United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF THE NAVY,
WASHINGTON NAVY YARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 17-0819
Issued: April 12, 2018

Case Submitted on the Record

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

JURISDICTION
On February 27, 2016 appellant filed a timely appeal from a November 9, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met her burden of proof to establish that her diagnosed
pulmonary and/or neurological conditions were causally related to her accepted employment
exposure.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 30, 2015 appellant, then a 48-year-old executive secretary, filed an occupational
disease claim (Form CA-2) alleging that she developed breathing problems, headaches, memory
loss, and diarrhea, which arose in the performance of duty on or about May 11, 2015. She first
became aware that her condition was employment related on June 12, 2015 at which time she
reported it to her supervisor. The Form CA-2 indicated that she first received medical treatment
for her claimed condition(s) on June 12, 2015. Appellant explained that the roof of the building
(B-166, Suite 301) where she worked had been under repair, and for about a month there was a
strong odor of tar coming through the overhead ventilation system in her office. She indicated that
management was aware of the uncomfortable odor. Appellant stated that her physician had
prescribed an inhaler for her breathing problems. She stopped work on June 19, 2015.
A June 3, 2015 memorandum from the employing establishment summarized the results of
a May 15, 2015 indoor environmental quality (IEQ) survey regarding “odors coming from the roof
tarring being performed….” The memorandum noted that several employees had reported nausea
and headache beginning at the start of the project. There was also a marked odor of tar and bitumen
upon entering the facility (B-166). The discussion portion of the memorandum indicated that, due
to the low odor threshold of bitumen and coal tar, it was quite probable that employees became
sensitive to the odor as it came through the building. The memorandum further noted that using
hot roof tar can easily cause odor complaints because the odor is strong and can be smelled at very
low concentrations in the air. The recommendations section of the memorandum indicated that if
employees continued to become ill, it could have become necessary to relocate them temporarily
while the work continues.
OWCP also received material safety data sheets regarding various roofing materials,
including industrial and roofing asphalts.
A June 29, 2015 report from Kaiser Permanente titled, “OPL Referral Form Verification
of Treatment” indicated there was evidence that appellant’s condition was work related, and
further noted that the injury/illness occurred on or about May 11, 2015.2 The report also noted
that appellant received treatment for her disability/illness on June 12 and 18, 2015, and that she
was evaluated by a neurologist and a pulmonologist on June 22, 2015. Her conditions included
exposure to potentially hazardous chemicals and fumes, exposure to hazardous aromatic
components, headache, chemical pneumonitis/bronchitis, neuralgia, memory loss/cognitive
memory loss, reactive airway disease, and restrictive lung function. Diagnostic testing included a
chest x-ray, pulmonary function studies, and head and chest computerized tomography (CT) scans.
The report indicated there was evidence of restrictive lung changes, reactive airway disease, and
cognitive deficits on neurological testing. It was also noted that appellant’s disability/illness had
kept her from work since June 22, 2015. Both the internist and specialist jointly recommended
that appellant remain out of work for a period of time to aid in her prognosis and recovery.
Additional neurological testing was recommended, as well as a six-month follow up with
Neurology. It was also recommended that, upon returning to work, appellant be transferred to
2

The healthcare provider’s signature was illegible. However, the handwritten printed name beneath the signature
line identified the individual as Hutcheson, Wendy-Ann. The identity of the Kaiser Permanente healthcare provider
was consistent with information included on the June 30, 2015 Form CA-2.

2

another building. The June 29, 2015 report listed appellant’s then-current medications, which
included two prescribed inhalers (QVAR and ProAir).
On July 30, 2015 OWCP requested additional information from both appellant and the
employing establishment. With respect to the latter, it requested information regarding appellant’s
alleged exposure and precautions the employing establishment may have taken to minimize the
effects of the alleged exposure. OWCP similarly asked appellant if she was aware of any
precautionary measures. It also inquired about the extent and duration of her exposure and whether
she had a prior smoking history or a prior history of pulmonary/respiratory conditions.
Additionally, OWCP requested that appellant submit a well-rationalized medical opinion from her
physician, which included specific diagnoses and an explanation of how the work exposure either
caused or contributed to the diagnosed condition(s).
The employing establishment did not respond to OWCP’s July 30, 2015 request for
additional factual information regarding appellant’s claimed exposure.
In an August 24, 2015 statement, appellant indicated, inter alia, that her office was located
on the top floor of a three-story building that was undergoing roof repairs in May 2015. She stated
that she could smell the roofing tar through the overhead vents in her office. There were no
precautionary measures taken. Appellant also noted she never smoked, and she did not have a
prior history of pulmonary/respiratory conditions. She specifically denied any prior history of
allergies, asthma, or bronchitis.
Dr. Wendy-Ann J. Hutchenson, a Board-certified family practitioner, provided an
August 7, 2015 report (OPL Referral Form Verification of Treatment), which reiterated much of
the same information previously reported on June 29, 2015. She noted that there was initial
evidence of restrictive lung changes, but final findings revealed reactive airway disease, as well as
cognitive deficits on neurological testing. Dr. Hutcheson further indicated that appellant had
presented with symptoms and findings associated with an inhalation injury from toxic fumes.3 Her
symptoms included headache, shortness of breath, cough, wheezing, and memory loss.
Dr. Hutcheson indicated that appellant’s preliminary diagnosis was chemical pneumonitis/
bronchitis, and her final diagnosis was reactive airway disease and memory loss/cognitive memory
loss. She further advised that appellant had been disabled since June 22, 2015, and that she could
return to work on September 9, 2015, with the only accommodation being that appellant work at
another building.
By decision dated August 31, 2015, OWCP denied appellant’s claim finding that the
medical evidence of record did not contain a diagnosis in connection with the accepted injury
and/or event(s). It noted that the identity of the author of the various medical reports was unclear
given the illegible signature. Thus, it was unclear whether the reports were authored by a qualified
physician.

3
Dr. Hutcheson referenced appellant’s exposure to toxic fumes at work, which included tar or other chemicals
documented in the material data sheet.

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On September 21, 2015 appellant requested reconsideration. She submitted another
version of the August 7, 2015 medical report, which included a typewritten signature line, below
the actual signature, that identified Wendy-Ann J. Hutcheson, M.D., as the healthcare provider.
By decision dated December 17, 2015, OWCP denied appellant’s request for
reconsideration. It noted that appellant submitted a duplicate copy of the August 7, 2015 medical
report. It determined that this evidence had already been considered and, therefore, appellant had
not established a basis for further merit review.
On January 28, 2016 OWCP received additional medical evidence, which included a
June 12, 2015 chest x-ray, a June 18, 2018 head CT scan, a June 22, 2015 pulmonary function
study, and a June 22, 2015 chest CT scan. The head CT scan revealed no acute intracranial process.
Appellant’s chest x-ray showed no acute cardiopulmonary process, and the chest CT scan revealed
no evidence of interstitial lung disease. The June 22, 2015 pulmonary function study showed
normal flow volume loop, a moderately reduced gas exchange, no obstructive defect, and a
moderate restrictive defect based on lung volumes.
OWCP also received a June 22, 2015 progress note from Dr. Tajender S. Vasu, a Boardcertified internist and pulmonologist.4 Appellant reported that beginning in May 2015 the building
where she worked had undergone repairs. She worked there seven to eight hours per day and was
exposed to chemicals (tar). Appellant also reported that other coworkers had gotten sick. She had
been having headaches for a few weeks, as well as memory issues. Dr. Vasu noted that appellant
was scheduled to see a neurologist later that same day. He also noted that since May 2015
appellant complained of breathing issues, which included shortness of breath, chest discomfort,
and occasional wheezing. Appellant also complained of a dry cough, with occasional phlegm.
Dr. Vasu noted no history of asthma. He also reported that Dr. Hutcheson prescribed albuterol,
which helped appellant’s breathing.5 Dr. Vasu related that appellant never smoked, had no known
allergies, and no history of tuberculosis or exposure to asbestos. Also, there was no family history
of asthma or obstructive sleep apnea. Appellant’s past medical history included hypertension and
morbid obesity. Dr. Vasu reviewed the results of appellant’s June 12, 2015 chest x-ray, as well as
her June 22, 2015 pulmonary function study. He provided a differential diagnosis of restrictive
airway disease (RAD)/asthma. Dr. Vasu also diagnosed morbid obesity. The treatment plan
included QVAR and albuterol. He discussed appellant’s pulmonary function study results with
her, and noted that the restrictive defect and low diffusion capacity (DLCO) could be related to
her weight. Dr. Vasu recommended a high-resolution CT scan of the chest to rule out interstitial
lung disease. He also discussed sleep apnea and noted that appellant did not want to be checked
for the condition.
On August 11, 2016 appellant again requested reconsideration of OWCP’s August 31,
2015 merit decision.

4

Dr. Vasu is also Board-certified in critical care medicine and sleep medicine.

5
Dr. Vasu also noted that, in 2014, another physician, Dr. Mayo, prescribed Singulair, which appellant took for a
week.

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By decision dated November 9, 2016, OWCP modified its prior decision to find that
appellant established a medical diagnosis in connection with the accepted employment exposure.
However, it denied her occupational disease claim because the medical evidence of record failed
to establish causal relationship.
LEGAL PRECEDENT
A claimant seeking benefits under FECA6 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the 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 diagnosed condition is causally
related to the identified employment factors.8
ANALYSIS
It is undisputed that appellant was exposed to fumes on or about May 11, 2015 when the
roof of the building in which she was employed was under repair and a strong odor came through
the overhead ventilation system in her office. However, the Board finds that appellant has not met
her burden of proof to establish that her diagnosed medical conditions were causally related to her
accepted employment exposures.
In support of her claim, appellant submitted medical reports of Dr. Hutcheson who noted
the history of the injury or illness which occurred on or about May 11, 2015. Dr. Hutcheson noted
appellant’s conditions included exposure to potentially hazardous chemicals and fumes, exposure
to hazardous aromatic components, headache, chemical pneumonitis/bronchitis, neuralgia,
memory loss/cognitive memory loss, reactive airway disease, and restrictive lung function. She
noted diagnostic testing included a chest x-ray, pulmonary function studies, and head and chest
computerized tomography (CT) scans and indicated that appellant’s disability/illness had kept her
from work since June 22, 2015. Dr. Hutcheson recommended that appellant remain out of work
for a period of time to aid in her prognosis and recovery, followed by a transfer to another building
6

See supra note 1.

7

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed condition
and the implicated employment factors must be based on a complete factual and medical background. Victor J.
Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and appellant’s specific employment factors. Id.
8

Victor J. Woodhams, id.

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upon her return to work. Additional neurological testing was recommended, as well as a six-month
follow up with Neurology. These reports are found to be insufficient to establish appellant’s claim
as they do not provide an opinion on the cause of appellant’s medical conditions. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.9 Dr. Hutcheson did not
explain how or why exposure to the odors at work would cause or contribute to appellant’s
diagnosed conditions and resultant disability from work. Therefore, these reports are insufficient
to establish appellant’s claim.
Appellant also submitted a progress note of Dr. Vasu dated June 22, 2015. Dr. Vasu noted
a history of the employment exposure, noted her past medical and social history, and findings on
examination. He provided a differential diagnosis of restrictive airway disease (RAD)/asthma and
a diagnosis of morbid obesity. Dr. Vasu’s treatment plan included QVAR and albuterol. He
discussed appellant’s pulmonary function study results with her, and noted that the restrictive
defect and low diffusion capacity (DLCO) could be related to her weight. Dr. Vasu recommended
additional diagnostic testing could be performed. This report is also found to be insufficient to
establish appellant’s claim as it does not provide an opinion on the cause of appellant’s medical
conditions.10 The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.11
Finally, material safety data sheets for roofing materials along with diagnostic testing
results were provided in support of appellant’s claim. Diagnostic studies and material safety data
sheets are of limited probative value as they do not address whether the employment incident
caused any of the diagnosed conditions.12
An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship. Appellant has failed to submit rationalized medical
evidence to meet his burden of proof on causal relationship.
The Board finds that appellant has failed to submit rationalized, probative medical evidence
sufficient to establish that her accepted work exposure caused or aggravated a diagnosed medical
condition.

9

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
10

Id.

11
See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
12
See J.S., Docket No. 17-1039 (issued October 6, 2017); see also T.M., Docket No. 10-440 (issued
October 15, 2010).

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Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
diagnosed pulmonary and/or neurological conditions were causally related to her accepted
employment exposure.
ORDER
IT IS HEREBY ORDERED THAT the November 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1189
Issued: February 22, 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 March 24, 2010 appellant, through counsel, filed a timely appeal of the September 25,
2009 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 sustained an emotional condition in the performance of
duty.
On appeal, counsel contends that statements of employees who had been harassed and
discriminated against by a supervisor at the employing establishment are sufficient to establish
that the same supervisor harassed and discriminated against appellant on the basis of his religion,
ethnic origin, nationality and sex in issuing a letter of warning to him. He further contends that
this evidence establishes that the supervisor’s statement, which the Office relied upon in denying
appellant’s claim, was not truthful.

FACTUAL HISTORY
This case has previously been before the Board. In a July 14, 2009 decision, the Board
set aside the Office’s July 28, 2008 decision, which denied appellant’s request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error.1 The Board found that his January 15, 2008 request for reconsideration of the Office’s
January 17, 2007 decision, which denied modification of its finding that he did not sustain an
emotional condition while in the performance of duty, was timely filed. The Board remanded
the case to the Office for further review under 20 C.F.R. § 10.607(a). The facts and history of
the case as set forth in the prior decision are hereby incorporated.2
On remand, the Office conducted a merit review of appellant’s January 15, 2008 request
for reconsideration. In narrative statements dated December 20, 2004 and February 9 June 16,
2005, appellant contended that, on December 19, 2004, a M. Shah, supervisor, threatened to fire
him. Mr. Shah harassed appellant in demanding that he ask for approval to go to the bathroom,
dictating proper posture for his head while working, forbidding him from communicating with
other employees and constantly observing him by walking past his work area, brushing his back
and entering his letter case brushing his shoulder. Appellant contended that on December 19,
2004 Mr. Shah humiliated him when he loudly responded to his request to go to the bathroom
with a derogatory comment. Other employees were not subjected to such restriction, public
humiliation and ridicule. Appellant witnessed employees walk off the floor for over 45 minutes
without permission from Mr. Shah while he had to always ask permission from him to go to the
bathroom. He contended that Mr. Shah forced him to work in unsafe, hazardous and
nonergonomic conditions and failed to provide him with safety information. On December 21,
2004 Mr. Shah issued a letter of warning to appellant for being in the bathroom too long on
December 20, 2004 and because he was a white Irish American-Catholic male. Appellant
contended that, on that date, Mr. Shah twice admitted to Sharon Tyrell, a union steward, that
appellant was being disciplined based on his religion, national origin, race and sex. He further
contended that Mr. Shah repeatedly ridiculed his work performance by stating that he was the
slowest and worst employee despite his constant work performance. Appellant alleged that
Mr. Shah grossly misrepresented the amount of mail he processed. Mr. Shah admitted to
Ms. Tyrell that appellant did not go to the parking lot without permission. He gave him a pass to
get a stronger pair of reading glasses. Mr. Shah admitted that he gave appellant permission to
use the bathroom on December 20, 2004. He denied that a safety talk took place on that date.
In Equal Employment Opportunity (EEO) Information for Pre-Complaint Counseling
form dated January 25, 2005, appellant alleged that he was subjected to discrimination based on
being a white Irish-American Catholic male regarding the issuance of the December 21, 2004
letter of warning. In a final counseling interview dated April 5, 2005, the employing
1

Docket No. 09-184 (issued July 14, 2009).

2

On January 2, 2005 appellant, then a 47-year-old clerk, filed an occupational disease claim alleging that on
December 20, 2004 he first became aware of his anxiety reaction and realized that this condition was caused by his
federal employment. In a November 7, 2005 decision, the Office denied his claim, finding that he failed to establish
a compensable factor of his employment. In a January 17, 2007 decision, it denied modification of the November 7,
2005 decision, again finding that appellant failed to establish a compensable employment factor.

2

establishment advised appellant that Mr. Shah denied his allegation of discrimination. The
December 21, 2004 letter of warning was issued because he left his work assignment on
December 20, 2004 for 35 minutes and went to a parking lot without permission. Appellant was
charged with unauthorized absence from the workroom floor. The letter of warning was
modified to a discussion.
In a December 22, 2004 letter, Timothy Neilan, director of the union, stated that he had
been informed that on December 20, 2004 Mr. Shah related more than once that appellant was
disciplined because he was a white Irish-American Catholic. He requested that the employing
establishment immediately remove appellant from his supervisory position based on his
comment.
In a May 4, 2005 narrative statement, Veronica Morey, an employee, related that she had
a problem with the way Mr. Shah allowed a mail handler to decide who gets what type of mail.
She stated that such action created a hostile work environment. Ms. Morey contended that
Mr. Shah’s attitude towards women was disrespectful as he treated them like second-class
citizens. Mr. Shah also showed favoritism by allowing certain people to do whatever they
wanted while others had to toe the line.
In a May 5, 2005 narrative statement, Loretta P. Allen, an employee, contended that
Mr. Shah’s new seating arrangement did not show any respect towards employees. Also, on
May 5, 2005 Ametria A. Jones, an employee, contended that the new seating arrangement caused
a hostile work environment. Mr. Shah harassed and disrespected her by always staring at her and
claiming that she was not working. Ms. Jones believed that he did not want women to speak
back to him.
Medical records dated February 17, 2004 to November 8, 2006 advised that appellant had
an emotional condition causally related to his employment and intermittent periods of total
disability.
In a May 31, 2005 statement, Mr. Shah contended that he treated appellant with the same
dignity and respect as the other employees. He denied that appellant asked him for permission to
go the bathroom, telling him how to position his hand while working, forbidding him from
communicating with other employees and making physical contact with him. Mr. Shah also
denied making any remarks regarding his sex, religion or national origin. He contended that this
allegation was made by appellant and the union in response to the letter of warning he issued.
Mr. Shah noted that at 8:00 a.m. on December 19, 2004 appellant arrived at work. Appellant
complained about the lighting. He took another seat and requested to go to the bathroom.
Appellant returned 20 minutes later. Mr. Shah had an official discussion with appellant on
December 19, 2004 for being away from the workroom floor for approximately 45 minutes. At
11:00 a.m. appellant was given a PS Form 7020 in response to his request to go to the parking lot
to get a different pair of glasses. When he returned to the workroom floor at 11:45 a.m., the PS
Form 7020 was not signed by security personnel. Appellant only processed 43 pounds of mail in
7 hours which represented 1 3/4 hours of work by other employees and he took several bathroom
breaks and left his letter case to frequently talk to Ms. Combe, a coworker. He received a letter
of warning because he was away from the workroom floor for 35 minutes on

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December 20, 2004. Appellant only processed 30 pounds of mail during his first 5 hours of
work which was the equivalent of 1¼ hours of work by other employees.
In support of his timely request for reconsideration, appellant had submitted signatures of
employees who he alleged had been treated with disrespected or discriminated against by
Mr. Shah based on their sex, religion, ethnic origin or nationality. Also submitted was a
summary of a town hall meeting in August 2007 held by Frank Bonglovanni, plant manager, to
address employees’ problems at work and their questions regarding communication between
craft employees and supervisors, service scores, budget and safety issues, work procedures,
employee accountability, disrespect by supervisors and equipment failure.
In a September 25, 2009 decision, the Office denied modification of its prior decisions,
finding that appellant did not sustain an emotional condition in the performance of duty.
Appellant failed to submit sufficient evidence to establish any compensable employment factors.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.3 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5 On the other hand, the disability is not covered where it results from such
factors as an employee’s fear of a reduction-in-force or his or her frustration from not being
permitted to work in a particular environment or to hold a particular position.6
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially

3

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

4

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

5

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

6

Gregorio E. Conde, 52 ECAB 410 (2001).

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assigned work duties of the employee and are not covered under the Act7 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.8
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.10 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.11
ANALYSIS
Appellant did not attribute his emotional condition to his regular or specially assigned
duties of being a clerk. Rather, he attributes his emotional condition to several actions taken by
employing establishment management. Appellant contended that he was harassed and
discriminated against by Mr. Shah. The Board notes that harassment or verbal abuse may give
rise to coverage under the Act. However, there must be evidence that harassment did, in fact,
occur. Mere perceptions of harassment or discrimination are not compensable under the Act. A
claimant must establish a factual basis for allegations that the claimed emotional condition was
caused by factors of employment.12 Appellant alleged that Mr. Shah harassed and discriminated
against him on the basis of his religion, ethnic origin, race and nationality as a white
Irish-American Catholic male in issuing a letter of warning to him on December 21, 2004. He
further alleged that he constantly monitored his work performance and ridiculed him. Appellant
also alleged that Mr. Shah required him to obtain permission to go to the bathroom. He
contended that Mr. Shah instructed him to use proper posture for his head while working.
7

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon.,
42 ECAB 556 (1991).
8

See William H. Fortner, 49 ECAB 324 (1998).

9

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

10

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

11

Id.

12

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, supra note 4 (for harassment to give rise to
a compensable disability, there must be some evidence that harassment or discrimination did in fact occur);
Pamela R. Rice, supra note 3 (claimant failed to establish that the incidents or actions which she characterized as
harassment actually occurred).

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Appellant further contended that Mr. Shah forbade him from communicating with other
employees. Lastly, he contended that Mr. Shah brushed against his back and shoulder.
Appellant filed an EEO complaint alleging that Mr. Shah discriminated against him for being a
white Irish-American Catholic male in issuing the December 21, 2004 letter of warning.
The Board notes that appellant’s allegations pertain largely to the administrative actions
taken by management personnel at the employing establishment. It is well established that the
issuance of a letter of warning,13 monitoring of work,14 establishment of rules and procedures
and filing of a grievance15 by the employing establishment relate to an administrative function of
the employer and are not compensable unless the employee establishes error or abuse. The list
of employees and the narrative statements from Ms. Morey, Ms. Allen and Ms. Jones which
contended that they were disrespected or discriminated against by Mr. Shah do not establish that
appellant was harassed or discriminated against. These individuals did not provide any specific
examples of how he was harassed or discriminated against by the employing establishment.
Similarly, the town hall meeting summary which addressed employees’ work-related
problems and questions does not provide any specific examples of appellant being harassed and
discriminated against by the employing establishment. Mr. Neilan requested that the employing
establishment immediately remove Mr. Shah from his position after being informed that
appellant had been disciplined based on his being a white Irish-American Catholic, but did not
indicate whether he had heard the statement by Mr. Shah. Although the letter of warning was
reduced to a discussion, the Board has held that the mere fact that personnel actions are later
modified or rescinded does not, in and of itself, establish error or abuse on the part of the
employing establishment.16 Further, Mr. Shah denied harassing or discriminating against
appellant by issuing the December 21, 2004 letter of warning. He stated that appellant was away
from the workroom floor for 35 minutes on December 20, 2004. Mr. Shah indicated that he only
processed 30 pounds of mail during his first 5 hours of work which was the equivalent of
1¼ hours of work by other employees. He denied making any physical contact with appellant.
The Board finds that appellant has failed to establish that the employing establishment
committed error or abuse in handling the above-noted administrative functions. Therefore,
appellant has failed to establish a compensable factor of employment.
As appellant failed to establish that his emotional condition was causally related to a
compensable factor of employment, the Office properly denied his emotional condition claim.17
Appellant contends on appeal that the signatures of employees and narrative statements
of employees who had been harassed and discriminated against by Mr. Shah establish that he
13

Joe M. Hagewood, 56 ECAB 479 (2005).

14

See Brian H. Derrick, 51 ECAB 417 (2000).

15

Michael A. Salvato, 53 ECB 666, 668 (2002).

16

Paul L. Stewart, 54 ECAB 824 (2003).

17

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Marlon Vera, 54 ECAB 834 (2003).

6

also was harassed and discriminated against by Mr. Shah. As stated, this evidence does not
specifically identify any incidents witnessed by the employees involving the harassment and
discrimination of appellant by Mr. Shah. Statements of individuals who generally discuss
harassment or working condition under Mr. Shah are not of sufficient specificity to support
appellant’s claim.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rochester, NY, Employer
__________________________________________

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

Docket No. 13-955
Issued: November 25, 2013

Case Submitted on the Record

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

JURISDICTION
OnMarch 12, 2013appellant filed a timely appeal from a February 25, 2013 merit
decision of the Office of Workers’ Compensation Programs’(OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability beginning December 11, 2012 causally related to her November 22, 2011employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 5, 2011 appellant, then a 53-year-old window clerk,filed a traumatic injury
claimalleging that on November 22,2011 she sustained an injury when a container door fell on
her back at work. Appellant did not stop work.
In a November 23, 2011 report, Dr. George Anstadt, a treating physician Board-certified
in preventive medicine, noted appellant’s history of injury, which included that while she was
closing the top of a metal gate, after she slammed the door shut, she bent down and pulled out
the bottom shelf and the top shelf popped loose and slammed down across her upper back. He
diagnosed cervical strain and contusion of the thorax, chest wall strain. Dr. Anstadt placed
restrictions on lifting,pushing, pulling over five pounds and reaching over the shoulder. In a
December 2, 2011 duty status report, he recommended limited-duty restrictions to deliver
express mail. In a report dated December 13, 2011, Dr. Anstadt diagnosed chest wall strain and
contusion of the thoraxand continued appellant’s work restrictions. Chest and rib x-rays were
negative. On December 27, 2011 appellant was released to full duty by Dr. Anstadt,who noted
that her problems had resolved, recommended continued home exercise and released her from
his care.
In a December 14, 2012 report, Dr. Samuel Balderman, a Board-certified surgeon and
associate of Dr. Anstadt, noted a November 22, 2011 injury date and advised that appellant
returned for a recheck. He advised that she was working within her duty restrictions and was
having difficulty with the selected job functions. Dr. Balderman diagnosed lumbar strain. He
noted that lumbar spine x-rays were negative. In a duty status report also dated December 14,
2012, Dr. Balderman provided restrictions.
On December 18, 2012appellant filed a notice of recurrence (Form CA-2a) alleging that
on December 11, 2012 she had a recurrence of her November 22, 2011 work injury.She stopped
work on December 18, 2012. Appellant noted that it “happened after a busy day at work and
into the evening.”She explained that she had similar symptoms from her original injury and the
right side ailments were the same. The employing establishment advised that appellant returned
to full-time, full duty after her November 22, 2011 injury.
In a duty status report dated December 28, 2012, Dr. Aharon Wolf, Board-certified in
preventive medicine and an associate of Dr. Anstadt, noted that appellant presented with
complaints about her back which was injured on November 22, 2011. Appellant reported the
history of her injury and complained of thoracic pain and midline lumbosacral pain. Dr. Wolf
noted that she had been working with restrictions and was having difficulty with selected job
functions. Heattached December 18, 2012 work restrictions. In a January 4, 2013 report,
Dr. Wolf diagnosed thoracic strain and cervical pain. He opined that “within a degree of medical
probability, I conclude that the aforementioned diagnosis(es) is/are causally and proximally
related to the work-related injury.The mechanism of injury and the description of the incident are
consistent. It is more likely than not that the diagnosis(es) are the result of the work[-]related
injury.” Dr. Wolf indicated that maximum medical improvement might be achieved in three
weeks. In a January 4, 2013 duty status report, he continued the restrictions.

2

By letter dated January 11, 2013, OWCP noted that appellant’s claim initially had
appeared to be a minor injury resulting in minimal or no lost time from work and her claim was
administratively approved to allow payment of a limited amount of medical expenses. However,
appellant’s claim was now being reopened because she had filed a claim of recurrence. By letter
of January 11, 2013,OWCP informed herof the type of evidence needed to support her original
traumatic claim and requested that she submit such evidence within 30 days. On January 18,
2013 it advised appellant of the type of medical evidence needed to establish a claim for a
recurrence of disability from the original claim. OWCP advised her that, if she had a new injury
or exposure, she should file a new notice of injury.
A January 15, 2013 magnetic resonance imaging (MRI) scan of the cervical spine,
revealed a C6-7 broad-based central disc protrusion with very slight superior migration of disc
material to lower C5 that was abutting the cord but not altering its signal. There was a tiny focal
central disc protrusion at C3-4 not abutting nor distorting the cord with a minor uncinate spurring
at several levels and facet degenerative changed to the left at C4-5 and C5-6.
In a January 30, 2013 statement, appellant described her recurrence. She noted that she
was processing packages during the Christmas holiday. Appellant indicated that she handled all
of the packages that were approximately 5 to 30 pounds and she worked alone. Shestated that, at
the time of the recurrence, she was not on light duty and she was working her full eight hours on
a busy customer service window. Appellant explained that she believed that her recurrence was
a result of her original injury, due to the fact that the pain had reappeared at the same place on
her neck and back and the right side of her head with the same symptoms. She indicated that the
symptoms would come and go and they worsened if she continued to have a busy day handling
varied weight packages. Appellant denied any other injuries and explained that the flair up of
the right side of her back and neck was her only recurring pain.
In a February 6, 2013 treatment note, Dr. Wolf noted appellant’s history of injury and
treatment and that she was released to full duty on December 27, 2011. He advised that, on
December 14, 2012, she returned with increased symptoms of pain since being back to work full
duty. Dr. Wolf indicated that appellant had a mild decrease of range of motion in all planes due
to pain. He opined that it was “assumed that these symptoms are most probably not from a new
injury since they are the same symptoms as prior and there was no new injury event since last
event.” Dr. Wolf explained that since physical therapy previously helped appellant to return to
full duty, it was decided to continue another round of therapy. Hediagnosed thoracic strain and
cervical pain and prescribed physical therapy. OWCP also received physical therapy reports.
On February 15, 2013 OWCP accepted the claim for cervical sprain, thoracic sprain,
lumbar sprain and contusion of trunk.
By decision dated February 25, 2013, OWCP denied appellant’s claim for a recurrence of
disability. It found that she had not established that she was disabled due to a worsening of her
accepted conditions.

3

LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.2
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and who supports that conclusion with sound medical
reasoning.3
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.4
ANALYSIS
OWCP accepted that appellant sustained claim for cervical sprain, thoracic sprain,
lumbar
sprain
and
contusion
of
trunk
in
the
performance
of
duty
onNovember 22, 2011.Appellant returned to full duty on December 27, 2011. She filed a notice
of recurrence of disability onDecember 18, 2012 alleging disability beginning that date due to
her accepted injuries.Appellant, however, did not submit sufficient reasoned medical evidence to
establish that herpresent condition was causally related to her accepted injury.
Appellant alleged that she was processing packages for the Christmas holiday at the
employing establishment, which weighed between 5 and 30 pounds. She confirmed that, at the
time of the recurrence on December 11, 2012, she was not on a light duty status and was working
her full eight hours as a customer service representative.5
In support of her claim for a recurrence on December 11, 2012 appellant submitted
several reports from Dr. Wolf. In his January 4, 2013 report, Dr. Wolfdiagnosed thoracic strain
and cervical pain. He opined that “within a degree of medical probability, I conclude that the
aforementioned diagnosis(es) is/are causally and proximally related to the work-related injury.
The mechanism of injury and the description of the incident are consistent. It is more likely than
2

20 C.F.R. § 10.5(x); seeTheresa L. Andrews, 55 ECAB 719 (2004).

3

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.104.

4

Walter D. Morehead, 31 ECAB 188 (1986).

5

The Board notes that if appellant is alleging that her current conditions are related to a new work incident rather
than a spontaneous change in her work-related conditions, she may wish to file a traumatic injury claim. See
Cecelia M. Corely, 56 ECAB 662 (2005).

4

not that the diagnosis(es) are the result of the work[-]related injury.”However, Dr. Wolfdid not
provide any explanation to support his conclusion that appellant had an exacerbation of her
underlying symptoms attributable to the originally accepted injury. He also did not appear to
have a complete history as she has not offered an explanation as to how she sustained her
recurrence other than to say that she was processing packages weighing between 5 and 30
pounds. The Board has held that medical opinions based upon an incomplete history have little
probative value.6
Likewise, in a February 6, 2013 treatment note, Dr. Wolf advised that on December 14,
2012 appellant returned with increased symptoms of pain since being back to work full
dutywithrestrictions. He indicated that she had a mild decrease of range of motion in all planes
due to pain. Dr. Wolf opined that it was “assumed that these symptoms are most probably not
from a new injury since they are the same symptoms as prior and there was no new injury event
since last event.”He diagnosed thoracic strain and cervical pain and prescribed physical therapy.
The Board finds that this report is lacking as there is no medical rationale to support a recurrence
of disability on December 18, 2012. Dr. Wolf did not explain how appellant had a spontaneous
change in her accepted conditions that caused or contributed to her disability. The need for
medical reasoning is particularly important where Dr. Anstadt previously opined that her
condition had resolved by December 27, 2011 and that she could work without restriction.
Other reports from Dr. Wolf, such as work restriction and duty status reports, are
insufficient to establish the claimas they do not provide any clear opinion regarding why
appellant could not work due to her accepted conditions. To establish that a claimed recurrence
was caused by the accepted injury, medical evidence of bridging symptoms between the present
condition and the accepted injury must support the physician’s conclusion of a causal
relationship.7 Dr. Wolf did not specifically address the cause of the diagnosed conditions or
relate the conditions to appellant’s November 22, 2011 employment injury and thus his reports
are of little probative value.8 Furthermore, Dr. Balderman’s December 14, 2012 report, while
noting her November 22, 2011 injury date and that she had difficulty with the selected job
functions, did not specifically address how she had a spontaneous change in her accepted
conditions that caused disability. Thus, this report is insufficient to establish the claim.
Other medical reports, including diagnostic reports, are insufficient to establish
appellant’s claim for a recurrence of disability as they do not specifically address how any
condition on or after December 11, 2012is causally related to the original employment injury.9

6

See Vaheh Mokhtarians, 51 ECAB 190 (1999).

7

Ricky S. Storms, 52 ECAB 349 (2001).

8

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).
9

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).

5

OWCP also received several physical therapy reports. However, the reports of therapists
have no probative value on medical questions because a therapist is not a physician as defined by
5 U.S.C. § 8101(2) and, therefore, is not competent to render a medical opinion.10
Consequently, appellant has not met his burden of proof in establishing her claim for a
recurrence of disability beginning December 11, 2012 causally related to the work injury of
November 22, 2011.
CONCLUSION
The Board finds that appellant did not meet herburden of proof to establish a recurrence
of disability beginning December 11, 2012 causally related to her November 22, 2011
employment injury.
ORDER
IT IS HEREBY ORDERED THATthe February 25, 2013 decision of the Office of
Workers’ Compensation Programsis affirmed.
Issued: November 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

See Barbara J. Williams, 40 ECAB 649, 657 (1988) (physical therapist); 5 U.S.C. § 8101(2) (the term
“physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 16-0145
Issued: March 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 2, 2015 appellant filed a timely appeal of an October 21, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)(1) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was
totally disabled from April 7 through 21, 2015 due to her accepted employment injury.
FACTUAL HISTORY
On July 8, 2012 appellant, then a 47-year-old food service worker leader, filed an
occupational disease claim (Form CA-2) alleging that she was working a temporary assignment
1

5 U.S.C. § 8101 et seq.

in social work services when on June 12, 2014 she was sexually harassed by a veteran. The
veteran turned sideways to show he had an erection. The police came and removed him. The
veteran returned 30 minutes later and approached her for help. Appellant alleged that she
developed post-traumatic stress disorder (PTSD), depression, anxiety, and panic attacks.
In a letter dated July 16, 2014, OWCP informed appellant that her claim was more
accurately one for a traumatic injury. It requested additional factual and medical information in
support of her traumatic injury claim and allowed 30 days for a response. Appellant submitted a
July 28, 2014 note from a nurse practitioner diagnosing PTSD.
Appellant also submitted a detailed narrative statement dated July 22, 2014 describing the
events of June 12, 2014 in her temporary-detailed assignment at the reception desk. After
recounting the incident in detail, she alleged that she was distraught and unable to leave her
office while the veteran paced and yelled. About 30 minutes after the police removed him, the
veteran returned to her office and asked if she could get him help. Appellant directed the veteran
to sit in the waiting room and telephoned for help. The veteran eventually took a seat. Appellant
sought further assistance and the assistant chief of social work came to her office and called the
police to retrieve him again. She was later instructed that there was a red panic button under her
desk to use in such situations. Appellant became further upset due to the lack of training she had
received for this assignment. The next morning she was unable to get out of bed due to anxiety
and panic attacks. Appellant’s anxiety continued and she sought medical treatment on June 23,
2014 at a mental hospital. She reported that, after receiving medication, she was able to
understand that her symptoms were due to PTSD resulting from prior, personal trauma as she
had not had anxiety or panic attacks for 28 years. Appellant alleged that the incident with the
veteran triggered things from her past trauma. She also noted that relating this information
caused her anxiety and panic again.
By decision dated August 19, 2014, OWCP denied appellant’s claim finding that she had
failed to submit the necessary medical evidence to establish her claim.
Appellant requested reconsideration on October 17, 2014 and submitted additional
medical evidence. In a report dated October 10, 2014, Dr. Mary Ann Venezia, a psychiatrist,
diagnosed anxiety secondary to PTSD. She described the employment incident and opined that
appellant developed anxiety as a result of the incident. Dr. Venezia opined that appellant was
currently totally disabled.
In a decision dated January 22, 2015, OWCP accepted appellant’s claim for a single
episode of PTSD. Dr. William Greenfield, a psychiatrist, released appellant to return to work on
January 12, 2015. OWCP authorized compensation benefits from October 10, 2014 through
January 10, 2015 following appellant’s 45 days of continuation of pay.
Dr. Greenfield completed a report on April 22, 2015 and described appellant’s June 12,
2014 employment incident. He noted that appellant was released to return to work on a trial
basis on January 12, 2015. Dr. Greenfield opined that during the trial period appellant
experienced an increase in symptoms causing her to be unable to consistently attend her
scheduled work hours. He concluded that appellant was unable to work due to her accepted
condition.

2

Appellant filed a recurrence claim (Form CA-2a) on April 24, 2015 alleging that on
April 7, 2015 she stopped work due to a recurrence of her PTSD. She noted that she had been
restricted to have no direct contact with patients. Appellant alleged that after her return to work
she gradually found herself worsening and eventually unable to function due to PTSD and severe
depression.
On May 11, 2015 Dr. Greenfield noted appellant’s June 12, 2014 employment injury and
resulting depression and anxiety. He opined that since returning to work appellant experienced
an increase in symptoms resulting in a return to an outpatient program. Dr. Greenfield
concluded that appellant was currently unable to work and that he could not predict when she
could return to work. He completed a letter dated June 5, 2015 and opined that appellant
continued to experience anxiety due to PTSD as a result of the June 12, 2014 work injury.
Dr. Greenfield found that she continued to experience daily intrusive memories and repetitive
nightmares. He noted that appellant returned to work on a trial basis on January 12, 2015, but
that her symptoms increased with her return to work and on April 7, 2015 her anxiety due to
PTSD became unbearable and she left work and resumed treatment.
Dr. Greenfield
recommended on April 16, 2015 that appellant attends outpatient therapy three times a week, as
well as weekly individual therapy and monthly medication management. He opined that
appellant could not return to work due to her ongoing symptoms.
In a decision dated June 11, 2015, OWCP accepted appellant’s claim for recurrence of
disability effective April 7, 2015 based on Dr. Greenfield’s June 5, 2015 report.
Appellant filed a Form CA-7 requesting compensation for leave without pay from April 7
through June 19, 2015. OWCP authorized compensation benefits from April 22 through
June 19, 2015.
In a letter dated June 1, 2015, OWCP requested medical evidence supporting appellant’s
total disability for work from April 7 through 21, 2015. Appellant submitted form reports
completed by Steven Weiss, a psychiatric nurse practitioner, on July 13, August 10, and
October 9, 2015. On July 30, 2015 Ami Kent, a licensed clinical social worker, opined that
Dr. Greenfield’s June 5, 2015 letter established appellant’s disability from April 7
through 21, 2015.
Appellant filed an additional Form CA-7 requesting compensation for leave without pay
from July 20 through August 14, 2015. She submitted treatment notes dated March 11, 26, and
April 13 and 16, 2015 from Ms. Kent and Mr. Weiss.
OWCP authorized compensation benefits from July 18 through August 14, 2015 on
August 19, 2015. Appellant continued to claim compensation benefits for leave without pay
from August 17 through October 16, 2015 which OWCP authorized.
By decision dated October 21, 2015, OWCP denied appellant’s claim for compensation
for the period April 7 through 21, 2015 finding that there was insufficient medical evidence to
support her total disability for this period.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.3 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.4
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.5 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statement regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.6 The Board will not require OWCP to pay compensation for
disability in the absence of any medical evidence directly addressing the specific dates of
disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.7
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s detailed medical 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.9 Neither the fact that a disease or
condition manifests itself during a period of employment nor the belief that the disease or

2

Supra note 1.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

See Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Id.

7

Id.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

4

condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.10
Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered physicians as defined under FECA.11
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
from April 7 through 15, 2015 due to her accepted employment injury. The Board finds,
however, that appellant has established total disability commencing on April 16, 2015 and is
entitled to additional compensation from April 16 through 21, 2015.
Appellant filed a Form CA-2a on April 24, 2015 alleging that on April 7, 2015 she
stopped work due to a recurrence of her PTSD. She alleged that after her return to work she
gradually found herself worsening and eventually unable to function due to PTSD and severe
depression. In support of this claim, appellant submitted reports from Dr. Greenfield.
Following, appellant’s alleged recurrence Dr. Greenfield completed a report dated
April 22, 2015 providing her history of injury. He noted appellant’s return to work on a trial
basis on January 12, 2015 and opined that during the trial period appellant experienced an
increase in symptoms causing her to be unable to consistently attend her scheduled work hours.
Dr. Greenfield concluded that appellant was unable to work due to her accepted condition. In his
May 11, 2015 report, he again noted appellant’s history of injury and ongoing symptoms.
Dr. Greenfield concluded that appellant was currently unable to work and that he could not
predict when she could return to work. These reports are not sufficiently detailed to establish a
specific period of disability due to appellant’s accepted recurrence of disability. Dr. Greenfield
did not explain exactly when and why appellant stopped work and did not explain how her
accepted condition rendered her totally disabled.
On June 5, 2015 Dr. Greenfield opined that appellant continued to experience anxiety due
to PTSD as a result of the June 12, 2014 employment injury. He found that she continued to
experience daily intrusive memories and repetitive nightmares. Dr. Greenfield noted that
appellant returned to work on a trial basis on January 12, 2015, but that her symptoms increased
with her return to work and on April 7, 2015 her anxiety due to PTSD became unbearable and
she left work and resumed treatment. Dr. Greenfield recommended on April 16, 2015 that
appellant attend outpatient therapy three times a week, as well as weekly individual therapy and
monthly medication management. He opined that appellant could not return to work due to her
ongoing symptoms. The Board finds that this report is sufficient to establish appellant’s
10

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

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

5

disability for work commencing April 16, 2015. Dr. Greenfield recommended additional
treatment on that date, and provided reasoning for his conclusions for recurrence of appellant’s
total disability, including symptoms of daily intrusive memories and repetitive nightmares.
Dr. Greenfield did not, however, provide any specific details regarding appellant’s disability for
work from April 7, 2015 when appellant stopped work until April 15, 2015.
Appellant also submitted a series of reports from Mr. Weiss, a psychiatric nurse
practitioner, and Ms. Kent, a licensed clinical social worker. As neither a nurse practitioner13 nor
a social worker14 are considered physicians for the purposes of FECA. Reports from these
practitioners thus do not constitute medical evidence, and their findings and opinions do not
suffice for purposes of establishing entitlement to FECA benefits.
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 total disability
for the period April 7 through 15, 2015. The Board further finds that appellant has met her
burden of proof to establish total disability commencing April 16, 2015 and that she is entitled to
wage-loss compensation through April 21, 2015.

13

Supra note 11; a nurse practitioner is not a “physician” pursuant to FECA. Section 8101(2) of FECA provides
as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. Paul Foster,
56 ECAB 208 (2004).
14

P.H., Docket No. 15-0482 (issued August 4, 2015).

6

ORDER
IT IS HEREBY ORDERED THAT the October 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Wilmington, DE, Employer
__________________________________________

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Appearances:

Docket No. 07-1758
Issued: December 27, 2007

Case Submitted on the Record

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

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 8, 2007, which granted schedule awards for
eight percent permanent impairment to both the right and left upper extremities. 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 has more than an eight percent permanent impairment to
both the right and left upper extremities, for which she has received schedule awards.
FACTUAL HISTORY
On May 29, 2002 appellant, then a 46-year-old program support assistant, filed an
occupational disease claim alleging that she developed bilateral ganglion cysts and right wrist
tendinitis as a result of performing work duties. She did not stop work. The Office accepted

appellant’s claim for aggravation of bilateral ganglion cysts and expanded her claim to include
right wrist tendinitis.1
Appellant came under the treatment of several physicians. Dr. Alfred Fletcher, a Boardcertified family practitioner, diagnosed right wrist tendinitis and ganglion cysts in reports from
May 14, 2002 to March 12, 2003. Dr. Peter F. Townsend, a Board-certified orthopedic surgeon,
submitted reports dated March 14 and May 9, 2003 noting a volar ganglion cyst on the left wrist.
He advised that she underwent a ganglionectomy of the volar aspect of her right wrist.
Dr. Townsend diagnosed volar ganglion cyst on the left side and recommended conservative
treatment with cortisone injections. Dr. Randeep S. Kahlon, a Board-certified orthopedic
surgeon, treated appellant for bilateral volar ganglions. On May 30, 2003 he diagnosed bilateral
wrist ganglions, right side more painful and recommended surgery. On November 8, 2003
Dr. Fletcher advised that appellant reached maximum medical improvement and referred her to
Dr. George L. Rodriguez, a Board-certified orthopedic surgeon, for an impairment rating.
In a March 5, 2004 report, Dr. Rodriguez noted that appellant reached maximum medical
improvement on May 31, 2003. He noted that physical examination of the right wrist revealed a
well-healed surgical scar on the volar aspect of the radial styloid, positive Finkelstein’s and
Phalen’s signs, normal range of motion of the wrist and fingers in all directions and some
hyperesthesia. Examination of the left wrist revealed full range of motion in all directions and an
elevated ganglion cyst overlying the radial styloid of the volar aspect. Dr. Rodriguez noted that
sensation was absent overlying the proximal aspect of the thenar eminence on the area of the
radial styloid surgical scar on the right with a positive Tinel’s sign in the radial nerve overlying
the right distal styloid. He further noted grip strength loss was 20 percent for the right hand and
10 percent for the left hand. Dr. Rodriguez diagnosed bilateral carpal tunnel syndrome, status
post release, de Quervain’s syndrome of the right wrist, status post surgery, radial neuritis of the
right wrist, ganglion cyst of the left wrist, activity decrease and ratable pain. He noted that,
based on the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment,2 (A.M.A., Guides) that appellant would receive a 20 percent impairment
on the right for grip strength deficit, 1 percent impairment for sensory abnormality of the right
radial nerve, 3 percent impairment for motor abnormality of the right median nerve, 3 percent
impairment for motor abnormality of the right ulnar nerve, 3 percent impairment for motor
abnormality of the right radial nerve and 1 percent for pain-related impairment, for a total
impairment of 29 percent for the right arm. With regard to the left arm, appellant would receive
10 percent impairment for grip strength deficit and 1 percent for pain-related impairment, for a
total impairment of 11 percent for the left arm.
In a report dated April 3, 2005, an Office medical adviser noted that appellant was
previously treated for bilateral carpal tunnel syndrome and recently developed ganglion cysts of
both wrists and associated tendinitis. He noted that appellant underwent ganglion cyst excision
1

Appellant filed a claim for bilateral carpal tunnel syndrome on April 2, 1985, which the Office accepted for
precipitation of bilateral carpal tunnel syndrome, File No. A03-0103289. The Office authorized right carpal tunnel
release which was performed on March 18, 1985 and left carpal tunnel release which was performed on
April 22, 1985. These claims were consolidated.
2

A.M.A., Guides (5th ed. 2001).

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and bilateral carpal tunnel syndrome surgery. The medical adviser noted that appellant would be
entitled to a five percent permanent impairment of the right and left arms for mild postoperative
residuals3 and an additional three percent impairment for both upper extremities for pain,4 for a
total impairment of eight percent permanent of both the right and left arms. He noted that
Dr. Rodriguez found a significant sensory and motor deficit but the medical adviser stated that
his examination did not support this impairment rating. The medical adviser further indicated
that there was no award for grip strength deficit in a compression neuropathy under the A.M.A.,
Guides.
On April 12, 2005 appellant filed a claim for a schedule award.
In a decision dated April 15, 2005, the Office granted appellant a schedule award for
eight percent impairment to both the right and left arms.
On April 17, 2005 appellant requested an oral hearing before an Office hearing
representative. She asserted that the medical adviser rejected the impairment rating provided by
Dr. Rodriguez without explanation. On December 8, 2005 appellant withdrew her request for an
oral hearing and requested that the Office proceed with a review of the written record. She
submitted an April 8, 2005 treatment note from Dr. Townsend. Also submitted was a physical
therapy note dated April 11, 2005.
In a decision dated February 14, 2006, the hearing representative affirmed the April 15,
2005 decision.
On February 28, 2006 appellant appealed her claim to the Board. In an order dated
September 8, 2006, the Board remanded the case to the Office to combine her File
Nos. 03-2009688 and 03-0103289 and issue an appropriate merit decision on her claim for
compensation.5 In a decision dated October 13, 2006, the Office advised that File Nos.
03-2009688 and 03-0103289 were combined. The Office reissued the April 15, 2005 schedule
awards. On October 17, 2006 appellant appealed her claim to the Board. In an order dated
May 31, 2007, the Board determined that the Office failed to properly combine appellant’s claim
and remanded the case to the Office to combine her File Nos. 03-2009688 and 03-0103289 and
issue an appropriate merit decision.6
In a decision dated June 8, 2007, the Office advised that File Nos. 03-2009688 and
03-0103289 were combined. The Office reissued the April 15, 2005 schedule awards.

3

See A.M.A., Guides at 495, Chapter 16.5d, Entrapment/Compression Neuropathy, Carpal Tunnel Syndrome.

4

Figure 18.1, page 574 (A.M.A., Guides).

5

Docket No. 06-857 (issued September 8, 2006).

6

Docket No. 07-190 (issued May 31, 2007).

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act7 and its
implementing regulations8 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.9
ANALYSIS
On appeal, appellant contends that she has 29 percent permanent impairment of the right
arm and an 11 percent impairment of the left arm as rated by Dr. Rodriguez. The Office
accepted appellant’s claim for aggravation of bilateral ganglion cysts, right wrist tendinitis and
precipitation of bilateral carpal tunnel syndrome and authorized bilateral carpal tunnel releases
March 18 and April 22, 1985. Appellant was paid a schedule award for eight percent impairment
of both the right and left upper extremities.
The Board has carefully reviewed Dr. Rodriguez’ March 5, 2004 report and find he did
not rate impairment in accordance with the relevant standards of the A.M.A., Guides.10
Office procedures11 provide that upper extremity impairment secondary to carpal tunnel
syndrome and other entrapment neuropathies should be calculated using section 16.5d and
Tables 16-10, 16-11 and 16-15.12
Regarding carpal tunnel syndrome, the A.M.A., Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present -(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS [computerized

7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404 (1999).

9

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

10

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

11

See Federal (FECA) Procedure Manual, Part 2 -- Schedule Awards and Permanent Disability Claims,
Evaluation of Schedule Awards, Chapter 2.808 (August 2002).
12

A.M.A., Guides; Joseph Lawrence, Jr., 53 ECAB 331 (2002).

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tomography scan] is rated according to the sensory and/or motor deficits
as described earlier.
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram] testing of the
thenar muscles: a residual CTS is still present and an impairment rating
not to exceed 5 percent of the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”13
Section 16.5d of the A.M.A., Guides further provides that, in rating compression
neuropathies, additional impairment values are not given for decreased grip strength.14
Dr. Rodriguez calculated one percent impairment for sensory abnormality of the right
radial nerve,15 three percent impairment for motor abnormality of the right median nerve,16 three
percent impairment for motor abnormality of the right ulnar nerve17 and three percent
impairment for motor abnormality of the right radial nerve.18 The A.M.A., Guides, Table 16-10,
16-11 and 16-15, page 482, 484 and 492, set forth impairment rating for sensory and motor
deficit for the peripheral nerve disorders. Although Dr. Rodriguez found sensory and motor
deficit impairments of the right median, ulnar and radial nerves, there was no evidence of
median, ulnar and radial nerve deficits upon physical examination. Rather, he noted that the
physical examination of the right wrist revealed a well-healed surgical scar on the volar aspect of
the radial styloid, positive Finkelstein’s sign and normal range of motion of the wrist and fingers
in all directions with some hyperesthesia. Additionally, Dr. Rodriguez did not adequately
explain how he calculated the specific sensory and motor impairment values using Table 16-15,
page 492 of the A.M.A., Guides19 when the physical examination did not support these findings.
Dr. Rodriguez further determined that appellant sustained a 20 percent impairment of the
right arm and a 10 percent impairment of the left arm for grip strength deficit.20 However, as
noted, the A.M.A., Guides provides that “in compression neuropathies, additional impairment

13

Id. at 495.

14

Id. at 494.

15

Id. at 482, 492 Table 16-10, 16-15.

16

Id. at 484, 492, 487, Table 16-11, 16-15, 16-47.

17

Id.

18

Id. at 484, 487, 492, Table 16-11, 16-15, 16-47.

19

Id. at 492, Table 16-15.

20

Id. at 509, Table 16-32, 16-34.

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values are not given for decreased grip strength.”21 Furthermore, principles set forth in the
A.M.A., Guides, pertaining to strength evaluation, state that loss of grip strength is considered
only in rare cases when the impairing factor has not been considered adequately by other
methods.22 Dr. Rodriguez has not explained why the impairing factors in any of appellant’s
conditions had not been adequately considered by the other methods such that evaluation of grip
strength would be proper. Further, he erroneously added a pain-related impairment under
Chapter 18 of the A.M.A., Guides. The Board has noted that physicians should not use Chapter
18 to rate pain-related impairments for any condition that can be adequately rated on the basis of
the body and organ impairment systems given in other chapters of the A.M.A., Guides.23 Again,
Dr. Rodriguez did not explain why the other chapters of the A.M.A., Guides could not
adequately rate appellant’s pain. The Board finds that Dr. Rodriguez did not properly follow the
A.M.A., Guides. An attending physician’s report is of diminished probative value where the
A.M.A., Guides were not properly followed.24
The medical adviser utilized the findings in Dr. Rodriguez’ March 5, 2004 report and
correlated the provisions in the A.M.A., Guides to determine the impairment rating. He noted
that appellant underwent ganglion cyst excision and bilateral carpal tunnel syndrome surgery. In
accordance with the A.M.A., Guides, the medical adviser noted that appellant would be entitled
to a five percent permanent impairment of the right and left arms for mild postoperative
residuals.25 He noted that Dr. Rodriguez found a significant sensory and motor deficit; however,
advised that his examination did not support this impairment rating. The medical adviser also
properly found, as noted above, there was no award for grip strength deficit in a compression
neuropathy under the A.M.A., Guides. The Board notes that the medical adviser also
erroneously attributed pain-related impairment under Chapter 18 of the A.M.A., Guides. As
noted above, the Board has held that physicians should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
impairment systems given in other chapters of the A.M.A., Guides. The medical adviser
otherwise properly applied the A.M.A., Guides in calculating appellant’s permanent impairment.
The Board finds that appellant has no more than a five percent impairment to both the
right and left upper extremities. There is no other medical evaluation to record explaining how,
pursuant to the fifth edition of the A.M.A., Guides, appellant has impairment that for which the
Office has issued a schedule award.
21

See A.M.A., Guides, at 494; see also Robert V. Disalvatore, 54 ECAB 351 (2003) (where the Board found that
the Fifth Edition of the A.M.A., Guides provides that impairment for carpal tunnel syndrome be rated on motor and
sensory impairments only).
22

See A.M.A., Guides, at 508; Phillip H. Conte, 56 ECAB ___ (Docket No. 04-1524, issued December 22, 2004).

23

See A.M.A., Guides, at 574, Figure 18.1; see also Frantz Ghassan, 57 ECAB ___ (Docket No. 05-1947, issued
February 2, 2006); Linda Beale, 57 ECAB ___ (Docket No. 05-1536, issued February 15, 2006).
24

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
25

See A.M.A., Guides, at 495 (scenario number two provides for impairment not to exceed five percent where
there is normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG
testing of the thenar muscles where residual carpal tunnel syndrome is present).

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CONCLUSION
The Board finds that appellant has five percent permanent impairment to the right and left
upper extremities for which she received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the June 8, 2007 decision of the Office of Workers’
Compensation Programs is affirmed as modified.
Issued: December 27, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Columbia, SC, Employer
__________________________________________

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

Docket No. 17-1187
Issued: June 5, 2018

Case Submitted on the Record

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

JURISDICTION
On May 9, 2017 appellant filed a timely appeal from an April 12, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a consequential left
shoulder condition causally related to her accepted April 22, 2016 right shoulder condition.

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2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its April 12, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 25, 2016 appellant, then a 47-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging that, on April 22, 2016, a patient grabbed her right arm and yanked
and pulled it with both hands. She experienced shooting pain in her right shoulder and arm.
Appellant did not stop work. On July 13, 2016 OWCP accepted the claim for sprain of unspecified
parts of the right shoulder girdle.
Dr. Guillaume Dumont, a Board-certified orthopedic surgeon, continued to submit
progress reports regarding appellant’s right shoulder condition. Appellant was treated
conservatively and with cortisone injections. An August 16, 2016 magnetic resonance imaging
(MRI) scan was reported as positive for a full thickness tear of the rotator cuff. In an October 27,
2016 report, Dr. Dumont diagnosed a right shoulder rotator cuff tear and biceps tendinitis.
In a Form CA-110 telephone memorandum of January 19, 2017, appellant indicated that
she had problems with her left shoulder as a result of overuse due to favoring her right shoulder
and sleeping on the left shoulder.
In a January 19, 2017 development letter, OWCP indicated that appellant had telephoned
in on January 18, 2017 regarding a possible consequential injury. In order to substantiate her left
shoulder claim, it requested that she submit additional factual and medical documentation,
including a physician’s well-rationalized opinion on the relationship between the accepted work
injury and her left shoulder condition. Appellant was afforded 30 days to provide the requested
information.
In response, appellant submitted an undated statement received February 23, 2017
describing her left shoulder condition and how she used it since her April 22, 2016 employment
injury.
In a February 17, 2017 progress note, Dr. Dumont indicated that appellant was evaluated
on February 3, 2017 for left shoulder pain. He noted that she was previously evaluated for rotator
cuff tear of her right shoulder. Dr. Dumont opined that it “was possible that appellant’s left
shoulder pain was caused by overuse, but it was impossible to say with any degree of certainty.”
A diagnosis of impingement syndrome of left shoulder was provided.
Medical reports and diagnostic testing of the right shoulder were also provided.
By decision dated April 12, 2017, OWCP denied appellant’s claim for a consequential left
shoulder condition. It found that the medical evidence of record failed to provide an unequivocal,
rationalized medical opinion that her left shoulder condition was caused by or consequentially
related to her accepted right shoulder condition.
LEGAL PRECEDENT
The Board has held that if a member of the body weakened by an employment injury
contributes to a later injury, the subsequent injury will be compensable as a consequential injury,

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if the further medical complication flows from the compensable injury, so long as it is clear that
the real operative factor is the progression of the compensable injury.3
A claimant bears the burden of proof to establish a claim for a consequential injury.4 As
part of this burden, he or she must present rationalized medical opinion evidence establishing
causal relationship.5 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors or employment injury.6 Neither the mere fact that a disease or
condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
ANALYSIS
OWCP accepted that, on April 22, 2016, appellant sustained an employment-related right
shoulder sprain. In a January 19, 2017 telephone call, appellant requested that the claim be
expanded to include a consequential left shoulder condition.
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition as a consequence of her accepted April 22, 2016 employment injury.
The only evidence pertaining to appellant’s claimed left shoulder condition was
Dr. Dumont’s February 17, 2017 note, in which he diagnosed left shoulder impingement
syndrome. Dr. Dumont noted appellant’s right shoulder condition and opined that it “was possible
that appellant’s left shoulder pain was caused by overuse, but it was impossible to say with any
degree of certainty.” However, as this statement is equivocal, it is of diminished probative value.8
Additionally, Dr. Dumont did not provide a rationalized medical opinion as to how the diagnosed
left shoulder condition was caused or a consequence of her accepted injury.9 Therefore, this report
is insufficient to meet appellant’s burden of proof.
Appellant has the burden of proof to establish a claim for consequential injury through the
submission of rationalized medical opinion evidence. She has not submitted evidence from a
3
R.M., Docket No. 16-0147 (issued June 17, 2016); S.M., 58 ECAB 166 (2006); Raymond A. Nester, 50 ECAB
173, 175 (1998).
4

J.A., Docket No. 12-0603 (issued October 10, 2012).

5

L.B., Docket No. 16-0092 (issued March 24, 2016).

6

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

7

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

8

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57 ECAB
734 (2006).
9
Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

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physician who, based on an accurate factual history, found that she had a left shoulder condition
as a consequence of her accepted right shoulder condition. Consequently, appellant has not met
her burden of proof.
On appeal appellant asserts that she did not have any problems with her left shoulder prior
to the April 22, 2016 work injury. She indicated that her left shoulder condition started after
months of overusing it to compensate for her right shoulder. As previously discussed, appellant
did not submit sufficiently rationalized medical evidence to establish that she sustained a left
shoulder condition that was caused, aggravated, or a consequence of the accepted injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a consequential
left shoulder condition causally related to her accepted right shoulder condition.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 5, 2018
Washington, DC

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

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

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

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