United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES VETERANS
ADMINISTRATION MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0628
Issued: November 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 31, 2019 appellant, through counsel, filed a timely appeal from a December 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was disabled
during the period June 26 through August 18, 2017 causally related to her accepted employment
conditions.
FACTUAL HISTORY
On November 20, 2013 appellant, then a 50-year old lead medical records technician, filed
a notice of traumatic injury (Form CA-1) alleging that she injured her left shoulder and neck on
November 15, 2013 when she slipped and fell while ascending stairs following a fire drill while in
the performance of duty. OWCP assigned this claim File No. xxxxxx713 and accepted the claim
for contusion of the left shoulder, closed fracture of the left humerus, closed dislocation of the left
shoulder, and sprain of the left shoulder. Appellant received intermittent wage-loss compensation
on the supplemental roll for the period December 31, 2013 through May 30, 2014.
On February 24, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that she sustained bilateral carpal tunnel syndrome due to factors of her federal employment
including years of typing. She noted that she first became aware of the condition on December 8,
2008, and its relationship to factors of her federal employment on November 14, 2016. Appellant
did not indicate that she had stopped work. OWCP assigned this claim File No. xxxxxx437, and
on June 15, 2017 accepted for the condition of bilateral carpal tunnel syndrome as work related.
The record reflects that appellant received wage-loss compensation on the supplemental rolls from
May 5 to 22, 2017. OWCP administratively combined the case records with OWCP File No.
xxxxxx437 serving as the mater file.
In an employing establish work capacity evaluation form dated June 26, 2017, Dr. Vladlen
Kim, a Board-certified internist, indicated that appellant was to be off work on temporary total
disability until July 6, 2017 due to left shoulder and arm pain. On July 3, 2017 Dr. Kim completed
another work capacity evaluation form and noted that appellant was to be off work on temporary
total disability until August 1, 2017.
On July 7, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for leave
without pay for the period June 26 to July 7, 2017.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the December 14, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

In a development letter dated July 11, 2017, OWCP requested additional medical evidence
supporting appellant’s claim for wage-loss compensation for the period alleged. Appellant was
afforded 30 days to submit the necessary evidence.
In reports dated May 5, 15, 22, and 31, June 6, 16, 20, 26, and 30, and July 17, 2017,
Dr. Kim noted complaints including bilateral numbness and tingling in appellant’s hands, left
shoulder pain, pain radiating up to her left arm and shoulder, back pain, neck pain, and sharp pains
in the palm of her right hand. In the May 15 and 22, 2017 reports, he diagnosed bilateral carpal
tunnel syndrome and noted that she could return to work on May 23, 2017 full time, with
restrictions.
In his June 26, 2017 report, Dr. Kim diagnosed left arm pain, left arm weakness, numbness
and tingling in both hands, and cervicalgia, and related that appellant was to be off work until
July 5, 2017. In his June 30 and July 17, 2017 reports, he diagnosed bilateral carpal tunnel
syndrome, and related that she was to be off work until August 22, 2017. In his July 17, 2017
report, Dr. Kim related that appellant had been off work due to severe pain and weakness in her
hands bilaterally, and that even limited duty would be impossible to perform without use of hands
and with significant pain.
On August 15, 2017 Dr. Kim reported that appellant was to remain off work until
September 14, 2017.
On August 18, 2017 OWCP received a Form CA-7 claiming compensation for leave
without pay for the period August 7 through 18, 2017.
By decision dated August 28, 2017, OWCP denied appellant’s claim for disability
compensation for the period June 26, 2017 and continuing finding that the evidence of record did
not establish that she was disabled as a result of her accepted employment-related medical
condition.4
OWCP thereafter received a June 26, 2017 hospital record signed by Dr. Stephanie Gaines,
a specialist in emergency medicine, who related that appellant was seen that day for chronic left
arm pain. Dr. Gaines noted that appellant had no obvious injury or deformity to her left arm, she
had full range of motion and no significant sensory deficit. She also noted that appellant had
recently undergone magnetic resonance imaging (MRI) scans all of which were “reassuring.”
On September 7, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
OWCP continued to receive continuing medical evidence regarding appellant’s current
medical status.

4

The Board notes that appellant continued to file CA-7 forms for periods of claimed wage-loss compensation
following OWCP’s August 28, 2017 decision. OWCP paid appellant wage-loss compensation on the supplemental
rolls for periods of intermittent disability commencing September 12, 2017.

3

On February 7, 2018 a telephonic hearing was held before an OWCP hearing
representative. At the hearing, appellant indicated that she was taken off work commencing
June 26, 2017 by her physician due to shoulder and arm pain related to her accepted bilateral carpal
tunnel syndrome.
By decision dated March 28, 2018, an OWCP hearing representative affirmed OWCP’s
August 28, 2017 decision finding that the evidence of record was insufficient to establish that
appellant was disabled as of June 26, 2017, causally related to the accepted medical conditions.
On May 2, 2018 appellant, through counsel, requested reconsideration of OWCP’s hearing
representative’s March 28, 2018 decision. OWCP continued to receive medical progress reports.
In a report dated April 12, 2018, Dr. Kim indicated that appellant was admitted to the
emergency room on June 26, 2017, and was diagnosed with neuropathic pain of her left upper
extremity. He noted that after release from the hospital, he evaluated her on that day, and she
complained of severe pain in her left shoulder with radiation down to her left hand, pain in her
wrists bilaterally, numbness and weakness in her left hand, and sharp pain in the palm of her right
hand. Dr. Kim related that physical examination revealed tenderness over the left shoulder, left
elbow, left wrist, right wrist, and neck. He diagnosed left arm pain, left arm weakness, numbness
and tingling in both hands, and cervicalgia at that time. Dr. Kim subsequently recommended that
appellant stay off work until July 6, 2017. He opined that the pain in her left arm was directly
related to the diagnosed carpal tunnel syndrome.
By decision dated July 11, 2018, OWCP denied modification of the March 28, 2018
decision.
On September 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 11, 2018 decision. OWCP continued to receive medical progress reports.
By decision dated December 14, 2018, OWCP denied modification of its July 11, 2018
decision. It found that the medical evidence of record was insufficient to establish that appellant’s
accepted condition prevented her from working during the claimed period of disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden proof to establish the essential
elements of his or her claim by the weight of the evidence.6 For each period of disability claimed
the employee has the burden of proof to establish that he or she was disabled from work as a result
of the accepted employment injury.7 Whether a particular injury caused an employee to become

5

Supra note 2.

6

B.F., Docket No. 19-0123 (issued May 13, 2019); M.D., Docket No. 18-0474 (issued October 3, 2018); see
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).
7

Id.

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disabled from work and the duration of that disability, are medical issues that must be proven by
a preponderance of probative and reliable medical opinion evidence.8
OWCP’s procedures discuss the evidence necessary if recurrent disability for work is
alleged within 90 days of return to duty.9 It is noted that the focus is on disability rather than
causal relationship of the accepted condition to the employment injury.10
The Board has held that, if recurrent disability from work is claimed within 90 days or less
from the first return to duty, the attending physician should describe the duties which the employee
cannot perform and demonstrate objective medical findings that form the basis for the renewed
disability for work.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability during
the period June 26, through August 18, 2017 causally related to her accepted employment
conditions.
Appellant has submitted a number of reports to the record from Dr. Kim. Dr. Kim initially
related that appellant was off work from May 5, 2017 due to her bilateral hand condition, but that
she could return to full-time work with restriction on May 23, 2017. The record reflects that
appellant received wage-loss compensation during that initial period of disability and that she
returned to limited-duty work on or about May 23, 2017.
Appellant was then seen in an emergency room on June 26, 2017 for left arm complaints,
however Dr. Gaines reported normal examination findings.
Dr. Kim thereafter continued to submit reports noting appellant’s diagnoses and indicating
that appellant was unable to work as of June 26, 2017. In his progress notes during the relevant
time period Dr. Kim noted appellant’s subjective complaints, but offered no medical explanation
8

B.F., supra note 6; M.D., supra note 6; see Edward H. Horton, 41 ECAB 301 (1989).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see B.R., Docket
No. 18-0339 (issued January 24, 2019).
10

Id.

11

A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,
Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).
12
V.B., Docket No. 18-1273 (issued March 4, 2019); see William A. Archer, 55 ECAB 674 (2004); see also
Fereidoon Kharabi, 52 ECAB 291 (2001).

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regarding appellant’s inability to return to work, based upon objective medical evidence. As
previously noted, if inability to work is claimed within 90 days after the initial return to work the
focus is on disability, rather than causal relationship. However, the treating physician must
describe the duties which the employee cannot perform and demonstrate objective medical
findings that form the basis for the renewed disability for work.13
In his July 17, 2017 report, Dr. Kim related that appellant had been off work due to severe
pain and numbness in her hands and he indicated that even light duty would be impossible for her
to perform. Although Dr. Kim opined that appellant was totally disabled for work, his opinion
was conclusory in nature and failed to explain how the accepted bilateral carpal tunnel syndrome
was responsible for her disability and why she could not perform her light-duty assignment during
the period claimed.14
In his narrative report dated April 12, 2018, Dr. Kim related that appellant was admitted to
the emergency room on June 26, 2017 for neuropathic upper extremity pain. He examined
appellant on that day, after she was released from the hospital. Appellant’s physical examination
findings included tenderness over the left shoulder, left elbow, left wrist, right wrist and neck. She
also reported left arm pain and weakness, numbness and tingling in both hands, and cervicalgia.
Dr. Kim related that he had recommended that appellant stay off work. The Board finds that while
Dr. Kim, in this report as in his others, consistently noted appellant’s subjective symptoms, he
again did not relate any objective findings of disability. Furthermore, Dr. Kim did not address
why appellant could not perform the duties of the light-duty position she returned to on
May 23, 2017. When a physician’s statements regarding an employee’s ability to work consist
only of recitation of the employee’s complaints that she was in too much pain to work, without
objective findings of disability being shown, the physician has not presented a medical opinion on
the issue of disability.15 A mere conclusion without the necessary rationale is insufficient to meet
a claimant’s burden of proof.16 Without medical rationale supporting disability, Dr. Kim’s reports
are insufficient to meet appellant’s burden of proof.17 His reports, do not establish that appellant
was disabled from work during the claimed period due to her accepted conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,
Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).
14

See S.K., Docket No. 18-1537 (issued June 20, 2019).

15

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
16

B.F., id.; E.L., Docket No. 17-1632 (issued January 3, 2018).

17

A.T., Docket No. 19-0410 (issued August 13, 2019).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled during the period June 26 through August 18, 2017 causally related to her accepted
employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 11-2017
Issued: April 25, 2012

Case Submitted on the Record

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

JURISDICTION
On September 8, 2011 appellant filed a timely appeal from the July 21, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied a schedule
award for her accepted emotional condition. 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 may receive a schedule award for her employment-related
emotional condition.
FACTUAL HISTORY
In 1988 appellant, a 33-year-old manual distribution clerk, sustained an occupational
injury in the performance of duty from repetitively sorting mail. OWCP accepted her claim for
1

5 U.S.C. § 8101 et seq.

bilateral carpal tunnel syndrome, left shoulder rotator cuff impingement, upper limb causalgia,
and subsequent adjustment reaction with mixed anxiety and depressed mood. Appellant received
compensation for temporary total disability on the periodic rolls.
On October 13, 2010 OWCP issued a schedule award for an eight percent impairment of
each upper extremity.
Appellant requested reconsideration. She argued that OWCP had accepted her claim for
mixed anxiety and depressed mood, and she believed she was entitled to a schedule award for
this condition. Appellant explained that her injury caused her emotional condition, for which she
had been admitted three times: “You just don’t understand how depressed I am. I cry for no
reason. I usually go to a psychologist but stopped because it seems it’s not helping. I lost
interest in life. I have no social life. I only go out to see a doctor. I admired my husband for
putting up to me with this situation.”
In a July 21, 2011 decision, OWCP denied modification of its schedule award. It
explained that FECA and the implementing regulations provided schedule awards only for the
permanent loss or loss of use of a listed member or function of the body. No schedule awards
were authorized for emotional conditions.
On appeal, appellant argued that OWCP gave her a schedule award for her physical
impairment but did not approve her anxiety and depression due to her injuries. She reiterated
that OWCP should pay compensation for her depression.
LEGAL PRECEDENT
Section 8107 of FECA authorizes the payment of schedule awards for the loss, or loss of
use, of specified members, functions or organs of the body.2
ANALYSIS
The specific members enumerated in section 8107 include the arm, leg, hand, foot, eye,
thumb, finger and toe. Functions of the body include loss of hearing and loss of vision. Organs,
added by regulation,3 include the breast, kidney, larynx, lung, penis, testicle, tongue, ovary,
uterus/cervix and vulva/vagina.
No schedule award is payable for a member, function or organ of the body not specified
under FECA or the implementing regulations.4 FECA specifically provides that the brain is

2

Id. at § 8107.

3

20 C.F.R. § 10.404(a).

4

Patricia J. Horney, 56 ECAB 256 (2005).

2

excluded from the meaning of “organ.”5 Neither FECA nor the regulations authorize the
payment of a schedule award for loss of cognitive function.6
Because Congress made no provision in the law for a schedule award based on an
emotional condition, no claimant may receive such an award. In the case of D.K.,7 the claimant,
a 35-year-old mail processor, sustained a traumatic emotional condition in the performance of
duty. OWCP accepted his claim for aggravation of major depression and aggravation of anxiety
disorder. When the claimant requested a schedule award, it denied his claim on the grounds that
there was no provision in FECA for such an award. The Board affirmed, explaining that a
schedule award is not payable under FECA for an accepted emotional condition.8
Appellant may claim medical benefits for the accepted condition of adjustment reaction
with mixed anxiety and depressed mood. She may claim wage-loss compensation for any
disability caused by that emotional condition. There is nothing in the law that provides her to
receive a schedule award for her accepted anxiety and depression. For that reason, the Board
will affirm OWCP’s July 21, 2011 decision denying her request for such an award.
With respect to any physical impairment, appellant may request a schedule award or
increased schedule award based on evidence of a new exposure or medical evidence showing
progression of an employment-related condition resulting in permanent impairment or increased
impairment to a scheduled member, organ or function of the body.
CONCLUSION
The Board finds that appellant may not receive a schedule award for her injury-related
emotional condition.

5

5 U.S.C. § 8101(19).

6

Brent A. Barnes, 56 ECAB 336 (2005).

7

Docket No. 10-174 (issued July 2, 2010).

8

See also Jacqueline S. Harris, 54 ECAB (2002) (finding the claimant was not entitled to a schedule award for an
emotional condition).

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ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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PUGET SOUND HEALTH CLINIC, Seattle, WA, )
Employer
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__________________________________________ )
R.L., Appellant

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

Docket No. 20-0098
Issued: March 17, 2022

Case Submitted on the Record

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

JURISDICTION
On October 16, 2019 appellant filed a timely appeal from a July 18, 2019 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 her burden of proof to establish an emotional
condition in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 13, 2015 appellant, then a 58-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that she developed emotional distress and severe anxiety on December 18,
2014 at 11:00 a.m. when the employing establishment police improperly arrested her with an
unwarranted display of force while she was engaged in union duties.
In a January 21, 2015 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence needed and provided a factual
questionnaire for her completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide additional information regarding appellant’s alleged
emotional condition claim, including comments from a knowledgeable supervisor regarding the
accuracy of her allegations and an explanation of any areas of disagreement, a copy of her position
description, and the results of any investigation. It afforded both parties 30 days for response.
On January 15, 2015 Dr. Keith Sonnanburg, a licensed clinical psychologist, opined that
appellant was totally disabled due to a work-related psychological injury. On February 2, 2015 he
diagnosed work-related stress and anxiety. Dr. Sonnanburg, in an attending physician’s report
(Form CA-20) dated February 4, 2015, checked a box marked “Yes” to indicate that her condition
was caused or aggravated by her employment activity and added that her condition was directly
related to episodes at her place of work.
By decision dated February 24, 2015, OWCP denied appellant’s emotional condition
claim, finding that the evidence of record was insufficient to establish that the claimed incident
occurred, as alleged. It noted that she had not submitted a factual statement outlining specific
details of the alleged December 18, 2014 employment incident. Thus, OWCP concluded that the
requirements had not been met to establish an injury as defined by FECA.
On March 4, 2015 appellant requested a review of the written record before a representative
of OWCP’s Branch of Hearings and Review. She provided additional information in support of
her request. In a March 3, 2015 statement, appellant noted that she was a union vice-president and
was responsible for representing employees in meetings and hearings with management, filing
grievances, and protecting employees’ rights. She explained that in the course of representing an
employee, R.G., a pathologist, she met with him on December 18, 2014 to discuss a fact-finding
interview scheduled on that date. Appellant had consulted via telephone with J.M., a physician
who was also the national union representative, who confirmed that R.G. was entitled to union
representation at the scheduled fact-finding interview. She and the chief union steward, A.T., met
S.L, the Acting Director of the employing establishment, and R.N., an employing establishment
official, in the hallway and S.L. informed them that R.G. did not have representation rights for the
interview. Appellant disagreed and noted that R.G. had requested her presence during the
interview. She attended the interview with the permission of the interviewer and took notes.
2

Docket No. 18-1375 (issued May 1, 2019).

2

Shortly after the interview began, R.N. interrupted the meeting and insisted that appellant and A.T.
leave. After appellant left the room, she informed R.N. that she would file an unfair labor practice
complaint against the employing establishment and requested his name. She remained outside the
conference room in the hallway on her cellphone when two armed and uniformed employing
establishment police officers, Lt. W.C., and Lt. E., began searching the area near the conference
room. They subsequently entered the conference room, returned to appellant, and asked her name.
The officers then informed her that they had been asked to remove her from that area and then that
floor of the employing establishment’s building. Appellant alleged that her removal was solely
because of her protected union activities. She noted that Lt. W.C. became agitated and denied that
there were any charges against her, but asked for her security badge. Appellant informed the
officers that her badge was in her office and led them to her office to retrieve her badge. The
officers again denied that she was under arrest and released her from custody after reviewing her
badge. Appellant alleged that this incident caused her heart palpitations, shock, and fear. She was
unable to continue her work that day and eventually went home. Appellant reported to work the
next day and again experienced heart palpitations and tension. She felt that the stress was too
much. Appellant had to ask coworkers to assist with completing her assigned work. Thereafter,
she began to have nightmares about working at the employing establishment.
Appellant noted that she had filed a Federal Labor Relations Authority (FLRA) complaint
against the employing establishment, but had not yet received a final decision. She alleged that
the employing establishment interfered with protected union activity when it called the police after
she left the interview on December 18, 2014.
Appellant provided a February 19, 2015 witness statement from R.G., who noted that he
had requested that she accompany him to the interview to protect his rights. R.G. noted that he
had invited appellant into the interview and the interviewer had indicated that he did not have a
problem with her presence. He asserted that shortly after the interview began, management
officials, including R.N., entered the room and informed the participants that R.G. did not have
the right to union representation. Appellant then left the room.
In a February 19, 2015 statement, B.A., the union president, described the events of
December 18, 2014 and confirmed that the police officers denied that appellant was under arrest,
but escorted her into her office and examined her badge. She informed B.A. that the officers had
been called to remove her from the area of the meeting. B.A. alleged that an officer advised her
that the “panic button” had been pushed as a means of calling the police to the scene.
A February 20, 2015 e-mail from J.M. indicated that he was aware that appellant was acting
as R.G.’s representative in the scheduled interview. On February 20, 2015 A.T. reported that he
had attended the December 18, 2014 meeting with appellant and R.G. He confirmed that the
interviewer consented to their presence during the interview. A.T. was taking notes when R.N.
entered and asserted that union representation was not allowed. He and appellant then left the
room.
In an undated form report, Dr. Sonnanburg noted that appellant was attending a meeting as
a union representative and was shocked by the employing establishment police who responded to
an improper panic signal and removed her. He diagnosed adjustment disorder with mixed anxiety
and depressed mood with post-traumatic stress disorder symptom pattern.

3

On May 5, 2015 appellant requested reconsideration of the February 24, 2015 OWCP
decision.
In a September 29, 2015 development letter, OWCP requested additional factual
information from the employing establishment including a statement from a supervisor regarding
the accuracy of appellant’s claim, whether her job was stressful, and a copy of her position
description. It afforded 30 days for a response. The employing establishment responded,
contending that R.G. was not entitled to union representation at the December 18, 2014 interview
and that appellant was aware of this fact. It alleged that appellant entered the room where the
interview was scheduled on December 18, 2014 and R.N. had asked her to leave. The employing
establishment asserted that she commented that she would leave the room, but would stand
immediately outside the door. Appellant then demanded information from R.N. in a loud and
aggressive manner. R.N. informed her that her behavior was inappropriate and asked her to leave
the floor. Appellant refused. R.N. then asked the receptionist to summon the police and she
activated the panic button call. The police arrived and asked to see appellant’s identification. They
escorted her to her office to retrieve her badge.
The employing establishment contended that appellant was not arrested, accosted, or
subject to unwarranted display of force. It asserted that R.G. had no right to union representation,
that she was advised of this, that she refused to leave the area when asked, and that she was
therefore acting on her own volition, not as part of protected union activity. The employing
establishment concluded that appellant was not in the performance of duty.
By decision dated January 19, 2016, OWCP modified its February 24, 2015 decision,
finding that appellant had not established a compensable factor of employment and, thus, an injury
was not sustained in the performance of duty. It noted that there was no evidence that the
employing establishment’s actions regarding the December 18, 2014 meeting were abusive,
erroneous, or improper and found that her reactions were self-generated.
On January 18, 2017 appellant requested reconsideration of the January 19, 2016 decision
on January 18, 2017. She provided an additional narrative statement dated January 14, 2017,
wherein she asserted that on December 18, 2014 she attended a meeting on the fifth floor of the
employing establishment in room 523 to represent R.G. Appellant was ordered to leave the room
and did so. She remained in the hallway, outside of the room awaiting R.G. in case her assistance
was needed. Appellant alleged that she was quiet, that she was not disruptive, and that she was
checking her cellphone for the number of J.M. to ask for advice. She noted that she was so quiet
that the police officers did not notice her and had to ask where she was. When appellant asked
what charges were being leveled against her, one of the officers became red -faced and flustered.
The police officer used an angry voice to tell appellant that she had to leave the fifth floor and that
he had to remove her from the area. Appellant believed that she had no choice but to leave with
the police under their escort. The police officers walked on either side and escorted her to her
fourth floor office. While there, they notified appellant that she was free to go.
In a January 3, 2017 letter, B.A. indicated that R.G. requested union help and that on
December 18, 2014 appellant was engaged in representational functions at the time of her injury.
She noted that she was appellant’s supervisor and that appellant was entitled to official time at the
time of her injury.

4

On January 4, 2017 A.B., an employing establishment administrative assistant, provided a
statement noting that on December 18, 2014 she observed appellant enter the conference room.
She asserted that appellant was asked to leave the room and did so. R.N. then asked A.B. to call
security, which she did. A.B. noted that appellant was in the hallway after leaving the conference
room and did not raise her voice or make noise. She contended that appellant did not cause any
commotion or disturbance from the time when she left the conference room until the police
removed her from the area.
Appellant provided a copy of the FLRA-approved settlement agreement signed by the
acting regional director of the employing establishment on January 23, 2016 and the FLRA notice
to employees which was signed by the employing establishment’s medical center director on
January 24, 2016. Under the FLRA settlement agreement, the employing establishment was
required to ensure that all references to the police encounter with appellant o n December 18, 2014
was expunged from its records, and forbidden to rely on this incident in any future action. It was
also required to post the following notice to all employees:
“On or about December 18, 2014, [the employing establishment] police removed
[appellant] from a location where she was waiting for an employee to exit a
meeting. The [FLRA] statute prohibits an agency from interfering with an
employee’s exercise of protected activity and/or taking an action against an
employee because of the exercise of protected activity.”
The notice further provided that the employing establishment would not interfere with the exercise
of protected activity or take an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
On March 17, 2017 the employing establishment responded to appellant’s January 18,
2017 request for reconsideration. In a statement dated November 3, 2015, A.B., noted that she
was sitting at her desk on December 18, 2014 near room 523 at the employing establishment. She
indicated that appellant was standing right in front of her desk and that she was shaken by her
disruptive behavior, including yelling and screaming. A.B. asserted that appellant was asked to
leave the area and refused to go. R.N. requested that she contact the police.
In an e-mail dated May 28, 2015, R.N. asserted that the December 18, 2014 meeting was
not associated with personnel issues, that the union had no vested interest in attending, and that
both R.G. and the union were made aware of these facts prior to the meeting. He indicated that
the union presence was disruptive and unnecessary. R.N. asked the union officials to leave. He
alleged that appellant became confrontational and initially refused to leave the room. Appellant
then agreed to leave the room, but asserted that she would stand immediately outside the door in
an outer office area. Once in the office area, she then demanded identification from R.N. R.N.
asserted that appellant’s demeanor was loud and aggressive. He informed her that this behavior
was inappropriate and again asked her to leave, but she refused. A.B. was asked to summon the
police and activated a panic button. When the police arrived, they asked to see appellant’s
identification. Appellant did not have identification, and the officer escorted her out of the area.

5

R.N. asserted that she was not engaged in protected union activity and that her disruptive behavior
in the outer office work environment was inappropriate.
In an e-mail dated November 23, 2015, Lt. W.C. noted that on December 18, 2014 he was
called to room 523 due to a disruptive situation. He indicated that he contacted someone in the
office who informed him that they were conducting a meeting, that appellant was being disruptive,
and that person requested that she be escorted out of the office as the meeting did not require union
presence. Lt. W.C. asserted that she was argumentative toward the staff, loud, and disruptive. He
advised appellant that she needed to leave the area and she became argumentative toward him and
told him that it was her right to be in the office. Lt. W.C. escorted her to the union office and
directed her actions to the union president. He alleged that appellant accused him of not knowing
how to do his job.
On April 26, 2017 OWCP provided appellant with a copy of the employing establishment’s
responses and afforded her 20 days to submit comments. On May 15, 2017 appellant responded
and asserted that in the FLRA posting, the employing establishment admitted to interfering with
protected activity and interfering with appellant’s exercise of her rights in accordance with FLRA
statute. She further noted that the settlement agreement included that her interactions with the
employing establishment police on December 18, 2014 would be expunged from the employing
establishment’s records.
By decision dated June 27, 2017, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error. It noted that
her reconsideration request was received on January 20, 2017. In a memorandum of telephone
call (Form CA-110) dated September 7, 2017, OWCP’s claims examiner noted reviewing
appellant’s claim file and found that her requests for reconsideration were entered into the
Integrated Federal Employees’ Compensation System (iFECS) on January 18, 19, and 20, 2017.
The claims examiner directed her to either appeal to the Board or to make an additional request
for reconsideration which would not be timely, but noted that the date of her original request for
reconsideration would establish clear evidence of error.
On September 20, 2017 appellant requested reconsideration of the January 19, 2016
decision. She noted that her initial request for reconsideration was received by OWCP on
January 18, 2017 and therefore, was timely.
By decision dated January 8, 2018, OWCP reviewed the merits of appellant’s claim but
denied modification of its January 19, 2016 decision. It found that she had submitted no evidence
to demonstrate that the employing establishment acted in an abusive or improper manner in regard
to the accepted December 18, 2014 employment incident. OWCP further found that the FLRA
settlement agreement did not include an admission of error or abuse on the part of the employing
establishment. It determined that appellant’s emotional reaction was self-generated and not due
to a compensable factor of her employment.
Appellant appealed to the Board, and in its May 1, 2019 decision, 3 the Board set aside the
January 8, 2018 decision and remanded the case for OWCP to request that the employing
3

Id.

6

establishment address her use of official time at 11:00 a.m. on December 18, 2014, when she
alleged that her injury occurred. The Board further directed OWCP to require that the employing
establishment provide documentation establishing whether she was performing a representational
function at the fact-finding interview on December 14, 2018. The Board determined that if the
employing establishment found that appellant was not on official time, she should be advised of
this finding and provided an opportunity to submit relevant evidence on the issues. Following any
further development, OWCP was to issue a de novo decision.
In a May 22, 2019 development letter, OWCP requested that the employing establishment
address appellant’s use of official time on December 18, 2014 at 11:00 a.m. and to provide
documentation establishing her representational function. It further requested that the employing
establishment provide documentation, in the form of appropriate regulations, executive order, or
union agreement covering the specific situation. OWCP noted that in the absence of a full reply
from the employing establishment, it could accept appellant’s allegations as factual.
In a June 28, 2019 letter, the employing establishment responded and asserted that
appellant was not performing a union representational function during the time of her alleged
workplace injury on December 18, 2014 at 11:00 a.m. It noted that prior to the alleged incident,
appellant had represented R.G. in a grievance filed on December 1, 2014. In addressing this
grievance, R.G. also raised quality of medical care concerns. On December 12, 2014 W.C., the
Chief of Staff and the employing establishment deciding official, partially accepted the grievance
and directed the employing establishment to initiate an independent fact-finding by a qualified
pathologist into the issues raised by R.G. regarding validation of laboratory studies which resulted
in the medical quality review scheduled on December 18, 2014. The employing establishment
asserted that on December 18, 2014 it was addressing R.G.’s concerns to ensure improvement in
quality medical care at the facility in accordance with 5 U.S.C. § 7114; 38 U.S.C. §§ 5705, 7311,
and 7422, and its medical bylaws, Article IX. It further asserted that the medical quality review
was conducted for the sole purpose of addressing concerns in medical quality raised by R.G. and
that anything he disclosed during the medical quality review was protected information and could
not be used for any purpose other than improving medical quality of care. The employing
establishment asserted that there was no right to union representation as the medical quality review
was not about R.G., his practice, performance, conduct, or any issues specified as a ba sis for the
grievance.
The employing establishment noted that as union vice president, appellant was authorized
80 percent official time to perform union duties. However, it asserted that on December 18, 2014
at 11:00 a.m. R.G. was not entitled to union representation and appellant was not authorized to
attend the medical quality review. The employing establishment asserted that under 5 U.S.C.
§ 7114, representational rights were limited to formal discussion of a grievance or personnel
policy, practices or general condition of employment, or any examination of an employee in
connection with an investigation if the employee reasonably believes that the examination could
result in disciplinary action and if the employee requests representation. It contended that R.G.
had no reasonable expectation of disciplinary action from the December 18, 2014 medical quality
review. The employing establishment asserted that, therefore, it was under no obligation to allow
union representation during the medical quality review as it was in no way an investigation of R.G.

7

The employing establishment provided copies of Article 49 of the union ’s rights and
privileges, the Bylaws and Rules of the Medical Staff of the employing establishment, Article IX;
5 U.S.C. § 7114, 30 U.S.C. §§ 5705, 7311, and 7422, the grievance filed by R.G. on December 1,
2014, and the response dated December 12, 2014 from W.C.
In a July 5, 2019 response, appellant asserted that she was performing union representation
for R.G. on December 18, 2014. She noted her prior representation of R.G. which had begun with
written counseling he received on October 7, 2014 during his probationary period. Appellant
noted that beginning on November 10, 2014 R.G. was undergoing a Focused Professional Practice
Evaluation (FPPE) which evaluated his ability to communicate effectively with staff, his
productivity in areas requiring close interaction with colleagues, and his professional behavior.
The FPPE required him to institute implementation of calculated ionized calcium in the laboratory
test menu, implemental qualitative confirmation assays for amphetamine, benzodiazepine, and
opiates, as well as correlate immunosuppressant drug testing. She asserted that each of these areas
was directly implicated during the December 18, 2014 medical quality review. Appellant asserted
that while the employing establishment contended that her answers during the medical quality
review could not be used against him, he was asked to resign shortly thereafter. She further
asserted that at the time of the medical quality review he had a reasonable belief that his
participation in this investigation could result in disciplinary action.
Appellant provided a May 3, 2012 letter from the union president indicating that beginning
September 2012 appellant would be on 100 percent official time.
In an undated and unsigned statement, R.G. noted that on October 9, 2014 a critical
component on chemistry analyzers, the indirect ion selective electrodes (ISE) which allowed
measurements of serum, plasma sodium, potassium, and chloride was updated, but not properly
validated. He formulated a plan to repair to the validation of ISE and on December 3, 2014 alerted
W.C. to his concerns about the quality of laboratory testing. W.C. commenced a 38 U.S.C. § 5705
medical quality assurance program review scheduled for December 18, 2014 with the interviewer.
R.G. was informed that his disclosures would not and could not result in a punitive action against
him or other employees so he attended the meeting with union representation which was removed
during the course of the meeting. He alleged that he was then subjected to retaliation for disclosing
a medical quality assurance issue in the December 18, 2014 meeting, for which he was explicitly
told he could not be punished.
By decision dated July 18, 2019, OWCP again denied appellant’s emotional condition
claim finding that the quality review was not associated with a grievance, a change in work
conditions or an investigation where a potential disciplinary action could have been imposed of
misconduct. It determined that she, therefore, was not on official time as a union representative at
the time her alleged emotional condition occurred. OWCP concluded, therefore, that appellant
had not sustained an emotional condition in the performance of duty.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’

8

compensation. When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable. 4
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force, or frustration from not being permitted to work in a particular environment,
or to hold a particular position. 5
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.6 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.7 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor. 8
The Board has adhered to the principle that union activities are personal in nature and are
not considered to be within the course of employment. 9 Attendance at a union meeting, for
example, is exclusively for the personal benefit of the employee and devoid of any mutual
employer-employee benefit that would bring it within the course of employment. 10
The Board has recognized an exception to this general rule. Employees performing
representational functions which entitle them to official time are considered to be in the
performance of duty if injured during the performance of those functions. 11 The underlying
rationale for this exception is that an activity undertaken by an employee in the capacity of a union
official may simultaneously serve the interest of the employer. 12 OWCP’s procedures indicate that
representational functions include authorized activities undertaken by employees on behalf of

4

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
5

Lillian Cutler, id.

6

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
566 (1991).
7

C.M., Docket No. 17-1076 (issued November 14, 2018); David C. Lindsey, Jr., 56 ECAB 263, 268 (2005)
Thomas D. McEuen, id.
8

Id.

9

J.G., Docket No. 17-1948 (issued September 13, 2018); Jimmy E. Norred, 36 ECAB 726 (1985).

10

J.G., id.; C.M., Docket No. 10-0753 (issued December 15, 2010).

11
J.G., supra note 9; R.F., Docket No. 14-0770 (issued September 29, 2015) (those on official time performing
activities related to the internal business of a labor organization such as soliciting new members or collecting dues are
not considered to be in the performance of duty. The singular fact that one is on paid official time for union
representation is not enough to establish that every interaction during such official time is within the performance of
duty).
12

J.G., supra note 9; Marie Boylan, 45 ECAB 338, 342-43 (1994).

9

other employees pursuant to such employees’ right to representation under statute, regulation,
executive order, or terms of a collective bargaining agreement.13
OWCP’s procedures discuss union representational functions and official time. 14 There
are specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted official time or, in emergency cases, would have
been granted ‘official time’ if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. 15
“If [an] agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing [30]
days for a response. If there is no timely response from [appellant], a formal
decision should be issued on the grounds that [appellant] is not in the performance
of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to this evidence, providing
documentation in the form of appropriate regulations, executive order or union
agreement covering the specific situation. [OWCP] will accept the ruling of the
[employing establishment] as to whether a representative was entitled to official
time unless the ruling is later overturned by a duly authorized appellate body.”16
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition when the employing
establishment demanded that she leave a medical quality review meeting and the employing
establishment police escorted her from the hallway outside of the meeting while she was
performing representational union activities on December 18, 2014.
The first issue is whether appellant was in the performance of duty at the time of the alleged
employment incident. In its June 28, 2019 letter, the employing establishment acknowledged that
she utilized official time for 80 percent of her time. It did not specifically address appellant’s
official time schedule and whether or not she was on official time at 11:00 a.m. on
13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (July 1997).

14

Id.

15

Id.

16

Id.

10

December 18, 2014. Appellant submitted a May 3, 2012 letter from the union president indicating
that, beginning September 2012, she would be on 100 percent official time and a January 3, 2017
letter from B.A., the union president, in which she noted that she was appellant’s supervisor and
that appellant was entitled to official time at the time of her injury. The Board thus finds that the
weight of the evidence of record establishes that appellant was on official time on December 18,
2014 at the time of the alleged employment incident.
The Board has held that the singular fact that one is on paid official time is not enough to
establish that every interaction during such official time is within the performance of duty. 17 The
Board has also required that a claimant be performing a mutually beneficial activity such as a
representational function. 18 The facts of this case establish that the nature of the activity in which
appellant was engaged was representational and therefore of mutual benefit to the union and her
employer.19 Representational functions include authorized activities undertaken by employees on
behalf of other employees pursuant to such employees’ right to representation under statute,
regulation, executive order, or terms of a collective bargaining agreement. 20
The alleged employment incident occurred when appellant was instructed to leave the
medical quality review meeting on December 18, 2014 after she indicated that she would file an
unfair labor practice complaint against the ejecting official, R.N. Appellant further alleged that
while she was waiting outside the meeting room for R.G. to emerge, and checking her cellphone
for J.M.’s telephone number to request advice, the employing establishment police escorted her
back to her office on a different floor. Further, the FLRA-approved settlement agreement indicated
that appellant was acting in a representational capacity when the employing esta blishment police
removed her from the meeting location. As appellant was on official time and performing
representational functions, the Board finds that she was in the performance of duty at the time of
the December 18, 2014 employment incident. 21
While the Board finds that appellant was in the performance of duty at the time of the
December 18, 2014 incident, she must also establish a compensable factor of employment.
Appellant has not attributed her emotional condition to any of the regular or specially
assigned duties of her position as a nurse. Rather, she has alleged error and abuse in administrative
matters by the employing establishment. As a general rule, a claimant’s reaction to administrative

17

J.S., Docket No. 14-1532 (issued December 4, 2015).

18

J.G., supra note 9; Ray C. Van Tassell, Jr., 44 ECAB 316 (1992).

19

See Bernard Redmond, 45 ECAB 298 (1994); Ray C. Van Tassell, Jr., id. (the Board has adopted a mutual benefit
approach to determining if union activities occurred in the performance of duty, therefore activities related to the
internal business of a labor organization, such as soliciting new members or collecting dues are not included).
20

Marie Boylan, 45 ECAB 338 (1994).

21

Wayne F. Therrien, Docket No. 97-2604 (issued December 9, 1999). See also Kelly Y. Simpson, 57 ECAB 197
(2005) (the Board found that the claimant was in a representational status at the time of her injury despite, the
employing establishment’s disagreement).

11

or personnel matters falls outside the scope of FECA. 22 Absent evidence establishing error or
abuse, a claimant’s disagreement or dislike of a managerial action is not a compensable factor of
employment. Appellant has submitted corroborative evidence of error or abuse in the
administrative actions of the employing establishment demanding that she leave the medical
quality review meeting and the employing establishment police escorting her from the hallway. In
this regard, the FLRA-approved settlement agreement required the employing establishment to
expunge all references to the encounter between appellant and its police from its records and
forbade it to rely on this incident in any future action. It also required the employing establishment
to post a notice that on or about December 18, 2014, the employing establishment police had
removed appellant from a location where she was waiting for an employee to exit a meeting. It
noted that its statute prohibited an agency from interfering with an employee ’s exercise of
protected activity and/or taking an action against an employee because of the exercise of protected
activity. The notice concluded, “WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.” (Emphasis in the original.)
The Board thus finds that appellant has submitted sufficient evidence to establish error or
abuse by the employing establishment in demanding that she leave the medical quality review
meeting and escorting her from the hallway on December 18, 2014. As appellant has established
a compensable employment factor the case presents a medical question regarding whether her
emotional condition resulted from the compensable employment factor. OWCP determined that
there were no compensable employment factors and thus did not analyze or develop the medical
evidence. The case will be remanded to OWCP for this purpose. 23 After such further development
as deemed necessary, it should issue a de novo decision on this matter.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

E.M., Docket No. 19-0156 (issued May 23, 2019),

23

Id.; see also K.J., Docket No. 17-1851 (issued September 25, 2019); T.F., Docket No. 12-0439 (issued
August 20, 2012).

12

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2019 decision of the Office of Workers’
Compensation Programs is set aside. The case is remanded for further proceedings consistent with
this decision of the Board.
Issued: March 17, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

13


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

)
)
)
)
)
)
)
)

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

Docket No. 17-0848
Issued: August 8, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 6, 2017 appellant filed a timely appeal from a January 6, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish additional conditions
causally related to the accepted employment injury of November 7, 2016.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its January 6, 2017 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision
and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On November 10, 2016 appellant, then a 49-year-old city carrier assistant, filed a
traumatic injury claim (Form CA-1) alleging that, while delivering mail on November 7, 2016,
she injured her legs and toe when she fell while being attacked by a dog. She stopped work on
November 8, 2016.
In a November 8, 2016 report Dr. Raffaella Kalishman, a Board-certified internist,
indicated that while appellant was running from a dog on November 7, 2016, she fell and injured
herself. She diagnosed swelling of the left knee joint, sprain of the right toe, type 2 diabetes
mellitus without complication, and essential hypertension. In a November 10, 2016 report,
Dr. Kalishman followed up on appellant’s toe and knee injury. He noted that her toe was much
improved, but that mild swelling was still present in her knee. In a November 14, 2016 note,
Dr. Kalishman indicated that appellant was under his care on November 14, 2016 and could
return to work on November 22, 2016. In a duty status report of the same date, she indicated that
appellant had a very swollen knee with fluid in her joint and was unable to work.
In a November 10, 2016 report, Dr. Alice Nepomuceno Francisco, a Board-certified
radiologist, interpreted a radiographic examination of appellant’s left knee and found early mild
degenerative arthritis, but no demonstrable acute fracture or dislocation.
By letter dated November 28, 2016, OWCP informed appellant that further information
was necessary to support her claim and afforded her 30 days to submit this information.
In a November 21, 2016 progress note, Dr. Steven Ferrer, an orthopedic physician Boardcertified in pain medicine and physical medicine and rehabilitation, noted that appellant was
evaluated for left knee pain which began on November 7, 2016 following an employment-related
injury. He noted that appellant was running from a dog when she lost her footing and fell, and
landed directly on her left knee on a concrete surface. Dr. Ferrer diagnosed left knee sprain and
contusion. He indicated that due to the persistence of knee edema and pain with ambulation, she
was to remain out of work for two more weeks. In a December 5, 2016 report, Dr. Ferrer
diagnosed left knee pain and left shoulder pain. He noted that, although appellant had not
mentioned left shoulder pain during her last office visit, she had also been dealing with pain at
the superior and posterior aspect of the left shoulder since her fall at work. Dr. Ferrer noted that
it bothered her initially, improved, but was reexacerbated. He diagnosed sprain of the left knee,
contusion of left knee, and left shoulder strain.
In a December 6, 2016 attending physician’s report (Form CA-20), Dr. Ferrer indicated
that appellant was totally disabled commencing November 7, 2016. He concluded that the
diagnosed conditions were a result of the employment incident, noting direct trauma to the left
knee, which caused edema and abrasions. In a work capacity evaluation of the same date,
Dr. Ferrer found appellant unable to perform her usual job as she was unable to ambulate without
discomfort or to perform repetitive movements of the left shoulder. He listed her tentative date
to return to work as December 20, 2016, with restrictions to be determined.
In a December 19, 2016 report, Dr. Ferrer noted that due to persistent knee edema and
pain with ambulation, as well as left shoulder pain and range of motion deficits, appellant was
not able to return to work. He listed a tentative return to work date of February 1, 2017.
Dr. Ferrer noted that appellant required a magnetic resonance imaging scan of her left knee. He
2

further noted that to address her left shoulder pain and impingement, she required an intraarticular corticosteroid injection for symptomatic relief.
By decision dated January 6, 2017, OWCP accepted appellant’s claim for sprain of the
left knee, contusion of the left knee, sprain of the right second toe, and abrasion of the left knee.3
In a separate decision of the same date, it denied appellant’s claim for strain of the left shoulder,
swelling of the left knee joint, type 2 diabetes mellitus without complication, and essential
hypertension.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the 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.4
The medical evidence required to establish causal relationship between a diagnosed
condition and an accepted employment incident is usually rationalized medical evidence.
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.5
ANALYSIS
On January 6, 2017 OWCP accepted that as a result of the accepted November 7, 2016
employment injury appellant sustained a sprain of the left knee, contusion of the left knee, sprain
of the right second toe, and an abrasion of the left knee. However, in a separate decision of the
same date, OWCP denied appellant’s claim for swelling of the left knee joint, strain of the left
shoulder, type 2 diabetes mellitus, and essential hypertension. The Board finds that appellant has
failed to establish that these additional conditions are causally related to the November 7, 2016
employment injury.
The Board finds that OWCP properly denied appellant’s claim for swelling of the left
knee joint. Dr. Ferrer did note persistence of knee edema and pain in ambulation in the left knee.

3

OWCP also authorized retroactive supplemental wage-loss benefits commencing December 23, 2016.

4

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

5

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

3

Furthermore, Dr. Kalishman noted that appellant had a very swollen knee. However, pain and
swelling of the knee do not constitute a definitive diagnosis, rather they are symptoms.6
With regard to appellant’s diagnosed conditions of strain of the left shoulder, type 2
diabetes, and essential hypertension, the Board further finds that appellant has failed to submit a
medical report containing a rationalized, probative opinion which relates these diagnosed
conditions to her accepted employment incident of November 7, 2017. Appellant was initially
seen by Dr. Kalishman and she did not note any left shoulder condition. Dr. Kalishman did note
type 2 diabetes and essential hypertension. Although Dr. Kalishman noted appellant’s medical
conditions and described her employment injury, she never provided a rationalized medical
opinion addressing causal relationship for any of these diagnosed conditions. Medical evidence
that does not offer an opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.7
In his initial report of November 21, 2016, Dr. Ferrer discussed the November 7, 2016
employment injury and diagnosed left knee sprain and contusion of the left knee. On
December 5, 2016 he first diagnosed left shoulder strain. However, in neither of these reports
did Dr. Ferrer provide a rationalized opinion indicating that the shoulder strain was causally
related to appellant’s accepted employment injury. This is particularly noteworthy as appellant
never mentioned left shoulder pain until one month after the employment injury. A medical
opinion is of limited probative value if the physician has not provided an explanation for the
delayed onset of symptoms.8
Furthermore, Dr. Ferrer never indicated that appellant’s diabetes or hypertension were
causally related to the accepted employment injury. It is appellant’s burden of proof to submit a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.9 Neither the fact that a
disease or condition manifested itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by an employment incident is sufficient to
establish causal relationship.10
Finally, Dr. Francisco interpreted appellant’s radiographic examination of the left knee,
but never discussed any injury to appellant’s left shoulder, appellant’s diabetes, or appellant’s
essential hypertension. Accordingly, his report is of limited probative value.11
As appellant has failed to submit any medical report containing a rationalized medical
opinion showing a causal relationship between her accepted employment incident and the strain
of the left shoulder, type 2 diabetes, or essential hypertension, she has failed to meet her burden
6

J.H., Docket No. 11-933 (issued November 7, 2011).

7

See C.L., Docket No. 17-0249 (issued June 22, 2017).

8

See A.S., Docket No. 15-0696 (issued August 15, 2016).

9

Supra note 8.

10

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

11

G.M., Docket No. 14-2057 (issued May 12, 2015).

4

of proof to establish her claim for these conditions. An award of compensation may not be based
on surmise, conjecture, speculation, or on the employee’s own belief of causal relation.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish additional
conditions causally related to the accepted employment injury of November 17, 2016.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 6, 2017 is affirmed.13
Issued: August 8, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
12

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

13

The record contains a Form CA-16 dated November 8, 2016 and signed by the employing establishment. The
Board has held that where an employing establishment properly executes a Form CA-16, which authorizes medical
treatment as a result of an employee’s claim for an employment-related injury, it creates a contractual obligation,
which does not involve the employee directly, to pay the cost of the examination or treatment regardless of the
action taken on the claim. See D.M., Docket No. 13-0535 (issued June 6, 2013); Val D. Wynn, 40 ECAB
666 (1989). See also 20 C.F.R. § 10.300; Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing
Examination and Treatment, Chapter 3.300.3 (a)(3) (February 2012). Upon return of the case record, OWCP should
address this issue.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Las Vegas, NV, Employer
__________________________________________

)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0280
Issued: June 12, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 27, 2017 appellant, through counsel, filed a timely appeal from an
August 30, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right knee
condition causally related to the accepted January 9, 2016 employment incident.
On appeal counsel contends that OWCP’s decision lacks rationale and is contrary to fact
and law as it failed to properly consider the evidence. He further maintains that it hires physicians
who routinely see patients well after an injury and relies on their reports. Counsel asserts that
“contemporaneous” is not part of the statute.
FACTUAL HISTORY
On February 2, 2016 appellant, then a 60-year-old rural mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on January 9, 2016, she injured her right knee when she stepped
out of a long-life vehicle (LLV) while in the performance of duty. She stopped work on
January 11, 2016 and returned to work on January 18, 2016.
In a February 2, 2016 supplemental statement, appellant indicated that she experienced
right knee pain caused by added volume and heavy packages during the holiday season. She
claimed that she requested January 9, 2016 to be excused from work to rest her knee, but instead
worked due to the employing establishment being overburdened. On that date appellant stepped
out of her truck and “heard a crunch in her knee.” She experienced excruciating pain radiating
throughout the knee area. Appellant hobbled in pain during the rest of her route. On January 13,
2016 she was evaluated by a chiropractor who advised her to stay off her knee for the rest of the
week. When appellant later returned to work, her knee had improved, but was still painful. After
three days, her pain was as bad as her original pain due to climbing in and out of her truck.
Appellant worked on intermittent dates from January 19 to 29, 2016 and sought additional
treatment from her chiropractor during this period.
An undated and unsigned duty status report (Form CA-17) noted a history that on
January 9, 2016 appellant felt a crack in her right knee when she stepped out of her LLV. The
report also noted her usual work requirements.
In a medical report dated February 2, 2016 and physician work activity status report dated
February 4, 2016, Taposhi Swar, a family nurse practitioner, indicated that appellant presented
with a right knee injury sustained on December 15, 2015. She reported having pain since the date
of injury when she stepped down from her truck at work. Ms. Swar provided a review of systems
and findings on physical and x-ray examination. She assessed right knee strain. Ms. Swar advised
that appellant could return to full-time modified work with restrictions as of the date of her
examination.
A February 2, 2016 report from the employing establishment’s health unit noted a history
that on January 9, 2016 appellant injured her right knee when she stepped out of her LLV. The
report also noted her complaint of right knee pain.
By letter dated February 11, 2016, the employing establishment controverted the claim. It
contended that appellant failed to submit evidence sufficient to establish that she sustained an

2

injury in the performance of duty on January 9, 2016. The employing establishment noted that she
was on her scheduled day off from work on the date of the alleged injury. OWCP subsequently
received a February 17, 2016 memorandum which indicated that appellant worked on
January 9, 2016.
OWCP also received a Form CA-17 report dated February 10, 2016 from Dr. Thea M.
Klingberg, a physician specializing in occupational medicine. Dr. Klingberg noted a history that
when appellant stepped out of her LLV on January 9, 2016 she heard a crack in her knee. She
reported examination findings and diagnosed right knee bursitis due to the injury. Dr. Klingberg
noted that appellant could not perform her work duties, but advised that she could return to work
with restrictions as of the date of her examination. In a February 10, 2016 physical work activity
status report, she diagnosed strain of unspecified muscle(s) and tendon(s) and again released
appellant to return to work with restrictions as of that date. Dr. Klingberg, in narrative reports
dated February 10, 17, and 29, 2016 and physician work activity status reports dated February 17
and 22 and March 14 and 17, 2016, examined appellant and restated her prior assessment of right
knee strain, bursitis, strain of unspecified muscle(s) and tendon(s), and pain in unspecified knee.
She also diagnosed internal derangement of the right knee. Dr. Klingberg advised that appellant
could return to full-time modified work with restrictions on each date of her examination.
In a February 16, 2016 letter, appellant refuted the employing establishment’s contention
that she did not sustain an injury in the performance of duty on January 9, 2016. She expressed
dissatisfaction with Ms. Swar’s report.
In a report dated March 16, 2016, Janette W. Powell, appellant’s physical therapist,
addressed the treatment received on that date for her diagnosed strain of unspecified muscle(s) and
tendon(s). She indicated that appellant could return to modified work with restrictions.
OWCP, by development letter dated March 23, 2016, noted that appellant’s claim initially
appeared to be a minor injury that resulted in minimal lost time from work. It had approved a
limited amount of medical expenses without considering the merits of her claim. OWCP reopened
appellant’s claim because her medical bills had exceeded $1,500.00. It requested that she provide
additional factual and medical evidence in support of her traumatic injury claim and afforded her
30 days to respond.
OWCP received a copy of a March 19, 2016 job offer from the employing establishment
for a full-time, light-duty position as a modified regular rural carrier which appellant accepted on
that date.
In a March 14, 2016 Form CA-17 duty status report, Dr. Curtis W. Poindexter, a
physiatrist, noted a history that, on January 9, 2016, appellant heard a crack in her knee when she
stepped out of her LLV. He provided examination findings and diagnosed right knee strain due to
the injury. Dr. Poindexter advised appellant that she could resume her full-time, regular work
duties with restrictions as of the date of his examination.
Reports from Ms. Powell addressed appellant’s right knee treatment from March 16 to 28,
2016 and indicated that she could return to modified-duty work with restrictions.

3

In a right knee magnetic resonance imaging (MRI) scan report dated March 15, 2016,
Dr. Alison M. Nguyen, a Board-certified radiologist, provided an impression of medial meniscal
posterior root ligament deep radial tear, lateral meniscal body superior surface tear, mild chronic
anterior cruciate ligament sprain, mild knee osteoarthrosis with chondral injury of the medial
femoral condyle and patella apex, and small 5 x 1-millimeter loose body along the anteromedial
aspect of the medial femoral condyle located 2 centimeters above the knee joint line.
On April 3, 2016 appellant responded to OWCP’s March 23, 2016 development
questionnaire. She related that the wear and tear on her knees was occupational as her workload
had quadrupled in December and January. Appellant, however, indicated that she sustained a
traumatic injury on January 9, 2016 because of the severity of the injury, a torn meniscus. She
described her symptoms immediately following the January 9, 2016 incident. Appellant related
that she had not sustained any other injury or symptoms prior to the claimed injury. In an April 3,
2016 statement, she contended that Ms. Swar’s report had no probative value as she was not a
physician, the exercises performed by a physical therapist who she had referred her to worsened
her knee condition, and she provided an incorrect date and mechanism of injury. Appellant also
contended that Dr. Klingberg incorrectly noted that she fell out of a bathtub. She asserted that she
slipped while trying to get up, and bumped her knee on the side of the tub.
In an April 18, 2016 Form CA-17 report, Dr. Poindexter reiterated appellant’s history of
injury and his diagnosis of right knee strain. He noted that she had been advised to resume her
regular work duties. In a physician work activity status report also dated April 18, 2016,
Dr. Poindexter diagnosed unspecified internal derangement of the right knee, pain in unspecified
knee, and bursopathy, unspecified. He again advised that appellant could return to regular fullduty work with no restrictions as of that date.
By decision dated April 27, 2016, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record failed to establish that her diagnosed conditions were
causally related to the accepted January 9, 2016 employment incident. It found that her physician
did not provide rationale explaining how or why the diagnosed conditions were causally related to
the accepted work incident.
Michael Foster, a physical therapist, noted in a February 4, 2016 report, a date of injury as
January 8, 2016. He related that appellant felt a sharp pain and crunch in the medial aspect of her
right knee when she stepped down from a mail truck. Mr. Foster discussed examination findings
and diagnosed right knee strain.
In narrative reports dated March 14 and 28, 2016, Dr. Poindexter restated a history of the
January 9, 2016 incident and discussed examination findings. He diagnosed history of right knee
sprain/strain due to activities at work on January 9, 2016, probable right knee degenerative joint
disease, and rule out possible medial meniscus injury or tear. Dr. Poindexter related that appellant
would remain temporarily on light-duty work with restrictions.
On May 25, 2016 appellant requested a review of the written record by an OWCP hearing
representative. In undated statements, she again contended that she sustained a work-related right
knee injury on January 9, 2016. Appellant described her rural carrier work duties.

4

Appellant submitted a February 29, 2016 report in which Dr. Klingberg listed findings on
examination of appellant’s right knee. Dr. Klingberg noted that appellant had not been working.
In reports dated March 14 and 28, 2016, Dr. Poindexter noted examination findings and
provided an impression of history of right knee sprain/strain due to activities at work on January 9,
2016, probable right knee degenerative joint disease, and rule out possible medial meniscus injury
or tear. In the March 14, 2016 report, he recommended that appellant continue to perform
temporary light-duty work with restrictions. On March 28, 2016 Dr. Poindexter released her to
return to full-duty work.
By decision dated November 9, 2016, an OWCP hearing representative affirmed the
April 27, 2016 decision.
A notice of personnel action (PS Form 50) dated October 26, 2016 indicated that
appellant’s last day in pay status was November 23, 2016.
In a March 21, 2017 statement, appellant reiterated her dissatisfaction with Ms. Swar’s
report.
In a Form CA-17 duty status report and physician work activity status report dated
March 28, 2017, Dr. Poindexter restated appellant’s diagnoses of sprain of unspecified site of
unspecified knee, initial encounter, pain in unspecified knee, strain of unspecified muscle and
tendon at right lower leg. He released her to return to regular-duty work on that date.
A February 29, 2016 Form CA-17 report contained an illegible signature. The report
provided a history of the January 9, 2016 employment incident, examination findings, and a
diagnosis of right knee strain without derangement due to injury.
On June 9, 2017 appellant, through counsel, requested reconsideration of the November 9,
2016 decision and submitted additional medical evidence from Dr. Poindexter. In an April 18,
2017 report, Dr. Poindexter reiterated a history of the accepted January 9, 2016 employment
incident. He referenced his prior treatment notes, including an April 18, 2016 note in which he
determined that appellant had reached maximum medical improvement (MMI) and released her to
return to full-duty work with a knee brace if needed and continuation of regular exercise.
Dr. Poindexter also referenced the findings set forth in the March 15, 2016 right knee MRI scan
report. He noted his confusion as to why appellant’s claim had been denied based on her initial
treatment by primary care physicians and subsequent treatment by him, a specialist.
Dr. Poindexter related that there was evidence of preexisting changes in her knee as noted in the
MRI scan ﬁndings, but maintained that these findings would not negate acceptance of a claim for
a knee strain. He concluded by strongly requesting acceptance of appellant’s claim for right knee
strain.
By decision dated August 30, 2017, OWCP denied modification of its November 9, 2016
decision. It found that Dr. Poindexter’s April 18, 2017 report provided neither an opinion
expressed in an affirmative manner nor medical rationale based on a complete and accurate factual
history. OWCP also found that none of the contemporaneous medical evidence contained a
medical opinion establishing a causal relationship between the accepted January 9, 2016 work
incident and appellant’s diagnosed right knee conditions, including right knee sprain.
5

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which he or she claims compensation is causally
related to that employment injury.5
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.6 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7
The second component of fact of injury is whether the employment incident caused a
personal injury and generally can be established only by medical evidence.8 The evidence required
to establish causal relationship is rationalized medical opinion evidence, based upon complete
factual and medical background, showing a causal relationship between the claimed condition and
the identified incident(s).9 The belief of the claimant that a condition was caused or aggravated
by the employment incident, however sincerely held, is insufficient to establish causal
relationship.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right knee
condition caused or aggravated by the accepted January 9, 2016 employment incident.
Appellant submitted a series of reports from Dr. Poindexter. In his April 18, 2017 report,
Dr. Poindexter found that appellant’s right knee strain was caused by the January 9, 2016
employment incident and that her claim should be accepted for this condition. Dr. Poindexter also
noted that while the MRI scan results showed preexisting changes in the knee, these findings did
not preclude acceptance of appellant’s claim for right knee strain. While in general terms,
Dr. Poindexter supported a finding that appellant’s right knee strain was caused by the accepted
3

Supra note 2.

4

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

5

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

6

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

7

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

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

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

10

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

6

employment incident, his opinion was insufficiently rationalized. He did not explain how the
January 9, 2016 work incident caused or aggravated appellant’s diagnosed right knee condition.
Likewise, when he saw appellant on March 14 and April 18, 2016 Dr. Poindexter failed to explain
how appellant’s diagnosed right knee strain and work restrictions were causally related to the
accepted work incident.11 The Board has found that medical evidence is of limited probative value
if it contains a conclusion regarding causal relationship, but does not offer any rationalized medical
explanation on the issue of causal relationship.12 The Board notes that Dr. Poindexter failed to
provide a supported medical opinion. Dr. Poindexter’s remaining reports addressed appellant’s
right knee conditions and work capacity, but failed to offer a specific opinion as to whether her
conditions and work restrictions were caused or aggravated by the accepted work incident.13 For
the reasons stated, the Board finds that Dr. Poindexter’s reports are insufficient to establish
appellant’s burden of proof.
Similarly, Dr. Klingberg’s reports are insufficient to establish appellant’s burden of proof.
In her Form CA-17 reports dated February 10, 2016, she described the January 9, 2016
employment incident, diagnosed right knee bursitis due to the accepted work incident, and found
that appellant could return to work with restrictions. The Board notes that these reports are of
limited probative value with regard to establishing causal relationship because Dr. Klingberg did
not provide any medical rationale in support of her opinion. The Board has held that a report is of
limited probative value regarding causal relationship if it does not contain medical rationale
explaining how an employment activity could have caused or aggravated a diagnosed medical
condition.14 Dr. Klingberg’s other reports addressed appellant’s right knee conditions and work
capacity, but failed to provide a specific opinion as to whether appellant’s conditions and work
restrictions were caused or aggravated by the accepted work incident.15 For the reasons stated, the
Board finds that Dr. Klingberg’s reports are insufficient to establish appellant’s burden of proof.
Dr. Nguyen’s March 15, 2016 MRI scan report, which addressed appellant’s right knee
conditions, is of limited probative value as she simply performed a diagnostic test and did not
address history of injury16 or offer a specific opinion as to whether the accepted employment
incident caused or aggravated appellant’s conditions.17

11

Id.

12

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., id.; A.D., id. (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
14

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

15

See cases cited supra note 12.

16

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little probative
value).
17

See cases cited supra note 12.

7

The employing establishment health unit report dated February 2, 2016 described the
January 9, 2016 employment incident and diagnosed right knee pain. The Board notes that this
evidence failed to provide a firm medical diagnosis as it only diagnosed right knee pain. The
Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis.18
Thus, this report is insufficient to establish causal relationship.
The reports from Ms. Swar, a nurse practitioner, and Ms. Powell and Mr. Foster, physical
therapists, have no probative medical value. Neither nurse practitioners, nor a physical therapists,
are considered physicians as defined under FECA and, therefore, their opinions are of no probative
medical value.19
An undated and unsigned Form CA-17 duty status report noted a history of the accepted
January 9, 2016 employment incident, and a February 29, 2016 Form CA-17 report from a
physician with an illegible signature diagnosed right knee strain without derangement due the
accepted work incident. The Board has held that unsigned reports and reports that bear illegible
signatures cannot be considered probative medical evidence because they lack proper
identification.20 Thus, these reports are of no probative value.
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish a right knee condition causally related to her employment on
January 9, 2016. Appellant therefore did not meet her burden of proof.
On appeal counsel contends that “OWCP’s decision lacks rationale and does not properly
consider the evidence. OWCP hired doctors who routinely see patients well after an injury. Their
report are relied upon. ‘Contemporaneous’ is not part of the statute. Thus, is contrary to law or
fact.”
Contrary to counsel’s vacuous contentions, OWCP considered the medical evidence
relevant to causal relationship and clearly explained the reasons why it found the medical evidence
submitted by appellant insufficient to establish that she sustained a right knee condition causally
related to the accepted January 9, 2016 employment incident.
Counsel argued that OWCP hires physicians who routinely see patients well after an injury
and relies on their reports. The Board notes that in this case, OWCP did not refer appellant to any
physician for a second opinion or an impartial medical examination. As such, this argument is
totally irrelevant and completely without merit.

18

C.F., Docket No. 08-1102 (issued October 10, 2008).

19
5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
See G.A., Docket No. 09-2153 (issued June 10, 2010) (nurse practitioner); Jennifer L. Sharp, 48 ECAB 209 (1996)
(physical therapist); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).
20

See R.M., 59 ECAB 690 (2008); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB 357 (1991).

8

Counsel also contends that the term “contemporaneous” is not a part of the statute. The
Board is unable to decipher such a claim as the term has no bearing on any aspect of the case at
bar.
Lastly counsel contends that the decision below is contrary to law or fact. Such broad
claim without proof fails on the same grounds as outlined above.
Thus, the Board finds that counsel’s contentions are wholly unsubstantiated.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right knee
condition causally related to the accepted January 9, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2018
Washington, DC

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

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

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

9