United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, FORT WORTH
PERFORMANCE CLUSTER, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 10-1571
Issued: February 16, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from the March 23, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish entitlement to
reimbursement for multilevel cervical surgery.
FACTUAL HISTORY
The Office accepted that on March 5, 2004 appellant, then a 45-year-old mail processor,
sustained a cervical strain, thoracic strain, brachial radiculitis, displacement and degeneration of

the C4 disc, displacement of a lumbar disc and degeneration of the lumbar spine due to
performing his work duties on that date, including writing with a pen in his right hand.1
On June 18, 2004 Dr. Michael LaGrone, an attending Board-certified orthopedic surgeon,
performed an anterior cervical discectomy with spinal cord nerve root decompression at C5-6,
anterior interbody fusion at C5-6 and structural allograft for spinal fusion and anterior plate at
C5-6. The procedures were authorized by the Office.
In an August 13, 2008 report, Dr. Stewart C. Smith, an attending Board-certified
neurosurgeon, diagnosed cervical radicular pain and positive discogram at C3-4 and C4-5 with
degenerative disc disease. Dr. Smith stated:
“At this time, we will recommend a two-level cervical disc arthroplasty including
at C3-4 and C4-5, but if this is not approved, we will perform a hybrid C3-4 disc
arthroplasty with C4-5 fusion. We discussed the risks, indications, options and
benefits with the patient. [Appellant] understands and wishes to move forward
with the surgery.”
A request was made for the Office to authorize the surgery recommended by Dr. Smith.
On August 27, 2008 Dr. Ronald Blum, a Board-certified orthopedic surgeon serving as an Office
medical adviser, stated that he had reviewed the file for the purpose of determining whether
authorization should be provided for the requested surgery. Dr. Blum discussed appellant’s
accepted employment injuries and his course of treatment. He noted that May 12, 2008 magnetic
resonance imaging (MRI) scan testing showed a medium sized central protrusion, minimal
retrolisthesis and mild right-sided uncovertebral joint spurring resulting in mild central canal
stenosis and minimal narrowing of the right neural foramen at C4-5. There was a small central
disc protrusion slightly indenting the ventral surface of the cord without evidence of cord
contusion or myelomalacia and no foraminal compromise at C3-4. Dr. Blum noted that there
was evidence of a previous fusion at C5-6 and a minimal disc bulge at C6-7 without canal or
foraminal stenosis. Regarding the nature of the request for surgery, Dr. Blum stated, “Because
of continued neck and upper extremity pain, Dr. Smith has recommended two-level disc
arthroplasty, but if this is not approved, he recommends a hybrid procedure of fusion of C4-5 and
arthroplasty of C3-4.” Dr. Blum concluded that the surgery should not be authorized by
explaining:
“The [Food and Drug Administration] has approved disc replacement device for
the cervical spine. It is only approved for use in cases where there is skeletal
maturity and there is evidence of degenerative disc disease at one level. There is
evidence of multilevel degenerative disease in this case. As such the
recommended procedure/procedures would constitute an off labeled use of the
device. An off labeled use of the device cannot be authorized by the [Department
of Labor].”

1

Appellant also has a number of accepted work injuries (including bilateral carpal tunnel syndrome and right
elbow contusion) that are not the subject of the present appeal.

2

In a September 5, 2008 decision, the Office denied authorization for appellant to have the
multilevel surgery recommended by Dr. Smith. It found that the August 27, 2008 report of
Dr. Blum showed that the requested surgery should not be authorized.
In a November 14, 2008 letter, appellant requested reconsideration of the Office’s
September 5, 2008 denial of his request for authorization of surgery.2 He submitted a report of
July 11, 2008 discogram testing at C3-4, C4-5 and C6-7. The testing showed positive
concordant painful discs at C3-4 and C4-5 and a nonpainful, nonconcordant disc at C7. On
April 1, 2009 appellant had cervical surgery which was not authorized by the Office. The
surgery included anterior cervical discectomy at C3-4 and C4-5 and anterior cervical arthroplasty
utilizing Syntes ProDisc-C at C3-4 and C4-5.
In a July 8, 2009 decision, the Office affirmed its September 5, 2008 decision denying
appellant’s request for authorization of multilevel cervical surgery. It found that the weight of
the medical opinion regarding this matter continued to rest with the August 27, 2008 report of
Dr. Blum.
In a July 14, 2009 letter, appellant requested reconsideration of the Office’s denial of his
request for authorization of multilevel cervical surgery. He expressed his belief that the Office
had in fact approved the surgery that Dr. Smith performed on April 1, 2009 and requested
reimbursement for this surgery. Appellant asserted that the type of surgery performed on
April 1, 2009 was approved by the Food and Drug Administration.3
On September 3, 2009 Dr. Blum noted that appellant had surgical treatment on April 1,
2009 consisting of anterior cervical discectomy at C3-4 and C4-5 and anterior cervical
arthroplasty utilizing Synthes ProDisc-C at C3-4 and C4-5. He stated:
“The claimant has had disc replacement arthroplasty at C3-4 and C4-5. The
[Food and Drug Administration] approval letter dated December 17, 2007 states
‘the ProDisc-C Total Disc Replacement is intended to be used in skeletally mature
patients (people who have stopped growing) for reconstruction of the disc from
C3-7 following removal of the disc at one level for intractable symptomatic
cervical disc disease (SCDD), a condition that results from a diseased or bulging
disc.’ The letter goes on to say ‘the ProDisc-C Total Disc Replacement should
not be implanted in patients with an active injection, allergy to any device
materials, osteoporosis, marked cervical instability, severe spondylosis, clinically
compromised vertebral bodies at any level to be treated and SCDD at more than
one level.’ It is my opinion that this statement limits the use of the device to one
level and use at multiple levels constitutes an off labeled use. It is my
understanding the [Department of Labor] is not allowed to authorize off labeled

2

In later statements, appellant indicated that his private insurer had approved the surgery recommended by
Dr. Smith.
3

Appellant submitted June 2009 diagnostic testing results which showed normal cervical spine alignment from
C1 to C7.

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usage of devices. Based on this, it is my recommendation that authorization not
be given for the above-described surgical procedure dated April 1, 2009.”
In a September 21, 2009 decision, the Office affirmed its July 8, 2009 decision indicating
that the April 1, 2009 surgery had not been approved and noting that Dr. Blum had stated that the
type of surgery recommended by Dr. Smith was not approved by the Food and Drug
Administration.
On February 2, 2010 appellant requested reconsideration of the Office’s denial of his
request for reimbursement for the surgery he underwent on April 1, 2009. He submitted a
September 11, 2009 report in which Dr. Smith stated that he was doing well after his April 1,
2009 surgery.
In a March 23, 2010 decision, the Office affirmed its September 21, 2009 decision.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act states in pertinent part:
“The United States shall furnish to an employee who is injured while in the performance of duty,
the services, appliances, and supplies prescribed or recommended by a qualified physician, which
the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of the monthly compensation.”4 In order to be entitled to
reimbursement of medical expenses, appellant has the burden of establishing that the expenditures
were incurred for treatment of the effects of an employment-related injury or condition.5 Proof of
causal relationship in a case such as this must include supporting rationalized medical evidence.6
ANALYSIS
The Office accepted that on March 5, 2004 appellant sustained a cervical strain, thoracic
strain, brachial radiculitis, displacement and degeneration of the C4 disc, displacement of a
lumbar disc and degeneration of the lumbar spine due to performing his work duties on that date.
On June 18, 2004 he underwent authorized surgery, including anterior cervical discectomy with
spinal cord nerve root decompression at C5-6, anterior interbody fusion at C5-6 and structural
allograft for spinal fusion and anterior plate at C5-6.
In an August 13, 2008 report, Dr. Smith, an attending Board-certified neurosurgeon,
recommend a two-level cervical disc arthroplasty including at C3-4 and C4-5, but noted that if
this procedure was not approved he would perform a hybrid C3-4 disc arthroplasty with C4-5
fusion. A request was made for the Office to authorize the surgery recommended by Dr. Smith.
The Office denied appellant’s request for authorization for the recommended surgery and on
April 1, 2009 Dr. Smith performed cervical surgery which was not authorized by the Office,
4

5 U.S.C. § 8103.

5

Bertha L. Arnold, 38 ECAB 282, 284 (1986).

6

Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E. Benton, 15 ECAB 48, 49 (1963).

4

including anterior cervical discectomy at C3-4 and C4-5 and anterior cervical arthroplasty
utilizing Syntes ProDisc-C at C3-4 and C4-5.
The Board finds that appellant did not meet his burden of proof to establish entitlement to
reimbursement for the multilevel cervical surgery performed on April 1, 2009. Appellant did not
present sufficient medical evidence to establish entitlement to such reimbursement. The Office
acted within its discretion to approve or disapprove medical benefits, including surgery, when it
found that the weight of the evidence regarding this matter rested with the opinion of Dr. Blum, a
Board-certified orthopedic surgeon who served as an Office medical adviser.
In reports dated August 27, 2008 and September 3, 2009, Dr. Blum explained that the
multilevel cervical surgery using Synthes ProDisc-C recommended by Dr. Smith was only
approved by the Food and Drug Administration for cases where there is skeletal maturity and
there is evidence of degenerative disc disease at one level. He noted that there was evidence of
multilevel degenerative disease in appellant’s case. Therefore, the recommended surgical
procedures would constitute an off-labeled use of a surgical device. Dr. Blum stated that an offlabeled use of a surgical device could not be authorized by the Department of Labor.
Although Dr. Smith recommended the multilevel cervical surgery that he performed on
April 1, 2009, he did not provide any explanation why only this procedure would be necessary to
treat appellant’s accepted work conditions. On appeal, appellant asserted that the type of surgery
performed on April 1, 2009 was approved by the Food and Drug Administration, but he did not
substantiate his assertion.7 Under the above-described circumstances, the Office did not abuse
its discretion by denying appellant’s request for authorization before the multilevel cervical
surgery was performed or his request for reimbursement after it was performed.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
reimbursement for multilevel cervical surgery.

7

On appeal, appellant also suggested that the surgery should have been approved because his private insurer
approved it. He did not explain why the decision of his private insurer would govern the decision-making process of
the Office.

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ORDER
IT IS HEREBY ORDERED THAT the March 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
DEPARTMENT OF TRANPORTATION
FEDERAL AVIATION ADMINISTRATION,
Phoenix, AZ, Employer
__________________________________________

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

Docket No. 08-849
Issued: June 23, 2009

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 28, 2008 appellant filed a timely appeal from the February 20 and December 13,
2007 decisions of the Office of Workers’ Compensation Programs, which denied his emotional
condition claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On August 14, 2006 appellant, a 28-year-old air traffic controller, filed a traumatic injury
claim alleging that he sustained an emotional condition on August 10, 2006 when Harold Sharp,

manager of air traffic control, made a death threat against him.1 At the time of the threat, he was
taking his final break of the day with three other coworkers. Appellant stopped work that day
and did not return.2 The employing establishment controverted the claim.
On August 15, 2006 Gary Mulzyn, a coworker, noted that he was working his regular
shift when he observed Mr. Sharp become visibly angry and engage appellant in a heated
exchange of words. As part of the exchange, appellant responded to Mr. Sharp by stating that he
just made a death threat: “Prior to [appellant’s] response, I heard [Mr. Sharp] state that
[appellant] was going to see somebody real soon.”
On August 31, 2006 Robin Smuda, appellant’s supervisor, stated that appellant was
located off premises in a break room at Cutter Aviation where he was unable to be recalled.
Appellant had not been granted permission to be off premises and was directed by Mr. Sharp,
who had gone to Cutter Aviation, to return to the control tower until the end of his shift. The
supervisor alleged that appellant became antagonistic and verbally challenged Mr. Sharp, telling
him that a call to the employing establishment hotline would be made. After Mr. Sharp
responded, appellant told the manager that he would call the police as he perceived that
Mr. Sharp made a death threat. Mr. Smuda noted that this encounter took place while appellant
was off premises and being insubordinate. Approximately 25 minutes after he finished his shift,
appellant came back into the tower and confronted Mr. Sharp in an aggressive manner and
demanded that he go talk to a police officer who appellant had summoned to arrest him. When
Mr. Sharp refused, appellant indicated that he would escort the police officer to the tower. He
became more agitated and belligerent when Mr. Sharp told him he did not have to talk to the
police officer. Mr. Smuda noted that this created a commotion which distracted the three
controllers on duty.
On November 2, 2006 appellant, through counsel, noted that Mr. Smuda was the
operations supervisor for 14 control specialists and that his superior was Mr. Sharp, the air traffic
manager. He described an April 21, 2006 incident as “background only,” noting that no medical
care was sought.3 At 1:10 p.m. on August 10, 2006 appellant took his final break in another
building with three other employees. He contended that this practice was acceptable and
customary and that the television at the employing establishment facility was broken. Mr. Sharp
came to the Cutter Aviation lounge, demanding that the employees get back to work. Allegedly,
he repeatedly referred to appellant as “little boy” and continued “harping on it even though
[appellant] was on his way back to the tower.” Appellant said, “Jesus Christ!” at which point
1

Appellant subsequently requested that the Office adjudicate his claim as an occupational disease as he attributed
his emotional condition to work factors occurring over more than one work shift. He referred to a prior claim,
File No. xxxxxx821, in which the Office accepted that he sustained an aggravation of a low back strain after being
struck in the back by his supervisor on September 2, 2005.
2

The record reflects that on October 2, 2007 appellant was removed from his position due to unavailability for
duty.
3

Appellant alleged that on April 21, 2006 he took over for Mr. Smuda who had been temporarily working while
another employee was on break. He noted two airplanes that were on a collision course and notified the pilot of the
smaller plane before warning the other pilot. The pilot of the larger plane demanded, by radio, to make a complaint
to his supervisor about the incident. Appellant alleged that Mr. Smuda heard the complaint and began yelling and
punching his fist into his other hand while looking at him.

2

Mr. Sharp said: “You like Jesus? You will be seeing Jesus soon.” Appellant interpreted this as
a death threat and contacted the police.
On November 13, 2006 Warren J. Meehan, district manager, stated that appellant was
with other employees at an unauthorized location during a break. Appellant became belligerent
when questioned by management and all the employees were told to return to work. Mr. Meehan
advised that Mr. Sharp was interviewed by the employing establishment security and, in
response to appellant’s threat to call the hotline, had stated, “I don’t care if you call Jesus or your
mother. Get back to the facility now.” He reiterated that appellant was away from his official
duty station without permission or the ability to be recalled.
In a February 20, 2007 decision, the Office denied appellant’s claim. It found that
appellant was confronted by Mr. Sharp at an off-site location and directed to return to work. The
Office found that the collective bargaining agreement did not support appellant’s contention that
controllers were entitled to a break every 90 minutes; rather, controllers were not required to
spend more than two hours performing operation duties without a break. However, the break
was to be in a nonoperational area. Therefore, appellant was not entitled to watch TV in a
building maintained by a private company. Further, the Office found that appellant did not
establish that Mr. Sharp made a death threat against him on August 10, 2006. It was determined
that there was no evidence of error or abuse by the employer in carrying out any administrative
actions.
By letter dated July 11, 2007, appellant, through his attorney, requested reconsideration.
He submitted an affidavit filed in connection with an Equal Employment Opportunity (EEO)
complaint against the employing establishment. Appellant addressed the April 21, 2006 near
miss incident in the tower, contending that Mr. Smuda became violent against him, which
constituted discrimination. He noted that he informed an EEO office that Mr. Smuda was
discriminating against him based on age as he was the youngest employee; however, the
counselor encouraged him to simply claim reprisal for protected activities. Appellant stated that
he reported this incident to Mr. Sharp, but that no disciplinary action was taken. He alleged that,
at a May 5, 2006 meeting, Mr. Sharp stated that he was upset at appellant for filing an EEO
complaint and “implied that I must drop the complaint or face retaliatory consequences.”
Appellant addressed his work schedule and that of Mr. Smuda. As to the incident on August 10,
2008, he contended that Mr. Sharp “improperly ordered everyone to go back to the tower.”
Appellant alleged that Mr. Sharp began a stream of abusive comments and called him a “little
boy.” On the way back to the tower, as the manager continued to berate him in front of the other
employees, appellant said, “Jesus Christ!” and the manager responded, “You like Jesus? You’ll
be seeing Jesus very soon.” Appellant reiterated that he interpreted this comment as a death
threat and contacted the police.
In affidavits dated November 6 and December 5, 2006, Mr. Sharp noted that appellant
never made any requests not to work with Mr. Smuda and had the opportunity to bid his set days
off under the bargaining agreement. He noted that there were 17 controllers and that Mr. Smuda
was presently the only supervisor.4 Therefore, it was inevitable that appellant would work with
4

Mr. Sharp and Mr. Smuda noted that another supervisor had become incapacitated due to a medical condition.

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Mr. Smuda under the standard rotation. Mr. Sharp advised that he conducted an investigation
into the April 21, 2006 incident and that no one corroborated appellant’s allegations concerning
Mr. Smuda’s behavior. However, on June 12, 2006, he changed appellant’s days off to alleviate
the possibility of further confrontations or continued disruptions to operations at the facility.
Appellant did not come to him concerning any complaints. At the May 5, 2006 meeting,
Mr. Sharp advised appellant as to the chain of command and grievance process. He denied ever
berating appellant.
Mr. Sharp disputed appellant’s version of the August 10, 2006 incident. Mr. Smuda had
assigned appellant controller in charge (CIC) duties and responsibilities, leaving a minimum of
three operational positions appropriately staffed. Mr. Sharp and Mr. Smuda were overseeing
employee training that day. Appellant was notified that two of the four afternoon controllers that
were due in at 1:00 p.m. were assigned to undergo training at 1:05 p.m. In spite of this, he
authorized four employees, including himself, to take a 40-minute break, leaving only two
operational positions staffed. Mr. Sharp stated that this violated facility policy as it presented a
potential derogation to safety. When he was made aware of this, he stopped training to
investigate and discovered that the four controllers were not in the authorized break room and
management had not been notified of their whereabouts. During this time, with only two
operational positions open, a potentially disastrous situation gave rise to an immediate call back.
Since the whereabouts of the four controllers were unknown, Mr. Smuda went to assist the
controllers in the tower. Mr. Sharp noted that leaving the facility during breaks was not
prohibited if proper approval was obtained from management. However, as CIC, appellant failed
to brief the relieving CIC of the whereabouts of those he authorized to be on break and, after
relinquishing such duties, failed to obtain approval to leave the facility. Mr. Sharp concluded
that the entire situation would not have occurred had appellant followed agency policies and
protocol.
Mr. Sharp subsequently located appellant and the other coworkers off the premises in the
break room of a privately owned company next door. An employee on break was subject to
immediate recall, which meant that he must be at the facility in order to hear the intercom system
to be reached immediately. Mr. Sharp advised that it was his responsibility to ensure proper
staffing and personnel accountability and that appellant had not obtained permission to be off
premises. He noted that appellant immediately started challenging his authority and told him to
chill out. Mr. Sharp responded that appellant should stop acting like a little boy. Appellant then
threatened to make a call to the employing establishment hotline. Mr. Sharp stated that he did
not care who appellant called and that he needed to be at the facility until the end of his shift.
Appellant then threatened to call the police.
On November 14, 2006 Mr. Smuda denied shaking his fist at appellant or yelling during
the April 21, 2006 incident. He acknowledged that he may have spoken loudly to overcome
noise from the runway and overhead air conditioning unit.5

5

Mr. Smuda addressed the September 2005 incident, noting that he touched appellant’s lower back to get his
attention after two or three attempts.

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Appellant also submitted statements from John Novak, Earl T. Slocum and Gary M.
Murzyn, his coworkers.6 Of note, Mr. Murzyn stated:
“On August 10, 2006 at 12:30 p.m. I was assigned security training in the
Air Traffic office with the supervisor, Mr. Smuda, which ended at approximately
12:55 p.m. Mr. Smuda then showed me photos of the new control tower and I left
the office at approximately 1:05 p.m. I then walked to Cutter Aviation and
phoned the tower while using the pilot’s lounge. [Appellant] answered the tower
phone as he was the Controller-In-Charge. I told [him] that my training in the Air
Traffic office was complete and asked if he needed me in the tower. [Appellant]
stated that he did not need me and I told [him] that I would be at Cutter Aviation
if he needed me. I began work at 5:45 a.m. that morning and it was standard and
common practice … to take a break from approximately 1:00 p.m. until the end of
our shift, which was 1:45 p.m.”
On October 30, 2007 Mr. Smuda noted that he had reviewed the statements of appellant
and the other employees. He reiterated that breaks were not authorized outside of the employing
establishment facility without prior approval as air traffic control specialists were subject to
immediate recall. Mr. Smuda advised that neither Mr. Sharp nor he had authorized appellant to
be off the premises at the Cutter Aviation facility. He also noted that the managers were not
aware that appellant and the other controllers were not in the facility until after having made a
general page to recall controllers. Mr. Smuda stated that it “was well known that breaks outside
of the facility were not authorized without management approval.” He submitted a copy of the
employing establishment rules regarding watch supervision and breaks.7
By decision dated December 13, 2007, the Office denied modification of the February 20,
2007 decision.
LEGAL PRECEDENT
Congress, in providing a compensation program for federal employees, did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability, does
not attach merely upon the existence of an employee employer relationship. Instead, Congress
provided for the payment of compensation for personal injuries sustained while in the
performance of duty.8 The phrase “while in the performance of duty” has been interpreted by the
6

Each employee contended that taking a break at the Cutter Aviation facility break room was authorized and
denied being informed that leaving the premises during breaks was prohibited. Mr. Novak and Mr. Slocum did not
overhear what Mr. Sharp stated to appellant. Mr. Murzyn noted that in response to appellant stating, “Jesus, give me
a break,” Mr. Sharp stated that appellant would “be seeing Jesus real soon.”
7

Mr. Smuda submitted employing establishment materials pertaining to watch supervision assignments.
Personnel performing such duties are responsible for knowing the whereabouts of employees to ensure their
availability. If a supervisor or CIC leaves the operational area or engaged in an activity which would preclude such
duties, another qualified person must be designated to the watch.
8

See 5 U.S.C. § 8102(a). See also Howard M. Faverman, 57 ECAB 151, 154 (2005); Kathryne Lyons, 49 ECAB
295 (1998).

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Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”9 In addressing this issue, the Board has stated:
“In the compensation field, to occur in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in his or her master’s business; (2) at a place where he or she may
reasonably be expected to be in connection with the employment; and (3) while
he or she was reasonably fulfilling the duties of his or her employment or engaged
in doing something incidental thereto.”10
In determining whether an injury occurs in a place where the employee may reasonably
be or constitutes a deviation from the course of employment, the Board will focus on the nature
of the activity in which the employee was engaged and whether it is reasonably incidental to the
employee’s work assignment or represented such a departure from the work assignment that the
employee becomes engaged in personal activities unrelated to his or her employment.11
ANALYSIS
On August 10, 2006 appellant was assigned to CIC watch duties by his supervisor,
Mr. Smuda. At approximately 1:10 p.m. he was contacted by Mr. Mulzyn, who was on a break
at Cutter Aviation. Appellant advised Mr. Mulzyn that his services in the tower were not
required. At some point thereafter, he departed his assignment as CIC, leaving two controllers in
the tower. Appellant joined several coworkers off premises at the Cutter Aviation lounge to
watch television.
The Board finds that, by going off premises to the Cutter Aviation facility, appellant
deviated from his employment. The evidence reflects that appellant received the CIC assignment
from his supervisor and was left with two other controllers in the tower. Mr. Smuda and
Mr. Sharp noted that they were engaged in overseeing the training of controllers who were
ending their shift and those who were to soon commence work. This was confirmed by
Mr. Murzyn, who stated that he was in training with Mr. Smuda until 12:55 p.m., before he left
the premises to go to Cutter Aviation to watch television. The record establishes that appellant
had fixed hours and place for work on the premises of the employing establishment facility.
When Mr. Sharp learned of his absence from the tower, he directed Mr. Smuda to assist the two
controllers on duty and made a general page to recall the controllers due to a possible fly over
situation. However, they were not at the employing establishment facility break room.
Mr. Sharp subsequently went to the Cutter Aviation facility and directed appellant to return to his
duties at the tower until the end of his work shift.
The argument between Mr. Sharp and appellant took place off premises after appellant
had deviated from duty. His presence at Cutter Aviation was not expected or authorized by
9

See Robert T. Romans, 53 ECAB 620, 621-22 (2002); Robert W. Walulis, 51 ECAB 122, 123 (1999).

10

See Vincent A. Rosenquist, 54 ECAB 166, 168 (2002); James E. Chadden, Sr., 40 ECAB 312 (1988).

11

See Bradford N. Reed, 56 ECAB 428 (2005).

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management nor was he engaged in any activities reasonably incidental to his employment as a
controller. Appellant was not in the performance of duty. He contends that his break was
compensable under the personal comfort doctrine. Larson addresses a close relationship between
the deviation doctrine and personal comfort doctrine in those cases where the smallness of the
deviation is immaterial.12 He notes that there are “insubstantial” deviations of momentary
diversion that, if undertaken by an inside employee working under fixed time and place
limitation, would be compensable under the personal comfort doctrine.13 At the time of the
argument with Mr. Sharp, appellant was located off premises, away from his duties as an air
traffic controller subject to recall and not engaged in any activity that can be considered as
reasonably incidental to his employment. Moreover, the employer provided an employee break
room on the premises in order that the controllers would be close by in case of any emergency.
The Board finds that his visit to the Cutter Aviation facility cannot be characterized as coming
within the personal comfort doctrine.14 While appellant may have been entitled to a break from
his duties, he did not obtain prior approval from management to leave the employing
establishment facility. His deviation from the premises is not “immaterial.”
In Roma A. Mortenson-Kindschi,15 the employee sustained injury off premises where she
fell on ice in a parking lot next to her office while taking a smoke break. The injury was found
compensable as generally related to personal comfort. She was on an authorized but
unscheduled break that a supervisor noted was traditionally allowed and for which there was no
express prohibition.16 In the present case, the evidence of record establishes that the policy of
the employing establishment was to allow employees to take breaks from work on the premises
in the break room or, if prior approval was obtained, off premises. Appellant’s supervisor
advised that breaks were not authorized outside of the employing establishment facility without
prior approval as the controllers were subject to immediate recall. Mr. Sharp and Mr. Smuda
stated that appellant had not been authorized to take a break off premises. The distinguishing
factor in this case is that appellant’s off-premises activities were neither accepted nor approved
12

See David P. Sawchuk, 57 ECAB 316 (2006); Janet M. Abner, 53 ECAB 275 (2002), citing A. Larson, The
Law of Workers’ Compensation, Vol. 1, § 19.63.
13

Actions likened to incidental acts, such as using a toilet, drinking coffee or similar beverage or eating a snack
during a recognized break in the daily work hours, are generally recognized as personal ministrations that do not
take the employee out of the course of employment. See Barbara D. Heavener, 53 ECAB 142, 146 (2001).
14

Even if appellant was on the premises at the time of his argument with Mr. Sharp, the Board notes that the
evidence of record does not establish that a death threat was made. Compare, Gregory N. Waite, 46 ECAB 662
(1995) and Richard L. Harris, 02-152 (issued May 2, 2002) with Elbert V. Brooks, Docket No. 03-1512 (issued
August 14, 2003) and Docket No. 00-772 (issued January 2, 2002). Although the Board has recognized the
compensability of verbal altercations, this does not imply that every statement uttered in the workplace will give rise
to compensability. See John M. Hagewood, 56 ECAB 479 (2005); Cyndia R. Harrell, 55 ECAB 522 (2004).
15

57 ECAB 418 (2006).

16

Compare Helen L. Gunderson, 7 ECAB 288 (1954), reaff’d on recon., 7 ECAB 707 (1955) (the employee was
injured off premises while on her way to get coffee on her morning break; the Board found a compensable injury,
noting that coffee was not available on the premises and that the employer had knowledge and consented to the
practice) and Harris Cohen, 8 ECAB 457 (1955) (the employee sustained injury while returning to the premises
from getting coffee; the Board held the injury was not sustained in the performance of duty as the employer had an
established rule that did not allow employees to leave the premises during rest, coffee or relief breaks).

7

by his employer and were not in accordance with any generally accepted past practice.17
Appellant’s injury does not come within the personal comfort doctrine.
Appellant also attributed his emotional condition to an incident on April 21, 2006, when
following a near-miss incident, Mr. Smuda became violent against him. He also contended that
his supervisor had discriminated against him. Appellant stated that his supervisor heard a
complaint from a pilot and began yelling and punching his fist into his hand while looking at
him. He has not submitted sufficient evidence to establish that the actions of Mr. Smuda were
either violent in nature or a form of discrimination directed against him. On November 2, 2006
appellant described this incident as “background only,” indicating that no medical care was
sought. Mr. Smuda denied ever shaking his fist or yelling at appellant on that day. Appellant
stated that he brought this to the attention of Mr. Sharp, but no action was taken. However,
Mr. Sharp stated that he investigated the incident and that no one confirmed appellant’s
allegations.18 The evidence of record is not sufficient to establish this as a compensable
employment factor.
On May 5, 2006 appellant met with Mr. Sharp. He alleged that the air traffic manager
was upset, berated him and stated that appellant would be retaliated against if he did not drop the
EEO complaint. Mr. Sharp noted meeting with appellant and advising him as to the grievance
process and to follow the chain of command. He denied berating appellant or threatening
retaliation. Again, the evidence of record does not substantiate appellant’s contentions so as to
establish a compensable employment factor.19
CONCLUSION
The Board finds that appellant did not sustain an emotional condition in the performance
of duty.20

17

In contrast, Mr. Murzyn noted that he called appellant as the CIC to inquire as to whether he was needed in the
tower and, when advised that his services were not required, stated that he would be located at Cutter Aviation.
18

The statements from appellant’s coworkers did not address this allegation.

19

To the extent appellant contends that his emotional condition is related to the September 2, 2005 incident, he
may pursue this under that claim number.
20

As appellant has not established any compensable employment factors, the Board will not address the medical
evidence. See Lori A. Facey, 55 ECAB 217 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the December 13, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2009
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
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
TINKER AIR FORCE BASE, OK, Employer
__________________________________________

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

Docket No. 21-1267
Issued: February 1, 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 August 19, 2021 appellant filed a timely appeal from a May 12, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days has elapsed
from the last merit decision dated May 28, 2020 to the filing of this appeal, pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

The Board notes that appellant’s Application for Review (AB-1 Form) also indicates that she is a ppealing from a
purported March 30, 2019 OWCP decision. The case record, however, does not contain a final adverse decision of
that date. The most recent final adverse decision of OWCP is dated May 12, 2021.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 22, 2018 appellant, then a 57-year-old human resources specialist, filed an
occupational disease claim (Form CA-2) alleging that she was diagnosed as having scabies from
her neck to her buttocks in May 2016 and having Ekbom’s syndrome in December 2017 as a result
of her exposure to a coworker’s daughter who had scabies. She noted that she first became aware
of her conditions on May 26, 2016 and realized their relationship to her federal employment on
May 26, 2016. Appellant stopped work on January 8, 2018.
In support of her claim, appellant submitted factual and medical evidence.
In a May 1, 2018 memorandum, the employing establishment controverted the claim,
contending, that appellant did not establish that she was exposed to an infectious condition while
in the performance of duty and failed to submit medical evidence establishing a diagnosis of
Ekbom’s syndrome by a qualified physician.
OWCP, in a development letter dated May 10, 2018, informed appellant of the deficiencies
in her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a factual questionnaire for her completion. In a separate development letter of
even date, OWCP also requested that the employing establishment provide additional information
concerning appellant’s claim. It afforded both parties 30 days to respond.
On June 1, 2018 appellant responded to OWCP’s development letter. She reiterated her
history of injury and diagnoses of scabies and Ekbom’s syndrome. Appellant claimed that her
conditions had worsened.
OWCP subsequently received narrative statements dated June 6 and 11, 2018 from
appellant’s coworkers, S.S. and R.J.E. They noted that appellant informed them that she had been
bitten around her feet and ankles while sitting in her cubicle at work . Appellant showed them a
tacky strip and a plain white sheet of paper that she had placed at her bare feet in her cubicle, which
had black specs and dots moving around.
OWCP also received medical evidence, including a June 12, 2018 report by Dr. John Ellis,
an attending Board-certified family practitioner. Dr. Ellis noted appellant’s history of injury that
in June 2016 she was exposed to a coworker’s daughter who had scabies. He also noted her history
of medical treatment. Dr. Ellis reviewed medical records, provided examination findings, and
diagnosed scabies, infestation of the skin by human itch mite, Scarpotes scabiel. He opined that
the diagnosed condition was contributed to, aggravated and/or caused by appellant’s employment.
In a June 4, 2018 report, Dr. Erika E. Breedlove, a Board-certified family practitioner,
noted appellant’s history that two years ago she was diagnosed as having scabies for which she
received medical treatment. She diagnosed Ekbom’s delusional parasitosis and advised that
appellant was incapable of performing her work duties due to her diagnosed condition s.
By decision dated March 20, 2019, OWCP denied appellant’s occupational disease claim,
finding that she had not submitted a rationalized medical opinion explaining how her diagnosed
conditions were causally related to the accepted employment factors/exposure.

2

OWCP continued to receive medical evidence, including additional reports by Dr. Ellis. In
a March 26, 2019 report and a June 17, 2019 addendum report to his June 12, 2018 report, Dr. Ellis
reiterated his prior opinion that appellant’s scabies condition was caused by her accepted
employment exposure.
On July 12, 2019 appellant, through then-counsel, requested reconsideration of the
March 20, 2019 decision. Then-counsel contended that Dr. Ellis’ March 26, 2019 report was
rationalized and sufficient to establish causal relationship.
In an October 30, 2019 decision, OWCP denied modification of its March 20, 2019
decision, finding that Dr. Ellis’ reports were insufficient to establish causal relationship between
appellant’s accepted employment exposure and her diagnosed medical conditions.
On March 2, 2020 appellant, through then-counsel, requested reconsideration. Thencounsel reasserted that Dr. Ellis’ March 26 and June 12, 2019 reports were sufficient to establish
causal relationship.
OWCP, by decision dated May 28, 2020, again denied modification of its prior decision,
finding that there was no rationalized medical opinion evidence establishing causal relationship
between appellant’s diagnosed conditions and her accepted employment exposure.
On February 1, 2021 then-counsel, requested reconsideration. He again argued that
Dr. Ellis’ March 26, 2019 report was well rationalized and sufficient to establish that appellant’s
scabies was causally related to her accepted employment exposure. Then-counsel also submitted
additional evidence.
In a July 1, 2020 report, Stephen Johnston, a certified physician assistant, noted appellant’s
diagnoses of somatization disorder, generalized anxiety disorder, and single episode of mild major
depressive disorder. He indicated that her severe physical symptoms and inability to perform her
work duties were related to her May 2016 scabies infestation.
Duplicate copies of the June 8 and 11, 2018 narrative statements from S.S. and R.J.E.,
Dr. Breedlove’s June 4, 2018 report, and Dr. Ellis’ June 12, 2018 and March 26, 2019 reports were
resubmitted.
OWCP also received photographs of appellant’s skin condition.
By decision dated May 12, 2021, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

3

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.4
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law or advance a relevant legal argument not previously considered. While then-counsel repeated
the contention that Dr. Ellis’ March 26, 2019 report was rationalized and established that
appellant’s scabies condition was causally related to the accepted employment exposure, this
argument and Dr. Ellis’ March 26, 2019 report were previously considered by OWCP in its prior
decisions. The Board has held that evidence which repeats or duplicates evidence already in the

3

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
6

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

7

Id. at § 10.608(b); see B.S., Docket No. 20-0761 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

4

case record, has no evidentiary value, and does not constitute a basis for reopening a case .8 For
these reasons, the Board finds that then-counsel’s assertion is insufficient to warrant reopening
appellant’s claim for further review of the merits based on either the first or secon d requirement
under 20 C.F.R. § 10.606(b)(3). 9
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP in support of her reconsideration request under 20 C.F.R.
§ 10.606(b)(3). Appellant submitted a new report dated July 1, 2020 from Mr. Johnston, a certified
physician assistant. The Board finds, however, that submission of this report did not require
reopening appellant’s case for merit review because it has no probative value on the underlying
issue on reconsideration. This report does not constitute competent medical evidence because
physician assistants are not considered physicians as defined under FECA. 10 Therefore, this
evidence is not relevant and is insufficient to require a merit review. 11
Appellant also submitted pictures of her skin. While this evidence is new, it is not relevant
because it was not medical evidence from a physician and did not address the underlying issue on
reconsideration, whether appellant had met her burden of proof to establish that her diagnosed skin
conditions were causally related to the accepted employment exposure. The Board has held that
the submission of evidence that does not address the underlying issue involved does not constitute
a basis for reopening a case. 12 Therefore, these photographs are insufficient to warrant a merit
review.
Appellant resubmitted statements dated June 8 and 11, 2018 from Ms. Sipes and
Mr. Enriquez, respectively, a report dated June 4, 2018 from Dr. Breedlove, and reports dated
June 12, 2018 and March 26, 2019 from Dr. Ellis. As noted above, the Board has held that
evidence that repeats or duplicates evidence already in the case record, has no evidentiary value,
and does not constitute a basis for reopening a case.13 As these statements and reports were
previously considered and reviewed by OWCP in its prior decisions, they do not constitute relevant
and pertinent new evidence. Therefore, this evidence is insufficient to require OWCP to reopen
the claim for consideration of the merits. As appellant did not provide relevant and pertinent new
8
L.G., Docket No. 21-0689 (issued October 25, 2021); P.G., Docket No. 20-1419 (issued September 16, 2021);
F.P., Docket No. 19-1861 (issued April 5, 2021); B.O., Docket No. 20-0156 (issued May 13, 2020); Eugene F. Butler,
36 ECAB 393 (1984).
9

Id.

10

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as d efined by State law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also supra note 5 at Chapter 2.805.3a(1) (January 2013); R.G., Docket No.
19-1889 (issued April 14, 2021) (physician assistants are not physicians under FECA); David P. Sawchuk, 57 ECAB
316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent
to render a medical opinion under FECA).
11

Id.

12

P.G., supra note 8; R.E., Docket No. 21-0172 (issued June 15, 2021); see also Edward Matthew Diekemper; 31
ECAB 224, 225 (1979).
13

Supra note 8.

5

evidence not previously considered by OWCP, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 1, 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

14

P.G., supra note 8; R.E., supra note 12; Susan A. Filkins, 57 ECAB 630 (2006) (when a request for
reconsideration does not meet at least one of the three requirements enumerated under section 10.606(b), OWCP will
deny the request for reconsideration without reopening the case for a review on the merits).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Q.M., Appellant
and
U.S. POSTAL SERVICE, JACKSONVILLE
NETWORK DISTRIBUTION CENTER,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 12-798
Issued: August 15, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 28, 2012 appellant filed a timely appeal from a February 10, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) that denied his claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
December 30, 2011.
On appeal appellant asserts that he mistakenly wrote the date of injury as December 29,
2011 on a medical form.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 30, 2011 appellant, then a 40-year-old mail handler equipment operator,
filed a traumatic injury claim, alleging that he sprained his right shoulder at 11:45 a.m. that day,
while pulling the handle on a wire cage. Jacob D. Jowers, supervisor of distribution operations,
indicated with the check mark “yes,” that the knowledge of the facts of the injury agreed with the
statements of the employee and/or witnesses. However, “challenge” was written on the top of
the claim form, and a note is appended to the claim form stating, “date of injury reported to
agency differs from date the employee reported the [date of injury] to Solantic,” a medical
provider.2 Mr. Jowers also signed a Form CA-16, authorization for medical treatment, on
December 30, 2011 in which he indicated by check mark that necessary medical treatment could
be furnished for the affects of the injury.
On a Solantic Baptist Urgent Care medical form, appellant indicated that “today’s date”
was December 29, 2011. He also indicated that the injury occurred at 11:45 a.m. on
December 29, 2011. In a summary for employer form report dated December 30 2011,
Dr. Amy R. Crowder, Board-certified in family medicine, a physician with Solantic, noted that
appellant arrived at 3:25 p.m. The form indicated that the date of injury was December 29, 2011.
Dr. Crowder diagnosed shoulder strain and advised that appellant could work modified duty with
no lifting greater than 25 pounds continuously and no pushing, pulling or lifting greater than 30
pounds intermittently. A December 30, 2011 duty status report noted December 30, 2011 as the
reported date of injury. On a Florida workers’ compensation form report dated December 30,
2012, Dr. Crowder reported that December 29, 2011 was the date of injury and indicated by
check marks that the injury was work related and that appellant could return to modified duty.
She also completed an attending physician’s report on December 30, 2011 in which she
diagnosed shoulder sprain and indicated by check mark that the diagnosis was employment
related. In a telefax transmittal dated January 3, 2012, “David” with Solantic advised “I can’t
change DOI, as patient declared DOI 12/29/11 on admission injury information.”
By letter dated January 6, 2012, OWCP informed appellant of the type evidence needed
to establish his claim. It noted the discrepancy regarding the date of injury and informed him
that the discrepancy “must be resolved” for further consideration of the claim.
In a December 30, 2011 treatment note that listed the injury date as December 29, 2011,
Dr. Crowder reported a history of present illness, stating that appellant reported that earlier on
December 30, 2011 he felt a sharp pain in his right shoulder when he pulled a tow bar. She
provided physical examination findings, diagnosed shoulder strain and advised that the condition
was work related. In a January 13, 2012 treatment note, Dr. L.D. Atkinson, Board-certified in
occupational medicine, a physician with Solantic, noted an injury date of December 30, 2011.
He advised that appellant was seen in follow-up and had continued right shoulder pain.
Dr. Atkinson diagnosed right shoulder strain and advised that appellant could perform restricted
duty. He also provided a visit summary, a duty status report and a Florida workers’
compensation form, all dated January 13, 2012, in which he indicated that the injury date was
December 30, 2011 and that the diagnosed condition was work related.
2

The written notations do not appear to be in Mr. Jowers’ handwriting.

2

By decision dated February 10, 2012, OWCP denied the claim. It noted the discrepancy
in the reported dates of injury and found that the evidence submitted was not sufficient to
establish that the events occurred as described.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.4 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and her subsequent
course of action. An employee has not met her burden in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.8
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
3

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

4

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

5

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

6

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

7

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

8

Betty J. Smith, 54 ECAB 174 (2002).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The Board finds that the evidence of record supports that an employment incident
occurred on December 30, 2011. OWCP denied the claim on the grounds that there were
inconsistencies regarding the date of injury because appellant stated on his claim form that the
injury occurred at 11:45 a.m. on December 30, 2011, yet on a medical intake form at Solantic
Urgent Care, he recorded a date of injury as December 29, 2011, and this date was memorialized
on additional reports from Solantic. A closer inspection of the medical intake form, however,
shows that appellant listed “today’s date” as December 29, 2011 when clearly he was seen at
Solantic on December 30, 2011. Dr. Crowder, who saw him at 3:25 p.m., reported that he
injured his right shoulder earlier that day. Moreover, Mr. Jowers, supervisor of distribution
operations, signed the claim form which had a date of injury of December 30, 2011. He
indicated that the knowledge of the facts of the injury agreed with the statement of the employee.
While someone appended “challenge” on the top of the claim form, and wrote that the date of
injury reported to the employing establishment differed from that reported to Solantic, these
appended notes were not signed and do not appear to be made by Mr. Jowers. The record does
not contain a letter of challenge from the employing establishment. Mr. Jowers also completed a
CA-16 form authorizing medical treatment, apparently filled out at the same time. He did not
indicate doubt that the claimed condition was employment related on the CA-16 form. The
Board thus finds that the factual evidence is sufficient to establish that appellant experienced an
employment incident on December 30, 2011.10
The Board further finds that the case is not in posture for a decision with regard to
whether the December 30, 2011 work incident caused an injury. As noted, part of an employee’s
burden of proof includes the submission of medical evidence addressing whether the
employment incident caused a personal injury. Here, OWCP has not considered whether the
medical evidence is sufficient to establish the claim and it has also not considered whether,
regardless of the acceptance of the claim, appellant is entitled to reimbursement of medical
expenses pursuant to the CA-16 form issued to him by the employing establishment.11
Accordingly, the case will be remanded to OWCP for appropriate consideration and
development of the medical evidence.12 After such further development deemed necessary,
OWCP shall issue an appropriate merit decision regarding appellant’s claim.

9

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

10

See Betty J. Smith, 54 ECAB 174 (2002).

11

Val D. Wynn, 40 ECAB 666 (1989).

12

See N.W., Docket No. 11-530 (issued November 7, 2011).

4

CONCLUSION
The Board finds that the evidence supports that an employment incident occurred on
December 30, 2011 and that the case must be remanded to OWCP to determine if appellant
sustained an injury or medical condition caused by this incident.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2012 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded to OWCP for proceedings
consistent with this opinion of the Board.
Issued: August 15, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 06-1272
Issued: January 4, 2007

Case Submitted on the Record

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

JURISDICTION
On May 8, 2006 appellant filed a timely appeal of the May 11, 2005 nonmerit decision of
the Office of Workers’ Compensation Programs. The most recent merit decision in the case is
dated March 1, 2004. Because appellant filed his appeal more than a year after the last merit
decision, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not have jurisdiction
over the merits of the claim.
ISSUE
The issue is whether the Office properly denied further merit review of appellant’s claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has been before the Board on two prior occasions.1 Appellant, a 48-year-old
former letter carrier, sustained an employment-related traumatic injury on August 6, 1992, which
1

Docket Nos. 02-809 and 03-2014.

the Office accepted for aggravation of lumbar sprain and lumbar intervertebral disc disorder
(L5-S1) with myelopathy. In a March 1, 2004 decision, the Board affirmed the Office’s denial
of appellant’s claimed recurrence of disability beginning on or about December 15, 1999.
Appellant failed to establish that his recurrence was causally related to his accepted employment
injury. The facts of the case as set forth in the Board’s March 1, 2004 decision are incorporated
herein by reference.2
On January 13, 2005 appellant requested reconsideration before the Office. Appellant
submitted a March 30, 2004 letter from Dr. Nita Rai-Gohel, a Board-certified internist. She
indicated that she had discharged appellant to limited light duty for the period February 1
through April 1, 2000. The only noted limitation was a 10-pound lifting restriction. Appellant
also submitted a February 23, 2000 letter from the employing establishment that indicated that he
would be removed for cause effective March 31, 2000. The stated reason for the proposed
removal was appellant’s failure to meet attendance requirements. By decision dated May 11,
2005, the Office denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act, the Office has the
discretion to reopen a case for review on the merits.3 Section 10.606(b)(2) of Title 20 of the
Code of Federal Regulations provides that the application for reconsideration, including all
supporting documents, must set forth arguments and contain evidence that either: (i) shows that
the Office erroneously applied or interpreted a specific point of law; (ii) advances a relevant
legal argument not previously considered by the Office; or (iii) constitutes relevant and pertinent
new evidence not previously considered by the Office.4 Section 10.608(b) provides that, when
an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
Appellant’s January 13, 2005 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).6

2

Vincent Parker, Docket No. 03-2014 (issued March 1, 2004).

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2) (1999).

5

20 C.F.R. § 10.608(b) (1999).

6

20 C.F.R. § 10.606(b)(2)(i) and (ii) (1999).

2

Appellant also failed to satisfy the third requirement under section 10.606(b)(2). He did
not submit any relevant and pertinent new evidence with his January 13, 2005 request for
reconsideration. The Office denied the recurrence claim based on appellant’s failure to establish
that his disability was causally related to the August 6, 1992 employment injury, and the Board
affirmed the Office’s basis for denial. Therefore, any evidence submitted on reconsideration
must not only be new, but also relevant and pertinent to the issue of causal relationship. The
employing establishment’s February 23, 2000 notice of removal is not “new evidence not
previously considered” by the Office.7 The record includes a copy of the same letter, which the
Office originally received on August 7, 2000. Submitting additional evidence that repeats or
duplicates information already in the record does not constitute a basis for reopening a claim.8
Dr. Rai-Gohel’s March 30, 2004 report, although new evidence, is not pertinent to the issue on
reconsideration. This report merely addresses the physical limitations Dr. Rai-Gohel imposed
when she released appellant to return to work effective February 1, 2000. It does not address the
relevant issue of causal relationship. As there was no relevant and pertinent new evidence for
the Office to consider, appellant is not entitled to a review of the merits of his claim based on the
third requirement under section 10.606(b)(2).9 Because appellant was not entitled to a review of
the merits of his claim pursuant to any of the three requirements under section 10.606(b)(2), the
Office properly denied the January 13, 2005 request for reconsideration.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a review of the
merits of his claim.

7

20 C.F.R. § 10.606(b)(2)(iii) (1999).

8

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

9

20 C.F.R. § 10.606(b)(2)(iii) (1999).

3

ORDER
IT IS HEREBY ORDERED THAT the May 11, 2005 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Chicago, IL, Employer
)
___________________________________________ )
D.C., Appellant

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

Docket No. 06-2029
Issued: January 4, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On September 1, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 17, 2006 finding that she failed to establish
that she sustained an injury as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty.
FACTUAL HISTORY
On March 25, 2006 appellant, then a 44-year-old distribution clerk, filed an occupational
disease claim alleging that on March 22, 2005 she experienced pain in her right wrist which
began shooting to her arm and elbow causing numbness in her fingertips. She alleged that the
more she cased mail, the more it aggravated her wrists, arms and hands. On her Form CA-2,
appellant indicated that her condition was caused or aggravated by her employment. She did not

stop work.1 In a March 24, 2006 statement, appellant repeated her allegations of wrist pain as
she cased mail, her right hand became so painful that she started casing with her left hand to
“compensate” for the right hand.
In a March 10, 2006 disability certificate, Dr. Percy Conrad May, a general practitioner,
advised that appellant was totally incapacitated from March 15 to 20, 2006. The Office also
received a treatment note signed by a nurse, who diagnosed fibromyalgia.
By letter dated May 19, 2006, the Office advised appellant that additional factual and
medical evidence was needed to support her claim. It explained that a physician’s opinion was
crucial to her claim and allotted her 30 days to submit the requested information.
The Office subsequently received a June 13, 2006 magnetic resonance imaging (MRI)
scan of the right wrist. Dr. Michael D. Smith, a Board-certified diagnostic radiologist, opined
that no significant abnormality was present. He also noted that appellant had a cystic collection
and possible mild tenosynovitis of the extensor carp-ulnaris tendon. In a June 14, 2006 MRI
scan of the left wrist, Dr. Steven W. Fitzgerald, a Board-certified diagnostic radiologist, found a
normal articulation of the left wrist with an unremarkable scapholunate ligament and triangular
fibrocartilage complex. He also advised that appellant had mild diffuse extensor tenosynovitis.
By decision dated July 17, 2006, the Office denied appellant’s claim finding that the
medical evidence did not demonstrate that her wrist condition was related to the established
work-related events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
1

Appellant has a prior occupational disease claim for joint pain and depression. This claim was denied by the
Office. Appellant also filed an appeal in conjunction with this claim. In a June 5, 2003 decision, the Board found
that the Office did not abuse its discretion by refusing to reopen appellant’s case for merit review under 5 U.S.C.
§ 8128(a) on the grounds that her application for review was not timely filed and failed to present clear evidence of
error. Docket No. 02-1091 (issued June 5, 2003).
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

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

2

presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by the
claimant.5
ANALYSIS
Appellant has established that she cased mail during the course of her employment as a
clerk. The issue, therefore, is whether the medical evidence establishes that her employment
caused or contributed to her wrist condition. Appellant has submitted insufficient medical
evidence to establish that her wrist condition was caused or aggravated by casing mail at work or
any other specific factors of her federal employment.
Appellant submitted a March 10, 2006 disability certificate from Dr. May; however, he
did not provide a diagnosis or address causal relationship between appellant’s employment and
any disabling condition. Medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.6
Appellant also submitted diagnostic reports dated June 13 and 14, 2006. However, these
reports are insufficient to establish her claim. The physicians did not provide any opinion on the
causal relationship of her wrist condition found on the MRI scans to her employment. Therefore,
these reports have no probative value in establishing causal relationship.7
Appellant also submitted a nurse’s note which contained a diagnosis of fibromyalgia.
However, health care providers such as nurses, acupuncturists, physicians’ assistants and

5

Id.

6

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

7

See id.

3

physical therapists are not physicians under the Act. Thus, their opinions do not constitute
medical evidence and have no weight or probative value.8
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.9
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.10 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no probative, rationalized medical evidence addressing and explaining why
appellant’s wrist condition was caused and/or aggravated by factors of her employment, she has
not met her burden of proof in establishing that she sustained a medical condition in the
performance of duty causally related to factors of employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.

8

See Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
“physician.” See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
9

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

10

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 17, 2006 is affirmed.
Issued: January 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, SACRAMENTO
PERFORMANCE CLUSTER,
West Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1259
Issued: March 15, 2022

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 16, 2021 appellant filed a timely appeal from April 9 and July 21, 2021 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a right foot condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On February 4, 2021 appellant, then a 55-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she began experiencing occasional burning and pain on
1

5 U.S.C. § 8101 et seq.

the side and bottom of her right heel due to factors of her federal employment, including excessive
walking. She explained that approximately two months prior to filing her claim she began
experiencing burning pain in her heel at the end of her workday, which worsened with increased
walking pace. Appellant alleged that she first became aware of her claimed condition and realized
its relation to her federal employment on January 18, 2021. She stopped work on
February 1, 2021.
In a statement dated January 27, 2021, appellant reiterated the details of the pain symptoms
she experienced due to her employment activities, which culminated in November 2020. She
related that, thereafter, she experienced worsened pain in the last two weeks. Appellant asserted
that she did not injure her foot and that the ongoing pain caused her to seek medical treatment.
On January 29, 2021 Dr. Wanda Blaylark, a Board-certified occupational medicine
specialist, diagnosed right plantar fasciitis and indicated that appellant should only perform
stationary work duties through February 5, 2021.
In a February 4, 2021 development letter, OWCP informed appellant of the deficiencies of
her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and provided a questionnaire for her completion. OWCP also requested a narrative medical
report from appellant’s treating physician containing a detailed description of findings and a
diagnosis, explaining how her work activities caused, contributed to, or aggravated her medical
condition. In a separate development letter of even date, it requested that the employing
establishment provide comments from a knowledgeable supervisor regarding the accuracy of her
allegations. OWCP afforded both parties 30 days to respond.
A January 29, 2021 note from Dr. Blaylark recounted appellant’s complaints of pain that
she alleged began two months prior and had worsened in the last two weeks. Dr. Blaylark noted
that appellant’s official work duties required her to constantly walk during her delivery route and
that she indicated brisk walking worsened the pain. She also related that appellant denied any
previous right foot condition and that her condition was a work-related injury. In a medical report
of even date, Dr. Blaylark noted appellant’s diagnosed condition and modified work schedule.
On February 5, 2021 appellant followed up with Dr. Blaylark and advised that she had not
experienced improvement in her symptoms following her medical treatment, but that she can
return to work with modified duties. In a work duty status report of even date, Dr. Blaylark
indicated that appellant was in a temporary alternate work status from February 5 to 22, 2021 and
provided modified duties requiring no more than 20 minutes per hour of standing or walking during
that period.
On February 18, 2021 appellant responded to OWCP’s development questionnaire
explaining that her official duties require her to continuously walk an average of five to six hours
while carrying up to 30 pounds of mail on her delivery route. She further asserted that she did not
experience any foot pain previously and that she began experiencing increased pain by the end of
her delivery route. Appellant also indicated that she did not engage in any sports or physical
activities outside of her federal employment.

2

In a February 22, 2021 note, Dr. Blaylark reported that appellant’s condition had slightly
improved with the prescribed medical treatment; however, she continued to experience significant
discomfort when she walked. In a work duty status report of even date, she indicated that appellant
should continue her current work restrictions until March 15, 2021.
A March 15, 2021 note from Dr. Blaylark noted that appellant had seen improvement from
her medical treatment; however, she indicated that appellant was unable to perform the duties of
her date-of-injury position. In a work duty status report of even date, Dr. Blaylark modified her
work restrictions to a maximum of 30 minutes of prolonged standing or walking until
April 26, 2021.
By decision dated April 9, 2021, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish a right heel condition
causally related to the accepted factors of her federal employment. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
OWCP received a March 25, 2021 note from Dr. Timothy Bernard, a podiatrist, who
opined that appellant’s right plantar fasciitis was aggravated by her prolonged walking and
standing. Dr. Bernard further noted that she did not experience any prior injury or condition of
her right foot before the onset of her current pain.
On April 24, 2021 appellant requested reconsideration of OWCP’s April 9, 2021 decision
and attached additional medical evidence. In a letter of even date, Dr. Blaylark reiterated that her
official duties require her to walk up to 30,000 steps per day on her route and that she did not
experience any prior injuries with her right foot. She opined that appellant’s right heel condition
was causally related to her work activities of prolonged walking and standing.
By decision dated July 21, 2021, OWCP denied modification of its April 9, 2021 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 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

2

Supra note 1.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury. 4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
casually related to the identified employment factors by the claimant.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted a letter from Dr. Blaylark dated April 24, 2021
wherein she opined that prolonged standing and walking of up to 30,000 steps a day as part of
appellant’s official duties as a mail carrier aggravated her right plantar fasciitis. The Board finds
that, while she provides an opinion on causal relationship, her reports are insufficient to meet
appellant’s burden of proof, as she did not provide adequate medical reasoning to explain how
prolonged standing and walking caused or contributed to appellant’s diagnosed medical condition.
The Board has held that medical evidence that does not offer a rationalized medical explanation
regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.9 Thus, Dr. Blaylark’s April 24, 2021 report is insufficient to meet appellant’s burden
of proof.

4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.W., Docket No. 20-0767 (issued January 13, 2021); L.D., Docket No. 19-1301 (issued January 29, 2020); S.C.,
Docket No. 18-1242 (issued March 13, 2019).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

M.E., Docket No. 18-0940 (issued June 11, 2019).

4

Likewise, in a March 25, 2021 medical report from Dr. Bernard, he opined that appellant’s
right plantar fasciitis was aggravated by prolonged walking and standing at work. He noted that,
prior to November 2020, she had no pain or symptoms in her right foot. As noted above, the Board
has held that a medical opinion without adequate rationale is insufficient to establish appellant’s
burden of proof. Moreover, an opinion that a condition is causally related to an employment
incident because the employee was asymptomatic before the injury is insufficient, without
adequate rationale, to establish causal relationship. 10 Therefore, Dr. Bernard’s report is
insufficient to establish appellant’s burden of proof.
The remaining evidence of record includes notes dated January 29 to March 15, 2021 from
Dr. Blaylark where she recounted appellant’s history of injury and medical treatment. Dr. Blaklark
diagnosed right plantar fasciitis and provided work restriction. However, she did not offer an
opinion on causal relationship. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 11 As such, Dr. Blaylark’s remaining reports are of no probative value and are
insufficient to establish appellant’s claim.
As there is no rationalized medical evidence explaining how appellant’s employment duties
caused or aggravated her diagnosed condition, the Board finds that she has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right foot
condition causally related to the factors of her federal employment.

10

See S.D., Docket No. 20-1255 (issued February 3, 2021); F.H., Docket No. 18-1238 (issued January 18, 2019);
J.R., Docket No. 18-0206 (issued October 15, 2018).
11

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the April 9 and July 21, 2021 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: March 15, 2022
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

6