United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Redondo Beach, CA, Employer
__________________________________________

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Appearances:
William H. Brawner, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1270
Issued: February 4, 2020

Case Submitted on the Record

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

JURISDICTION
On May 20, 2019 appellant, through counsel, filed a timely appeal from an April 2, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On October 2, 2018 appellant, then a 54-year-old computer engineer, filed an occupational
disease claim (Form CA-2) alleging that he sustained an emotional condition due to factors of his
federal employment including overwork and lack of training. He noted that he first became aware
of his claimed condition and its relation to his federal employment on March 27, 2018. He stopped
work on July 10, 2018.
In a statement dated October 3, 2018, appellant attributed his stress to overwork and the
lack of training. He noted that he had been assigned four programs and one contract receipt and
review (CRR) task, which he alleged exceeded the maximums specified in the Software
Surveillance Plan (SSP). Appellant stated that the maximum workload for his position was 1,740
hours per year and that his workload has been approximately 2,295.5 hours per year, or
approximately 53 hours per week and 132 percent of the normal workload. He explained that on
June 9, 2018 he had submitted a Family and Medical Leave Act (FMLA) request, and on that date
his workload consisted of one CRR task and four programs. Appellant noted that his workload
had been increasing since April 19, 2018 and provided four specific examples. First, on April 19,
2018, he was required to perform surveillance on a B2 program for which he had no training.
Appellant claimed that training for this task normally takes about seven months. Second, he
asserted an increased workload on June 14, 2018 when he was assigned the “F35 program.” Next,
on June 25, 2018 appellant claimed he was assigned additional programs requiring more work.
Finally, on July 18, 2018, he alleged that he was required to sign off on “DD250,” which was a
task he was not authorized to perform as he did not have the required training. Appellant also
alleged: that he was required to perform duties without a mentor as a trainee, which he noted was
required by agency regulations and procedures; that he was forced to use his personal property to
perform his duties as he had not been provided the necessary computer equipment; that he had
been reprimanded on several occasions; and that he feared that he was unable to adequately
perform his work duties so he had requested FMLA leave.
In support of his claim, appellant submitted a September 24, 2018 report from Dr. Sara
Epstein, a Board certified psychiatrist and neurologist. Dr. Epstein diagnosed post-traumatic stress
disorder (PTSD), prior alcohol use disorder, labile hypertension, and mixed traits. She provided
detailed medical, social, and employment histories. Dr. Epstein’s narrative report recounted
specific instances of overwork and lack of training occurring during the period August 2017 to
June 20, 2018. She noted that appellant started work with the employing establishment on July 10,
2017 and that in August 2017 he worked with C-RAM C2 computer program without assistance
and adequate training. Dr. Epstein noted that on January 14, 2018 appellant requested a laptop
from the employing establishment so that he could perform his job and developed anxiety as he
could not perform his job and when no laptop was provided, appellant brought in his personal
laptop to perform his basic job tasks. She further noted that in March 2018, appellant related that
he had been ordered to discontinue work on the C-RAM C2 program and start working alone on
the B2 program when he was already assigned to work on two other programs, with these two

2

programs constituting a full workload. Dr. Epstein indicated that a C-RAM C2 customer protested
appellant’s removal from the program in April 2018, which resulted in his being instructed to add
surveillance for the Formal Quality Test and B2 program to his existing heavy workload. She also
indicated in June 2018 he was assigned three days per month to work on the F35 program, which
exceeded the 1,740 hours allotted to a full-time employee and at this time he became anxious and
fearful that he could not perform his job. Dr. Epstein reported that appellant confirmed that he
should not be assigned to do four programs due to his lack of having a software professional
development program (SPDP) certificate and it was a very heavy workload. She reported that
appellant had noted that D.F. confirmed he was not qualified to perform software surveillance on
four programs as no mentor had been assigned, he had not begun a mentorship task, and he had
not finished the SPDP program; and that appellant was assigned to a cyber-resilience review task,
which required eight hours per day for three weeks along with the other four programs he was
assigned to do. Dr. Epstein opined that appellant’s diagnosed conditions were caused by the
increasing heavy workload.
In a February 26, 2019 development letter, OWCP advised appellant of the deficiencies in
his claim. It requested additional factual and medical evidence and provided a questionnaire for
his completion. OWCP afforded appellant 30 days to submit the requested information. In a
separate letter of even date to the employing establishment, it requested comments from a
knowledgeable supervisor regarding the accuracy of his statements.
In response to OWCP’s request, appellant submitted a March 20, 2019 report from
Dr. Epstein who noted the medical records reviewed, examination dates, and description of
symptoms and findings. Dr. Epstein opined that appellant’s symptoms were consistent with a
diagnosis of PTSD, chronic stress, and depression. Diagnoses were unchanged from her prior
September 24, 2018 report. Dr. Epstein further opined that appellant sustained a severe permanent
aggravation of his preexisting PTSD due to overwork at his job which in turn caused appellant to
fear catastrophic failure. In support of this conclusion, she explained that appellant had recovered
substantially from his preexisting PTSD and showed no overt symptoms prior to working at the
employing establishment. If not for the overwork, Dr. Epstein concluded that appellant would
have remained symptom free and, thus, the overwork had aggravated his stress syndrome, which
in turn resulted in new symptomatology.
In a March 26, 2019 letter, the employing establishment responded to OWCP’s request. It
noted that appellant was one course away from completing his SPDP and had been assigned a
mentor and that the software surveillance task on the B2 program were the same tasks performed
on his other programs. The employing establishment noted that software personnel were on a team
which supports various programs throughout the year. It used 1,760 hours as the number of hours
for a full-time employee and that tasks which exceed this number would be reassigned or
eliminated if low risk. Thus, when appellant was assigned the F35 task, due to his higher risk, it
eliminated some of his assigned lower risk tasks. It noted that 2,156.50 hours exceeded a regular
40-hour workweek and there had been no direction that appellant should work overtime. The
employing establishment indicated that it was an oversight agency, there was no overtime
requirement, the workload was risk-based surveillance, deadlines were twice a month, and there
were two travel training events. Finally, the employing establishment listed actions taken to
accommodate appellant’s workplace concerns. It also noted no conduct or performance problems

3

and that generally appellant was able to meet expectations with respect to the performance of his
employment duties.
The employing establishment submitted a “student profile” for appellant showing his
training history, position description, and premium request summary. The training history noted
one course, CME 250 -- Software Acquisition Management Policy Implementation, had not been
completed and that he had completed the other 14 courses. Appellant was approved to earn
cumulative CB -- Travel Compensatory time for February 26, March 2, and June18 to 22, 2018
(13.5 hours). His requests for approval to earn cumulative CB -- Travel Compensatory time for
February 26 and March 2, 2018 were withdrawn.
By decision dated April 2, 2019, OWCP denied appellant’s claim finding that he had not
established an emotional condition in the performance of duty as he failed to submit sufficient
corroborating evidence to prove a compensable factor of employment. It concluded, therefore,
that the requirements had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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
employment injury.4 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.5
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
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.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.7 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
3

5 U.S.C. § 8101 et seq.

4

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

5

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
6

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).
7
T.G., Docket No. 19-0071 (issued May 28, 2019); L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB
622 (2006).

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reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered when it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position.9
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.10 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.11
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.12
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.13
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.14
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 compensable factors of
employment and may not be considered.15 If an employee does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor. As a rule,
allegations alone by a claimant are insufficient to establish a factual basis for an emotional
condition claim. The claim must be supported by probative evidence.16 If a compensable factor
of employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence which has been submitted.17

8
L.H., Docket No. 18-1217 (issued May 3, 2019); Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB
125 (1976).
9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

See G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170-71 (2001), 52
ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB 556 (1991).
11

See O.G., Docket No. 18-0359 (issued August 7, 2019); D.R., Docket No. 16-0605 (issued October 17, 2016);
William H. Fortner, 49 ECAB 324 (1998).
12

B.S., Docket No. 19-0378 (issued July 10, 2019); Ruth S. Johnson, 46 ECAB 237 (1994).

13

T.G., Docket No. 19-0071 (issued May 28, 2019); Marlon Vera, 54 ECAB 834 (2003).

14

Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

15

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

16

Charles E. McAndrews, 55 ECAB 711 (2004).

17

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

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
Appellant has attributed his emotional condition in part to Cutler18 factors. He alleged that
he was overworked. Appellant noted that he had been assigned four programs and one CRR
program, which resulted in him working about 2,295.50 hours per year instead of the maximum
workload for his position of 1,740 hours per year. The Board has held that overwork is a
compensable factor of employment if appellant submits sufficient evidence to substantiate this
allegation.19 Appellant has not submitted evidence such as witness statements, or time and
attendance forms or work logs supporting his allegation of overwork. The employing
establishment noted that appellant had not been directed to work overtime and that software
personnel are part of a team so that tasks exceeding the 1,760 base hours would be assigned to
another employee if the task was high risk or eliminated if the task was lower risk. It is appellant’s
burden to submit the requisite factual evidence supporting his allegation that he was overworked,
which he failed to provide.20 Thus, the Board finds that appellant has not established overwork as
a compensable factor of employment.
Appellant also asserted that he had not received the requisite training to perform the tasks
assigned, nor had he been provided a mentor. The employing establishment submitted his training
history which noted that he had completed 14 required courses with 1 course remaining
uncompleted. Appellant has not submitted factual evidence supporting his assertion that he was
denied the requisite training for the tasks he had been assigned. The training history showed that
he had completed the required 14 courses and only 1 required course had not been completed.
Appellant has not submitted witness statements or other factual evidence in support of his claim
that he had not been afforded the training required to perform the tasks assigned by the employing
establishment. He did not specify what training he lacked and which was necessary to complete
the assigned tasks. Also, there is no evidence of record to establish that appellant had been denied
a mentor or that mentors were permissible at the employing establishment. As noted above, it is
his burden to prove the factual basis of his claim with supporting evidence.21 Thus, the Board thus
finds that appellant has not established a compensable employment factor with regard to these
claims.
On appeal counsel reiterates that appellant had not received the appropriate training for the
tasks he was assigned and that he had been assigned a heavier work load. As discussed above
appellant has not submitted factual evidence sufficient to establish a compensable employment

18

Lillian Cutler, supra note 8.

19

W.F., Docket No. 18-1526 (issued November 26, 2019); J.E., Docket No. 17-1799 (issued March 7, 2018);
Bobbie D. Daly, 53 ECAB 691 (2002).
20

Supra note 4.

21

Id.

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factor. As he has not established a compensable employment factor, the Board need not analyze
the medical evidence of record.22
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition while in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the April 2, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 4, 2020
Washington, DC

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

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

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

22

G.G., Docket No. 18-0432 (issued February 12, 2019); A.C., Docket No. 18-0507 (issued November 26, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 08-314
Issued: November 5, 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 November 13, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 19, 2006. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability commencing
January 13, 2004.
FACTUAL HISTORY
On March 16, 2000 appellant, then a 40-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained carpal tunnel syndrome as a result of her federal
employment. The Office accepted the claim for right carpal tunnel syndrome and right middle
trigger finger.1 While appellant’s subsequent work history is not clear from the record, she did
1

Appellant also has a claim for a shoulder injury, OWCP File No. xxxxxx814.

accept a July 10, 2003 light-duty job offer that required no work with the right hand. A
September 6, 2003 light-duty job offer indicated that she was limited to using only her left arm.
On January 12, 2004 appellant filed a claim for compensation (Form CA-7) for the period
November 28, 2003 to January 10, 2004. The record indicates that she underwent a right carpal
tunnel release and trigger finger release on November 28, 2003. An employing establishment
payroll form dated January 22, 2004 showed appellant worked on January 12, 2004, but did not
provide information for subsequent dates.
On February 7, 2006 appellant filed a notice of recurrence of disability (Form CA-2a).
The form identified the date of the recurrence as January 13, 2004. Appellant stated that her
hand was never the same after surgery. The reverse of the claim form reported that she returned
to preinjury duty status at the end of February 2004.
Appellant was treated by Dr. Martin Boyer, an orthopedic surgeon, on January 13, 2004.
Dr. Boyer stated that appellant had scar tenderness in the area of the carpal tunnel incision. He
stated that she needed therapy for desensitizing the scar area. In a form report of that date,
Dr. Boyer stated that appellant could return to work with no use of the right upper extremity. On
February 24, 2004 he completed a form report indicating that appellant could return to full duty
March 1, 2004.
In reports dated May 24 and June 7, 2005, Dr. Boyer indicated that appellant could work
with no use of the injured hand. In form reports dated December 5, 2005 and February 3, 2006,
he indicated that appellant was restricted to two pounds lifting with the right hand.
By decision dated March 20, 2006, the Office denied the claim for a recurrence of
disability. It found that the factual and medical evidence did not establish the claimed recurrence
resulted from the accepted work injury.
Appellant requested reconsideration and submitted additional evidence. In a report dated
March 6, 2006, Dr. Boyer stated that magnetic resonance imaging (MRI) scan results showed a
heterotopic ossification along the volar radial aspect of the right wrist.
By decision dated July 26, 2006, the Office reviewed the case on its merits and denied
modification of the March 20, 2006 decision.
Appellant again requested reconsideration and submitted an August 29, 2006 report from
Dr. Boyer, who noted the MRI scan findings and stated, “All of these conditions in [appellant’s]
hand and wrist are related to one another insofar as they are all caused and exacerbated by her
employment. I am really not sure how I could be more specific about this.”
By decision dated December 19, 2006, the Office reviewed the case on its merits and
denied modification. It noted that the evidence was not entirely clear what specific dates of
disability appellant was claiming.

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LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
“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. This term also means
an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her
work-related injury or illness is withdrawn or when the physical requirements of
such an assignment are altered so that they exceed his or her established physical
limitations.”2
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.3 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.4
The Office’s procedures acknowledge that in claims for disability within 90 days of a
return to work, the focus is generally on disability, not causal relationship and a physician’s
statement on causal relationship may be sufficient on the issue even without medical rationale.5
There are, however, situations where a rationalized medical opinion is still required, such as
when the diagnosis is different from the accepted condition.6 Moreover, a claimant must provide
probative evidence of disability for work, including evidence that “describes the duties which the
employee cannot perform and the demonstrated objective medical findings that form the basis
for renewed disability for work.”7

2

20 C.F.R. § 10.5(x).

3

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
4

Maurissa Mack 50 ECAB 498 (1999).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(6) (September 2003).

6

Id., 2.1500.5(4) (September 2003).

7

Id., 2.1500.6(b) (September 2003).

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ANALYSIS
Appellant filed a CA-2a form on February 7, 2006 and the only date she referred to was
January 13, 2004. The record indicated that she underwent carpal tunnel surgery on
November 28, 2003 and had been off work through January 11, 2004. There was a claim for
compensation filed for the period commencing November 28, 2003, but it is not clear how that
claim was adjudicated by the Office. The decisions on appeal addressed the CA-2a form claim,
not the period prior to January 12, 2004. Appellant did return to work on January 12, 2004, but
was subsequently off work until March 1, 2004. She did not submit a clear statement as to
whether she was claiming wage-loss compensation for the period January 13 to March 1, 2004,
or whether there were other periods claimed.
To the extent appellant claims a recurrence of disability commencing January 13, 2004,
this would be a recurrence of disability within 90 days of a return to work. Dr. Boyer treated
appellant on January 13, 2004 with a diagnosis of right carpal tunnel syndrome and right trigger
finger. He noted scar tenderness and briefly indicated on a form report that appellant could work
without using her right arm, without further explanation. Dr. Boyer did not provide probative
medical evidence establishing that appellant was disabled for the light-duty job. It appeared that
the light-duty job appellant was performing did not require use of the right arm. Dr. Boyer did
not discuss the light-duty job or provide an opinion that appellant was disabled for the position.
Dr. Boyer provided additional form reports from 2005 and 2006 with limitations of use of
the right hand. Again, it is not clear whether appellant is claiming any specific dates of disability
during this period. She must identify the claimed periods of disability and submit medical
evidence that demonstrates she was unable to perform the job duties due to her employment
injuries. As to whether there are additional employment-related conditions, Dr. Boyer opined in
his August 29, 2006 report that the MRI scan findings, which included heterotopic ossification
along the volar radial aspect of he right wrist, were employment related. A rationalized medical
opinion is one that contains a complete factual and medical background and supports the opinion
with medical rationale.8 Dr. Boyer stated that the MRI scan findings were employment related,
without providing any medical rationale to support his opinion. Moreover, he did not discuss
disability for work. The Board finds Dr. Boyer’s reports are insufficient to establish a period of
employment-related disability in this case.
CONCLUSION
Appellant did not establish a recurrence of disability on or after January 13, 2004.

8

See Victor J. Woodhams, 41 ECAB 345, 352 (1989).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2006 is affirmed.
Issued: November 5, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICE, Syracuse, NY, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-499
Issued: January 9, 2008

Case Submitted on the Record

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

JURISDICTION
On December 13, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 1, 2006 denying the claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition causally related to
compensable work factors.
FACTUAL HISTORY
The case was before the Board on a prior appeal.1 The Board found that the evidence
established a compensable work factor with respect to the change in appellant’s work hours. An
1

Docket No. 05-1670 (issued January 9, 2006).

administrative judge in an Equal Employment Opportunity Commission (EEOC) proceeding
found that the employing establishment had erred in failing to accommodate appellant’s request
to keep her scheduled work hours at 7:00 a.m. to 3:30 p.m. The case was remanded to the Office
to prepare a statement of accepted facts and “secure a reasoned medical opinion” on causal
relationship between a diagnosed condition and a compensable work factor. The history of the
case is contained in the Board’s prior decision and is incorporated by reference.
The Office prepared a statement of accepted facts and requested the attending
psychiatrist, Dr. Anil Verma, submit a detailed medical report. By decision dated July 3, 2006,
the Office denied appellant’s claim for compensation. The Office indicated that Dr. Verma did
not submit a medical report.
Appellant requested reconsideration and submitted a May 1, 2006 report from
Dr. Verma2 who stated that appellant’s emotional problems began with the change of work hours
on July 11, 2002 from 7:00 a.m. to a 7:30 a.m. starting time. She indicated that appellant’s work
hours had been set to compensate for her sleep disorder and seasonal affective disorder (SAD),
which was affected by light. Dr. Verma reported that appellant had a long history of depression
and SAD that occurs in winter when the days are shorter. According to her, a person suffering
from SAD needs maximum exposure to light and the change in work schedule would have her
traveling in the dark during the winter months. Dr. Verma concluded that the change in the work
schedule caused the decline in appellant’s emotional condition and she remained disabled due to
depression.
By decision dated December 1, 2006, the Office denied the claim for compensation. The
claims examiner initially discussed Dr. Verma’s report, stating that “it fails to actually show that
the claimant reacted to the accepted work factor” and statements regarding SAD were
unrationalized as the period in question was July 2 to August 2, 2002, which was not during the
winter. The claims examiner further noted that, as explained by the EEOC, appellant stated that
she arrived at 6:00 a.m., meaning she may have occasionally traveled to work during a period of
darkness or dawn. With respect to the accepted work factor, the Office claims examiner stated:
“Due to the factors listed above, I must also now find that there is insufficient evidence to show
that the EEOC decision is based on a full appreciation of the claimed medical conditions, the
reporting of the aggravation of these and their relation to the claimant’s actual early arrival time,
all of which are material to a determination into the reliability and reasonableness of the medical
evidence.” He concluded that the “EEOC decision is now found insufficient to substantiate the
evidence of a compensable work factor” and there were no compensable work factors in this
case.
LEGAL PRECEDENT
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 factors of her federal employment.3 To establish her claim that she sustained an
2

The report apparently was prepared by a social worker; Dr. Verma signed the report on July 21, 2006 and stated
that she concurred with the findings and recommendations.
3

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

2

emotional condition in the performance of duty, appellant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her condition;
(2) medical evidence establishing that she has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable employment
factors are causally related to her emotional condition.4
ANALYSIS
The Board found in its prior decision that a compensable work factor had been
established in this case. The compensable work factor was that the employing establishment
erred in failing to accommodate appellant’s request to keep her current work schedule. As the
Board noted, appellant had filed an EEOC complaint and in a February 25, 2005 decision an
administrative judge found that, based on the evidence appellant had submitted to the employing
establishment regarding her medical conditions, the employing establishment had failed to
properly accommodate appellant’s request to continue her work schedule beginning at 7:00 a.m.
The Board found that the EEOC decision was sufficient to establish a compensable work factor
based on error by the employing establishment.
In its December 1, 2006 decision, the Office found that the EEOC decision was not
sufficient to establish a compensable work factor as it did not have a “full appreciation” of the
relevant facts. The Office appeared to base its finding on the May 1, 2006 report from
Dr. Verma and appellant’s arrival time at 6:00 a.m. The implication was that since Dr. Verma
referred to appellant’s need for exposure to light and since she was arriving at times during a
period of darkness, there was no error in failing to accommodate her request. But the finding of
error was based on the medical evidence submitted to the employing establishment at that time,
which discussed more than a seasonal affective disorder. The administrative judge found that the
medical evidence established that appellant suffered from sleep disorder, depression, thyroid
condition and other chronic medical conditions. In addition, the judge was aware of appellant’s
arrival time at 6:00 a.m.. There is no indication that the decision was based on an inaccurate or
incomplete background. The EEOC judge found that, based on the evidence presented to the
employing establishment in 2002, appellant had shown that she had impairments that limited her
ability to sleep, concentrate and interact with others and the employing establishment should
have attempted to accommodate her requested work schedule. The failure to do so remains a
compensable work factor in this case.
The case will be remanded to the Office. The Board notes that, in its prior decision, the
Office was directed to develop the evidence and secure a reasoned medical report on causal
relationship. Since the Office has indicated that Dr. Verma did not provide a reasoned opinion,
the Office should refer appellant to a second opinion psychiatrist for a reasoned medical opinion,
based on an accurate background, on the issue of whether there is causal relationship between a
diagnosed condition and a compensable work factor. After such further development as the
Office deems necessary, it should issue an appropriate decision.

4

See Donna Faye Cardwell, 41 ECAB 730 (1990).

3

CONCLUSION
The case will be remanded for further development of the medical evidence.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 1 and July 3, 2006 are set aside and the case remanded
for further action consistent with this decision of the Board.
Issued: January 9, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, LARGO POST
OFFICE, Largo, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1322
Issued: January 8, 2014

Case Submitted on the Record

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

On May 15, 2013 appellant filed a timely appeal from an April 30, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration as
untimely filed and failing to demonstrate clear evidence of error. The decision denied
reconsideration of a November 8, 2011 Board decision finding that appellant had failed to
establish more than 32 percent permanent impairment to each of his upper extremities.1
The Board has duly considered the matter and notes that the case is not in posture for a
decision. Appellant submitted an October 10, 2012 report from Dr. Samy F. Bishai, a Boardcertified orthopedic surgeon, determining that he had 63 percent impairment of each of his upper
extremities under the standards of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009). He requested reconsideration of his
schedule award claim in a form received by OWCP on March 1, 2013. In an April 30, 2013
decision, OWCP denied appellant’s reconsideration request finding that it was untimely filed and
did not present clear evidence of error.
1

On August 12, 1996 appellant, then a 48-year-old city carrier, filed a notice of occupational disease alleging that
he developed a left shoulder and arm condition due to the continuous movement of casing and delivering mail.
OWCP accepted this claim for aggravation of osteoarthritis of both shoulders on November 25, 1996. By decision
dated February 3, 2011, it found that appellant had not established more than 32 percent impairment to his upper
extremities.
The Board affirmed this decision on November 8, 2011.
Docket No. 11-864 (issued
November 8, 2011).

The Board has held that where a claimant submits medical evidence regarding a
permanent impairment at a date subsequent to a prior schedule award decision, he or she is
entitled to a merit decision on the medical evidence.2 In the present appeal, appellant submitted
Dr. Bishai’s January 4, 2013 report after OWCP’s February 3, 2011 schedule award decision.
Moreover, this report addressed the pertinent issue of this case, i.e., whether appellant was
entitled to additional schedule award compensation for upper extremity impairment, as it
contained an impairment rating that referenced the A.M.A., Guides. Although appellant
submitted a form in which he requested reconsideration, it is evident that he was not seeking
reconsideration of the February 3, 2011 decision, but was seeking an increased schedule award
based on new medical evidence.
The case will be remanded for further development on the issue of whether appellant has
more than 32 percent permanent impairment of bilateral upper extremities. Following this and
such other development as deemed necessary, OWCP shall issue a de novo decision on appellant
s claim.
IT IS HEREBY ORDERED THAT the April 30, 2013 decision of the Office of
Workers’ Compensation Programs be set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: January 8, 2014
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

2

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); see also B.K., 59 ECAB 228
(2007) (where it was evident that the claimant was seeking a schedule award based on new and current medical
evidence, OWCP should have issued a merit decision on the schedule award claim rather than adjudicate an
application for reconsideration).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, East Orange, NJ, Employer
__________________________________________

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

Docket No. 15-233
Issued: May 21, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 10, 2014 appellant filed a timely appeal from an October 2, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a traumatic injury in the performance of
duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 7, 2014 appellant, then a 52-year-old medical support assistant, filed a
recurrence (Form CA-2a) on March 6, 2014, due to a November 3, 2013 work injury.2 She
alleged that she was walking through a tunnel at work when she began to experience left ankle
pain. Appellant stopped work on March 7, 2014 and returned on April 21, 2014.
In a March 6, 2014 disability status report, Dr. Thomas Cuomo, a Board-certified
orthopedic surgeon, advised that appellant was disabled from work until April 17, 2014. On
physical examination he found tenderness of the left ankle and a mild antalgic gait and diagnosed
left foot contusion and left ankle sprain.
In a March 6, 2014 report, Dr. Thomas Helbig, a Board-certified orthopedic surgeon,
advised that appellant had injured her left ankle in a fall at the employing establishment. He
noted that he began treating her in December and that recently she began to experience a
worsening of left ankle pain without any new trauma. Dr. Helbig also advised that appellant
should return to physical therapy. In a March 27, 2014 report, he advised that she was
experiencing left knee and ankle pain that marginally improved following an injection.
Appellant was diagnosed with internal derangement of the left knee and sprained left ankle.
An April 21, 2014 report signed by a physician assistant advised that appellant was
experiencing discomfort with knee range of motion, global tenderness to palpation and good
ankle range of motion. Appellant was again diagnosed with internal derangement of the left
knee and left ankle sprain.
In a May 12, 2014 memorandum, OWCP advised that appellant’s claim was a new injury
as opposed to a recurrence and would be developed as a new claim.
By letter dated May 20, 2014, OWCP notified appellant of the deficiencies in her claim
and advised her of the type of evidence needed to establish her claim. She was also notified that
her claim was being developed as a new injury.
In an April 21, 2014 disability status report, Dr. Helbig advised that appellant was able to
return to work that day with restrictions including no excessive walking or heavy lifting. He
diagnosed left ankle and knee strain.
In a May 29, 2014 report, Dr. Helbig noted seeing appellant for left knee and ankle pain.
Appellant related that her initial injury occurred on November 1, 2013, she returned to work in
late December 2013, and she had a recurrence of her problem in early March with increased pain
and swelling in her left ankle and leg up to her knee. Dr. Helbig advised that appellant was
currently working despite pain. He diagnosed left ankle sprain, left knee sprain, and internal
derangement of the left knee with possible medial meniscus tear. Dr. Helbig indicated that he
would try to help appellant with her OWCP claim.
2

Although appellant initially filed a recurrence claim, the claim was adjudicated as a traumatic injury claim. Her
Form CA-2a lists November 3, 2013. However, other evidence of record indicates that her injury took place on
November 1, 2013.

2

In a June 2, 2014 statement, appellant advised that she originally injured herself on
November 1, 2013 when she fell at the employing establishment. She noted that her current
symptoms were a recurrence from that injury. Appellant requested that OWCP restore her leave
used while she was disabled from work. She also submitted a June 3, 2014 response to an
OWCP questionnaire. Appellant advised that she was on the employing establishment’s
premises walking through a tunnel when she had an onset of ankle pain and leg swelling.
By decision dated June 25, 2014, OWCP accepted the incident but denied appellant’s
claim because the evidence was insufficient to establish a diagnosed condition in connection to
the March 6, 2014 work incident.
On July 3, 2014 appellant requested reconsideration. She submitted a June 12, 2014
report from Dr. Helbig who advised that she had a previous November 1, 2013 work-related left
ankle sprain. Dr. Helbig noted that appellant had full range of motion with tenderness over the
medial joint line and left ankle tenderness over the anterior talofibular ligament with full motion
in dorsiflexion and mild limitation in plantar flexion with pain. He diagnosed left ankle sprain
and internal derangement of the left knee. Dr. Helbig opined that appellant’s condition was
causally related to her November 1, 2013 injury. Appellant also submitted treatment reports
previously of record.
By decision dated October 2, 2014, OWCP affirmed the denial of appellant’s claim
because the medical evidence was insufficient to establish that her condition was causally related
to the March 6, 2014 work incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

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

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

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

3

Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
On March 6, 2014 appellant alleged that she began to experience left ankle pain while
walking through a tunnel at work. OWCP developed the present matter as a new injury claim.
The evidence supports that the claimed incident occurred; therefore, the Board finds that the first
component of fact of injury is established. However, the medical evidence is insufficient to
establish that the employment incident on March 6, 2014 caused appellant’s left ankle injury.
In his March 6, 2014 report, Dr. Helbig advised that appellant injured her left ankle in a
fall at the employing establishment. He noted that he began treating appellant in December 2013
and that recently she began to experience a worsening of left ankle pain without any new trauma.
This report is insufficient to establish causal relationship because Dr. Helbig did not address
whether a March 6, 2014 work incident caused appellant’s diagnosed condition. Instead,
appellant reported no new trauma. Dr. Helbig did not otherwise reference the walking incident
at work on March 6, 2014. In a May 29, 2014 report, he diagnosed left ankle sprain, left knee
sprain, and internal derangement of the left knee. Dr. Helbig related that the initial injury
occurred on November 1, 2013 and appellant sustained a recurrence of symptoms in March 2014
with increased pain and swelling in her left ankle and leg up to her knee. He stated that he would
try to help her with her claim. While Dr. Helbig indicates that appellant’s condition is
employment related, it is unclear if he relates her condition to the November 1, 2013 injury,
which is not presently before the Board, or to the March 6, 2014 incident. Furthermore, he did
not offer any explanation as to how the March 6, 2014 incident caused or aggravated an injury.
In his June 12, 2014 report, Dr. Helbig offered diagnoses and advised that appellant had a
prior November 1, 2013 work-related left ankle sprain. He opined that appellant’s condition was
causally related to her November 1, 2013 injury. This report is insufficient to establish
appellant’s claim because it does not identify the March 6, 2014 incident as a cause of a
diagnosed condition. In his March 27, 2014 report, Dr. Helbig advised that appellant was
experiencing left knee and ankle pain that marginally improved following an injection.
Appellant was diagnosed with internal derangement of the left knee and sprained left ankle. This
report did not provide an opinion on causal relationship; therefore, it is insufficient to discharge
appellant’s burden of proof. The Board has held that medical opinions which do not state an
opinion on causal relationship are of little probative value.8 Other reports submitted by
Dr. Helbig are also insufficient to establish causal relationship because they do not address
causal relationship.9
7

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

8

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

9

Id.

4

Likewise, Dr. Cuomo’s March 6, 2014 report is not sufficient to discharge appellant’s
burden of proof because it does not address how the March 6, 2014 work incident caused or
aggravated a diagnosed condition. Appellant also submitted evidence from a physician’s
assistant. However, this is not considered probative medical evidence as physician assistants are
not considered physicians as defined under FECA.10 Thus, records from physician assistants are
insufficient to establish the claim.
Consequently, appellant has submitted insufficient medical evidence to establish her
claim. Causal relationship is a medical question that must be established by probative medical
opinion from a physician.11 The physician must accurately describe appellant’s work duties and
medically explain the pathophysiological process by which these duties would have caused or
aggravated her condition.12 Because appellant has not provided such medical opinion evidence
in this case, she has failed to meet her burden of proof.
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury on
March 6, 2014.

10

Under FECA, a “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C.
§ 8101(2). See Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
11

Y.J., Docket No. 08-1167 (issued October 7, 2008).

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 21, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA Employer
__________________________________________

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

Docket No. 08-2069
Issued: March 23, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated April 29, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merit issues of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty on May 19, 2007 as alleged.

FACTUAL HISTORY
On June 6, 2007 appellant, then a 38-year-old carrier, filed a traumatic injury claim
alleging that she sustained radiculopathy in her right hip, leg and ankle while walking down
uneven steps in the performance of duty on May 19, 2007. The employing establishment
controverted her claim noting that she failed to mention her injury until she was informed that
she was to be released from duty for failure to follow proper procedures.
By letter dated August 6, 2007, the Office requested additional factual and medical
evidence in support of appellant’s claim. Appellant alleged that Jo Ann Nood, a coworker, was
aware of her injury and aided her on May 19, 2007. She submitted emergency room notes dated
May 22, 2007 which stated that she had experienced right leg pain for four days and diagnosed
radiculopathy.
By decision dated September 7, 2007, the Office denied appellant’s claim on the grounds
that she failed to submit the necessary medical opinion evidence to meet her burden of proof.
Appellant requested an oral hearing on September 30, 2007. She testified at the oral
hearing on February 27, 2008. Following the oral hearing, appellant submitted a report dated
March 7, 2008 from Dr. Frederick S. Lieberman, a Board-certified orthopedic surgeon, which
noted appellant’s history of walking down uneven steps while delivering mail on May 19, 2007
and the onset of pain radiating from her groin to her ankle. Dr. Lieberman stated that appellant’s
findings were compatible with extruded herniated discs from L4 to S1 and herniated discs from
L1 through L3. He examined appellant on March 13, 2008 and repeated his diagnoses.
Dr. Yves J. Manigat, a Board-certified surgeon, examined appellant on March 11, 2008 and
diagnosed an early right inguinal hernia. He stated that appellant had experienced a fall at work.
By decision dated April 29, 2008, the hearing representative affirmed the Office’s
September 7, 2007 decision finding that appellant failed to submit the necessary rationalized
medical opinion evidence establishing a causal relationship between her accepted employment
incident and her diagnosed conditions.
LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office 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 to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
1

20 C.F.R. § 10.5(ee).

2

resolved only by rationalized medical opinion evidence.2 Such opinion of the physician must be
one of reasonable medical certainty and must be supported by medical reasoning explaining the
nature of the relationship between the diagnosed condition and the employment.3
ANALYSIS
The Office has accepted that the employment incident occurred as alleged. However, it
found that appellant failed to submit the necessary medical evidence to establish a causal
relationship between her diagnosed conditions and her employment incident.
In support of her claim, appellant initially submitted emergency room notes which
supported that she had experienced leg pain since May 19, 2004 and diagnosed radiculopathy.
These notes did not provide an opinion on the causal relationship between her diagnosed
condition and her accepted employment incident and are therefore insufficient to meet her
burden of proof in establishing a traumatic injury claim.
Appellant also submitted two reports from Dr. Liebermann, a Board-certified orthopedic
surgeon, which provided a detailed history of injury and diagnosed herniated discs from L1
through S1. Dr. Lieberman failed to provide any opinion on the causal relationship between
appellant’s diagnosed conditions and her employment incident and his report is not sufficient to
meet her burden of proof due to this defect.
In a report dated March 11, 2008, Dr. Manigat opined that appellant had a right inguinal
hernia. He did not provide an accurate history of injury and did not provide an opinion on the
causal relationship between appellant’s diagnosed condition and her employment. Dr. Manigat’s
report is also insufficient to meet appellant’s burden of proof.
Appellant has not submitted the necessary medical evidence including a proper history of
injury, a definitive diagnoses, an opinion that her employment incident resulted in the diagnosed
condition and supportive medical reasoning. She has, therefore, failed to meet her burden of
proof in establishing a traumatic injury resulted in her May 19, 2007 employment incident.
CONCLUSION
The Board finds that appellant has not submitted sufficient medical opinion evidence to
establish her claim.

2

Steven S. Saleh, 55 ECAB 169, 171-172 (2003).

3

Leslie C. Moore, 52 ECAB 132, 134 (2000).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Program dated April 29, 2008 is affirmed.
Issued: March 23, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq. for the appellant1
Office of Solicitor, for the Director

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Docket Nos. 21-1248 and 220171
Issued: March 11, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On August 17, 2021 appellant, through counsel, filed a timely appeal from a July 26, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP) under OWCP File No.
xxxxxx905. The Clerk of the Appellate Boards docketed the appeal as No. 21-1248. On
November 15, 2021 appellant, through counsel, filed a timely appeal from an October 5, 2021
merit decision of OWCP under OWCP File No. xxxxxx284. The Clerk of the Appellate Boards
docketed the appeal as No. 22-0171.
On July 20, 2020 appellant, then a 44-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on July 9, 2020 she experienced a left shoulder muscle strain when
attempting to stop the contents from falling out of a broken 50-pound package while in the
performance of duty. She stopped work on July 10, 2020. OWCP assigned that claim OWCP File
No. xxxxxx905.

1

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

Appellant had previously filed an October 10, 2019 notice of recurrence (Form CA-2a)
alleging that on August 15, 2019 she sustained a recurrence of her previously accepted medical
conditions when she injured her left shoulder lifting a heavy package while in the performance of
duty.2 She asserted that, upon returning to work following her previously accepted February 22,
2010 employment injury, she continued to work with ongoing back and shoulder pain related to
her accepted medical conditions and that on August 15, 2019 she experienced a sharp shooting
pain in her left shoulder radiating into her neck when she picked up a heavy package. OWCP
subsequently converted appellant’s recurrence claim under OWCP File No. xxxxxx560 to a new
traumatic injury claim for a left shoulder condition assigned OWCP File No. xxxxxx284.
Appellant did not stop work.
By decisions dated December 3, 2019, March 18 and September 16, 2020, and October 5,
2021, OWCP denied appellant’s October 10, 2019 traumatic injury claim under OWCP File No.
xxxxxx284, finding that the evidence of record was insufficient to establish causal relationship
between her diagnosed left shoulder condition and the accepted August 15, 2019 employment
incident.
By decision dated January 12, 2021, OWCP denied appellant’s traumatic injury claim
under OWCP File No. xxxxxx905, finding that the medical evidence of record was insufficient to
establish that her left shoulder condition was causally related to the accepted July 9, 2020
employment incident. It found, therefore, that she had not met the requirements to establish an
injury or medical condition causally related to the accepted employment incident.
On January 26, 2021 appellant, through counsel, timely requested a telephonic hearing
before a representative of OWCP’s Branch of Hearings and Review with regard to the denial of
her claim under OWCP File No. xxxxxx905.
By decision dated July 26, 2021, OWCP’s hearing representative affirmed the January 12,
2021 decision, noting that appellant had another traumatic injury claim under OWCP File No.
xxxxxx284 and referenced a January 22, 2021 medical report from Dr. Sami E. Moufawad, a spine
and pain medicine and physical medicine and rehabilitation specialist, that was submitted in
support of that other claim.
The Board, having duly considered this matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. For example, if a
new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required. has filed separate traumatic injury
claims for left shoulder conditions under OWCP File Nos. xxxxxx905 and xxxxxx284. The Board
further notes that, in OWCP’s July 20, 2021 decision in OWCP File No. xxxxxx905, the hearing
representative referenced her claim under OWCP File No. xxxxxx284 . Therefore, for full and
fair adjudication, the cases must be remanded to OWCP to administratively combine OWCP File
2

Appellant’s recurrence claim was filed in relation to OWCP File No. xxxxxx560, which was a prior claim for a
February 22, 2020 traumatic injury accepted for a contusion of chest and cervical strain.

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Nos. xxxxxx905 and xxxxxx284, along with any other of appellant’s relevant claim files, so that
it can consider all relevant claim files and accompanying evidence in adjudicating appellant’s
traumatic injury claims.
Following this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.
IT IS HEREBY ORDERED THAT the July 26 and October 5, 2021 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this order of the Board.
Issued: March 11, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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.W., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________

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

Docket No. 08-2359
Issued: May 15, 2009

Case Submitted on the Record

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

JURISDICTION
On August 28, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 2, 2007, finding he was not entitled to a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established a ratable permanent impairment causally
related to his December 4, 2004 employment injury.
FACTUAL HISTORY
On December 6, 2004 appellant, then a 53-year-old electronic mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on December 4, 2004 he sustained injury when he lifted a
box from a shelf. On January 24, 2005 the Office advised him that the claim had been accepted

for a right shoulder strain. An April 21, 2005 letter stated that the claim was also accepted for
aggravation of displaced intervertebral discs (C5-6, C6-7).1
Appellant underwent a cervical discectomy on May 16, 2005 and right shoulder
arthroscopy on March 8, 2006. An occupational therapist performed a functional capacity
evaluation on July 6, 2005. In a report dated April 14, 2006, the attending orthopedic surgeon,
Dr. William Stewart, opined that, under the American Medical Association, Guides to the
Evaluation of Permanent Impairment appellant had a seven percent whole person impairment
“status post cervical fusion without residuals.” He also reported a 5 percent whole person
impairment “status post arthroscopy with subacromial decompression of the right shoulder,” for
a combined 12 percent whole person impairment.
The Office requested that an Office medical adviser review the medical evidence. In a
report dated April 20, 2006, the medical adviser opined that appellant did not have a ratable
impairment. He noted that an impairment to the spine is not allowed under the Federal
Employees’ Compensation Act. The medical adviser also noted that the July 6, 2005 functional
capacity evaluation showed normal range of motion and strength, with no nerve root defect.
On July 16, 2007 the Office received a report from Dr. Stewart which again was dated
April 14, 2006. Dr. Stewart stated that appellant had a seven percent whole person impairment
“status post cervical fusion C5-6 and C6-7, without residuals.” He also reported an eight percent
right upper extremity impairment “status post arthroscopy with subacromial decompression of
the right shoulder.”
By decision dated October 2, 2007, the Office found that the medical evidence did not
establish a permanent impairment to a scheduled member or function of the body under 5 U.S.C.
§ 8107.
LEGAL PRECEDENT
Section 8107 of the Act provides that, if there is permanent disability involving the loss
or loss of use of a member or function of the body, the claimant is entitled to a schedule award
for the permanent impairment of the scheduled member or function.2 Neither the Act nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 The medical

1

An April 20, 2006 letter to an Office medical adviser reported the accepted conditions as right shoulder
impingement and cervical herniated nucleus pulposus.
2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

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evidence necessary to support a schedule award includes a physician’s report that provides a
detailed description of the impairment.4
ANALYSIS
The attending physician, Dr. Stewart, did not provide a medical report with a detailed
description of a permanent impairment to a scheduled member of the body. He refers generally
to the cervical fusion and the shoulder arthroscopy, without clearly describing an impairment to
the arm. Dr. Stewart did not, for example, provide range of motion results or other relevant
examination results. To the extent that Dr. Stewart found an impairment to the cervical spine,
neither the Act nor its regulations provide for a schedule award for impairment to the back.
Furthermore, the back is specifically excluded from the definition of “organ” under the Act.5
Dr. Stewart’s reference to whole person impairments is also of little probative value. The Act
does not provide for whole person impairments; only impairments to specified members of the
body under 5 U.S.C. § 8107 and 20 C.F.R. § 10.404 is appropriate for a schedule award under
the Act.6
In his second April 14, 2006 report, Dr. Stewart reported an eight percent right arm
impairment, noting the right shoulder arthroscopy. He did not identify any specific table or
figure under the A.M.A., Guides, or otherwise describe how the percentage was calculated.
Dr. Stewart’s report is therefore of diminished probative value on the issue presented. The
Board accordingly finds the medical evidence of record does not establish a ratable permanent
impairment to a scheduled member or function of the body causally related to the December 4,
2004 employment injuries. The Office properly found appellant was not entitled to a schedule
award under 5 U.S.C. § 8107.
CONCLUSION
The medical evidence does not establish a permanent impairment under the A.M.A.,
Guides to a scheduled member or function of the body.

4

See James E. Jenkins, 39 ECAB 860 (1988); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6(c) (August 2002).
5

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

6

Janae J. Triplette, 54 ECAB 792 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2007 is affirmed.
Issued: May 15, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 08-1713
Issued: January 8, 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 June 2, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 5, 2008. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an employment-related disability
commencing July 20, 2007.
FACTUAL HISTORY
On October 20, 2006 appellant, a transportation security officer, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a back injury on October 13, 2006 as a result of
lifting baggage. She stopped working on October 13, 2006. By decision dated December 14,
2006, the Office denied the claim on the grounds that the medical evidence did not establish an
injury in the performance of duty.

In a report dated December 11, 2006, Dr. Evarista Nnadi, a family practitioner, indicated
that appellant reported constant back pain, less in intensity since she started physical therapy.
She reported that appellant stated that she was unable to return to work. In a form report (CA20) dated December 11, 2006, Dr. Nnadi diagnosed marked degenerative disc disease, mild
bulging at L2-3 and L3-4, and lumbar sprain. She indicated that the lumbar sprain was
employment related, but the degenerative condition was not employment related. The period of
total disability was October 16, 2006 to January 15, 2007.
Appellant returned to a light-duty job on January 17, 2007. On July 19, 2007 the
employing establishment withdrew the light-duty job and appellant stopped working. In a letter
dated July 19, 2007, the employing establishment stated that on January 16, 2007 appellant had
requested a light-duty assignment “because of a nonwork-related injury.…” The employing
establishment stated that the light-duty job had been extended three times, but appellant’s
physician had indicated on May 8, 2007 that appellant had permanent lifting restrictions.
Because Dr. Nnadi had indicated that appellant would never be able to perform the essential
duties of her regular position, her employment was being terminated. The employing
establishment noted that appellant asserted that she was injured on the job, but the Office had
denied the claim.
By decision dated August 14, 2007, an Office hearing representative vacated the
December 14, 2006 decision. The hearing representative found the condition of lumbar strain
had been established as employment related. According to the hearing representative, Dr. Nnadi
reported on December 11, 2006 that appellant was improving and since there were no additional
reports, she concluded that “the claimant’s condition resolved with no further need for
treatment.” The Office was directed to accept the claim for “lumbar strain, resolved.”
On August 31, 2007 appellant filed a claim for compensation (Form CA-7) for the period
July 20 to September 1, 2007. The record indicates that on September 6, 2007, the Office issued
a compensation payment for wage loss from December 1 to 11, 2006. On October 12, 2007 the
Office issued payments for November 28 to 30, 2006 and December 12, 2006 to
January 16, 2007.
By decision dated October 19, 2007, the Office denied appellant’s claim for
compensation commencing July 20, 2007. It found the medical evidence was insufficient to
establish the claimed disability.
Appellant requested an oral hearing before an Office hearing representative. She
submitted a January 14, 2008 report from Dr. Nnadi, who indicated she never stated that
appellant’s lumbar strain had resolved. In a report dated March 12, 2008, Dr. Mark Kabins, an
orthopedic surgeon, provided results on examination and diagnosed L4-5 and L5-S1 disc
protrusion/herniation and low back pain with radiculopathy. He stated that appellant’s “workrelated injury has played a significant aggravation and role as [it] relates to her low back pain
and lower extremity symptomology.…”
In a decision dated May 5, 2008, the Office hearing representative affirmed the
October 19, 2007 decision. The hearing representative stated that her review of the medical
reports contemporaneous to the injury and work stoppage “do not support that the claimant was

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totally or partially disabled as a result of the work injury of October 13, 2006.” The hearing
representative further stated that the medical evidence did not establish that appellant was
working a light-duty position as a result of the accepted work injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.2 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.3 When a claimant is working a light-duty job due to
an employment injury, and the light duty is no longer available, the claimant has established a
compensable disability.4
ANALYSIS
The record indicates that appellant returned to a light-duty job on January 17, 2007 and as
of July 19, 2007 the employing establishment indicated that light duty was no longer available.
The Office decisions in this case did not adequately address the relevant issues with respect to
disability commencing July 20, 2007.
The May 5, 2008 Office decision denying the claim for compensation appears to be based
on a finding that, at some point prior to January 17, 2007, appellant’s employment-related
condition had resolved and therefore the light-duty job was unrelated to the accepted lumbar
strain. The hearing representative’s decision did not acknowledge that the Office accepted
lumbar strain and paid compensation through January 16, 2007. It is the Office’s burden of
proof to establish that the accepted condition has resolved.5 In the May 5, 2008 decision, the
hearing representative made a general statement regarding disability without discussing all of the
relevant evidence. The August 14, 2007 Office decision purports to find the condition
“resolved” without adequate explanation. The hearing representative in that decision refers to
December 11, 2006 reports from Dr. Nnadi, but these reports do not state that appellant’s lumbar
strain had resolved.
The case will be remanded to the Office for proper findings on the relevant issues
regarding the claim for compensation. If the Office makes a finding the accepted condition or
disability had resolved, it must support the finding with specific medical evidence establishing
1

5 U.S.C. §§ 8101-8193.

2

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

3

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
4

Jackie B. Wilson, 39 ECAB 915 (1988).

5

See Kenneth R. Burrow, 55 ECAB 157 (2003).

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the date when the employment-related condition or disability resolved. After such further
development as the Office deems necessary, it should issue an appropriate decision on the claim
for compensation commencing July 20, 2007.
CONCLUSION
The case will be remanded to the Office for a proper decision on the issues presented.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 5, 2008 and October 19, 2007 are set aside. The August 14,
2007 decision is reversed with respect to finding that the accepted condition had resolved. The
case is remanded to the Office for further action consistent with this decision of the Board.
Issued: January 8, 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

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