United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Lubbock, TX, Employer
__________________________________________

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

Docket No. 09-2311
Issued: September 1, 2010

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 September 17, 2009 appellant filed a timely appeal of July 28 and August 28, 2009
Office of Workers’ Compensation Programs’ merit decisions. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether the Office properly reduced appellant’s compensation
benefits based on her capacity to earn wages as an accounting clerk; (2) whether appellant
received an overpayment of compensation in the amount of $3,986.35 for the period April 15
through July 4, 2009; (3) whether appellant was at fault in the creation of the overpayment such
that waiver cannot be considered; and (4) whether the Office properly determined to recover the
overpayment by requesting a lump-sum payment.
FACTUAL HISTORY
On September 23, 2003 appellant, then a 46-year-old transportation security screener,
filed a traumatic injury claim alleging on that date she developed shortness of breath, chest pain,
congestion and a sore throat due to exposure to Sprayway glass cleaner in the performance of

duty. The Office accepted appellant’s claim for chemical pneumonitis and bronchitis.
Appellant’s physician, Dr. Craig Barker, a Board-certified family practitioner, released her to
return to four hours of work on January 23, 2004.
Appellant returned to work on
January 26, 2004. Her supervisor took her off work on February 24, 2004 pending clarification
of her work restrictions. The Office entered appellant on the periodic rolls on April 6, 2004.
Dr. Kenneth Nugent, a Board-certified pulmonologist, examined appellant on January 13,
2004 finding that she had persistent lung inflammation and diagnosed reactive airway
dysfunction syndrome. He stated that appellant needed to avoid perfumes, smoking and cleaning
agents.
Dr. Barker examined appellant on October 23, 2007 and again diagnosed pneumonitis
due to inhalation of oils and essences. Appellant reported shortness of breath and headaches.
Dr. Barker opined that her condition was worsening. On December 28, 2007 he noted that
appellant experienced an asthma attack on Christmas day and had a significant headache the
following day. Dr. Barker diagnosed wheezing and pneumonitis.
On December 5, 2007 the Office referred appellant for a second opinion evaluation with
Dr. Venessa Holland, a Board-certified pulmonologist. In a report dated January 18, 2008,
Dr. Holland noted appellant’s employment exposure and found that appellant had a mild
restrictive defect on pulmonary function studies dated January 18, 2008. She diagnosed reactive
airway dysfunction syndrome as a result of the employment exposure. Dr. Holland opined that
appellant could work where the exposure to chemicals was limited with no risk of perfumes,
candles or other respiratory irritants, gases or fumes, sprays, dust or temperature extremes. She
completed a work capacity evaluation on March 24, 2008 and stated that appellant could work
eight hours a day with restrictions on exposure to temperature extremes, airborne particles and
gases or fumes.
On June 27, 2008 Dr. Barker reviewed the opinion that appellant could return to work
wearing a respiratory mask and disagreed noting that appellant had a severe sensitivity to
perfume. He stated that appellant began to wheeze when seated next to another patient wearing
perfume. Appellant required treatment and prior to treatment had audible wheezing and
truncating sentences due to dyspnea. Dr. Barker opined that appellant’s occupational asthma
was not conducive to return to work at the employing establishment even with a mask. He noted
that appellant required several medications for daily activities as well as extended time to rest
after exposures.
The Office referred appellant for vocational rehabilitation services on July 21, 2008.
Appellant completed two years of college in business management courses and received a
computer accounting certificate in 1990. The vocational rehabilitation counselor found that
appellant had transferable skills as a general office clerk, accounting clerk or billing clerk. The
vocational rehabilitation counselor recommended that appellant seek a position with on-the-jobtraining due to the length of time since appellant had used these skills. Appellant underwent
clerical testing at Goodwill Industries and demonstrated intermediate computer skills.
On November 4, 2008 the Office authorized 90 days of job placement assistance. It
informed appellant that her compensation would be reduced based on a wage-earning capacity of
$25,428.00 per year if she had not gained employment at the end of the 90-day period.
2

Appellant was to seek positions as a general office clerk earning $355.00 per week, billing clerk
earning $400.00 per week or an accounting clerk earning $489.00 per week.
Appellant underwent pulmonary function tests on October 22, 2008 which were normal.
Dr. Nugent examined appellant on November 26, 2008 and diagnosed reactive airway
dysfunction syndrome as well as underlying cardiovascular disease of pulmonary hypertension
related to sleep apnea. In a report dated December 2, 2008, Dr. Barker opined that appellant
could not maintain employment with her pulmonary issues. On January 14, 2009 he stated that
appellant’s employment injury resulted in intermittently severe reactive airway disease and
opined that she could not maintain employment. Dr. Barker noted that appellant had not located
employment within her severe ventilation restrictions and opined that she would not be able to
control the environment outside of work to stay healthy enough to hold a job. He recommended
disability retirement.
Appellant accepted a job as an insurance sales representative beginning on
February 9, 2009. The Office advised her that a job which paid by commission only would
result in a rating based on the constructed position selected by the vocational rehabilitation
counselor. In a report dated February 28, 2009, the vocational rehabilitation counselor
determined that appellant was capable of working as an accounting clerk earning $13.75 per
hour.
On March 12, 2009 the Office proposed to reduce appellant’s compensation based on her
capacity to earn wages in the constructed position of an accounting clerk with earnings of
$489.00 per week. By decision dated April 15, 2009, it finalized the proposed reduction of
compensation finding that the position of accounting clerk fairly and reasonable represented her
wage-earning capacity. The Office found that appellant was entitled to receive compensation in
the amount of $227.48 every four weeks beginning April 16, 2009.
Appellant telephoned the Office on June 4, 2009 and informed the Office that it had
failed to reduce her compensation payments following the wage-earning capacity determination.
On July 28, 2009 the Office notified appellant of the preliminary determination that she
had received an overpayment in the amount of $3,986.35 for the period April 15 through July 4,
2009 because her compensation should have been reduced effective April 15, 2009 to reflect her
wage-earning capacity. It indicated that appellant received compensation in the amount of
$5,247.64 and was only entitled to compensation in the amount of $1,261.29 resulting in an
overpayment of $3,986.35. The Office found that appellant was at fault in the creation of the
overpayment because she accepted a payment which she knew or should have known was
incorrect.
Appellant requested a telephonic conference and completed an overpayment recovery
questionnaire on August 8, 2009. The record indicates that a claims examiner spoke to appellant
on August 26, 2009 and reviewed her expenses. By decision dated August 28, 2009, the Office

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finalized the July 28, 2009 preliminary decision and instructed appellant to forward a check in
the amount of $3,986.35.1
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
Section 8115 of the Federal Employees’ Compensation Act3 provides that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent her wage-earning capacity. Office procedures provide guidelines for determining wageearning capacity based on actual earnings. In determining whether the claimant’s work fairly and
reasonably represents his or her wage-earning capacity, it should consider whether the kind of
appointment and tour of duty are at least equivalent to those of the job held on date of injury.
Unless they are, the Office may not consider the work suitable.4 If the actual earnings do not fairly
and reasonably represent wage-earning capacity, or the employee has no actual earnings, her wageearning capacity is determined with due regard to the nature of her injury, the degree of physical
impairment, her usual employment, her age, her qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect her wageearning capacity in her disabled condition.5
ANALYSIS -- ISSUE 1
The record reflects that, prior to reducing appellant’s compensation based on a finding
that the constructed position of accounting clerk represented her wage-earning capacity,
appellant was employed as an insurance sales representative with earnings based on commission
beginning February 9, 2009. The Office, however, did not rely on the actual wages of this
employment in reaching a loss of wage-earning capacity determination. Rather, it, as noted,
determined appellant’s wage-earning capacity based on the constructed position of accounting
clerk. It is well established that, if a claimant has actual earnings, the Office cannot use a
selected position unless it makes a proper determination that actual earnings do not fairly and
reasonably represent wage-earning capacity.6 The Board finds that the Office did not determine
whether appellant’s actual earnings as an insurance sales representative fairly and reasonably
1

The Office issued a decision on November 23, 2009 addressing the $3,986.35 overpayment for the period
April 15 through July 4, 2009 and the finding of fault. As these issues were being considered by the Board on
appeal, the Office did not have jurisdiction to issue this decision. The Board and the Office may not simultaneously
have jurisdiction over the same case. Because the Office must review its prior decision in order to determine
whether appellant submitted additional pertinent new and relevant evidence, it may not issue a decision regarding
the same issue on appeal before the Board. It therefore did not have the authority to issue its November 23, 2009
decision and the decision is null and void. Arlonia B. Taylor, 44 ECAB 591, 597 (1993).
2

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

3

5 U.S.C. §§ 8101-8193, 8115.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).
5

Harley Sims, Jr., 56 ECAB 320 (2005).

6

See Daniel Renard, 51 ECAB 466 (2000); D.C., Docket No. 06-1238 (issued August 21, 2007).

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represented her wage-earning capacity. Before utilizing the constructed position, the Office
should have waited the required 60 days and then determined whether appellant’s actual earnings
in the insurance sales representative position fairly and reasonably represented her wage-earning
capacity. If not, then the claims examiner should have discussed the reasons this position was
not representative of appellant’s wage-earning capacity and then proceeded with the constructed
position.
As the Office did not properly consider whether appellant’s actual earnings as an
insurance sales representative fairly and reasonably represented her wage-earning capacity, the
Office did not meet its burden of proof in reducing appellant’s compensation based on its
determination that the constructed position of accounting clerk represented her wage-earning
capacity effective April 15, 2009.7
CONCLUSION
The Board finds that the Office did not meet its burden of proof in reducing appellant’s
compensation based on the constructed position of accounting clerk effective April 15, 2009.
ORDER
IT IS HEREBY ORDERED THAT the August 28 and July 28, 2009 decisions of
Office of Workers’ Compensation Programs are reversed.
Issued: September 1, 2010
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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Due to the Board’s disposition of this issue, the overpayment, fault and recovery issues are moot and will not be
addressed in this decision.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EASTERN COLORADO HEALTH CARE
SYSTEM, Denver, CO, Employer
__________________________________________

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

Docket No. 11-975
Issued: October 18, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2011 appellant filed a timely appeal from the October 21, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her request
for reconsideration. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this decision.2
ISSUE
The issue is whether OWCP properly denied appellant’s October 14, 2010 request for
reconsideration.

1
2

5 U.S.C. § 8101 et seq.

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). The Board therefore has no jurisdiction to review the new evidence appellant submitted on appeal.

FACTUAL HISTORY
On April 7, 2010 appellant, then a 41-year-old nurse, filed a claim for workers’
compensation benefits alleging that she sustained a traumatic injury in the performance of duty
on April 6, 2010 while helping to lift a patient onto an examination table. She described the
nature of her injury as a bilateral strain of her upper trapezius muscles and a lumbosacral strain
with radicular pain on the left.
In a decision dated August 17, 2010, OWCP denied appellant’s claim for compensation
on the grounds that the medical evidence did not demonstrate that the claimed medical condition
was related to the established work-related event. Specifically, it found that the medical
evidence did not include a physician’s explanation as to whether appellant’s diagnosed condition
was caused or aggravated by lifting a patient onto an examination table on April 6, 2010.
In an attached statement of appeal rights, OWCP explained that appellant could request
reconsideration if she had additional evidence or legal argument that she believed would
establish her claim:
“The request must be made within one calendar year of the date of the
decision, clearly state the grounds upon which reconsideration is being requested,
and be accompanied by relevant evidence not previously submitted. This
evidence might include medical reports, sworn statements or a legal argument not
previously made, which apply directly to the issue addressed by this decision. In
order to ensure that you receive an independent evaluation of the new evidence,
persons other than those who made this determination will reconsider your case.”
(Emphasis the original.)
On October 14, 2010 appellant requested reconsideration. She completed the appeal
request form that was attached to OWCP’s August 17, 2010 decision. This form instructed her
as follows: “If you decide to appeal this decision, read these instructions carefully. You must
specify which procedure you request by checking one of the options listed below. Place this
form on top of any materials you submit. Be sure to mail this form, along with any additional
materials, to the appropriate address.” (Emphasis the original.) Appellant indicated with a
mark that she was requesting reconsideration. She signed the form and mailed it to OWCP.
In a decision dated October 21, 2010, OWCP denied appellant’s request for
reconsideration. It explained that to warrant a reopening of her case, she had to clearly identify
the grounds upon which she was requesting reconsideration, and she had to submit relevant
evidence or legal contentions not previously considered. As appellant’s request neither raised
substantive legal arguments nor included new and relevant evidence, OWCP found it insufficient
to warrant a review of the prior decision.
On appeal, appellant takes issue with a statement OWCP made in its August 17, 2010
decision denying her claim for compensation.

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LEGAL PRECEDENT
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.3 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (1) shows that OWCP
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by OWCP; or (3) constitutes relevant and pertinent new evidence not
previously considered by OWCP.4
A request for reconsideration must be sent within one year of the date of OWCP decision
for which review is sought.5 A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence or argument that meets at least one of these
standards. If reconsideration is granted, the case is reopened and the case is reviewed on its
merits. Where the request is timely but fails to meet at least one of these standards, OWCP will
deny the request for reconsideration without reopening the case for a review on the merits.6
ANALYSIS
Appellant had one calendar year to request reconsideration of OWCP’s August 17, 2010
decision denying her claim for workers’ compensation benefits. Her October 14, 2010 request
was therefore timely. The question for determination, therefore, is whether that request met at
least one of the three standards for obtaining a merit review of her case.
Appellant’s request for reconsideration was insufficient to warrant merit review. She
offered no argument or evidence to support it. Appellant’s request consisted solely of a mark on
an appeal request form. A timely request for reconsideration that is not supported by additional
evidence or argument for error is prima facie insufficient to warrant a merit review of the case.7
Because appellant’s request met none of the standards that would justify the reopening of her
case, the Board finds that OWCP properly denied her request for reconsideration. The Board
will affirm OWCP’s October 21, 2010 decision.
Appellant’s argument on appeal is immaterial to the sufficiency of her October 14, 2010
request for reconsideration, which is the only issue the Board may consider on this appeal.

3

5 U.S.C. § 8128(a).

4

Id. § 10.606.

5

Id. § 10.607(a).

6

Id. § 10.608.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6 (January 2004).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s October 14, 2010 request for
reconsideration of the merits of her claim.
ORDER
IT IS HEREBY ORDERED THAT the October 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS, DAVIS-MONTHAN AIR
FORCE BASE, AZ, Employer
__________________________________________

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

Docket No. 12-680
Issued: August 21, 2012

Case Submitted on the Record

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

JURISDICTION
On February 6, 2012 appellant filed a timely appeal from the January 24, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. 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 has more than
seven percent impairment of his right arm, for which he received a schedule award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
OWCP accepted that on June 14, 2007 appellant, then a 55-year-old motor vehicle
operator, sustained a rupture of his right biceps tendon when he tried to break his fall from a
tractor trailer cab by hanging onto a safety rail with his right arm.
In a May 12, 2008 report, Dr. Derrik F. Woodbury, an attending Board-certified
orthopedic surgeon, indicated that appellant reported that he had some mild chronic aching in his
right arm, elbow and shoulder with decreased strength upon lifting and engaging in pronation
and supination. He reported findings upon examination and determined that appellant had 17
percent permanent impairment of his right arm under the standards of the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (5th ed. 2001).2
On June 20, 2010 appellant filed a claim for a schedule award due to his accepted work
injury.
On December 9, 2010 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, determined that appellant’s right biceps tendon rupture at his
elbow caused him to have seven percent permanent impairment of his right arm as calculated
under Table 15-4 on page 399 of the sixth edition of the A.M.A., Guides.3 He indicated that the
sixth edition of the A.M.A., Guides provided a lower impairment rating for the same condition
evaluated under the fifth edition of the A.M.A., Guides.
In a December 16, 2010 report, Dr. Woodbury reported the findings of his physical
examination of appellant. He noted that appellant exhibited loss of strength and endurance from
his biceps tendon rupture distally at his elbow. Appellant’s main problem was not range of
motion but rather was related to aching, decreased strength and decreased endurance in his right
elbow, forearm and wrist. Dr. Woodbury stated, “Based on my clinical experience and using the
[A.M.A., Guides] as a guide it is my impression [appellant] has permanent and partial
impairment of 15 percent of his right elbow. This would translate to nine percent of the whole
person.”
In a January 26, 2011 award of compensation, OWCP granted appellant a schedule award
for a seven percent permanent impairment of his right arm. The award ran for 21.84 weeks from
May 12 to October 11, 2008. The schedule award was based on the December 9, 2010 opinion
of Dr. Harris, who provided an impairment rating under the sixth edition of the A.M.A., Guides.
OWCP noted that Dr. Woodbury provided an impairment rating of 17 percent of appellant’s
right arm but pointed out that the rating was made under the fifth edition of the A.M.A., Guides.
Appellant requested a review of the written record with an OWCP hearing representative.
In a June 7, 2011 decision, the hearing representative set aside the January 26, 2011 award of
2

Dr. Woodbury indicated that appellant had 14 percent impairment due to decreased right arm strength and 3
percent impairment due to decreased right arm movement.
3

Dr. Harris indicated that appellant reached maximum medical improvement on May 12, 2008.

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compensation and remanded the case to obtain an opinion from Dr. Woodbury on appellant’s
right arm impairment under the sixth edition of the A.M.A., Guides.
In a July 7, 2011 letter, OWCP asked Dr. Woodbury to provide an opinion on appellant’s
right arm impairment under the sixth edition of the A.M.A., Guides. Dr. Woodbury was directed
to explain how he arrived at his impairment rating calculation by citing the examination findings,
the basis for his calculation and the applicable tables and pages of the sixth edition of the
A.M.A., Guides.
In an August 21, 2011 report, Dr. Woodbury noted that appellant had returned to his
office due to a dispute over his impairment rating. He stated that appellant was standing by his
previous evaluation, which he incorrectly stated as being dated “December 16, 2002.”4
Dr. Woodbury noted that his files did not contain the edition of the A.M.A., Guides he previously
used in calculating the impairment rating, but noted that it is his custom to use the most recent
edition of the A.M.A., Guides.
The medical record was again referred to Dr. Harris who was asked to rate the permanent
impairment of appellant’s right arm and to comment on the impairment rating provided by
Dr. Woodbury. Dr. Harris was also asked to thoroughly discuss any points of disagreement
between his findings and those of Dr. Woodbury.
In a December 2, 2011 report, Dr. Harris again determined that appellant had seven
percent permanent impairment of his right arm under the sixth edition of the A.M.A., Guides
based on Table 15-4 on page 399 due to his right distal biceps tendon rupture with residual
symptoms which included the loss of motion. He disagreed with Dr. Woodbury’s rating of 15
percent impairment and commented that Dr. Woodbury did not cite the tables of the A.M.A.,
Guides he used or otherwise explain how he arrived at his calculation.
In a January 24, 2012 decision, OWCP affirmed the June 7, 2011 decision finding that
the weight of the medical evidence rested with the opinion of Dr. Harris. It determined that
Dr. Woodbury did not explain the bases for his impairment ratings.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
4

The record does not contain any document dated December 16, 2002.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

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appropriate standard for evaluating schedule losses.7 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides is used for evaluating permanent
impairment.8 A schedule award is not payable under section 8107 of FECA for an impairment of
the whole person.9
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the elbow, the relevant portion of the arm for the present
case, reference is made to Table 15-4 (Elbow Regional Grid) beginning on page 398.10 After the
class of diagnosis is determined from the Elbow Regional Grid, the net adjustment formula is
applied using the grade modifiers for functional history, physical examination and clinical
studies.11
ANALYSIS
OWCP accepted that appellant sustained a rupture of his right biceps tendon when he
tried to break his fall from a tractor trailer cab by hanging onto a safety rail with his right arm. In
a January 26, 2011 award of compensation, it granted him a schedule award for a seven percent
permanent impairment of his right arm. OWCP based its schedule award on the opinion of
Dr. Harris, a Board-certified orthopedic surgeon serving as an OWCP medical adviser.
Appellant later claimed that he had a greater level of right arm impairment.
The Board finds that appellant did not submit sufficient medical evidence to show that he
has more than a seven percent permanent impairment of his right arm. The Board notes that
Dr. Harris properly evaluated appellant’s right arm impairment under the relevant standards of
the sixth edition of the A.M.A., Guides. It was appropriate for Dr. Harris to use the sixth edition
of the A.M.A., Guides as appellant’s schedule award was granted after May 1, 2009, the effective
date of the sixth edition.12 In reports dated December 9, 2010 and December 2, 2011, Dr. Harris
indicated that, under Table 15-4 on page 399, appellant fell under the diagnosis-based category
of “distal biceps tendon rupture,” which has a default value of five percent when residual loss of
strength and function with normal motion are present.13 He further found that, under the grade
modifier scheme, appellant’s condition (including loss of arm motion) meant that his impairment
rating moved two spaces to the right of the default value on Table 15-4 and equaled a seven
percent impairment of the right arm.
7

Id.

8

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides is used.
9

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

10

See A.M.A., Guides (6th ed. 2009) 398-400.

11

Id. at 405-12.

12

See supra note 8.

13

See A.M.A., Guides 399, Table 15-4.

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Appellant argued that he should receive additional schedule award compensation due to
the reports of Dr. Woodbury, an attending Board-certified orthopedic surgeon, but these reports
do not contain a probative medical opinion showing entitlement to such compensation. In a
May 12, 2008 report, Dr. Woodbury determined that appellant had 17 percent permanent
impairment of his right arm under the standards of the fifth edition of the A.M.A., Guides.
However, this report does not show that appellant is entitled to additional schedule award
compensation because it does not contain an impairment rating under the appropriate edition of
the A.M.A., Guides, i.e., the sixth edition. Moreover, Dr. Woodbury did not provide any
explanation of what tables he applied or otherwise describe how he arrived at his impairment
rating. In a December 16, 2010 report, he stated that appellant had 15 percent impairment of his
right elbow and 9 percent impairment of his whole person. Dr. Woodbury did not indicate which
edition of the A.M.A., Guides he applied or how he calculated the impairment rating. In
addition, it is noted that schedule awards are not payable for impairment of the whole person.14
For these reasons, appellant did not meet his burden of proof to establish that he has more
than a seven percent permanent impairment of his right arm, for which he received a schedule
award. He may request a schedule award or increased schedule award based on evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a seven percent permanent impairment of his right arm, for which he received a
schedule award.

14

See supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the January 24, 2012 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: August 21, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
TENNESSE VALLEY AUTHORITY,
SEQUOYAH NUCLEAR PLANT,
Soddy Daisy, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0587
Issued: December 9, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On January 23, 2015 appellant, through counsel, filed a timely appeal of a December 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 met his burden of proof to establish that he has lung
disease causally related to factors of his federal employment.
On appeal counsel argues that there is an unresolved conflict in the medical evidence
warranting referral to an impartial medical examiner pursuant to 5 U.S.C. § 8123(a) to resolve
the conflict.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 30, 2013 appellant, then a 70-year-old maintenance mechanic/boilermaker, filed
an occupational disease claim (Form CA-2) alleging that on February 26, 2013 he first realized
that he had an employment-related lung condition.
On June 17, 2013 the employing establishment controverted the claim. It indicated in a
report by Mike Bradford, CSP/Industrial Hygienist, that the employing establishment used
extensive air monitoring to determine potential exposure to various airborne contaminants and
provided protective equipment to ensure that the employee’s exposure was within the safety
limits set by the Occupational Safety and Health Administration and the Environmental
Protection Agency. The employing establishment also noted that appellant had a 20-year history
of smoking a pack of cigarettes per day.
By letter dated July 10, 2013, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
required and was afforded 30 days to provide this information.
In response to OWCP’s request, it received appellant’s statement and copies of position
descriptions for a boilmaker. One position description noted that the major duties of the position
were:
“general maintenance repairs to boilers, soot blowers, drums, tubes, ash- and coalhandling equipment, pulverizers, ducts and breeching, air preheaters, coal
bunkers, burners, heaters, evaporators, etc.”
The record contains a second position description for a boilermaker, described the duties
as follows:
“Performs general and emergency welding repairs and maintenance work on a
nuclear power plan. The work involves reactor pressure vessels, tubular host
exchangers, tanks, condenses, and other plant equipment. The equipment may be
radioactive or located in a radiation zone. The work consists of general welding
and cutting in accordance with approved welding….”
In his statement, appellant noted that his first job was at the Widows Creek fossil steam
plant where he was employed as a boilermaker or certified welder. He alleged that during his
work he was exposed to coal dust, welding fumes and smoke, and asbestos from working on the
steam pipes and boilers in the form of blankets used while welding. Occasionally, appellant
alleged that he was also exposed to arsenic. He related that the dust was very thick as it could be
seen in the air and covered the equipment and skin. While working at the Bellefonte Nuclear
Plant and the employing establishment appellant stated that he was exposed to asbestos on the
pipes wrapping, and gaskets, and exposed to grinding dust and welding smoke and fumes.

2

In an April 23, 2013 report, Dr. Glen Baker, a treating Board-certified internist with a
subspecialty in pulmonary medicine and certified B-reader,2 noted that appellant has worked at
employing establishment plants and nuclear plants as a boilmaker for 45 years. He related that
appellant had smoked a pack of cigarettes a day for 20 years, but quit in 2000. Dr. Baker stated
that appellant was exposed “to asbestos on a frequent basis as well as coal dust, fly ash and
arsenic.” Review of an April 20, 2013 chest x-ray interpretation revealed category 1/0
occupational pneumoconiosis. Pulmonary function tests (PFT) showed a mild restrictive
ventilator defect. Dr. Baker diagnosed category 1/0 occupational pneumoconiosis and mild
restrictive ventilator defect. He noted that appellant’s 45-year history of asbestos exposure and
the changes observed on the x-ray interpretation were consistent with early pulmonary
asbestosis. Dr. Baker attributed the mild restrictive ventilator defect and occupational
pneumoconiosis to appellant’s work exposure to coal dust, asbestos, fly ash, arsenic, and other
chemicals. He opined that appellant’s smoking history did not cause any significant pulmonary
problem as there was no evidence of any obstructive defect or significant bronchitis.
On November 7, 2013 OWCP referred appellant and a statement of accepted facts and
medical evidence to Dr. Allen R. Goldstein, Board-certified in pulmonology and a B-reader, for
a second opinion evaluation. The statement of accepted facts noted that appellant’s
responsibilities as a boilermaker included:
“general maintenance repairs to boilers, soot blowers, drums, tubes, ash- and coalhandling equipment, pulverizers, ducts and breeching, air preheaters, coal
bunkers, burners, heaters, evaporators, etc.” [Appellant] will be required as
necessary to travel to other plants for emergency work or scheduled major
maintenance work.”
In a report dated February 4, 2014, Dr. Goldstein noted that he had reviewed Dr. Baker’s
report, pulmonary function studies, and x-ray interpretation. He noted that appellant had an
employment history of working 45 years as a boilmaker and had a 20-year history of smoking
one pack of cigarettes per day until quitting in 2000. Dr. Goldstein noted that appellant reported
that he removed asbestos as part of performing repair work and that he was in the area where the
repair work was performed. He noted that appellant did not talk much about his exposure to coal
dust, arsenic, or fly ash. Appellant reported shortness of breath with dyspnea beginning in 2011
as well as some difficulty at night with shortness of breath. He also reported that appellant’s
symptoms were aggravated by any exertion. Dr. Goldstein noted that appellant could probably
walk on level ground about a quarter of a mile.
Dr. Goldstein reviewed a November 25, 2013 x-ray interpretation and found a normal
x-ray interpretation. Review of a PFT showed “a restrictive defect with some slight
improvement in the small airway flow rates,” a slight restriction based on lung volumes and a
normal diffusion capacity. Based on Dr. Goldstein’s review of the objective tests, medical
evidence, and physical examination, he concluded that appellant did not have asbestosis. He
explained that appellant’s current chest x-ray interpretation was normal and assuming the x-ray
interpretation performed by Dr. Baker was 1/0, then appellant has improved which would argue
2

A B-reader is a physician certified by the National Institute for Occupational Safety and Health as
demonstrating proficiency in classifying radiographs of the pneumoconiosis. Noah Ooten, 50 ECAB 283 (1999).

3

against a diagnosis of asbestosis. Regarding causal relationship, Dr. Goldstein related that
appellant’s restrictive pulmonary function was related to his body stature as a 5’10” male,
weighing 260 pounds. He also noted that appellant’s normal diffusing capacity argued against
any type of interstitial lung disease. In conclusion, Dr. Goldstein opined that there was no
evidence supporting a diagnosis of asbestosis or any work-related lung disease.
By decision dated February 19, 2014, OWCP denied appellant’s claim finding that the
evidence was insufficient to establish that the medical condition is causally related to his work.
In reaching this determination it found that the weight of the medical opinion evidence rested
with Dr. Goldstein’s opinion that appellant had no employment-related asbestosis or any form of
lung disease.
On February 27, 2014 appellant’s counsel requested an oral telephonic hearing before an
OWCP hearing representative, which was held on September 8, 2014.
By decision dated December 2, 2014, OWCP’s hearing representative affirmed the
February 19, 2014 decision denying appellant’s claim. He found that the weight of the evidence
rested with Dr. Goldstein’s opinion as it was the more rationalized opinion.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his 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
and/or specific condition for which compensation is claimed are 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 that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).

4

opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 When there are opposing reports of virtually
equal weight and rationale, the case must be referred to an impartial medical specialist, pursuant
to section 8123(a) of FECA, to resolve the conflict in the medical evidence.11
ANALYSIS
Appellant filed an occupational disease claim alleging that he had developed a lung
condition due to factors of his federal employment. OWCP noted that the duties of a boilmaker
included “general maintenance repairs to boilers, soot blowers, drums, tubes, ash- and coalhandling equipment, pulverizers, ducts and breeching, air preheaters, coal bunkers, burners,
heaters, evaporators, etc. The issue, therefore, is whether the medical evidence establishes a
causal relationship between the claimed condition and the identified employment factors.
In a report dated April 23, 2013, appellant’s physician, Dr. Baker, diagnosed
occupational pneumoconiosis by x-ray. He found a mild restrictive ventilatory defect by PFT.
Dr. Baker attributed appellant’s occupational pneumoconiosis and mild restrictive defect to his
exposure while working as a boilermaker to fly ash, coal dust, asbestosis, and other chemicals
and fumes. He also noted that appellant had a 45-year history of exposure to asbestos and that
changes observed on x-ray examination were consistent with early pulmonary asbestosis.
Dr. Baker explained that the 20-year, one pack per day smoking history was not believed to have
caused any significant pulmonary problem as he had no obstructive defect or significant
bronchitis.
Dr. Goldstein, an OWCP referral physician, found on February 4, 2014 that appellant had
nondiagnostic-findings on x-ray, however, appellant had a slight restriction of lung volumes,
with normal diffusion capacity. He explained that this finding was related to appellant’s height
and weight. Dr. Goldstein indicated that he was unable to render a diagnosis of asbestosis based
on the current normal x-ray and the improvement seen since the x-ray taken by Dr. Baker. Based

8

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

10

5 U.S.C. § 8123(a). See S.R., Docket No. 09-2332 (issued August 16, 2010); Y.A., 59 ECAB 701 (2008);
Darlene R. Kennedy, 57 ECAB 414 (2006).
11

A.R., Docket No. 09-1566 (issued June 2, 2010); M.S., 58 ECAB 328 (2007); Bryan O. Crane, 56 ECAB
713 (2005).

5

on his review of objective data, he opined that there was no medical evidence to support a
diagnosis of asbestosis or any work-related lung disease.
The Board finds that this case is not in posture for a decision due to an unresolved
conflict in the medical opinion evidence. Dr. Baker, a certified B-reader and Board-certified
internist with a subspecialty in pulmonary medicine, examined appellant’s chest x-rays and
determined that he had 1/0 occupational pneumoconiosis. He also found that based upon x-ray
evidence that appellant had early pulmonary asbestosis. Dr. Baker concluded that appellant’s
lung conditions were employment related because appellant had a 45-year history of work as a
boilermaker.
Dr. Goldstein, also a Board-certified pulmonologist and certified B-reader, reviewed
appellant’s x-ray and found no abnormalities. While he related that pulmonary function testing
revealed a slight restrictive defect, he concluded that this was not employment related.
The Board finds that there is disagreement between the two physicians regarding the
results of appellant’s diagnostic studies, and whether he has an employment-related lung
condition. The Board finds that there is a conflict of medical opinion evidence.
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.12 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.13
On remand, OWCP should refer appellant, a statement of accepted facts, a list of specific
questions, and his diagnostic studies to an appropriate Board-certified physician and B-reader to
determine whether he has any employment-related lung condition.14 Following this and any
necessary further development, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision due to a conflict in the
medical opinion evidence.

12

5 U.S.C. §§ 8101-8193, 8123; B.C., 58 ECAB 111 (2006); M.S., id; Darlene R. Kennedy, 57 ECAB 414 (2006).

13

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

14

See e.g., S.T., Docket No. 13-1977 (issued March 18, 2014 (the interpretation of a B-reader carries more weight
when interpreting chest x-rays for evidence of pneumoconiosis).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 2, 2014 is set aside and the case remanded for further
proceedings consistent with the above opinion.15
Issued: December 9, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

15

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 13-836
Issued: April 3, 2014

Case Submitted on the Record

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

JURISDICTION
On February 24, 2013 appellant filed a timely appeal from a January 22, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained
syncope and headaches causally related to the July 7, 2010 injury at work.

1
2

5 U.S.C. § 8101 et seq.

Appellant requested an oral argument. By order dated July 8, 2013, the Board denied appellant’s request for an
oral argument finding that her arguments on appeal could adequately be addressed in a decision based on a review of
the case record.

FACTUAL HISTORY
This case has previously been before the Board. In a September 18, 2012 order,3 the
Board remanded the case for OWCP to obtain a missing medical report and complete the record.
The facts and circumstances of the case as set forth in the Board’s prior decision are incorporated
herein by reference.
On July 7, 2010 appellant, then a 54-year-old diversity and civil rights officer, struck the
right side of her forehead at her desk. She passed out after a telephone conversation with
Franklin Jones, the Executive Director, at the employing establishment. When appellant gained
consciousness she had bruises on her knee caps, a stiff neck and pain in her upper and lower
back. She started shaking and passed out again. Appellant stopped work and returned on
July 12, 2010. She provided a typed version of her account of the July 7, 2010 telephone
conversation with Mr. Jones.
In July 13, 2010 statements, Dr. Michael Lovejoy, the Director of Field Operations at her
employing establishment, and Geraldine A. Harle, a secretary, reported that on July 7, 2010 they
received a telephone call that appellant had fainted in her office. When they went to her office,
they observed that she was visibly upset and that she passed out two more times before she was
taken to the hospital by ambulance. In a July 15, 2010 statement, Sean Brady, a financial
advisor, stated that he went to appellant’s office after he heard that she passed out and saw her
lying down on the ground near her chair.
A July 7, 2010 emergency medical services (EMS) report indicated that appellant
collapsed twice at the employing establishment and was taken to the hospital due to anxiety. She
became dizzy and weak because her supervisor was harassing her. A July 7, 2010 hospital report
noted that appellant became dizzy and had a syncope episode at work. Appellant was authorized
to return to work on July 8, 2010.
In a July 7, 2010 computerized tomography (CT) report, Dr. Stuart E. Mirvis, a Boardcertified diagnostic radiologist, observed no evidence of intracerebral acute pathology and
unremarkable paranasal sinuses, orbits and globes. He listed syncope.
In a July 19, 2010 back to work note, Dr. Chetana Shastri, a Board-certified internist,
stated that appellant could return to work on August 2, 2010. She noted that appellant was ready
to take time off for anxiety and stress and would be seeing mental health on July 30, 2010 to get
some help.
On July 28, 2010 Dr. Shastri noted that appellant sustained an injury of mental stress,
anxiety and bumps on her left forehead due to a fall. She indicated that appellant did not have a
history or evidence of concurrent or preexisting injury. Dr. Shastri reported that appellant was
taken to the emergency room where she was examined for dizziness, passing out and had a bump
from a fall. She diagnosed stress, anxiety and headaches. Dr. Shastri checked “yes” that she
believed appellant’s condition was caused or aggravated by an employment activity. Appellant
was disabled from July 19 to 30, 2010 and could resume regular work on August 2, 2010.
3

Docket No. 12-895 (issued September 18, 2012).

2

In a July 30, 2010 back to work note, Dr. Shastri reported that appellant could return to
work on August 5, 2010.
On August 5, 2010 Dr. John McEvoy, a Board-certified internist, stated that appellant
had recent issues of reported abuse at work and wanted to transfer because she was not coping
well. He related that during an argument at work, she became very upset and had a syncopal
episode three times. Appellant fell onto her desk and to the floor and sustained a head injury.
Dr. McEvoy noted that she went to the hospital where a CT scan was negative. He opined that
the cause of appellant’s syncope was felt to be an anxiety attack. Dr. McEvoy reported that she
experienced bifrontal headaches with throbbing, pressure-like sensation since the incident. Upon
examination, he observed neck stiffness and mild photophobia but no aura or migrainous
features. Dr. McEvoy diagnosed anxiety disorder with headaches that seemed to be more tension
and stress related. Most of appellant’s issues were situational and he opined that the best
outcome would be a transfer of work duties to another department. Dr. McEvoy stated that she
could return to work with limitations after August 11, 2010.
By letter dated August 11, 2010, OWCP requested that she respond to specific questions
regarding her medical history and the July 7, 2010 employment incident.
In an August 20, 2010 letter, the employing establishment controverted appellant’s claim
alleging that her conditions were not work related. In a statement, Mr. Jones related that on
July 7, 2010 he called appellant to clarify an e-mail she sent to Alan Bersin, the Customs and
Border Patrol Commissioner, regarding the reassignment notice and to identify the individuals
she believed were responsible for harassment in her workplace. Mr. Jones noted that appellant
requested to put her concerns in writing. He advised her to respond to his questions so that he
could quickly address her concerns and allegations. Mr. Jones reported that appellant began to
speak in a disrespectful tone and refused to answer his questions. When she stopped answering
his questions, he assumed that she had hung up. The employing establishment contended that
Mr. Jones followed his managerial obligation to speak with appellant in order to address her
concerns about her work environment. It also noted that she had not submitted sufficient
medical evidence to establish that she sustained a diagnosed condition as a result of the July 7,
2010 employment incident.
In August 20 and 27, 2010 statements, appellant related that on July 7, 2010 she sustained
contusions and bruises on her forehead and knees after she passed out. She alleged being
harassed, intimidated, threatened, and coerced during a telephone conversation with Mr. Jones,
her third level supervisor. Mr. Jones interrogated her on why she went to the Commissioner
regarding the reconstruction of his office and kept interrupting her when she attempted to answer
his questions. Appellant informed Mr. Jones that she was not feeling well and requested to get
back to him but he denied her request. She stated that she was not disrespectful to him and did
not raise her voice. Appellant first passed out during the telephone conversation and again while
sending an e-mail to notify Mr. Jones and Mr. Hire that she was going to the hospital. She
passed out a third time when she was talking to the paramedics. Appellant contended that she
lost consciousness as a result of Mr. Jones badgering her for information, speaking to her in a
demanding manner, denying her requests to get back to him when she was not feeling well and
interrupting her. Appellant requested to be reassigned outside of her office based on the injuries
she sustained on July 7, 2010 but the establishment did not cooperate. She reported that she did

3

not have any history of fainting or any other preexisting condition which could have caused her
to lose consciousness.
In a September 1, 2010 statement, Kristy L. Montes, the Director of Field Operations for
the Office of Diversity and Civil Rights, denied appellant’s request for reassignment for medical
reasons. She found that appellant did not provide adequate documentation addressing the impact
of appellant’s current supervisory assignment on her alleged medical conditions.
In a November 3, 2010 statement, appellant addressed the medical documentation
submitted to OWCP and listed her prescribed medications. She reiterated that she suffered
traumatic injuries due to the July 7, 2010 telephone conversation and requested a copy of her
case record.
Appellant submitted copies of e-mails commencing June 24, 2010 regarding her initial
request for Mr. Jones to reconsider his reassignment notice. In e-mails dated July 12 to
August 30, 2010, she addressed the refusal of Mr. Jones to reconsider his realignment notice.
Appellant also submitted copies of her complaints of employment discrimination to the Equal
Employment Opportunity Commission (EEOC).
In a November 17, 2010 report, Dr. Robert E. Rosenthal, Board-certified in emergency
and internal medicine, stated that he was the attending physician at the hospital where appellant
was examined on July 7, 2010. According to the history provided, appellant “felt funny” and
suffered a syncopal or fainting episode at work after a stressful situation. She suffered two more
episodes of fainting when she tried to stand. Appellant hit her head on a desk during one of the
episodes. Dr. Rosenthal first met appellant while she was awake and complained of a severe
headache. He stated that the physical examination was basically unrevealing and that blood
tests, a head CT and an electrocardiogram (EKG) failed to show a cause for her loss of
consciousness. Dr. Rosenthal diagnosed “vasovagal syncope” and explained that this was a loss
of consciousness caused by acute onset of low blood pressure in response to an extremely
stressful or painful incident. He opined that appellant’s loss of consciousness and the risk of
serious injury was consistent with a stressful encounter in the workplace.
In a decision dated February 9, 2011, OWCP accepted appellant’s July 7, 2010 claim for
a head contusion. It found that the medical evidence was insufficient to accept headache,
syncope or anxiety disorder as causally related to the July 7, 2010 employment incident.
In a letter dated February 19, 2011, appellant requested reconsideration of the February 9,
2011 decision to deny her claim for headache and syncope. She noted that she previously
requested copies of her file but had not received them. Appellant stated that she was at a
disadvantage because management reviewed her case file but she was not given the same
opportunity. She contended that she submitted sufficient medical evidence to establish her
claim.
In a May 12, 2011 decision, OWCP denied her compensation claim for headaches,
syncope and anxiety.
On May 23, 2011 appellant requested an oral hearing. She explained that the reason she
did not file her request for a hearing within 30 days of the February 9, 2011 decision was the
4

failure of the initial decision to inform her of her appeal rights. Appellant contended that
OWCP’s claims examiner was complicating her claim by making it about harassment and a
prolonged condition. She clarified that she was not claiming any anxiety disorder, harassment or
a hostile work environment but that she experienced stress and the fear of being harassed,
intimidated and threatened due to the July 7, 2010 telephone conversation. The stress caused her
to faint from an anxiety attack and hit her head. Appellant contended that OWCP ignored
Dr. Rosenthal’s November 17, 2010 medical report which provided a medical opinion on causal
relationship.
A telephone hearing was held on October 13, 2011. Appellant reiterated that she was not
making a claim for an anxiety condition but for an anxiety attack as a result of the July 7, 2010
telephone conversation with Mr. Jones. She contended that OWCP’s decision was biased as it
included a statement by Mr. Jones regarding the July 7, 2010 incident but did not include her
statements about the telephone conversation.
In a letter dated October 23, 2011, appellant provided additional comments to the
October 13, 2011 telephone hearing. She clarified that she was requesting that the diagnoses of
vasovagal syncope and headaches be accepted.
By decision dated January 22, 2013, an OWCP hearing representative affirmed the
May 12, 2011 decision denying her claim for vasovagal syncope and headaches. She determined
that appellant’s fainting episode did not occur in the performance of duty because the alleged
cause of the incident, a telephone call with Mr. Jones, was not considered a compensable factor
of employment. The hearing representative found that appellant failed to submit sufficient
medical evidence to establish that her headaches resulted from her physically striking her head
on July 7, 2010.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6
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.7
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment

4

5 U.S.C. §§ 8101-8193.

5

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

6

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

7

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

5

incident at the time, place and in the manner alleged.8 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.9 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.10
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.11 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.12 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.13
It is a well-settled principle of workers’ compensation law that each and every injury or
illness that is somehow related to employment is not covered under workers’ compensation law.
There are situations where an injury or illness has some connection with the employment, but
nevertheless does not come within the coverage of workers’ compensation. When disability
results from an emotional reaction to regular or specially assigned work duties or a requirement
imposed by the employment, the disability comes within coverage of FECA. On the other hand,
there are situations when an injury has some connection with the employment, but nonetheless
does not come within the coverage of workers’ compensation because it is not considered to
have arisen in the course of employment.14
ANALYSIS
OWCP accepted that on July 7, 2010 appellant sustained contusions to her head when she
fell following a telephone conversation with Mr. Jones. It denied that she sustained a syncopal
episode or headaches causally related to the July 7, 2010 employment incident.
The Board finds that appellant did not sustain an anxiety attack or syncopal episode in the
performance of duty.

8

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

9

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

10

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

11

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

12

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

13

James Mack, 43 ECAB 321 (1991).

14

Joel Parker, Sr., 43 ECAB 220 (1991); Lillian Cutler, 28 ECAB 125 (1976).

6

Appellant contends that on July 7, 2010 Mr. Jones called her concerning an e-mail she
sent to Commissioner Bersin regarding the denial of her request to change his reassignment
notice and other workplace concerns. She alleged that during the telephone conversation she
was harassed, intimidated, threatened and coerced. As a result, appellant became fearful, had an
anxiety attack and fainted. She stated that she was not claiming an anxiety disorder as a result of
the July 7, 2010 employment incident but that her syncopal episode and headaches were causally
related to this incident. Appellant attributed her fainting episode to an anxiety attack caused by
harassment and intimidation at work. Accordingly, she must establish that the cause of her
anxiety attack and fainting arose in and out of the course of her employment.
As a general rule, a claimant’s reaction to administrative or personnel matters fall outside
the scope of FECA coverage.15 Absent error or abuse on the part of the employing
establishment, administrative or personnel matters, although generally related to employment,
are administrative functions of the employer rather than regular or specifically assigned work
duties of the employee.16 An employee’s complaint about the manner in which a supervisor
performs supervisory duties or the manner in which a supervisor exercises supervisory discretion
generally fall outside the scope of coverage provided by FECA. This principle recognizes that a
supervisor must be allowed to perform his or her duties and that in performance of these duties,
employees will at times dislike actions taken. Mere disagreement or dislike of a supervisory or
management action is not compensable, absent evidence of error or abuse. In determining
whether the employing establishment erred or acted abusively, the Board has first examined
whether the employing establishment acted reasonably.17 To support such a claim, a claimant
must establish a factual basis by providing probative and reliable evidence.18
For harassment to give rise to a compensable factor under FECA, there must be some
evidence that acts alleged or implicated by the employee did, in fact, occur. A claimant’s own
feeling or perception that a form of criticism or disagreement is unjustified, inconvenient, or
embarrassing is self-generated and should not give rise to coverage under FECA absent objective
evidence that the interaction with his or her supervisor was, in fact, abusive.19
In support of her claim, appellant provided statements from Drs. Lovejoy and Harle, who
heard that she had fainted in her office. They observed that she was visibly upset and passed out
two more times before she was taken to the hospital. In an August 20, 2010 letter, Mr. Jones, the
supervisor, controverted appellant’s allegations. He asked her to respond to his questions in
order to address her concerns and allegations. Appellant refused to answer his questions and
began to speak in a disrespectful tone. The Board finds that appellant has not submitted
sufficient evidence to establish that Mr. Jones’ telephone conversation constituted harassment or
was abusive. While the record establishes that she became upset and fainted after the telephone
15

Janet I. Jones, 47 ECAB 345 (1996).

16

Gregory N. Waite, 46 ECAB 662 (1995).

17

Ruth S. Johnson, 46 ECAB 237 (1994).

18

Barbara J. Richardson, 45 ECAB 843 (1994).

19

Daniel B. Arroyo, 48 ECAB 204 (1996).

7

conversation, there is no evidence that Mr. Jones acted in an abusive manner toward appellant.20
Appellant has not established a compensable employment factor with regard to her allegation of
harassment or managerial abuse.
On appeal, appellant alleged discrimination, harassment and a hostile work environment.
She noted that the employing establishment’s standard of conduct prohibited discrimination and
harassment in the workplace. Appellant references several cases, including William W.
Knespel,21 Jon Louis Van Alstine,22 Donald R. Ford,23 Yvonne D. McCracy24 and Bradford N.
Reed,25 in support of her claim. As noted, OWCP accepted a head contusion arising from the
July 7, 2010 incident at work. The episode occurred in her office during her tour of duty. As she
attributes her syncope and headache also resulted from fear caused by harassment and
intimidation by her supervisor, she must prove that such harassment occurred and is not based on
her own feelings or perceptions.26 She has not established that the interaction with her
supervisor was, in fact, abusive.
Appellant also cited Donna M. Schmiedeknecht27 to support her claim. In that case, a
letter carrier claimed a depressive disorder because management required her to complete an
increased workload within the same eight-hour workday. The Board accepted the increased
work as a compensable factor of employment under Cutler. The Board noted that the claimant
was not claiming an emotional condition as a result of an administrative or personnel action but
she attributed her condition to her duties as a letter carrier. In this case, appellant here is not
alleging that her fainting episode resulted from her specific duties as a diversity and civil rights
officer but that she fainted due to harassment by Mr. Jones.
On appeal, appellant also contends that it is difficult to prove a one-on-one conversation
but that acts that occurred prior to and her typed version of the conversation should render a
decision beyond a reasonable doubt that the incident occurred. She provided other examples of a
hostile and intimidating work environment. The Board notes that appellant’s version of the
telephone call was disputed by the employing establishment. Further, if appellant is claiming

20

See Latonya S. Tankard, Docket No. 98-2420 (issued September 22, 2000) (denying appellant’s claim for
headaches and back pain after fainting and tumbling down the stairs because although the evidence demonstrated
that appellant and her employer had a loud discussion it failed to establish that her employer’s actions rose to the
level of harassment).
21

56 ECAB 639 (2005).

22

56 ECAB 136 (2004).

23

56 ECAB 577 (2005).

24

56 ECAB 646 (2005).

25

56 ECAB 428 (2005).

26

Supra note 20.

27

56 ECAB 726 (2005).

8

that she sustained an emotional condition as a result of work-related stress from events at work
over a period greater than the July 7, 2010 shift, she may file an occupational disease claim.28
The Board also finds that appellant failed to establish that she sustained a headaches
causally related to the July 7, 2010 injury.
Appellant contends that Dr. Rosenthal’s November 17, 2010 report is sufficient to
establish a causal connection with vasovagal syncope and headaches. Dr. Rosenthal examined
appellant at the hospital on July 7, 2010. He related that, according to the history provided,
appellant “felt funny.” Appellant experienced a syncopal or fainting episode at work after a
stressful situation and suffered two more episodes after she tried to stand. Dr. Rosenthal noted
that the physical examination was basically unrevealing and that diagnostic and lab tests failed to
establish a cause for her loss of consciousness. He diagnosed vasovagal syncope and explained
that this was a loss of consciousness caused by acute onset of low blood pressure in response to
an extremely stressful or painful incident. Dr. Rosenthal opined that appellant’s loss of
consciousness and the risk of serious injury was consistent with a stressful encounter in the
workplace. While Dr. Rosenthal provided a diagnosis of syncope and generally references
appellant’s work, he failed to adequately explain how her conversation with her supervisor
caused her stress and resulted in the syncopal episode. Dr. Rosenthal attributed appellant’s
condition to a generally stressful situation. The Board has found that a physician must provide a
narrative description of the identified employment incident and a reasoned opinion on whether
the employment incident caused or contributed to appellant’s diagnosed medical condition.29
In an August 5, 2010 report, Dr. McEvoy noted that appellant had a syncopal episode at
work after becoming upset. He opined that the cause was felt to be an anxiety attack.
Dr. McEvoy generally referenced the incident at work but did not sufficiently explain how
appellant’s conditions resulted from the July 7, 2010 telephone conversation or explain how the
conditions resulted from the incident. The reports of Drs. Rosenthal and McEvoy are insufficient
to establish causal relationship.30
In July 2010 reports, Dr. Shastri noted that appellant was taken to the emergency room
where she was examined for dizziness, passing out and a bump from a fall. She diagnosed stress,
anxiety and headaches. Dr. Shastri checked “yes” to a form question that she believed
appellant’s condition was caused or aggravated by an employment activity. The Board has held,
however, that when a physician’s opinion on causal relationship consists only of checking “yes”
28

A traumatic injury is defined 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. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift. 20 C.F.R.
§ 10.5(q).
29

B.T., Docket No. 13-138 (issued March 20, 2013); John W. Montoya, 54 ECAB 306 (2003).

30

See L.G., Docket No. 13-927 (issued August 27, 2013) (the Board upheld the denial of appellant’s claim
finding that the medical evidence failed to establish that her medical conditions resulted from fainting at work due to
stress and anxiety); S.B., Docket No. 10-435 (issued January 14, 2011) (the Board denied that appellant sustained
injuries to her head, back, hip, shoulder and side when she had a severe anxiety attack and fell from her chair after
receiving an upsetting e-mail at work).

9

to a form question, without explanation or rationale, that opinion is of diminished probative
value and is insufficient to establish a claim.31
Appellant also submitted July 7, 2010 EMS and hospital records which indicated that she
lost consciousness and collapsed twice at the employing establishment. The reports, however,
were not signed by a physician and lack proper identification. Therefore, they are not considered
probative medical evidence under FECA.32
Causal relationship is a medical issue that can only be established by reasoned medical
opinion evidence that is supported by medical rationale.33 Neither the fact that a disease or
condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents, is sufficient to establish
causal relationship.34 In this case, appellant failed to submit sufficient medical evidence to
establish that she sustained a syncopal episode or headaches as a result of the July 7, 2010
employment incident.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained syncopal or stress headaches due to the July 7, 2010 employment injury.

31

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

32

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

33

T.H., supra note 10; see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

34

Jennifer Atkerson, 55 ECAB 317 (2004).

10

ORDER
IT IS HEREBY ORDERED THAT the January 22, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL CENTER,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1189
Issued: August 21, 2015

Case Submitted on the Record

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

JURISDICTION
On May 4, 2015 appellant filed a timely appeal from a November 19, 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 met her burden of proof to establish a recurrence of a
medical condition commencing June 28, 2013 causally related to her accepted December 10,
2002 employment injury.
FACTUAL HISTORY
This case has previously been before the Board with respect to the termination of
appellant’s compensation benefits. In an August 4, 2006 decision,2 the Board affirmed OWCP’s
1

5 U.S.C. § 8101 et seq.

2

Docket No. 06-0729 (issued August 4, 2006).

termination of appellant’s benefits on November 17, 2005 and its determination that she had not
established any continuing residuals from her accepted employment-related thoracic strain after
that date. In decisions dated February 13, 2009 and March 27, 2012, the Board affirmed OWCP
decisions finding that appellant’s requests for reconsideration were insufficient to warrant merit
review of her claim.3 The facts and circumstances surrounding the prior Board decisions are
herein incorporated by reference. The relevant facts are set forth below.
On February 21, 2003 OWCP accepted that on December 10, 2002 appellant, then a 45year-old mail handler dock technician, sustained a thoracic strain as a result of pushing a mail
hamper. In September 2004, she retired on disability from the employing establishment.
On July 5, 2013 appellant filed a claim for a recurrence of medical condition on June 28,
2013 causally related to her accepted December 10, 2002 employment injury. She alleged that
she experienced a stabbing sharp pain while walking to check her mail and that she could barely
move. Appellant sought medical treatment on July 1, 2013 from Dr. Robert B. Kaler, a Boardcertified family practitioner.
By letter dated October 9, 2013, OWCP advised appellant of the factual and medical
evidence necessary to establish her recurrence claim.
In an undated statement, appellant described the symptoms she experienced in her
thoracic area, right hand, and back. She stated that her thoracic area symptoms arose after she
walked one quarter of a block from her residence to the mailbox area to check for her mail.
Appellant further stated that she did not have any hobbies or participate in any sports or home
improvement.
Appellant submitted a July 21, 2004 thoracic magnetic resonance imaging (MRI) scan
report from Dr. Alexander D. Serra, a Board-certified radiologist. Dr. Serra provided an
impression of mild-to-moderate thoracic disc disease with 20 percent partial compression
fracture at T6 (chronic) and secondary kyphosis.
In a June 23, 2009 thoracic MRI scan report, Dr. Aria Parker, a Board-certified
radiologist, provided an impression of mild disc desiccation and small bulging compatible with
degenerative disc disease at T5-6, T6-T7, and T7-T8. She also found a prominent osteophyte
extending from the left facet into the canal causing an impression on the thecal sac and mild
canal stenosis at the T4 vertebral body level.
A progress note by Dr. Kaler dated July 1, 2013 provided examination findings and
assessed appellant as having cervical disc disorder, cervicothoracic strain, and chronic pain
syndrome.
In a November 19, 2014 decision, OWCP denied appellant’s recurrence claim as she
failed to submit sufficient medical evidence to establish a causal relationship between her current
conditions and her accepted December 10, 2002 work injury.

3

Docket No. 08-2168 (issued February 13, 2009); Docket No. 11-2001 (issued March 27, 2012).

2

LEGAL PRECEDENT
A recurrence of a medical condition is defined as a documented need for further medical
treatment after release from treatment for the accepted condition or injury.4 Continuous
treatment for the original condition or injury is not considered a recurrence of a medical
treatment nor is an examination without treatment.5
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable, and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for
additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.6
ANALYSIS
The Board finds that appellant did not establish a recurrence of a medical condition
commencing June 28, 2013. OWCP accepted that on December 10, 2002 appellant sustained a
thoracic strain while working as a mail handler dock technician. Appellant retired on disability
in September 2004. On July 5, 2013 appellant filed a recurrence claim alleging that her current
thoracic conditions were causally related to the accepted condition.
Dr. Serra’s July 21, 2004 thoracic MRI scan reports provided an impression of mild-tomoderate thoracic disc disease with 20 percent partial compression fracture at T6 (chronic) and
secondary kyphosis. Dr. Parker’s June 23, 2009 thoracic MRI scan report provided an
impression of mild disc desiccation and small bulging compatible with degenerative disc disease
at T5-6, T6-T7, and T7-T8. She also found a prominent osteophyte extending from the left facet
into the canal causing an impression on the thecal sac and mild canal stenosis at the T4 vertebral
body level. While these reports predate appellant’s recurrence claim, it is noted that neither
Dr. Serra nor Dr. Parker explained or offered any medical rationale as to how her accepted
thoracic strain deteriorated over the years and resulted in the diagnosed thoracic conditions.
Dr. Kaler diagnosed cervical disc disorder, cervicothoracic strain, and chronic pain
syndrome in his July 1, 2013 progress report but did not address causal relationship. The
cervical conditions and chronic pain syndrome have not been accepted by OWCP. It was
appellant’s burden of proof to establish causal relationship.7 This progress note is insufficient to
establish her claim.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a recurrence of a medical condition commencing June 28, 2013
4

20 C.F.R. § 10.5(y).

5

Id.

6

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

7

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

3

causally related to the accepted December 10, 2002 employment injury. Appellant did not meet
her burden of proof.
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 a recurrence of a medical condition
commencing June 28, 2013 causally related to her accepted December 10, 2002 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4