United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.G., Appellant
and
U.S. POSTAL SERVICE, DOWNTOWN
DELIVERY ANNEX, Baltimore, MD, Employer
__________________________________________

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

Docket No. 14-401
Issued: June 16, 2014

Case Submitted on the Record

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

JURISDICTION
On December 10, 2013 appellant, through his attorney, filed a timely appeal from an
October 24, 2013 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 had any employment-related residuals or disability
commencing September 16, 2009, causally related to the May 19, 2006 employment injury.
On appeal appellant, through counsel, argues that OWCP’s decision is contrary to fact
and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The Board affirmed OWCP’s
termination of appellant’s benefits on September 16, 2009 and its determination that he did not
establish any continuing residuals from his accepted employment-related neck and lumbar strain
after that date. The Board noted that the medical evidence was not sufficient to overcome the
special weight accorded to the impartial medical examiner, Dr. Olumuyia Paul, a Board-certified
orthopedic surgeon. The facts as set forth in the Board’s prior decisions are herein incorporated
by reference.3
On July 9, 2013 appellant, through counsel, requested reconsideration. In an April 26,
2013 report, Dr. Philip B. Bovell, an orthopedic surgeon, noted that, since his last report of
September 15, 2010, appellant returned to his medical office complaining of multiple problems
and issues with regard to his workers’ compensation injury. On examination, appellant
complained of pain over his neck, back, both carpal tunnel areas and the shoulders. Dr. Bovell
noted that appellant was still in treatment and that follow up would be necessary.
Appellant also submitted an April 24, 2013 report wherein Dr. Leonid Selya, a Boardcertified orthopedic surgeon, who listed impressions of degenerative cervical spinal disease at
C4-5, autofusion at C5-6 and C6-7, cervical myelopathy and radiculopathies, central cord
stimulation ruled out. In a May 8, 2013 report, Dr. Selya listed his impressions as advanced
degenerative cervical spinal disease C4-5 and C5-6, C6-7, cervical radiculopathy and
myelopathy. He recommended that appellant be managed nonsurgically with therapy and
injections. On August 29, 2013 Dr. Selya stated that his practice had treated appellant since
April 2013 for aggressive degenerative changes at the C4 through C7 interspace associated with
autofusion at C5-6 and C6-7. He also noted diagnoses of degenerative changes and stenotic
changes in the low back area and indicated that appellant received a series of epidural injections
which helped to reduce his symptoms to a certain degree. Dr. Selya stated that appellant’s
trouble started after an injury he sustained at work in 2006, and that after his injury he developed
problems with his neck, low back and both shoulders and head. He concluded that historically
and medically, appellant’s condition is due to the injury he sustained at work on May 19, 2006,
which resulted in aggravation of degenerative changes, onset of stenotic changes and aggressive
low back and extremity symptoms.
In an October 24, 2013 decision, OWCP denied modification of its October 20, 2011
decision.

2

Id.

3

Docket No. 09-88 (issued June 23, 2009); Docket No. 12-230 (issued September 10, 2012). On May 20, 2006
appellant, then a 57-year-old city letter carrier, filed a traumatic injury claim alleging that on May 19, 2006 he
sustained head and neck pain after a vehicle door hit his head. OWCP accepted his claim for neck and lumbar strain
sustained on May 19, 2006 during his federal employment.

2

LEGAL PRECEDENT
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.4 To establish causal
relationship between the claimed disability and the employment injury, appellant must submit
rationalized medical opinion evidence based on a complete factual and medical background
supporting such a causal relationship.5
The medical evidence required to establish a causal relationship is rationalized medical
opinion 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
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.6
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.8
ANALYSIS
The Board finds that appellant again has not established that he had any continuing
disability or residuals of his accepted employment-related lumbar and cervical strains on or after
September 16, 2009, causally related to the May 19, 2006 employment injury.
The Board notes that Dr. Bovell was on one side of the conflict in medical resolved by
Dr. Paul regarding the residuals from appellant’s accepted injury. Dr. Bovell’s report was very
similar to his prior reports of record. He did not present new findings or rationale to support his
opinion.9 A medical report from a physician on one side of a conflict resolved by an impartial
medical examiner is generally insufficient to overcome the weight accorded the report of an
impartial medical examiner or to create a new conflict.10 Dr. Selya opined that appellant’s
4

20 C.F.R. § 10.5(f).

5

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

6

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

See Manuel Gill, 52 ECAB 282 (2001); see also M.C., Docket No. 14-283 (issued April 28, 2014).

9

See T.B., Docket No. 13-799 (issued March 5, 2014); I.J., Docket No. 59 ECAB 408 (2008).

10

See R.A., Docket No. 13-1650 (issued February 10, 2014); Jaja K. Asaramo, 55 ECAB 200 (2004).

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medical conditions were historically and medically due to the employment injury of
May 19, 2006. He explained that appellant’s employment injury resulted in the aggravation of
degenerative changes, onset of stenotic changes and aggressive low back and extremity
symptoms. Dr. Selya provided only a conclusory statement on causal relationship without
providing medical reasoning or rationale to support his opinion. The Board has found that vague
and unrationalized medical opinions on causal relationship have little probative value.11
Accordingly, the Board finds that appellant failed to submit a report from a physician that
establishes continuing employment-related residuals or disability after September 16, 2009.
CONCLUSION
The Board finds that appellant did not have any continuing employment-related residuals
or disability after September 16, 2009, causally related to the May 19, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 24, 2013 is affirmed.
Issued: June 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

See Theron J. Barham, 34 ECAB 1070 (1983); see also L.C., Docket No. 12-1177 (issued August 19, 2013).

4


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

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

Docket No. 07-1530
Issued: November 7, 2007

Case Submitted on the Record

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

JURISDICTION
On May 16, 2007 appellant filed a timely appeal from a February 23, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. As there is no merit decision of the Office within one year of the filing of this
appeal, the Board lacks jurisdiction to review the merits of this case. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the February 23, 2007 nonmerit decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review of
his claim pursuant to 5 U.S.C. § 8128.

1

The Office initially sent the February 23, 2007 decision to an incorrect address; however, appellant indicated on
appeal that he received a copy of the decision in April 2007.

FACTUAL HISTORY
This case is before the Board for the fourth time. On May 1, 2003 the Board set aside a
July 16, 2001 decision denying appellant’s request for reconsideration under section 8128. The
Board remanded the case for the Office to consider whether he refused an offer of suitable
work.2 In a decision dated October 27, 2004, the Board affirmed an October 31, 2003 decision
denying modification of its termination of appellant’s compensation for refusing suitable work
under 5 U.S.C. § 8106.3 By decision dated March 2, 2006, the Board affirmed a July 6, 2005
decision denying his request for review of the merits of his claim under section 8128.4 The
findings of fact and conclusions of law from the prior decisions are hereby incorporated by
reference.
On January 30, 2007 appellant again requested reconsideration. He asserted that the
Office did not meet its burden of proof to terminate his compensation benefits for refusing
suitable work. Appellant alleged that the employing establishment did not notify him that it had
modified the job offer based on the recommendations of Dr. Richard A. Geline, a Board-certified
orthopedic surgeon and impartial medical examiner. He noted that Dr. Rokshana Zaheen, his
attending Board-certified family practitioner, found that he was unable to work. Appellant
further challenged the Office’s authority to refer him to Dr. Danilo V. Domingo, a Boardcertified psychiatrist, for a second opinion examination. He asserted that Dr. Domingo falsely
indicated that he had a history of drug use.
By decision dated February 23, 2007, the Office denied appellant’s request for
reconsideration on the grounds that he did not specify the basis for his request and did not submit
evidence or argument sufficient to warrant merit review of his claim.5
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,6 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her

2

Docket No. 02-1027 (issued May 1, 2003).

3

Docket No. 04-805 (issued October 27, 2004).

4

Docket No. 06-16 (issued March 2, 2006). The Board further denied appellant’s petition for reconsideration.
Order Denying Petition for Reconsideration, Docket No. 06-16 (issued July 18, 2006).
5

See 20 C.F.R. §§ 501.2(c), 501.3.

6

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
7

20 C.F.R. § 10.606(b)(2).

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application for review within one year of the date of that decision.8 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.10 The Board has held
that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.11 While the reopening of a case may be predicated solely
on a legal premise not previously considered, such reopening is not required where the legal
contention does not have a reasonable color of validity.12
ANALYSIS
The Board affirmed the Office’s termination of appellant’s compensation benefits on the
grounds that he refused an offer of suitable work under section 8106(c).13 In his request for
reconsideration, he contended that the Office improperly terminated his compensation as the
employing establishment did not inform him that it modified the job offer based on the opinion
of the impartial medical examiner. Appellant also noted that Dr. Zaheen found that he was
totally disabled from employment. As the Board previously affirmed the Office’s termination of
his compensation under section 8106, the issue is res judicata and not subject to further
consideration by the Board.14
Appellant further argued that the Office did not have the authority to refer him for a
second opinion examination with Dr. Domingo. He asserted that only the employing
establishment could require fitness-for-duty examinations. The Office, however, has the
authority to order examinations of an injured employee as frequently and at such times and
places as may be reasonably required.15 Consequently, appellant’s argument does not have a
reasonable color of validity such that it would warrant reopening his case for merit review.16
Appellant also argued that Dr. Domingo erroneously referred to a history of drug use. As
discussed by the Board on prior appeal, this contention is not relevant to the issue of the
8

20 C.F.R. § 10.607(a).

9

20 C.F.R. § 10.608(b).

10

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

11

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

12

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

13

See supra note 3.

14

See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

15

See 5 U.S.C. § 8123(a); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Second Opinion
Examinations, Chapter 3.500.3 (March 1994).
16

Elaine M. Borghini, 57 ECAB ___ (Docket No. 05-1102, issued May 3, 2006).

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termination of his compensation under section 8106. The submission of evidence or argument
which does not address the particular issue involved does not constitute a basis for reopening a
case.17
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As he did not meet any of the necessary
regulatory requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for merit review of
his claim pursuant to 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 23, 2007 is affirmed.
Issued: November 7, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

Judy L. Kahn, 53 ECAB 321 (2002).

4


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

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

Docket No. 11-220
Issued: September 21, 2012

Case Submitted on the Record

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

JURISDICTION
On November 1, 2010 appellant, through his representative, filed a timely appeal from a
July 21, 2010 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 met his burden of proof to establish that a July 30, 2009
wage-earning capacity decision should be modified.
On appeal, appellant’s representative asserts that the wage-earning capacity decision was
issued in error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On June 9, 2003 appellant, then a 33-year-old mail carrier, had right foot pain while
delivering mail. The claim was accepted for bilateral plantar fasciitis and tarsal tunnel
syndrome. Dr. John Ambrosino, a podiatrist, performed right lower extremity decompressive
surgery on June 10, 2004 and right foot plantar fascial release on October 28, 2004. Appellant
returned to modified duty for five hours daily on July 27, 2005 and began working eight hours of
modified-duty daily on July 21, 2007.2 He missed intermittent periods thereafter.
In duty status reports dated March 10 and April 4, 2008, Dr. Ambrosino advised that
appellant could return to work on March 1, 2008 and provided restrictions to his physical
activity. Appellant accepted a modified assignment and returned to full-time duty on
April 2, 2008.3 On July 22, 2008 the employing establishment offered him a position casing
mail for eight hours daily, to sit and stand as needed, using hands. The position description
indicated that appellant was to case mail for four hours intermittently, process undeliverable mail
for three hours intermittently and deliver mail for one hour intermittently. Appellant was
physically restricted to standing, bending, pushing and pulling intermittently for 1.5 hours,
walking intermittently for 1 hour, climbing intermittently for 1.5 hour and driving and operating
machinery intermittently for 4 hours. A second July 22, 2008 job offer, signed by a supervisor
that day, indicated that he was to case mail as assigned, with sitting and standing as needed using
hands, for three hours daily and was to sit for five hours. Appellant accepted the revised job
description but did not date it.
Appellant was again off work for the period July 25 to August 23, 2008. On August 18,
2008 Kim Page, a vocational rehabilitation counselor assigned to the case, advised that the
employing establishment informed her that appellant had a new job offer to case mail for two
hours daily and sit on a stool for the rest of the day doing nothing.
In October 2008, OWCP referred appellant to Dr. Kevin F. Hanley, Board-certified is
orthopedic surgery, for a second-opinion evaluation. In an October 22, 2008 report,4 Dr. Hanley
noted the history of injury and his review of the medical record. He provided physical
examination findings and diagnosed tarsal tunnel syndrome, right, surgically treated, with
residual symptomatic neuritis of the posterior tibial nerve; bilateral plantar fasciitis; and tarsal
tunnel syndrome, left, untreated, all of which were related to the cumulative activities of
appellant’s mail carrier position. Dr. Hanley indicated that appellant continued to have residuals
2

In a December 26, 2006 report, Dr. Arthur M. Auerbach, a Board-certified orthopedist who provided a
second-opinion evaluation for OWCP, diagnosed history of bilateral plantar fasciitis and tarsal tunnel syndrome with
residuals including chronic pain syndrome of the right foot and ankle, due to the employment injury. He advised
that appellant could work 8 hours daily with permanent restrictions on standing and walking of 1.5 hours daily,
operating a motor vehicle for 4 hours daily and no squatting or climbing.
3

The position description indicated that appellant was to case mail for four hours intermittently, process
undeliverable mail for three hours intermittently and deliver mail for one-hour intermittently. He was physically
restricted to standing, bending, pushing and pulling intermittently for 1.5 hours, walking intermittently for 1 hour,
climbing intermittently for .5 hours and driving and operating machinery intermittently for 4 hours.
4

Dr. Hanley’s report is dated August 27, 2008. However, he stated in the report that he evaluated appellant on
October 22, 2008.

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of significant sensitivity about the released nerves and appeared to be in the early phases of a
complex regional pain syndrome. He recommended pain management and advised that appellant
could work eight hours a day with weight-bearing limited to two hours daily and intermittent
breaks. Lifting was restricted to 30 pounds.
On February 20, 2009 Dr. Ambrosino advised that appellant could perform sedentary
work for 8 hours daily with climbing limited to 0.5 hours daily; driving, walking, lifting and
squatting restricted to 1-hour daily; standing, bending, stooping, pushing and pulling to 1.5 hours
daily; and kneeling to 2 hours daily with a 35 pound weight restriction.
On July 9, 2009 the employing establishment informed OWCP that appellant was
working, based on the July 22, 2008 job offer, at an annual salary of $51,466.00 and noted that
the current salary for his date-of-injury position was $46,920.00.
In a July 30, 2009 decision, OWCP noted that appellant was reemployed as a modified
carrier, effective July 22, 2008. It found that his actual earnings represented his wage-earning
capacity with zero loss. On August 17, 2009 the employing establishment removed appellant
from his bid position at route number 11003, effective August 22, 2009 and on October 23, 2009,
informed him that, following guidelines set forth by the National Reassessment Process (NRP), it
did not have limited duty within his medical restrictions.
Appellant filed Form CA-7, claims for compensation, beginning on October 24, 2009.5
On November 30, 2009 OWCP informed him of the requirements for modifying a wage-earning
capacity determination. On December 29, 2009 appellant asserted that the July 30, 2009
wage-earning capacity decision was in error.
In a January 28, 2010 decision, OWCP denied modification of the July 30, 2009
wage-earning capacity decision and denied the wage-loss claim beginning October 24, 2009.
Appellant timely requested a hearing. He submitted additional evidence including a
February 19, 2008 employing establishment memorandum regarding nonproductive limited duty
and a grievance settlement regarding an August 27, 2009 removal. A February 16, 2010 equal
employment opportunity (EEO) notice of right to file in a mixed case regarding appellant’s
removal under NRP informed him that he could file an appeal with the Merit Systems Protection
Board or, in the alternative, file a formal EEO complaint of discrimination with the employing
establishment. In treatment notes dated December 2, 2009 to June 21, 2010, Dr. Ambrosino
described appellant’s condition. He noted that appellant stopped work on October 23, 2009.
Dr. Ambrosino provided no additional restrictions.
At the hearing, held telephonically on May 24, 2010, counsel asserted that the modified
position, on which the wage-earning capacity determination was based, indicated that appellant’s
position was not a real job because he was performing no work at all for five hours a day. Thus,
5

In July 2009, OWCP referred appellant to Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon, for an
impairment rating. In an August 3, 2009 report, Dr. Swartz advised that appellant had three percent impairment of
the right leg and one percent impairment on the left. On November 9, 2009 appellant was granted a schedule award
for three percent impairment of the right leg and one percent impairment on the left.

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the position was, in actuality, only a three-hour a day job, which was part-time and sheltered and
therefore the wage-earning capacity determination was in error. On June 2, 2010 OWCP’s
hearing representative provided the employing establishment a copy of the hearing transcript and
allowed it 20 days to submit comments or additional evidence.
By decision dated July 21, 2010, OWCP’s hearing representative affirmed the
January 28, 2010 decision.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal loss of
wage-earning capacity decision has been issued, OWCP must develop the evidence to determine
whether a modification of that decision is appropriate.8
ANALYSIS
The Board finds this case is not in posture for decision. OWCP accepted that appellant
sustained bilateral plantar fasciitis and tarsal tunnel syndrome and he underwent surgery on his
feet on June 10 and October 28, 2004. Appellant returned to a modified carrier position in 2005.
On July 22, 2008 the employing establishment offered a modified position that he accepted. In a
July 30, 2009 decision, OWCP found that appellant’s actual earnings effective July 22, 2008
represented his wage-earning capacity with zero loss.
Appellant continued to work full-time in the modified position until October 23, 2009
when the employing establishment sent him home as part of NRP, after determining that it did
not have limited duty within his medical restrictions. He filed claims for wage loss beginning
October 24, 2009, based on the withdrawal of his modified position under NRP. Appellant
argued on appeal that the wage-earning capacity decision was in error.
As noted above, OWCP issued a formal loss of wage-earning capacity decision on
July 30, 2009. The employing establishment reassessed appellant’s rated position under NRP.
This resulted in a withdrawal of appellant’s modified duty, and he filed claims for wage-loss
compensation beginning October 24, 2009.

6

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

7

Id.

8

FECA Bulletin No. 09-05 (issued August 18, 2009).

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When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.9 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals, and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.10
Further, FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating, and
to direct the employing establishment to review its files for contemporaneous evidence
concerning the position.11
In the case at hand, while OWCP’s hearing representative referred to FECA Bulletin No.
09-05 in the July 21, 2010 decision, the Board finds that he did not adequately explore the
medical evidence under the standard described above, i.e., whether a current medical report
supports work-related disability and establishes that the current need for limited duty or medical
treatment is a result of injury-related residuals.
As OWCP failed to fully follow the guidelines in FECA Bulletin No. 09-05, the Board
will set aside the July 21, 2010 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning
October 24, 2009.12
CONCLUSION
The Board finds this case not in posture for decision.

9

Id.

10

Id. at §§ I.A.1-2

11

Id. at § I.A.3.

12

See M.E., Docket No. 11-1416 (issued May 17, 2012).

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ORDER
IT IS HEREBY ORDERED THAT the July 21, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 21, 2012
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waterloo, IA, Employer
__________________________________________

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

Docket No. 07-2036
Issued: March 6, 2008

Oral Argument January 23, 2008

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 30, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 13, 2006, denying the claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a neurological condition causally related to
a November 26, 2001 influenza vaccine received at the employing establishment.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated January 27, 2005,
the Board found that a conflict existed in the medical evidence regarding causal relationship
between a diagnosed condition and the influenza vaccine. An Office medical adviser, Dr. Daniel
D. Zimmerman, opined that there was no causal relationship between a diagnosed Guillain-Barr
syndrome or chronic inflammatory demyelinating polyneuropathy (CIDP) and the influenza

vaccine. An attending physician, Dr. Alan Fink, opined that appellant’s neurological symptoms
were related to the November 26, 2001 vaccine. The case was remanded for resolution of the
conflict pursuant to 5 U.S.C. § 8123(a). The history of the case is provided in the Board’s prior
decision and is incorporated herein by reference.
The Office referred appellant for examination by Dr. Steven Adelman, a Board-certified
neurologist. In a report dated September 2, 2005, Dr. Adelman provided a history and results on
examination. He stated that Guillain-Barr syndrome and CIDP were immune medicated
neuropathies involving the immune system attacking the bodies own cells and producing
symptoms. Dr. Adelman indicated that viral or bacterial infection may trigger an immune
system response and he noted that in 1976 the swine flu vaccine was associated with a higher
incidence of Guillain-Barr syndrome. Dr. Adelman concluded, “In answer to the question posed
to me certainly this is not an unequivocal correlation but given the time frame of [appellant’s]
influenza vaccine followed within two to three weeks by neurologic illness it does raise what I
believe to be a probability.”
The report of Dr. Adelman was referred to Dr. Zimmerman, the Office medical adviser
previously involved in the case. In a report dated October 16, 2005, Dr. Zimmerman stated that
there had never been a higher incidence of Guillain-Barr syndrome associated with an influenza
vaccine since 1976 to 1977. He asserted that the lack of statistical relationship between the 2001
vaccine and Guillain-Barr syndrome required that the Office “reject the speculative opinion”
from Dr. Adelman.
Following receipt of Dr. Zimmerman’s report, the Office requested clarification from
Dr. Adelman. It specific questions to Dr. Adelman regarding current statistical findings of a
relationship between the 2001 vaccine and Guillain-Barr syndrome, other possible relationships
associated with Guillain-Barr syndrome, the existence of a diagnostic assessment to determine
causal relationship and the presence of objective findings in this case to support causal
relationship. Dr. Adelman responded in a November 21, 2005 report that a search of the Center
for Disease Control website did not reveal any responses regarding flu vaccine in 2001 and
Guillain-Barr syndrome. He stated other relationships included a variety of infectious agents,
such as Epstein Barr and human immunodeficiency virus, but appellant’s history did not indicate
these were relevant. Dr. Adelman stated that there were no diagnostic assessments to determine
causal relationship. Dr. Zimmerman stated that there were no objective findings specific to this
incident of flu vaccination. Dr. Adelman concluded, “As well as within a ‘reasonable degree of
medical certainty,’ I do not believe that his Guillain-Barr syndrome and subsequent CIDP was
related to his flu vaccination of 2001.”
By decision dated December 12, 2005, the Office denied the claim for compensation. It
found that the weight of the evidence was represented by the November 21, 2005 report from
Dr. Adelman. Appellant requested a hearing before an Office hearing representative which was
held on June 28, 2006. By decision dated September 13, 2006, the Office hearing representative
affirmed the December 12, 2005 decision.

2

LEGAL PRECEDENT
With respect to review of medical reports by an Office medical adviser, the Office’s
procedures state, “No report which addresses a conflict should be reviewed by a DMA [district
medical adviser] who was involved in creating the conflict since bias might be inferred from this
action. Arrangements must be made to have another DMA or a physician acting as a consultant
to the Office review the file.”1
ANALYSIS
In this case, there was a conflict between an Office medical adviser, Dr. Zimmerman, and
an attending physician, Dr. Fink.2 As noted above, Office procedures clearly state that, if an
Office medical adviser is involved in creating the conflict, the medical adviser should not review
the impartial medical specialist’s report. When the Office received a medical report from the
physician selected as an impartial medical specialist, Dr. Adelman, it should not have been sent
for review by Dr. Zimmerman. Since Dr. Zimmerman was on one side of the conflict, he should
not have been involved in any further review of the medical evidence.
The Board has recognized that, when a medical report is improperly obtained, it must be
excluded from the record. For example, medical reports obtained through telephone contact by
the Office is excluded from the record,3 as is reports from a second referee when the original
impartial medical specialist should have been asked for clarification.4 The Office’s procedure
manual also recognizes that a report from a physician selected as a referee who regularly
performs fitness-for-duty examinations for the employing establishment should be excluded, as
well as reports from physicians provided with “leading questions” by the Office.5 The Board
finds that the October 16, 2005 report from Dr. Zimmerman was improperly obtained and must
be excluded from the record.
Moreover, the November 21, 2005 report from Dr. Adelman must be excluded. The
claims examiner clearly relied on the medical adviser’s October 16, 2005 report in seeking
clarification and posing specific questions to Dr. Adelman. He asked, for example, that
Dr. Adelman discuss current statistical findings between the 2001 vaccine and Guillain-Barr
syndrome, an issue that was discussed at length by the Office medical adviser. The claims
1

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.5c (March 1994).

2

The Federal Employees’ Compensation Act provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary shall appoint a third
physician who shall make the examination. 5 U.S.C. § 8123(a). The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion of either a second
opinion physician or an Office medical adviser, the Office shall appoint a third physician to make an examination.
This is called a referee examination and the Office will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case. 20 C.F.R. § 10.321 (1999).
3

See Carlton L. Owens, 36 ECAB 608 (1985).

4

Joseph R. Alsing, 39 ECAB 1012 (1988).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.6
(September 1995).

3

examiner based his request for clarification on the improperly obtained report from the Office
medical adviser. Accordingly, both the Office medical adviser’s report and the supplemental
report from Dr. Adelman will be excluded from the record.
The Board also notes that the October 16, 2005 report from the Office medical adviser
included additional violations of Office procedures. It is well established that an Office medical
adviser should not comment “that the report fails to address or resolve the issue or that the
opinion is speculative.”6 The Board has held that on Office medical adviser’s role is not to act in
an adjudicatory capacity, but to address medical questions.7 A medical adviser should not offer
opinions as to whether a claim or condition should be accepted or rejected. In this case, the
medical adviser’s opinion that the Office should “reject the speculative opinion” of Dr. Adelman
was not in accord with Office procedures and the proper role of an Office medical adviser.
Since the October 16, 2005 report from the medical adviser and the November 21, 2005
report from Dr. Adelman are excluded from the record, this leaves only the September 2, 2005
report from Dr. Adelman for consideration. While appellant urges the Board to consider this
report the weight of the evidence, it finds that it is of diminished probative value. Dr. Adelman
did not provide a rationalized medical opinion on this issue. He referred to the “probability” of
causal relationship, without providing medical rationale. A temporal relationship does not itself
provide medical rationale.8
The case will accordingly be remanded to the Office for further development. The Office
should select a new referee physician and secure a rationalized medical opinion on the issue
presented. After such further development as the Office deems necessary, it should issue an
appropriate decision.
CONCLUSION
The October 16, 2005 report from the Office medical adviser and the November 21, 2005
report from the referee physician were improperly obtained and must be excluded from the
record. The case will be remanded for referral to a new referee physician to properly resolve the
conflict in the medical evidence.

6

Id. at Chapter 3.500.5c.

7

Carlton R. Owens, supra note 3.

8

See Thomas D. Petrylak, 39 ECAB 276, 281 (1987).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 13, 2006 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: March 6, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 10-658
Issued: October 26, 2010

Case Submitted on the Record

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

JURISDICTION
On January 13, 2010 appellant filed a timely appeal from the September 28, 2009 merit
decision of the Office of Workers’ Compensation Programs denying his occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty.
FACTUAL HISTORY
On August 13, 2009 appellant, then a 60-year-old depot maintenance analyst, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss as a result of
employment-related noise exposure. His duties involved working around air hammers, rivet
guns, generators and noise emitting machines. Appellant first became aware of his claimed
condition on December 8, 2008, when he received the results of an audiogram.

By letter dated August 21, 2009, the Office informed appellant that the information
submitted was insufficient to establish his claim and requested additional factual and medical
evidence.
On September 28, 2009 appellant submitted a December 8, 2008 audiogram, which
revealed hearing thresholds of 15, 10, 15 and 15 decibels on the left and 15, 15, 10 and 25
decibels on the right at 500, 1,000, 2,000 and 3,000 cycles per second. The report noted that he
had a severe bilateral high frequency hearing loss. Appellant also provided a September 1, 2009
memorandum from the Air Force bioenvironmental engineering deputy summarizing appellant’s
work history exposure; the Air Force standard core personnel document describing his position
and the physical requirements for duty; August 28 and September 1, 2009 statements regarding
his condition from the employer; a memorandum from the Air Force audiology air commander
dated September 1, 2009 and a ROSHA Form 301 incident report.
By decision dated September 28, 2009, the Office denied appellant’s claim on the
grounds that the evidence was insufficient to establish the injury as alleged. It found that he had
not submitted any evidence or information in response to the Office’s August 21, 2009 letter.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or occupational
disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.5

1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyet, 41 ECAB 992 (1990).

5

Id.

2

The Act6 provides that the Office shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as the Office considers necessary with respect
to the claim.7 Since the Board’s jurisdiction of a case is limited to reviewing the evidence which
was before the Office at the time of its final decision,8 it is necessary that the Office review all
evidence submitted by a claimant and received by the Office prior to the issuance of its final
decision. As Board decisions are final as to the subject matter appealed,9 it is crucial that all of
the evidence relevant to that subject matter which was properly submitted to the Office prior to
the time of issuance of its final decision be addressed by the Office.10
ANALYSIS
The Board finds that this case is not in posture for a decision regarding whether appellant
sustained an injury in the performance of duty, as the Office failed to review and consider all
evidence of record prior to issuing its September 28, 2009 decision. Therefore, the case must be
remanded for a merit review of all evidence received and an appropriate final decision.
In its August 21, 2009 development letter, the Office provided appellant 30 days to
submit additional factual and medical information. In its September 28, 2009 denial of his claim,
the Office stated that it had received no further evidence from appellant in response to its
August 21, 2009 development letter. However, the record reflects that the Office received new
factual and medical evidence from appellant on September 28, 2009, the day the decision was
issued. The Office received a September 1, 2009 letter summarizing appellant’s work history
exposure from the Air Force bioenvironmental engineering deputy, a November 6, 1998 Air
Force standard core personnel document, August 28 and September 1, 2009 statements from the
employing establishment regarding his condition, a ROSHA Form 301 incident report and a
September 1, 2009 memorandum from the Air Force audiology air commander along with
appellant’s hearing test results.
The Office is required to review all evidence submitted by a claimant and received by the
Office prior to the issuance of its final decision, including evidence received on the date of the
decision.11 It makes no difference that the claims examiner may not have been directly in
possession of the evidence. Indeed, Board precedent envisions evidence received by the Office
but not yet associated with the case record when the final decision is issued.12 In the instant case,
6

5 U.S.C. § 8101 et seq.

7

Id. at § 8124(a)(2); 20 C.F.R. § 10.130.

8

See 20 C.F.R. § 501.2(c).

9

Id. at § 501.6(c).

10

William A. Couch, 41 ECAB 548 (1990)

11

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, id. (the Office did not consider new
evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994) (applying
Couch where the Office did not consider a medical report received on the date of its decision).
12

See Yvette N. Davis, id.

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the Office was apparently unaware that appellant had submitted additional evidence in response
to the August 21, 2009 development letter and, therefore, did not review or consider such
evidence prior to issuing its final decision.
The Board, therefore, will set aside the September 28, 2009 decision and remand the case
to the Office to fully consider the evidence which was properly submitted by appellant prior to
the September 28, 2009 decision.
CONCLUSION
The Board finds that this case is not in posture for a decision on whether appellant
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the Office’s September 28, 2009 decision is set
aside and the case remanded for further action consistent with this decision.
Issued: October 26, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belleville, MI, Employer
__________________________________________

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Appearances:
Steven H. Stilman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-57
Issued: July 18, 2007

Case Submitted on the Record

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

JURISDICTION
On October 5, 2006 appellant, through her attorney, filed a timely appeal of the Office of
Workers’ Compensation Programs’ merit decision dated July 10, 2006 finding that she had not
established an emotional condition causally related to her federal employment. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed an emotional condition due to factors of her federal employment.
FACTUAL HISTORY
On July 20, 1999 appellant, then a 41-year-old distribution clerk, filed a traumatic injury
claim alleging that due to sexual and nonsexual harassment by supervisors and coworkers she
sustained stress, anxiety and fear. She stopped work on May 28, 1999. In a note dated May 28,
1999, Dr. Leon McDougle, a Board-certified family practitioner, indicated that appellant was
totally disabled until June 16, 1999 due to work-related stress and anxiety. On June 29, 1999 he

indicated that appellant’s disability continued through August 20, 1999.
establishment controverted appellant’s claim on July 30, 1999.

The employing

In a letter dated August 5, 1999, the Office requested additional factual and medical
information from appellant. The Office noted that appellant submitted disability slips from
Dr. McDougle and a July 26, 1999 statement from Raymond Baert, appellant’s supervisor.
Appellant submitted a letter of warning dated June 16, 1995 asserting that she failed to account
for a registered letter. The letter of warning was reduced on August 24, 1995. The employing
establishment issued a letter of removal on September 24, 1999 effective November 5, 1999.
Appellant filed an Equal Employment Opportunity (EEO) complaint and alleged that she
had a dispute over the mail with her coworker Robin Ely on May 26, 1999. She contended that
Postmaster Carol Betchel yelled at her. Appellant alleged that Mr. Baert had humiliated and
embarrassed her in front of another employee.
Debra S. Ely, a letter carrier at the employing establishment, denied ever witnessing any
inappropriate contact or actions between appellant and Mr. Baert, supervisor of customer
services.
By decision dated September 7, 1999, the Office denied appellant’s claim for an
emotional condition finding that she failed to substantiate a compensable factor of employment.
Dr. Sudhir Lingnurkar, a physician, completed a note on April 25, 2000. It was his
opinion that appellant was unable to return to work.
In a statement dated September 6, 2000, Mr. Baert denied ever touching appellant’s back
or whispering in her ear. He never asked appellant out to dinner and had never stroked her hair.
Mr. Baert stated that he generally shook the employees’ hands when he came into work, but
denied rubbing his fingers in the palm of her hand. He stated, “It may be true that I held the
claimant’s hand and walked her over to her assignment on the floor.” Mr. Baert denied any
sexual conversations in the swing room other than appellant’s discussion of her honeymoon. On
September 26, 2000 he denied touching appellant’s back with his chest when standing behind her
to observe her sorting letters and working dispatch. Mr. Baert noted that it may have appeared
that he was whispering in appellant’s ear when he was speaking softly to her while giving her
instructions on her next work assignment.
In a letter dated September 13, 2000, the Office requested additional information in
support of appellant’s September 6, 2000 reconsideration request.
On October 10, 2000 appellant stated that she had filed a complaint with the EEO
Commission. She denied any personal relationship with Mr. Baert and she had invited all
supervisors to her wedding. She alleged that Mr. Baert’s inappropriate behavior began within a
few weeks of her arrival at the employing establishment. Appellant stated that he began to talk
to her when she returned from carrying mail and informed her that he had been married too long.
Appellant stated that Mr. Baert walked up behind her and whispered her next assignment in her
ear. She also alleged that he ran his hand down the back of her hair and told her how soft her
hair was. Appellant asserted that Mr. Baert shook her hand and rubbed his middle finger in her
palm and that this progressed from everyday to several times a day. She alleged that he asked
2

her to dinner or out for a drink two or three times a week. Appellant stated that she did not
experience sexual harassment from other employees or supervisors.
An EEO counselor addressed appellant’s allegations against Mr. Baert, including that the
handshakes he gave her implied that he wanted to have sex with her. The counselor noted that
Mr. Baert forced appellant to perform assignments that were below her seniority level. She
stated that appellant felt that Mr. Baert’s wife and Patti Gurdzinskas, another supervisor’s wife,
received better assignments and assignments that appellant had requested despite appellant’s
greater seniority. Appellant alleged that Mr. Baert prevented her from conversing with her union
representative on two occasions. She alleged that Postmaster Carol Bechtel yelled at her when
she declined to perform a function presented her by Robin Ely. Appellant stated that, in the
lunch room her coworkers frequently discussed sexual acts and the sexual activities of others.
She alleged that Mr. Baert was aware of these discussions and did not prevent such discussions.
Appellant stated that Supervisor Ken Holeski tried to fire her for repeatedly failing to report for
fitness-for-duty examinations.
Appellant submitted a statement on October 30, 2000 and repeated her allegations
concerning sexual harassment by Mr. Baert. She became afraid of Supervisor Holeski when he
became angry after she requested his help in moving two all purpose containers (APC’s).
Appellant stated that during the beginning of the week of May 15 to 21, 1999 Mr. Baert gave her
a direct order to relieve Rose Rodriquious as she had the lowest seniority. Later in the week he
again directed appellant to perform “post” when a lower seniority employee was present.
Appellant stated that during the following week Mr. Baert interrupted her conversation with her
union representative to order her to move APC’s. She stated that her work was monitored, that
Postmaster Bechtel yelled at her regarding the location of a stamp
Mr. Baert completed a statement on November 6, 2000 and denied appellant’s allegations
of sexual harassment and disparate treatment.
The Office denied appellant’s claim by decision dated November 15, 2000. The Office
found that appellant had failed to provide any documentation or witness’ statements to support
that Mr. Baert’s actions occurred as alleged.
Appellant, through her attorney, requested reconsideration on April 11, 2001.
Dr. Lary R. Berkower, a Board-certified psychiatrist, completed a report dated March 27, 2001
and noted appellant’s allegations that there was “a great deal of sexual acting out at her place of
employment.” He reported that Mr. Baert repeatedly touched appellant including rubbing her
hair, placing his chest on her back, whisper in her ear and hold her hand as well as rubbing his
finger in her palm. Dr. Berkower reported that as a result of appellant’s refusal to have sex with
Mr. Baert she was given unfavorable jobs. He diagnosed major depressive disorder and opined
that the circumstances of appellant’s employment, including the atmosphere of persistent
gossiping and sexual acting out, touching by Mr. Baert, yelling and assignment of low seniority
work “played a crucial and direct role in disrupting this individuals psychic equilibrium.”

3

The Office denied appellant’s claim by decision dated April 27, 2001. In an order dated
January 10, 2003,1 the Board remanded the claim for reassemblage of the record, including
appellant’s April 11, 2001 request for reconsideration and an appropriate decision.
In a letter dated April 17, 2006, the Office informed appellant and her attorney that
medical evidence referenced in his April 11, 2001 request for reconsideration was not currently
present in the case record due to the implementation of a new computer system. The Office
noted that it did not have a complete file and requested any available documentation.
In a report dated October 6, 1999, Dr. Kenneth Kron, MD., performed a fitness-for-duty
examination and related appellant’s allegations of Mr. Baert’s touching, her refusal of his
advances and the subsequent inappropriate work assignments. He diagnosed a history of
depression and recommended that appellant transfer away from Mr. Baert.
Appellant resubmitted a report dated October 12, 2000 from Dr. McDougle diagnosing
major depression and recommending a transfer to a different employing establishment.
Dr. McDougle stated that appellant’s symptoms began following “alleged sexual harassment” at
the employing establishment.
By decision dated July 10, 2006, the Office denied modification of its prior decisions.
The Office found that appellant had not substantiated a compensable factor of employment and
that the additional medical evidence was not, therefore, relevant to her claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of worker’s compensation. Where the disability results from an employee’s emotional
reaction to his regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3 Generally, actions of the employing
establishment in administrative or personnel matters unrelated to the employee’s regular or
specially assigned work duties, do not fall with the coverage of the Act.4 While an
administrative or personnel matter will be considered an employment factor where the evidence
discloses error or abuse on the part of the employing establishment, mere perceptions are
insufficient. In determining whether the employing establishment erred or acted abusively, the
1

Docket No. 01-1741 (issued January 10, 2003).

2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
4

James E. Norris, 52 ECAB 93, 100 (2000).

4

Board determines whether the employing establishment acted reasonably.5 Reactions to
disciplinary matters such as letters of warning and inquiries regarding conduct pertain to actions
taken in an administrative capacity and are not compensable until it is established that the
employing establishment erred or acted abusively in such capacity.6 For harassment or
discrimination to give rise to a compensable disability, there must be evidence which establishes
that the acts alleged or implicated by the employee did, in fact, occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.7
ANALYSIS
Appellant attributed her emotional condition to actions by her supervisor, Mr. Baert,
constituting sexual harassment and retaliation. She alleged that Mr. Baert touched her
inappropriately and that, when she spurned his sexual advances, he began to assign her tasks
below her seniority level and treated other employee’s more favorably. Mr. Baert denied
appellant’s allegations regarding his actions. Appellant solicited a witness statement from a
coworker, Ms. Ely, who denied witnessing any inappropriate actions by Mr. Baert. She has not
submitted any factual support for her allegations of sexual harassment or retaliation. Appellant
has failed to meet her burden of proof. As noted, she must present evidence that the alleged
events did occur. Appellant has presented only her perceptions of harassment and the Office
properly found that she failed to substantiate this compensable factor of employment.
Appellant also submitted a letter of warning which was later reduced. The fact that
personnel actions were later modified or rescinded, does not in and of itself, establish error or
abuse. Furthermore, the fact that a claimant filed complaints and grievances does not
substantiate the allegations contained therein and the settlement of such complaints and
grievances does not establish error or abuse by the employing establishment.8 Therefore,
appellant has not established a compensable factor of employment in regard to her letter of
warning.
In support of her claim for an emotional condition, appellant alleged that Postmaster
Betchel yelled at her. Verbal altercations and difficult relationships with supervisors, when
sufficiently detailed by the claimant and supported by the record, may constitute factors of
employment. Although the Board has recognized the compensability of verbal abuse in certain
circumstances this does not imply that every statement uttered in the workplace will give rise to
coverage under the Act.9 Appellant did not submit any corroborating evidence regarding the
dispute with Ms. Betchel. As there is no support for this allegation, appellant failed to
substantiate this compensable factor of employment.

5

Bonnie Goodman, 50 ECAB 139, 143-44 (1998).

6

Sherry L. McFall, 51 ECAB 436, 440 (2000).

7

Reco Roncoglione, 52 ECAB 454, 456 (2001).

8

Michael A. Salvato, 53 ECAB 666, 668 (2002).

9

Marguerite J. Toland, 52 ECAB 294 (2001).

5

Appellant also alleged that Mr. Baert directed her to perform work below her seniority
level even when employees with lower seniority were present. The Board has held that the
manner in which a supervisor exercises his or her discretion falls outside the coverage of the Act.
This principal recognizes that a supervisor or manager must be allowed to perform their duties
and that employees will at times disagree with actions taken. Mere disagreement with or dislike
of actions taken by a supervisor or manager will not be compensable absent evidence
establishing error or abuse.10 Appellant has not submitted any evidence establishing that
Mr. Baert’s actions constituted error or abuse in assigning her work duties. As she has not
substantiated this factor of employment, the Office properly denied her claim.
For the foregoing reasons, appellant has not established any compensable employment
factors under the Act and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.11
CONCLUSION
The Board finds that appellant has not submitted supportive evidence substantiating that
the alleged improper actions by her supervisors occurred as alleged. Therefore, appellant has not
established a compensable factor of employment and the Office properly denied her claim as she
has not met her burden of proof to establish a factual basis for her claim.

10

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

11

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the July 10, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2007
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.N., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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

Docket No. 08-113
Issued: April 7, 2008

Case Submitted on the Record

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

JURISDICTION
On October 15, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 27 and July 17, 2007 merit decisions denying his traumatic
injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a traumatic injury on
February 14, 2007.
FACTUAL HISTORY
On February 14, 2007 appellant, a 71-year-old customer service representative, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, he cut the palm of his right hand,
when he slipped on an icy sidewalk on his way into work from the employee parking lot. The

employing establishment controverted the claim on the grounds that he did not provide any
medical documentation to support an injury.
On February 20, 2007 the Office notified appellant that the evidence submitted was
insufficient to establish his claim. It advised him to provide additional documentation, including
a physician’s opinion, supported by a medical explanation, as to how the reported work incident
caused or aggravated the claimed injury.
In a narrative statement dated February 28, 2007, appellant informed the Office that he
had not received treatment from a physician for the injuries sustained on February 14, 2007. He
indicated that he fell on his hands and knees, with a bag in one hand and an open umbrella in the
other, sustaining a small cut to the palm of his right hand. He noted that a lady in the parking lot
gave him a napkin to absorb the blood, and a coworker gave him a band aid. Although his
manager advised him to fill out an accident report, there was “no need for a doctor,” because
after a while, he “felt fine and [his] hand stopped bleeding.”
By decision dated March 27, 2007, the Office denied appellant’s claim. The Office
accepted that appellant experienced a February 14, 2007 incident on federal property, but denied
the claim on the grounds that he had failed to submit medical evidence to establish that he
sustained an injury in connection with the incident.
On April 1, 2007 appellant requested a review of the written record.
By decision dated July 17, 2007, a hearing representative affirmed the March 27, 2007
decision. The representative found that appellant had failed to establish the fact of injury, as he
had not submitted any medical evidence establishing that he had a diagnosed condition resulting
from the February 14, 2007 work incident.
On appeal, appellant states that he is seeking compensation for time lost the day
following the work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged, and that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.1 When an employee
claims that he sustained a traumatic injury in the performance of duty, he must establish the fact
of injury. First, he must submit sufficient evidence to establish that he experienced a specific
event, incident or exposure at the time, place and in the manner alleged. Second, he must

1

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

establish that such event, incident or exposure caused an injury, and this can generally be
established only by medical evidence.2
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.3 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.5
Office procedures provide that a case may be accepted without a medical report when the
condition reported is a minor one which can be identified on visual inspection by a lay person;
the injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and
no time was lost from work due to disability.6
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the workplace incident occurred as alleged. The issue,
therefore, is whether the medical evidence of record is sufficient to establish that the
employment incident caused an injury.
Appellant did not submit any medical evidence in support of his claim. He merely
provided a narrative statement describing the February 14, 2007 incident. However, appellant’s
lay opinion does not constitute probative medical evidence.7 There is no medical evidence of

2

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

3

Katherine J. Friday, 47 ECAB 591, 594 (1996).

4

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

5

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).

7

Gloria J. McPherson, 51 ECAB 441 (2000).

3

record establishing that the work-related incident caused or aggravated any particular medical
condition or disability. Accordingly, appellant has failed to establish the fact of injury.
Appellant stated that he suffered a cut on his right hand as a result of the February 14,
2007 work incident. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.8 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9 Causal relationship must be substantiated
by reasoned medical opinion evidence, which it is appellant’s responsibility to submit.
Therefore, appellant’s belief that his condition was work related is not determinative.
Office procedures provide that a case may be accepted without a medical report when the
condition reported is a minor one which can be identified on visual inspection by a lay person;
the injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and
no time was lost from work due to disability.10 In this case, although the alleged injury was
minor, there is no evidence of record, in the form of witness statements or otherwise, to
document that an injury occurred or that it was promptly reported. Additionally, there is a
dispute as to fact of injury, as the employing establishment controverted the case. Appellant
states on appeal that he lost time from work the day following the February 14, 2005 incident.
The Board finds, therefore, that a medical report is required under the circumstances of this case.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As such, he has not met
his burden of proof in establishing that he sustained an injury in the performance of duty causally
related to factors of his federal employment.
CONCLUSION
Appellant has not met his burden of proof to establish that he sustained a traumatic injury
on February 14, 2007 causally related to his employment.

8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (July 2000).

4

ORDER
IT IS HEREBY ORDERED THAT the July 17 and March 27, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 7, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF THE NAVY, FIRE
DEPARTMENT, NAVAL AIR STATION,
Key West, FL, Employer
__________________________________________

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

Docket No. 14-764
Issued: July 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 21, 2014 appellant filed a timely appeal of a January 22, 2014 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying his occupational disease
claim as untimely. 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.
ISSUE
The issue is whether appellant’s claim for hearing loss was timely filed.
FACTUAL HISTORY
On August 9, 2013 appellant, then a 77-year-old firefighter filed an occupational disease
claim alleging that he developed hearing loss due to performing crash and rescue drill under jets
without ear protection. He stated that he first became aware of his condition on June 24, 2009
1

5 U.S.C. § 8101 et seq.

and first related his condition to his employment on that date. Appellant noted that he was not
aware of compensation for the problem until recently and that this was the reason for his delay in
filing his claim. On the reverse of the form, the employing establishment noted that he retired on
May 2, 1992 and that his supervisor was not available.
OWCP requested additional factual and medical evidence from appellant in a letter dated
October 11, 2013. It stated that the evidence did not support that his claim was timely filed and
allowed him 30 days to submit additional supportive evidence that his supervisor was aware of
his condition. The employing establishment responded on September 5, 2013 stating that
appellant voluntarily retired on May 2, 1992 and that his supervisors were retired and
unavailable. The employing establishment stated that the last audiogram it performed was dated
April 10, 1992 and that audiograms performed in 1990 and 1991 seem to demonstrate a
significant shift of appellant’s hearing.
Appellant provided medical evidence of hearing loss including an audiogram dated
June 24, 2009. He also provided employing establishment medical records of his audiograms
dated November 3, 1975, 1986, 1987, 1988, 1990, 1991 and 1992.
OWCP referred the employment audiograms to OWCP’s medical adviser who reviewed
the findings on January 17, 2014 and stated that the findings were positive for noise-induced
hearing loss, but were not consistent with a progression of hearing loss from 1986 through 1992.
By decision dated January 22, 2014, OWCP denied appellant’s claim for an employmentrelated hearing loss on the grounds that it was not timely filed within three years after he first
became aware of his condition in 2009 and that there was no evidence that his supervisor had
actual knowledge within 30 days of the date of injury.
LEGAL PRECEDENT
Section 8122(a) of FECA2 provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.3 Section 8122(b) provides
that, in latent disability cases, the time limitation does not begin to run until the claimant is
aware, or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.4 The Board has held that,
if an employee continues to be exposed to injurious working conditions after such awareness, the
time limitation begins to run on the last date of this exposure.5 Even if a claim is not timely filed
within the three-year period of limitation, it would still be regarded as timely under section
8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related
injury within 30 days or written notice of the injury was provided within 30 days pursuant to

2

Id. at §§ 8101-8193, 8122.

3

Id. at § 8122(a).

4

Id. at § 8122(b)

5

See W.B., Docket No. 14-276 (issued May 2, 2014); Linda J. Reeves, 48 ECAB 373 (1997).

2

section 8119.6 The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death.7 The Board has indicated that an employee need only be
aware of a possible relationship between his or her condition and his or her employment to
commence the running of the applicable statute of limitations.8 The Board has also held that a
program of annual audiometric examinations conducted by an employing establishment may
constructively establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury.9
In interpreting section 8122(a)(1) of FECA, OWCP procedures provide that, if the
employing establishment gives regular physical examinations which might have detected signs
of illness, such as hearing tests, it should be asked whether the results of such tests were positive
for illness and whether the employee was notified of the results.10
ANALYSIS
The Board finds that appellant’s claim was timely filed. As noted above, if an employee
continues to be exposed to injurious working conditions, the time limitation begins to run on the
date of last exposure.11 Appellant ceased to be exposed to work-related noise when he retired on
May 2, 1992. Therefore, the time-limitation provisions began to run on that date. As appellant
did not file a claim for hearing loss until August 9, 2013, his claim was filed outside the threeyear time-limitation period.12 However, his claim would still be regarded as timely under section
8122(a)(1) of FECA if his immediate supervisor had actual knowledge of the injury within 30
days of his last exposure to the implicated employment factors. To have actual knowledge, the
supervisor must be aware that appellant attributed his hearing loss to an injury sustained in the
performance of duty or to some other factor of employment.13
The record indicates that appellant was part of a hearing conservation program. The
Board has held that a program of annual audiometric examinations conducted by an employing
establishment in conjunction with employee testing programs is sufficient to constructively
establish actual knowledge of a hearing loss such as to put the immediate supervisor on notice of

6

5 U.S.C. §§ 8122(a)(1); 8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).

7

Willis E. Bailey, 49 ECAB 509 (1998).

8

Edward C. Horner, 43 ECAB 834, 840 (1992).

9

See J.B., Docket No. 10-2025 (issued June 17, 2011); Jose Salaz, 41 ECAB 743 (1990).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) and 6(c) (March 1993); see also
James A. Sheppard, 55 ECAB 515 (2004).
11

See Larry E. Young, supra note 6.

12

5 U.S.C. § 8122(b).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a(3)(b) (March 1993).

3

an on-the-job injury.14 OWCP’s procedure manual, interpreting section 8122(a)(1) of FECA
states:
“If an agency, in connection with a recognized environmental hazard, has an
employee testing program and a test shows the employee to have positive findings
this should be accepted as constituting actual knowledge. For example, an agency
where employees may be exposed to hazardous noise levels may give annual
hearing tests for exposed employees. A hearing loss identified on such a test
would constitute actual knowledge on the part of the agency of a possible work
injury.”15
The record supports that appellant participated in an annual hearing conservation
program as early as 1986 and that the results indicated various levels of hearing loss. As noted,
OWCP procedures provide that, if the employing establishment gives regular physical
examinations which might have detected signs of illness, such as hearing tests, it should be asked
whether the results of such tests were positive for illness and whether the employee was notified
of the results.16 In 2013 the employing establishment stated that the last audiogram performed
by the employing establishment was dated April 10, 1992 and that audiograms performed in
1990 and 1991 seem to demonstrate a significant shift of appellant’s hearing.
The Board finds that the evidence of record is sufficient to establish that the employing
establishment had actual knowledge within 30 days of the date of last exposure that appellant
believed that he had hearing loss as a result of his employment duties. While it is not clear
whether appellant’s hearing loss resulted totally from his federal employment, audiograms from
the employing establishment document hearing loss and it appears that the employing
establishment was aware in 1990 that he attributed some of his hearing loss at least in part to
federal employment. Consequently, his claim for compensation for hearing loss was timely
filed.17 The case will be remanded to OWCP for further development to determine if appellant
sustained hearing loss causally related to factors of his federal employment. Following such
further development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that appellant’s claim was timely filed.

14

See Joseph J. Sullivan, 37 ECAB 526 (1986); see also Federal (FECA) Procedure Manual, Part 2 -- Claims,
Time, Chapter 2.801.3(c) (March 1993).
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) (March 1993).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3(c) and 6(c) (March 1993); see also
James A. Sheppard, supra note 10.
17

See Gerald A. Preston, 57 ECAB 270 (2005); James A. Sheppard, supra note 10.

4

ORDER
IT IS HEREBY ORDERED THAT the January 22, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 13-2127
Issued: July 28, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 17, 2013 appellant, through her attorney, filed a timely appeal of a
June 26, 2013 Office of Workers’ Compensation Programs’ (OWCP) merit decision terminating
her wage-loss benefits. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective December 27, 2012.
On appeal, counsel argued that appellant had submitted the necessary medical opinion
evidence to establish cervical radiculopathy and disc herniations. He further argued that the
report of Dr. Kenneth P. Heist, an osteopath and a Board-certified orthopedic surgeon, was not
1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

5 U.S.C. § 8101 et seq.

sufficiently well reasoned to carry the weight of the medical evidence or that there was a conflict
of medical opinion evidence.
FACTUAL HISTORY
On June 21, 2011 appellant, then a 44-year-old city carrier, filed an occupational disease
claim alleging that she developed pain in her neck and shoulders, left arm and numbness in her
left hand on April 1, 2011. She first attributed her condition to her employment duties of
carrying a heavy mailbag on her left shoulder and carrying mail in her arm on May 3, 2011.
Appellant underwent a cervical magnetic resonance imaging (MRI) scan on June 16, 2011 which
demonstrated osteoarthritis at C4-5, C5-6 and C6-7. OWCP denied her claim by decision dated
September 26, 2011.
Appellant requested an oral hearing before an OWCP hearing representative on
October 13, 2011.
Dr. Shahla Vakili, a Board-certified neurologist, examined her on
October 5, 2011 and diagnosed cervical radiculopathy. He stated that appellant’s condition was
related to her lifting and carrying at work and noted that she did not have any problem or injury
previously. Dr. William L. Chollak, a Board-certified orthopedic surgeon, completed a report on
October 4, 2011 and diagnosed left cervical radiculopathy noting that her condition had been
confirmed with electromyogram (EMG) and MRI scan studies. He stated that appellant
experienced overuse at work including quick motions and lifting with her left arm. Dr. Chollak
opined that the only cause for her condition was overuse as a letter carrier. Appellant underwent
an EMG on June 1, 2011 which demonstrated mild irritation of the C5 roots bilaterally more on
the left.
Appellant testified at the oral hearing on January 17, 2012. Dr. Vakili submitted reports
dated January 11 and February 6, 2010 and listed his findings on May 25, 2011 including
limitation of neck movement and spasms of the paraspinal muscles. He reviewed diagnostic
testing and found C5-6 and C6-7 disc bulges and neuroforaminal stenosis. Dr. Vakili diagnosed
cervical radiculopathy. He noted that appellant reported no problems prior to May 2011 and
opined that her condition was related to her work duty of carrying mail. Dr. Vakili stated that
she was totally disabled and that she could not carry heavy weights.
By decision dated March 27, 2012, OWCP’s hearing representative affirmed the
September 26, 2011 denial of appellant’s claim.
Counsel requested reconsideration on August 8, 2012. Dr. Vakili completed a report on
August 4, 2012. He stated that appellant’s work activities resulting in overuse of her left arm as
well as bending, twisting, lifting, reaching, sorting, casing, pushing, pulling and delivering mail
were sufficient to cause disc displacement and compression of the nerve root. Dr. Vakili
provided work restrictions for four hours a day of sitting, standing, walking, stooping, climbing
stairs and simple grasping as well as performing a desk job with intermittent walking every 30
minutes.
OWCP referred appellant for a second opinion evaluation with Dr. Heist. In a report
dated October 24, 2012, Dr. Heist reviewed her medical and factual history. He found that
appellant’s cervical spine showed a normal lordotic curve with no evidence of paravertebral

2

muscle guarding or cervical radiculopathy, gross muscle weakness or atrophy. Dr. Heist
diagnosed cervical dorsal and lumbar sprains as well as left shoulder sprain. He stated,
“Clinically, [appellant] demonstrated a slight restriction of motion that was caused by her mild
preexisting degenerative changes. There were no objective signs of cervical or lumbar
radiculopathy. There were no signs of radiculopathy on MRI scan studies.” Dr. Heist opined
that appellant’s sprains had resolved and stated that she was capable of returning to work full
time without restrictions.
On November 19, 2012 OWCP accepted appellant’s claim for left shoulder sprain,
thoracic sprain, lumbar sprain and neck sprain. Appellant then filed claims for compensation
requesting wage-loss compensation from July 23, 2011 through November 16, 2012 and
November 17 through 30, 2012. On June 6, 2012 the postmaster informed appellant that there
was no light-duty work available within her restrictions.
In a letter dated November 30, 2012, counsel requested reconsideration and asked that
OWCP expand appellant’s claim to include herniated discs in the cervical and thoracic spines
with radiculopathy based on the June 4, 2012 MRI scan and Dr. Vakili’s reports.
Appellant filed an additional claim for compensation on December 18, 2012 requesting
compensation for leave without pay from December 1 through 14, 2012.
By decision dated December 27, 2012, OWCP terminated appellant’s compensation
benefits effective that date. It stated that Dr. Heist’s report established that she did not have
residuals of the accepted conditions and that there were no objective clinical findings which
correlated disability with her work injury. OWCP stated that the weight of the medical evidence
demonstrated that appellant no longer had a disability from work due to her accepted conditions.
Counsel requested an oral hearing on January 3, 2012. Dr. Megha Mendriatta, a family
practitioner, completed reports on October 2 and December 27, 2012 as well as January 24, 2013
and diagnosed cervical radiculopathy. She opined that appellant’s preexisting cervical
spondylysis was aggravated by heavy lifting in the performance of duty. Dr. Mendriatta stated
that appellant could work with restrictions on overhead lifting. Counsel appeared at the oral
hearing on April 10, 2013 and argued that appellant’s claim should be expanded to include
cervical radiculopathy.
By decision dated June 26, 2013, OWCP’s hearing representative found that OWCP met
its burden of proof to terminate appellant’s entitlement to wage-loss compensation effective
December 27, 2012. He found that Dr. Heist’s report represented the weight of the medical
evidence and established that there were no clinical or diagnostic findings of cervical
radiculopathy and that appellant’s restricted range of motion was caused by preexisting
degenerative changes. The hearing representative stated that appellant was not disabled from
work due to her accepted conditions.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.4
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.5 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.6
ANALYSIS
Appellant alleged that she developed an occupational disease in April 2011. OWCP
accepted her claim for left shoulder sprain, thoracic sprain, lumbar sprain and neck sprain on
November 19, 2012. Appellant then filed a series of claims for wage-loss compensation. By
decision dated December 27, 2012, OWCP terminated her right to wage-loss compensation
effective that date. On June 26, 2013 OWCP’s hearing representative affirmed this decision.
The Board finds that this case is not in posture for decision. Appellant submitted medical
evidence from her attending physicians, Drs. Vakili and Chollak, beginning in October 2011.
The physicians reviewed her employment duties and provided a diagnosis of cervical
radiculopathy based on electrodiagnostic studies including EMG and MRI scan. Both physicians
opined that appellant’s condition was due to her employment duties and offered some reasoning
in support of their opinions noting that there was a relationship between her diagnosed condition
and her employment. Dr. Vakili further opined that she was totally disabled due to her
employment injuries for a period. Dr. Mendriatta began examining appellant on October 2, 2012
and diagnosed cervical radiculopathy. In brief reports, she opined that appellant’s preexisting
cervical spondylysis was aggravated by heavy lifting in the performance of duty and stated that
appellant could work with restrictions on overhead lifting.
OWCP referred appellant for a second opinion evaluation with Dr. Heist, who examined
her on October 24, 2012 and found that her physical examination demonstrated slight loss of
range of motion, but no evidence of paravertebral muscle guarding or cervical radiculopathy,
gross muscle weakness or atrophy. Dr. Heist diagnosed sprains of the cervical and lumbar spine
3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

Id.

5

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

6

R.C., 58 ECAB 238 (2006).

4

as well as the left shoulder. He attributed appellant’s loss of range of motion to “mild
preexisting degenerative changes.” Dr. Heist concluded that there were no objective signs of
cervical or lumbar radiculopathy and no signs of radiculopathy on MRI scan. He opined that
appellant’s sprains had resolved and stated that she was capable of returning to work full time
without restrictions at the time of his examination.
The Board finds that there is a conflict of medical opinion evidence between the opinions
of Dr. Vakili, in his reports of February 6 and August 4, 2012 and Dr. Heist for OWCP on both
the condition which was caused by appellant’s employment and the degree and period of
disability resulting from her employment-related conditions. The reports are based on a proper
history of injury, provide physical findings and address the issue of causal relationship between
appellant’s employment and her diagnosed condition. The Board finds the outstanding medical
issues must be addressed and resolved by an impartial medical examiner, pursuant to 5 U.S.C.
§ 8123(a).
Due to the existing conflict of medical opinion evidence, the Board finds that OWCP
failed to meet its burden of proof to terminate appellant’s wage-loss compensation effective
December 27, 2012.
CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
compensation benefits effective December 27, 2012 due to an unresolved conflict in medical
opinion evidence.

5

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.7
Issued: July 28, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

7

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a member
of the Board after May 16, 2014.

6