable to work since
February 9, 2009. On February 17, 2009 he diagnosed acute anxiety and filled in “due to
February 7, 2009 incident.” Dr. Lapping checked the box “yes” in response to whether he
believed that the condition found was caused or aggravated by appellant’s employment. He
noted that she was totally disabled since February 9, 2009.
In a February 7, 2009 e-mail, appellant informed Supervisor Ronald Zimcosky that a
carrier pulled her arm. She stated that, at 3:50 p.m. that date, Mr. Hernan, a regular carrier,
returned to the office with a handoff, which had been given to him as under time. Appellant had
instructed him earlier to maintain his eight hours since he was not on the “OTDL [Overtime
Desired List]” and she was going to give it to a carrier on OTDL. When Mr. Hernan returned,
she decided to have him complete his assignment instead of giving it to someone else. Appellant
stated that, when she heard his voice, she went to the workroom floor to give him further
instructions. In response, Mr. Hernan raised his voice and she began to walk away. He then
grabbed her right arm and stated, “Don’t you walk away from me!” Appellant told him not to
touch her and that she was calling the postal inspectors. She noted that there were other carriers
in the area.
Appellant contacted a postal inspector, who instructed her to contact the local police to
escort her from the premises after an investigation. She noted that two officers arrived and
conducted interviews. One of the police officers advised appellant that, because there were two
conflicting stories and no attempt to cause physical harm, there was no criminal offense and the
employer would handle the matter internally. Appellant noted that carriers, Jim Stoyanov and
Ruth McIntyre, advised the police that Mr. Hernan put his hand out to stop appellant from
walking away but did not pull her arm. She explained that, after the police officers left and
Mr. Hernan was no longer on the premises, she called Brian Green, a postal inspector who
advised her that an investigation would be conducted on Monday. Appellant remained in the
building alone because of late returning carriers and reports she had to complete. She stated that
she did not feel comfortable because it was dark outside and she had to go to her car. A
February 13, 2009 statement reiterated appellant’s version of the incident.
In a February 10, 2009 statement, Darlene Jones, a customer service manager, addressed
the February 7, 2009 incident in which Mr. Hernan grabbed appellant’s upper right arm after she
gave him instructions to deliver mail. Appellant related that Mr. Hernan raised his voice and
stated loudly, “Don’t you walk away from me.” She further reiterated the incident as related by
her. Ms. Jones noted that appellant indicated that the police arrived and escorted Mr. Hernan out
of the building. She stated that appellant contacted the employing establishment on Monday,

2

February 9, 2009 and indicated that she was unable to report to work because she was fearful,
anxious and nervous. Ms. Jones explained that appellant called later that date and advised that
her physician took her off work until February 18, 2009.
In a February 10, 2009 statement, Ms. McIlduff, a coworker, noted that on February 7,
2009 at about 3:50 p.m. she “witnessed letter carrier Ed Hernan pull [appellant’s] right arm.”
She stated that he inquired about his timecard and she told him that she had his timecard and the
situation had changed since he telephoned earlier about not being able to complete his
assignment. Ms. McIlduff noted instructing Mr. Hernan to return to the street and deliver his
handoff and his voice started getting louder as he informed her that he called in and appellant
instructed him to bring the mail back as she was going to give the handoff to someone on the
OTDL. She explained that appellant heard this discussion and approached him who raised his
voice and stated, “Oh no, I called in and you said to bring the mail back.” Ms. McIlduff advised
that appellant began to walk away and Mr. Hernan grabbed her right upper arm and stated,
“Don’t you walk away from me!” She noted that appellant responded “Don’t touch me; I am
calling the [p]ostal inspectors. Did you see that?” Ms. McIlduff also advised that two carriers,
Ms. McIntyre and Mr. Stoyanov, witnessed the incident.
In a March 9, 2009 statement, appellant repeated the details of the February 7, 2009
incident. She indicated that she had no stress in her life other than her federal employment.
Appellant advised that she had a lot of job stress since Ms. Jones became manager the previous
year. She noted that she was on leave due to anxiety in 2008 and attended employee assistance
program counseling sessions in October 2008. Appellant also noted that she was in the process
of attempting to obtain an appointment with a psychiatrist.
OWCP received treatment notes from Dr. Daniel Guy, a licensed psychologist. In a
March 17, 2009 note, Dr. Guy stated that he saw appellant after a confrontation with a male
employee at work. He advised that the confrontation left her overwhelmed with stress such that
she was unable to immediately return to work until her anxiety reaction was resolved. Dr. Guy
noted that appellant was undergoing a psychological evaluation.
In a report dated March 17, 2009, Dr. Guy noted appellant’s history of injury as a
physical confrontation with a subordinate worker. He diagnosed anxiety and nervous tension
and explained that she was not normally anxious and nervous. Dr. Guy explained that
appellant’s present state of anxiety and nervousness was due to her fearfulness of the threat of
violence in the workplace. He indicated that she had not reached maximum improvement and
advised that she abstain from returning to work where the “fear-provoking worker continues to
be employed.” Dr. Guy recommended that appellant be relocated as he did not believe that she
could effectively perform her duties in the location where the incident occurred. In a March 24,
2009 treatment note, he provided diagnoses of mixed mood adjustment disorder and severe
stress. OWCP also received handwritten unsigned treatment notes dated June 23, August 22 and
December 15, 2008 and February 9, 2009.
The employing establishment provided a February 9, 2009 statement from Ms. McIntyre,
a carrier, who explained that on February 7, 2009 she was clearing her accountable mail when
she heard Mr. Hernan and appellant discussing instructions given to him regarding a handoff.
Ms. McIntyre noted that he appeared to be quite upset about the instructions and was talking

3

about not going back on the street. She explained that Mr. Hernan had a tendency to talk with
his hands and, while doing so, appellant started to walk away from him. Ms. McIntyre explained
that from her viewpoint “it appeared that [appellant] walked into Ed Hernan’s hand with her
arm.” She noted that appellant “screamed for him not to ever touch her.” However,
Ms. McIntyre indicated that “it appeared to be an accident and nothing was done with intent to
harm or to be malicious.” She believed that “the incident was blown out of proportion.”
In a February 10, 2009 statement, Carrier Stoyanov explained that he witnessed appellant
and Mr. Hernan engage in a discussion on February 7, 2009. He noted that a telephone rang and
he saw Mr. Hernan “talking with his hands as usual.” Mr. Stoyanov thought appellant was going
to answer the telephone when “it seemed like Ed’s hand got caught on [appellant’s] bicep
unintentionally as she turned quickly and bolted toward the desk. No police report was filed
because the cop said that [appellant] had said in was not deliberate contact.” OWCP received a
February 7, 2009 summary call sheet from the police department.
On May 14, 2009 OWCP requested that Dr. Guy provide additional information about
the February 7, 2009 incident. In an undated response, Dr. Guy noted that, during his clinical
interview, it was determined that appellant had an altercation with a subordinate, Mr. Hernan,
after he was given a directive. Appellant related that he became agitated and raised his voice.
She began to walk away from her subordinate, “who then tried to physically restrain her by
reaching out and grabbing her arm. Appellant protested and stated ‘Do not touch me.’” Dr. Guy
explained that as a result of the altercation she became extremely nervous, anxious and was
unable to sleep and very fearful. He opined that appellant’s current diagnosis was not a part of
her clinical history until the February 7, 2009 altercation and her feelings of fearfulness and
anxiety were supported by the examination. Dr. Guy diagnosed adjustment disorder with
anxious mood and recommended that she not return to work with Mr. Hernan. He also noted
that appellant’s fearfulness was not only associated with Mr. Hernan, but with reports in the
media and press associated with lethal retaliation by unhappy and angry subordinates in the
workplace. Dr. Guy indicated that she could return to work as long as she did not work with the
worker who assaulted her.
In a June 29, 2009 decision, OWCP denied the claim as the evidence was insufficient to
establish that appellant sustained an injury as alleged. It found that the medical evidence did not
establish that the event of February 7, 2009 caused her claimed emotional condition. OWCP
found that appellant’s feeling fearful while working after the incident and having police walk her
to her car after the workday ended was not an employment factor.
Appellant’s representative requested a telephonic hearing, which was held on
October 6, 2009. During the hearing, appellant confirmed that she was not initially concerned
for her safety. She also noted that she had some stress earlier. It was also confirmed that no
police report was filed because there were two contradictory stories. Appellant indicated that she
disagreed with Mr. Stoyanov and was not in his presence.
By letter dated August 26, 2009 and received September 2, 2009, appellant’s attorney
submitted an undated report from Dr. Guy, who noted that, as a result of his examination of
appellant and her past clinical history, he concluded that “her present severe reaction to the

4

altercation she had with her subordinate on February 7, 2009 is the direct cause.” Dr. Guy
recommended that appellant return to work in a different location from her previous subordinate.
In a December 23, 2009 decision, an OWCP hearing representative affirmed the June 29,
2009 decision. He found that compensable work factors were established in the form of a verbal
altercation and physical contact with Mr. Hernan on February 7, 2009.
The hearing
representative specified that the incident was not a physical assault but was nonassaultive
physical contact. He also found that appellant’s being fearful and calling the police to watch her
walk to her car after the workday ended was not in the performance of duty and amounted to a
fear of future injury. The hearing representative also found that the medical evidence was based
upon an incorrect factual history of assault and lack of knowledge of appellant’s prior stress
problems which were not compensable. Thus, the medical evidence was insufficient to establish
a causal relationship between the emotional condition and the established work factors.
Appellant’s attorney requested reconsideration and referred to a copy of a March 13,
2009 letter to appellant from the employer advising her that she was being temporarily assigned
to the main office window in her supervisory capacity. By decision dated October 27, 2010,
OWCP denied modification.
On August 1, 2011 appellant’s representative requested reconsideration. He submitted a
June 9, 2011 report from Dr. James M. Medling, a clinical psychologist, who noted that appellant
had an adjustment disorder with anxiety beginning in June 2008, when a new manager arrived.
Dr. Medling indicated that she received treatment from her primary care physician, Dr. Lapping,
for this condition. He opined that appellant had an adjustment disorder with anxiety at the time
of her February 7, 2009 incident. Dr. Medling advised that he believed that the incident
substantially aggravated her adjustment disorder following the February 7, 2009 work incident,
which was now in full remission. He included a copy of his April 12, 2011 psychological
evaluation. Dr. Medling noted that appellant’s history included reporting work stress in 2008
due to a stressful work environment with her new manager. He described the incident of
February 7, 2009 as: “[s]he states a carrier grabbed her arm when she told him he had to do
another half-hour route and she became frightened over it.”
By decision dated June 13, 2012, OWCP denied modification of its prior 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 or her regular or specifically assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 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

5

his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.2
An employee 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.3 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.4
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 the physician when
providing an opinion on causal relationship and, which working conditions are not deemed
factors of employment and may not be considered.5 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 the
matter establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.6
ANALYSIS
Appellant alleged that she sustained an emotional condition in the performance of duty.
The Board must thus, initially review whether these alleged incidents and conditions of
employment are covered employment factors under the terms of FECA.
The Board initially notes that appellant has attributed her emotional condition to the
regular or specially assigned duties of her position as customer service supervisor. The Board
has held that conditions related to stress resulting from situations in which a claimant is trying to
meet his or her position requirements are compensable.7 In this case, appellant alleged that on
February 7, 2009 a verbal altercation and physical contact occurred with Mr. Hernan as she was
giving him instructions about his work. The Board notes that OWCP properly found this occurred
in the performance of duty. The Board finds that there was a verbal altercation8 and some physical
2

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 126 (1976).
3

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

4

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

5

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

6

Id.

7

Richard H. Ruth, 49 ECAB 503 (1998).

8

See Peter D. Butt Jr., 56 ECAB 117 (2004) (the Board has recognized the compensability of verbal altercations
or abuse when sufficiently detailed by the claimant and supported by the record).

6

conduct with Mr. Hernan as appellant tried to discuss work instructions with a subordinate
employee. Appellant has alleged a compensable factor under Cutler.9
Appellant also alleged that she was fearful at the end of her work shift on February 7,
2009 and had the police walk her to her car. The Board notes that during the hearing she
explained that she was not initially concerned for her safety. Later that date as appellant was
leaving for the day, she became fearful and thus asked for a police escort. However, fear of a
future injury is not compensable.10 Thus, this is not a compensable employment factor.11
Although appellant has identified a compensable factor of employment with respect to a verbal
altercation and physical contact on February 7, 2009, her burden of proof is not discharged. To
establish her claim for an emotional condition, she must also submit rationalized medical evidence
establishing that she has an emotional condition that is causally related to the accepted
compensable employment factor.12
The medical evidence submitted in support of appellant’s claim included several reports
from her treating physician, Dr. Lapping, an osteopath. In his disability certificates dated
February 9, 2009, Dr. Lapping indicated that appellant was unable to work from that date to the
present. In his February 17, 2009 report, he diagnosed acute anxiety due to the incident on
February 7, 2009 and checked the box “yes” in response to whether he believe that appellant’s
condition was caused or aggravated by stress at work. However, Dr. Lapping did not identify the
accepted work factors as causing her stress.
Dr. Guy provided several March 17, 2009 reports in which he generally noted that
appellant was involved with a confrontation with a male employee at work which left her
overwhelmed with stress such that she was unable to immediately return to work. When OWCP
requested additional information, Dr. Guy provided an undated response received on
June 1, 2009. He described the injury as appellant having had an altercation with Mr. Hernan,
after he was given a directive. Dr. Guy indicated that Mr. Hernan “tried to physically restrain
her by reaching out and grabbing her arm. [Appellant] protested and stated ‘Do not touch me.’”
He explained that as a result of the altercation she became extremely nervous, anxious and has
been unable to sleep and has been very fearful. Dr. Guy further explained that appellant’s
current diagnosis was not a part of her clinical history until the February 7, 2009 altercation and
her feelings of fearfulness and anxiety were supported by the examination. He recommended
that she not return to work in a location with Mr. Hernan.
In an undated report received on September 2, 2009, Dr. Guy opined that appellant’s
present reaction was related to her altercation. The Board notes that his reports are insufficient
to establish causal relationship as his opinion on causal relationship contains insufficient
9

See supra note 2.

10

See Joseph G. Cutrufello, 46 ECAB 285 (1994) (fear of future injury is not a compensable factor of
employment).
11

Appellant also made general allegations about stress at work since the appointment of a new manager. She
provided insufficient evidence to show how any specific actions by the manager were compensable work factors.
12

See William P. George, 43 ECAB 1159, 1168 (1992).

7

reasoning and his opinion is premised upon an inaccurate description of incident since the weight
of the evidence supports that Mr. Hernan’s touching of appellant was minimal. Furthermore,
Dr. Guy does not appear to be aware that appellant had a prior history of stress. Appellant noted
that she was on leave due to stress in 2008. It is well established that medical reports must be
based on a complete and accurate factual and medical background and medical opinions based
on an incomplete or inaccurate history are of little probative value.13
Dr. Medling provided June 9 and April 12, 2011 reports in which he opined that appellant
had an adjustment disorder with anxiety beginning in June 2008, when a new manager was
transferred to employing establishment. He opined that the February 7, 2009 work incident
substantially aggravated her adjustment disorder following the incident, which had been now in
full remission. However, Dr. Medling’s description of the incident was inaccurate as he
indicated that the “carrier grabbed her arm.” As noted, the witness’ statements support a much
lower level of physical contact, which one witness described as an accidental touching. As
previously noted, medical reports must be based on a complete and accurate factual and medical
background and medical opinions based on an incomplete or inaccurate history are of little
probative value.14
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed conditions are causally related to the accepted compensable
employment factors.
Appellant may submit evidence or argument with a written request for reconsideration
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 the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

13

Douglas M. McQuaid, 52 ECAB 382 (2001).

14

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

9