United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL MEDICAL CENTER,
Butner, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-768
Issued: August 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 11, 2008 appellant, through counsel, filed a timely appeal of a December 4,
2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying her request
for reconsideration because it was not timely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated March 3, 2004 and
the filing of the appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

FACTUAL HISTORY
On October 23, 2003 appellant, then a 45-year-old clinical nurse, filed a traumatic injury
(Form CA-1) assigned claim number 06-2104806.1 She alleged that on May 26, 2003 she
experienced a spasm in her upper back while turning a critically ill inmate. Appellant stated that
her muscle pain and spasms exacerbated her accepted January 27, 2003 employment-related
injury.
By letter dated January 28, 2004, the Office addressed the medical and factual evidence
appellant needed to submit to establish her claim. She was afforded 30 days to respond.
Appellant did not respond within the allotted time period.
On February 3, 2004 the employing establishment controverted the claim on the grounds
that it did not have actual knowledge, written or verbal notification that the alleged injury
occurred. It stated that appellant requested a CA-1 form on October 21, 2003 but she did not
submit it to her supervisor until December 9, 2003. The employing establishment contended that
she had not submitted any medical evidence to establish her claim.
By decision dated March 3, 2004, the Office denied appellant’s claim. It found the
evidence of record insufficient to establish that the May 26, 2003 incident occurred at the time,
place and in the manner alleged and that appellant sustained a medical condition causally related
to the May 26, 2003 incident.
In a September 4, 2007 letter, the Office denied appellant’s counsel’s August 18, 2007
request to have all of her claims combined into one case file. It noted that the assigned claims
numbers 06-2116017 and 06-2079293 were not currently in an open status and the instant
assigned claim number 06-2104806 was denied on March 3, 2004.2 The Office stated that it was
not its policy to combine files for cases that were in denied or closed status. It further stated that
if the case files were combined, any request pertaining to a claimed injury from any of the cases
would still have to be considered individually. The Office noted that, when cases were doubled
or linked, they were still kept separate but traveled under one claim number.
The Office received appellant’s authorization for representation by her attorney and a
November 1, 2006 letter from counsel requesting a complete copy of appellant’s case record.
By letter dated November 19, 2007, appellant, through counsel, requested reconsideration
of the March 3, 2004 decision. Counsel reiterated his request that the Office combine all of
appellant’s claims into one claim in accordance with its procedures. Appellant submitted a
September 24, 2007 letter in which her attorney requested that Dr. Eugenia F. Zimmerman, a
Board-certified physiatrist, address an accompanying list of questions regarding her back
problems.
1

The Board notes that appellant signed her CA-1 form on December 5, 2003 and it was received by the Office on
January 20, 2004.
2

The Office noted that, by decision dated May 11, 2007, it denied appellant’s claim for a recurrence of disability
in the assigned claim 06-2079293.

2

In a November 2, 2007 medical report, Dr. Zimmerman stated that appellant had been
under her care since May 8, 2007 as a result of a referral from Dr. Patricia K. Naslund, an
attending Board-certified neurologist. Her understanding of appellant’s history prior to
May 2007 was derived from Dr. Naslund’s records and report. Dr. Zimmerman stated that
appellant had myofascial pain syndrome that was characterized by hypertonicity and tenderness
of the musculature of the upper trapezius and interscapular region. She also had old mild T3-4
compression deformities with no evidence of edema and left central disc herniation at C5-6 with
mild effacement of the cord based on an April 8, 2005 magnetic resonance imaging (MRI) scan.
Dr. Zimmerman stated that, without prior imaging, she could not state when the thoracic
compression fractures occurred. She further stated that, based on appellant’s own report, a work
injury that was a significantly contributing factor in the development of her current back
condition, indicated that she was asymptomatic prior to her fall in 2003 during federal employee
training and that she experienced pain since that time. Dr. Zimmerman related that, although she
could not prove, without any definitive evidence, that appellant’s compression fractures were
caused by the 2003 employment injury, the mechanism of injury was consistent with the cause of
a compression fracture. She reviewed a history of the 2003 employment injury, which indicated
that during a federal employing training session appellant was practicing hand to hand sparring
with a partner when she slipped and fell on her back. There was no documentation indicating
exactly how appellant landed. Dr. Zimmerman, however, stated that, if appellant landed with her
spine flexed in just the right way, she could have sustained minor compression fractures to the
superior endplates of T3-4 during the fall which caused her pain. She further stated that
compression fractures in the thoracic spine can subtly alter the mechanics of how the vertebrae
sit together dynamically during flexion, extension, rotation and side bending. This alternation in
the mechanical alignment can cause persistent and troublesome myofascial pain as the muscles
and tendons attempt to compensate for the alternated bony mechanics.
Dr. Zimmerman opined that because of the old compression fractures appellant was
“likely” at risk for recurrent thoracic strain which she sustained in May 2003 and May 2004. She
also opined that the underlying compression fractures “likely” aggravated her myofascial pain.
Dr. Zimmerman indicated that, if appellant could find x-rays of the thoracic spine or chest prior
to the 2003 employment injury, it might help elucidate the timing of the compression fractures.
She concluded by stating that, since her pain had persisted for three and one-half years, it was
likely to remain an indefinite problem.
By decision dated December 4, 2007, the Office found that appellant’s letter requesting
reconsideration was dated November 19, 2007, more than one year after its March 3, 2004
decision and was untimely. It further found that she did not submit evidence to establish clear
evidence of error in the prior decision finding that she did not sustain an injury in the
performance of duty.

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LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act3 does not entitle a claimant
to a review of an Office decision as a matter of right.4 The Office, through its regulations, has
imposed limitations on the exercise of its discretionary authority under section 8128(a). Section
10.607(a) of the Office’s implementing regulation provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by the Office.7 The evidence must be positive, precise and explicit and
must be manifest on its face that the Office committed an error.8 Evidence that does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of the Office decision.12 The
Board makes an independent determination of whether a claimant has submitted clear evidence

3

5 U.S.C. § 8128(a).

4

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

7

Nancy Marcano, 50 ECAB 110, 114 (1998).

8

Leona N. Travis, 43 ECAB 227, 241 (1991).

9

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

10

Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919 (1992).

12

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

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of error on the part of the Office such that it abused its discretion in denying merit review in the
face of such evidence.13
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
application for review. In implementing the one-year time limitation, the Office’s procedures
provide that the one-year time limitation period for requesting reconsideration begins on the date
of the original Office decision. However, a right to reconsideration within one year accompanies
any subsequent merit decision on the issues.14
The most recent merit decision was issued by the Office on March 3, 2004. It found that
the evidence of record insufficient to establish that the May 27, 2003 incident occurred as alleged
and that appellant sustained a medical condition causally related to this incident. As appellant’s
November 19, 2007 letter requesting reconsideration was made more than one year after the
Office’s March 3, 2004 merit decision, the Board finds that it was not timely filed.
The issues for purposes of establishing clear evidence of error in this case, is whether
appellant submitted evidence establishing that there was an error in the Office’s finding that she
neither established an employment incident nor a related medical diagnosis because she had not
submitted any evidence. Appellant has not submitted evidence establishing that the Office
committed clear evidence of error in its March 3, 2004 decision. She did not submit the type of
positive, precise and explicit evidence or argument which manifests on its face that the Office
committed an error.
In the untimely November 19, 2007 request for reconsideration, appellant’s attorney
requested that the Office combine all of her claims into one case file. This evidence is
insufficient to prima facie shift the weight of the evidence in favor of appellant’s claim.
Counsel’s request was previously addressed by the Office and it failed to address the underlying
issues of whether appellant established fact of injury and causal relation. Similarly, counsel’s
September 24, 2007 letter which requested that Dr. Zimmerman address questions regarding
appellant’s back problems is insufficient to prima facie shift the weight of the evidence in favor
of her claim. This evidence failed to address the underlying issues of whether the May 27, 2003
incident occurred as alleged and whether appellant sustained a medical condition causally related
to this incident.
Dr. Zimmerman’s November 2, 2007 report stated that appellant had myofascial pain
syndrome that was characterized by hypertonicity and tenderness of the musculature of the upper
trapezius and interscapular region. She also had old mild T3-4 compression deformities with no
evidence of edema and left central disc herniation at C5-6 with mild effacement of the cord
based on an April 8, 2005 MRI scan. Dr. Zimmerman related appellant’s thoracic compression
fractures to the 2003 employment injury based on the history of injury provided by her which
indicated that she was asymptomatic prior to the injury and she had experienced pain since that
13

Thankamma Mathews, 44 ECAB 765, 770 (1993).

14

Larry L. Litton, 44 ECAB 243 (1992).

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time and the mechanism of injury which was consistent with the cause of a compression fracture.
Dr. Zimmerman explained that compression fractures in the thoracic spine can subtly alter the
mechanics of how the vertebrae sit together dynamically during flexion, extension, rotation and
side bending. She further explained that this alternation in the mechanical alignment can cause
persistent and troublesome myofascial pain as the muscles and tendons attempt to compensate
for the alternated bony mechanics. Dr. Zimmerman opined that because of the old compression
fractures appellant was “likely” at risk for recurrent thoracic strain which she sustained in
May 2003. She further opined that the underlying compression fractures “likely” aggravated her
myofascial pain. Dr. Zimmerman did not provide a factual background establishing that the
May 26, 2003 incident occurred as alleged. She only reviewed a history of the 2003
employment-related training incident. Moreover, Dr. Zimmerman’s opinion regarding the causal
relationship between appellant’s compression fractures and recurrent thoracic strain and
aggravation of myofascial pain is couched in speculative terms and, thus, is insufficient to
establish clear evidence of error in the Office’s denial of her claim.15 For these reasons, the
Board finds that appellant has not established clear evidence of error on the part of the Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to establish clear evidence of error.

15

Kathy A. Kelley, 55 ECAB 206 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the December 4, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 15, 2008
Washington, DC

David S. Gerson, 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
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 18-0846
Issued: December 20, 2018

Case Submitted on the Record

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

JURISDICTION
On March 13, 2018 appellant filed a timely appeal from a January 9, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.3

1
Appellant timely requested oral argument before the Board. By order dated October 12, 2018, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Oral Argument, Docket No. 18-0846 (issued October 12, 2018).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that following the January 9, 2018 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s
review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1).
Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish right hand and wrist
conditions causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 29, 2017 appellant, then a 54-year-old heavy mobile equipment repairer, filed
an occupational disease claim (Form CA-2) alleging that he sustained right carpal tunnel syndrome
in the performance of duty. He noted that he first became aware of his condition and its
relationship to his federal employment duties on March 15, 2017. Appellant did not stop work at
the time he filed his claim. In a letter dated April 3, 2017, employing establishment supervisor
A.H. controverted the claim, contending that appellant failed to report his condition in a timely
manner.
By development letter dated April 3, 2017, OWCP notified appellant of the type of
additional factual and medical evidence needed to establish his occupational disease claim,
including a detailed factual statement describing the mechanism of injury, and a narrative opinion
from his attending physician explaining how and why the identified employment factors would
cause the claimed medical condition. It afforded him 30 days to submit the necessary evidence.
In response, appellant submitted a report dated July 13, 2016, by Dr. Cheryl Verma, an
attending Board-certified family practitioner. Dr. Verma diagnosed right carpal tunnel syndrome.
She referred appellant to an orthopedist.
In a report dated April 4, 2017, Dr. Harold G. Weems, Jr., an attending Board-certified
orthopedic surgeon, noted appellant’s history of right hand pain and paresthesias during the
preceding year, with pain and clicking in the right thumb and index finger. He obtained x-rays of
the right hand that day which demonstrated an old healed fracture of the base of the fifth
metacarpal. Dr. Weems ordered an electromyography and nerve conduction velocity (EMG/NCV)
studies performed on April 21, 2017, which demonstrated moderately severe right carpal tunnel
syndrome and polyneuropathy. In a report dated May 3, 2017, he provided work limitations and
scheduled him for a right median nerve release and release of the right index and thumb trigger
fingers.
By decision dated June 27, 2017, OWCP denied appellant’s occupational disease, finding
that the factual evidence of record was insufficient to establish that the alleged work factors
occurred as described. It noted that he had not responded to its request for a detailed explanation
of the work factors that he felt contributed to his claimed condition.
On July 31, 2017 appellant requested a telephonic oral hearing before an OWCP hearing
representative. The hearing was held on November 14, 2017. During the hearing, appellant
described working with wrenches, ratchets, chisels, hammers, scrapers, power tools, and air
wrenches for 10 hours a day, 4 days a week. His assigned duties required him to work beneath
vehicles with his hands and arms in awkward positions. Appellant submitted additional evidence.

2

An official position description dated April 12, 2017 noted that appellant’s duties as a
heavy mobile equipment repairer required constant use of hand and power tools to build and
disassemble vehicle engines and other components.
On May 11, 2017 Dr. Weems performed a right carpal tunnel release and right trigger index
finger and thumb releases. In progress notes dated from May 24 to September 20, 2017, he noted
that, while appellant’s right thumb and index finger were no longer locking, he had continued right
hand pain and felt unable to perform his date-of-injury position as a heavy mobile equipment
repairer. In a report dated September 20, 2017, Dr. Weems opined that appellant’s right carpal
tunnel syndrome was not occupationally related. He also explained that there was no “specific
medical reason to have him on a permanent hand restriction because his surgeries have been
successful.” Appellant’s complaints of hand pain did “not qualify for such a restriction.”
In a report dated September 27, 2017, Dr. Marion E. Milstead, an attending Board-certified
orthopedic surgeon, diagnosed carpal tunnel and multiple trigger finger release. He limited
appellant to light-duty work with lifting up to 20 pounds. Dr. Milstead renewed these restrictions
in a report dated October 19, 2017.
EMG/NCV studies of the right upper extremity and cervical paraspinal muscles performed
on December 8, 2017 demonstrated severe right carpal tunnel syndrome, without evidence of
radiculopathy, plexopathy, or neuropathy in the right upper extremity.
In a report dated December 12, 2017, Dr. Sharon H. Evers, a physician Board-certified in
occupational medicine consulting to the employing establishment, performed a fitness-for-duty
examination. She noted that appellant had sustained an injury to his hand and wrist and found
appellant unable to perform his date-of-injury position as he was unable to perform heavy lifting
and carrying. Dr. Evers limited appellant to lifting, pulling, and pushing no more than 10 pounds.
By decision dated January 9, 2018, an OWCP hearing representative affirmed the June 27,
2017 decision as modified, finding that appellant had established that his employment duties
occurred as described. The hearing representative affirmed the denial of the claim, however, the
medical evidence of record was insufficient to establish causal relationship between the accepted
factors of his federal employment and the diagnosed medical conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the

4

Supra note 2.

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employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.8 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.9
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.10 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right hand and
wrist conditions causally related to the accepted factors of his federal employment.
Dr. Verma diagnosed right carpal tunnel syndrome in a report dated July 13, 2016.
Dr. Milstead diagnosed carpal tunnel syndrome and multiple trigger finger. He provided work
restrictions in reports dated September 27 and October 19, 2017. However, neither physician
addressed causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

J.I., Docket No. 18-0286 (issued September 17, 2018); R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB
623 (2000).
8

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

9

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

10

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

11

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

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causal relationship.12 The opinions of Dr. Verma and Dr. Milstead are therefore insufficient to
meet appellant’s burden of proof.13
Dr. Weems opined in a report dated September 20, 2017 that appellant’s right carpal tunnel
syndrome was not occupationally related. His opinion therefore negates appellant’s claim.14
In her report dated December 12, 2017, Dr. Evers noted appellant’s injury to his hand and
wrist, as well as his physical restrictions. However, she did not provide a diagnosis of appellant’s
conditions or an opinion regarding causal relationship.15 Dr. Evers’ report is therefore of no
probative value.16
OWCP also received EMG/NCV studies of appellant’s right upper extremity, which were
performed on December 8, 2017. However, diagnostic studies lack probative value as they do not
address whether the employment incident caused the diagnosed conditions.17
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right hand and
wrist conditions causally related to the accepted factors of his federal employment.

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

J.I., supra note 7.

14

Jacqueline M. Nixon-Steward, supra note 9.

15

Supra note 7.

16

Supra note 12.

17

See J.S., Docket No. 17-1039 (issued October 6, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the January 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Charleston, WV, Employer
__________________________________________

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

Docket No. 14-217
Issued: December 12, 2014

Case Submitted on the Record

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

JURISDICTION
On November 12, 2013 appellant, through counsel, filed a timely appeal from a
September 27, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied his claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of total disability commencing
October 13, 2012 causally related to his accepted emotional conditions.
On appeal, appellant’s attorney argues that the September 27, 2013 OWCP decision is
contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 26, 2007 appellant, then a 53-year-old distribution clerk, filed an
occupational disease claim alleging an emotional condition due to factors of his employment.
OWCP accepted the claim for aggravation of anxiety and depression secondary to employment
factors. Since March 2, 2009 appellant worked four hours per day in accordance with his
medical restrictions. OWCP paid wage-loss benefits for four hours per day. Appellant
previously sustained a nonwork-related stroke in 2000.
Appellant suffered a nonwork-related cardiovascular accident (CVA) on June 13, 2012.
He stopped all work on October 9, 2012. OWCP continued to compensate appellant for four
hours of wage loss. Appellant filed wage-loss claims for total disability commencing
October 13, 2012.
He also filed a recurrence claim for total disability commencing
October 13, 2012.
In a November 19, 2012 letter, OWCP advised appellant that the medical evidence did
not support that his work stoppage was related to his accepted conditions. It requested that he
provide additional medical evidence within 30 days to support that his disability on or after
October 13, 2012 was a result of his accepted emotional conditions.
In a July 16, 2012 chart note, Dr. Khalid Razzaq, a Board-certified psychiatrist,
documented complaints in the right hemisphere and left face since June 13, 2012. Appellant was
scheduled for an electrocardiogram (EEG) due to shortness of breath symptoms. He noted that
he did not feel ready to return to work, and he would let Dr. Razzaq know if he was ready in
approximately two weeks. A copy of a July 27, 2012 echocardiogram and June 13, 2012
computerized tomography (CT) scan of the brain were provided. On August 3, 2012 Dr. Razzaq
advised appellant to stop work until August 12, 2012 due to the June 13, 2012 stroke. He stated
that appellant could resume work without restrictions on August 13, 2012. In an October 9, 2012
chart note, Dr. Razzaq documented complaints of hemiparalysis since the June stroke. He noted
that appellant had applied for disability, and displayed a mild facial weakness, but no significant
left arm or leg weakness. Appellant was to return in six months.
In a September 11, 2012 attending physician’s report (Form CA-20), Dr. Philip
Robertson, a Board-certified psychiatrist, provided a history of recent CVA (stroke) on August 1,
2012; a stroke in 2000; migraine headaches, and chronic psychiatric impairment. He presented
findings of depression/anxiety with intolerance to work, generalized anxiety recurrent; and major
depression in moderate severity. Dr. Robertson noted that appellant was tripping on his left foot
and could not hold things with his left hand. He stated that appellant suffered cognitive and
memory problems. Dr. Robertson opined that appellant was not totally disabled.
In an October 31, 2012 attending physician’s report (Form CA-20), Steve Ferris, Ph.D., a
clinical psychologist, noted that appellant attempted light-duty work since December 2007 and
October 2012 and that his symptoms of anxiety and depression were exacerbated after his second
CVA in July 2012. On December 3, 2012 he reported that appellant was more anxious, nervous,
irritable, labile, and had cognitive and physical impairments. Dr. Ferris diagnosed major
depressive disorder, general anxiety disorder, exacerbated by stroke. He stated that appellant
was unable to do active work since conditions were exacerbated by CVA in July 2012.

2

By decision dated March 7, 2013, OWCP denied appellant’s recurrence claim. It found
that the medical evidence of record identified his July 2012 stroke as responsible for his work
stoppage.
On March 18, 2013 appellant, through his attorney, requested a telephonic hearing before
an OWCP representative, which was held July 18, 2013. Appellant testified that he returned to
full-duty work after his stroke in 2000. He denied any residuals from the second stroke he
suffered in June 2012. Appellant testified that he started crying at work, feeling pressure to
complete his tasks and feeling nervous. He testified that his frustration regarding his
performance was his own and denied any harassment by the employing establishment regarding
his job performance or work. Appellant submitted a March 13, 2013 narrative statement and a
June 12, 2013 Form CA-20 from Carol Felts, a nurse practitioner.
In an August 13, 2013 letter, Dr. Robertson noted that Dr. Ferris had documented
appellant’s work-related problems and acknowledged that he had been performing part-time
work prior to the recent stroke. He noted that the second CVA on August 1, 2012 further
exacerbated appellant’s psychiatric impairment and caused neurologic residuals, including
decreased grip strength in the left hand and left foot weakness. Dr. Robertson stated that the
stroke exacerbated appellant’s preexisting work-related psychiatric impairments including
anxiety, agitation, irritability, emotional lability, impaired concentration and a worsening of his
cognitive and memory impairments to the point that appellant felt that he could no longer
perform his job. Appellant last worked on November 1, 2012. Dr. Robertson opined that
appellant’s chronic work-related impairments were exacerbated by the CVA in 2012 so that he
was no longer to continue occupational light duty.
By decision dated September 27, 2013, an OWCP hearing representative affirmed the
March 7, 2013 decision. He found that appellant’s work stoppage as of October 13, 2012 was
not due to residuals of his accepted emotional conditions.
LEGAL PRECEDENT
Under FECA the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.2 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.3
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous

2

See Prince E. Wallace, 52 ECAB 357, 358 (2001).

3

Cheryl L. Decavitch, 50 ECAB 397, 401 n.5 (1999); Maxine J. Sanders, 46 ECAB 835, 840 (1995).

3

compensable injury or illness and without an intervening injury or new exposure in the work
environment.4
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.5
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
the employment injury and supports that conclusion with medical reasoning.6 Where no such
rationale is present, the medical evidence is of diminished probative value.7
ANALYSIS
In the September 27, 2013 decision, OWCP’s hearing representative found that appellant
failed to establish that his disability commencing October 13, 2012 was related to his accepted
emotional conditions. Appellant contended that his accepted emotional conditions worsened
such that he was unable to perform his work duties. The Board finds that the medical evidence
of record, however, fails to establish that he sustained a recurrence of total disability due to his
accepted emotional conditions.
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without a new or intervening injury.8 Appellant did not submit sufficient medical
evidence to establish that he became totally disabled as of October 9, 2012 due to his accepted
conditions. Rather, the record reflects that he sustained an intervening injury: a series of CVA
commencing on June 13, 2012 with neurologic and cognitive residuals.
The record reflects that appellant was working four hours a day prior to the CVA on
June 13, 2012. In an August 3, 2012 note, Dr. Razzaq advised that appellant was totally disabled
due to the June 13, 2012 stroke until August 12, 2012. While he released appellant to
4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525, 531 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a
medical condition as a documented need for medical treatment after release from treatment for the accepted
condition).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (October 2009).

6

Ronald A. Eldridge, 53 ECAB 218, 221 (2001).

7

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

8

Id.

4

unrestricted work beginning August 13, 2012, Dr. Razzaq continued to report that appellant had
documented complaints of hemiparalysis, a mild facial weakness, but no significant left arm or
leg weakness. He offered no opinion on whether appellant was disabled on or after
October 13, 2012.
In reports dated October 31 and December 3, 2012, Dr. Ferris opined that appellant was
unable to do light-duty work as his symptoms of anxiety and depression were exacerbated by the
July 2012 stroke. These reports do not support a recurrence of disability due to a spontaneous
recurrence of the accepted emotional conditions, but rather identify the intervening
nonemployment event, the July 2012 stroke as the cause of his current conditions and total
disability.
In a September 11, 2012 report, Dr. Robertson noted appellant’s recent CVA and
reported he was able to work despite the fact he was tripping on his left foot; he could not hold
things with his left hand and that he suffered cognitive and memory problems. In an August 13,
2013 letter, he reported that appellant last worked on November 1, 2012. Dr. Robertson opined
that the 2012 CVA had exacerbated appellant’s chronic work-related impairments and caused
neurologic sequela, including decreased grip strength in the left hand and left foot weakness, so
that he was no longer able to continue light-duty work. This report does not support a recurrence
of disability due to the accepted emotional conditions, but rather to the intervening stroke.
Appellant submitted a June 12, 2013 Form CA-20 from Carol Felts, a nurse. A nurse
practitioner is not a physician as defined under FECA. Ms. Felts’ reports do not constitute
probative medical evidence.9 No reports from Ms. Felts were countersigned by a physician.
Therefore, her reports do not constitute probative medical evidence.
The medical evidence of record does not support a finding of a spontaneous recurrence of
disability. There is no evidence that appellant’s inability to work since October 13, 2012 is
predicated upon residuals of his accepted emotional conditions. In this case, the medical reports
referred to the July 2012 stroke as being responsible for the work stoppage. Appellant has failed
to submit sufficient rationalized medical opinion evidence to establish that he was unable to
work due to his accepted emotional conditions worsening without an intervening cause. Thus, he
is not entitled to wage-loss compensation for the period commencing October 13, 2012.
On appeal appellant’s counsel argues that OWCP’s decision is contrary to fact and law.
As noted, the medical evidence of record reflects that appellant’s accepted conditions were
aggravated by an intervening cause, the July 2012 stroke.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability from October 9, 2012.

9

See 5 U.S.C. § 8101(2); Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians assistants);
Vickey C. Randall, 51 ECAB 357, 360 n.4 (2000) (regarding physical therapists).

5

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.10
Issued: December 12, 2014
Washington, DC

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

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

10

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 14-1043
Issued: December 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 1, 2014 appellant, through her attorney, filed a timely appeal from a
December 12, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her emotional condition claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 6, 2012 appellant, then a 50-year-old letter carrier, filed an occupational disease
claim alleging that she sustained a headache, depression, and stress due to factors of her federal
employment. She stopped work on March 26, 2012.
In an undated statement accompanying the claim, John Cox, a manager, asserted that
appellant’s stress was “of her own making.” He maintained that she had been assigned to three
different routes while he was manager and that the station had received 26 complaints from
customers that she had misdelivered mail. One of her routes had not been formally assessed and
had added stops so one hour was taken off the route. A route assessment conducted on
February 1, 2012 showed that the route was “14 minutes over the adjusted street time.” Mr. Cox
related that on March 12, 2012 appellant backed up along a one-way driveway in violation of
rules and struck a private vehicle.
In a statement received April 10, 2012, Derwin Sullivan, a supervisor, noted that
customers complained about deliveries on each of appellant’s routes. He had attempted
corrective action. Appellant’s current route was believed overburdened by an hour and so she
received one half to one hour of assistance.2
On April 14, 2012 the employing establishment controverted the claim. It asserted that
appellant’s stress was self-generated due to mistakes made in delivery and other events.
In a report dated April 17, 2012, Dr. James B. Meredith, a clinical psychologist, found
that appellant was disabled due to depression and anxiety arising from her employment.
In a psychological report dated May 22, 2012, Dr. Meredith diagnosed adjustment
disorder with anxiety and depression.3 He indicated that appellant was “obsessively worried
about her job and her inability to satisfy her supervisors. Appellant reports recent severe
headaches and crying episodes.” Dr. Meredith stated, “To a fair degree of medical certainty, her
current psychological symptoms are causally associated to her current job. At this time,
appellant continues to be unable to return to work.”
On June 1, 2012 Fred Banks, a coworker and shop steward assistant, asserted that
Mr. Cox rushed appellant even though she had “an overburdened route.”4 He alleged that
Mr. Cox singled out carriers for harassment and accused appellant of not timely delivering a
letter.
2

Mr. Sullivan stated, “On March 12, 2012 [appellant] had a backing accident hitting a privately own[ed] vehicle
in the [employing establishment] one way parking lot causing damage [to] this vehicle.”
3

In a report dated May 21, 2012, Dr. David Eisenberg, a Board-certified internist, related that appellant was
experiencing stress and anxiety at work for the past year and a half. He indicated that he had referred her to a
psychiatrist for treatment.
4

Appellant also submitted witness statements from friends and family. On May 29, 2012 Thomas Hamilton, a
coworker, related that management criticized her work. In a statement received June 11, 2012, a coworker related
that in early March 2012 appellant told her that she was experiencing stress because her route was more than eight
hours and she was “trying to rush doing the route” which resulted in a headache.

2

In statements dated June 2, 2012, appellant related that she initially noticed that she was
having headaches each day. She maintained that she was singled out for harassment by her
supervisor. Appellant related that Mr. Cox was making her March 12, 2012 fender bender into a
more significant incident that was warranted. She also challenged his allegation that her stress
was self-generated. Appellant indicated that she felt rushed and made mistakes because she
could not keep up with the pace. She informed Mr. Cox that her route was “overwhelming.”
Appellant rushed every day to leave the office and then rushed to get back. After she reported a
knee injury, she experienced harassment until she contacted a congressman. Appellant’s vehicle
was vandalized in October 2009. She was assigned a new route in September 2011 that was
overburdened by 1 hour and 20 minutes. Mr. Cox gave appellant an hour off her route but she
was a half hour late every day. In March 2012, he blamed her when a customer did not receive a
certified letter.
By decision dated October 5, 2012, OWCP denied appellant’s emotional condition claim
based on its finding that she had not established an injury in the performance of duty. It found
that she had not established any compensable factors of employment.
In a statement dated August 23, 2013, appellant described her work duties. She related
that in September 2011 her route changed and that her total addresses increased to 1,000 “which
made it impossible to deliver all 7,350 pieces of mail and parcels on the route within an eight
hour period. On average after that route change, I had to work 9.5 to 10 hours to deliver
increased volume of mail.” Appellant indicated that in March and April 2012 the employing
establishment reduced her workload due to her knee problems. She received reprimands for any
mistake. Appellant related that her health declined “under this staggering workload and
efficiency demands.” On December 7, 2012 she had surgery to correct achalasia of the
esophagus and a hiatal hernia.
On September 20, 2012 appellant received treatment in the emergency room for vomiting
blood. In a September 22, 2012 report, a physician noted that she reported a history of taking
more migraine medication then usual due to stress.
A discharge summary dated
September 29, 2012 indicates that appellant underwent endotracheal intubation for achalasia. In
a report dated May 6, 2013, a physician noted that appellant underwent surgery in
December 2012 for achalasia.
On September 20, 2013 appellant, through her attorney, requested reconsideration.
Counsel argued that her reaction to attempting to meet the duties of her position was
compensable. He contended that appellant’s route change in September 2011 was overwhelming
and caused stress due to the additional workload. Counsel alleged that her health deteriorated
due to “staggering workload and efficiency demands.” He discussed appellant’s hospitalization
in September and December 2010 for esophagus problems and contended that stress and the
inability to take time to eat worsened her condition. Counsel noted that she had other medical
conditions, including left knee osteoarthritis and migraines. He asserted that from April to
September 2012 appellant “tried to work through and with the pain in her knee, esophagus, and
stomach.”
On October 24, 2013 OWCP prepared a statement of accepted facts. It identified the fact
that appellant’s route changed in September 2011, that she found it overwhelming, that the

3

number of her addresses and volume of mail increased, and she could not complete her route
within eight hours as compensable work factors. OWCP further provided as a compensable
factor of employment that the employing establishment reduced appellant’s route in March 2012
due to her bilateral knee osteoarthritis but she still had to work one to two hours overtime for
three or four evenings each week to complete her route. It found that appellant had not
established that Mr. Cox treated her unfairly.
On October 24, 2013 OWCP requested that Dr. Meredith review the statement of
accepted facts and provide a detailed report addressing whether appellant sustained an emotional
condition due to the identified compensable work factors.
On October 31, 2013 OWCP referred appellant to Dr. Christiane Tellefsen, a Boardcertified psychiatrist, for a second opinion examination.5
In a report dated December 2, 2013, Dr. Tellefsen noted that appellant related that she
developed knee osteoarthritis which she attributed to her work for the employing establishment.
Appellant received treatment for her knee condition in 2010. Dr. Tellefsen discussed appellant’s
history of gastrointestinal issues resulting in a hospitalization in September 2012 and esophageal
surgery in December 2012. She related that appellant informed her that Mr. Cox initially flirted
with her and then harassed her after she told him to stop his inappropriate behavior.
Dr. Tellefsen noted that appellant related that she was given a demanding route due to her lack of
seniority which she had trouble finishing on time because of her problems with her knees. She
received suspensions for using sick leave too frequently. Appellant’s route increased from 800
mailboxes to 1,000 mailboxes and she received disciplinary action for taking too much time to
deliver mail. She also received a suspension when her telephone died and she could not call to
report that she would be late. Mr. Cox did not like to authorize overtime because it reduced his
bonuses.
Dr. Tellefsen diagnosed an adjustment disorder with anxiety, psychological factors
affecting a physical condition and achalasia. She found that appellant attributed many physical
symptoms to stress beginning in 2011 and believed that her supervisor had sexually harassed her
and then retaliated against her when she discouraged his actions. Dr. Tellefsen stated:
“[Appellant’s] condition was exacerbated by her worsening physical health, with
an accelerating arthritis in her knees and the development of gastrointestinal
problem, which was ultimately diagnosed as achalasia. This condition was
unlikely related to any type of stress; however, as this condition developed her
ability to tolerate stress likely diminished. Likewise, [appellant’s] ability to care
for herself and identify the problem as being solely gastrointestinal was
undoubtedly clouded by her ongoing distress from the situation with her manager.
It was also not clear to me whether the NSAID’s [nonsteroid anti-inflammatory

5

In a report of telephone call dated November 4, 2013, appellant related that she believed that her work-related
stress caused a bleeding ulcer and migraines. By letter dated November 4, 2013, OWCP requested that she submit a
report from an attending physician addressing the cause of her migraines and ulcers and explaining the relationship
of these diagnosed conditions to her employment.

4

drugs] she took for some unknown time period for her knee pain in some way
contributed to the gastrointestinal problem.”
Dr. Tellefsen related that the statement of accepted facts (SOAF) conflicted with appellant’s
version of events regarding her work situation. She stated:
“The SOAF, however, states that [appellant] was not treated unfairly by Mr. Cox.
Thus, it becomes difficult to interpret this situation. If, indeed, [appellant] was
harassed and retaliated against by Mr. Cox, then clearly her psychiatric symptoms
of anxiety, anger, headaches, poor sleep, and other stress complaints would be
consistent with an [a]djustment [d]isorder stemming directly from this work
stress. On the other hand, if there was no harassment or retaliation by her
manager, then it is not clear where her symptoms came from, other than her
physical health condition. Appellant did not describe any other life situations or
stresses outside of work.” (Emphasis in the original.)
“[Appellant’s] symptoms are fully consistent with an [a]djustment [d]isorder,
whether she was adjusting to the work stress from a harassing boss or the work
stress from her worsening physical condition leading to deteriorating work
performance, and thus negative attention from her boss. Given that the SOAF
states she did not suffer harassment at work, I have to default to the latter
explanation. What I then also do not know, is whether her deteriorating knees are
an accepted workers’ comp[ensation] condition. If they are, then conceivably
[appellant’s] work stress would be a complication of the arthritis.”
Dr. Tellefsen attributed appellant’s adjustment disorder with anxiety to her “deteriorating
physical condition and work performance from arthritis and achalasia” and concluded that
“without other evidence to the contrary, her psychiatric condition was not directly caused by her
work.”
By decision dated December 12, 2013, OWCP denied appellant’s claim on the grounds
that she had not established that she sustained an emotional condition due to the accepted work
factor.
On appeal, counsel argues that Dr. Tellefsen did not consider whether her work duties
aggravated her condition. He also contends that the statement of accepted facts did not
adequately describe her workload. Counsel maintains that OWCP did not consider whether work
factors aggravated a physical condition. He also alleges that Mr. Cox erred in informing
appellant that he would not file her occupational disease claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the

5

employment, the disability comes within the coverage of FECA.6 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, it must base its decision on an analysis of the
medical evidence.9
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 The opinion of the
physician must be based on a complete factual and medical background of the claimant,11 must
be one of reasonable medical certainty12 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.13
In Beth P. Chaput,14 the Board set aside and remanded the case to OWCP stating, “it is
not necessary to provide a significant contribution of factors of employment to a condition for
the purpose of establishing causal relationship. If the medical evidence revealed that [a work
factor] contributed in any way to [the employee’s] condition, such condition would be
considered employment related for the purpose of compensation benefits under [FECA].”15

6

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

7

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

8

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

9

Id.

10

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

11

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

12

Supra note 10.

13

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

14

37 ECAB 158 (1985).

15

See also Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131 (1989).

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ANALYSIS
OWCP accepted as compensable work factors that after a September 2011 route change
appellant had to deliver more mail to more addresses and that she could not complete her route in
eight hours. It further accepted that while the employing establishment reduced appellant’s route
in March 2012 because of her knee condition, she still had to work overtime several evenings a
week to finish her route. The Board has held that emotional reactions to situations in which an
employee is trying to meet his or her position requirements are compensable.16 Further, the
employing establishment confirmed that appellant’s route was overburdened. Consequently,
OWCP properly found that as a compensable work factor that she experienced stress in the
performance of her regularly assigned work duties.
OWCP found that appellant had not alleged as a compensable work factor that she
experienced harassment and discriminated by Mr. Cox. If disputes and incidents alleged as
constituing harassment and discrimination by supervisors and coworkers are established as
occurring and arising from the employee’s performance of her regular duties, these could
constitute employment factors.17 The evidence, however, must establish that the incidents of
harassment and discrimination occurred as alleged.18 In a June 1, 2012 statements, Mr. Banks
generally alleged that Mr. Cox harassed carriers and questioned appellant about an untimely
delivered certified letter. He did not, however, provide specific instances of harassment by
Mr. Cox. Appellant has submitted no evidence corroborating her allegation that Mr. Cox
unfairly blamed her for misdelivered mail or singled her out for harassment. Thus, she has not
established harassment or discrimination as compensable employment factors.19
As appellant has established compensable work factors, the issue is whether the medical
evidence supports that she sustained an emotional condition resulting from the accepted
employment factors. In a report dated April 17, 2012, Dr. Meredith diagnosed depression and
anxiety related to appellant’s employment. On May 22, 2012 he diagnosed an adjustment
disorder with anxiety and depression. Dr. Meredith noted that appellant was concerned about her
job and her “inability to satisfy her supervisors.” On October 24, 2013 OWCP requested that he
review a statement of accepted facts and provide an opinion regarding whether appellant
sustained an emotional condition due to the accepted work factors. Dr. Meredith did not,
however, respond to the request. Consequently, it referred appellant to Dr. Tellefesen for a
second opinion evaluation.20
16

Trudy A. Scott, 52 ECAB 309 (2001).

17

Janice I. Moore, 53 ECAB 777 (2002).

18

Id.

19

On appeal, appellant alleges that Mr. Cox told her that it was against policy to file an occupational disease
claim; however, she has not submitted evidence supporting her assertion.
20

On appeal, counsel argues that the statement of accepted facts did not adequately describe appellant’s
workload. The Board finds, however, that OWCP properly set forth the workplace activities which constituted
compensable employment factors. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted
Facts, Chapter 2.809.5(h) (September 2009).

7

In a report dated December 2, 2013, Dr. Tellefsen discussed appellant’s history of
esophageal problems resulting in a hospitalization for September 2012 and esophageal surgery in
December 2012. She further noted that appellant had knee osteoarthritis and headaches.
Appellant informed her that Mr. Cox harassed her when she requested that he stop flirting with
her and suspended her for using sick leave. Her route was difficult and she had trouble finishing
it because of difficulties with her knees. Appellant’s route increased from 800 to 1,000
mailboxes and Mr. Cox began writing her up because she took too long to finish. Dr. Tellefsen
diagnosed an adjustment disorder with anxiety, psychological factors affecting a physical
condition and achalasia. She noted that the SOAF did not identify unfair treatment by Mr. Cox
as a compensable work factor and thus it appeared that her declining physical health caused her
symptoms. Dr. Tellefsen attributed appellant’s adjustment disorder either to harassment from
her supervisor or stress due to declining work performance as a result of her deteriorating
physical condition. She opined that, if appellant’s knee condition was employment related, then
her stress might be a consequence of her osteoarthritis.
While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.21 Once it undertakes to develop the medical
evidence further, it has the responsibility to do so in a manner that will resolve the relevant issues
in the case.22 Accordingly, the Board finds that the case must be remanded to OWCP. On
remand, OWCP should request that Dr. Tellefsen submit a supplemental, clarifying report on the
issue of whether appellant sustained an emotional condition as a result of the compensable work
factors. Following this and any other development deemed necessary, it shall issue a de novo
decision.
On appeal, counsel contends that OWCP erred in failing to consider whether appellant’s
work duties aggravated a physical condition. The issue currently before the Board, however, is
whether appellant has established an emotional condition in the performance of duty causally
related to factors of her federal employment.
CONCLUSION
The Board finds that the case is not in posture for decision.

21

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

22

See Melvin James, 55 ECAB 406 (2004); Walter A. Fundinger, Jr., 37 ECAB 200 (1985).

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ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 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: December 12, 2014
Washington, DC

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

Patricia Howard Fitzgerald, 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
__________________________________________
P.L., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 08-2383
Issued: June 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 2, 2008 appellant filed a timely appeal of the May 6, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs, denying his request for an oral
hearing. Because more than one year has elapsed between the most recent merit decision dated
May 19, 2006 and the filing of the appeal, the Board lacks jurisdiction to review the merits of his
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing as
untimely filed.
FACTUAL HISTORY
On October 1, 2003 appellant, then a 45-year-old electrician, filed a traumatic injury
claim alleging that, on September 24, 2003, he twisted his right knee as a result of tripping on a

crane track. The Office accepted his claim for a contusion and tear of the lateral meniscus of the
right knee and authorized right knee surgery.
On December 16, 2004 appellant filed a claim for a schedule award. By letter dated
December 27, 2004, the Office requested that he submit a medical report from a physician,
which stated whether he had reached maximum medical improvement and whether he sustained
permanent impairment based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001). Appellant was afforded 30 days to submit the requested
evidence. He did not respond within the allotted time period.
By decision dated May 19, 2006, the Office denied appellant’s claim for a schedule
award. It found that appellant failed to submit any medical evidence establishing that he
sustained permanent impairment to a scheduled member of the body due to his accepted
September 24, 2003 employment-related injuries.
On March 20, 2008 appellant requested an oral hearing before an Office hearing
representative. By decision dated May 6, 2008, the Office’s Branch of Hearings and Review
denied his request for a hearing as it was untimely filed. It further reviewed appellant’s request
and denied the hearing as it found that the issue of whether he sustained permanent impairment
to a scheduled member of the body causally related to his accepted September 24, 2003
employment injury could equally well be addressed by requesting reconsideration and submitting
new evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that a claimant
is entitled to a hearing before an Office representative when a request is made within 30 days
after issuance of the Office’s final decision.1 A claimant is not entitled to a hearing if the request
is not made within 30 days of the date of issuance of the decision as determined by the postmark
or other carrier’s date marking2 and before the claimant has requested reconsideration.3
However, when the request is not timely filed or when reconsideration has previously been
requested, the Office may within its discretion grant a hearing or review of the written record and
must exercise this discretion.4
ANALYSIS
Appellant’s request for an oral hearing was dated March 20, 2008, more than 30 days
after the Office’s May 19, 2006 decision. Therefore, his request for an oral hearing was not
timely and he was not entitled to a hearing as a matter of right. The Branch of Hearings and
Review exercised its discretion in denying appellant’s request for an oral hearing by finding that
1

5 U.S.C. § 8124(b)(1).

2

20 C.F.R. § 10.616(a); Tammy J. Kenow, 44 ECAB 619 (1993).

3

Martha A. McConnell, 50 ECAB 129, 130 (1998).

4

Id.

2

he could request reconsideration and submit evidence not previously considered, which
established that he sustained permanent impairment to a scheduled member of the body due to
his accepted September 24, 2003 employment-related injuries. The Board finds that the Branch
of Hearings and Review did not abuse its discretionary authority in denying appellant’s request
for a hearing.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for an oral hearing as
untimely filed.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


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

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Appearances:
Bruce Alan Brumley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-987
Issued: March 19, 2007

Case Submitted on the Record

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

JURISDICTION
On March 29, 2006 appellant filed a timely appeal of August 18 and December 28, 2005
decisions of the Office of Workers’ Compensation Programs which denied her claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction
to review the merits of this claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of
total disability on June 22, 2004 causally related to his August 1, 2001 employment injury.
FACTUAL HISTORY
On August 1, 2001 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim for injuries to his head and neck and dizziness following a motor vehicle accident in which
he was “rear-ended” by another vehicle while driving his postal vehicle. On August 21, 2001 the
Office accepted appellant’s claim for cervical strain. The Office later accepted shoulder strain

neck strain and a temporary aggravation of degenerative disc disease at L4-5. Appellant returned
to full-duty work the day after the accident.
Appellant received treatment from Dr. Michael J. Schmidt, a Board-certified surgeon. In
a report dated July 31, 2002, Dr. Schmidt opined that appellant’s significant low back pain
stemmed from severe spinal stenosis at the L4-5 level and was most likely aggravated at work.
On August 20, 2002 he noted that appellant suffered from severe spinal stenosis at the L4-5
level, which was a chronic condition that had lasted many years. It was most likely that the
automobile accident of August 1, 2001 caused a significant lumbar flexion injury that aggravated
his condition by causing increased bulging of the disc and increased instability at this level of the
spine. Appellant stopped work on August 28, 2002 and on September 13, 2002 underwent right
shoulder arthroscopy and arthroscopic acromioplasty by Dr. Schmidt. He returned to work with
restrictions on September 20, 2002.
On March 21, 2003 appellant saw Dr. Glenn M. Amundson, a Board-certified orthopedic
surgeon, for a second opinion. In a report dated April 6, 2003, Dr. Amundson noted that
appellant remained on light-duty restrictions. Appellant continued to receive treatment by
Dr. Amundson. In a duty status report completed on February 18, 2004, Dr. Amundson stated
that appellant could lift up to 70 pounds for two hours a day. Appellant was further restricted
from sitting or driving a vehicle more than six hours per day, twisting restricted to four hours a
day, standing walking, bending, stooping, pushing or pulling more than two hours a day and
kneeling one hour a day. He was prohibited from reaching above his shoulder. On April 16,
2004 Dr. Amundson indicated that appellant had limitations of sitting, bending and stooping for
six to eight hours a day with no twisting, repetitive movements of the wrist and elbow were
limited to six hours, pushing, pulling and lifting up to 70 pounds were limited to three hours and
appellant was to have frequent breaks.
On April 24, 2004 the employing establishment made an offer of a modified assignment
(limited duty) as a city letter carrier. The employing establishment indicated that appellant
would case mail below shoulder height for two hours, deliver mail for four hours and deliver
express mail for two hours. The offer was made in accordance with the restrictions as set forth
in the duty status report of February 18, 2004. By letter dated May 11, 2004, the Office
informed appellant that the offered position was found to be within his work restrictions and
advised appellant to accept the offer and that failure to report to work will result in the denial of
further compensation for wage loss. On May 17, 2004 the employing establishment modified the
job offer in accordance with the restrictions set forth in the duty status report dated
April 16, 2004. Appellant accepted the modified job offer.
In a duty status report completed on June 18, 2004, Dr. Schmidt indicated that appellant
was limited to lifting 70 pounds. He further restricted appellant from twisting or driving a
vehicle at work. In a note on the form, the employing establishment indicated that appellant
completed the supervisor’s section of the form and that this form was not the same form given to
appellant. On June 22, 2004 appellant took eight hours leave. On June 23, 2004 he began to
work two to three hours a day and take four to five hours a day leave without pay, for which he
filed claims for compensation. Appellant contended that there was no work available for the
remaining hours of the day. The employing establishment controverted his claims. On July 6,
2004 the employing establishment noted that appellant was offered a limited-duty job on

2

May 17, 2004 which was based on the duty restrictions set on April 16, 2004 by Dr. Amundson.
Appellant accepted this offer on May 17, 2004 but was refusing suitable work.
Appellant filed a claim requesting compensation beginning June 22, 2004 contending that
he could not perform the duties of the job offer and the employing establishment had no work
available for him.
On July 28, 2004 Dr. Amundson completed a duty status report indicating that appellant
had not reached maximum medical improvement. He stated that appellant could not twist, could
sit for six hours and stand for one-half hour and should avoid reaching above his shoulder.
Dr. Amundson limited appellant to operating a motor vehicle for “one-half [sic] per episode.”
In a decision dated August 20, 2004, the Office found that appellant failed to establish a
recurrence of total disability beginning June 22, 2004 causally related to the work injury of
August 1, 2001.
On September 2, 2004 appellant requested a hearing and submitted additional evidence.
In an August 8, 2004 report, Dr. Amundson opined that appellant did not have a cervical
neck strain, but had conditions that included a herniated disc and spondylosis with radiculopathy.
He also noted significant aggravation and manifestations of spinal stenosis due to injury of the
L4-5 disc, instead of a right shoulder strain, an aggravation and flare up of right
acromioclavicular arthritis that has resulted in acromioplasty. Dr. Amundson noted that this had
significantly affected his ability to work since the date of the injury. He noted that appellant has
attempted to work and that conditions that require prolonged sitting, repetitive bending or
twisting maneuvers would be expected to exacerbate appellant’s condition. Dr. Amundson listed
final diagnoses as acromioclavicular joint arthritis status post acromioclavicular arthroplasty,
cervical C6-7 herniated disc, C5-6 spondylosis with radiculopathy, degenerative disc disease and
neck pain and lumbar degenerative disc disease with clinical syndrome of spinal stenosis, central
and lateral recess L4-5, and lateral recess L5-S1 with disc injury, T10-11.
In a September 24, 2004 report, Dr. Edward J. Prostic, a Board-certified surgeon, stated:
“On or about August 1, 2001, [appellant] sustained injuries to his cervical spine
and right shoulder in a motor vehicle accident during the course of his
employment.
He subsequently reported difficulties with his low back.
[Appellant] has had good response to surgery to his right shoulder. He has
minimal radicular symptoms to the right upper extremity. Until such time as
[appellant’s] radiculopathy to the arm increases and is refractory to epidural
steroid injections, cervical spine surgery is not indicated. He has MRI [magnetic
resonance imaging] [scan] findings of lumbar spinal stenosis predominantly at
L4-5. At some point he will have sufficient radicular symptoms to the lower
extremity, again unrelieved by epidural steroid injections, for which
decompressive surgery will be appropriate. It is recommended that the patient
return to duties with restrictions as follows: occasional lifting up to 40 pounds
and frequent to 15 pounds (in the optimum position for his low back and not

3

above shoulder level); avoid frequent bending or twisting at the waist, avoid
significant vibrations and be allowed to change position as needed for comfort.”
In a report dated October 1, 2004, Dr. Prostic stated that it was probable that appellant’s
motor vehicle accident caused or contributed to his cervical spine problems. He completed a
work capacity evaluation limiting appellant to twisting, bending or stooping for two hours a day,
and pushing, pulling or lifting 40 pounds two hours a day. In response to a query from the
Office, on October 29, 2004, Dr. Prostic stated that appellant’s low back symptoms were not
reported until February 2002, he could not prove they were caused by the motor vehicle accident
or whether appellant’s difficulties have returned to baseline.
In a statement dated February 23, 2003, the employing establishment contended that
appellant chose to go home and refused to work.
A hearing was held on April 20, 2005. Appellant testified that on May 17, 2004 he was
offered a position in which he would case mail for two hours a day and deliver mail for six hours
a day. He stated that he tried delivering mail but could not tolerate it due to numbness in his
right leg and arm and severe low back pain. Appellant noted that he could stop driving and
stand, but noted that he had a time frame to deliver mail and would not be fast enough if he took
frequent breaks. The employing establishment submitted a response to the hearing on
May 23, 2005. It was noted that appellant’s vehicle was a right hand drive vehicle with an
automatic transmission and equipped with a driver’s seat that could swivel 90 degrees to the left
and right (for a total of 180 degrees). The employing establishment argued that it had
accommodated appellant’s medical restrictions but that he refused to do the work and went
home.
Appellant was seen by Dr. Theodore L. Sandow, Jr., a Board-certified orthopedic
surgeon. In a report dated April 26, 2005, Dr. Sandow diagnosed right shoulder impingement
syndrome, status postoperative right acromioplasty, musculigamentous strain, lumbar spine with
intermittent radiculopathy, central and forminal spinal stenosis, L4-5 and L5-S1, herniation C67, and degenerative joint and disc disease, cervical spine. He opined that the occupational injury
of August 1, 2001 was a cause or substantial contributing factor to cause the right shoulder, neck
and low back injuries. Dr. Sandow noted that appellant had preexisting degenerative joint and
disc disease in the cervical spine and preexisting central and forminal stenosis in the lumbar
spine and that these conditions were aggravated by the occupational injury. He noted that
appellant had not reached maximum medical improvement. Dr. Sandow indicated that appellant
should avoid repetitive bending, stooping and twisting and should be limited to no lifting over 50
pounds on an occasional basis and 70 pounds on a rare basis. He opined that appellant should
not sit or drive a vehicle for more than 30 minutes at a time and should be allowed to change
positions as necessary. Dr. Sandow concluded that appellant was unable to meet the
requirements of a mail carrier.
On June 7, 2005 appellant’s union steward stated that appellant’s job required twisting,
and could not be performed without twisting. He overheard appellant ask his supervisor several
times for work after the two hours casing was finished and was told that there was not any work
available.

4

On June 20, 2005 appellant stated that he was currently working the only job that the
employing establishment offered him, which allowed only two hours of work a day. He stated
that the employing establishment had other light-duty work but they would not offer it to him.
On July 19, 2005 appellant’s manager reiterated that appellant was taught how to perform
his job delivering mail without twisting. He contended that the employing establishment
provided appellant work within his restrictions for eight hours a day, but appellant only worked
two hours a day. Appellant’s modified job did not require him to do any repetitive bending,
stooping or twisting. He indicated that appellant rarely had to lift a 70-pound package but, if he
did, the employing establishment could easily accommodate him by providing assistance.
Appellant’s manager further noted that all restrictions set by Dr. Sandow are accommodated in
appellant’s current job.
By decision dated August 18, 2005, the Office affirmed the June 22, 2004 decision
denying a recurrence of disability on June 22, 2004.
On November 9, 2005 appellant filed a request for reconsideration. He submitted another
affidavit, dated October 18, 2005, from appellant’s union steward. Appellant stated that the
swivel chair used by appellant in his job was not a special chair but the same chair used by other
drivers and therefore was not an accommodation. He contended that it would be impossible to
do the job without twisting and bending. Appellant contended that, even with the swivel seat, he
could not avoid twisting and bending his back.
Appellant also submitted two reports by Dr. Sandow. On August 31, 2005 Dr. Sandow
stated that he reviewed the hearing transcript and that appellant’s injuries to his right shoulder,
neck and low back areas were “completely, totally and permanently aggravated by the August 1,
2001 injury.” He further stated:
“On May 17, 2004 [appellant] had been offered a job at the employing
establishment doing the same job category that he was in when he was injured on
August 1, 2001. He attempted to perform this job of truck delivery on a full-time
basis, however, he was unable to accomplish this and was only able to work two
hours because of the recurrence of his low back symptoms. This recurrence of
[appellant’s] low back symptoms on May 17, 2004 was a permanent injury
resulting in significant alteration of his work capacity as outlined by his treating
surgeon. This reoccurrence (sic) is a continuance of symptoms of his August 1,
2001 injury. It is my medical opinion that these symptoms represent a recurrence
of the original injury’s symptoms.
“Presently, [appellant] has disabling symptoms in both the cervical and lumbar
spine and will undoubtedly require surgical management in both areas. He will be
unable to ever return to gainful employment as a mail carrier as his permanent

5

physical injuries will prevent him from meeting the requirements and job
description of a mail carrier.”
In a note dated October 26, 2005, Dr. Sandow stated that he reviewed the affidavits of appellant
and the union steward and it was his opinion that appellant was unable to perform the job
described. He concluded that the job description would not meet appellant’s restrictions.
In a decision dated December 28, 2005, the Office denied modification of the August 18,
2005 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.1 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his established physical
limitations.2
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden of
establishing by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he cannot perform such light duty. As part of this burden, the employee
must show a change in the nature and extent of the light-duty job requirements.3
The Board will not require the Office to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.4
ANALYSIS
In the instant case, appellant contends that he sustained a recurrence of total disability on
June 22, 2004 causally related to the accepted injury of August 1, 2001. His claim for an injury
on August 1, 2001 was accepted for cervical strain, shoulder strain, neck strain and temporary
aggravation of degenerative disc disease L4-5. Appellant initially worked full time until
1

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

2

Id.

3

Barry C. Peterson, 52 ECAB 120, 125 (2000).

4

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

September 13, 2002 when he underwent right shoulder surgery. He returned to work on
September 21, 2002 as limited duty. Commencing on or about June 22, 2004, appellant began
working approximately two hours a day casing mail and filed claims for disability, alleging that
there was no work at the employing establishment within his restrictions. The Office contended
that appellant was offered employment within his restrictions but that appellant refused to work
the full day, leaving after casing mail was done.
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability. The employing establishment made its job offer within the restrictions of
Dr. Amundson’s February 18, 2004 report. Dr. Amundson stated that appellant could lift up to
70 pounds for two hours a day, was restricted from driving a vehicle more than six hours a day,
and was restricted to twisting four hours a day. In an April 16, 2004 report, he indicated that
appellant could not perform any twisting. Accordingly, the employing establishment modified
appellant’s job offer further to accommodate the twisting restrictions. Specifically, the
employing establishment noted that it showed appellant how to perform his job without twisting.
It also provided a swivel seat in his vehicle that turned 180 degrees in order that appellant did not
need to twist his back if he followed the proper procedures. While appellant and the union
steward contend that the job could not be performed without twisting, the record indicates that
adequate accommodation and training was provided. Appellant acknowledged that he only tried
delivering mail for two hours. Although appellant indicated that he aggravated his back when he
tried to deliver mail, there is no indication that he sought treatment of the alleged recurrence on
June 22, 2004.
In a duty status report dated June 18, 2004, Dr. Schmidt indicated that appellant was
prohibited from twisting or driving a vehicle at work. There is no indication that Dr. Schmidt
examined appellant when he wrote these restrictions. Furthermore, there is no explanation as to
why appellant was prohibited from driving a vehicle. On July 28, 2004 Dr. Amundson limited
appellant to operating a motor vehicle one-half per episode. It is unclear what Dr. Amundson
meant. Although the column heading is “number of hours [a]ble to [w]ork,” in the block
immediately preceding this, Dr. Amundson indicated that appellant could bend or stoop for onehalf day. Accordingly, it is unclear whether Dr. Amundson was prohibiting appellant from
driving more than one-half a day or one-half an hour. He did note that a frequent change in
positions is required and appellant stated that he could get out of the car and stand, if needed. In
an August 8, 2004 report, Dr. Amundson indicated that appellant told him that he attempted to
work and that his job, which required prolonged sitting, repetitive bending and twisting, would
be expected to aggravate his back condition. Appellant did not establish as factual the nature of
the bending and twisting performed as in excess of his restrictions. An opinion may not be based
on surmise or speculation.5 Dr. Prostic indicated that appellant could twist two hours a day,
which was more than the position required. At no time did he indicate that appellant sustained a
recurrence on or about June 22, 2004. After reviewing affidavits of record and the hearing
transcript, Dr. Sandow did not believe that appellant would be able to return to work as a mail
carrier. However, in reaching his conclusion, Dr. Sandow relied on appellant’s statement that he
needed to excessively twist his back during his employment, which has not been established as
factually accurate. In his August 31, 2005 report, Dr. Sardow stated that appellant’s latest
5

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

7

symptoms recurred on May 17, 2004. However, it appears that Dr. Sardow is basing his
conclusion solely on appellant’s statements. Dr. Sardow first saw appellant on August 26, 2005,
approximately 10 months after the alleged recurrence. As noted there is no medical report of
record contemporaneous to the injury addressing the recurrence.
Accordingly, appellant has not met his burden of proof to establish a recurrence of total
disability beginning June 22, 2004 causally related to his accepted August 1, 2001 injury.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability on June 22, 2004 causally related to his August 1, 2001 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 28 and August 18, 2005 are affirmed.
Issued: March 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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