United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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Appearances:
David J. Holdsworth, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1262
Issued: March 18, 2016

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 13, 2015 appellant, through counsel, filed a timely appeal of a November 19,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision, dated November 19, 2013, and the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion pursuant to 20 C.F.R. § 501.5(a) the Board by an October 16, 2015 order, denied his request because his
contentions could adequately be addressed based on a review of the case record. Order Denying Request for Oral
Argument, Docket No. 15-1262 (issued October 16, 2015).

On appeal, counsel argues that in his most recent request for reconsideration, appellant
made a new legal argument regarding OWCP’s analysis of the medical evidence. He asserts that
appellant believed that he had sustained a consequential psychological condition and that OWCP
failed to adequately address or develop this issue.
FACTUAL HISTORY
On November 27, 2002 appellant, then a 39-year-old electronic technician, filed a
traumatic injury claim (Form CA-1) alleging that he was assaulted by a coworker on
November 19, 2002. He asserted that he had sustained injuries to his face, stomach, groin, and
right shoulder. Appellant also alleged that he sustained a submandible hematoma. He completed
a statement in which he notes that he asked a coworker to move by saying “excuse me” and the
coworker did not move. Appellant then tapped him on his shoulder with the papers in his hand
and stated “excuse me” again. His coworker turned and hit appellant in the stomach, shoulder,
and face. Appellant pushed him away and stated, “You don’t need to hit me, you know I was
standing right here.” His coworker became more aggressive striking appellant in the groin, face,
stomach, and shoulder. Appellant alleged that he felt that his coworker was very explosive and
unstable and that he felt that he could be assaulted again if he was near when his coworker
became startled or had a bad day.
In a report dated January 10, 2003, Dr. Seth R. Lewis, an internist, noted that appellant
sustained swelling and ecchymosis about the eye and beneath his chin following the
November 19, 2002 assault. He had previously diagnosed submandibular hematoma on
November 27, 2002. When Dr. Lewis treated appellant on December 13, 2002, he found that
appellant had developed a secondary infection of the hematoma and required surgical drainage.
Appellant was hospitalized from December 13 through 15, 2002 and returned to work on
January 6, 2003. Dr. Lewis opined that appellant’s hematoma and subsequent abscess were
directly related to the assault on November 19, 2002.
Dr. Lewis completed a report dated January 20, 2003, and found that appellant had
sustained a recurrence of infection of his hematoma on January 13, 2003 which required
additional hospitalization through January 18, 2003. He concluded that appellant could return to
work on January 27, 2003.
On February 3, 2003 OWCP accepted appellant’s claim for hematoma on the right side of
the neck and subsequent submental abscess. Appellant returned to full duty with no restrictions
by March 13, 2003. On December 3, 2003 OWCP authorized his request to repurchase leave
from January 6 through 30, 2003.
Counsel contacted OWCP on October 6, 2005 and requested additional benefits on behalf
of appellant. He alleged that appellant was entitled to past medical expenses, compensation for
total disability from December 2002 through September 2003, a schedule award, and had
developed a consequential emotional condition. Counsel again raises these issues on January 4
and October 12, 2006.
Dr. Richard A. Charlat, a Board-certified psychiatrist examined appellant on July 20,
2006 and reported that he was no longer able to work at the employing establishment due to a

2

November 2002 physical assault by a coworker which resulted in a three month hospitalization.
He further reported that appellant underwent open heart surgery. Dr. Charlat opined that
appellant was disabled due to the aggravated assault. He noted that appellant had experienced
recurrent episodes of major depression since he was 23. Further he had recurrent passive
suicidal ideation, and that he had a history of post-traumatic stress disorder (PTSD) because of
his assault in November 2002, as well as an extensive history of childhood physical abuse.
Appellant also reported a history of social anxiety disorder, generalized anxiety disorder, and
panic disorder with agoraphobia.
In a report dated August 28, 2006, Dr. Charlat opined that appellant had increased
understanding of how being traumatized by a coworker resulted in exacerbation of his
recollections of childhood abuse. He found that appellant continued to experience traumatic
nightmares of this event four out of seven days per week. Dr. Charlat diagnosed major
depression, PTSD, generalized anxiety disorder, panic disorder with agoraphobia, and social
anxiety disorder.
Appellant filed both a notice of recurrence of disability (Form CA-2a) and a notice of
occupational disease (Form CA-2) on November 19, 2008, alleging that he developed anxiety,
depression, and PTSD. He reported that he stopped work on June 27, 2004 and recovered
physically from the assault. Appellant alleged that he began to experience psychological
problems and requested to expand his claim.
In a letter dated March 13, 2009, counsel requested that OWCP address appellant’s claim
for medical expenses and emotional conditions. He submitted a report dated August 3, 2003
from Dr. James Milavetz, a Board-certified cardiologist, describing appellant’s history of
thoracic back pains since an assault six to seven months earlier. Dr. Milavetz diagnosed unstable
angina with moderate to severe ischemia in the left ventricle as well as L5-S1 disc problem with
flank pain.
Dr. Gary L. DeVries, a clinical psychologist, completed notes dated May 10, 2004
through September 6, 2006 addressing appellant’s symptoms of stress and depression.
Dr. Lewis completed a June 24, 2005 report in support of appellant’s claim for disability
retirement. He described appellant’s physical and emotional conditions including hypertension,
diabetes, coronary artery disease, obstructed sleep apnea, surgical gallbladder removal, and endstage osteoarthritis of the knees. Dr. Lewis found that appellant was depressed and had struggled
with mood disorder since the physical assault in 2002. He also noted that subsequent legal
proceedings had been stressful and worsened his mood disorder.
Dr. Charlat examined appellant on July 20, 2006 due to severe depression, panic attacks,
social anxiety, and PTSD. He attributed appellant’s PTSD to his assault and traumatic injury in
November 2002 as well as an extensive history of childhood physical abuse between the ages of
8 and 18 years old. Dr. Charlat noted that appellant reported recurrent daily traumatic
recollections of his physical injury, hypervigilance, and an exaggerated startle response. He
attributed appellant’s generalized anxiety disorder and panic disorder with agoraphobia to the
physical assault in November 2002.

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Appellant was admitted to the hospital on October 4, 2008 for psychiatric inpatient
evaluation. Dr. Michael S. Roundy, a Board-certified psychiatrist, diagnosed PTSD marked by
severe irritability and limited insight.
Dr. Charlat examined appellant on October 8, 2008 and diagnosed major depression,
PTSD, generalized anxiety disorder, panic disorder with agoraphobia, and social anxiety
disorder. He provided medication.
Dr. Craig K. Swainer, a clinical psychologist, examined appellant on October 14, 2008.
He described appellant’s November 2002 employment incident as an assault by a coworker who
had worked in special forces in the military, resulting in severe facial injuries. Dr. Swainer
found that appellant had some difficulties with social anxiety and agoraphobia. He also reported
symptomatology associated with PTSD.
OWCP requested additional factual and medical evidence from appellant in support of his
claimed recurrence of disability on June 16, 2010. Counsel responded to this request on July 15,
2010 and argued the November 2002 assault was so unprovoked and violent that it caused PTSD.
He noted that appellant underwent heart surgery in 2003 and returned to light-duty work at the
employing establishment from October 2003 through the spring of 2004. Counsel alleged that
the employing establishment harassed appellant and refused his accommodation requests. He
described appellant’s treatment including a right total knee replacement in March 2006.
Appellant worked intermittently in the private sector from 2004 to December 2007.
Appellant submitted treatment notes from Dr. Lewis dated March 25, 2002 through
September 5, 2003. He reported chest pain on March 17, 2003 and attributed this condition to
stress at work as a result of initiating legal procedures against his boss and coworker. Appellant
reported right-sided flank pain on June 11 and 18, 2003. Dr. Lewis attributed appellant’s low
back pain to strain or muscle tear when appellant unloaded 60-pound items from his locker at
work three weeks previously.
By decision dated August 13, 2010, OWCP denied appellant’s claim for recurrence of
disability beginning June 24, 2004. It found insufficient medical evidence to establish a causal
relationship between his accepted employment injury and his claimed emotional condition, knee
conditions, spinal conditions, or heart condition.
On September 8, 2010 counsel requested an oral hearing from OWCP’s Branch of
Hearings and Review. The hearing was held on November 10, 2011. Appellant testified that his
heart attack was caused by the 2002 assault. He alleged that his assailant was a third-degree
black belt and special forces Marine who was 6’3” and weighed 275 pounds. Appellant stated
that he was hit so hard that it resulted in damage to his heart. He further alleged that the
employing establishment harassed him. Appellant indicated that he filed a separate occupational
disease claim (Form CA-2) regarding this aspect of his claim.
On December 14, 2011 counsel argued that OWCP should further develop appellant’s
claim by referral to an additional physician. He submitted a ruling from the Social Security
Administration (SSA) dated June 15, 2010 finding that appellant had onset of disability on
December 1, 2007. Appellant’s impairments were listed as morbid obesity, coronary artery

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disease, coronary artery bypass graft, bilateral knee degenerative joint disease, bilateral total
joint arthroplasty, degenerative disc disease of the lumbar spine, diabetes mellitus, sleep apnea,
and depression.
By decision dated January 25, 2012, the OWCP hearing representative found that
appellant had not met his burden of proof to establish a recurrence of disability beginning
June 27, 2004. He noted that appellant’s occupational disease emotional condition claim would
not be addressed in this claim file, but in the file associated with his CA-2 form. The hearing
representative further noted that appellant claimed both a physical condition, a heart attack, and
psychiatric conditions due to the November 2002 assault. He reviewed the SSA decision and
determined that this decision did not establish entitlement to compensation under FECA. The
hearing representative concluded that none of the medical evidence was based on a complete and
accurate history or provided an opinion that appellant became disabled as a result of a workrelated heart condition or psychiatric condition.
On January 22, 2013 counsel requested reconsideration. He argued that in a note dated
August 3, 2002, Dr. Milavetz reported thoracic and back pain since the assault and that
Dr. Lewis attributed appellant’s mood disorder to the 2002 physical assault in his June 24, 2005
report. Counsel contended that the medical evidence from appellant’s attending physicians was
sufficient to require OWCP to further develop the medical evidence or to accept his claims.
Appellant submitted additional notes from Dr. Lewis dated September 22, 2003 through
June 22, 2005. Dr. Lewis noted on August 6, 2004 that appellant quit his job at the employing
establishment to reduce his stress. On January 15, 2003 appellant underwent an x-ray of his
sternum which was normal. He underwent a coronary artery bypass on August 4, 2003.
In a decision dated March 21, 2013, OWCP denied modification of the prior decision. It
found that the reports from Dr. Lewis were not based on a detailed and accurate factual
background, and attributed appellant’s emotional condition to the development of his claim,
which was not a compensable employment factor. OWCP determined that appellant had not
established a recurrence of total disability on or after June 2004.
Counsel again requested reconsideration on September 14, 2013. He argued that
appellant had obtained the necessary medical evidence to establish a causal connection between
appellant’s 2002 employment incident and his physical and psychological injuries. Counsel
submitted two additional medical reports to establish causal relationship between the assault and
the diagnosed conditions.
Dr. Tricia Ferrin, an osteopath, completed an undated report and noted treating appellant
since 2008. She diagnosed PTSD. Dr. Ferrin opined that most of appellant’s problems started
after he had difficulties at work. She indicated that appellant had struggled with depression and
anxiety following trauma at work.
Dr. Dennis E. Ahern, a clinical psychologist, completed a report on April 16, 2013. He
noted that appellant was assaulted on November 19, 2002 by a coworker resulting in physical
and psychological problems. Dr. Ahern first treated appellant on October 30, 2009 and
diagnosed PTSD. He opined that the original trauma was still affecting appellant with

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flashbacks, dreams, hypervigilance, and avoidance of related situations. Dr. Ahern found that
appellant had grown increasingly depressed, developed a generalized anxiety disorder, and
developed increasing agoraphobia. He concluded, “In my opinion, the PTSD symptoms are
causally related to the assault in 2002 and the aftermath within the workplace, in that he would
not have developed PTSD without that set of stressors.” Dr. Ahern indicated that appellant had
continuing disability due to this condition.
By decision dated November 19, 2013, OWCP denied modification of its prior decisions.
It reviewed the reports from Drs. Ahern and Ferrin and found that these reports lacked a
complete factual background as there was no discussion of appellant’s psychological state prior
to the assault including physical abuse as a child, an episode of major depression, and an
allegation of harassment at the employing establishment. OWCP concluded that the evidence of
record was insufficient to support a psychological condition causally related to appellant’s
November 19, 2002 employment injury. Thus appellant did not meet his burden of proof to
establish a recurrence of disability as the accepted physical conditions had long since resolved.
Appellant again requested reconsideration through a form dated November 15, 2014 and
received by OWCP on November 17, 2014. Counsel argued that appellant experienced physical
and psychological fallout from the November 19, 2002 assault. He requested compensation for
medical expenses and lost work time. Counsel argued that appellant became totally disabled in
2004 and was forced to resign in June 2004. He alleged that appellant’s physical and
psychological conditions resulting from the 2002 work incident rendered him incapable of any
employment. Counsel alleged that appellant had a work-related heart condition as well as a
psychiatric condition. He disagreed with OWCP’s assessment of the medical evidence submitted
by Drs. Ferrin and Ahern as lacking a complete factual and medical background, and failing to
distinguish other causes of appellant’s psychological conditions. Counsel opined that OWCP
should view the medical evidence as meeting appellant’s burden of proof to either accept or to
further develop his emotional condition claim.
By decision dated November 19, 2014, OWCP declined to reopen appellant’s claim for
consideration of the merits. It noted that appellant argued that it had not properly considered the
medical evidence, but found that the evidence did not support that OWCP had erroneously
applied or interpreted a point of law.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b)(3) of the Code of Federal Regulations provides that a claimant may obtain
review of the merits of the claim by submitting in writing an application for reconsideration
which sets forth arguments or evidence and shows that OWCP erroneously applied or interpreted
a specific point of law; or advances a new relevant legal argument not previously considered by
OWCP; or includes relevant and pertinent new evidence not previously considered by OWCP.4
3

Supra note 1 at § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

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Section 10.608 of OWCP’s regulations provides that when a request for reconsideration is
timely, but does meet at least one of these three requirements, OWCP will deny the application
for review without reopening the case for a review on the merits.5 Section 10.607(a) of OWCP’s
regulations provides that to be considered timely an application for reconsideration must be
received by OWCP within one year of the date of OWCP’s merit decision for which review is
sought.6
ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
The issue on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3) requiring OWCP to reopen the case for consideration of the merits of the claim.
He filed a timely request for reconsideration on November 17, 2014 from the November 19,
2013 denial of modification. With his request, appellant did not submit any additional evidence
and did not show that OWCP erroneously applied or interpreted a specific point of law or
advance a new legal argument.
Counsel again argued that appellant experienced physical and psychological injuries from
the November 19, 2002 assault. This is not a new argument as counsel has alleged physical and
psychological injuries beginning in 2005. He alleged that appellant’s physical and psychological
conditions resulting from the 2002 employment incident rendered him incapable of any
employment. Counsel further alleged that appellant had sustained an employment-related heart
condition as well as a psychiatric condition. These are also not new arguments as the OWCP
hearing representative addressed these claims in the January 25, 2012 decision. As these
arguments were considered by OWCP in each previous decision, the arguments cannot be
considered new and are insufficient to require OWCP to reopen appellant’s claim for
consideration of the merits in accordance with section 10.606(b)(3) of OWCP regulations. The
Board has held that material which is duplicative of that already contained in the case record
does not constitute a basis for reopening a case.7 Furthermore, where the legal argument
presented has no basis in fact or precedent, OWCP is not required to reopen the case for merit
review.8
Counsel further argued that OWCP did not properly assess the medical evidence
submitted by Drs. Ferrin and Ahern. He alleged that the physicians provided a proper factual
and medical background and that OWCP should view the medical evidence as meeting
appellant’s burden of proof to either accept or to further develop his emotional condition claim.
The Board also finds that the essence of this argument is duplicative. Counsel asserted that these
5

Id. at § 10.608.

6

Id. at § 10.607(a). Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(October 2011).
7

P.O., Docket No. 14-1675 (issued December 3, 2015). See Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

8

Id. See also Norman W. Hanson, 40 ECAB 1160 (1989).

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reports were sufficient to meet appellant’s burden of proof in his September 14, 2013 request for
reconsideration. His disagreement with OWCP’s determination regarding these reports is not
sufficient to require OWCP to reopen appellant’s claim for consideration of the merits.
Accordingly, as appellant’s request for reconsideration did not meet the requirements for
reopening his case, the Board finds that OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for merit review under 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2016
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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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Glendale, AZ Employer
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___________________________________________ )
C.C., Appellant

Appearances:
Gordon Reiselt, Esq., for the appellant

Docket No. 07-2031
Issued: April 7, 2008

Case Submitted on the Record

Office of Solicitor, for the Director

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

JURISDICTION
On July 27, 2007 appellant filed a timely appeal from a June 21, 2007 merit decision of
the Office of Workers’ Compensation Programs’ hearing representative, who found that no
further action should be taken on any claims for wage loss or schedule award as appellant
refused suitable work. 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 the Office properly denied appellant’s claim for a recurrence of
disability on July 21, 2005 after she refused suitable work.
FACTUAL HISTORY
This case has previously been on appeal before the Board.1 In a May 20, 2005 decision,
the Board found that appellant did not establish that her September 10, 2002 employment injury
1

Docket No. 05-375 (issued May 20, 2005). Appellant sustained injury on September 10, 2002 when she fell
down a stairway. The Office accepted her claim for a cervical strain, right shoulder contusion, right arm contusion
and right ankle contusion.

caused or contributed to any left shoulder condition, and denied authorization for left shoulder
surgery. The facts and history contained in the prior appeal are incorporated by reference. The
facts germane to the present issue include the Office’s April 18, 2003 decision which terminated
appellant’s entitlement to monetary compensation as she had refused suitable work.2
On February 13, 2007 appellant filed a recurrence of disability claim. She alleged that
she was disabled as of July 12, 2005 causally related to her September 10, 2002 employment
injury.
By decision dated April 16, 2007, the Office denied appellant’s claim for a recurrence,
finding that the evidence was insufficient to establish a recurrence of disability on July 12, 2005
causally related to her injury of September 10, 2002. The Office found that the evidence failed
to establish that appellant’s work stoppage was due to the accepted work-related conditions.
On April 24, 2007 appellant’s representative requested a hearing.
By decision dated June 21, 2007, the Office hearing representative found the Office erred
by issuing a new decision finding that appellant was not entitled to compensation for wage loss
for the recurrence claimed and providing her with new appeal rights. The Office hearing
representative found that the April 18, 2003 decision stood as a bar to any subsequent monetary
compensation arising out of the September 10, 2002 injury as well as any potential schedule
award. He vacated the April 16, 2007 decision and found that no further action should be taken
on any claims for wage loss or schedule awards.
LEGAL PRECEDENT
The Office’s regulations provide that in termination under section 8106(c) of the Federal
Employees’ Compensation Act3 a claimant has no further entitlement to compensation under
sections 8105, 8106 and 81074 of the Act. However, the claimant remains entitled to medical
benefits as provided by 5 U.S.C. § 8103.5 Section 8106(c) serves as a penalty provision, barring
an employee’s future entitlement to compensation for the same injury based on a refusal to
accept a suitable offer of employment.6
Office procedures provide:
“If the claimant does not accept the job, the claims examiner should prepare a
formal decision which provides full findings of facts as to why claimant’s reasons
for refusing the job are deemed unacceptable and terminate compensation under
section 8106(c)(2) of the Act as of the end of the roll period. Such a decision
2

The claim remained open for medical treatment.

3

5 U.S.C. § 8106(c).

4

5 U.S.C. §§ 8105, 8106, 8107.

5

20 C.F.R. § 10.517.

6

Joan F. Burke, 54 ECAB 406 (2003).

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should not be modified even if the claimant’s medical condition later deteriorates
and he or she claims a recurrence of total disability.”7
ANALYSIS
The Office accepted that appellant sustained an employment-related cervical strain, right
shoulder contusion, right arm contusion and right ankle contusion. In an April 18, 2003
decision, the Office found that appellant had refused an offer of suitable work. This decision
was not subsequently appealed and it remains in force. Appellant filed a claim for a recurrence
of disability on July 12, 2005, which she alleged was causally related to her September 10, 2002
employment injury. In its June 21, 2007 decision, the Office denied her claim and indicated that
no further action should be taken regarding her claims for wage loss or schedule awards, as the
April 18, 2003 decision remained in effect.
The Office properly found that the April 18, 2003 decision serves as a bar to any
subsequent monetary compensation as a result of the September 10, 2002 work injury. Section
8106(c) of the Act provides that an employee who refuses suitable work is not entitled to further
compensation for total disability or permanent impairment.8 The Office found that appellant
refused suitable work and her refusal serves a bar to her receipt of further wage-loss
compensation for disability which may be related to the September 10, 2002 employment injury.
As appellant alleged that her recurrence of disability was due to her September 10, 2002
employment injury, the Office properly denied appellant’s claim for a recurrence of disability on
July 12, 2005, after she refused suitable work.
Because the Office terminated appellant’s compensation due to her refusal of an offer of
suitable work, under section 8106(c)(2) of the Act, she is barred from future entitlement to wageloss compensation for her 2002 employment injury, although she may still receive medical
benefits for her employment-related condition.9 Therefore, the Board finds that appellant’s
recurrence of disability claim is barred.10
CONCLUSION
The Board finds that the Office properly denied appellant’s claim for a recurrence of
disability on July 12, 2005 after she refused suitable work.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.5(d)(1) (July 1997) .
8

5 U.S.C. § 8106(c). See also 20 C.F.R. § 10.517(a).

9

20 C.F.R. § 10.517.

10

Id.; see Merlind K. Cannon, 46 ECAB 517 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 21, 2007 is affirmed.
Issued: April 7, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, CENTRAL CARRIER
STATION, New Orleans, LA, Employer
__________________________________________

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

Docket No. 18-1332
Issued: February 13, 2019

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 June 26, 2018 appellant filed a timely appeal from an April 5, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
on January 8, 2017 while in the performance of duty, as alleged.
FACTUAL HISTORY
On October 12, 2017 appellant, then a 61-year-old supervisor customer service, filed a
traumatic injury claim (Form CA-1) alleging that on January 8, 2017 he sustained a left shoulder
torn rotator cuff when the contents shifted in a heavy package he was lifting while in the
1

5 U.S.C. § 8101 et seq.

performance of duty. He did not stop work. On the reverse side of the claim form, the employing
establishment indicated that notice of the claim was received on October 27, 2017. It controverted
appellant’s claim, noting that he had not reported an injury within 30 days of the alleged
employment incident.
In a letter dated November 3, 2017, J.P., a manager of customer service, noted that
appellant had not informed anyone about the incident, had not mentioned a shoulder injury to him,
and had not displayed an injury to his left shoulder or claimed it was hurting.
By development letter dated November 7, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised him of the type of medical
and factual evidence required and attached a factual development questionnaire for his completion.
OWCP afforded appellant 30 days to provide the requested information.
OWCP thereafter received medical evidence. In progress notes dated July 18, 2017,
Dr. Ronald J. French, Jr., a treating Board-certified orthopedic and hand surgeon, diagnosed left
shoulder impingement tendinosis. He noted that appellant related that he had no recent injury or
trauma to his left shoulder, but recently he performed a lot of lifting at work. Appellant also
informed Dr. French that he had sustained a left shoulder injury several years prior. A review of
an x-ray interpretation revealed mild degenerative changes at the acromioclavicular joint of the
left shoulder. On physical examination Dr. French reported mild left shoulder tenderness
anterolaterally, no swelling or bruising, full range of motion, pain on internal rotation, and positive
impingement sign on abduction.
In a progress report dated August 22, 2017, Dr. French diagnosed possible rotator cuff tear.
Physical examination of appellant’s left shoulder revealed no tenderness or swelling, full range of
motion, positive impingement sign, and positive supraspinatus stress test.
In a statement dated October 13, 2017, appellant related that, while he was working on
Sunday, January 8, 2017, he noticed several large boxes on a flatbed truck that needed to be
relocated. While lifting a very heavy package, he noticed that the weight of the contents shifted
to his left side. Appellant alleged that this caused trauma to his left shoulder. He explained that
he did not report the incident at the time as he believed that he would be okay as it was a slight
problem. However, as time progressed appellant found that he had decreased ability to use his left
arm to lift things. Eventually, he was referred to a specialist who performed a magnetic resonance
imaging (MRI) scan, which showed a left shoulder rotator cuff tear requiring surgery.
By decision dated December 8, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the January 8, 2017 employment incident
occurred as alleged.
On February 1, 2018 OWCP received an undated statement from appellant which provided
additional details regarding the alleged January 8, 2017 incident. Appellant related that the 50- to
60-pound package he lifted on the day in question was unstable and that the contents in the package
shifted as he walked with it. No one was present at the time as all the carriers had left and he did
not report it the following day because the pain was not severe and he believed that it would go
away. However, as time progressed appellant related that he experienced left shoulder pain and

2

discomfort in the morning while performing varied employment duties, and in the afternoon while
distributing buckets of mail and parcels. According to appellant, he did not connect his left
shoulder condition with his lifting of the parcel on January 8, 2017 until his memory was triggered
in September 2017.
On November 17, 2017 J.P. issued a letter of warning to appellant for failing to comply
with the regulations and safety rules that resulted in a shoulder injury. He noted that, on Friday,
October 27, 2017, appellant sent him an e-mail informing him that he had injured his left shoulder
on January 8, 2017. When questioned about the delay, appellant related that he assumed it was a
minor injury, like a pulled muscle, and that he would be fine. He related that he did not seek
treatment with his treating physician until he could not lift or move anything and received physical
therapy from August to September 2017. While receiving physical therapy, it was discovered that
appellant had a torn rotator cuff. Appellant also stated that he sought medical treatment on his
own without any authorization. J.P. concluded that appellant had failed to immediately inform
anyone in management of the injury, which had caused injury to appellant and cost to the
employing establishment.
On February 1, 2018 appellant requested reconsideration. OWCP also received copies of
progress reports from Dr. French previously of record, and a new report from him dated
November 14, 2017. In the November 14, 2017 report, Dr. French related appellant’s physical
examination findings and again diagnosed a rotator cuff tear.
By decision dated April 5, 2018, OWCP reviewed appellant’s statements in detail and
found that the evidence of record was insufficient to establish that the January 8, 2017 employment
incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually experienced

2

Supra note 1.

3

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

4

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

5

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

3

the employment incident at the time, place, and in the manner alleged.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.7
To establish that, an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action.8 Such circumstances as late notification
of injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury, and failure to obtain medical treatment may, if otherwise unexplained, cast
doubt on an employee’s statements.9 However, an employee’s statement regarding the occurrence
of an employment incident is of great probative force and will stand unless refuted by strong or
persuasive evidence.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed his claim for a January 8, 2017 traumatic injury on October 12, 2017. He
alleged that he injured his left shoulder when the contents of a heavy package he was carrying
shifted. In a supplemental statement, appellant explained that at the time of the alleged incident
he lifted a parcel off a flatbed truck to transport to another section. The parcel weighed between
50 and 60 pounds and the contents shifted while he carried it. Appellant did not immediately
report the alleged incident, nor did he seek immediate medical attention. However, on
November 17, 2017 the employing establishment issued a letter of warning to him indicating that
his failure to timely report the incident caused injury. This employing establishment document at
least suggests that appellant was charged with misconduct for not reporting an accepted incident
and injury.
By decision dated April 5, 2018, OWCP noted receipt of the employing establishment’s
November 17, 2017 letter of warning, however, it made no findings relative to fact of injury given
the employing establishment’s letter of warning which sought to impose discipline based upon
failure to report an employment incident which occurred in the performance of duty. As the
Board’s decisions are final as to the subject matter appealed,11 OWCP’s evaluation of the evidence
should be clear and detailed so that the reader understands the reason for the disallowance of the

6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras,
supra note 3.
8

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

9

Linda S. Christian, 46 ECAB 598 (1995).

10

Gregory J. Reser, 57 ECAB 277 (2005).

11

20 C.F.R. § 501.6(d).

4

benefit and the evidence necessary to overcome the defect of the claim.12 Herein, although OWCP
noted the existence of the November 17, 2017 letter of warning, it did not review and address the
evidence as it may relate to fact of injury.
This case must be returned to OWCP for a proper decision to include findings of fact
regarding the November 17, 2017 letter of warning. After such further development as necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated April 5, 2018 is set aside and the case is remanded to OWCP for further
proceedings consistent with this opinion.
Issued: February 13, 2019
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

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013); see also
Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0998
Issued: May 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 11, 2016 appellant filed a timely appeal from a February 17, 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 case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a head injury
on January 29, 2015 in the performance of duty; and (2) whether he met his burden of proof to
establish an emotional or stress-related physical condition in the performance of duty.
FACTUAL HISTORY
On February 17, 2015 appellant, then a 46-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on January 29, 2015 he fainted and bumped his
1

5 U.S.C. § 8101 et seq.

head on the floor after his supervisor threatened him and failed to allow him a rest break. He
also alleged that he experienced stress affecting his heart. Appellant stopped work on
January 29, 2015. His supervisor noted that he was unsure whether the incident “was staged or
not.”
In a statement dated January 29, 2015, W.K., a coworker, related that he and another
individual found appellant alone on the floor unresponsive and called for emergency services.
S.W., a coworker, related in a statement dated January 30, 2015 that he and W.K. found
appellant on the floor near the counter with labored breathing. They called emergency services.
Dr. Trevor John Mills, an osteopath, evaluated appellant at the emergency department on
January 29, 2015. He noted that the chest pain began after he had an “argument with his boss.”
Dr. Mills diagnosed chest pain and emotional stress.
Dr. Jennifer E. Morley, who specializes in emergency medicine, indicated on January 30,
2015 that appellant could return to full-time work on January 31, 2015.
Appellant filed a grievance alleging that on January 29, 2015 P.K., a supervisor, refused
to let him take a break, asked him in a loud voice why he was so late returning to the office,
slammed his fist against a table, and threatened to fire him like he had fired appellant’s nephew.
He advised that he felt dizzy and fell, but the supervisor did not call for emergency assistance.
Appellant believed P.K. was retaliating against him because he had filed a January 6, 2014
grievance when Y.M., a supervisor, told appellant he was on P.K.’s “hit list.”
Dr. Arash Nassim, a gastroenterologist, treated appellant on February 3, 2015 for chest
pain and an acute stress reaction. In progress reports dated February 24 and March 17, 2015, he
noted a variety of health issues, including generalized anxiety disorder and acute reaction to
stress. Dr. Nassim found appellant should remain off work from February 25 to March 18, 2015.
Y.M. responded on February 19, 2015 that he had not harassed appellant, but instead
assigned him work as necessary to manage mail. He related, “At no time have I singled out any
one driver to do a job, but use the drivers I have available to me at that time.”
In an interview dated February 19, 2015, W.K. advised that on January 29, 2015 he found
appellant “lying on the ground kind of up against the counter, he was unresponsive to me
touching him or talking to him.” Appellant did not seem unconscious as his eyes moved, but he
related that it did not appear that appellant had fallen but rather “like he slid down the side of the
counter, or maybe collapsed slowly onto the ground. Appellant’s turban was on his head and he
was lying flat with his left hand on his chest and his right hand on the ground.”
On February 24, 2015 the employing establishment controverted the claim, noting that
the medical evidence did not discuss a head injury and that it was unclear how appellant fell.
By letter dated March 9, 2015, OWCP requested that appellant submit additional factual
and medical information, including a detailed description of the work factors to which he
attributed his condition.

2

In a report dated March 17, 2015, Dr. Nassim related that on January 29, 2015 appellant’s
supervisor had advised appellant that he was going to be fired like he had fired his cousin.
Appellant became dizzy and fell to the ground, but the supervisor did not call for emergency
services. Appellant’s coworkers found him and called an ambulance. Dr. Nassim referred him
to a neurologist as appellant had continued anxiety and difficulty concentrating.
Appellant provided a statement on March 25, 2015 describing the events of
January 29, 2015. He began work at 12:00 p.m., took lunch from 2:30 to 3:00 p.m., and was
unloading mail at 6:25 p.m. when P.K. instructed him to go to another location. P.K. denied
appellant’s request for a rest break even though he had worked almost six hours with no break
and was entitled to receive two rest breaks each eight hours. After appellant returned to the
office at 8:45 p.m., P.K. yelled at him and threatened him. Appellant provided copies of
grievances that had been filed by his coworkers against P.K. and Y.M. He also submitted a copy
of a Step 2 grievance that he had filed on November 18, 2014 alleging that on October 16, 2014
Y.M. had singled him out for inventory and told appellant that he was on P.K.’s “hit list.” The
employing establishment denied the Step 1 grievance on November 9, 2014.2 On April 10, 2015
appellant appealed the Step 1 grievance, arising out of the events on January 29, 2015, to
arbitration.
In a February 6, 2015 statement, received by OWCP on April 10, 2015, appellant related
that P.K. had assigned appellant a mail delivery at 6:25 p.m. on January 29, 2015 and had denied
his request for a break. When he returned, P.K. asked appellant why he was late and he
responded that P.K. should check appellant’s form. The supervisor accused him in a loud voice
of planning to be late, slammed his fist on the table, and threatened to fire him like he had fired
appellant’s nephew. Appellant believed that C.D., a manager, gave P.K. his personal family
information. He related “When he was still threatening me, my legs started shaking, my head
started spinning, and I felt dizzy and fell on the floor and I was unconscious.” Appellant
indicated that he was discharged from the hospital the following day. He maintained that P.K.
refused to call an ambulance for him.
Appellant further questioned why the employing establishment had not taken action on
his November 6, 2014 grievance against P.K. and Y.M. He asserted that P.K. would telephone
him on his mobile telephone even when he was driving and could not take the call. The
supervisor would then harass appellant because he did not answer his telephone. Appellant
submitted a copy of his schedule for January 29, 2015.
In a February 11, 2015 interview, P.S., a coworker, related that he was at his desk on
January 29, 2015 when appellant returned to his work location. He left the office for five or six
minutes and, when he got back, appellant was lying on the floor and did not respond.
C.D., in an April 13, 2015 statement, related that based on an interview with two
employees it appeared that appellant had lain or sat down on the floor and had not fallen. She
asserted that Y.M. and P.K. did not treat any employees differently or in a poor manner. C.D.
advised that appellant’s grievance was denied. She denied ever discussing appellant’s family
2

Appellant also filed a grievance alleging that on October 9, 2014 he was forced to work overtime and perform
work from a different craft.

3

information with P.K., but did discuss work performance and other matters with him in his
capacity as a supervisor.
On April 14, 2015 P.K. advised that appellant did not request a break after P.K. had
instructed him to deliver mail to another location on January 29, 2015. He indicated that
appellant’s schedule did include a scheduled lunch break, but did not provide break times as they
were built into the routine. P.K. asked appellant to deliver mail during his standby time and,
when he returned, asked him in front of P.S. why it took appellant so long to make the delivery
in a professional manner. P.K. left the office and when he returned he found appellant lying on
the floor. P.K. denied slamming his fist, referring to firing his nephew, or receiving any personal
information about him from C.D. He denied threatening appellant, but did tell him that he would
talk to him tomorrow with a union steward present. P.K. noted that appellant was released from
the hospital the same night with no restrictions. He denied harassing appellant for not answering
his mobile telephone, but indicated that he only called about work matters. P.K. indicated that
appellant provided his mobile telephone for work communications.
The employing establishment submitted statements from supervisors, Y.M. and T.O.,
indicating that appellant and other employees were insubordinate, did not follow instructions,
took repeated breaks, and created a hostile work environment.3
By decision dated July 30, 2015, OWCP denied appellant’s claim for a stress-related
condition after finding that he had not established any compensable work factors. It informed
him that, as he was attributing his condition to events occurring over the course of more than one
workday, it had converted his claim to an occupational disease.
In a report dated July 2, 2015, received by OWCP on September 2, 2015, Dr. Kenneth
Cheung, a neurologist, provided a history of appellant fainting on January 29, 2015 after his
supervisor yelled at him and threatened to fire him. He diagnosed an adjustment disorder with
anxiety, altered mental state, staring spell, cognitive changes, and migraine.
On August 26, 2015 appellant requested a review of the written record. He maintained
that a February 26, 2015 grievance settlement established harassment by Y.M. Appellant related
that he worked on January 29, 2015 without a break. He disputed that he had been insubordinate
and noted that P.S. had not been present when P.K. threatened him. He also questioned why the
employer had not obtained statements from his regular supervisors. Appellant attached his usual
work schedule effective April 15, 2014 and his January 29, 2015 schedule. His usual schedule
reflects break times, but also notes that appellant was on standby time from 6:36 p.m. until 7:50
p.m.
In an emergency department report dated January 30, 2015, received by OWCP on
September 2, 2015, Dr. Mills obtained a history that appellant had been experiencing chest pain
after his supervisor threatened to fire him. He related, “During this argument he had the gradual
onset of left-sided chest heaviness, feeling of ‘shallow breathing,’ [and] lightheadedness. He sat
down on the ground and ‘did [not] feel like speaking to anyone’ for about 10 minutes, therefore
3

The record also contains statements from coworkers generally indicating that they witnessed appellant
unconscious on the floor on January 29, 2015 and a statement indicating that P.K. was disrespectful.

4

bystanders called EMS [emergency medical services]. [Appellant] reports that he was conscious
during this time just having a lot of pain.” Dr. Mills diagnosed chest pain and emotional stress
and discharged him from the emergency department.
C.D. signed a grievance settlement on February 26, 2015 regarding appellant’s
October 15, 2014 allegation that Y.M. had told appellant that he was on P.K.’s “hit list.” It
provided that both employees and supervisor would treat each other with dignity and respect, and
that the agreement constituted a settlement of all issues.
Appellant submitted behavioral therapy notes dated February through June 2015 and an
August 10, 2015 discharge summary describing his treatment for major depressive disorder and
post-traumatic stress disorder. In a treatment note dated June 26, 2014, Dr. Mahendra Singh, a
Board-certified internist, related a history of a concussion after a head injury in January 2015
which rendered appellant “unconscious for approximately 15 minutes.” Dr. Singh diagnosed
hypertension, chronic headaches, a history of concussion, and depression with anxiety.
In a report dated November 17, 2015, Dr. Janak Mehtani, a Board-certified psychiatrist,
noted that appellant became dizzy after P.K. yelled at him and thereafter appellant sat down on
the floor. He related, “Apparently, [appellant] fell backwards, passed out, and was unconscious
for a few minutes.” Dr. Mehtani diagnosed major depressive disorder with anxiety attacks and
post-traumatic stress disorder, compulsive personality traits, and recurrent headaches.
In a decision dated February 17, 2016, an OWCP hearing representative affirmed the
July 30, 2013 decision. He found that appellant had not established an emotional condition or
stress-related condition due to the work factors on January 29, 2015. The hearing representative
further determined that he had not established that he fainted and fell onto the floor on
January 29, 2015 and that, even if he had established that he fell and hit his head, the medical
evidence was insufficient to show that he sustained an injury.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, the employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner

4

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

5

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

alleged, by a preponderance of the reliable, probative, and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that his disability and/or condition relates to the
employment incident.8
As noted, the first fact of injury component to be established is that the employee actually
experienced the employment incident which is alleged to have occurred.9 An injury does not
have to be confirmed by eyewitnesses in order to establish that an employee sustained an injury
in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his subsequent course of action.10 An employee has not
met his or her burden of proof in establishing the occurrence of an injury when there are such
inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11
ANALYSIS -- ISSUE 1
Appellant contended that he fainted on January 29, 2015 and fell, striking his head on the
floor. The Board finds that there are inconsistencies in the evidence that cast serious doubt upon
his assertion that he lost consciousness or fainted and fell to the floor on January 29, 2015.
Appellant’s coworkers, W.K. and S.W., found him alone and unresponsive on January 29, 2015
and called emergency services. W.K. advised that it appeared that he had slowly collapsed to the
ground or slid down from the counter rather than fell, and that his left hand was on his chest and
his right on the ground.
Additionally, the most contemporaneous medical evidence does not provide support for
the factual component of appellant’s claim. In the January 30, 2015 emergency report, Dr. Mills
obtained a history of appellant sitting down on the floor due to chest pain after his supervisor
threatened to fire him. He noted that appellant did not lose consciousness. In a report dated
March 17, 2015, Dr. Nassim related that appellant felt dizzy and fell on January 29, 2015. While
he subsequently asserted that he fainted on January 29, 2015, the Board finds that the emergency
room report constitutes the most probative evidence and establishes that he did not faint or lose
consciousness on January 29, 2015.12 Consequently, the Board finds that appellant has not
established fact of injury due to inconsistencies in the evidence that case serious doubt as to
whether the traumatic incident occurred at the time, place, and in the manner alleged.
6

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

9

See Louise F. Garnett, 47 ECAB 639 (1996).

10

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

11

Id.

12

See S.W., Docket No. 12-1127 (issued October 10, 2012).

6

Additionally, appellant has not submitted any medical evidence showing that he sustained
an injury due to the alleged January 29, 2015 work incident. Dr. Mills’ January 30, 2015
emergency room report noted that he had chest pain after an argument with his supervisor. He
indicated that appellant sat on the ground after the argument and did not want to speak to anyone
for around 10 minutes. Dr. Mills diagnosed chest pain and emotional stress. Dr. Nassim treated
appellant in February for chest pain and an acute reaction to stress. On March 17, 2015 he noted
that appellant experienced dizziness and fell to the ground after his supervisor told him that he
was going to fire him. Dr. Nassim referred appellant to a neurologist. Neither Dr. Mills nor
Dr. Nassim diagnosed a head injury, and thus their opinions are of little probative value.
On June 26, 2015 Dr. Singh indicated that appellant related a history of a head injury and
concussion in January 2015 with a loss of consciousness for 15 minutes. He diagnosed chronic
headaches, a history of concussion, hypertension, and depression with anxiety. Dr. Singh,
however, did not address the cause of the diagnosed conditions and thus his opinion is of little
probative value on the issue of causation.13 Additionally, he relied upon a history of appellant
sustaining a concussion and loss of consciousness in January 2015, which is not supported by the
evidence.14
Dr. Mehtani, on November 17, 2015, advised that appellant experienced dizziness after
P.K. yelled at him such that he fainted and fell backwards. He diagnosed emotional conditions
and recurrent headaches. Dr. Mehtani did not find that appellant sustained an injury to his head
on January 29, 2015, and thus his opinion is insufficient to meet appellant’s burden of proof.
As appellant has not established the factual or medical component of his claim, he has not
met his burden of proof to establish that he sustained an injury on January 29, 2015 in the
performance of duty.
LEGAL PRECEDENT -- ISSUE 2
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 regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.15 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.16

13

See K.W., 59 ECAB 271 (2008).

14

See Roger Dingess, 47 ECAB 123 (1995).

15

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

16

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

7

Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.17 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.18
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.19
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.20 A claimant must
establish a factual basis for his allegations with probative and reliable evidence. Grievances and
Equal Employment Opportunity complaints, by themselves, do not establish that workplace
harassment or unfair treatment occurred.21 The issue is whether the claimant has submitted
sufficient evidence under FECA to establish a factual basis for the claim by supporting his or her
allegations with probative and reliable evidence.22 The primary reason for requiring factual
evidence from the claimant in support of his allegations of stress in the workplace is to establish
a basis in fact for the contentions made, as opposed to mere perceptions of the claimant, which in
turn may be fully examined and evaluated by OWCP and the Board.23
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, 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.24 If a claimant does implicate a factor of
employment, OWCP 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

17

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
18

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

19

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

20

See Michael Ewanichak, 48 ECAB 364 (1997).

21

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

22

See James E. Norris, 52 ECAB 93 (2000).

23

Beverly R. Jones, 55 ECAB 411 (2004).

24

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

8

record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.25
ANALYSIS -- ISSUE 2
Appellant alleged that he sustained an emotional condition as the result of a traumatic
injury on January 29, 2015. The Board finds that, while appellant primarily attributed his
condition to events occurring on January 29, 2015, he also raised allegations occurring over the
course of more than one work shift, and thus his claim is properly considered as an occupational
disease claim.26
OWCP denied appellant’s emotional condition claim as he did not establish any
compensable employment factors. The Board must, therefore, initially review the record of
evidence to determine whether these alleged incidents and conditions of employment are covered
work factors under FECA.
Appellant’s contentions do not pertain to the performance of his regular or specially
assigned duties under Cutler.27 Rather, he alleged error and abuse in administrative matters and
harassment by his supervisor.
In Thomas D. McEuen,28 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employing establishment is not covered
under FECA as such matters pertain to procedures and requirements of the employer and do not
bear a direct relation to the work required of the employee. The Board noted, however, that
coverage under FECA would attach if the facts surrounding the administrative or personnel
action established error or abuse by employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.29
Appellant alleged that P.K. erred in ordering him to deliver more mail on January 29,
2015 without a break. The assignment of work is an administrative function and, absent error or
abuse, not compensable.30 Appellant related that on January 29, 2015 he began work at 12:00
25

Id.

26

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).
27

See supra note 16.

28

See Thomas D. McEuen, supra note 18.

29

See Richard J. Dube, 42 ECAB 916 (1991).

30

See Robert W. Johns, 51 ECAB 137 (1999).

9

p.m. and took lunch from 2:30 to 3:00 p.m. At 6:25 p.m., P.K. instructed him to go to another
location and denied his request for a break. In a statement dated April 14, 2015, P.K. asserted
that appellant had not asked for a break and advised his schedule did not provide a scheduled
break time other than lunch. He was instead on standby time when the supervisor instructed him
to deliver mail. Appellant has not provided any evidence corroborating that P.K. erred or acted
abusively in instructing him to deliver mail the evening of January 29, 2015.
The Board further finds that appellant has not factually established that C.D. disclosed
information about his family to P.K. Both C.D. and P.K. denied discussing his personal
information and appellant has not submitted factual evidence corroborating his allegation.
Appellant has the burden of proof to establish a factual basis for his allegations with reliable and
probative evidence.31 Consequently, he has not established a compensable work factor.
Appellant primarily attributed his chest pain and acute stress reaction to harassment and
verbal abuse by P.K. on January 29, 2015. He asserted that P.K. asked him in a loud voice why
it took him so long to return from a delivery, slammed his fist on a table, and threatened to fire
him. Harassment and discrimination by supervisors and coworkers, if established as occurring
and arising from the performance of work duties, can constitute a compensable work factor.32 A
claimant, however, must substantiate allegations of harassment and discrimination with probative
and reliable evidence.33 Additionally, verbal altercations with supervisors, when sufficiently
detailed by the claimant and supported by the record, may constitute factors of employment.
This does not imply, however, that every statement uttered in the workplace will give rise to
coverage under FECA.34
On April 14, 2015 P.K. advised that he had asked appellant, in a professional manner,
why his delivery took so long. He denied threatening appellant but did inform him that P.K.
wanted to speak to him the next day in front of a union steward. Appellant did not submit any
corroborating evidence to support the alleged harassment or verbal abuse by P.K. on January 29,
2015 and thus has not established a compensable work factor.
Appellant alleged that P.K. called his mobile telephone while he was driving and
harassed him for not answering. P.K. indicated that he only telephoned about work matters and
had not harassed him for not answering while driving. Appellant has not submitted evidence
substantiating his assertion and thus has not established a compensable work factor.
Appellant maintained that the employing establishment approved his grievance regarding
actions taken by Y.M. on October 15, 2014. A February 26, 2015 grievance settlement indicated
that supervisors and managers should treat each other respectfully and that this constituted a
settlement of the grievance. Grievances and Equal Employment Opportunity complaints by

31

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

32

T.G., 58 ECAB 189 (2006); Doretha M. Belnavis, 57 ECAB 311 (2006).

33

C.W., 58 ECAB 137 (2006); Robert Breeden, 57 ECAB 622 (2006).

34

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

10

themselves do not establish that workplace harassment or unfair treatment occurred.35 The issue
is whether the claimant has submitted sufficient evidence under FECA to establish a factual basis
for the claim by supporting his allegations with probative and reliable evidence. The primary
reason for requiring factual evidence from the claimant in support of his allegations of stress in
the workplace is to establish a basis in fact for the contentions made, as opposed to mere
perceptions of the claimant, which in turn may be fully examined and evaluated by OWCP and
the Board.36 The grievance settlement did not find harassment by management but instead
merely noted that the parties should treat each other with respect. The Board finds that appellant
has not established a factual basis for his claim of harassment by probative and reliable
evidence.37
For the foregoing reasons, appellant has not established a compensable employment
factor and therefore did not establish that he sustained an emotional condition in the performance
of duty.38
On appeal appellant advised that he submitted supporting medical and factual
information. As discussed, however, it is insufficient to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a head injury in the performance of
duty on January 29, 2015. The Board also finds that he has not established an emotional
condition in the performance of duty.

35

See J.D., Docket No. 09-0818 (issued August 10, 2009).

36

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

37

See R.V., Docket No. 10-0652 (issued November 10, 2010).

38

As appellant has not established any compensable employment factors, the Board need not address the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).

11

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
William H. Brawner, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1308
Issued: September 17, 2015

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 22, 2015 appellant, through counsel, filed a timely appeal from a May 14, 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) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish disability on or after
September 28, 1979 due to his accepted work injuries.
FACTUAL HISTORY
OWCP accepted that on November 4, 1978 appellant, then a 40-year-old letter carrier,
sustained cervical and low back strains when his postal vehicle was struck from behind by

1

5 U.S.C. §§ 8101-8193.

another vehicle.2 In a November 20, 1978 report, Dr. Leopold Garbutt, an attending
Board-certified orthopedic surgeon, referenced the November 4, 1978 vehicular accident and
stated that a review of appellant’s systems was “benign except for musculoskeletal where he has
a compliant of low back pain.” He diagnosed lumbosacral strain.
Appellant received continuation of pay from November 7 to December 25, 1978 and
disability compensation for intermittent periods between December 26, 1978 and
August 29, 1979. He returned to limited-duty work on a full-time basis on August 30, 1979
without any wage loss. Appellant resigned from the employing establishment effective
September 28, 1979. He filed a claim alleging that he was entitled to disability compensation
beginning September 28, 1979 due to his accepted work injuries.
In support of his claim, appellant submitted reports of Dr. Roger L. Weir, an attending
Board-certified neurologist. Dr. Weir began treating appellant in 1981. On February 22, 1984
he opined that appellant’s problems with his back and neck were “caused by processes which
were induced by his injuries in 1972 and 1978.” Dr. Weir noted that appellant’s work limitations
were “due to these injuries.” In a May 8, 1984 report, he noted that appellant was first seen in
January 1981 when he presented with pain in his back, neck, and legs. Appellant reported that
“his back had been going out” since the fall of 1981 and that he would fall to the ground and be
unable to get up.
By decision dated January 9, 1986, OWCP denied appellant’s claim. It found that he
failed to submit sufficient medical evidence to establish that he was disabled on or after
September 28, 1979 due to his accepted work injuries.
On August 15, 2011 appellant requested reconsideration of his claim and submitted
additional reports of Dr. Weir. On August 13, 1987 Dr. Weir indicated that appellant’s
symptoms seemed to fluctuate and opined, “[Appellant’s] symptoms may be exacerbated by
returning to a job with sustained physical activities.” He diagnosed back pain, neck pain, and
muscle spasms. In a January 9, 1991 report, Dr. Weir indicated that appellant’s symptoms were
markedly exacerbated by his prior work. He diagnosed back pain, neck pain, muscle spasm,
hypertension, and hypercholesterolemia.
In an April 8, 2013 decision, OWCP affirmed the denial of appellant’s claim. It found
that he had not submitted sufficient medical evidence to establish disability on or after
September 28, 1979 due to his accepted work injuries.
In an April 9, 2014 decision,3 the Board affirmed OWCP’s April 8, 2013 decision finding
that appellant had not met his burden of proof to establish disability on or after September 28,
1979 due to his accepted work injuries. The Board determined that the medical evidence
submitted by appellant, including the reports of Dr. Weir, did not contain a rationalized opinion

2

OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972 due to lifting
encyclopedias at work.
3

Docket No. 13-1910 (issued April 9, 2014).

2

that he sustained any disability due to his January 8, 1972 or November 4, 1978 work injuries for
any specific period.
Appellant submitted a number of new medical reports after OWCP issued its April 8,
2013 decision. The new evidence was not available to the Board on his prior appeal. In a
June 13, 2013 report, Dr. Allen H. Macht, an attending Board-certified general surgeon,
discussed appellant’s January 8, 1972 work injury, which affected his low back, and his
November 4, 1978 work injury, which affected his neck and low back.4 He detailed the
treatment of appellant’s neck and low back problems after his November 4, 1978 work injury
and noted that he presently continued to complain of severe constant pain in his neck and back.5
Dr. Macht indicated that on physical examination appellant exhibited tenderness upon palpation
of his posterior neck and low back and noted that he had limited range of motion in his neck and
back. He determined that appellant was unable to perform his prior position of letter carrier.
Dr. Macht noted that appellant was totally and permanently disabled from work and opined:
“It appears that this disability is causally related to the November 4, 1978 accident
at work. There is no evidence of any other accidents or injuries in [appellant’s]
medical records. His arthritic changes due to his aging as documented in his
medical records does [sic] not seem sufficient to be approximate [sic] cause of his
disability. [Appellant] only has a mild-to-moderate degree of arthritis of the left
wrist and the back region.”
In a June 27, 2013 report, Dr. Macht reported that appellant “continued to suffer residual
industrial loss from injuries sustained in the accidents of January 8, 1972 and
November 4, 1978.” He indicated that these “residual impairments” were permanent.
In a May 16, 2014 report, Dr. Macht discussed appellant’s January 8, 1972 and
November 4, 1978 work injuries and his treatment for neck and low back problems. He noted
that appellant continued to exhibit tenderness upon palpation of his posterior neck and low back
and had limited range of motion in his neck and back. Dr. Macht discussed diagnostic testing of
appellant’s neck and back obtained in 1984 and 1991 and diagnosed musculoligamentous sprain
of his neck and back with mild-to-moderate spondylosis and left carpal tunnel syndrome with
moderate arthritic changes of his left wrist. He noted that appellant was totally and permanently
disabled from work due to his November 4, 1978 work injury and opined:
“It appears that this disability is causally related to the November 4, 1978 accident
at work. There is no evidence of any other accidents or injuries in [appellant’s]
medical records. His arthritic changes due to his aging as documented in his
medical records does [sic] not seem sufficient to be approximate [sic] cause of his
disability. [Appellant] only has a mild-to-moderate degree of arthritis of the left
wrist and the back region.
4

Dr. Macht indicated that on November 4, 1978 appellant’s vehicle was struck from behind by another vehicle
while he was at a stop and his vehicle was forced into another vehicle in front of him. He noted that appellant was
“thrown about injuring his neck.”
5

Dr. Macht discussed diagnostic testing of appellant’s back obtained in 1991 and 1993.

3

“[Appellant’s] injuries are not trivial. His November 4, 1978 accident required a
nearly two-week hospitalization. Even though no fractures or dislocations have
been noted, [appellant] has significant disc disease, especially in the neck region.
He also has left carpal tunnel syndrome. Based on medical probability, these
conditions are due to the January 8, 1972 and November 4, 1978 accidents. At
the time of [appellant’s] 1978 accident he was only 40 years old. The significant
changes noted on the studies presented above are more likely accidental than age
related considering his age at the time. These injuries have not ‘healed on their
own.’ I would not use the term ‘healed’ to describe [appellant’s] current
condition.”
By letter dated May 28, 2014, counsel, on behalf of appellant, requested reconsideration
of OWCP’s denial of appellant’s claim for disability compensation beginning
September 28, 1979. He argued that the reports of Dr. Macht established that appellant had
disability beginning September 28, 1979 due to his accepted work injuries.
In an August 25, 2014 decision, OWCP denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a) noting that the evidence that he submitted
was “cumulative and thus substantially similar to evidence or documentation that is already
contained in the case file and was previously considered.”
In a January 9, 2015 decision,6 the Board set aside OWCP’s August 25, 2014 decision
and remanded the case to OWCP for further development. The Board found that the evidence
appellant submitted in support of his May 2014 reconsideration request, including reports of
Dr. Macht, constituted relevant and pertinent evidence which had not previously been considered
by OWCP. Therefore, the submission of this new and relevant evidence required reopening of
appellant’s claim for merit review. The Board directed that the case be remanded to OWCP for
it to conduct a merit review of appellant’s claim, pursuant to 5 U.S.C. § 8128(a), and to issue an
appropriate merit decision regarding his claim for disability compensation.7
By decision dated May 14, 2015, OWCP found that appellant did not meet his burden of
proof to establish disability on or after September 28, 1979 due to his accepted work injuries. It
determined that the medical evidence submitted by him, including the reports of Dr. Macht, did
not contain a rationalized medical opinion relating his disability on or after September 28, 1979
to residuals of his January 8, 1972 or November 4, 1978 work injuries.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
6

Docket No. 14-1939 (issued January 9, 2015).

7

In a January 15, 2015 letter, counsel referenced the Board’s January 9, 2015 decision and again requested
reconsideration on behalf of appellant. A copy of Dr. Macht’s May 16, 2014 report was resubmitted.

4

and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. 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 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues, which must be proved by a preponderance of reliable, probative, and substantial
medical evidence.10
ANALYSIS
OWCP accepted that on November 4, 1978 appellant sustained cervical and low back
strains when his postal vehicle was struck from behind by another vehicle.11 Appellant received
continuation of pay from November 4 to December 25, 1978 and disability compensation for
intermittent periods between December 26, 1978 and August 29, 1979. He returned to
limited-duty work on a full-time basis on August 30, 1979 without any wage loss. Appellant
resigned from the employing establishment effective September 28, 1979 and claimed that he
was entitled to receive disability compensation beginning September 28, 1979 due to his
accepted work injuries. In January 9, 1986 and April 8, 2013 decisions, OWCP denied his claim
for work-related disability on and after September 28, 1979 because he did not submit sufficient
medical evidence to establish such a claim.
In an April 9, 2014 decision, the Board affirmed OWCP’s April 8, 2013 decision finding
that appellant had not met his burden of proof to establish disability on or after September 28,
1979 due to his accepted work injuries. On January 9, 2015 the Board remanded the case to
OWCP to conduct a merit review and consider the new and relevant evidence appellant
submitted after OWCP issued its April 8, 2013 decision.
The Board now finds that appellant did not submit sufficient medical evidence to meet
his burden of proof to establish that he had disability on or after September 28, 1979 due to his
accepted work injuries. Appellant submitted several reports from Dr. Macht, an attending
Board-certified general surgeon, but these reports do not contain the requisite rationalized
medical evidence to establish his disability claim.12
8

J.F., Docket No. 09-1061 (issued November 17, 2009).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

10

W.D., Docket No. 09-658 (issued October 22, 2009).

11

OWCP previously accepted that appellant sustained a lumbar strain on January 8, 1972 due to lifting
encyclopedias at work.
12

Appellant previously submitted reports of Dr. Weir, an attending Board-certified neurologist. In its April 9,
2014 decision, the Board explained that these reports did not establish his claim because they lacked medical
rationale showing that he had disability on or after September 28, 1979 due to his accepted work injuries.

5

In a June 13, 2013 report, Dr. Macht noted that appellant was totally and permanently
disabled from work and stated, “It appears that this disability is causally related to the
November 4, 1978 accident at work.” He noted that there was no evidence of any other
accidents or injuries in appellant’s medical records. Dr. Macht indicated that appellant only had
mild-to-moderate arthritis of his wrist and back and stated, “[Appellant’s] arthritic changes due
to his aging as documented in his medical records does [sic] not seem sufficient to be
approximate [sic] cause of his disability.”
The Board finds, however, that this report is of limited probative value with respect to
appellant’s claim that he had work-related disability on or after September 28, 1979 because it
does not contain adequate medical rationale in support of its opinion on causal relationship.13
Dr. Macht did not explain how appellant’s January 8, 1972 or November 4, 1978 work injuries,
which were only accepted for soft tissue injuries to his neck and low back, would be competent
to cause disability on or after September 28, 1979. He indicated that appellant was totally
disabled at the time he produced his June 13, 2013 report, but he did not identify any specific
period of disability or explain how the limited objective findings he observed on that date caused
total disability.
In a June 27, 2013 report, Dr. Macht noted that appellant “continued to suffer residual
industrial loss from injuries sustained in the accidents of January 8, 1972 and
November 4, 1978.” He indicated that these “residual impairments” were permanent. However,
this report is of limited probative value because Dr. Macht did not provide any explanation for
this conclusory statement on causal relationship. The Board has found that a report is of limited
probative value on the issue of causal relationship if it presents a conclusion on causal relationship
without an explanation for that conclusion.14
In a May 16, 2014 report, Dr. Macht also concluded that appellant was totally and
permanently disabled from work due to his November 4, 1978 work injury. He repeated his
earlier statement that appellant only had mild-to-moderate arthritis of his wrist and back and that
his “arthritic changes due to his aging as documented in his medical records does [sic] not seem
sufficient to be approximate [sic] cause of his disability.” Dr. Macht again failed to provide
sufficient discussion, highlighting specific medical evidence including diagnostic testing, to
support this argument. Moreover, he contradicted himself later in the same report when he
suggested that appellant’s disc disease was due to the November 4, 1978 accident rather than due
to aging. OWCP has not accepted any condition other than soft tissue injuries, i.e., neck and
lumbar strains, and Dr. Macht did not explain how such a condition could have been caused or
aggravated by the January 8, 1972 or November 4, 1978 injury. Dr. Macht also suggested that
appellant had left carpal tunnel syndrome which was related to the November 4, 1978 accident,
but no such condition has been accepted by OWCP or established by the medical evidence of
record. He indicated that appellant’s November 4, 1978 injury was not “trivial” and required
13

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
14

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on
the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).

6

hospitalization in 1978, but such general comments would not serve as a substitute for medical
rationale explaining how his accepted injuries caused disability on or after September 28, 1979.
On appeal counsel argues that the May 16, 2014 report of Dr. Macht contained adequate
medical rationale to establish that appellant had disability on or after September 28, 1979 due to
his accepted work injuries. However, he has not provided sufficient support for his argument
that Dr. Macht’s report contained such probative weight. Counsel argues that appellant’s
nonwork-related degenerative disc disease had been “ruled out” as a cause of appellant’s
continuing residuals and disability. However, Dr. Macht also did not explain why appellant’s
disability on or after September 28, 1979 was not due to some nonwork-related condition, such
as the natural progression of underlying degenerative disc disease. Although he posited that
appellant’s degenerative disc condition was not responsible for his continuing neck and back
problems, he did not provide any specific discussion of the medical evidence, including the
findings of diagnostic testing, to support this argument.
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 did not meet his burden of proof to establish disability on
or after September 28, 1979 due to his accepted work injuries.

7

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2015
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

8