United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0042
Issued: December 27, 2016

Case Submitted on the Record

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

JURISDICTION
On October 14, 2016 appellant filed a timely appeal from a September 30, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his lumbar
condition was causally related to the accepted June 1, 2016 employment incident.
FACTUAL HISTORY
On June 2, 2016 appellant, a 49-year-old boilermaker, filed a traumatic injury claim
(Form CA-1) alleging that he injured his lower back in the performance of duty on June 1, 2016.
At that time, he was working on a nuclear-powered ballistic missile submarine, water jetting
1

5 U.S.C. § 8101 et seq.

condenser tubes. Appellant experienced a sharp pain down both legs, his feet became cold and
numb, and his lower back started to hurt. He stopped work on June 1, 2016.
On June 1, 2016 appellant was seen in the employing establishment health clinic by
Dr. Ernest L. Fair, a Board-certified occupational medicine specialist. Dr. Fair reported that
appellant had been working inside a workbox lancing the main condenser when he started feeling
numbness and tingling in both feet and pain in his lower back. He also noted that appellant had a
history of chronic back pain and had received injections in 2013 at the Naval Medical Center -Portsmouth (NMCP). Dr. Fair made a provisional diagnosis of low back pain and referred
appellant to neurosurgery at NMCP. He also indicated that appellant was temporarily totally
disabled.
Appellant returned to the employing establishment health clinic on June 6, 2016 for
follow-up. Dr. Gary E. Caplan, a Board-certified occupational medicine specialist, released him
to sedentary or modified light-duty work. Appellant subsequently returned to work performing
office duties with a 15-pound lifting restriction.
In a July 28, 2016 report, Dr. Qi Lin, a Board-certified pain management specialist,
diagnosed lumbar radiculopathy, osteoarthritis of the spine with radiculopathy -- lumbar region,
chronic lower back pain, and lumbosacral disc degeneration. He noted that the onset of
appellant’s back injury was many years prior, but worsened since June 2016.
In an August 10, 2016 attending physician’s report (Form CA-20), Dr. Fair reiterated his
diagnosis of low back pain and opined that appellant was totally disabled for the period June 1
to 5, 2016.
In an August 29, 2016 letter, OWCP advised appellant that the evidence received thus far
was insufficient to establish entitlement to FECA benefits. It requested additional factual and
medical evidence and afforded appellant 30 days to submit the required evidence.
OWCP subsequently received additional employing establishment treatment records,
including several diagnostic studies of appellant’s lumbar spine. An August 6, 2006 magnetic
resonance imaging (MRI) scan showed disc herniation and degenerative disc disease at L4-5 in
association with a mild annular bulge, loss of the normal lumbar lordosis, and perhaps minimal
bilateral L5 lateral recess narrowing. A January 24, 2013 computerized tomography (CT) scan
of the lumbar spine was normal, and a February 25, 2013 lumbar CT scan revealed an L4-5 disc
extrusion and left sacroiliac joint osteophytes. Additionally, an April 18, 2014 MRI scan of the
lumbar spine demonstrated a borderline disc protrusion at L3-4 without impingement and an
L4-5 disc herniation.
OWCP also received medical reports and physical therapy treatment records from
January 2013 through October 2014. The relevant treatment records, dated January 24,
February 26, March 4, April 4, June 25, September 13, October 23, 2013, March 5, July 8, and
October 6, 2014, were from NMCP’s pain management, neurosurgery, and chiropractic clinics.
Appellant’s diagnoses included sciatica, lumbago, lumbar neuritis, lumbosacral disc
degeneration, and herniated intervertebral lumbar disc. The treatment records also indicated that
appellant received a series of caudal epidural steroid injections in 2013 and 2014.

2

In a July 6, 2016 report, Dr. John Engler, a Board-certified neurologist, noted that
appellant had a long, multi-year history of low back and right hip region pain described as
stiffness with rare radiation into the lower extremity. He further noted that one month prior
appellant had developed a severe onset of new symptoms, including burning and cramping in the
bilateral lateral thighs and pain into the right lateral calf which occurred intermittently.
Dr. Engler noted that appellant’s diagnostic studies showed an annular tear at L4-5 with severe
central canal stenosis. He diagnosed lumbar spinal stenosis. Dr. Engler believed appellant’s
acute back pain was from the annular tear, which likely exacerbated his preexisting canal
stenosis and was secondarily causing the claudication symptoms. He referred appellant for
additional physical therapy and recommended additional lumbar epidural steroid injections.
By decision dated September 30, 2016, OWCP denied the claim as the medical evidence
submitted was insufficient to establish a causal relationship between appellant’s conditions and
the June 1, 2016 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.2
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.3 The second component is whether the employment incident caused a
personal injury.4 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.5
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.6
2

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
5

Shirley A. Temple, 48 ECAB 404, 407 (1997).

6

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

3

Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.7
ANALYSIS
OWCP has accepted that the employment incident of June 1, 2016 occurred at the time,
place, and in the manner alleged. The issue is whether appellant’s lower back condition resulted
from the June 1, 2016 employment incident. The Board finds that appellant did not meet his
burden of proof to establish a causal relationship.
The record is replete with medical evidence demonstrating a preexisting lumbar
condition. Appellant’s lumbar MRI scans revealed an L4-5 disc herniation as early as
August 2006. Additionally, records from NMCP revealed that appellant received treatment for
several lumbar-related conditions during the period January 2013 through October 2014. His
prior diagnoses included sciatica, lumbago, lumbar neuritis, lumbosacral disc degeneration, and
herniated intervertebral lumbar disc.
When Dr. Fair examined appellant on June 1, 2016 following the condenser tube water
jetting incident, he noted that appellant had a history of chronic back pain for which he received
injections in 2013. He diagnosed low back pain in his initial June 1, 2016 treatment notes, and
he provided the same finding/diagnosis in his August 10, 2016 attending physician’s report
(Form CA-20). However, low back pain is a symptom, not a specific medical diagnosis.8
Furthermore, Dr. Fair did not provide an explanation of how the June 1, 2016 employment
incident either caused or contributed to appellant’s current lumbar complaints. He noted that
appellant was previously diagnosed with L4-5 disc herniation, and experienced an exacerbation
secondary to a new injury incurred while at work on June 1, 2016. The mere fact that a
condition manifests itself during a period of employment is not sufficient to establish causal
relationship.9 Temporal relationship alone will not suffice.10 Accordingly, Dr. Fair’s June 1 and
August 10, 2016 reports are insufficient to establish that appellant’s claimed lumbar condition is
causally related to the accepted June 1, 2016 employment incident.
In his July 6, 2016 report, Dr. Engler noted appellant’s long, multi-year history of low
back and right hip complaints. He also noted that one month prior, appellant experienced a
severe onset of new symptoms, including burning and cramping in the bilateral thighs and pain
into the right lateral calf, which occurred intermittently. Dr. Engler noted that appellant’s
diagnostic studies showed an annular tear at L4-5 with severe central canal stenosis. He
7

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician
assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
8

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
9

20 C.F.R. § 10.115(e).

10

See D.I., 59 ECAB 158, 162 (2007).

4

diagnosed lumbar spinal stenosis. Dr. Engler believed appellant’s acute back pain was due to the
annular tear, which likely exacerbated his preexisting canal stenosis and was secondarily causing
the claudication symptoms. A physician’s opinion on causal relationship must be based on a
complete factual and medical background and must be supported by medical rationale.11
Dr. Engler did not indicate whether there was a causal relationship between appellant’s current
condition and the June 1, 2016 employment incident.
In his July 28, 2016 report, Dr. Lin diagnosed chronic lower back pain, lumbar
radiculopathy, lumbosacral disc degeneration, and osteoarthritis of the lumbar spine with
radiculopathy. He asserted that appellant’s condition had an onset many years prior, but
worsened since June 2016. The Board finds that Dr. Lin failed to provide sufficient medical
rationale explaining the mechanism of how work on water jetting condenser tubes at work on
June 1, 2016 caused appellant’s lower back condition to worsen. The need for rationale is
particularly important as the evidence of record indicates that appellant had a preexisting lower
back condition. As noted, a temporal relationship alone will not suffice for purposes of
establishing causal relationship.12
Appellant also submitted copies of physical therapy notes. However, reports from a
physical therapist do not rise to the level of competent medical opinion evidence under FECA.13
The Board finds that the evidence of record fails to establish a causal relationship
between the June 1, 2016 employment incident and appellant’s diagnosed lumbar condition.14
Accordingly, appellant has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his lumbar
condition is causally related to the June 1, 2016 employment incident.

11

Victor J. Woodhams, supra note 4.

12

See D.I., supra note 10.

13

Supra notes 6 and 7.

14

Appellant’s personal belief that his employment activities either caused or contributed to his condition is
insufficient, by itself, to establish causal relationship. 20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426,
440 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the September 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 13-51
Issued: January 23, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On October 10, 2012 appellant filed a timely appeal from the April 9, 18 and 26, 2012
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claims for wage-loss
compensation for the period February 15 through March 23, 2012.
FACTUAL HISTORY
On December 31, 2011 appellant, a 55-year-old mail handler, filed a traumatic injury
claim alleging that she sustained a right hand injury on that date when a shelf fell on her right

1

5 U.S.C. § 8101 et seq.

thumb and finger while she was pushing a “post case” at work. Her claim was accepted for an
open wound of the right finger without complications.
The record contains an emergency room note dated January 8, 2012 bearing an illegible
signature. The note indicated that appellant could return to work on that date.
Appellant was treated by Dr. Oscar E. Verzosa, a Board-certified internist. In a disability
slip dated January 12, 2012, Dr. Verzosa diagnosed laceration right thumb and stated that
appellant was unable to work from January 8 through 25, 2012. On January 20, 2012 he stated
that appellant was unable to work from January 25 through February 20, 2012.
In a letter dated February 16, 2012, OWCP asked Dr. Verzosa to clarify appellant’s
current medical status.
On February 24, 2012 appellant filed a claim for wage-loss compensation alleging that
she was totally disabled due to her accepted injury from February 15 through 24, 2012.
Appellant submitted notes written on a prescription pad from Dr. Verzosa. On
February 15, 2012 Dr. Verzosa stated that appellant would not be ready to go back to work until
March 31, 2012. Notes dated February 17, 2012 reflected a diagnosis of laceration, contusion
and sprain of the right thumb.
In a February 27, 2012 attending physician’s report, Dr. Verzosa noted that appellant had
sustained a deep laceration and sprain of her right thumb when a metal post fell on her right
thumb and cut it open. He indicated by placing a checkmark in the “yes” box that the diagnosed
condition was causally related to her employment. Dr. Verzosa stated that appellant would be
able to resume her normal duties on March 31, 2012. The report did not contain examination
findings.
By letter dated March 5, 2012, OWCP informed appellant that the information submitted
was insufficient to establish her claim and advised her to submit contemporaneous medical
evidence of the disability for the period claimed. It provided her 30 days to submit the required
evidence.
In a February 29, 2012 duty status report, Dr. Verzosa diagnosed “laceration” and
indicated that appellant could return to work on a full-time basis on March 5, 2012. The record
contains continuing prescriptions from Dr. Verzosa for physical therapy beginning
February 15, 2012.
On March 10, 2012 appellant filed a claim for wage-loss compensation alleging that she
was totally disabled due to her accepted injury from February 25 through March 9, 2012.
By letter dated March 15, 2012, OWCP informed appellant that the information
submitted was insufficient to establish her claim for disability for the period February 25 through
March 9, 2012 and advised her to submit contemporaneous medical evidence of the disability for
the period claimed.

2

Appellant submitted a March 13, 2012 report from Dr. Richard Mackessy, a Boardcertified orthopedic surgeon, who diagnosed chronic pain syndrome of the right thumb.
Dr. Mackessy stated that she had sustained a work injury on December 31, 2011 when a tray fell
on her hand, cutting the tip of her finger. Examination revealed that appellant’s thumb was still
swollen and tender to the touch. X-rays were negative.
On March 23, 2012 appellant filed a claim for wage-loss compensation alleging that she
was totally disabled due to her accepted injury from March 10 through 23, 2012.
Appellant submitted a March 20, 2012 report from Dr. Naomi Betesh, a Board-certified
physiatrist. On examination, Dr. Betesh noted limited range of motion in the right thumb, healed
laceration and intact sensation to light touch. She diagnosed pain in the hand and fingers and
possible Reflex Sympathetic Dystrophy (RSD) condition.
By letter dated March 26, 2012, OWCP informed appellant that the information
submitted was insufficient to establish her claim for disability for the period March 10
through 23, 2012 and advised her to submit contemporaneous medical evidence of the disability
for the period claimed.
The record contains a March 28, 2012 statement of accepted facts reflecting that
appellant was released to return to full duty on January 8, 2012. Appellant worked only one hour
before leaving her post and had not returned to work as of the date of the Statement of Accepted
Facts.
In a decision dated April 9, 2012, OWCP denied appellant’s claim for compensation for
the period February 15 through 24, 2012, finding that the evidence did not support that she was
disabled during the claimed period as a result of her December 31, 2011 injury. The claims
examiner also indicated that she had failed to explain how the diagnosed RSD condition was
causally related to the accepted incident. In a decision dated April 18, 2012, OWCP denied
appellant’s claim for compensation for the period February 25 through March 9, 2012.
Appellant submitted an April 11, 2012 report from Dr. Mackessy, who diagnosed chronic
pain syndrome. Dr. Mackessy found some discoloration of the right thumb and some sensitivity
on examination. He opined that appellant could work light duty using her right hand as a helper
hand. Appellant should be restricted from lifting more than two pounds. The record contains a
December 31, 2011 x-ray of the right fingers.
In a decision dated April 26, 2012, OWCP denied appellant’s claim for compensation for
the period March 10 through 23, 2012, finding that the record did not contain medical evidence
explaining how she was disabled due to the accepted laceration or how the RSD condition was
causally related to her accepted condition.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.2 For each period of disability
claimed, the employee has the burden of establishing that she was disabled for work as a result of
the accepted employment injury.3 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proven by a
preponderance of probative and reliable medical opinion evidence.4 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so, would essentially
allow an employee to self-certify their disability and entitlement to compensation.5
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.6 To be considered rationalized, the opinion of the physician must be
based on a complete factual and medical background of the claimant,7 must be one of reasonable
medical certainty8 and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.10 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.11

2

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
3

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24 (1980).

4

See Edward H. Horton, 41 ECAB 301 (1989).

5

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

See Viola Stanko, claiming as widow of (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10
ECAB 560, 572-73 (1959).
7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

20 C.F.R. § 10.5(f).

11

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

4

ANALYSIS
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her claimed total disability for the claimed
periods and the accepted laceration.12 The reports of her physicians do not provide a rationalized
medical opinion finding her disabled for work for the claimed periods due to her accepted
condition. Therefore, the medical evidence submitted is insufficient to meet appellant’s burden
of proof.13
Dr. Verzosa did not provide a narrative report explaining how appellant’s claimed
disability was causally related to her accepted injury. In his February 27, 2012 attending
physician’s report, he provided a history of injury and indicated by placing a checkmark in the
“yes” box that the diagnosed condition was causally related to her employment. A mere
checkmark or affirmative notation in response to a form question on causal relationship is not
sufficient to establish causal relationship.14 Dr. Verzosa stated that appellant would be able to
resume her normal duties on March 31, 2012. He did not, however, definitively state that she
was totally disabled or explain how the claimed disability was causally related to her accepted
condition. Therefore, the report is of limited probative value.15
The record contains reports and disability slips from Dr. Verzosa for the period
January 12 through February 29, 2012 indicating that appellant was unable to work from
January 8 through March 31, 2012. None of these reports contain an explanation as to how her
inability to work is causally related to her accepted laceration.16
Dr. Mackessy’s reports are also of limited probative value. On March 13, 2012
Dr. Mackessy diagnosed chronic pain syndrome of the right thumb. He provided a history of
injury and examination findings. Dr. Mackessy did not, however, provide any opinion as to
whether appellant was disabled during any of the claimed periods due to the accepted laceration.
His report therefore does not support her claim. In his April 11, 2012 report, Dr. Mackessy
diagnosed chronic pain syndrome and opined that appellant could work light duty provided that
she was restricted from lifting more than two pounds. He did not opine, however, that her
inability to perform her date-of-injury job was due to her accepted laceration. Rather,
Dr. Mackessy’s report implied that her disability was due to a condition that had not been
accepted by OWCP. Moreover, the report did not address whether appellant was disabled during
the claimed periods and, therefore, it is insufficient to establish entitlement to compensation.

12

See Amelia S. Jefferson, supra note 2.

13

Alfredo Rodriguez, 47 ECAB 437 (1996).

14

See Gary J. Watling, 52 ECAB 278 (2001).

15

See Brenda L. DuBuque, 55 ECAB 212 (2004); George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the
Board found that a medical opinion not fortified by medical rationale is of little probative value).
16

Id.

5

Dr. Betesh’s March 20, 2012 report also fails to establish that appellant was disabled for
the periods in question. Dr. Betesh provided examination findings and diagnosed pain in the
hand and fingers and possible RSD condition. She did not provide a definitive diagnosis17 or an
opinion as to appellant’s disability during the claimed periods nor did she explain how
appellant’s current condition is causally related to the accepted laceration. Therefore, her report
is of limited probative value.
The remaining medical evidence of record, including prescriptions for physical therapy
and x-ray reports, does not contain an opinion as to whether appellant was disabled during the
claimed periods.
Because appellant has not submitted any reasoned medical opinion evidence to show that
she was disabled during the periods in question as a result of her accepted employment injury,
the Board finds that OWCP properly denied her claims for wage-loss compensation.
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 established that she was disabled for work and
entitled to wage-loss compensation for the claimed periods.

17

Pain is a symptom, not a compensable medical diagnosis.
October 10, 2008).

6

C.F., Docket No. 08-1102 (issued

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 26, 18 and 9, 2012 are affirmed.
Issued: January 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1056
Issued: August 17, 2007

Case Submitted on the Record

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

JURISDICTION
On March 1, 2007 appellant filed a timely appeal from a December 13, 2006 decision of
the Office of Workers’ Compensation Programs’ hearing representative who affirmed a July 14,
2006 decision terminating her wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation.
FACTUAL HISTORY
On January 3, 2005 appellant sustained an injury when she fell at work that day. Her
claim was accepted for right lower back contusion, right wrist contusion and right knee
contusion on March 29, 2005. The record indicates that appellant had a prior injury claim which
had been accepted for bilateral plantar fascitis. The record indicates that she did not return to

work on January 4, 2005, pending left foot surgery. Appellant underwent surgery on February 3
and March 3, 2005, related to her other accepted claim.
In a March 8, 2005 report, Dr. Henry Fuentes, Board-certified in orthopedic surgery,
stated that he had examined appellant. He summarized his assessment of appellant’s condition
as “status post low back contusion and right wrist contusion, symptomatically improved
degenerative joint disease of her knees.” Appellant was released to full work duties on
March 14, 2005 by Dr. Fuentes. In an April 19, 2005 letter, Dr. Fuentes opined that the incident
on January 3, 2005 aggravated the degenerative joint disease in appellant’s knees.
In an April 21, 2005 letter, the Office informed appellant that it proposed to terminate her
compensation on the basis that she no longer had disability related to the January 3, 2005 injury.
In a progress note dated February 14, 2006, Dr. Fuentes stated that appellant was seen for
complaints of persistent back pain, since January 3, 2005. He recommended that appellant
undergo a magnetic resonance imaging (MRI) scan. Dr. Jon R. Jester, a Board-certified
radiologist, obtained an MRI scan on February 25, 2006 which revealed facet arthropathy, disc
bulging and spondylosis at L3-4 with severe right and moderate left foraminal narrowing;
spondylosis, disc bulging and facet arthropathy at L2-3, moderately severe left and moderate
right foraminal narrowing.
On April 5, 2006 appellant filed a claim for compensation for the period March 14, 2005
through March 14, 2006. In an April 19, 2006 letter, the Office informed appellant that
additional evidence was needed. The Office subsequently scheduled appellant for a second
opinion medical examination with Dr. Leonard R. Smith, Board-certified in orthopedic surgery.
In a May 16, 2006 report, Dr. Smith opined that appellant’s accepted diagnoses of right
low back contusion, right wrist contusion and right knee contusion had resolved. He noted that
appellant was 5’3” and weighed 312 pounds. Dr. Smith stated:
“Based upon the present objective findings, diagnoses of right lower back
contusion, right wrist contusion and right knee contusion have subsided or healed.
She does exhibit symptoms of possible residual knee discomfort based on prior
knee condition nonrelated to her work injury. Her most predominant problem at
this time is morbid obesity and depression. As far as her nonrelated conditions,
she is disabled from work at this time.”
In a July 14, 2006 decision, the Office terminated appellant’s entitlement to
compensation for wage-loss benefits based on Dr. Smith’s opinion that her accepted conditions
had healed.
On August 15, 2006 appellant requested a review of the written record. By decision
dated December 13, 2006, an Office hearing representative affirmed the termination of benefits.

2

LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.1 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.2
ANALYSIS
Appellant fell at work on January 3, 2005. This claim was accepted for a right low back
contusion, right wrist contusion and right knee contusion. Her treating physician, Dr. Fuentes,
opined as early as March 14, 2005, based on a thorough medical examination, that she was no
longer disabled due to these accepted conditions. On May 15, 2006 appellant was referred for a
second opinion medical examination. Dr. Smith also found that appellant’s accepted conditions
had healed. He opined that physical examination and objective finding substantiated that
appellant’s continuing disability was due to her morbid obesity and her nonwork-related medical
conditions. The Office bears the burden to justify termination of benefits and has done so by
establishing that appellant’s accepted conditions have ceased. There is no medical evidence of
record disputing that her accepted conditions have resolved.
Although Dr. Fuentes opined in a report dated April 19, 2005 that the work incident on
January 3, 2005 aggravated appellant’s degenerative joint disease of the knees, he did not
provide any rationalized medical opinion in support of his conclusion. The Board notes that
appellant had a long history of bilateral knee complaints, but that her January 3, 2005 claim form
did not indicate that she had injured her knees in any manner on that day. Where an employee
claims that a condition not accepted or approved by the Office was due to an employment injury,
she bears the burden of proof to establish that the condition is causally related to the employment
injury.3 Appellant has not met her burden to prove that her bilateral knee degenerative joint
disease was aggravated by the work incident on January 3, 2005 because she did not provide
sufficient rationalized medical opinion, based on a proper medical history and history of injury to
support causal relationship. Dr. Fuentes reexamined appellant in 2006 for continuing back
complaints and recommended MRI scan examination. Following the MRI scan examination
Dr. Fuentes offered no opinion relating the findings to the January 3, 2005 injury. The reports
from Dr. Fuentes are not sufficient to establish that appellant’s spondylosis facet arthropathy or
disc bulging is related to the January 3, 2005 injury.
CONCLUSION
The Office properly terminated appellant’s wage-loss compensation effective
July 14, 2006.
1

Curtis Hall, 45 ECAB 316 (1994).

2

Jason C. Armstrong, 40 ECAB 907 (1989).

3

Jaja K. Asaramo, 55 ECAB 200, 204 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE ARMY, WOMACK
ARMY MEDICAL CENTER, Fort Bragg, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Martin Kaplan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-504
Issued: September 3, 2008

Case Submitted on the Record

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

JURISDICTION
On December 10, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 14, 2007 merit decision denying her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On March 21, 2006 appellant, then a 44-year-old medical data technician, filed a claim
alleging that she sustained major depression due to harassment by supervisors and coworkers and

changes in work procedures and workload. She stopped work on March 8, 2006.1 In an
April 20, 2006 letter, the Office requested that appellant submit additional factual and medical
evidence in support of her claim.
Appellant submitted a statement in which she discussed the incidents and conditions at
work which she believed caused her emotional condition. She claimed that, when she first began
working for the radiology transcription department in 1998, Sergeant Henry, a supervisor, denied
her request to use accrued leave to grieve for her recently deceased mother. Appellant alleged
that the employees of her work unit were divided along racial lines and that there was confusion
regarding the roles of various employees. She alleged that she received a performance rating that
was lower than she deserved and that Sergeant Henry did not adequately address her concerns
regarding this matter. Appellant asserted that she was unfairly excluded from working to earn
compensatory time and that she was improperly placed on the night shift.2 She alleged that two
coworkers, Rita Ruble and Ruby Lucas, unreasonably scrutinized her mammogram reports and
took credit for producing them. Appellant claimed that Sergeant Savannah Praymous, who
became her supervisor in 1999, was not able to rectify this or other concerns she brought to her.
After appellant was diagnosed with depression, Sergeant Pryce, a coworker, violated her
privacy by telling another coworker about the diagnosis. Appellant claimed that Ms. Lucas,
Ms. McCloud and several management officials began to treat her as a “basket case” and feared
communicating with her. Doris Hunter, a department secretary, incorrectly told Ms. Lucas and
Ms. McCloud that appellant had suffered a “nervous breakdown.” Appellant claimed that after a
move to another workplace in March 2000 she had to work overtime “around the clock” to keep
up with her work assignments. She alleged that her workplace was noisy and that a notice was
posted in the workplace which named the people who complained about the noise. Appellant
asserted that not everyone had equal access to the workstations and that the Dictaphone system
was constantly shutting down and causing a backlog of work. She claimed that Gerald Woodall,
a health systems specialist, did not keep everyone equally informed about work matters and
became hostile when she broached the subject with him.
Appellant claimed that Sergeant McCraven, who became her supervisor in 1999, showed
partiality towards other employees and became hostile when she confronted him about this
practice. She asserted that other managers did not adequately address her concerns regarding
favoritism. Appellant claimed that a number of coworkers, including Antonia Rodriguez, made
“smart remarks” to her and showed “plenty of attitude” let doors slam in her face and did not
speak to her in passing. She asserted that Sergeant McCraven made mocking comments about
her to her coworkers and claimed that he did not adequately manage the workload in her unit.
Dr. Theodore Dorsey became hostile towards her shortly after he became her supervisor in mid
2001. In December 2002, he rudely slammed a report on her desk. Appellant believed that
Patricia Qualls was hired in March 2002 for the purpose of taking job duties way from her and

1

An employing establishment official submitted a statement in which he denied that appellant was subjected to
harassment.
2

Appellant indicated that she came to like working the night shift but was upset when she was switched to the
day shift which involved more “bickering” by employees.

2

she indicated that she was angry about a letter Ms. Qualls wrote to a supervisor in May 2002,
which unfairly questioned her mental stability.
Appellant asserted that in September 2002 she should have received a performance award
that was received by other employees. She claimed that during an October 11, 2002 meeting
with supervisors Ms. Qualls blurted out that she “needed a doctor.” Appellant indicated that
printing paper was placed on her desk and that Mr. Woodall harassed her about the matter. She
claimed that Nina Jefferson, a coworker, unfairly complained to management that her perfume
was bothering her and that other employees made insulting comments about the matter. Sergeant
Anthony E. Buckmon, who became her supervisor in late 2002, unfairly denied a leave request.
Appellant claimed that Sara Oswald, a coworker, who worked in the adjoining cubicle, made
several harassing comments to her and falsely accused her of making a threat. She alleged that
on one occasion that Sergeant Buckmon ordered her to type mammogram reports that were not
her responsibility to type. Appellant asserted that in 2005 she was unfairly turned down for a
promotion.
Appellant submitted numerous documents, including copies of performance evaluations,
job descriptions, e-mail communications with coworkers and supervisors and memoranda of
record she wrote about various events.3 In a number of e-mails and memoranda, produced
between the Spring and Autumn of 2002, appellant indicated that she periodically worked
overtime, including evenings and weekends. Appellant also submitted medical reports
describing the treatment of her emotional condition, including reports of Dr. Susan Myers, an
attending Board-certified psychiatrist.
The record contains a May 12, 2002 memorandum addressed to Sergeant Askew in which
Ms. Qualls expressed concern about what she felt was appellant’s angry and emotionally
unstable behavior at work. Ms. Qualls believed that, given this behavior, appellant might act in a
physically violent manner towards her coworkers. She requested that Sergeant Askew keep the
information in the letter between them and “necessary staff.”
In an October 12, 2006 decision, the Office denied appellant’s emotional condition claim.
It accepted one employment factor with respect to the May 12, 2002 memorandum written by
Ms. Qualls.4 The Office determined that she did not submit sufficient evidence to establish any
other employment factors. It found that appellant did not submit sufficient medical evidence to
show that she sustained her claimed emotional condition due to the accepted factor.
Appellant submitted additional documents, including more e-mail communications with
coworkers and supervisors and memoranda to record she wrote about various events. She
submitted additional medical evidence regarding the treatment of her emotional condition.
The record contains a December 2, 2002 document concerning a grievance appellant filed
in which an employing establishment official indicated that certain actions would be taken with
3

In the memoranda, appellant often detailed conflicts she had with supervisors and coworkers.

4

The Office stated, “In May 2002, Ms. Qualls wrote a report about you and submitted it to your supervisor. The
letter suggested that you are emotionally unstable.”

3

regard to ensuring “equality of workload,” preventing self-appointment of lead transcriptionists
and distributing copies of performance evaluations. There is no finding in the document of
wrongdoing by the employing establishment with respect to these matters. In a January 23, 2007
statement, a person with an illegible signature, asserted that Ms. Ruble and Ms. Lucas took credit
for appellant’s work and that beginning in March 2002 transcription personnel had to work
“around the clock” to reduce a backlog.
In June 2007, appellant requested reconsideration of her claim. She submitted factual
statements which provided further detail regarding her claimed employment factors. Appellant
asserted that the breakdown of the Dictaphone machines was particularly common in 2004. She
asserted that, despite employee shortages, backlogs of transcriptions were expected to be
resolved within 72 hours and claimed that she had to work many evenings and weekends to
resolve such backlogs.
In a July 25, 2007 statement, Mr. Woodall acknowledged that for a short-lived period
after the March 2000 move to another workplace there were problems with the Dictaphone
system which caused employees to work extra time.5 He indicated that the Dictaphone system
was an old system which sometimes needed to be repaired but asserted that the repairs were done
in a timely manner. Mr. Woodall denied appellant’s claims about the violation of her privacy
regarding her medical condition. He indicated that the workplace had a normal amount of noise
and denied that a notice was posted listing the names of people who complained about the noise.
In a September 14, 2007 decision, the Office affirmed its October 12, 2006 decision. It
again found that appellant did not submit adequate medical evidence to show that she sustained
an emotional condition due to the accepted factor, i.e., Ms. Qualls May 2002 letter.
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 her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.6 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.7

5

In a July 30, 2007 statement, another employing establishment official stated that Mr. Woodall meant the phrase
“short-lived” to mean no more than one week. However, there was no additional statement from Mr. Woodall
clarifying this phrase.
6

5 U.S.C. §§ 8101-8193.

7

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

4

Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by employment factors.8 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, 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.10 If a claimant does implicate a factor of
employment, the Office 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, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several of
employment incidents and conditions. The Office denied appellant’s emotional condition claim
on the grounds that, although she established one employment factor, she did not submit
sufficient medical evidence to show that she sustained her claimed emotional condition due to
that factor. The Board must initially review whether the Office properly determined that only
one alleged incident or condition of employment was a covered employment factor under the
terms of the Act.
Appellant alleged that harassment and discrimination on the part of her supervisors and
coworkers contributed to her claimed stress-related condition. She contended that the employees
of her work unit were divided along racial lines and that two coworkers, Ms. Ruble and
Ms. Lucas, harassed her by taking credit for producing her reports. Appellant claimed that
Ms. Lucas, Ms. McCloud and several management officials treated her as a “basket case” due to
her medical condition. Mr. Woodall, a health systems specialist, and several supervisors,
including Sergeant McCraven and Dr. Dorsey, became hostile when she asked them to address
various matters. Appellant asserted that a number of coworkers, including Ms. Rodriguez, made
“smart remarks” to her, showed “plenty of attitude” towards her, let doors slam in her face and
did not speak to her in passing. She claimed that during an October 11, 2002 meeting with
supervisors Ms. Qualls, a coworker, blurted out that she “needed a doctor.” Appellant claimed
that Ms. Jefferson, a coworker, unfairly complained to management that her perfume was
bothering her and that other employees made insulting comments about the matter. She asserted
8

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

9

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

10

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

11

Id.

5

that Ms. Oswald, a coworker, who worked in the adjoining cubicle, made several harassing
comments to her and falsely accused her of making a threat. Appellant claimed that a notice was
posted in the workplace which named the people who complained about the noisy work
environment.
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.12
However, for harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under the Act.13 In the present case, the
employing establishment denied that appellant was subjected to harassment or discrimination
and she has not submitted sufficient evidence to establish that she was harassed or discriminated
against by her supervisors or coworkers.14 Appellant alleged that supervisors and coworkers
made statements and engaged in actions which she believed constituted harassment and
discrimination, but she did not provide sufficient corroborating evidence, such as witness
statements, to establish that the statements actually were made or that the actions actually
occurred.15 Thus, she has not established a compensable employment factor under the Act with
respect to the claimed harassment and discrimination.
Appellant also alleged that she received performance ratings that were lower than she
deserved, that she was unfairly excluded from working to earn compensatory time and that she
was improperly placed on the night shift for a period. She asserted that in September 2002, she
should have received a performance award that was received by other employees. Appellant
claimed that supervisors, including Sergeant Henry and Sergeant Buckmon, unfairly denied
leave requests on several occasions. She took issue with the fairness of work assignments and
felt that her work was often unfairly scrutinized. Appellant alleged that on one occasion that
Sergeant Buckmon ordered her to type mammogram reports that were not her responsibility to
type. She asserted that in 2005 she was unfairly turned down for a promotion.
Regarding appellant’s allegations that the employing establishment engaged in improper
disciplinary actions, issued unfair performance evaluation and awards, wrongly denied leave,
improperly assigned work duties and work shifts, mishandled promotions and unreasonably
monitored her activities at work, the Board finds that these allegations relate to administrative or
personnel matters, unrelated to the employee’s regular or specially assigned work duties and do

12

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

13

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

14

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).
15

See William P. George, 43 ECAB 1159, 1167 (1992). In a January 23, 2007 statement, a person with an
illegible signature asserted that Ms. Ruble and Ms. Lucas took credit for appellant’s work. However, this statement
is too vague in nature to establish that appellant was harassed as alleged.

6

not fall within the coverage of the Act.16 Although the handling of such matters generally related
to the employment, they are administrative functions of the employer and not duties of the
employee.17 However, the Board has also found that an administrative or personnel matter will
be considered to be an employment factor where the evidence discloses error or abuse on the part
of the employing establishment. In determining whether the employing establishment erred or
acted abusively, the Board has examined whether the employing establishment acted
reasonably.18
The Board finds that appellant did not submit sufficient evidence to establish that the
employing establishment committed error or abuse with respect to these matters. The employing
establishment denied that it committed wrongdoing with respect to administrative matters and
appellant did not submit probative evidence, such as the findings of grievances, to support her
claims. The record contains a December 2, 2002 document concerning a grievance appellant
filed in which an employing establishment official indicated that certain actions would be taken
with regard to several administrative maters, but there is no finding in the document of
wrongdoing by the employing establishment with respect to these matters. Appellant has not
established a compensable employment factor under the Act with respect to administrative
matters.
The Office notes that it properly accepted one factor with respect to employing
establishment wrongdoing in the administrative function of protecting an employee’s privacy. It
properly accepted a factor with respect to the apparent distribution of the May 12, 2002
memorandum addressed to a supervisor in which Ms. Qualls expressed concern about what she
felt was appellant’s angry and emotionally unstable behavior at work.19
Appellant claimed that, between the Spring and Autumn 2002, after a move to another
workplace, she had to work overtime, including evenings and weekends, to keep up with her
work assignments. She asserted that the Dictaphone system often shut down and caused a
backlog of work. The Board has held that emotional reactions to situations in which an
employee is trying to meet her position requirements are compensable.20 The record contains
documents which support appellant’s claims including a statement of Mr. Woodall and her own
e-mails and memoranda. Therefore, appellant has established an employment factor under
Cutler with respect to the above-described overtime work and backlogs.21
16

See Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
17

Id.

18

See Richard J. Dube, 42 ECAB 916, 920 (1991).

19

The Board notes, however, that appellant did not establish any other alleged invasions of her privacy.

20

See Georgia F. Kennedy, 35 ECAB 1151, 1155 (1984); Joseph A. Antal, 34 ECAB 608, 612 (1983).

21

Appellant also alleged that her work environment was unusually noisy. The Board has recognized that an
unsafe or environmentally unpleasant work condition can constitute a factor of employment.
See
Peggy Ann Lightfoot, 48 ECAB 490, 494 (1997). However, appellant did not establish the factual aspect of this
claim.

7

As appellant has established the above-described additional compensable employment
factors, the Office must base its decision on an analysis of the medical evidence. The Office found
only one compensable employment factor with respect to Ms. Qualls’ letter. It did not analyze or
develop the medical evidence with regard to these additional employment factors. The case will be
remanded to the Office for this purpose.22 After such further development as deemed necessary,
the Office should issue an appropriate decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met her burden of proof to establish that she sustained an emotional condition in the performance
of duty. Appellant has established the above-described employment factors in addition to the
previously accepted factor regarding Ms. Qualls’ letter. The case is remanded to the Office for
consideration of the medical evidence to be followed by an appropriate decision on appellant’s
emotional condition claim.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
September 14, 2007 decision is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: September 3, 2008
Washington, DC

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

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

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

22

See Lorraine E. Schroeder, 44 ECAB 323, 330 (1992).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0231
Issued: August 27, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On December 4, 2020 appellant filed a timely appeal from a June 15, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a stress-related
condition on September 30, 2019 in the performance of duty, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the June 15, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 10, 2019 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 2019 he experienced a panic attack after a customer
threatened to shoot him. He returned to the employing establishment facility and required medical
treatment for a panic attack. Appellant stopped work that day.
On October 7, 2019 Dr. Mihir Jittendra Amin, a Board-certified internist, indicated that
appellant was disabled from work from September 30 through October 9, 2019.
The record contains one page from an employing establishment accident report form. The
form indicated that appellant was delivering mail on September 30, 2019 when a customer used a
racial epithet and told him “comeback here or I am going to put a bullet on you.” Appellant
returned to the office and asked to see his physician for a panic attack.
In a development letter dated October 22, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a questionnaire for his completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide additional
information regarding the claimed employment incident, including comments from a
knowledgeable supervisor regarding the accuracy of his allegations and explaining areas of
disagreement. It further requested the submission of any documents that corroborated, refuted, or
provided insight into the allegations.3 OWCP advised the employing establishment that, under 20
C.F.R. § 10.117(b), it could accept appellant’s allegations as factual if it did not fully reply. It
afforded both parties 30 days to respond.
In an undated response, M.P., a manager at the employing establishment, related that an
employing establishment scanner had verified that appellant was at the claimed location at the time
of the alleged incident. He advised that inspectors with the employing establishment had gone to
the address and spoken with the customer, but that the customer had denied the allegations. M.P.
related, “We can only confirm that [appellant] returned to this office with signs of being stressed
out and asking to see a doctor since he was having an anxiety attack.”
By decision dated November 22, 2019, OWCP denied appellant’s traumatic injury claim.
It found that the evidence of record was insufficient to establish that the September 30, 2019
employment incident occurred as alleged.
On December 3, 2019 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received a state workers’ compensation form dated September 30, 2019
signed by Dr. Lien Quoc Tran, an osteopath. Dr. Tran obtained a history of appellant experiencing
3

The development letter to the employing establishment specifically requested that it state whether they concurred
with appellant’s allegations and, if there were points of disagreement, fully explain and provide supportive evidence.
It further requested that they identify any agency employees that had additional information on any of appellant’s
allegations and to provide witness statements by such employees.

2

anxiety, dizziness, and work stress after a customer used a racial epitaph and threatened to put a
bullet in him. He noted that appellant had reported the incident to his supervisor. Dr. Tran
diagnosed stress and found that he could perform his usual employment.
A telephonic hearing was held on April 6, 2020. Appellant related that he had approached
a garage slot to insert mail when a customer gestured for the mail with his hand. He told him “no,
sorry” and put the mail in the slot. Appellant continued to deliver mail, but when he was on the
other side of the street the customer told him that if he came back he would “put a bullet in” him.
He had a panic attack. When he got back to his vehicle, appellant called his manager to report the
incident. He sought medical treatment on the date of the incident. Appellant provided the name
of the street where the customer lived, which differed somewhat from the name on the claim form.
He indicated that the form might have contained a typographical error. Appellant advised that he
had not filed a police report.
In a statement dated April 19, 2020, appellant described his emotional and stress-related
physical problems subsequent to the September 30, 2019 incident. He related that the employing
establishment had not provided him with the investigative report even though he had submitted a
written request. Appellant provided the address where the incident occurred. He noted that he
had immediately informed his supervisor of the incident and believed that the customer had
followed him back to the office in a truck.
By decision dated June 15, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.
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 timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.8
OWCP’s procedures provide:
“An employee who claims to have had an emotional reaction to conditions of
employment must identify those conditions. The [claims examiner] must carefully
develop and analyze the identified employment incidents to determine whether or
not they in fact occurred and if they occurred whether they constitute factors of the
employment. When an incident or incidents are the alleged cause of disability, the
[claims examiner] must obtain from the claimant, agency personnel and others,
such as witnesses to the incident, a statement relating in detail exactly what was
[stated] and done. If any of the statements are vague or lacking detail, the
responsible person should be requested to submit a supplemental statement
clarifying the meaning or correcting the omission.”9
OWCP’s regulations provide that an employer who has reason to disagree with an aspect
of the claimant’s allegation should submit a statement that specifically describes the factual
argument with which it disagrees and provide evidence or argument to support that position.10 Its
regulations further provide in certain types of claims, such as a stress claim, a statement from the
employer is imperative to properly develop and adjudicate the claim.11
ANALYSIS
The Board finds that this case is not in posture for decision.
By development letter dated October 22, 2019, OWCP specifically requested that the
employing establishment state whether they concurred with appellant’s allegations and, if there
were points of disagreement, fully explain and provide supportive evidence. It also requested that
they identify any agency employees that had additional information on any of appellant’s
allegations and to provide witness statements by such employees. OWCP further requested the
submission of any documents that corroborated, refuted, or provided insight into the allegations.
It advised the employing establishment that, under 20 C.F.R. § 10.117(b), it could accept
appellant’s allegations as factual if it did not fully reply. OWCP afforded both parties 30 days to
respond.

8
See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.17(j) (July 1997). See
also S.L., Docket No. 17-1780 (issued March 14, 2018).
10

20 C.F.R. § 10.117(a); G.K., Docket No. 20-0508 (issued December 11, 2020).

11

Supra note 9 at Chapter 2.800.7(a)(2) (June 2011).

4

In an undated response, a manager at the employing establishment, M.P., advised that a
scanner verified that appellant was at the identified location at the time of the claimed incident.
He indicated that inspectors had spoken to the customer at the alleged location of the incident, but
the customer had denied the allegations. M.P. confirmed that appellant had returned to the office
on that date showing signs of stress and alleging that he needed to see a physician for anxiety.
The Board finds, however, that the employing establishment did not adequately respond to
OWCP’s October 22, 2019 development letter.12 The employing establishment did not provide a
detailed statement indicating whether it concurred with appellant’s allegations or any documents
that supported, refuted, or provided insight into appellant’s allegations. As well, the record
supports that an investigation was conducted as investigators with the employing establishment
spoke with the customer at the address where the alleged incident occurred; however, the
investigative report is not found in the case record.
Although it is a claimant’s burden of proof to establish his or her claim, OWCP is not a
disinterested arbiter but, rather, shares responsibility in the development of the evidence,
particularly when such evidence is of the character normally obtained from the employing
establishment.13
The case will therefore be remanded to OWCP for further development of the evidence.
OWCP shall request that the employing establishment provide a detailed statement and submit all
evidence relevant to the identified incident in its possession, including any report of investigation
regarding the September 30, 2019 incident. Following this and any further development as
deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

G.I., Docket No. 19-0942 (issued February 4, 2020).

13

R.A., Docket No. 17-1030 (issued April 16, 2018); K.W., Docket No. 15-1535 (issued September 23, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 27, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
HEATH & SAFETY ADMINISTRATION,
Boston, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 11-920
Issued: October 26, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On March 2, 2011 appellant filed a timely appeal from a February 16, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration as it was untimely filed and failed to establish clear evidence of error. The
Board docketed the appeal as No. 11-920.
The Board finds that appellant timely requested reconsideration. This case has
previously been before the Board. In a decision dated November 10, 2010, the Board affirmed
October 1 and November 20, 2009 decisions denying her claim that she sustained an injury to
her knees on April 3, 2008 in the performance of duty.1 On December 18, 2010 appellant
requested reconsideration. In a decision dated February 16, 2011, OWCP denied her request for
reconsideration of its November 20, 2009 merit decision after finding that it was untimely filed
and did not show clear evidence of error.
The Board has duly considered the matter and notes that a right to reconsideration within
one year, however, accompanies any merit decision on the issues, including a decision by the

1

Docket No. 10-567 (issued November 10, 2010).

Board.2 Appellant’s December 18, 2010 request for reconsideration was within one year of the
Board’s November 10, 2010 decision. As her request was timely, OWCP improperly denied her
request by applying the legal standard reserved for cases where reconsideration is requested
more than one year after the last merit decision. The Board will set aside the February 16, 2011
decision and remand the case for consideration of appellant’s reconsideration request under the
standard for timely reconsideration requests.3 After such further development as OWCP deems
necessary, it should issue an appropriate decision.
IT IS HEREBY ORDERED THAT the February 16, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 26, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1)
(January 2004); Robert F. Stone, 57 ECAB 292 (2005); Larry J. Lilton, 44 ECAB 243 (1992).
3

See 20 C.F.R. § 10.606(b).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL PROTECTIVE SERVICE,
NATIONAL PROTECTION & PROGRAMS
DIRECTORATE, Boise, ID, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 12-1430
Issued: January 9, 2013

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 June 18, 2012 appellant, through his attorney, filed a timely appeal of the March 14,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on October 27, 2011 while in the performance of duty.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 17, 2011 appellant, then a 54-year-old police inspector, filed a traumatic
injury claim alleging that at 1:00 p.m. on October 27, 2011 he sustained Guillain-Barre
Syndrome. He related that, while on duty in Baker City, Oregon, he had lunch and became ill
with food poisoning. Appellant had neurologic damage and paralysis of his bilateral legs, arms
and hands. He stopped work on October 31, 2011. Appellant’s regular work hours were from
6:00 a.m. to 4:00 p.m., Monday through Thursday.
On the claim form, Derno L. Rocca, an area commander, stated that appellant was in the
performance of duty on October 27, 2011.
Hospital emergency room records dated November 1, 2011 provided a diagnosis of
bilateral upper and lower extremity weakness. The record contains November 1, 2011 laboratory
test results. Progress notes dated November 2 through 22, 2011 from Dr. Jackie J. Whitesell, a
Board-certified neurologist, advised that appellant had Guillain-Barre Syndrome.
By letter dated February 9, 2012, OWCP advised appellant that when his claim was
initially received it appeared to be a minor injury that resulted in minimal or no lost time from
work. Based on this criteria and the fact that the employing establishment did not controvert
continuation of pay or challenge the merits of the case, payment for a limited amount of medical
expenses was administratively approved. As appellant’s claim had not been formally considered
it was reopened because his medical bills exceeded $1,500.00. He was advised to submit
additional factual evidence in support of his claim. Appellant was afforded 30 days to submit the
requested evidence. He did not respond.
On February 9, 2012 OWCP requested that the employing establishment submit evidence
regarding appellant’s travel status and work duties on October 27, 2011. It was asked to provide
whether he was on travel or temporary duty status at the time of the injury, when and where he
last performed his official duties, the purpose of the trip, where he was traveling to when the
accident occurred and when and where was he expected to perform his next official duty.
During a February 9, 2012 telephone conference Commander Rocca advised OWCP that
he was appellant’s partner. They were on temporary duty for the day in Baker City, Oregon.
Commander Rocca stated that he and appellant were affected by the lunch they ate at a
restaurant. He ate pork and appellant ate turkey and mashed potatoes. Commander Rocca stated
that he suffered from intestinal upset which was not as serious as appellant’s condition. He
could not recall the name of the restaurant.
In a November 2, 2011 report, Dr. Ryan D. Heyborne, Board-certified in emergency
medicine, advised that appellant had upper and lower extremity weakness.
By letter dated February 14, 2012, the employing establishment stated that appellant was
not on temporary duty. He was on a regular directed patrol within his area of responsibility at an
assigned federal facility. Appellant last performed his official duties at Wheeler Federal
Building, 1550 Dewey Street, Baker City, Oregon. The purpose of the trip was for him to

2

perform regular patrol and tenant contact at the federal facility. He was enroute to his area of
responsibility in Boise, Idaho to perform his next official duty.
In a March 14, 2012 decision, OWCP denied appellant’s claim, finding that his
October 27, 2011 injury did not arise in the performance of duty. It found that he did not submit
the requested factual evidence to establish that the injury or incident occurred as alleged. OWCP
further found that the evidence was insufficient to establish that appellant sustained food
poisoning while on patrol in Baker City, Oregon.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.2 The phrase
sustained while in the performance of duty in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of arising out of and in the course of
employment.3
To arise in the course of employment, an injury must occur at a time when the employee
may reasonably be said to be engaged in the master’s business, at a place where he may
reasonably be expected to be in connection with the employment and while he was reasonably
fulfilling the duties of his employment or engaged in doing something incidental thereto.4
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and places of work while going to or coming from work or during
a lunch period, are not compensable, as they do not arise out of and in the course of employment.
Rather, such injuries are merely the ordinary, nonemployment hazards of the journey itself,
which are shared by all travelers.5 This is generally known as the coming and going rule.6 Due
primarily to the myriad of factual situations presented by individual cases over the years, certain
exceptions to the general rule have developed where the hazards of travel may fairly be
considered a hazard of employment. Exceptions to the general coming and going rule have been
recognized, which are dependent upon the relative facts to each claim: (1) where the
employment requires the employee to travel on the highways; (2) where the employer contracts
to and does furnish transportation to and from work; (3) where the employee is subject to
emergency calls, as in the case of firemen; (4) where the employee uses the highway to do
something incidental to his or her employment with the knowledge and approval of the

2

Id. at § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

4

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

5

See John M. Byrd, 53 ECAB 684 (2002); see also Gabe Brooks, 51 ECAB 184 (1999); Thomas P. White, 37
ECAB 728 (1986); Robert F. Hart, 36 ECAB 186 (1984).
6

See R.C., 59 ECAB 427 (2008).

3

employer; and (5) where the employee is required to travel during a curfew established by local,
municipal, county or state authorities because of civil disturbances or other reasons.7
Where an employee is on temporary-duty assignment away from his federal employment
he is covered by FECA 24 hours a day with respect to any injury that results from activities
essential or incidental to his temporary assignment.8
The Board has recognized that Larson, in his treatise, The Law of Workers’
Compensation, sets forth the general criteria for performance of duty as it relates to travel
employees or employees on temporary-duty assignments as follows:
“Employees whose work entails travel away from the employer’s premises are
held in the majority of jurisdictions to be within the course of their employment
continuously during the trip, except when a distinct departure on a personal errand
is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating
in restaurants away from home are usually held compensable.”9
ANALYSIS
OWCP determined that appellant did not sustain an injury arising in the performance of
duty on October 27, 2011. The Board finds that this case is not in posture for decision.
The evidence establishes that, although appellant became ill during his normal work
hours, it did not occur on the employing establishment premises. Appellant argued that he was
on duty in Baker City, Oregon when he developed food poisoning after eating lunch at a
restaurant. Commander Rocca supported his contention, stating that appellant was in the
performance of duty on October 27, 2011 as they were on temporary duty in Baker City, Oregon.
Subsequently, the employing establishment contradicted this statement, contending that appellant
was not on temporary duty but instead was on a regular directed patrol assignment at the
Wheeler Federal Building in Baker City. The Board notes that there is no evidence of record as
to whether this was a fixed place of employment where he regularly performed most of his duties
or whether he performed the majority of his duties at sites located off of the employing
establishment premises and should be considered an off-premises worker. Based on the
conflicting evidence of record, the Board is unable to make a fully informed adjudication of the
performance of duty issue. OWCP failed to make a determination as to whether appellant was
on temporary duty as he contended, had a fixed place of employment as contended by the
employing establishment or was an off-premises worker. The case shall be remanded to OWCP
to obtain additional evidence from the employing establishment regarding appellant’s
employment status to be followed by a de novo decision on the merits determining whether he
sustained an injury in the performance of duty.
7

Melvin Silver, 45 ECAB 677 (1994); Estelle M. Kasprazak, 27 ECAB 339 (1976); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.6(a)(1) (August 1992).
8

See Susan A. Filkins, 57 ECAB 630 (2006); Cherie L. Hutchings, 39 ECAB 639 (1988).

9

A. Larson, The Law of Workers’ Compensation § 25.01 (2008); see also Susan A. Filkin, supra note 8;
Lawrence J. Kolodzi, 44 ECAB 818 (1993).

4

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
was injured on October 27, 2011 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further consideration
consistent with this decision.
Issued: January 9, 2013
Washington, DC

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

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

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

5