United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Derry, NH, Employer
__________________________________________

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

Docket No. 20-0194
Issued: August 26, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 5, 2019 appellant filed a timely appeal from an October 22, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP has met its burden of proof to rescind its acceptance of the
claim for resolved primary bilateral hip osteoarthritis.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference.2 The relevant facts are as
follows.
On August 31, 2015 appellant, then a 62-year-old rural letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral hip injuries due to factors of his
federal employment. He noted that he first became aware of his injuries on October 3, 2011 and
their relationship to factors of his federal employment on April 14, 2015. Appellant did not stop
work.
By decision dated December 1, 2015, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish that his bilateral
hip condition was caused or aggravated by the accepted factors of his federal employment.
Appellant subsequently requested reconsideration. By decisions dated May 11 and
September 16, 2016, OWCP denied appellant’s requests for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a).
Appellant then appealed the May 11 and September 16, 2016 nonmerit decisions to the
Board. By decision dated March 17, 2017, the Board affirmed the May 11, 2016 decision, but set
aside the September 16, 2016 decision, finding that appellant had submitted relevant and pertinent
new evidence not previously considered by OWCP. The case was, therefore, remanded to OWCP
for a merit review.3
On remand, by decision dated April 27, 2017, OWCP denied modification of its
December 1, 2015 merit decision denying appellant’s occupational disease claim.
Appellant subsequently requested reconsideration.
By decision dated August 29, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant again appealed to the Board. By decision dated July 19, 2018,4 the Board set
aside OWCP’s April 27, 2017 decision and remanded the case for further development of the
medical evidence. The Board found that the June 28, 2016 and June 29, 2017 medical opinions of
Dr. Akhilesh Sastry, an attending Board-certified orthopedic surgeon, were sufficient to warrant
further development of the medical evidence.5
2

Docket No. 18-0108 (issued July 19, 2018); Docket No. 17-0074 (issued March 17, 2017).

3

Docket No. 17-0074, id.

4

Docket No. 18-0108, supra note 2.

5
The Board further set aside OWCP’s August 29, 2017 nonmerit decision denying appellant’s request for
reconsideration as moot.

2

On remand, OWCP referred appellant to Dr. Kenneth D. Polivy, a Board-certified
orthopedic surgeon, for a second opinion examination regarding whether appellant had sustained
an employment-related bilateral hip condition.
In a November 8, 2018 medical report, Dr. Polivy noted that there was no evidence of
bilateral hip osteoarthritis because appellant had undergone bilateral hip arthroplasties. He opined
that appellant’s bilateral hip osteoarthritis was not caused by the work injury, either by a direct
injury, aggravation, precipitation, or acceleration. Dr. Polivy further opined that appellant’s
progressive degenerative osteoarthritis was secondary to his “genetic makeup.” He advised that it
was more probable than not that appellant’s work as a rural letter carrier had not caused the onset
of wear-and-tear osteoarthritis in his hips. Dr. Polivy concluded that appellant could perform fulltime work with no restrictions.
On December 18, 2018 OWCP accepted appellant’s claim for resolved primary
osteoarthritis of the right and left hip, noting that Dr. Polivy found that appellant’s bilateral hip
condition was causally related to his work duties, but had resolved.
In a January 19, 2019 letter, OWCP requested that Dr. Polivy explain his use of the phrase
“genetic makeup.” It also requested that he review Dr. Sastry’s June 28, 2016 and June 29, 2017
reports and provide an opinion as to whether appellant sustained a work-related bilateral hip
condition.
Dr. Polivy responded to OWCP’s January 19, 2019 letter on January 22, 2019. He
explained that he used the term “genetic makeup” because the true mechanism was unknown.
Dr. Polivy noted that there can be family histories for osteoarthritis. In addition, he noted that
people may be predisposed for the development of joint osteoarthritis. Dr. Polivy opined that no
physical activity caused, aggravated, precipitated, or accelerated appellant’s osteoarthritis. He
related that there were no peer-reviewed studies, which indicated runners develop osteoarthritis
any more than nonrunners. Dr. Polivy indicated, therefore, that he would not expect that someone
who walks a lot, or consistently walks long distances, would have any increased incidence of hip
arthritis. He maintained that if walking a significant amount caused hip osteoarthritis, then one
would see a significant incidence of hip arthritis in postal workers and other occupations; there
were no studies that indicated that this was a recognized etiology. Dr. Polivy opined, therefore,
that the duties of a rural carrier did not aggravate, precipitate, or accelerate the osteoarthritis even
by one percent. Additionally, he disagreed with Dr. Sastry’s opinion that appellant’s work duties
caused his bilateral hip osteoarthritis, noting that appellant’s condition and need for hip
arthroplasties could have been caused by nonwork-related activities and that there was no
indication that his work activity contributed to his condition.
On February 19, 2019 OWCP determined that a conflict of opinion existed between
Dr. Sastry and Dr. Polivy with regard to whether appellant sustained a bilateral hip injury that
required surgery due to the accepted factors of his federal employment. It referred appellant for
an impartial medical evaluation with Dr. John H. Chaglassian, a Board-certified orthopedic
surgeon, selected as an impartial medical examiner (IME). OWCP provided Dr. Chaglassian with
a statement of accepted facts (SOAF), the medical record, and a series of questions.

3

On March 18, 2019 Dr. Chaglassian reviewed the medical evidence of record and noted
that appellant had been diagnosed with having bilateral hip arthritis. He further noted that
appellant underwent right total hip replacement on November 28, 2016 and left total hip
replacement on January 16, 2017. Dr. Chaglassian also noted that, on December 31, 2018,
appellant retired from his job. He reported essentially normal findings on physical examination.
Dr. Chaglassian opined that appellant’s work duties as a letter carrier had not caused, precipitated,
aggravated, or accelerated the development of his bilateral hip arthritis and the need for total hip
replacements. He reasoned that appellant was predisposed to arthritis because of an inherited gene.
Dr. Chaglassian indicated that Dr. Sastry had not shown a single article published in orthopedic
journals that confirmed his opinion. He concluded that appellant’s diagnosed condition had
resolved because appellant underwent bilateral hip replacement. In an accompanying work
capacity evaluation (Form OWCP-5c), Dr. Chaglassian advised that appellant could not perform
his usual job due to his bilateral hip replacement; however, appellant was able to work one to two
hours per day with restrictions.
In a September 13, 2019 notice, OWCP advised appellant that it proposed to rescind its
acceptance of his claim for resolved osteoarthritis of the right and left hip based on its error. It
explained that it mistakenly read that Dr. Polivy’s report found that appellant’s hip conditions were
causally related to the factors of his federal employment. OWCP indicated that appellant’s claim
was prematurely accepted. It determined that the special weight of the medical opinion evidence
rested with the well-rationalized impartial medical opinion of Dr. Chaglassian that appellant’s
bilateral hip condition was not caused by his work duties. OWCP afforded appellant 30 days to
submit evidence and argument challenging the proposed rescission action.
In a letter dated September 30, 2019, appellant, through his then representative, contended
that Dr. Chaglassian’s opinion did not constitute the special weight of the medical evidence
because it was biased.
By decision dated October 22, 2019, OWCP rescinded its acceptance of the claim for
bilateral hip osteoarthritis, effective October 16, 2019.
LEGAL PRECEDENT
OWCP may reopen a claim at any time on its own motion and may modify, rescind,
decrease, or increase compensation previously awarded, or award compensation previously
denied.6 Once it accepts a claim, it has the burden of justifying termination or modification of
benefits.7 This burden applies even where OWCP later decides that it erroneously accepted a
claim.8 OWCP must provide a clear rationale for rescinding acceptance of a claim.9

6

20 C.F.R. § 10.610; 5 U.S.C. § 8128(a).

7

See M.L., Docket Nos. 18-1058 and 18-1224 (issued November 21, 2019); M.B., Docket No. 17-0688 (issued
March 15, 2018); Delphia Y. Jackson, 55 ECAB 373, 376 (2004).
8

Id.

9

Id.

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Section 8123 (a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.10 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.11 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an IME for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
the claim for resolved primary bilateral hip osteoarthritis.
OWCP determined that a conflict in medical opinion arose between Dr. Polivy and
Dr. Sastry, appellant’s attending physician. It referred appellant to Dr. Chaglassian for an
impartial medical evaluation. Based upon his report, OWCP rescinded its acceptance of
employment-related resolved bilateral hip osteoarthritis.
The Board finds, however, that the impartial medical opinion of Dr. Chaglassian is
insufficient to meet OWCP’s burden of proof as he provided no rationalized opinion in support of
OWCP’s decision to rescind its acceptance of resolved primary bilateral hip osteoarthritis.13 In
his March 18, 2019 report, Dr. Chaglassian found that appellant’s bilateral hip osteoarthritis and
resultant bilateral total hip replacements were not causally related to the accepted employment
factors. He explained that appellant was predisposed to have arthritis because of an “inherited
gene.” In addition, Dr. Chaglassian noted that he strongly disagreed with Dr. Sastry’s opinion on
causal relationship and asserted that it was purely speculative with no professional basis, support,
and merit. He maintained that appellant was going to develop arthritis that was progressive in
nature because of his “inherited gene,” not because he was a letter carrier. Dr. Chaglassian
concluded that appellant’s diagnosed condition had resolved because appellant underwent bilateral
hip replacement. He did not provide adequate medical rationale to explain the basis for his
conclusion that appellant’s accepted employment duties did not cause or aggravate appellant’s
primary bilateral hip osteoarthritis. Dr. Chaglassian simply noted that appellant’s bilateral hip
condition was due to an “inherited gene” as opposed to the accepted employment factors, as related
in the SOAF. He did not explain how appellant’s osteoarthritic bilateral hip condition was solely
due to nonoccupational factors.14 The Board has held that any contribution to appellant’s condition
10

5 U.S.C. § 8123(a).

11

20 C.F.R. § 10.321.

12

K.S., Docket No. 19-0082 (issued July 29, 2019).

13

See D.C., Docket No. 10-2052 (issued August 16, 2011); George Randolph Taylor, 6 ECAB 986, 988 (1954)
(where the Board found that a medical opinion not fortified by medical rationale is of little probative value).
14
See R.B., Docket No. 20-0109 (issued June 25, 2020); F.K., Docket No. 19-1804 (issued April 27, 2020); J.T.,
Docket No. 15-1923 (issued December 16, 2015).

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by the accepted employment factors would render his condition compensable.15 OWCP failed to
advise Dr. Chaglassian that the Board has previously held that osteoarthritis is a compensable
medical condition that can be caused or aggravated by employment factors.16 Moreover, the Board
has held that the resolution of a condition is not a basis for a rescission.17
For these reasons, Dr. Chaglassian’s opinion is not entitled to special weight as an IME.
The Board finds, therefore, that OWCP has not justified the rescission of its acceptance of
appellant’s claim for resolved primary bilateral hip osteoarthritis and, thus, has not met its burden
of proof.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to rescind its acceptance of
the claim for resolved primary bilateral hip osteoarthritis.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: August 26, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

See F.K., id.; J.B., Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8,
2017); Beth C. Chaput, 37 ECAB 158 (1985) (it is not necessary to show a significant contribution of employment
factors to a diagnosed condition to establish causal relationship).
16

See C.C., Docket No. 19-0442 (issued July 22, 2019).

17

See G.H., Docket No. 16-0876 (issued May 2, 2017); S.Z., Docket No. 10-1764 (issued May 25, 2011).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Jackson, MS, Employer
__________________________________________

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

Docket No. 11-823
Issued: October 4, 2011

Case Submitted on the Record

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

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from the January 25, 2011 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) denying his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a knee injury while in the performance of duty
on February 27, 2009.
FACTUAL HISTORY
On April 16, 2009 appellant, a 58-year-old medical support assistant, filed a traumatic
injury claim alleging that he sustained an injury to both knees (torn lateral meniscus) in the
1

5 U.S.C. § 8101 et seq.

performance of duty on February 27, 2009 when his chair rolled out from under him as he was
attempting to sit down. He stated that, while breaking the fall, his legs twisted and stretched in
opposite directions.
Appellant submitted progress notes for the period December 4, 2008 through March 23,
2009 from Debra Sutton and Nikelba Bell, nurse practitioners. On March 23, 2009 Ms. Sutton
noted appellant’s complaints of bilateral knee pain. The record contains a report of a March 23,
2009 x-ray of the bilateral knees. A March 31, 2009 report of a magnetic resonance imaging
(MRI) scan of the bilateral knees revealed suspected meniscal tears.
Appellant submitted a March 31, 2009 report from Dr. William M. Stanton, a Boardcertified internist, reflecting complaints of severe pain in both knees. Dr. Stanton diagnosed
bilateral knee pain, stating that appellant denied any recent injury. An addendum, signed by
Ms. Bell, noted the results of an MRI scan showing a left and suspected right meniscal tear.
In an April 30, 2009 report, Dr. Lane Laken, a Board-certified orthopedic surgeon, noted
a history of bilateral knee pain that started a month earlier when appellant fell at work. As
appellant was rising, a chair came out from under him. When he fell to the ground, his legs went
in different directions, with “some kind of twisting mechanism to his knees.” Examination
revealed some pain, with positive McMurray and Apley test. An MRI scan showed a suspicious
medial meniscal tear on the left.
On June 20, 2009 Dr. Laken reported that appellant had experienced bilateral knee pain
since he fell out of a chair at work approximately two months earlier. An MRI scan revealed a
small effusion and suspicion for bilateral meniscal tears. Dr. Laken stated: “It is unclear
whether these meniscal tears are a result of his fall or if they potentially were there from
preexisting DJD [degenerative joint disease].”2 On November 25, 2009 he stated, “It all started
with an event where [appellant] fell on his knees here at work.”3 On January 6, 2010 Dr. Laken
reviewed the results of an MRI scan, which showed a possible medial meniscal tear in the left
knee and possible lateral and medical meniscal tears in the right knee. He diagnosed “likely
bilateral meniscal tears.”
The record contains a May 5, 2009 report from Samantha Fleming, a physical therapist,
who stated that appellant injured his knees when he fell out of a chair. On May 12, 2010 Anne
Newton, physical therapist, noted that he required replacement knee braces. In notes dated
September 2, 2009, Ms. Fleming stated that appellant fell out of a chair at work approximately a
year earlier.
In a letter dated June 23, 2010, OWCP informed appellant that the information submitted
was insufficient to establish his claim and advised him to submit additional information,
including a detailed account of the alleged injury and a physician’s report, with a diagnosis and a
rationalized opinion as to the cause of the diagnosed condition.
2

The Board notes that the June 20, 2009 progress notes were also electronically signed by Dr. Christopher J.
Kneip, a treating physician.
3

The November 25, 2009 notes were also electronically signed by Dr. Jennifer S. Barr, a treating physician.

2

By decision dated August 3, 2010, OWCP denied appellant’s claim. Although it
accepted that the work event occurred as alleged, OWCP found that the medical evidence was
insufficient to establish that appellant had a diagnosed condition that could be connected to the
accepted event.
On October 27, 2010 appellant requested reconsideration.
Appellant submitted an August 17, 2010 letter from nurse practitioner Ms. Bell. The
letter reflected that he was first treated for knee pain on March 23, 2009. X-rays showed
degenerative changes and suspected meniscal tears. Ms. Bell stated that appellant had not
complained of knee pain prior to his reported February 2009 injury. The record contains a note
dated August 13, 2010, entitled “Addendum,” from Dr. Kent Kirchener, a treating physician,
who was identified as an “expected cosigner.” The note was to the effect that the author had
reviewed appellant’s records and concurred with the assessment by Ms. Bell.
The record contains May 12, 2010 progress notes from Dr. Lloyd Mercer, Board-certified
in emergency medicine, who stated that appellant continued to experience bilateral knee pain and
diagnosed bilateral meniscal tears. Dr. Mercer indicated that appellant declined surgical
intervention at that time.
By decision dated January 25, 2011, OWCP denied modification of its August 3, 2010
decision.
LEGAL PRECEDENT
FECA provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.5
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period, that an injury was sustained in the performance of duty as alleged and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 When an employee claims that he sustained a traumatic injury in the
performance of duty, he must establish the fact of injury, consisting of two components, which
must be considered in conjunction with one another. The first is whether the employee actually
experienced the incident that is alleged to have occurred at the time, place and in the manner
4

5 U.S.C. § 8102(a).

5

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
6

Robert Broome, 55 ECAB 339 (2004).

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alleged. The second is whether the employment incident caused a personal injury and generally
this can be established only by medical evidence.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship.9 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under FECA.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.12
ANALYSIS
OWCP accepted that appellant was a federal employee that he timely filed his claim for
compensation benefits and that the February 27, 2009 workplace incident occurred as alleged.
The issue, therefore, is whether he has submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion establishing that the work-related incident caused or aggravated any
particular medical condition or disability. Therefore, appellant has failed to satisfy his burden of
proof.
In a March 31, 2009 report, Dr. Stanton noted appellant’s complaints of severe pain in
both knees. He diagnosed bilateral knee pain, stating that appellant denied any recent injury.
Dr. Stanton did not provide a definitive diagnosis or render an opinion as to the cause of

7

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by FECA, refers to a disease proximately caused by the employment.
5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q)(ee).
8

Katherine J. Friday, 47 ECAB 591, 594 (1996).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

10

Id.

11

20 C.F.R. § 10.303(a).

12

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

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appellant’s condition.13 The Board has long held that medical evidence which does not offer an
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.14
Dr. Laken’s reports are also insufficient to establish appellant’s claim. On April 30, 2009
he related appellant’s report of bilateral knee pain that started a month earlier when he fell to the
ground at work and his legs went in different directions, with “some kind of twisting mechanism
to his knees.” Dr. Laken provided brief examination findings and discussed the results of an
MRI scan, which he noted was suspicious for medial meniscal tear on the left. Absent a
definitive diagnosis or an opinion as to the cause of appellant’s condition, his report is of limited
probative value. In his June 20, 2009 report, Dr. Laken stated that it was unclear whether the
meniscal tears resulted from appellant’s fall rather than from preexisting DJD. His opinion is
vague and speculative and is, therefore, of diminished probative value. On November 25, 2009
Dr. Laken stated, “It all started with an event where [appellant] fell on his knees here at work.”
To the extent that his statement can be construed as an opinion on the cause of appellant’s knee
condition, he failed to explain how the condition was causally related to the February 27, 2009
fall. Medical conclusions unsupported by rationale are of little probative value.15 In this case,
such an explanation is particularly important in light of the fact that appellant failed to seek
medical treatment immediately following the February 27, 2009 incident. On January 6, 2010
Dr. Laken provided a speculative diagnosis and offered no opinion as to the cause of the knee
condition.
In May 12, 2010 progress notes, Dr. Mercer stated that appellant continued to experience
bilateral knee pain and diagnosed bilateral meniscal tears. He indicated that appellant declined
surgical intervention at that time. Dr. Mercer’s report does not contain a complete factual or
medical background, examination findings or an opinion regarding the cause of appellant’s knee
condition. Therefore, his report is of limited probative value.
The record does not contain an opinion by any qualified physician supporting appellant’s
contention that his knee condition was causally related to the accepted incident. While appellant
has submitted chart notes and other medical documents which track his treatment, he has not
provided a narrative report containing a physician’s rationalized opinion on whether there is a
causal relationship between his condition and the established February 27, 2009 work incident.
He submitted notes and reports signed by nurses, nurse practitioners and physical therapists. As
these reports were not signed by individuals that, qualify as “physicians” under FECA, the Board

13

The Board has held that a diagnosis of pain does not constitute a basis of payment for compensation, as pain is
considered to be a symptom rather than a specific diagnosis. Robert Broom, supra note 6.
14

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

15

Willa M. Frazier, 55 ECAB 379 (2004).

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finds that they do not constitute probative medical evidence.16 Reports of x-rays, MRI scan and
other diagnostic tests that do not contain an opinion on causal relationship are of limited
probative.
Appellant expressed his belief that his bilateral knee condition resulted from the
February 27, 2009 employment incident. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.17 Neither the fact that the condition became apparent during a
period of employment nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.18 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Therefore, appellant’s belief that his condition was caused by the work-related incident
is not determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to the request. As there is no probative,
rationalized medical evidence addressing how his claimed knee condition was caused or
aggravated by his employment, he has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to the 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 his burden of proof to establish that he
sustained a traumatic injury to his knee on February 27, 2009.

16

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law.” See Merton J.
Sills, 39 ECAB 572, 575 (1988).
The Board notes that the record contains an August 13, 2010 “Addendum” to nurse Bell’s August 17, 2010 letter.
A notation on the addendum indicated that Dr. Kirchner was expected to cosign Ms. Bell’s letter. The record does
not reflect, however, that Dr. Kirchner cosigned the letter. Therefore, it has no probative value.
17

See Joe T. Williams, 44 ECAB 518, 521 (1993).

18

Id.

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ORDER
IT IS HEREBY ORDERED THAT the January 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Pine Knot, KY,
Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1558
Issued: July 15, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 27, 2020 appellant, through counsel, filed a timely appeal from a June 23, 2020
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 a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 1, 2018 appellant, then a 39-year-old medical records technician, filed a
traumatic injury claim (Form CA-1) alleging that on November 27, 2017 she experienced the onset
of severe right foot pain when escorting inmates to and from a mobile truck while in the
performance of duty. In a March 7, 2018 statement, she noted that she had initially attributed her
right foot pain to gout, a possible side effect of a recently prescribed diuretic.
In support of her claim, appellant submitted chart notes signed by Jennifer West, a nurse
practitioner, dated November 27, 2017 to February 9, 2018. Ms. West noted that November 27,
2017 x-rays had been negative for fracture, while x-rays reviewed on December 11, 2017
demonstrated a displaced second metatarsal fracture.
In reports dated February 6 and March 8, 2018, Dr. Tracy A. Pesut, a Board-certified
orthopedic surgeon, noted that x-rays of appellant’s right foot demonstrated a mildly angulated
stress fracture of the second metatarsal neck, hammering of the second and third toes, and a hallux
valgus deformity. She diagnosed a right second metatarsal stress fracture with malunion, and right
metatarsalgia.
OWCP received December 11, 2017 and January 30, 2018 x-ray reports, which
demonstrated an angulated fracture of the right second metatarsal.
By decision dated May 4, 2018, OWCP denied the traumatic injury claim, finding that the
evidence of record was insufficient to establish that the November 27, 2017 incident occurred as
alleged.
On May 18, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
October 19, 2018. Counsel argued that appellant sustained an occupational condition due to
frequent prolonged walking in the performance of duty, rather than a traumatic injury caused by a
single incident on November 27, 2017. Appellant testified that she returned to work intermittently
in July 2018, but could not continue as fixation screws had bent or broken. She related that she
underwent revision surgery on September 26, 2018 and submitted additional medical evidence.
On April 18, 2018 Dr. Pesut performed a right second metatarsal osteotomy with plate and
screw fixation, a right third metatarsal Weil osteotomy, a right Lapidus bunion correction with
3

Docket No. 19-0673 (issued September 6, 2019).

2

screw fixation, and right calcaneal autograft. In a May 3, 2018 report, she noted that appellant had
progressed well postsurgery.
In a report dated May 31, 2018, Dr. Pesut opined that the second metatarsal fracture and
surgical correction were “related to [appellant’s] work activities,” but the bunionectomy and third
metatarsal procedures were not occupationally related. In a July 5, 2018 report, she opined that
the second metatarsal fracture “occurred at work.” In an August 16, 2018 report, Dr. Pesut advised
that x-rays demonstrated broken fixation screws. She opined that appellant sustained a second
metatarsal fracture at work from the second metatarsal malunion.
In a letter dated August 27, 2018, Dr. Pesut opined that appellant sustained a right second
metatarsal stress fracture at work due to prolonged walking and standing in required footwear. She
noted that the malunion increased pressure on the great toe and third toe, which caused pain with
weight bearing and necessitated an osteotomy. Dr. Pesut explained that she corrected the
nonoccupational hallux valgus deformity to prevent “impingement on the second toe and difficulty
with healing.”
In a November 1, 2018 statement, the employing establishment noted that it was not
disputing appellant’s claim. It explained that appellant had been required to escort inmates “many
miles,” up to 8 to 10 times a shift, to and from medical units during lockdown incidents.
By decision dated January 2, 2019, the hearing representative modified the May 4, 2018
decision to find that appellant had established that her accepted factors of employment of a period
of time constituted a claim for occupational disease. However, the claim remained denied because
the medical evidence of record was insufficient to establish that the accepted employment factors
caused appellant’s diagnosed stress fracture or other right foot conditions.
On February 5, 2019 appellant, through counsel, filed a timely appeal with the Board from
the January 2, 2019 merit decision. In a September 6, 2019 decision, the Board affirmed the
January 2, 2019 decision. The Board found that appellant had not met her burden of proof to
establish a right foot fracture causally related to the accepted factors of her federal employment.
On September 19, 2019 appellant, through counsel, requested reconsideration and
submitted new evidence.
In a March 15, 2019 report, Dr. H.A. Perry, a family medicine specialist, noted that
appellant presented with right foot pain on November 27, 2017. He explained that onsite
radiographic images were initially negative and conservative treatment was rendered until
December 8, 2017, when additional imaging revealed a minimally displaced fracture/stress
fracture to the right second metatarsal. Dr. Perry advised that appellant was placed in a walking
boot and instructed to take time off from work; however, she had previously continued to work
full time. Appellant returned to work with the walking boot. Dr. Perry indicated that imaging
studies on January 31, 2018 identified a non-healing fracture and that appellant underwent surgery.
He also noted that appellant had two other surgeries due to complications to the right foot in April
and September 2018 and that, in January 2019, appellant had a fall at home and sustained a broken
right ankle. Dr. Perry advised that appellant was unable to perform the tasks required of her job

3

such as climbing stairs, walking, or standing for one hour, running, responding rapidly to
emergency situations, or carrying a stretcher even with help.
In a May 1, 2019 report, Dr. Pesut noted that she evaluated appellant for a right second
metatarsal fracture with malunion. She explained that appellant initially sustained an injury while
at work and was diagnosed with a stress fracture that healed. Dr. Pesut opined that the stress
fracture was due to appellant’s work environment and the amount of time she spent walking and
standing in the required footwear. However, appellant developed a malunion, which increased the
pressure on the great toe and third toe, which caused pain with weight-bearing activities. While
appellant attempted to utilize accommodative orthotics to offload that area during ambulation, she
continued to experience pain. Dr. Pesut explained that appellant underwent an osteotomy to
correct the malposition of the second metatarsal and she also had a hallux valgus deformity, which
was not work related, ﬁxed at the same time, to prevent impingement on the second toe and
difficulty with healing. She further noted that appellant had an osteotomy of the third metatarsal
to offload the prominent metatarsal head; however, she developed a nonunion of her Lapidus
bunion correction site. Dr. Pesut explained that appellant underwent a second surgery, which kept
her non-weight bearing for an additional three months, and sustained a bimalleolar ankle fracture
which led to another three months of non-weight bearing. She advised that appellant’s ankle had
healed; however, she continued to have stiffness and arthroﬁbrosis in her joints, which was
changing her gait. Dr. Pesut noted that appellant was working with physical therapy to try to
normalize her gait and that, if she did not mobilize the joints and get better range of motion, she
would continue to have difficulty with her gait, which would make her prone to stress fractures.
OWCP received a copy of Dr. Pesut’s previously submitted August 27, 2018 report and
the November 1, 2018 memorandum from the employing establishment.
By decision dated December 18, 2019, OWCP denied modification of the January 2, 2019
decision.
On March 26, 2020 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In January 29, 2020 reports, Dr. Pesut noted that appellant was seen for follow up and again
concluded that appellant had a right second metatarsal stress fracture as a result of an occupational
injury and a malunion. She explained that appellant’s job required her to walk and stand for
extended periods of time, and to wear specific shoes. Due to appellant’s repetitive injury and the
actual injury when she reported pain, Dr. Pesut related that there was greater than 51 percent
chance that the stress fracture was due to her work environment. She explained that the original
injury involved the second metatarsal stress fracture, which was not initially recognized, and that
appellant continued with weight-bearing activity, which led to a malunion, and increased pressure
on the great toe and third toe. The malunion and increased pressure led to the osteotomy to correct
the malposition of the second metatarsal.
By decision dated June 23, 2020, OWCP denied modification of its December 18, 2019
decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.10 Neither the mere fact
that a disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.11

4

Supra note 2.

5

E.W., Docket No. 19-1393 (issued January 29, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

20 C.F.R. § 10.115; E.S., Docket No. 18-1580 (issued January 23, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Elliott, 41 ECAB 992 (1990).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
9

J.F., Docket No. 18-0492 (issued January 16, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

A.M., Docket No. 18-0562 (issued January 23, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

11

E.W., supra note 5; Gary L. Fowler, 45 ECAB 365 (1994).

5

ANALYSIS
The Board finds that this case is not posture for a decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s January 2, 2019 decision. The Board
considered that evidence in its September 6, 2019 decision and found it insufficient for purposes
of establishing causal relationship.12 Findings made in prior Board decisions are res judicata
absent any further review by OWCP under section 8128 of FECA.13
Following the Board’s decision, appellant submitted additional reports from Dr. Pesut to
explain the cause of her diagnosed conditions. In a May 1, 2019 report, Dr. Pesut noted that
appellant sustained a stress fracture due to the amount of time she spent walking and standing in
the required footwear. She developed a malunion, which increased the pressure on the great and
third toes and caused pain with weight-bearing activities. Dr. Pesut noted that appellant tried
orthotics to offload that area, but continued to have pain and difficulty with ambulation. She
indicated that appellant underwent an osteotomy to correct the malposition of the second
metatarsal. In her January 29, 2020 report, Dr. Pesut noted that appellant had a second metatarsal
stress fracture as a result of an occupational injury, which was initially overlooked and, thereafter,
with continued weight bearing developed a malunion. She opined, “it is my professional opinion
that it is greater than 51 percent that the injury initially as well as the subsequent stress fracture
were a result of her work environment.” Dr. Pesut also noted that the malunion caused increased
pressure on the great toe and third toe with weight bearing, which led to the osteotomy to correct
the malposition of the second metatarsal.
The Board finds that these reports from Dr. Pesut are sufficient to require further
development of the medical evidence. Dr. Pesut is a Board-certified physician in orthopedics who
is qualified in her field of medicine to render rationalized opinions on the issue of causal
relationship. She reviewed the medical record and case history and provided a pathophysiological
explanation as to how appellant developed right foot conditions due to factors of her federal
employment. The Board has long held that it is unnecessary that the evidence of record in a case
be so conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical.14 Dr. Pesut’s medical opinion is well rationalized and logical and is, therefore,
sufficient to require further development of appellant’s claim.15

12

Docket No. 19-0673 (issued September 6, 2019).

13

See L.S., Docket No. 20-0505 (issued November 24, 2020); E.S., Docket 18-1580 (January 23, 2020); B.R.,
Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
14
A.P., Docket No. 20-0803 (issued November 4, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
15

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).

6

It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 It has an obligation to see that justice is done.17
On remand, OWCP shall refer appellant, a statement of accepted facts (SOAF), and the
medical record to a specialist in the appropriate field of medicine. The chosen physician shall
provide a rationalized opinion as to whether appellant’s right foot condition is causally related to
the accepted factors of appellant’s federal employment. If the physician opines that the diagnosed
condition is not causally related, he or she must explain, with rationale, how or why the opinion
differs from that of Dr. Pesut. Following this and such other further development as deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

16

A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999).

17
B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: July 15, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1839
Issued: April 21, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 23, 2007 merit decision by the hearing representative affirming
the reduction of his compensation benefits to reflect his wage-earning capacity as a systems
hardware analyst. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
March 19, 2006 based on its determination that the constructed position of systems hardware
analyst represented his wage-earning capacity.
FACTUAL HISTORY
On June 8, 1989 appellant, then a 25-year-old electronics mechanic, sustained injury
when his bicycle fork broke causing him to fall forward onto his left shoulder. The Office

accepted appellant’s claim for left shoulder acromioclavicular (AC) separation, abrasion and
hematoma in the left AC joint area, AC repair and an adjustment disorder with a depressed
mood.
Appellant was referred for vocational rehabilitation and entered a program at
New Directions Learnings Center, where he took computer courses in Introduction to PCs,
Windows 98, MS Word, MS Excel and MS Power Point. He earned a grade of A in all his
classes. Appellant graduated December 22, 2000. In his final student transcript, his instructor
commented, “[Appellant] has completed his program with a high level of accuracy. We are
confident that he will make a fine addition to the workforce in the near future.” However,
appellant failed the Microsoft examinations multiple times. In a March 28, 2002 letter
responding to the Office, appellant blamed his failure to pass the tests on the Office not
providing him the necessary tools and the difficulty he had driving to classes.
By letter dated February 13, 2003, the Office referred the case to Marci Winkler, a
vocational consultant. In a labor market survey dated February 20, 2003, Ms. Winkler
researched the suitability of several positions, including that of computer systems hardware
analyst. She listed three entry level systems hardware analyst positions as possible positions for
appellant. Ms. Winkler noted that the position of computer systems hardware analyst was
described by the Department of Labor, Dictionary of Occupational Titles (DOT) as follows:
“Analyzes data processing requirements to plan data processing system that will
provide system capabilities required for projected workloads and plans layout and
installation of new system or modification of existing system: Confers with data
processing and project managers to obtain information on limitations and
capabilities of system: Confers with data processing and project managers to
obtain information on limitations and capabilities of existing system and
capabilities required for data processing projects and projected workload.
Evaluates factors such as number of departments serviced by data processing
equipment, reporting formats required, volume of transactions, time requirements
and cost constraints and need for security and access restrictions to determine
hardware configurations. Analyzes information to determine, recommend and
plan layout for types of computers and peripheral equipment, or modifications to
existing equipment and system, that will provide capability for proposed project
or workload, efficient operation and effective use of allotted space. May enter
data into computer terminal to store, retrieve and manipulate data for analysis of
system capabilities and requirements. May specify power supply requirements
and configuration. May recommend purchase of equipment to control dust,
temperature and humidity in area of system installation. May specialize in one
area of system application or in one type of make of equipment. May train users
to use new or modified equipment. May monitor functioning of equipment to
ensure system operates in conformance with specifications.”
She noted that it was a sedentary position and required graduation from an accredited training
program or a bachelors degree.

2

On March 5, 2003 the Office issued a notice to appellant that it would adjust his
compensation because he had failed, without good cause, to undergo vocational rehabilitation as
directed. The Office found that appellant failed to cooperate in the job placement portion of the
rehabilitation program. The Office reduced appellant’s compensation effective March 23, 2003.
Appellant requested an oral hearing. By decision dated December 4, 2003, the hearing
representative reversed the March 5, 2003 decision. The hearing representative noted that the
Office did not issue a prereduction notice or show that the selected position was within
appellant’s medical restrictions and was reasonably available to him. The hearing representative
remanded the case for updated medical examinations, a determination of appellant’s ability to
drive to work and if he was unable to drive, whether appellant could utilize public transportation.
The hearing representative reinstated appellant’s compensation benefits.
By letter dated May 7, 2004, the Office referred appellant to Dr. John Randall Chu,
a Board-certified orthopedic surgeon, for a second opinion. In a medical report dated June 17,
2004, Dr. Chu reviewed the history of the work injury, appellant’s medical treatment and
conducted a physical examination. He diagnosed left Grade 3 AC joint separation, status post
distal clavicle excision and AC joint repair or Weaver-Dunn repair which were caused by the
June 1989 accident. Dr. Chu opined that appellant continued to experience subjective pain in the
surgical area. He noted that appellant’s symptoms were not unusual for this type of procedure,
as the surgery did not perfectly reconstruct the AC joint in either form or function. Dr. Chu
reviewed the job description for computer systems hardware analyst. He noted that the position
was sedentary in nature and did not involve significant position. Dr. Chu opined that appellant
was physically capable of performing the position. He noted that he would permanently restrict
appellant to lifting 20 pounds on an occasional basis and restrict reaching to an occasional basis
and prohibit reaching above shoulder level. Dr. Chu further opined that appellant should not
have specific driving restrictions. He noted that appellant primarily used his right hand for
driving. Dr. Chu also noted that there was no medical reason why appellant could not take
public transportation.
By letter dated January 14, 2005, the Office referred appellant to Dr. Robert Hepps, a
Board-certified psychiatrist, for a second opinion. In a report dated January 27, 2005, Dr. Hepps
noted that appellant had a depressed mood and dysthymic disorder. Appellant’s depression
appeared to have been precipitated from the orthopedic injury at work and was currently
manifested by a depressed mood, tearfulness, poor appetite, withdrawn behavior, low energy and
feelings of hopelessness. Dr. Hepps noted that, at times, the pain caused appellant to feel like
killing himself. He noted that although appellant may have preexisting disorders, they did not
appear to be disabling. Dr. Hepps opined that appellant was capable, from a psychiatric
perspective of performing the functions of a computer systems hardware analyst. He
recommended anti-depressant medication but noted that appellant did not want to take any
medicine.
By letter dated January 14, 2005, the Office also asked Dr. Jillian Daly, Ph.D., a clinical
psychologist, for undated psychological testing. Dr. Daly noted that appellant was administered
a Minnesota Multiphasic Personality Inventory-2 assessment. She did not personally meet
appellant and did not conduct a clinical interview or review any medical records. After
evaluating appellant’s test results, she noted that individuals with similar performance to the
assessment had major affective disorder, anxiety disorder, hypochondriasis, somatoform disorder

3

and conversion disorder. Dr. Daly noted that a diagnosis of personality disorder with paranoid
and histrionic traits was also likely.
On March 31, 2005 the Office referred appellant for further vocational rehabilitation.
The vocational rehabilitation counselor met appellant on April 12, 2005. Appellant indicated
that he was not marketable within the computer field as he remembered very little from his
training. He also indicated that he had not used a computer since the completion of his training
and doubted that he would ever use one again. The counselor noted that appellant was adamant
that he would not consider involvement in a vocational rehabilitation plan until such time as he
was offered a modified or light-duty position as an electronics mechanic. In a letter dated
June 9, 2005, the Office informed appellant that it had been advised that he had impeded the
efforts of the rehabilitation counselor. It advised appellant that he had 30 days to respond to the
letter and give good reason for his noncompliance and if he did not comply, the rehabilitation
effort would be terminated and his benefits reduced.
In a letter dated July 4, 2005, appellant contended that he had not impeded the vocational
rehabilitation counselor’s efforts but had complied with all her requests. He argued that
necessary computer funds were not provided for his program and the program “that was designed
to help me overcome my lack of experience and fear of computers has instead caused me to
dislike and avoid computers all the more.”
In a labor market survey dated July 5, 2005, the vocational counselor evaluated the
suitability of two positions: systems hardware analyst and user support analyst, she found the
positions suitable for appellant as they were sedentary and within appellant’s restrictions. In a
July 29, 2005 memorandum, a rehabilitation specialist found that a viable labor market existed in
the San Francisco Bay Area for the identified positions. These occupational groups were likely
to continue to expand, as the services that these occupations provided were vital to the general
functioning of a broad range of businesses across the full range of economic continuum. The
placement opportunities for these occupations were found very positive.
In a July 29, 2005 letter, the Office advised appellant that the positions of system
hardware analyst and user support analyst were within his work limitations. The Office
informed appellant that he was expected to cooperate fully so that he may return to work in the
specified job or one similar to it. Based on the vocational evaluation and survey of the local
labor market, appellant had a wage-earning capacity of $25,000.00 to $30,000.00 per year. The
Office informed appellant that he had 90 days to work with his vocational consultant and, at the
end of the period, the Office would reduce his compensation.
In a vocational rehabilitation report dated September 1, 2005, the specialist indicated that
a vocational rehabilitation plan for systems hardware specialist/computer systems analyst/user
support analyst had been prepared on behalf of appellant and had been approved by the Office.
However, as appellant maintained that he barely knew how to turn on a computer, the vocational
rehabilitation specialist scheduled a lesson for appellant with the local library on basic computer
operations. The consultant at the library confirmed that appellant would be instructed in
exploring web sites on the internet, submitting his resume online and how to acquire an e-mail
address. In an October 18, 2005 report, the consultant indicated that appellant’s attitude towards

4

the job search had improved to a great extent, but he still did not feel that the vocational
objective was appropriate.
In a November 10, 2005 updated labor market survey, the specialist noted that, in
preparing her report, she only used positions that were sedentary in nature and within appellant’s
physical capabilities. Although appellant had been out of the school program since 2001, the
assisted reemployment option was available to employers interested in hiring appellant. The
employer that hired appellant would be reimbursed in consideration of the amount and/or length
of training that was required. The specialist indicated that, due to this incentive, that she found
various systems hardware analyst positions available and suitable for appellant. She noted a
position with Travis Credit Union in Vacaville, California with wages of $27.00 to $30.00 per
hour. This position required data processing experience or completed coursework and/or HP
certification in lieu of experience. A position with Robert Half Technology in San Francisco,
California with wages of $20.00 to $30.00 per hour was an entry level position and graduation
from a technical school was required. A position with GIS in Fairfield, California paid $22.00 to
$25.00 per hour and required knowledge typically acquired through completion of a bachelors
degree or technical training and 2 to 3 years of related experience or equivalent education and/or
experience. A position with QualxServ in Fairfield, California would pay $25.00 to $28.00 per
hour. The counselor noted that this company responded to appellant’s posted résumé and that he
would qualify for this position, but that the company ultimately chose a different candidate,
although it noted that it would keep appellant’s résumé on file as there were frequent openings
for this position. Finally, there was a position available with SBC Communications paying
$30,000.00 to $40,000.00 per year. This position was considered entry-level and required a B.S.
degree in computer science or completion of an equivalent type program. Although related
experience was preferred, it was not required.
On February 8, 2006 the Office proposed to reduce appellant’s compensation for wage
loss, noting that the medical and factual evidence established that he was no longer totally
disabled but had the capacity to earn wages as a systems hardware analyst at the rate of $867.36
per week.
By decision dated March 13, 2006, the Office adjusted appellant’s compensation benefits
effective March 19, 2006 based upon its determination that the position of systems hardware
represented his wage-earning capacity. The Office noted that appellant’s weekly pay rate when
injured was $626.00 and that the current pay rate for job and step when injured was $1,139.46.
The Office found that appellant was capable of earning $867.36 per week, that the adjusted
wage-earning capacity per week was $475.76, that the percentage of new wage-earning capacity
was 76 percent, that the loss in wage-earning capacity amount per week was $150.24, leaving
appellant with a compensation rate of $112.68 or $167.75 per week when increased by
applicable cost-of-living adjustments. The Office calculated that this resulted in a new
compensation rate every four weeks of $671.00, less health benefits premium of $240.72, for a
net compensation every four weeks of $430.28 beginning on March 19, 2006.
On April 1, 2006 appellant requested a hearing. At the January 26, 2007 hearing he
argued that he did not believe that he could do the job as systems hardware analyst. Appellant
noted that he could not get interviews for these positions due to the fact that the positions
required a college degree and 3 to 5 years of experience. He alleged that the training he received

5

through vocational rehabilitation was worthless. Appellant argued that the jobs were outside of a
reasonable commuting area, contending that most of the jobs were between 45 minutes and
1 hour to 15 minutes from his home. After 20 minutes of driving, his shoulder would cause him
to have phantom heart attacks by squeezing his nerves and that he would also have other
symptoms after driving. Appellant contended that he was not given adequate time to respond to
the proposed reduction of benefits and that the employing establishment had not made a
reasonable effort to find him a light-duty job.
By decision dated March 23, 2007, the hearing representative affirmed the Office’s
decision of March 13, 2006.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of
wage-earning capacity.2
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee, if the earnings fairly and
reasonably represent his or her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent the employee’s wage-earning capacity or if the employee has no actual
wages, the wage-earning capacity is determined with due regard too the nature of the injury, the
degree of physical impairment, the employee’s usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect his wage-earning capacity in her disabled condition.3
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects his vocational wage-earning capacity. The
Board has stated that the medical evidence upon which the Office relies must provide a detailed
description of appellant’s condition.4 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.5
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, DOT or otherwise available in the open
1

James B. Christenson, 47 ECAB 775, 778 (1996); Patricia A. Keller, 45 ECAB 278 (1993); Wilson L. Clow, Jr.,
44 ECAB 157 (1992).
2

20 C.F.R. §§ 10.402, 10.403 (2002).

3

5 U.S.C. § 8115(a); see Dorothy Lams, 47 ECAB 584 (1996).

4

See William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo,
28 ECAB 43 (1976).
5

Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

6

market, that fit the employee’s capabilities with regard to his physical limitations, education, age
and prior experience. Once this selection is made, a determination of wage rate and availability
in the labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick6 and
codified by regulation at 20 C.F.R. § 10.4037 should be applied. Subsection(d) of the regulations
provides that the employee’s wage-earning capacity in terms of percentage is obtained by
dividing the employee’s actual earnings or the pay rate of the position selected by the Office, by
the current pay rate for the job held at the time of the injury.8
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, the Office must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post-injury or subsequently acquired conditions.9 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity that can be attributed to the accepted employment injury and
for which appellant may receive compensation. Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.10
ANALYSIS
On February 8, 2006 the Office proposed to reduce appellant’s compensation benefits
effective March 19, 2006 based upon its determination that appellant was no longer totally
disabled. It advised that he had the capacity to earn wages as a systems hardware analyst at the
rate of $867.36 per week. By decision dated March 13, 2006, the Office reduced appellant’s
compensation effective March 19, 2006. The Board finds that the Office properly reduced
appellant’s compensation based on his capacity to perform the duties of a systems hardware
analyst.
Dr. Chu evaluated appellant and, on June 17, 2004, reviewed his work history, medical
history and set forth findings or physical examination. He noted that although appellant
continued to have subjective pain in the surgical area, he was capable of performing the position
of computer systems hardware analyst. Dr. Chu noted that the position was sedentary in nature
and did not involve significant physical activities. He also noted that appellant did not have
specific driving restrictions, as his injury was to his left shoulder and he primarily uses his right
hand for driving. Dr. Hepps, a psychiatrist, noted that appellant had a depressed mood and
dysthymic disorder that appeared to have been precipitated from the orthopedic injury at work.
He opined that appellant was capable on a psychiatric basis of performing the functions of a
6

5 ECAB 376 (1953).

7

20 C.F.R. § 10.403.

8

Id. at § 10.403(d).

9

James Henderson, Jr., 51 ECAB 268 (2000).

10

Id.

7

computer systems hardware analyst. Accordingly, the medical evidence clearly establishes that
there are no physical or emotional bars to appellant working as a computer systems hardware
analyst.
The position of computer systems hardware analyst is also vocationally suitable to
appellant. Appellant received vocational rehabilitation through the Office. Appellant graduated
from a computer program at New Directions Learning Center where he earned high marks.
Furthermore, the Office expressed its willingness to use an assisted reemployment option,
wherein if appellant was hired, it would reimburse the employer for his training. The Office
found several jobs that were suitable for appellant based on his vocational training and
experience. Although the position at GIS may not have been suitable as it required a Bachelor’s
degree or technical training and 2 to 3 years of experience, the vocational counselor presented
other positions that were suitable. The positions at Travis Credit Union and Robert Half
Technology were entry level positions that would accept graduation from a technical school.
Although appellant did not get the position at Qualxserve, they did keep his résumé on file as he
was suited to the position. Appellant’s contentions that he does not have a Bachelor’s degree or
experience would not be an issue in any of these jobs. Accordingly, appellant was qualified
vocationally for these positions.
Appellant’s remaining arguments are without merit. There is no evidence that the Office
did not provide proper funds for his success in the computer program. The record reflects that
appellant passed his courses with all “A’s.” The vocational counselor found that these positions
were within reasonable commuting distance to appellant’s home. Appellant’s contention that he
could not drive an hour to a job due to his medical condition is unsupported by medical evidence.
In fact, Dr. Chu specifically stated that appellant had no driving restrictions. Furthermore,
appellant’s contention that the proposed reduction of benefits was issued less than 30 days prior
to the decision terminating benefits is without merit; the Office issued the proposed decision
reducing appellant’s benefits on February 8, 2006; the decision reducing benefits was issued on
March 13, 2006.
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity in accordance with the formula developed in Shadrick11 and codified at section 10.403
of the Office’s regulations.12 The Office indicated that his salary on June 18, 1989, the date of
injury, was $626.00 per week; that the current adjusted pay rate for his job on the date of injury
was $1,139.46; and that he was currently capable of earning $867.36 per week as a computer
systems hardware analyst. The Office then determined that appellant had a 75 percent wageearning capacity, which resulted in an adjusted wage-earning capacity of $475.76 per week. The
Office concluded that, based upon a 75 percent rate, appellant’s new compensation rate was
$112.68, increased by cost-of-living adjustment to $167.75 per week and that his net
compensation for each four-week period would be $671.00. The Board finds that the Office
correctly applied the Shadrick formula and therefore properly found that the position of medical
billing clerk reflected appellant’s wage-earning capacity.

11

Supra note 6.

12

20 C.F.R. § 10.403.

8

CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
March 19, 2006 based on its determination that the constructed position of systems hardware
analyst represented his wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 23, 2007 is affirmed.
Issued: April 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL COMMAND, MADIGAN ARMY
MEDICAL CENTER, JOINT BASE
LEWIS-McCHORD, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Howard L Graham, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0555
Issued: March 4, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 24, 2021 appellant, through counsel, filed a timely appeal from a
November 16, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).

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.

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
ISSUE
The issue is whether appellant has established that the acceptance of her claim should be
expanded to include additional or consequential conditions of major depression and anxiety, or a
cognitive disorder as a result of her accepted November 21, 2013 employment injury.
FACTUAL HISTORY
On December 13, 2013 appellant, then a 62-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 21, 2013 she sustained a right
shoulder strain with rotator cuff tearing when moving a large cabinet to retrieve documents which
had fallen from the printer while in the performance of duty. She did not initially stop work.
OWCP accepted the claim for right shoulder and upper arm acromioclavicular sprain, right
shoulder and arm rotator cuff sprain, right rotator cuff tear, and subsequently expanded acceptance
of the claim to include consequential conditions of right shoulder stress fracture and right shoulder
rotator cuff tear or rupture.4
OWCP paid appellant wage-loss compensation on the supplemental rolls as of
February 5, 2014. On June 28, 2016 it granted her a schedule award for 12 percent permanent
impairment of the right upper extremity for 37.44 weeks from April 12 through
December 30, 2016. OWCP paid appellant wage-loss compensation on the periodic rolls as of
October 15, 2017.
OWCP authorized a right shoulder arthroscopic rotator cuff repair, and biceps tendon repair
surgery, which occurred on February 7, 2014, a right shoulder rotator cuff repair and removal of
foreign body from humeral head, which occurred on January 23, 2015, and a right total shoulder
arthroplasty, which occurred on April 17, 2017. On October 4, 2018 appellant underwent an
OWCP authorized surgery for removal of right support implant.
In a letter dated November 20, 2018 appellant, through counsel, requested that the
acceptance of appellant claim be expanded to include additional conditions of major depression
and anxiety. In support of her request, appellant submitted a neuropsychological evaluation dated
March 9, 2016 from Philip Tate, Ph.D. and licensed clinical psychologist, which noted her mild
neurocognitive disorder and moderate-to-severe major depression. Dr. Tate related that she had
moderate-to-severe symptoms of depression that worsened during the holidays due to her
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the November 16, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

Appellant retired from the employing establishment effective April 30, 2015.

2

daughter’s death four years prior. He also related that it was possible that depression and chronic
pain from appellant’s industrial injury adversely affected her auditory working memory somewhat,
but would not account for her deficits in visual and spatial memory. OWCP also received a work
capacity evaluation psychiatric/psychological conditions form (Form OWCP-5a) dated
November 15, 2018 from Vanessa J. Honn, Ph.D. and clinical psychologist, who noted severe
depression and anxiety, with chronic stress related to physical disability as a significant factor
contributing to depression and anxiety. In a work capacity evaluation musculoskeletal conditions
form (Form OWCP-5c) dated November 14, 2018 Dr. Matthew Jenkins, a Board-certified
orthopedic surgeon, related appellant’s permanent restrictions due to her accepted right shoulder
condition.
On January 3, 2019 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, to Dr. Michael Friedman, an osteopath and Board-certified
psychiatrist, for a second opinion examination. It requested that he address whether she suffered
from an emotional condition that was a direct and natural result of her accepted work conditions.
OWCP also requested that Dr. Friedman evaluate whether any diagnosed cognitive disorder was
an aggravation of a preexisting condition, and if so whether the aggravation was temporarily or
permanently aggravated by appellant’s employment-related conditions. In a report dated
February 12, 2019, Dr. Friedman reviewed her history of injury and medical reports of record. He
diagnosed mild neurocognitive disorder due to multiple factors, generalized anxiety disorder,
recurrent-moderate major depressive disorder, and predominant somatic symptoms disorder, pain
persistent. Dr. Friedman opined that appellant did not suffer from an employment-related
emotional condition. He also opined that her mild neurocognitive disorder was unrelated to her
employment injury and had not been aggravated by her accepted employment injury.
By decision dated March 8, 2019, denied appellant’s request to expand the acceptance of
her claim to include major depression and anxiety, or a cognitive disorder as causally related to
her November 21, 2013 work injury.
In a report dated March 20, 2019, John A. Ernst, Ph.D. and clinical neuropsychologist,
detailed treatment provided and attributed appellant’s neurocognitive functioning to medical and
psychosocial factors.
On April 6, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on August 16, 2019.
In a report dated September 27, 2019, Dr. Honn agreed with Dr. Friedman’s diagnoses of
mild neurocognitive disorder due to multiple factors, generalized anxiety diso rder, somatic
symptoms disorder, recurrent major depressive disorder-of-moderate severity, and persistent
predominant pain. She opined that appellant “suffers from the consequences shoulder injury in
2013 and subsequent surgical treatment of this injury as well as limited use of [appellant’s] right
arm as a result of the injury have contributed substantially to the diagnosed conditions mentioned
above.” While appellant’s depression and anxiety were preexisting conditions, Dr. Honn
explained that the severity of these conditions had dramatically increased due to appellant’s pain,
loss of self-esteem after appellant stopped working, and financial worries. She noted that at the
time of appellant’s injury her depression was not disabling. Dr. Honn disagreed with
Dr. Friedman’s opinion that appellant’s diagnosed cognitive disorder had not been aggravated by

3

appellant’s employment injury. In support of her opinion, she explained that appellant’s pain and
distress due to the shoulder injury appeared very distracting for appellant, decreased her capacity
for functional cognitive capacity, and reduced her capacity to be gainfully employed.
By decision dated October 31, 2019, OWCP’s hearing representative found an unresolved
conflict in the medical opinion evidence between Dr. Honn and Dr. Friedman on the issue of
whether appellant’s preexisting depression and anxiety, or cognitive impairment had been
aggravated by the November 21, 2013 work injury. She vacated the March 8, 2019 decision and
remanded the case to OWCP for referral to an impartial medical examiner (IME).
On November 1, 2019 OWCP referred appellant along with the medical record, a SOAF,
and series of questions to Dr. Douglas Robinson, a Board-certified psychiatrist, to resolve the
conflict in the medical opinion evidence between Drs. Honn and Friedman . Dr. Robinson was
asked by OWCP to address whether appellant had sustained any emotional condition that was a
natural and direct result of her accepted employment injury. OWCP also asked him to address
whether her cognitive disorder was an aggravation of a preexisting condition and if so whether this
condition was temporary or permanent.
In a report dated October 13, 2020, Dr. Robinson noted appellant’s complaints of
depression and worsening cognitive loss. Appellant related that she first became aware of her
emotional problems before she retired. According to her she had cognitive problems at the time
of her injury, which she described as lapses of memory such as being unable to recall personal data
or her PIN number. Dr. Robinson diagnosed bereavement, possible history of major depressive
disorder currently resolved, and history of panic disorder, currently in remission. He noted a
history of depression beginning in 1981 when appellant’s brother died. At the date of the
examination, Dr. Robinson found no symptoms of depression, but noted that it was clear that her
bereavement over her daughter’s death, who died in 2011 from breast cancer, was substantial. He
reported appellant’s cognitive functioning appeared normal during his examination and there was
no evidence of any symptoms of depression. Based on his review of the records, Dr. Robinson
noted that her cognitive problems began in 2014 and were aggravated by her anxiety and panic
attacks. He opined that appellant’s panic attacks were unrelated to any pain from her accepted
work injuries because they tend to occur intermittently over the course of an individual’s life.
Thus, Dr. Robinson concluded that her panic attacks were unrelated to her work injury with an
unknown cause, which he opined that was most likely biological.
By decision dated November 16, 2020, OWCP denied appellant’s request to expand the
acceptance of her claim to include consequential conditions of major depression and anxiety, or a
cognitive disorder.

4

LEGAL PRECEDENT
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.5
To establish causal relationship between a condition 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.6 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.7
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The basic rule is that
a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury. 8
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition. 9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as causally related to the accepted
November 2, 2013 employment injury.
OWCP found a conflict in the medical opinion evidence between appellant’s treating
physician, Dr. Honn, who opined that appellant’s preexisting emotional and cognitive disorders
had been aggravated by the November 21, 2013 employment injury, and its second opinion
5

See D.E., Docket No. 20-0936 (issued June 24, 2021); S.L., Docket No. 19-0603 (issued January 28, 2020); T.E.,
Docket No. 18-1595 (issued March 13, 2019); T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo,
55 ECAB 200 (2004).
6

See D.E., id.; S.L., id.; T.E., id.; S.A., Docket No. 18-0399 (issued October 16, 2018).

7

See D.E., id.; S.L., id.; M.M., Docket No. 19-0061 (issued November 21, 2019); P.M., Docket No. 18-0287 (issued
October 11, 2018).
8

B.P., Docket No. 19-1376 (issued January 4, 2021); K.S., Docket No. 17-1583 (issued May 10, 2018).

9

M.O., Docket No. 18-0229 (issued September 23, 2019); J.F., Docket No. 19-0456 (issued July 12, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

5

physician, Dr. Friedman, who opined that appellant’s preexisting major depression and anxiety,
and cognitive disorder were unrelated to her accepted November 21, 2013 employment injury. It
properly referred appellant to Dr. Robinson, serving as the IME, to resolve the conflict, pursuant
to 5 U.S.C. § 8123(a).
In his October 13, 2020 report, Dr. Robinson found that appellant’s major depression and
anxiety, and cognitive disorder were not causally related to the accepted November 21, 2013
employment injury. He noted that her major depressive disorder began at the time of her brother’s
death in 1981. Dr. Robinson reported no current symptoms of depression and normal cognitive
functioning. He reported appellant’s first mention of panic attacks was in 2014. Dr. Robinson
indicated that her cognitive problems began in 2014 and that they had been aggravated by her
anxiety and panic attacks. He opined that appellant’s anxiety and cognitive issues were unrelated
to any pain from her accepted work injuries. Dr. Robinson explained that panic attacks tend to
occur intermittently over the course of an individual’s life and, thus, they were unrelated to her
work injury. He opined that the panic attacks were due to an unknown cause which he opined was
most likely biological.
The Board finds that Dr. Robinson’s impartial medical examination report represents the
special weight of the medical opinion evidence as his opinion is based on a proper factual and
medical history, and his report contained a detailed summary of appellant’s complex medical and
psychiatric history. Dr. Robinson addressed the medical records and provided his examination
findings to reach a reasoned conclusion regarding her employment-related conditions. 10 The
Board, therefore, finds that his opinion is entitled to the special weight accorded to an IME with
regard to the issue of whether acceptance of appellant’s claim should be expanded to include
depression and anxiety, or a cognitive disorder due to her accepted employment injury. 11
Consequently, appellant has not met her burden of proof to expand the accepted conditions of her
claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include additional or consequential conditions of
major depression and anxiety, or a cognitive disorder as a result of her accepted November 21,
2013 employment injury.

10
F.A., Docket No. 20-1652 (issued May 21, 2021); K.V., Docket No. 18-0947 (issued March 4, 2019); Michael S.
Mina, 57 ECAB 379 (2006); Kathryn Haggerty, 45 ECAB 383 (1994) (the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested, and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).
11

F.A., id; W.C., Docket No. 19-1740 (issued June 4, 2020); M.M., Docket No. 16-1655 (issued April 4, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7