United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF COMMERCE, NATIONAL
OCEANIC & ATMOSPHERIC
ADMINISTRATION, Wallops Island, VA,
Employer
__________________________________________

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Appearances:
Katharine O. Porwick, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-834
Issued: May 17, 2011

Oral Argument March 2, 2011

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

JURISDICTION
On February 3, 2010 appellant, through his representative, filed a timely appeal from a
September 22, 2009 Office of Workers’ Compensation Programs’ merit decision which denied
his claim for a traumatic injury. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 12, 2007 appellant, then a 45-year-old information technology specialist team
leader, filed a traumatic injury claim alleging that on January 9, 2007 he was exposed to
dangerous levels of radio frequency radiation when checking for a waveguide leakage which
caused vision and hearing damage and burns to the left hand, arm and fingers. Appellant did not
stop work but began restricted duties.
Appellant was initially treated by Dr. Jeffrey Benner, a Board-certified ophthalmologist,
who submitted a January 12, 2007 attending physician’s report that diagnosed unspecified vision
loss due to abnormal exposure to infrared radiation sources. Dr. Benner checked a box “yes”
that the condition was caused or aggravated by work activity and noted that the exposure
occurred at work. In a report of the same date, he noted that appellant presented with eye pain
which was worse in light, headaches and ear and hand pain. Appellant reported being exposed to
an infrared radiation source at work.
On March 2, 2007 the Office advised appellant of the factual and medical evidence
needed to establish his claim. In a letter of the same date, it requested that the employing
establishment comment on appellant’s allegations.
In a January 15, 2007 report, Dr. Mitchell Gittelman, an osteopath, treated appellant for a
numbing sensation of the fingers and left hand, a cupping sensation in the left ear and glassy
eyes. He reported microwave exposure at work due to faulty equipment installation.
Dr. Gittelman diagnosed rhinitis, numbness and radiation exposure. On January 16, 2007
appellant was treated by Dr. W. Charles Schaeffer, a Board-certified otolaryngologist, for left ear
pain and hearing problems after workplace radiation exposure. Appellant reported being
exposed to radiation for about one hour and noted skin changes on his left side and vision
changes. Dr. Schaeffer noted a normal ear examination with bilateral high frequency hearing
loss. He opined that appellant’s hearing loss was not related to his radiation exposure but due to
noise exposure over a number of years.
The employing establishment submitted a January 12, 2007 incident report which noted
that on January 9, 2007 appellant was exposed to high levels of radio frequency radiation due to
faulty equipment and experienced vision and hearing damage on the left side, pain in the left
arm, fingers and joints and skin burn. After the incident, a bolt was installed and safety
procedures were drafted. Also submitted was a job description for an information technology
specialist team leader.
In a decision dated April 16, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was not sufficient to establish that his conditions were caused by his
employment duties.
Appellant requested an oral hearing which was held on October 5, 2007. He submitted
treatment records from Dr. Gittelman on January 10 and 15, 2007 for radiation poisoning that
occurred at work. Dr. Gittelman noted appellant experienced numbing sensation of the fingers
and hands and a cupping sensation of the ears after exposure to microwaves due to faulty
installation of equipment. He diagnosed rhinitis, numbness and radiation exposure. Appellant

2

was treated by Dr. Jeffrey Gaber, a Board-certified internist, on October 11, 2007. He noted a
history of exposure to nonionizing radiation for one hour while working on a satellite transmitter.
Dr. Gaber noted symptoms of facial skin burn, tremulousness, tinnitus and nausea. He opined
that appellant sustained permanent impairment due to his workplace exposure to radiation.
The employing establishment submitted a memorandum dated August 27, 2007 which
noted that a radio frequency radiation safety policy was enacted effective September 1, 2007
after the radio frequency radiation exposure incidents. In a November 5, 2007 statement, the
employing establishment noted that on January 9, 2007, while surveying a shelter housing radio
frequency transmitters, appellant reported finding a radio frequency leak at a backup site.
Appellant reported the leak to his supervisor and was instructed to shutdown the transmitters and
disable the radio frequency power.
In a decision dated December 5, 2007, the hearing representative affirmed the April 16,
2007 decision.2
On September 8, 2008 appellant requested reconsideration. He submitted a June 12,
2008 brain emission tomography report from Dr. J. Michael Uszler, a Board-certified radiologist.
It revealed a hypoperfusion pattern of the temporal and frontal lobes that might be secondary to a
closed head trauma or exposure to neurotoxic or neuroimmunologic processes and a
hyperperfusion pattern of the basal ganglia associated with anxiety tendencies. A June 20, 2008
report from Cindy Sage, an agricultural and environmental consultant, concluded that appellant
was exposed to excessively high radio frequency radiation for 50 to 60 minutes at levels that
significantly exceeded the legal maximum permissible. She noted that appellant’s symptoms
were consistent with those identified in published studies on radio frequency microwave
radiation injury.
In a July 22, 2008 report, Dr. Gunnar Heuser, an internist specializing in neurotoxicology
and immunotoxicology, noted a history of appellant’s exposure to radio frequency radiation. On
examination, he noted bilateral fine postural tremors and impaired balance. Dr. Heuser opined
that appellant experienced nonionizing radiation at the time of his January 9, 2007 accident and
developed acute and chronic symptoms and multisystem impairment as a result of this exposure.
He diagnosed radiation-induced encephalopathy, radiation-induced polyneuropathy and
radiation-induced cataracts. In an October 17, 2008 report, Dr. Heuser noted that, after his
radiation exposure, appellant became disabled when his brain and peripheral nerve functions
were impaired. He noted that a brain function test was significantly abnormal and typical of
neurotoxic exposure and psychological testing revealed impaired cognitive functions.
Dr. Heuser opined that appellant became disabled after the incident of January 9, 2007 causally
related to radiation exposure and would not be able to function at the high level of cognitive
functioning that he enjoyed prior to his exposure. Appellant underwent a microcog test on
August 4, 2008, which evaluated his brain functions and revealed severe memory deficit. A test
of variables of attention (TOVA) dated August 4, 2008 revealed slow cognitive time presumptive
of brain injury.
2

On December 12, 2007 appellant appealed to the Board. On September 8, 2008 appellant requested that his
appeal be dismissed so that he could pursue reconsideration before the Office. On September 25, 2008 the Board
dismissed the appeal. Docket No. 08-611.

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The employing establishment submitted a National Institute for Occupational Safety and
Health (NIOSH) report prepared after a health hazard evaluation of March 2007 following two
incidents in which employees believed they were exposed to radio frequency radiation. The
investigators noted reviewing a February 2007 report after a radio frequency survey was
conducted which revealed two measurements which exceeded the NIOSH standards for safety in
the waveguide area and near the auxiliary triplexer. The NIOSH investigators noted that a lack
of consistent training among the technicians for repairs they were expected to perform,
inconsistent documentation of the repairs performed and a lack of adherence to facility policy for
immediate medical evaluation after suspected radio frequency exposure. The investigators
further noted that there was no evidence of ongoing radio frequency exposure to technicians.
On December 11, 2008 the Office referred appellant for a second opinion to
Dr. Michael S. Miller, a Board-certified neurologist. It provided Dr. Miller with appellant’s
medical records, a statement of accepted facts as well as a detailed description of appellant’s
employment duties.3 In a December 29, 2008 report, Dr. Miller noted examining appellant,
reviewing his records and set forth a history of appellant’s condition. He noted that a diagnosis
was not established and the reported symptoms and neurological examination demonstrated no
evidence of left cerebral dysfunction or lateralized polyneuropathy. Dr. Miller opined that a
considerable supratentorial component existed making appellant’s evaluation difficult but noted
that no prominent objective abnormalities were appreciated on neurological examination and
there was no neurological evidence of disability based on examination. He found that appellant
was not totally disabled on a physical basis and there was no objective evidence of physical
limitations due to the January 9, 2007 incident.
On January 28, 2009 the Office referred appellant for a second opinion to Dr. Ross S.
Meyerson, Board-certified in occupational medicine.
In a February 13, 2009 report,
Dr. Meyerson noted examining appellant and provided a history of appellant’s treatment. He
noted that a diagnosis was not established and made no objective clinical findings of neurologic
impairment or injury. Dr. Meyerson opined that appellant’s symptoms may be due to a
psychiatric condition, somatoform disorder, in which numerous objective complaints were
unsupportive of objective findings. He noted that there was no evidence of total disability due to
organic illness and no objective physical limitations.
The Office found a conflict of medical opinion. Dr. Heuser, appellant’s physician, found
that appellant developed acute and chronic symptoms and multisystem impairment as a result of
exposure to nonionizing radiation on January 9, 2007 at work and diagnosed radiation-induced
encephalopathy, polyneuropathy and cataracts and was totally disabled. Drs. Miller and
Meyerson, Office referral physicians, determined that a firm medical diagnosis was not
established, that there were no objective findings of neurologic impairment and that appellant
could return to his preinjury position without restrictions.

3

The statement of accepted facts estimated that appellant was exposed, in a 10 by 12 foot room, to radio
frequency radiation of at least 20 milliwatts per square centimeter for one hour and for one-half hour he was very
close to the radiation leak.

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On July 27, 2009 the Office referred appellant to a referee physician, Dr. Christian E.
Jensen, a Board-certified neurologist with a specialty in toxicology.4 In a report dated
August 14, 2009, Dr. Jensen reviewed the records provided to him and examined appellant. He
reviewed appellant’s job requirements, noted a history of appellant’s condition and reviewed
treatment after the injury. Dr. Jensen noted appellant’s complaints of headaches, tingling and
numbness in the left hand and face, weakness on the right side, forgetfulness, hearing loss and
clumsiness. He noted findings upon examination of intact cranial nerves, normal oropharynx,
normal cardiovascular system and respiratory system, normal grip strength, full range of motion
of the upper and lower extremities, normal reflexes and normal range of motion of the lumbar
and cervical spine. Dr. Jensen advised that a diagnosis of a work-related injury was not
established and the symptoms and examination did not support the diagnosis of left cerebral
dysfunction or neuropathy from exposure to microwaves. He diagnosed migraine headaches and
opined that this was not medically connected to appellant’s work injury. Dr. Jensen opined that
appellant’s migraine condition was improved and he was no longer totally disabled as of
August 14, 2009. He recommended appellant return to work in a progressive manner and felt
that the prognosis was good for a return to full duty within three months. Dr. Jensen advised that
current work limitations related to appellant’s long period of inactivity as he had become
physically deconditioned and adopted sick behavior. Appellant’s migraine symptoms and other
complaints deserved to be evaluated by a neurologist and recommended a referral be made.
Appellant submitted a May 4, 2009 report from Kirsten Culler, a social worker and
counselor. She diagnosed mood disorder with major depressive likely episode due to radiationinduced encephalopathy, polyneuropathy and cataracts. In a June 1, 2009 report, Dr. Glenwood
Brooks, Jr., a licensed clinical psychologist, treated appellant for depressive defects associated
with his circumstances. He diagnosed possible traumatic brain disorder and post-traumatic stress
disorder by history. Dr. Brooks opined that appellant sustained a probable injury based on
published studies of radiation exposure.
In a decision dated September 22, 2009, the Office denied modification of the
December 5, 2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act5 has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of the Act, that the claim was filed within the applicable time
limitation of the Act, that an injury was sustained in the performance of duty as alleged and that
any disability and/or specific condition for which compensation is claimed are causally related to

4

On December 29, 2008 the Office referred appellant to Dr. John B. Parkerson, Jr., Board-certified in
occupational medicine, to resolve the medical conflict. After appellant objected to the selection due to questions
about Dr. Parkerson’s expertise in radiation exposure, the Office inquired about Dr. Parkerson’s qualifications to
render a medical opinion about radiation exposure. Thereafter, Dr. Parkerson declined to conduct the referee
examination.
5

5 U.S.C. §§ 8101-8193.

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the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or occupational disease.6
In order to determine whether an employee actually sustained an 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 which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.7 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.8
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.9
ANALYSIS
The Office accepted that the claimed radiation exposure occurred on January 9, 2007 but
it denied appellant’s claim, finding that the medical evidence did not establish that the exposure
caused an injury. On appeal, appellant contends that the August 14, 2009 report of the referee
physician, Dr. Christian Jensen, was insufficient to resolve the conflict of opinion with regard to
whether he developed vision and hearing damage or burns on the left hand, arm and fingers after
he was exposed to radio frequency radiation at work. He asserted that Dr. Jensen did not have
the technical or specialized foundation in radiation exposure to render a medical opinion which
would resolve the conflict of opinion in this case.
The Office found that a conflict in the medical evidence arose between appellant’s
attending physician, Dr. Heuser, who found that the workplace exposure caused diagnosed
conditions and disability, and Drs. Miller and Meyerson, Office referral physicians, who
determined that a work-related condition was not established. Consequently, the Office referred
appellant to Dr. Jensen to resolve the conflict.
The Board finds that Dr. Jensen’s report is insufficient to resolve the conflict of opinion.
In his report of August 14, 2009, Dr. Jensen noted that the diagnoses of a work-related injury
was not established and the symptoms and examination did not support the diagnosis of left
cerebral dysfunction or neuropathy on exposure to microwaves. He diagnosed migraine
headaches and opined that this condition was not medically connected to his work injury.
6

Gary J. Watling, 52 ECAB 357 (2001).

7

Michael E. Smith, 50 ECAB 313 (1999).

8

Id.

9

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

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Dr. Jensen failed to explain whether appellant’s radio frequency radiation exposure on January 9,
2007 caused vision, hearing or burn conditions in light of Dr. Heuser’s July 22 and October 17,
2008 reports which diagnosed radiation-induced encephalopathy, polyneuropathy and cataracts
as a result of exposure to nonionizing radiation on January 9, 2007. Dr. Jensen’s reports merely
referenced Dr. Heuser’s reports. In his discussion, Dr. Jensen did not explain or distinguish
Dr. Heuser’s diagnosis and opinion on causal relationship.10
Similarly, Dr. Jensen noted that over-exposure to radio frequency radiation of the
magnitude expressed was not known to cause anything other than superficial temporary thermal
injuries. He opined that there was no relationship between appellant’s radio frequency radiation
and his migraine headaches. However, it is unclear where Dr. Jensen obtained the background
information upon which he relied to make this determination regarding the effects of overexposure to radio frequency radiation as this information was not provided in the statement of
accepted facts and the physician failed to cite any medical or occupational authority in
explaining the basis of this conclusion. The Board also notes that Dr. Jensen recommended
further medical development, stating that appellant’s migraine symptoms and other complaints
deserved to be evaluated by a neurologist. The Office failed to address this recommendation or
refer appellant for further medical evaluation as recommended by the referee physician. Because
of these deficiencies, the Board finds that Dr. Jensen’s reports are not sufficient to resolve the
conflict of opinion in this case.
The Board will set aside the Office’s September 22, 2009 decision and remand the case
for proper development of the medical evidence to resolve the outstanding conflict in the medical
evidence. Due to the complexity of this case, which involves exposure to radio frequency
radiation and several claimed conditions, a multispecialty evaluation would be appropriate to
resolve the medical conflict. The Office should refer appellant, with a statement of accepted
facts and the case record, to an appropriate multidisciplinary panel to resolve the conflict of
opinion.11 After such further development as may be required, the Office shall issue an
appropriate final decision on appellant’s claim for a traumatic injury.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

Larry B. Guillory, 45 ECAB 522 (1994) (where the Office determined that due to the complexity of the issues
involved that a referral to a multidisciplinary panel of physicians was required to resolve the medical conflict);
Mohamed Yunis, 42 ECAB 325 (1991) (where the Office referred appellant to a panel of physicians consisting of an
orthopedic surgeon, a neurologist and a psychiatrist for evaluation); Marcia E. Jones, 40 ECAB 720 (1989) (where
the Office referred appellant to a panel of physicians to resolve a medical conflict).

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ORDER
IT IS HEREBY ORDERED THAT the September 22, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for proceedings consistent with this
decision.
Issued: May 17, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL ARKANSAS HEALTHCARE
SYSTEM, Little Rock, AR, Employer
__________________________________________

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

Docket No. 17-1201
Issued: August 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 10, 2017 appellant filed a timely appeal from an April 27, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since March 24, 2016, the date of the most recent OWCP merit decision, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record before the Branch of Hearings and Review as untimely filed under 5 U.S.C.
§ 8124(b).

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she did not receive notice of OWCP’s March 24, 2016
decision until April 2017. She contacted OWCP and learned that it had already issued a final
decision.
FACTUAL HISTORY
On January 27, 2016 appellant, then a 59-year-old file clerk, filed an occupational disease
claim (Form CA-2) for a mental illness. She alleged that she first became aware of her condition
and its relationship to her employment on January 24, 2016. Appellant asserted that she
experienced a really bad headache, shaking, an anxiety attack, crying for no reason, weight loss,
sadness, and nervousness. She ate only once a day. Appellant did not submit any additional
evidence.
In a February 1, 2016 letter, the employing establishment controverted appellant’s claim.
It contended that she did not submit any factual or medical evidence to establish an emotional
condition in the performance of duty.
By letter dated February 1, 2016, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit additional evidence and respond to its inquiries. It also
requested that the employing establishment respond to her allegations and submit evidence
regarding her work duties and accommodations it provided to reduce her stress. OWCP mailed
this letter to appellant’s address of record.
OWCP received a letter dated January 26, 2016 that was signed by Matthew R.
Frederick, a social worker, and cosigned by Dr. David Haas, a Board-certified psychiatrist. The
report recommended, among other things, that appellant not return to work until she had resolved
the acute stress she was currently experiencing based on her psychiatric evaluation and an intake
assessment. The report revealed that she was retiring from her current position on
January 30, 2016.
In a February 23, 2016 letter, J.Y., appellant’s supervisor, responded to OWCP’s queries.
She took issue with appellant’s allegations. J.Y. asserted that she did not become aware of
appellant’s claimed emotional condition until after appellant had retired. She contended that
there were no stressful aspects of appellant’s job. J.Y. related that no accommodations were
made because she did not request or mention the need for any accommodations to complete her
file clerk tasks and appellant was able to perform her required duties. She submitted a copy of
appellant’s file clerk position description.
In a March 24, 2016 decision, OWCP denied appellant’s occupational disease claim. It
found that she had not submitted sufficient factual evidence to establish that the incidents
occurred as alleged. OWCP noted that appellant did not respond to its February 1, 2016
development letter. The decision was mailed to appellant’s address of record.

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On March 31, 2017 appellant informed OWCP that she did not receive its March 24,
2016 decision. OWCP verified that her mailing address was correct and resent another copy of
its decision.2
In an appeal request form dated and postmarked April 17, 2017, appellant requested a
review of the written record by a representative of OWCP’s Branch of Hearings and Review.
She submitted several visit summary reports, correspondence and e-mails between herself and
the employing establishment, her own statements, and witness statements contemporaneous with
her request for review.
By decision dated April 27, 2017, OWCP’s Branch of Hearings and Review denied
appellant’s request for a review of the written record as a matter of right as it was untimely filed.
It noted that OWCP had issued its decision on March 24, 2016, while her request was
postmarked April 17, 2017. The Branch of Hearings and Review found that appellant’s request
was submitted more than 30 days after OWCP’s merit decision. After exercising its discretion, it
further found that the issue in the case could equally well be addressed through the
reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.3 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.4 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6 The Board has held that OWCP must
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).7

2

The record does not contain a copy of the March 24, 2016 decision OWCP resent to appellant.

3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

7

See R.T., Docket No. 08-408 (issued December 16, 2008).

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ANALYSIS
The Board lacks jurisdiction to review the merits of the underlying issue of whether
appellant sustained an emotional condition in the performance of duty. The Board’s jurisdiction
is strictly limited to determining whether OWCP properly denied her request for a review of the
written record.
By decision dated March 24, 2016, OWCP denied appellant’s occupational disease claim
for an emotional condition. In an appeal request form postmarked April 17, 2017, appellant
requested a review of the written record. A request for a review of the written record must, as
noted above, be made within 30 days after the date of the issuance of OWCP’s final decision.
The Board finds that OWCP properly determined, in its April 27, 2017 decision, that appellant’s
request for a review of the written record was untimely as it was filed more than 30 days after the
issuance of OWCP’s March 24, 2016 decision. Because the postmark date was more than 30
days after the date of OWCP’s March 24, 2016 decision, she was not entitled to a review of the
written record as a matter of right.8
The Board further finds that OWCP properly exercised its discretion in denying
appellant’s request for a review of the written record by determining that the issue in the case
could be addressed equally as well by requesting reconsideration and submitting new evidence
relevant to the issue at hand.9 The Board has held that the only limitation on OWCP’s
discretionary authority is reasonableness. An abuse of discretion is generally shown through
proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken which are
contrary to logic and probable deduction from established facts.10 In this case, the evidence of
record does not indicate that OWCP abused its discretion in denying appellant’s request for a
review of the written record under these circumstances. Accordingly, the Board finds that
OWCP properly denied appellant’s request for a review of the written record.
On appeal appellant contends that she did not receive notice of OWCP’s March 2016
decision until April 2017. She contacted OWCP and learned that it had already issued a final
decision. The record reveals that the March 24, 2016 OWCP decision was sent to appellant’s
address of record. Absent evidence to the contrary, a letter properly addressed and mailed in the
ordinary course of business is presumed to have been received. This is known as the mailbox
rule.11 Appellant did not submit sufficient evidence to rebut the presumption of receipt.12

8

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
9

D.P., Docket No. 14-0308 (issued April 21, 2014); D.J., Docket No. 12-1332 (issued June 21, 2013); Mary B.
Moss, 40 ECAB 640, 647 (1989).
10

See R. G., Docket No. 16-0994 (issued September 9, 2016); Teresa M. Valle, 57 ECAB 542 (2006); Daniel J.
Perea, 42 ECAB 214 (1990).
11

James A. Gray, 54 ECAB 277 (2002).

12

See Nelson R. Hubbard, 54 ECAB 156 (2002).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record before the Branch of Hearings and Review as untimely filed under 5 U.S.C.
§ 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2017
Washington, DC

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

Alec J. Koromilas, 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
__________________________________________
Y.B., Appellant
and
U.S. POSTAL SERVICE, CHURCH STREET
STATION, New York, NY, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0205
Issued: July 7, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

On November 4, 2019 appellant, through counsel, filed a timely appeal from a
September 10, 2019 decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 20-0205.2
On December 8, 2016 appellant, then a 46-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she sustained a left shoulder, left pelvic bone, left

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

The Board notes that, following the September 10, 2019 merit decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

hand, and right knee injury when she slipped and fell while in the performance of duty. She
stopped work on December 8, 2016 and has not returned.
Following initial development of the claim, by decision dated March 13, 2018 OWCP
denied the claim finding that the evidence of record was insufficient to establish causal relationship
between the accepted employment incident and the diagnosed medical conditions. OWCP
thereafter received additional medical evidence including: a March 23, 2018 note from Dr. Amin
Tehrany, a Board-certified orthopedic surgeon; reports dated December 8, 2016 and May 30,
June 1, and August 3, 2018 from Dr. Billy Ford, a Board-certified anesthesiologist; reports dated
May 31, 2018 and March 19 and July 11, 2019 from Dr. Demetrios Mikelis, an internal medicine
specialist; and chiropractic reports dated October 6, November 3, and December 1 and 29, 2017
and January 26, February 23, March 23, April 20, May 18, June 15, July 13, August 10,
September 7, November 2 and 30, and December 28, 2018, and March 28, June 12, and
August 21, 2019.
OWCP also received a February 4, 2019 report from a physician assistant, physical therapy
reports dating from December 8, 2016 to August 23, 2019, and a copy of a notice of grievance
from appellant to the employing establishment.
On September 5, 2019 appellant, through counsel, requested reconsideration. Counsel
argued that appellant’s claim originally was denied as she had not established fact of injury and
was subsequently denied as she had not established causal relationship. He argued that she had
submitted sufficient medical evidence to establish that she sustained a severe injury to several parts
of her body and that it was clear error to deny the claim or to fail to further develop the evidence
by sending appellant and her medical record for a second opinion examination.
By decision dated September 10, 2019, OWCP denied appellant’s request for
reconsideration finding that it was untimely filed and failed to demonstrate clear evidence of error.
It explained that although, counsel indicated that appellant had provided medical evidence to
support her claim, she failed to present a clear argument or evidence in support of an error
committed by OWCP. OWCP did not address the medical evidence.
In the instant case, OWCP provided no discussion of the new medical evidence submitted
in support of the reconsideration request by appellant. Its failure to provide factual findings and
explain the basis for its conclusion that she had not demonstrated clear evidence of error precludes
the Board’s review of the decision.
The Board therefore finds that the case is not in posture for decision because OWCP failed
to make findings regarding the evidence submitted in support of the reconsideration request.3
OWCP summarily denied appellant’s request for reconsideration without complying with the
review requirements of FECA and its implementing regulations.4 Section 8124(a) of FECA
provides that OWCP shall determine and make a finding of fact and make an award for or against
3

C.R., Docket No. 17-0964 (issued September 9, 2019).

4
Id.; see also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.3d (February 2016).

2

payment of compensation.5 Its regulations at 20 C.F.R. § 10.126 provide that the decision of the
Director of OWCP shall contain findings of fact and a statement of reasons.
For this reason, the case will be remanded to OWCP to enable it to properly consider all
the evidence submitted at the time of the September 10, 2019 decision to be followed by an
appropriate decision on whether appellant has demonstrated clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: July 7, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

5

5 U.S.C. § 8124(a).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
New York, NY, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0583
Issued: July 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 23, 2017 appellant, through counsel, filed a timely appeal from a September 7,
2016 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 her burden of proof to establish continuing
employment-related disability or residuals effective January 3, 2013 causally related to the
accepted February 28, 2011 employment injury.
FACTUAL HISTORY
This case was previously before the Board.3 On March 1, 2011 appellant, then a 45-yearold nurse, filed a traumatic injury claim (Form CA-1) alleging that she sustained an injury at work
on February 28, 2011 after her chair tilted forward and she fell to the floor. OWCP accepted the
claim for neck and lumbar sprains. Appellant received wage-loss compensation and medical
treatment.
By decision dated June 5, 2015, the Board affirmed an August 2, 2013 termination decision
of OWCP. The Board found that OWCP had met its burden of proof to terminate appellant’s
compensation benefits based on an October 17, 2012 report of Dr. Alan Crystal, a Board-certified
orthopedic surgeon and impartial medical examiner, who reviewed the medical evidence of record
and conducted a physical examination to resolve a conflict in the medical opinion evidence.4
Dr. Crystal found that appellant was not disabled due to her February 28, 2011 employment injury,
but from the additive effects of her degenerative conditions of arthritis of the hips, knees,
shoulders, and spine, which were not related to the employment injury. He explained that disc
pathologies in the form of bulging or herniation would not occur from a fall from a chair at a low
height level. Dr. Crystal found no objective findings consistent with symptomatic herniated discs
impinging on nerve roots or sprains of the cervical and lumbar spine. He concluded that “[a]nalysis
of the objective medical evidence clearly and overwhelmingly concludes that [appellant] did not
sustain a left hip fracture,” finding that she had arthritis and osteophytes of the left hip that could
be confused on x-ray with a fracture. Dr. Crystal explained that, if a fracture of the left hip had
occurred on February 28, 2011, the magnetic resonance imaging (MRI) reports and bone scans
would have shown residual evidence of a previous fracture. He further indicated that appellant
had preexisting degenerative disease of her shoulders, which was confirmed by x-ray. Dr. Crystal
explained that appellant, while picking herself off the floor, did not experience any additional
forces on the shoulders than what she would experience during activities of daily living, thus,
concluding that her bilateral shoulder condition was not causally related to the employment injury.
He determined that appellant had reached maximum medical improvement (MMI) and was
capable of working as a full-time, sedentary registered nurse with the following restrictions: no
lifting over 10 pounds; limited walking and stair climbing.
The facts of the case, as set forth in the prior Board decision, are incorporated herein by
reference.

3

Docket No. 14-0632 (issued June 5, 2015).

4
OWCP found that a conflict in medical opinion arose appellant between a second opinion physician, Dr. Marvin
Gilbert, a Board-certified orthopedic surgeon, and appellant’s attending physicians, Dr. Daniel Markowicz, a Boardcertified orthopedic surgeon, and Dr. Suhir Diwan, a Board-certified anesthesiologist, on the issue of whether
appellant had continuing disability or residuals due to the accepted employment-related conditions.

2

Following the issuance of the Board’s June 5, 2015 decision, on May 31, 2016, counsel
requested reconsideration and submitted a March 23, 2016 report from Dr. John P. Reilly, a Boardcertified orthopedic surgeon, who diagnosed right hip arthritis and disc bulging radiculopathy.
Dr. Reilly noted that appellant was seen for a right hip and low back evaluation with pain radiating
into the right hamstring area. He reported that the pain had been ongoing for about a week and
there was “[n]o specific injury.” In a March 31, 2016 progress report, Dr. Reilly found that an
x-ray of appellant’s hip was unremarkable and noted that a December MRI scan showed moderateto-marked discogenic disease. He opined that appellant’s symptoms were radicular and
recommended consultation with pain management and physical therapy. Appellant also submitted
an electromyography (EMG) dated April 12, 2016 which revealed evidence of chronic bilateral
L5-S1 lumbosacral radiculopathy and polyneuropathy.
Appellant submitted nerve conduction studies dated April 12, 2016 and a lumbar spine
MRI scan dated December 4, 2015 which demonstrated mild central disc protrusion at T12-L1,
mild disc bulging at L4-5, and bilateral facet hypertrophy at L4-5 and L5-S1.
In a June 6, 2016 report, Dr. Reilly noted that appellant was injured when she fell off her
chair at work on February 28, 2011 and over the course of several years she had struggled greatly
with multiple complaints, including her neck, back, left hip, and right knee. He reviewed
appellant’s medical history and opined that falling onto her buttocks, particularly since the impact
was asymmetric to the left side, was consistent with a valgus impacted hip fracture. Dr. Reilly
disagreed with Dr. Crystal’s opinion regarding appellant’s x-rays and opined that there was subtle
valgus alignment, whereas Dr. Crystal’s assessment and conclusion was drawn from the MRI scan
and bone scans. He opined that the x-rays noted a valgus impacted fracture and with the clinical
course for the injury at five-and-a-half months, there was no reason to conclude that there would
still be evidence of the fracture on the MRI scan, as well as the bone scan at 11 months from the
fracture. Dr. Reilly further noted that Dr. Crystal’s opinion with regard to appellant’s left hip was
in contradiction to four Board-certified orthopedic surgeons’ assessments and conclusions. He
concluded that appellant’s medical history and radiographic studies supported his opinion that she
sustained a left hip fracture and required a right knee replacement as a result of her employment
injury. Dr. Reilly determined that appellant had not yet reached MMI and opined that she was
totally disabled for work.
In progress reports dated May 2, July 23, and September 19, 2013, May 3, August 4, and
November 11, 2014, and May 12, 2016, Dr. Reilly continued to diagnose right hip arthritis with
lumbar arthritis and disc bulging radiculopathy and found that x-rays showed some arthritic
change. On March 25, 2014 he diagnosed right foot pes planus, left hip arthritis, and history of
right knee replacement with pain.
On December 5, 2012 a physician assistant diagnosed coccydynia and right knee pain.
Appellant submitted reports dated September 21, 2012 and February 5, 2013 from
Dr. Markowicz, who noted that she had a unique history of having staged bilateral total knee
replacements. Dr. Markowicz indicated that appellant fell at work on February 28, 2011 and was
eventually “diagnosed with a femoral neck fracture, but it was well after the injury.” He found
that there was a significant delay in diagnosis, but thankfully appellant’s fracture was nondisplaced
and did heal. Dr. Markowicz opined that there was a definite causal relationship between
appellant’s injury and the fall at work resulting in her femoral neck fracture. He reported that the
3

only trauma that appellant suffered was the fall at work on February 28, 2011 until she was
diagnosed with femoral neck fracture. Appellant also resubmitted reports from Dr. Markowicz
dated July 3 and October 2, 2012.
A right ankle MRI scan dated July 20, 2014 showed no evidence for a tendon or ligament
tear and the left hip MRI scan showed no evidence for osteonecrosis and no significant
degenerative change in the hip.
By decision dated September 7, 2016, OWCP denied modification of its prior decision
finding that Dr. Crystal continued to carry the special weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP properly terminates a claimant’s compensation benefits, he or she has the
burden of proof to establish continuing disability after that date related to the accepted injury.5 To
establish a causal relationship between the condition as well as any attendant disability claimed
and the employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.6 A claimant must
establish by the weight of the reliable, probative, and substantial evidence that he or she had an
employment-related disability which continued after termination of compensation benefits.7
ANALYSIS
On prior appeal, the Board found that OWCP met its burden of proof to terminate
appellant’s compensation benefits based on the October 17, 2012 report of impartial medical
examiner Dr. Crystal who reviewed appellant’s medical history, examined her, and found no
objective evidence of ongoing residuals or disability due to her cervical and lumbar sprains.
Dr. Crystal concluded that appellant was not disabled due to her February 28, 2011 employment
injury, but from the additive effects of her degenerative conditions of arthritis of the hips, knees,
shoulders and spine, which were not related to the employment injury.
As the Board had previously affirmed the termination of appellant’s wage-loss
compensation and medical benefits on June 5, 2015, absent further merit review of this issue by
OWCP pursuant to section 8128 of FECA, this issue is res judicata.8 The only issue before the
Board is whether appellant has established continuing employment-related disability or residuals
on and after January 3, 2013, causally related to the February 28, 2011 employment injury. The
Board finds that appellant has failed to meet her burden of proof to establish continuing
employment-related disability or residuals.
In support of her claim, appellant submitted further reports from Dr. Reilly who diagnosed
bilateral hip arthritis, lumbar arthritis, disc bulging radiculopathy, right foot pes planus, and history
5

O.W., Docket No. 17-1881 (issued May 1, 2018); Manual Gill, 52 ECAB 282 (2001).

6

Id.

7

S.F., Docket No. 17-1427 (issued May 16, 2018); Darlene R. Kennedy, 57 ECAB 414 (2006).

8

See D.M., Docket No. 18-0067 (issued May 9, 2018) n.14; P.B., Docket No. 17-1687 (issued May 8, 2018).

4

of right knee replacement with pain. Initially, Dr. Reilly noted that appellant was seen for a right
hip and low back evaluation and indicated that the pain had been going on for about a week and
there was “[n]o specific injury.” In a March 31, 2016 progress report, he found that an x-ray of
her hip was unremarkable. However, in a June 6, 2016 report, Dr. Reilly opined that appellant
falling onto her buttocks at work on February 28, 2011, particularly since the impact was
asymmetric to the left side, was consistent with a valgus impacted hip fracture. He disagreed with
Dr. Crystal’s opinion regarding appellant’s x-rays. Dr. Reilly opined that there was subtle valgus
alignment upon x-ray and asserted that there was no reason to conclude that there would still be
evidence of the fracture on the MRI scan, with the clinical course for the injury at 5½ months and
the bone scan at 11 months from the fracture. He further noted that Dr. Crystal’s opinion with
regard to appellant’s left hip was in contradiction to four Board-certified orthopedic surgeons’
assessments and conclusions. Dr. Reilly concluded that appellant’s medical history and
radiographic studies supported his opinion that she sustained a left hip fracture and required a right
knee replacement as a result of her employment injury. The Board finds that Dr. Reilly failed to
provide a well-rationalized explanation as to how and whether these conditions, which have not
been accepted by OWCP, are causally related to the February 28, 2011 employment injury.9 Thus,
his reports are of diminished probative value and are insufficient to overcome the special weight
properly accorded to Dr. Crystal’s report as the impartial medical examiner or to create a new
conflict.10
In his reports, Dr. Markowicz indicated that appellant had a unique history of having staged
bilateral total knee replacements. He indicated that appellant fell at work on February 28, 2011
and was eventually “diagnosed with a femoral neck fracture, but it was well after the injury.”
Dr. Markowicz found that there was a significant delay in diagnosis, but thankfully appellant’s
fracture was nondisplaced and did heal. He opined that there was definitely a causal relationship
between appellant’s injury and the fall at work resulting in her femoral neck fracture.
Dr. Markowicz reported that the only trauma that appellant suffered was the fall at work on
February 28, 2011 until she was diagnosed with femoral neck fracture. As he was on one side of
the conflict, his reports, without more by way of medical rationale, are insufficient to create a new
conflict in medical opinion to overcome the special weight properly accorded to Dr. Crystal.11
Appellant further submitted evidence from a physician assistant. This document does not
constitute competent medical evidence because a physician assistant is not considered a
“physician” as defined under FECA.12 Similarly, the EMG, nerve conduction studies, and MRI
scans do not constitute competent medical evidence as they do not contain rationale by a physician

9
See T.M., Docket No. 08-0975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
10

See J.M., Docket No. 11-1257 (issued January 18, 2012); Dorothy Sidwell, 41 ECAB 857 (1990).

11

Id.

12
5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (physician assistants). See also Gloria J. McPherson,
51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal relationship can
only be resolved through the submission of probative medical evidence from a physician).

5

relating appellant’s conditions to her employment.13 The Board, therefore, finds that this evidence
is insufficient to establish appellant’s claim.
The Board finds that Dr. Crystal’s report continues to represent the special weight of the
medical evidence as it was based on an accurate history, results of physical and diagnostic testing,
and accompanied by a rationalized medical opinion. The report establishes that appellant’s
accepted conditions have resolved. As such, appellant has failed to meet her burden of proof to
establish continuing disability or residuals causally related to the February 28, 2011 employment
injury.
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 failed to meet her burden of proof to establish continuing
employment-related disability or residuals effective January 3, 2013 causally related to the
accepted February 28, 2011 employment injury.

13

See Paul Foster, 56 ECAB 208, 212 n.12 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the September 7, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Atlanta, GA,
Employer
__________________________________________

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

Docket No. 08-1796
Issued: February 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 16, 2008 appellant filed a timely appeal of the April 22, 2008 merit decision of
the Office of Workers’ Compensation Programs, which denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty.
FACTUAL HISTORY
On September 14, 2007 appellant, then a 37-year-old mail handler, filed an occupational
disease claim for hair loss, chest pains and migraine headaches, which reportedly arose on or
about January 24, 2007. She alleged that she had been sexually harassed by a supervisor on

December 2, 2006. At the time of the alleged incident, appellant had just recently begun a detail
at the Hollowtree Warehouse working excess mail during the Christmas holiday.1
On December 2, 2006 acting supervisor Timothy V. Arrington allegedly requested a
sexual favor from appellant in exchange for having provided her a beverage. Appellant stated
that she was on her lunch break when Mr. Arrington indicated that he was headed to McDonald’s
to get something to eat. She asked Mr. Arrington to bring her back some sweet tea.
Mr. Arrington reportedly told her he would think about it. When he returned from McDonald’s,
he placed the tea on the table in front of her. Appellant reportedly thanked him and asked how
much she owed him. She said Mr. Arrington then “patted his private area.” Appellant
responded, “[E]xcuse me.” She indicated that there were two other people in the break room.
When the others left, appellant asked Mr. Arrington again how much she owed him for the tea.
This time he allegedly responded, “Some pussy.”
Appellant indicated that she reported the incident that same day to Jack Perry, Jr., acting
supervisor, who reportedly “started laughing.” Mr. Perry acknowledged that appellant reported
the alleged sexual harassment incident to him on December 2, 2006. However, he provided a
slightly different account. According to Mr. Perry, appellant told him that Mr. Arrington asked
her whether she wanted him to bring her something from McDonald’s. Another variation was
that the “some pussy” response preceded the crotch patting gesture. Mr. Perry also indicated that
when appellant spoke to him about the incident she did so in a joking manner. He further
indicated that appellant did not seem upset about the statement at all. Mr. Perry said he told
appellant to see Larry A. Foster, who at the time was acting manager of distribution operations.2
He also indicated that after he spoke with appellant on December 2, 2006 she returned to work.
Appellant did not speak with Mr. Foster about the alleged sexual harassment at that time. She
indicated that she spoke with Mr. Foster about the sexual harassment during a December 12,
2006 discussion about her job performance. Mr. Perry stated that he was unaware that
approximately two weeks elapsed before appellant spoke with Mr. Foster about the alleged
incident.
Appellant also claims to have told a female employee about the incident with
Mr. Arrington. After listening to appellant’s account of the events, the unidentified employee
reportedly responded, “That’s Bull.” Appellant noted that “Bull” was Mr. Arrington’s nickname.
On December 18, 2006 appellant learned that she would be returning to her regular duties
at the Atlanta Processing & Distribution Center (PDC). Acting supervisor Michael Hayes
reportedly told appellant she was being replaced because she had not been to work the past few
days. He advised appellant to immediately report to Atlanta PDC. Later that same day appellant
spoke with Mr. Foster about why she was being sent back to Atlanta PDC. She said Mr. Foster
explained that cutbacks were being made and her assistance was no longer required.

1

There are conflicting accounts regarding the expected duration of the detail. The employing establishment
represented that the detail was scheduled to run from December 1 to 20, 2006. Appellant indicated that the detail
began on December 2, 2006 and it was scheduled to run through December 29, 2006.
2

Appellant denied that Mr. Perry told her to report the alleged incident to Mr. Foster.

2

On December 31, 2006 appellant initiated the equal employment opportunity (EEO)
complaint process. She filed a formal EEO complaint on March 2, 2007. The basis of
appellant’s complaint was the alleged December 2, 2006 sexual harassment. She claimed that
when she did not respond to Mr. Arrington’s request for a sexual favor he started complaining
about her work habits to Mr. Foster. Appellant also claimed that when she told Mr. Foster what
happened, he did nothing to Mr. Arrington.
In an October 5, 2007 e-mail, Mr. Arrington provided his version of the sweet tea
incident.3 He explained that Mr. Foster had called him into his office on December 18, 2006 to
answer allegations by appellant that he had requested sexual favors in return for a sweet tea he
had purchased on her behalf approximately 2½ weeks earlier. Mr. Arrington indicated that he
told Mr. Foster the allegations were false and conjured up by appellant because she was upset he
had verbally reprimanded her for bad work habits and had requested that she be relieved of her
duties at the Hollowtree Warehouse and returned to Atlanta PDC.
As to the specific events of December 2, 2006, Mr. Arrington stated that he was going to
McDonald’s to buy lunch and appellant asked if he would pick up a sweet tea for her. When he
returned from McDonald’s, he gave appellant the sweet tea that came with his combo meal.
Mr. Arrington said appellant asked him what she owed for the sweet tea and he replied
“nothing.” When appellant asked if he was sure, Mr. Arrington replied “yes.” According to
Mr. Arrington, that was the incident in its entirety. He said that he did not hear anything else
about that day until Mr. Foster called him into the office. Mr. Arrington also claimed that there
were witnesses available who would state that appellant showed no signs of intimidation or stress
on the job for the entire 2½ weeks they worked together prior to her being informed she would
be returning to Atlanta PDC on December 18, 2006. He indicated that this was the last date he
had any form of contact with appellant.
The medical evidence that accompanied the claim included January 24, 2007 treatment
records for nonspecific chest pain. Appellant had a cardiology work-up the following day and
test results revealed an incomplete right bundle branch block and probable anteroseptal
myocardial infarction. On February 22, March 18 and 19, May 22 and August 21, 2007, she was
treated for headaches, including migraines.4 Appellant also received treatment for alopecia
areata on April 6, May 4 and June 26, 2007. On August 6, 2007 she was diagnosed with acute
stress reaction and insomnia. Appellant was seen again on August 16, 2007 for recurring chest
pain and a repeat electrocardiogram was administered. This latest test also revealed
abnormalities. On August 29, 2007 appellant again experienced chest pains and she went to the
emergency room where she received a diagnosis of right bundle branch block.
In addition to her various physical ailments, appellant also received psychiatric care; first
in April 2007 and then again in September and October 2007. On April 25, 2007 she was seen
by Raymond L. Hoobler, Ph.D., who diagnosed adjustment disorder with mixed emotional
features and occupational circumstances. At that time, appellant reported being frustrated with
3

The e-mail was directed to Mr. Foster and Patsy P. Banks, the employing establishment’s Health & Resource
Management Specialist.
4

She had a prior history of migraine headaches due to a 1995 head injury.

3

her work situation because her employer had not taken seriously her reported harassment.
Dr. Hoobler also noted that appellant had been temporarily moved to the day shift, but now she
was back on the night shift along with her alleged harasser. He further noted that appellant
requested a transfer, but the request had been denied. Dr. Hoobler also reported that appellant
had a pending EEO complaint. According to him, appellant wanted him to provide her with a
medical statement indicating that she needed a shift change. When Dr. Hoobler declined,
appellant immediately rose and walked out of the office expressing her displeasure. He stated
that there was no clear evidence that appellant was unable to perform her work duties.
Dr. Hoobler further noted that appellant did not express a desire for any intervention other than
the shift change recommendation.
On September 5, 2007 appellant was seen by Dr. Harold Gould, who also diagnosed
adjustment disorder with mixed emotional features. Dr. Gould noted a history of sexual
harassment on the job at the post office. Appellant reported that since this had been going on she
experienced hair loss and chest pain. She also told that she was still working with the male
coworker who was harassing her even though she requested to be moved to another department.
The harassment had reportedly been going on since January 2007, “‘after [the] coworker found
out [appellant] filed a complaint against him.’” Dr. Gould’s treatment notes also indicated that
appellant denied any prior history of abuse.
After her initial consultation with Dr. Gould, appellant began weekly group
psychotherapy sessions. The notes from the various sessions include some scattered references
to sexual abuse and sexual harassment. The September 12, 2007 therapy session notes reflect
that appellant had been “sexually harassed at work.” There is also mention of her having filed an
EEO complaint. Appellant reported feeling unsafe at work and she feared that her harasser could
harm her. She was reportedly experiencing nightmares, panic attacks and depression due to the
hostile work environment. The treatment notes also mentioned that appellant was filing a
workers’ compensation claim.
Appellant’s September 13, 2007 group therapy notes indicate that she felt unable to
return to work because she was being stared at by a male coworker, which was creating a hostile
work environment. The September 19, 2007 notes indicate that appellant “talked about her sex
abuse on the job in depth.” On October 4, 2008 she indicated that she was “raped at age 14 [and]
that is why the sexual abuser at work is so frightening.”5 The October 8, 2007 session notes
reflect that appellant continues to work in the same building as the man “who is sexually
harassing her.”
The Office initially denied appellant’s claim on November 29, 2007. Pursuant to
appellant’s request, the Branch of Hearings & Review considered the written record and affirmed
the prior denial by decision dated April 22, 2008. The Office hearing representative found that
appellant had not corroborated her allegation that she was sexually harassed.

5

According to Dr. Gould’s September 5, 2007 report, appellant denied any prior history of abuse.

4

LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless, does not come within the purview 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 is
deemed compensable.7 Disability is not compensable, however, when it results from factors
such as an employee’s fear of a reduction-in-force or frustration from not being permitted to
work in a particular environment or hold a particular position.8 Perceptions and feelings alone
are not compensable. To establish entitlement to benefits, a claimant must establish a basis in
fact for the claim by supporting her allegations with probative and reliable evidence.9 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.10
ANALYSIS
Appellant claims that, on December 2, 2006, acting supervisor Mr. Arrington first “patted
his private area” then told her she owed him “some pussy” in exchange for having brought her
sweet tea from McDonald’s. Verbal altercations and difficult relationships with supervisors,
when sufficiently detailed and supported by the record, may constitute compensable factors of
employment.11 For appellant to prevail on her claim, she must support her allegations with
probative and reliable evidence.12 Both appellant and Mr. Arrington agree that he brought
appellant some sweet tea from McDonald’s on December 2, 2006. However, that is the extent of
6

See Kathleen D. Walker, 42 ECAB 603 (1991).

7

Pamela D. Casey, 57 ECAB 260, 263 (2005).

8

Lillian Cutler, 28 ECAB 125, 129 (1976).

9

Kathleen D. Walker, supra note 6.

10

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

11

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

12

See Kathleen D. Walker, supra note 6. For harassment to give rise to a compensable disability there must be
evidence that harassment occurred. Donna J. DiBernardo, 47 ECAB 700, 703 (1996). A claimant’s mere
perception of harassment is not compensable. Id. The allegations of harassment must be substantiated by reliable
and probative evidence. Joel Parker Sr., 43 ECAB 220, 225 (1991).

5

their agreement. In his October 5, 2007 statement, Mr. Arrington indicated that after giving
appellant the sweet tea she asked him what she owed and he replied “nothing.” When she asked
if he was sure, Mr. Arrington indicated that he replied “yes.” He indicated that was the incident
in its entirety.
As Mr. Arrington denied the accusation of sexual harassment, it was incumbent upon
appellant to further substantiate her allegation. Appellant, however, has offered no evidence to
corroborate her version of the December 2, 2006 sweet tea incident. The mere fact that she
reported the incident to Mr. Perry later that same day does not substantiate her allegation that she
was sexually harassed. Moreover, appellant’s filing of an EEO complaint regarding the same
alleged harassment is not evidence that the harassment occurred. While EEO complaint findings
may constitute substantial evidence relative to a workers’ compensation claim, the current status
of appellant’s EEO complaint is unclear.13 The Board finds that appellant failed to establish that
Mr. Arrington sexually harassed her on December 2, 2006 as alleged. Because she failed to
establish a compensable employment factor, the Office properly denied appellant’s occupational
disease claim.
CONCLUSION
Appellant did not establish that a compensable employment factor caused or contributed
to her claimed physical and psychiatric conditions. Therefore, the Office properly denied her
occupational disease claim.

13

Beverly R. Jones, 55 ECAB 411, 417 n.14 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the April 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, MID-ISLAND
POSTAL & DISTRIBUTION CENTER,
Melville, NY, Employer
__________________________________________

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Appearances:
Robert Lussos, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1163
Issued: September 8, 2017

Case Submitted on the Record

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

JURISDICTION
On May 16, 2016 appellant, through counsel, filed a timely appeal from a February 3,
2016 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.3
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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with her request for appeal. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering the new evidence for the first time on appeal pursuant to 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the December 28, 2014 employment incident.
FACTUAL HISTORY
On December 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that on December 28, 2014 she strained her left shoulder
while attempting to clear a paper jam in the loader of the flats sequencing systems (FSS)
machine. She stopped work on December 29, 2014.
With her claim, appellant submitted a December 31, 2014 duty status report (Form CA17), with no diagnosis listed; a January 14, 2015 request for authorization for treatment of a
cervical sprain; and a December 29, 2014 physical therapist’s letter of medical necessity.
In a December 29, 2014 report, Dr. Gus Katsigiorgis, an osteopath and orthopedic
surgeon, noted a history of appellant reaching for mail stuck in a machine on December 28, 2014
and injuring her left shoulder while unjamming the mail. Examination findings included
restricted left shoulder range of motion, positive Hawkins sign, and x-rays negative for a
fracture. Dr. Katsigiorgis diagnosed left shoulder impingement, tendinitis rule out tear, and
cervical sprain.
In a January 12, 2015 work capacity evaluation (Form OWCP-5c),
Dr. Katsigiorgis indicated that appellant could not work and that cervical and shoulder diagnostic
studies were needed.
In a January 22, 2015 letter, OWCP advised appellant of the deficiencies in her claim and
afforded her the opportunity to submit additional factual and medical evidence. This included a
detailed narrative medical report from her treating physician which contained a history of the
injury and a medical explanation, with objective evidence, of how the reported work incident
caused or aggravated the claimed condition. OWCP afforded appellant 30 days to submit such
evidence.
In response, OWCP received multiple physical therapy reports from Island
Musculoskeletal Care.
By decision dated February 26, 2015, OWCP denied appellant’s claim. It found that the
medical evidence of record did not establish that the claimed medical condition was causally
related to the accepted December 28, 2014 work incident.
On March 17, 2015 OWCP received appellant’s March 11, 2015 appeal request form
requesting a review of the written record by a representative of OWCP’s Branch of Hearings and
Review.
Appellant submitted duplicative evidence as well as additional medical records. The new
records included a January 22, 2015 left shoulder magnetic resonance imaging (MRI) scan,
which contained an impression of left labral tear, physical therapy reports, and authorization
requests.

2

Several medical reports from Dr. Katsigiorgis were received. In a February 11, 2015
report, he provided physical examination findings of the left shoulder and cervical spine. Based
upon his physical findings, Dr. Katsigiorgis requested authorization for left shoulder labral
repair, arthroscopy. In a March 9, 2015 report, he noted additional physical examination
findings of the cervical spine and left shoulder and reported that the MRI scan showed a tear of
the anterior labrum and equator. Dr. Katsigiorgis reported that the diagnosed condition was
employment related based on the December 28, 2014 work incident as well as no prior history of
a left shoulder condition. In his March 9, 2015 duty status report, he diagnosed left shoulder
internal derangement and opined that she was totally disabled. In reports dated April 1 and
May 6, 2015, Dr. Katsigiorgis provided physical examination findings of the cervical spine,
bilateral upper extremities and left shoulder. He continued to request authorization for left
shoulder arthroscopy and a cervical spine MRI scan.
In a March 11, 2015 report, Dr. Richard L. Parker, a Board-certified orthopedic surgeon,
noted that appellant was a mail handler who reported a history of reaching for jammed mail and
that she had injured her left shoulder while at work. He noted that she was not working.
Examination findings of spasm, tenderness, restricted range of motion, diminished sensation, and
positive Hawkins sign were noted. Dr. Parker diagnosed cervicalgia, herniated nucleus pulposus,
cervical radiculopathy, and left shoulder superior labrum, anterior to posterior (SLAP) tear. He
opined that appellant’s diagnoses were work related and that a cervical spine MRI was needed to
rule out herniated nucleus pulposus. Dr. Parker also recommended additional diagnostic studies
of the upper extremities.
By decision dated July 23, 2015, an OWCP hearing representative affirmed the
February 26, 2015 decision. He found that there was no rationalized medical opinion evidence
which explained how the December 28, 2014 work incident caused or contributed to a left
shoulder or neck condition.
On November 3, 2015 appellant requested reconsideration by appeal request form dated
October 28, 2015. She submitted additional evidence in support of her claim, including an
undated witness statement from J.T., a coworker, who indicated that he saw appellant trying to
remove a jammed piece of mail from an “ACT [automation compatible tray] loader.” He
indicated that she had to stand on a platform and reach across a conveyor assembly, but she was
unable to remove the jam and had asked him to help her.
In a September 16, 2015 report, Dr. Katsigiorgis provided examination findings of
appellant’s left shoulder and cervical spine. He also continued to request authorization for left
shoulder arthroscopy.
In an October 14, 2015 report, Dr. Parker related that while at work on December 28,
2014, appellant stretched with her left arm/shoulder while clearing a jam and the extended reach
had injured her left shoulder, causing a labral tear. He opined that, based upon his examination
and the stated mechanism of injury, that appellant’s diagnosed conditions were work related.
Dr. Parker noted that based on the description of appellant’s injury that occurred on
December 28, 2014, while reaching and clearing the jam, she sustained a left shoulder injury of a
labral tear. He concluded that the diagnosed injury occurred while appellant performed her work
task.

3

By decision dated February 3, 2016, OWCP reviewed the merits of the claim, but denied
modification of its prior decision. It found that appellant’s treating physicians failed to provide a
well-reasoned medical explanation with supporting objective findings as to how the
December 28, 2014 employment incident caused or aggravated the diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that she actually
experienced the employment incident that is alleged to have occurred.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9 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.10

4

Supra note 1.

5

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

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

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

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Solomon Polen, 51 ECAB 341 (2000).

10

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

4

ANALYSIS
Appellant filed a traumatic injury claim alleging that her left shoulder condition resulted
from reaching to clear a jam in a machine at work on December 28, 2014. OWCP accepted that
the December 28, 2014 employment incident occurred as alleged, but denied the claim as it
found that appellant had not met her burden of proof to establish that her diagnosed medical
conditions were causally related to the accepted incident. The issue on appeal is whether the
medical evidence of record establishes an injury causally related to the December 28, 2014
employment incident.
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the December 28, 2014 employment incident.
In support of her claim, appellant submitted medical reports from Dr. Katsigiorgis. In his
December 29, 2014 report, Dr. Katsigiorgis noted the history of injury, provided physical
examination findings, and diagnosed left shoulder impingement, tendinitis rule out tear, and
cervical sprain. He did not offer a medical opinion as to how the reported work incident caused
or aggravated a diagnosed medical condition. The Board has held that medical evidence which
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value in establishing a claim.11
In his March 9, 2015 report, Dr. Katsigiorgis indicated that the MRI scan showed a tear
of the anterior labrum and equator. He opined that the diagnosed condition was employment
related based on the December 28, 2014 employment incident as well a no prior history of a left
shoulder condition. However, Dr. Katsigiorgis provided no medical rationale as to how the
December 28, 2014 employment incident caused the tear of the anterior labrum and equator.
Without explaining physiologically how the act of reaching to clear a jam in a machine caused or
contributed to the diagnosed condition, Dr. Katsigiorgis’s report is of limited probative value.12
The other reports from Dr. Katsigiorgis dated February 11, April 1, and May 6, 2015, as
well as the December 31, 2014 duty status report and January 12, 2015 work capacity evaluation,
all fail to diagnose a medical condition. Therefore, these reports are also insufficient to establish
an injury in connection with the accepted incident. While the March 9, 2015 duty status report
contained a diagnosis of left shoulder internal derangement, Dr. Katsigiorgis did not provide an
opinion on causal relationship and the report is therefore insufficient to establish appellant’s
claim.
In his March 11, 2015 report, Dr. Parker noted the history of injury and diagnosed
cervicalgia, herniated nucleus pulposus, cervical radiculopathy, and left shoulder SLAP labral
tear. While he opined that appellant’s diagnoses were work related and that she needed
additional diagnostic studies, he did not provide a well-reasoned medical explanation with
supporting objective findings as to how the December 28, 2014 employment incident caused or
11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
12

See Lee R. Haywood, 48 ECAB 145 (1996).

5

aggravated the diagnosed conditions. This report, therefore, is insufficient to establish that
appellant’s diagnosed conditions are causally related to the December 28, 2014 employment
incident.13 Additionally, it is noted that cervicalgia is a pain diagnosis and not a valid medical
condition.14
In his October 14, 2015 report, Dr. Parker reported that the act of extended reaching to
clear the jam caused appellant’s left shoulder injury of a labral tear. However, his statement on
causation fails to provide a sufficient explanation as to the mechanism of injury pertaining to this
traumatic injury claim, namely, how the extension of appellant’s left arm would cause the labral
tear or aggravate her other previously diagnosed conditions.15 Dr. Parker’s report is insufficient
to establish appellant’s claim as he failed to provide examination findings, a detailed medical
history, description of the employment incident, review of diagnostic studies, and an explanation
of how appellant’s conditions were caused or aggravated by the December 28, 2014 employment
incident.16 Any medical opinion evidence appellant may submit to support her claim should
reflect a correct history and offer a medically sound explanation by the physician of how the
specific employment incident, physiologically caused or aggravated her diagnosed conditions.17
Dr. Parker’s report does not meet that standard and is, therefore, insufficient to meet appellant’s
burden of proof.
The additional medical evidence of record is of limited probative value. The MRI scan
report, while diagnosing a left shoulder condition, fails to offer a medical opinion as to how the
reported work incident caused or aggravated a medical condition as it is a diagnostic test.18 The
physical therapy reports are insufficient to establish appellant’s claim as physical therapists are
not considered physicians under FECA and are not competent to render a medical opinion.19
The nonmedical evidence, such as the witness statement, is of no probative value on the
issue of medical causation. Causal relationship is a medical question that must be established by
probative medical opinion from a physician.20
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.21 An award of compensation may not
13

T.W., Docket No. 15-1603 (issued October 20, 2015).

14

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
15

S.W., Docket 08-2538 (issued May 21, 2009).

16

See L.M., Docket No. 14-973 (issued August 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013);
A.J., Docket No. 12-548 (issued November 16, 2012).
17

T.G., Docket No. 14-751 (issued October 20, 2014).

18

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

19

G.G, 58 ECAB 389 (2007). See 5 U.S.C. § 8101(2).

20

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

21

Supra note 10.

6

be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.22 To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report in which the physician reviews those factors of employment alleged to have
caused his condition and, taking these factors into consideration, as well as findings upon
examination and his medical history, explain how these employment factors caused or
aggravated any diagnosed condition, and present medical rationale in support of his opinion.23
The evidence of record is without rationalized medical evidence establishing a diagnosed
medical condition causally related to the accepted December 28, 2014 employment incident.
OWCP advised appellant of the type of medical evidence required to establish her claim.
Appellant failed, however, to submit such evidence. Thus, appellant has failed to meet her
burden of proof to establish injury causally related to the December 28, 2014 employment
incident.
On appeal counsel contends that appellant’s shoulder condition arose from the
December 28, 2014 employment incident. As found above appellant has not met her burden of
proof to establish causal relationship between the December 28, 2014 employment incident and
her diagnosed conditions. None of the medical evidence appellant submitted constituted
rationalized medical evidence which alleged to have caused or exacerbated her medical
conditions.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s 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 an injury
causally related to the December 28, 2014 employment incident.

22

D.D., 57 ECAB 734 (2006).

23

See supra note 9.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 3, 2016 is affirmed.
Issued: September 8, 2017
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, SOUTH TYLER
ANNEX, Tyler, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-933
Issued: August 23, 2013

Case Submitted on the Record

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

On March 11, 2013 appellant filed a timely appeal from January 31 and February 7, 2013
merit decisions of the Office of Workers’ Compensation Programs (OWCP) finding that she
received an overpayment of compensation and denying waiver of recovery of the overpayment.
The Board docketed the appeal as No. 13-933.
By letter dated December 31, 2012, OWCP issued a preliminary determination finding
that appellant received a $1,744.89 overpayment of compensation from December 3, 2011 to
December 15, 2012 because it failed to deduct postretirement insurance premiums. It further
advised her that she was without fault in creating the overpayment and of her rights if she
disagreed with the preliminary finding. In a decision dated January 31, 2013, OWCP determined
that appellant received an overpayment of $1,744.89 due to its failure to deduct premiums for
postretirement life insurance and denied waiver of recovery of the overpayment. It found that
she had not responded to its preliminary determination of overpayment. On February 7, 2013
OWCP issued what it identified as a corrected copy of the January 31, 2013 decision containing
the same findings but without the accompanying memorandum.
The Board finds that the case is not in posture for decision. On appeal appellant contends
that she did not receive the December 31, 2012 preliminary overpayment determination. Under
the mailbox rule it is presumed, in the absence of evidence to the contrary, that a notice mailed to

an individual in the ordinary course of business was received by that individual. This
presumption arises when it appears from the record that the notice was properly addressed and
duly mailed.1 As a rebuttable presumption, receipt will not be presumed when there is evidence
of nondelivery.2
The record in this case contains direct evidence of nondelivery of the December 31, 2012
preliminary overpayment determination. Although properly addressed to appellant, the U.S. Post
Office returned the notice to OWCP as undeliverable. It noted on the envelope: return to sender,
no such number, unable to forward. OWCP received the nondelivered preliminary overpayment
determination on January 15, 2013.
Consequently, appellant has successfully rebutted
presumption of receipt of the December 31, 2012 preliminary determination of overpayment
under the mailbox rule.3
OWCP is required to follow certain procedures in overpayment cases. Its regulations
provide that, before seeking to recover an overpayment or adjust benefits, it will advise the
individual in writing that the overpayment exists and the amount of the overpayment.4 The
written notification must also include a preliminary finding regarding whether the individual was
at fault in the creation of the overpayment.5 OWCP must inform the individual of his or her right
to challenge the fact or amount of the overpayment, the right to contest the preliminary finding
of fault in the creation of the overpayment, if applicable, and the right to request a waiver of
recovery of the overpayment.6 Its procedure manual further provides that a preliminary finding
of overpayment must be provided within 30 days and must clearly identify the reason that the
overpayment occurred and the basis for any fault finding.7
As appellant did not receive a copy of the preliminary overpayment determination, the
case will be remanded for OWCP to issue a preliminary overpayment determination in
accordance with its procedures.

1

See Michelle Lagana, 52 ECAB 187 (2000).

2

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued September 14, 2009).

3

See M.O., Docket No. 09-526 (issued September 14, 2009).

4

20 C.F.R. § 10.431(a).

5

Id. at § 10.431(b).

6

Id. at § 10.431(d).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(a) (June 2009).

2

IT IS HEREBY ORDERED THAT the January 31 and February 7, 2013 decisions of
the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this order by the Board.
Issued: August 23, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3