United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Seattle, WA,
Employer
__________________________________________

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Appearances:
John E. Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-875
Issued: March 24, 2011

Oral Argument February 15, 2011

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

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from the January 14, 2010 merit
decision of the Office of Workers’ Compensation Programs terminating his compensation.
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 met its burden of proof to terminate appellant’s
compensation effective July 31, 2009 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
In June 2008, the Office accepted that appellant, then a 47-year-old bulk mail technician,
sustained chronic sinusitis, nasal cavity polyps and extrinsic asthma due to exposure to dust and
fumes in his work environment. It paid compensation for periods of disability.

In a May 12, 2008 report of test results obtained on May 7, 2008, a certified industrial
hygienist advised that the dust levels in the employing establishment were measured using two
different methods to determine if it should be considered as nuisance dust and/or a health hazard
for the employees performing certain tasks. The eight-hour Time-Weighted Average dust levels
were measured at five locations inside the building. All locations had a very low level of
airborne dust and all of the measured dust levels were below the permissible exposure limit for
workers.
In a May 14, 2008 report, Dr. Ernest Weymuller, Jr., an attending Board-certified
otolaryngologist, stated that he removed crusting with purulent material from appellant’s sinuses.
He indicated that appellant reported that, despite attempts to be moved to another location, he
was working in an environment that had a significant amount of dust which aggravated his
sino-nasal conditions. Dr. Weymuller stated:
“In my opinion, it is certainly appropriate for [appellant] to be making this request
and I think all effort should be made to move him out of a dusty environment or,
at the very least, to provide him constant protection with face masks and
hopefully he can avoid this exposure which certainly is not making it any easier
for him to heal up from his surgery.”
In reports dated in mid 2008, Dr. Christine M. Puig, an attending Board-certified
otolaryngologist, stated that, due to his chronic sinus disease and allergy condition, appellant
should be working in a dust-free environment without chemical fumes or mold. She advised that
his sinus and allergic conditions were permanent with periodic flare-ups and recommended that
he wear a face mask at work.1
The Office referred appellant to Dr. Gerald Randolph, a Board-certified otolaryngologist,
for further evaluation. It asked Dr. Randolph to address whether the diagnosed conditions were
medically connected to the work injury by direct cause, aggravation or precipitation and, if
aggravation was indicated, whether it is temporary or permanent. Dr. Randolph was also asked
whether wearing a face mask provided by the employer to lessen exposure to inhaled dust would,
on a more likely than not basis, allow appellant to work his regular job as a bulk mail technician.
On October 27, 2008 Dr. Randolph reviewed a description of appellant’s medical history
and reported findings on examination.2 He indicated that both Dr. Puig and Dr. Weymuller had
recommended that appellant use a face mask in environments that cause his allergies to flare.
Dr. Randolph stated, “However, [appellant] states that the face mask is uncomfortable and he
develops a claustrophobic sensation with the use of the face mask. Therefore, he refuses to use
the face mask.” On physical examination appellant’s nose revealed mild posterior naso-septal
deflection to the right and obvious surgical changes in the right side of the nose related to prior
1

Dr. Puig indicated that appellant underwent several sinus surgeries, including a Lothrop frontal sinus surgery
procedure in February 2008. This procedure removed the frontal recess of the sinus and a portion of the superior
nasal septum to allow for adequate frontal sinus drainage. In October 2001, appellant underwent bilateral revision
sphenoethmoidectomy, partial middle turbinate resection and nasal polypectomy.
2

Dr. Randolph indicated that appellant first underwent nasal surgery in 1989.

2

ethmoid surgery. The nasal mucosa was entirely normal, no polyps were visualized and there
was no evidence of active infection or current membrane changes related to allergy.
Dr. Randolph diagnosed multiple environmental and food allergies by history, allergic rhinitis
and recurrent nasal polyposis secondary to allergies and chronic pansinusitis by history
secondary to allergic rhinitis and recurrent nasal polyposis.
Dr. Randolph concluded that the accepted diagnoses were medically connected to the
work environment by aggravation of appellant’s nonwork-related multiple allergy condition. He
reported that appellant experienced temporary aggravations of his condition due to dust and
vapors in his workplace. Dr. Randolph expected that these aggravations would occur when
appellant was “exposed to workplace environmental allergens that would be related to acute
exacerbation of his allergic rhinitis.” Such aggravations might hasten development of nasal
polyps, sinus blockage, sinus infection and the potential need for surgical intervention.
Dr. Randolph indicated that after the current normal examination of appellant’s nose he could
not describe any “injury-related factors of disability at this time.” He noted that appellant
subjectively complained of headaches but indicated that he did not evaluate headache conditions.
With respect to appellant’s work restrictions, Dr. Randolph stated:
“[Appellant] should not work in an environment, which would aggravate his
inhalant allergy conditions. Normally, the use of a proper face mask would be
adequate protection from inhalant allergies. However, [appellant] apparently
refuses to utilize the face mask due to his sensation of difficulty breathing and
claustrophobia related to the use of a mask.”
***
“The use of a proper face mask would protect [appellant] from inhaled
environmentally present allergens. If he were able to tolerate the face mask, this
would allow him to continue his work as a bulk mail technician.”3
The Office provided Dr. Randolph with the report of the airborne dust levels measured at
the employing establishment in May 2008 and asked for a supplemental opinion. In a March 12,
2009 report, Dr. Randolph noted that the report showed dust levels below levels that would be
considered hazardous by the Occupational Safety and Health Administration. He stated:
“[Appellant’s] problem would not be so much related to the measured levels of
dust and particulate matter in the air as to the degree of [his] allergic response to
breathing those things to which he is personally allergic.
“I do not specialize in allergy testing or allergy treatment. My otolaryngology
background included the treatment of ear, nose and throat problems that occur as
a consequence of [appellant’s] allergies. Therefore, review of this material does
not change the opinions expressed in my report dated October 27, 2008.
Questions regarding [appellant’s] allergic response to potential allergens that may
3

In a work restrictions form, Dr. Randolph checked a “no” indicating that appellant could not currently perform
his regular work, but stated, “OK, if able to use face mask.”

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be present in the [employing establishment] should be referred to the appropriate
allergy specialist.”
After review of Dr. Randolph’s reports, the employer offered appellant the full-time
position of modified bulk mail technician on April 6, 2009. The job involved resolving customer
complaints and inquiries and providing mailing options and information to promote customer
satisfaction. The offer stated, “This job offer is within the following medical limitations: Using
face mask.”
In an April 20, 2009 letter, the Office advised appellant of its determination that the
modified bulk mail technician position offered by the employer was suitable. It informed him
that his compensation would be terminated if he did not accept the position or provide good
cause for not doing so within 30 days of the date of the letter.
In an April 28, 2009 letter, appellant noted that while the job offer indicated he would be
allowed to wear a mask, it was the same job that he held when he filed his claim. He stated that
he previously attempted to wear a mask at work but experienced difficulty in breathing due to his
asthma condition.
In an April 28, 2009 report, Dr. Puig reiterated that appellant had problems with chronic
sinusitis, asthma and recurring nasal and sinus polyps exacerbated by his work environment.
Appellant’s most recent sinus surgery was April 10, 2008 and he experienced one full year of
near disease-free sinus status due to improved breathing conditions facilitated by avoiding a
work environment with dust and chemical fumes. Dr. Puig stated that the modified bulk mail
technician position was not suitable because it was the same job in the same dusty and chemical
fume-filled environment that caused the initial aggravation of his chronic sinusitis, asthma and
recurring nasal and sinus polyps. She recommended a position in another field with less
exposure to chemical fumes and dust. In a May 8, 2009 report, Dr. Puig stated that appellant was
“unable to work wearing a mask for reasons related to upper respiratory reactive airway disease
(asthma) and sensation of claustrophobia.”
In a June 25, 2009 letter, the Office advised appellant that his reasons for not accepting
the modified bulk mail technician position offered by the employer were unjustified. It informed
him that his compensation would be terminated if he did not accept the position within 15 days
of the date of the letter. The Office found that there was no medical evidence that appellant had
ever been diagnosed with claustrophobia and that this condition prevented him from wearing a
face mask. Appellant did not accept the position.
In a July 31, 2009 decision, the Office terminated appellant’s compensation effective
July 31, 2009 on the grounds that he refused an offer of suitable work. It indicated that the
opinion of Dr. Randolph showed that appellant could perform the position.
Appellant requested a hearing before an Office hearing representative. At the
November 4, 2009 hearing, he testified that he thought he would be sent to a dust-free
environment and noted that his physician recommended another type of job. Counsel argued that
Dr. Randolph failed to accept the facts outlined in the statement of accepted facts in that he did
not acknowledge that appellant had several chronic work-related conditions. He maintained that

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appellant’s refusal of the offered position was based on medical advice. Counsel also questioned
whether the Office referral physician should have been a pulmonologist rather than an
otolaryngologist.
In a November 5, 2009 report, Dr. Puig reported that overall appellant was doing well,
but that he needed to continue avoiding environments that would trigger his allergies.
In a January 14, 2010 decision, the Office hearing representative affirmed the Office’s
July 31, 2009 decision indicating that the weight of the medical evidence regarding appellant’s
ability to perform the position offered by the employer continued to rest with the opinion of
Dr. Randolph.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”4 However, to justify such termination, the Office
must show that the work offered was suitable.5 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.6
The Board has held that the equivocal or speculative nature of a given medical opinion
lessens the probative value of that opinion.7 A medical opinion that is not based on a complete
and accurate factual and medical history is of limited probative value.8
ANALYSIS
In June 2008, the Office accepted that appellant sustained chronic sinusitis, nasal cavity
polyps and extrinsic asthma due to exposure to dust and fumes in his work environment. It paid
him compensation for periods of disability. On April 6, 2009 the employer offered appellant the
full-time position of modified bulk mail technician.9 The job offer stated, “This job offer is
within the following medical limitations: Using face mask.” The Office determined that the job
was suitable based on the October 27, 2008 and March 12, 2009 reports of Dr. Randolph, a
Board-certified otolaryngologist who served as an Office referral physician. Appellant refused
the position and the Office terminated his compensation effective July 31, 2009 for refusing
suitable work.
4

5 U.S.C. § 8106(c)(2).

5

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

6

20 C.F.R. § 10.124; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956).

8

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

9

The job involved resolving customer complaints and inquiries and providing mailing options and information to
promote customer satisfaction.

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On appeal, counsel asserted that the Office had not shown that the modified bulk mail
technician offered by the employer was suitable. Therefore, the Office had not supported its
termination of appellant’s compensation effective July 31, 2009 for refusing suitable work.
Appellant argued that Dr. Randolph’s opinion was of limited probative value because he did to
acknowledge that appellant’s work-related sinus, allergic and asthma conditions were chronic in
nature. Counsel also asserted that the evidence established that appellant was not able to wear a
face mask for medical reasons, could not perform the modified bulk mail technician position and
had been asked to return to the same environment which caused his original problem.
The Board finds that medical evidence does not establish that appellant is capable of
performing the modified bulk mail technician position offered by the employer in April 2009 and
determined by the Office to be suitable.10 In finding that appellant was capable of performing
the modified bulk mail technician position, the Office relied in the opinion of Dr. Randolph.
In an October 27, 2008 report, Dr. Randolph diagnosed multiple environmental and food
allergies by history, allergic rhinitis and recurrent nasal polyposis secondary to allergies and
chronic pansinusitis by history secondary to allergic rhinitis and recurrent nasal polyposis.11 He
noted that Dr. Puig and Dr. Weymuller, two attending Board-certified otolaryngologist, had
recommended that appellant use a face mask in environments that cause his allergies to flare.
Dr. Randolph provided an opinion that appellant could perform his regular bulk mail technician
position if he could tolerate wearing a mask.
The Board finds that Dr. Randolph’s opinion on appellant’s ability to perform the
modified bulk mail technician position is equivocal and speculative in nature. Therefore, his
opinion on this matter is of limited probative value.12 Dr. Randolph’s opinion is rendered
equivocal by the fact that he did not provide a clear opinion regarding whether appellant’s
medical condition would allow him to wear a mask on a regular basis. He advised that appellant
reported having trouble breathing while wearing a mask. Given that appellant had extrinsic
asthma, chronic sinusitis and other conditions that might affect his breathing, Dr. Randolph did
not adequately explain the effect these conditions had on appellant’s ability to tolerate wearing a
face mask.13
Dr. Randolph’s opinion on appellant’s ability to perform the modified bulk mail
technician position is also rendered speculative by his March 12, 2009 report. He noted that
appellant’s problem would not be so much related to the measured levels of dust and particulate
matter in the air as to the degree of his allergic response to breathing those matters to which he
10

The Board notes that there is no indication that the modified bulk mail technician position was temporary or
seasonal in nature see Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining WageEarning Capacity, Chapter 2.814.4b (July 1997).
11

Dr. Randolph concluded that the accepted diagnoses were medically connected to the work environment by
aggravation of his nonwork-related multiple allergy condition.
12

See supra note 7.

13

The record contains evidence in which a medical reason is advanced for appellant’s inability to wear a mask.
In a May 8, 2009 report, Dr. Puig stated that appellant was “unable to work wearing a mask for reasons related to
upper respiratory reactive airway disease (asthma) and sensation of claustrophobia.”

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was allergic.14 Dr. Randolph suggested that appellant would not be able to tolerate even the
relatively low levels of allergens found in his workplace without wearing a mask. He further
advised that he was not able to provide fully informed opinion on such matters by stating, “I do
not specialize in allergy testing or allergy treatment. My otolaryngology background included
the treatment of ear, nose and throat problems that occur as a consequence of [appellant’s]
allergies…. Questions regarding [appellant’s] allergic response to potential allergens that may
be present in the employing establishment should be referred to the appropriate allergy
specialist.”15 Dr. Randolph’s reports do not resolve the question of whether appellant’s allergic
conditions allow him to perform the modified bulk mail technician position.16
For these reasons, the medical evidence is not sufficient to establish that the modified
bulk mail technician position offered by the employer was suitable. The Office improperly
terminated appellant’s compensation effective July 31, 2009 on the grounds that he refused an
offer of suitable work.
CONCLUSION
The Board finds that the Office did not meet its burden of proof to terminate appellant’s
compensation effective July 31, 2009 on the grounds that he refused an offer of suitable work.

14

The Office had provided Dr. Randolph with findings of dust measurements in appellant’s workplace.

15

Dr. Randolph indicated that he was not changing the opinion contained in his October 27, 2008 report, but it
appears that he was only referring to matters within his competence to render an opinion.
16

Moreover, Dr. Randolph’s opinion does not appear to be based on a complete and accurate factual and medical
history. See supra note 8. The Office accepted that work factors caused chronic sinusitis, nasal cavity polyps and
extrinsic asthma, but Dr. Randolph did not adequately acknowledge the chronic nature of appellant’s medical
condition, particularly his asthma and sinusitis.

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ORDER
IT IS HEREBY ORDERED THAT the January 14, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, GOVERNMENT
MAILS, Washington, DC, Employer
__________________________________________

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Appearances:
Lamar L. Grigsby, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1862
Issued: March 1, 2018

Case Submitted on the Record

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

JURISDICTION
On August 24, 2016 appellant, through his representative, filed a timely appeal from a
June 9, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).2
Pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
Together with his appeal request, appellant submitted a timely request for oral argument pursuant to 20 C.F.R.
§ 501.5(b). By order dated February 7, 2017, the Board exercised its discretion and denied the request as appellant’s
arguments on appeal could be adequately addressed in a decision based on a review of the case as submitted on the
record. Order Denying Request for Oral Argument, Docket No. 16-1862 (issued February 7, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish an emotional
condition in the performance of duty on April 14, 2016, as alleged.
FACTUAL HISTORY
On April 20, 2016 appellant, then a 51-year-old mail handler, filed a traumatic injury
claim (Form CA-1) for an unspecified stress-related medical condition. He alleged that he
sustained injury on April 14, 2016 due to a stressful and hostile work environment. Appellant
described the nature of his injury as “mentally stressful daily situations with co-workers.” The
employing establishment represented that the claimed injury did not occur in the performance of
duty. It noted that on April 14, 2016 appellant was involved in a verbal altercation with another
mail handler, and that the incident was pending investigation.
In an April 14, 2016 statement, appellant indicated that a coworker, S.P., approached him
yelling and cursing, and asked “What the f... [was] I doing?” and “How come I was not helping
[another] employee [S.A.].” He told S.P. to get away from him and to stop talking to him.
Appellant also indicated that he and S.P. came face-to-face, at which point he smelled alcohol on
S.P.’s breath. He stated that he then realized S.P. was intoxicated and trying to provoke a fight
with him. Appellant walked away and called the supervisor, L.R., who was not in the building at
the time. He then walked outside to wait for L.R. Appellant later explained the situation to L.R.,
and he reportedly told him that he would speak to S.P. Another supervisor, A.N., arrived and
appellant again explained the situation. A.N. advised appellant that he would look into the
matter.
S.P. also provided an April 14, 2016 written statement. He indicated there was a
disagreement about who would work the mail that had been put in his work area. Appellant and
S.A. were back there, but nothing was getting done. S.P. stated that he felt upset that they might
leave the work for him and go on to some other project. He noted that he previously had to mail
for ZIP Codes 20510 and 20515 because someone had not done. S.P. stated that, when he
returned from the restroom, it looked like S.A. was about to begin the work, so he asked
appellant if he was going to let her do it all by herself. At that point, appellant “went off.” S.P.
stated that appellant tried to intimidate him by the way he approached him, but S.P. was not
intimidated and the two exchanged words. Afterwards, he was alone doing the mail by himself,
as suspected would happen.
In an April 16, 2016 e-mail/statement, A.N., noted that an altercation occurred on
April 14, 2016 at approximately 2:30 p.m. between S.P. and appellant. He was not present at the
time of the incident, but learned about it from Acting Supervisor L.R. When he returned to the
employing establishment around 3:00 p.m., everything was quiet. A.N. approached appellant
and asked for a written statement. He indicated that appellant stated that S.P. smelled of alcohol
and he had started cursing at him. Appellant also indicated that S.P. was trying to provoke him.
A.N. then spoke with S.P., who “basically said that they had words and [appellant] was in his
face.” Neither appellant nor S.P. told A.N. what really happened or why they were arguing. He
asked S.P. whether he had been drinking, and he replied that he had some drinks the previous

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(Wednesday) evening. A.N. stated that S.P. appeared to have just come to work after awakening
from a hangover. He instructed both appellant and S.P. to go home.
In an April 22, 2016 statement, S.A. indicated that on April 14, 2016 S.P. noticed a
situation where mail had been mishandled and asked appellant “Who did this?” Appellant then
walked over to the wire cage and said, “I did this,” and then walked back to his stool. S.P.
walked over and stopped by the OTR (over the road) container, cussed (to himself), and then
asked appellant, “Are you going to let [S.A.] do this mail all by herself?” S.A. observed
appellant jump up from his stool, walk over, and “chest bump” S.P. Appellant reportedly stated
to S.P. “Man I gave you one pass [and] I’m not going to give you another.” At that point, S.A.
walked away and yelled for the group leader’s assistance.
Acting Supervisor L.R. also provided an April 22, 2016 written statement. He indicated
that he was out of the building on April 14, 2016 when a problem arose between two coworkers.
When he returned, he spoke first with appellant and then S.P. L.R. indicated that S.P. stated
“pretty much” what appellant had previously told him. He then went on to describe work
assignments he made prior to the reported confrontation between appellant and S.P.
In a development letter dated May 4, 2016, OWCP informed appellant of the type of
evidence needed to support his claim and requested that he submit such evidence within 30 days.
In an August 27, 2015 letter, S.A. explained that she was uncomfortable with regard to
workplace behavior. She referred to an incident on August 26, 2015. S.A. indicated that
appellant screamed at her and asked her why she was in his work area. She noted that another
coworker, S.F. joined in with him. S.A. noted that management needed to take action.
In a workplace harassment interview dated April 23, 2016, appellant repeated the
circumstances regarding the incident that occurred between him and S.P. on April 14, 2016.
Appellant indicated that he was subjected to a hostile work environment.
In a letter dated April 23, 2016, A.C., a former supervisor, reported two instances that
occurred between him and appellant. He noted that appellant, on an occasion, called him an “old
ass bitch.” On the other occasion, appellant slammed all-purpose containers (APC) with a great
amount of force and could have hurt someone. A.C. noted that when appellant was approached
by the acting supervisor, L.R., appellant told him to “get the f*** out of the way.” He indicated
that appellant “constantly and continuously disrespects and disrupts our working environment.”
In an April 24, 2016 statement, K.M., a coworker, noted that she was disrespected by
appellant. She referenced an incident where appellant shouted and stated that he hated her and
that she made him sick and he was tired of her. K.M. completed an interview on April 28, 2016
and noted that she does not speak to appellant.
S.P. also completed a workplace harassment interview dated April 28, 2016. He
explained that appellant was supposed to assist him with a work load, along with S.A. However,
they left and appellant indicated that he was not going to help anyone.
In a May 19, 2016 treatment note, Dr. Jessica Morris, a Board-certified psychiatrist,
requested that appellant be excused from work for the period April 15 to May 28, 2016 due to a
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medical condition. She advised that appellant was incapacitated from work due to effect mood
symptoms were having on his activities of daily living, which was prompted by stress at work
and a hostile environment. Dr. Morris diagnosed adjustment disorder and indicated that he was
currently under treatment.
By decision dated June 9, 2016, OWCP denied appellant’s emotional condition claim. It
found that on April 14, 2016 appellant had a disagreement with a coworker, S.P., about a work
assignment. However, OWCP determined that the accepted incident/event was not a
compensable factor of employment.
LEGAL PRECEDENT
To establish that he sustained an emotional condition causally related to factors of his
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to his condition;
(2) rationalized medical evidence establishing that he has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that his emotional condition is
causally related to the identified compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.5 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.6
To the extent that incidents alleged as constituting harassment or a hostile work
environment are established as occurring and arising from appellant’s performance of his regular
duties, these could constitute employment factors.7 For harassment to give rise to a compensable
disability under FECA, there must be evidence that harassment did in fact occur.8 Allegations of
harassment must be substantiated by reliable and probative evidence.9 Mere perceptions of
harassment are not compensable.10
4

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

5

Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

6

Lillian Cutler, id.

7

P.T., Docket No. 14-2011 (issued February 5, 2015); see also David W. Shirey, 42 ECAB 783, 795-96 (1991);
Kathleen D. Walker, supra note 4 at 608.
8

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

9

Joel Parker, Sr., 43 ECAB 220, 225 (1991).

10

Donna J. DiBernardo, supra note 8.

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Verbal altercations and difficult relationships with co-workers/supervisors/managers,
when sufficiently detailed and supported by the record, may constitute compensable factors of
employment.11 However, this does not imply that every ostensibly abusive or threatening
statement uttered in the workplace will give rise to coverage under FECA.12 For appellant to
prevail on his claim, he must support his allegations with probative and reliable evidence.13
When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter, OWCP must base its decision on an analysis of the
medical evidence.14
ANALYSIS
Appellant alleged that on April 14, 2016, he sustained an emotional condition as a result
of a stressful and hostile workplace. He indicated that on that date, an altercation occurred
between him and a coworker, S.P. OWCP denied his emotional condition claim finding that he
had not established any compensable employment factors. The Board must review whether the
alleged incident and conditions of employment are covered employment factors under the terms
of FECA.
Appellant has not attributed his emotional condition to the regular or specially assigned
duties of his position as a mail handler. Therefore, he has not alleged a compensable factor
under Cutler.15
Appellant alleged that he sustained an emotional condition as a result of stress related to
an incident on April 14, 2016. The Board notes that the incident was essentially a verbal
disagreement between appellant and his coworker, S.P., about who was going to complete a
work assignment. The record contains a statement from A.N., the supervisor, who indicated that
at the time of the incident, another supervisor, L.R., informed him that appellant and another
employee, S.P., had a verbal altercation. He investigated the matter and related that appellant
believed S.P. smelled of alcohol and had cursed at him. A.N, noted that S.P. indicated that he
and appellant had “words” and appellant was “in his face.” Regarding drinking, S.P. responded
that he “had some drinks Wednesday night.” A.N. related that he asked both individuals to go
home. Additionally, Mr. Perry explained that he and appellant had “words” because he did not
want to be left working the mail alone.

11

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

12

Fred Faber, 52 ECAB 107, 109 (2000).

13

See Kathleen D. Walker, supra note 4.

14

See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299,
305 (1996).
15

See Cutler, supra note 5.

5

Several coworkers provided statements, which revealed that appellant was, at a
minimum, “disagreeable.” For example, S.A., explained that S.P. asked him if he was going to
let her do the work by herself, when appellant “jumped up from the stool” and chest bumped S.P.
She indicated that he said, “Man I gave you one pass and I’m not going to give you another.”
S.A. indicated that she walked away and yelled for a group leader and assistance. OWCP
received statements from appellant’s colleagues pertaining to other incidents on other dates,
wherein appellant engaged in disagreeable activities such as screaming at his coworkers, and
calling them names such as “old ass bitch” and told them to “get the f*** out of the way.”
The Board finds that the occurrence of April 14, 2016 was not a compensable factor of
employment. Rather, appellant has a quick temper and difficulty getting along with others, and
this would not be considered to be an event which would be accepted as a compensable factor of
employment. In as much as the dispute arose out of an assignment of work, the Board has long
held that the assignment of work is an administrative function, and the manner in which a
supervisor exercises his or her discretion falls outside the coverage of FECA.16 Moreover, not
every statement uttered in the workplace will give rise to coverage under FECA.17
Where a claimant has not established any compensable employment factors, the Board
need not consider the medical evidence of record.18
On appeal appellant’s representative argues that the medical evidence supports that
appellant’s stress was prompted by a stressful hostile work environment. However, as found
above, appellant has not established a compensable factor of employment. As such, the Board
need not consider the medical evidence of record.19
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition in the performance of duty on April 14, 2016, as alleged.

16

See D.C., Docket No. 16-0312 (issued June 22, 2016).

17

V.W., 58 ECAB 428 (2007).

18

A.K., 58 ECAB 119 (2006).

19

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Albuquerque, NM, Employer
__________________________________________

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Appearances:
Edward Daniel, for the appellant
Office of Solicitor, for the Director

Docket No. 07-267
Issued: July 3, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2006 appellant, through his representative, filed a timely appeal from a
September 28, 2006 merit decision of the Office of Workers’ Compensation Programs modifying
its prior wage-earning capacity determination. 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 met its burden of proof to modify its June 1, 1992 wageearning capacity determination.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated June 14, 2006, the
Board reversed a July 19, 2005 decision modifying appellant’s July 1, 1992 wage-earning
capacity determination and affirming an overpayment of compensation.1 The Board found that
1

Docket No. 06-89 (issued June 14, 2006).

the evidence established that appellant had been vocationally rehabilitated. The Board further
found, however, that the Office did not establish that in 1999 he earned 25 percent more in his
rated position as a General Schedule (GS) 13, Step 7, automation specialist beginning in 1999.
The Board also determined that the Office had “not adequately explained why it compared
appellant’s current earnings under the employing establishment’s revised compensation system
to the current earnings he made in his GS position which no longer exists at the employing
establishment.” The Board noted that the Office did not ascertain whether it was possible to
“determine the current salary for appellant’s rated position as a GS-13/7, automation specialist
under the reclassified system presently used by the employing establishment.” The findings of
fact and conclusions of the law from the prior decision are hereby incorporated by reference.
On August 11, 2006 the Office informed appellant’s representative that it had requested
clarification of his salary from the employing establishment.2 In a response dated August 15,
2006, the employing establishment provided appellant’s salary at the time of and subsequent to
the October 1, 1998 conversion to the core compensation plan.
On August 28, 2006 the Office notified appellant that it proposed to modify its June 1,
1992 wage-earning capacity determination based on its finding that his earnings on or around
January 1, 2002 were equal to or greater than his GS-13 salary on the date-of-injury and fairly
and reasonably represented his wage-earning capacity.
By letter dated August 30, 2006, appellant’s representative argued that it had calculated
the amount of overpayment incorrectly and requested that the November 24, 2003 overpayment
be vacated.
By decision dated September 28, 2005, the Office finalized its modification of the prior
loss of wage-earning capacity determination. The Office found that appellant was vocationally
rehabilitated and earned 25 percent more beginning around January 1, 2002 than in his position
as a GS-13/7 on the date of injury.
LEGAL PRECEDENT
In Ronald M. Yokota, the Board stated:
“Once the wage-earning capacity of an injured employee is properly determined,
it remains undisturbed regardless of actual earnings or lack of earnings. A
modification of such determination is not warranted unless there is a material
change in the nature and extent of the injury-related condition, the employee has
been retrained or otherwise vocationally rehabilitated or the original
determination was in fact erroneous. The burden is on the Office to establish that
there has been a change so as to affect the employee’s capacity to earn wages in
the job determined to represent his earning capacity. Compensation for loss of

2

The letter from the Office to the employing establishment requesting additional salary information is not
contained in the case record.

2

wage-earning capacity is based upon the loss of the capacity to earn and not on
actual wages lost.”3
The Office’s procedure manual provides guidelines as to the modification of loss of
wage-earning capacity:
“c. Increased Earnings. It may be appropriate to modify the rating on the grounds
that the claimant has been vocationally rehabilitated if one of the following two
circumstances applies:
(1) The claimant is earning substantially more in the job for which
he or she was rated. This situation may occur where a claimant
returned to part-time duty with the employing [establishment] and
was rated on that basis, but later increased his or her hours to fulltime work.
(2) The claimant is employed in a new job (i.e. different from the
job for which he or she was rated) which pays at least 25 percent
more than the current pay of the job for which the claimant was
rated.
“(d) [Claims Examiner] (CE) Actions. If these earnings have continued for at
least 60 days, the should:
(1) Determine the duration, exact pay, duties and responsibilities
of the current job.
(2) Determine whether the claimant underwent training or
vocational preparation to earn the current salary.
(3) Assess whether the actual job differs significantly in duties,
responsibilities, or technical expertise from the job at which the
claimant was rated.
“(e). If the results of this investigation establish that the claimant is rehabilitated,
or if the evidence shows that the claimant was retrained for a different job,
compensation may be redetermined using the Shadrick formula.4
ANALYSIS
In the previous appeal, the Board determined that the evidence established that appellant
had been vocationally rehabilitated. The Board found, however, that the Office did not establish
that appellant earned 25 percent more beginning in 1999 than his current earnings in the job for
3

33 ECAB 1629 (1982); see also Marie A. Gonzales, 55 ECAB 395 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11(c)-(e) (June 1996, July 1997).

3

which he was rated in the June 1, 1992 wage-earning capacity determination. The Board
additionally noted that in October 1998, subsequent to appellant’s rating as a GS-13/7 air-traffic
control specialist, the employing establishment revised its compensation system.5 The Board
determined that the Office provided no explanation why it compared appellant’s current earnings
under the new pay system to the current earnings he received under a GS pay system that was no
longer in use by the employing establishment. The Board found that the Office should have
clarified whether it was possible to compare his current earnings in his vocationally rehabilitated
position to his current earnings in his rated position as a GS 13/7 under the new pay system now
used by the employing establishment.
The Office notified appellant’s attorney on August 11, 2006 that it had asked the
employing establishment for additional salary information; however, the letter from the Office to
the employing establishment is not contained in the case record. The employing establishment’s
August 15, 2006 response to the Office’s inquiry provided a history of appellant’s salary
increases from October 1, 1998 to the present. The employing establishment did not submit any
information regarding the current salary of the position for which appellant was rated in the
June 1, 1992 wage-earning capacity determination. In its September 28, 2005 decision, the
Office found that appellant was vocationally rehabilitated and that he earned 25 percent more on
or around January 1, 2002 than in his date-of-injury position. The Office compared appellant’s
current earnings under the revised compensation system to the updated earnings for his date-ofinjury, GS 13/7 position.
As appellant’s representative argues on appeal, the Office failed to consider the Board’s
prior finding that it should obtain information regarding the updated salary under the revised
compensation system for the rated position of air traffic control specialist before modifying
appellant’s wage-earning capacity. Additionally, the Board notes that the Office compared
appellant’s current earnings in his present position to the current earnings in his date-of-injury
position in finding that his earnings had increased by 25 percent. The Office should have
compared his current earnings in his present position to the current earnings in the position for
which he was rated in the June 1, 1992 wage-earning capacity decision.6 Consequently, the
Board again finds that the Office failed to meet its burden of proof to modify its prior wageearning capacity determination.
CONCLUSION
The Board finds that the Office failed to meet its burden of proof to modify the June 1,
1992 wage-earning capacity determination.

5

The position description accompanying the June 1, 1992 wage-earning capacity determination indicated that
appellant’s official position was as an air traffic control specialist and his organizational title was automation
specialist.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11(c)-(e) (June 1996 and July 1997).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2006 is reversed.
Issued: July 3, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Seattle, WA, Employer
__________________________________________

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

Docket No. 20-0565
Issued: November 5, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 15, 2020, appellant filed a timely appeal from a September 13, 2019 merit
decision and a January 6, 2020 nonmerit 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.2

1
2

5 U.S.C. §8101 et seq.

The Board notes that, following the January 6, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP abused its discretion by denying appellant’s request
for authorization of additional left shoulder surgery; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a)
FACTUAL HISTORY
On May 7, 2013 appellant then a 34-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured his left shoulder when lifting a
heavy box while in the performance of duty. He stopped work on May 8, 2013 and returned on
May 9, 2013. OWCP assigned this claim OWCP File No. xxxxxx507 and accepted it for left
shoulder and upper arm sprain. It subsequently expanded acceptance of appellant’s claim to
include left shoulder osteoarthritis, left superior glenoid labrum sprain, and left shoulder adhesive
capsulitis.3
On August 20, 2013 appellant underwent OWCP-authorized left shoulder surgery and
stopped work. OWCP paid him wage-loss compensation on the supplemental rolls beginning
August 25, 2013. On October 7, 2013 appellant returned to full duty. He underwent additional
surgeries on May 27, 2014, March 11, 2015, and February 22, 2018. OWCP paid appellant wageloss compensation for intermittent periods of disability. On April 23, 2018 appellant returned to
full-time limited duty.
Appellant continued to receive medical treatment and OWCP paid him wage-loss
compensation for time lost from work due to medical appointments.
In a May 15, 2019 progress note, Dr. Benjamin Woodhead, an osteopathic physician
specializing in orthopedic surgery, recounted that appellant had a complicated history of left
shoulder pain following a work-related injury. He reviewed appellant’s history and related that
examination of appellant’s left shoulder revealed crepitus with cross body adduction and
tenderness to palpation of the bicipital groove. Dr. Woodhead recommended a left shoulder
magnetic resonance imaging (MRI) scan and assessed that appellant had left shoulder discomfort
and dysfunction, which appeared to be caused by shoulder stiffness and crepitus.
A June 5, 2019 left shoulder MRI scan report revealed mild acromioclavicular joint
arthritis, focal cartilage thinning along the humeral head, and concern for partial tear of the long
head of the biceps tendon.
In a June 10, 2019 progress note, Dr. Woodhead indicated that he saw appellant for followup of a left shoulder MRI scan and complaints of continued left shoulder pain. Upon examination
of the left shoulder, he observed crepitus and no pain with palpation. Dr. Woodhead diagnosed
left shoulder stiffness and chronic shoulder pain. He opined that, if any procedure should be done,
appellant would benefit only from shoulder arthroplasty. Dr. Woodhead explained that a total
3

Appellant also has a prior claim for an April 13, 2011 traumatic injury under OWCP File No. xxxxxx531, which
OWCP accepted right shoulder superior glenoid labrum sprain. OWCP has administratively combined OWCP File
Nos. xxxxxx531 and xxxxxxx507, with the latter serving as the master file.

2

shoulder replacement was the standard approach to the management of right shoulder arthritis and
that shoulder replacement surgery usually resulted in a substantial improvement in the comfort and
junction of an arthritic shoulder.
On July 2, 2019 Dr. Frederick Matsen, III, a Board-certified orthopedic surgeon, requested
authorization for left shoulder replacement surgery.
In a July 12, 2019 report, Dr. Kevin Kuhn, a Board-certified orthopedic surgeon serving as
an OWCP district medical adviser (DMA), reviewed appellant’s medical records and related that
his claim was accepted for left shoulder sprain, left shoulder superior glenoid labrum lesion, and
left shoulder adhesive capsulitis. In response to OWCP’s questions, he answered “Yes” indicating
that appellant’s proposed shoulder replacement was causally related to the accepted May 7, 2013
employment injury. Dr. Kuhn noted that appellant had persistent symptoms since the employment
injury and there was lack of evidence of a preexisting condition. He also responded “No”
indicating that the proposed shoulder replacement surgery was not medically necessary to treat the
accepted May 7, 2013 employment injury. Dr. Kuhn explained that appellant was 40 years old
and had documented mild left shoulder osteoarthritis, as seen on the most recent MRI scan. He
noted that there was no indication of severe joint space narrowing or significant degenerative
changes to indicate that a total shoulder arthroplasty would provide significant pain relief in such
a young claimant.
In a July 17, 2019 progress note, Dr. Woodhead indicated that appellant was seen for
follow up of his left shoulder. He related that appellant’s symptoms had not improved and that
appellant wanted to proceed with left shoulder arthroplasty. Dr. Woodhead noted that a left
shoulder MRI scan revealed chondromalacia over the humeral head. Examination of appellant’s
left shoulder revealed crepitus with cross body adduction and reduced range of motion.
Dr. Woodhead reported “due to the crepitus as well as the focal humeral head defect seen on MRI
[scan], we feel [appellant] would … best benefit from a left shoulder hemiarthroplasty and possible
total shoulder arthroplasty dependent on the condition of his glenoid cartilage.”
In an addendum note, Dr. Matsen, III indicated that he had examined appellant and
reviewed his history. He noted that he concurred with the assessment and subsequent treatment.
Dr. Matsen, III related that shoulder arthroplasty was recommended to address the humeral head
defect. He explained that, at surgery, he would determine if glenoid surgery was also necessary.
By decision dated July 22, 2019, OWCP denied authorization for the proposed total left
shoulder replacement surgery. It found that the weight of the medical evidence rested with the
July 12, 2019 DMA report.
Appellant subsequently underwent a July 17, 2019 left shoulder x-ray examination, which
revealed no bone, joint, or soft tissue abnormality.
On September 10, 2019 appellant requested reconsideration and submitted additional
medical evidence.
In a September 6, 2019 progress note, Alexander L. Bertelsen, a certified physician
assistant, recounted appellant’s complaints of left shoulder pain since a May 2013 work-related

3

injury. He discussed the medical treatment that appellant had received and noted that appellant’s
request for surgery was denied.
By decision dated September 13, 2019, OWCP denied modification of the July 22, 2019
decision.
By separate decision of even date, OWCP expanded acceptance of appellant’s claim to
include left shoulder arthrosis.
On October 23, 2019 appellant requested reconsideration of the September 13, 2019
decision. He indicated that he was submitting new medical evidence and a revised medical note
regarding the requirements for the surgery.
In an October 7, 2019 progress note, Mr. Bertelsen related appellant’s complaints of left
shoulder pain and noted diagnoses of chronic left shoulder pain and left shoulder arthritis. He
reviewed appellant’s history and provided examination findings. Mr. Bertelsen indicated that he
was providing an updated plan based on new x-ray examination. He related that x-ray examination
of appellant’s shoulder showed mild joint space narrowing and some light irregularities on the
surface of the humeral head, including focal cartilage thinning. Mr. Bertelsen opined that this
defect likely was the cause of appellant’s ongoing shoulder pain and explained that shoulders with
these findings are often very painful and have benefitted from shoulder arthroplasty. He reported
that appellant had failed to improve with conservative management and that it was unlikely that
nonoperative management would improve appellant’s shoulder comfort or function.
Appellant submitted reports of diagnostic testing dated October 7, 2019. A left shoulder
x-ray examination report showed no bone, joint, or soft tissue abnormalities. A left shoulder MRI
scan report revealed a shoulder with what appeared to be an area of articular surface humeral head
without a chondral surface.
By decision dated January 6, 2020, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA4 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed by or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in

4

5 U.S.C. § 8103(a).

5

Id.; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

determining whether a particular type of treatment is likely to cure or give relief.6 The only
limitation on OWCP’s authority is that of reasonableness.7
While OWCP is obligated to pay for treatment of employment-related conditions, appellant
has the burden of proof to establish that the expenditures were incurred for treatment of the effects
of an employment-related injury or condition.8 Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.9 In order for a surgical procedure to be
authorized, appellant must establish that the procedure was for a condition causally related to the
employment injury and that the procedure was medically warranted.10 Both of these criteria must
be met in order for OWCP to authorize payment.11
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.12
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of left shoulder total replacement surgery.
In the July 12, 2019 report, Dr. Kuhn provided a comprehensive evaluation, based on a
thorough review of the medical evidence. While he noted that the requested surgery was causally
related to the accepted May 7, 2013 employment injury, he opined that the requested left shoulder
replacement surgery was not necessary for appellant’s accepted left shoulder injury. Dr. Kuhn
explained that there was no indication in the most recent MRI scan of severe joint space narrowing
or significant degenerative changes to indicate that a total shoulder arthroplasty would provide
significant pain relief in such a young claimant. The Board finds that Dr. Kuhn’s report is
sufficiently probative, rationalized, and based upon a proper factual background.13 Therefore,
6

R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-0812 (issued April 3, 2009).

7

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

8

R.M., Docket No. 19-1319 (issued December 10, 2019); J.T., Docket No. 18-0503 (issued October 16, 2018);
Debra S. King, 44 ECAB 203, 209 (1992).
9
K.W., Docket No. 18-1523 (issued May 22, 2019); C.L., Docket No. 17-0230 (issued April 24, 2018); M.B., 58
ECAB 588 (2007); Bertha L. Arnold, 38 ECAB 282 (1986).
10

T.A., Docket No 19-1030 (issued November 22, 2019); Zane H. Cassell, 32 ECAB 1537, 1540-41 (1981); John E.
Benton, 15 ECAB 48, 49 (1963).
11

J.L., Docket No. 18-0990 (issued March 5, 2019); R.C., 58 ECAB 238 (2006); Cathy B. Millin, 51 ECAB 331,
333 (2000).
12

D.S., Docket No. 18-0353 (issued February 18, 2020); E.L., Docket No. 17-1445 (issued December 18, 2018);
L.W., 59 ECAB 471 (2008); P.P., 58 ECAB 673 (2007); Daniel J. Perea, 42 ECAB 214 (1990).
13

See P.L., Docket No. 18-0260 (issued April 14, 2020).

5

OWCP did not abuse its discretion by relying on Dr. Kuhn’s opinion to deny approval for the
proposed left shoulder surgery.
In support of his request for authorization of surgery, appellant submitted progress notes
dated May 15 to July 17, 2019 by Dr. Woodhead. In a June 10, 2019 progress note, Dr. Woodhead
noted examination findings of crepitus and no pain with palpation. He diagnosed left shoulder
stiffness and chronic shoulder pain. Dr. Woodhead reported that appellant would benefit from
shoulder arthroplasty and that a total shoulder replacement was the standard approach to the
management of right shoulder arthritis. The Board finds, however, that Dr. Woodhead did not
provide a sufficient explanation as to how and why the proposed left shoulder replacement surgery
would cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of
monthly compensation.14 Dr. Woodhead did not relate any specific objective findings which noted
that appellant’s accepted conditions had improved or would improve in the future due to the
proposed surgery.
Appellant also submitted progress notes dated September 6 and October 7, 2019, by
Mr. Bertelsen, a certified physician assistant. These reports are of no probative value, however,
because a physician assistant is not considered a physician as defined under FECA.15
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness.16 In the instant case, OWCP obtained a well-rationalized report from Dr. Kuhn
in which he opined that the requested surgery was not warranted for appellant’s accepted May 7,
2013 employment injury. It, therefore, had sufficient evidence upon which it made its decision to
deny surgery and did not abuse its discretion.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.17

14

See L.S., Docket No. 18-1746 (issued April 9, 2019).

15

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants,
nurses, and physical therapists are not competent to render a medical opinion under FECA). 5 U.S.C. § 8101(2); 20
C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (a physician assistant is not considered a physician under
FECA); James A. White, 34 ECAB 515, 518 (1983) (physical therapist); Nemat M. Amer, Docket No. 03-0338 (issued
April 7, 2005) (an acupuncturist is not considered a physician under FECA).
16
Id.; see also A.W., Docket No. 14-0708 (issued January 2, 2015) (the Board found that OWCP did not abuse its
discretion by relying on the opinion of its second opinion examiner as the weight of evidence to deny approval for
elective spinal surgery).
17
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 171287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

6

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.18
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.19 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.20 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant disagreed with the September 13, 2019 decision and timely requested
reconsideration on October 23, 2019. In his October 23, 2019 reconsideration request, he did not
show that OWCP erroneously applied or interpreted a specific point of law, nor did he advance a
new and relevant legal argument not previously considered. Consequently, appellant was not
entitled to a review of the merits based on the first and second above-noted requirements under 20
C.F.R. § 10.606(b)(3).22
Along with his reconsideration request, appellant submitted an October 7, 2019 progress
note, by Mr. Bertelsen. He discussed recent left shoulder x-ray examination findings and
explained that shoulders with these findings have benefitted from shoulder arthroplasty.
Mr. Bertelsen indicated that appellant had failed to improve with conservative management and
that it was unlikely that nonoperative management would improve appellant’s shoulder comfort or
function. While this report is new, it is not relevant as it is substantially similar to Dr. Bertelsen’s
September 6 and October 7, 2019 reports, which were already of record and previously reviewed
by OWCP. Providing additional medical evidence that either duplicates or is substantially similar
18

20 C.F.R. § 10.606(b)(3); see J.W., Docket No. 19-1795 (issued March 13, 2010); see also L.G., Docket No. 091517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued December 9, 2008).
19

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
20

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

21

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

22
Supra note 19; T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583 (issued
December 9, 2008).

7

to evidence of record does not constitute a basis for reopening a case.23 This report, therefore, is
insufficient to warrant further merit review.
Appellant also submitted October 7, 2019 left shoulder x-ray examination and MRI scan
reports. None of the reports, however, included any discussion on whether the proposed left
shoulder surgery was medically necessary to treat his accepted May 7, 2013 employment injury.
The Board notes that the submission of evidence that does not address the particular issue involved
does not constitute a basis for reopening a case.24 As appellant did not provide relevant and
pertinent evidence, he is not entitled to a merit review based on the third requirement under 20
C.F.R. § 10.606(b)(3).25
Accordingly, the Board finds that appellant has not met any of the requirements
enumerated under 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly
denied his request for reconsideration without reopening the case for review on the merits.26
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of additional left shoulder surgery. The Board further finds that OWCP properly
denied his request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

23

L.K., Docket No. 18-1183 (issued May 12, 2020); M.O., Docket No. 19-1677 (issued February 25, 2020).

24

D.C., Docket No. 19-0873 (issued January 27, 2020); Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M.
Nixon-Steward, 52 ECAB 140 (2000).
25

Supra note 19.

26
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E.,
58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

8

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2020 and September 14, 2019
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 5, 2020
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
GENERAL SERVICES ADMINISTRATION,
FEDERAL ACQUISITION SERVICE,
Auburn, WA, Employer
__________________________________________

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

Docket No. 12-1441
Issued: February 13, 2013

Case Submitted on the Record

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

JURISDICTION
On June 21, 2012 appellant, through her counsel, filed a timely appeal from a June 6,
2012 merit decision of the Office of Workers’ Compensation Programs. 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the hearing representative’s June 6, 2012 decision, OWCP received additional
evidence. However, the Board may only review evidence that was in the record at the time OWCP issued its final
decision. See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293
(2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB
373 (2003).

ISSUES
The issues are: (1) whether OWCP properly rescinded its acceptance of appellant’s claim
for aggravation of cervical degenerative disc disease; and (2) whether OWCP met its burden to
terminate compensation benefits effective November 30, 2010.
FACTUAL HISTORY
On December 9, 2010 appellant, then a 46-year-old senior transportation operations
specialist, filed an occupational disease claim alleging that on October 25, 2010 she first became
aware of overuse and strain of her cervical spine and right arm. She stated that it was not until
November 15, 2010 that she first realized that the conditions were due to her working on
computers for extended periods of time. OWCP accepted the claim for aggravation of
degenerative cervical disc disease and a recurrence of disability for the period April 13
to 17, 2011. Appellant stopped work on April 25, 2011.3
In developing various recurrence claims filed by appellant, OWCP received an April 1,
2011 report by Dr. Jason H. Thompson, a treating Board-certified orthopedic surgeon, who
diagnosed cervical disc herniation, significant radiculopathy and axial neck pain. A physical
examination revealed a positive Spurling sign, right arm and forearm muscle atrophy, bilateral
negative Hoffman signs and restricted and painful neck motion. Dr. Thompson opined that
appellant sustained a cervical strain as a result of her work injury and that the majority of her
symptoms were due to her nonemployment-related cervical degenerative disc disease with C5-6
and C6-7 disc herniation. He noted that she attributed the worsening of her symptoms to being
required to work eight hours on a computer. However, Dr. Thompson concluded that appellant
only sustained a cervical strain. In support of this conclusion, he referenced the objective
evidence, the insidious onset and the fact that there was no particular actual injury which would
cause an aggravation.
In a report dated May 9, 2011, Dr. David Y.B. Chang, a treating Board-certified family
practitioner, noted that appellant’s current diagnoses included chronic neck pain and C5-6 lateral
disc herniation and depression. He related that the stressors of dealing with her chronic neck
pain and ongoing work disability issues were the cause of her depression, anxiety and insomnia.
Dr. Chang stated that appellant had been referred to see Dr. Anna Wong, a Board-certified
neurologist, for further evaluation of her neck condition.
In a May 9, 2011 report,4 Dr. Wong reported seeing appellant that day for an evaluation
of neck and arm pain. She diagnosed possible right C6 radiculopathy. A review of a January 20,
2011 magnetic resonance imaging (MRI) scan revealed possible impingement of the right C6
nerve root in C5-6 lateral recess due to focal disc bulge. Dr. Wong related that appellant
continued to have intermittent right arm pain which was exacerbated by certain activities. She
noted that appellant was on disability as she was unable to sufficiently perform her work duties.

3

The Office of Personnel Management approved disability retirement for appellant effective October 13, 2011.

4

This is the date the report was signed by Dr. Wong.

2

Based on this report, appellant was referred for a second opinion evaluation with
Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon. In a July 30, 2011 report,
Dr. Curcin, based upon a review of the medical evidence, statement of accepted facts and
physical examination, concluded that appellant had no aggravation of her underlying cervical
degenerative disc disease due to her work duties. A physical examination revealed 45 degrees
cervical flexion, restricted cervical extension which worsens neck and right arm symptoms, dull
sensation at C5-6, 7, 8 and T1 and flat reflexes at the biceps, triceps and brachioradialis.
Dr. Curcin reported his examination of appellant’s neck revealed cervical degenerative disc
disease and resolved right upper extremity radiculopathy, which were unrelated to appellant’s
computer work. In support of his conclusion, he noted the lack of any objective findings
supporting an aggravation. In addition, Dr. Curcin concurred with Dr. Thompson, appellant’s
treating physician, that she had only sustained a cervical strain which would have resolved
within 6 to 10 weeks, as this is the time frame when this type of musculoligamentous condition is
expected to resolve. He opined that her current condition was due to her cervical degenerative
disc disease, which was not employment related and that she was capable of working full time.
On August 15, 2011 based on the reports of Dr. Thompson and Dr. Curcin, OWCP
proposed to rescind acceptance of aggravation of cervical degenerative disc disease, to terminate
appellant’s compensation benefits on the grounds that she no longer had any residuals or
disability due to her accepted employment injury.
In a letter dated September 6, 2011, appellant’s counsel disagreed with the August 15,
2011 OWCP proposed decision.
By decision dated December 15, 2011, OWCP finalized the rescission of its acceptance
of appellant’s claim for aggravation of cervical degenerative disease and accepted the condition
of cervical strain. It further terminated her wage-loss and medical compensation effective
November 30, 2010 finding no work-related disability due to her accepted cervical strain.
On December 16, 2011 appellant’s counsel requested an oral hearing before an OWCP
hearing representative, which was held on March 15, 2012.
Following appellant’s request for an oral hearing OWCP received reports for the period
December 9, 2011 through May 4, 2012 from Dr. Steve Hufman, a treating Board-certified
family practitioner, who diagnosed cervical degenerative disc disease with right C7 radicular
symptoms. In a December 9, 2011 report, Dr. Hufman noted that she had worked as a computer
administrator and that her symptoms progressed gradually over the years. In a March 22, 2012
report, he did not believe that there was a causal relationship between appellant’s years of
working on a computer and her degenerative disc disease.
By decision dated June 6, 2012, an OWCP hearing representative affirmed the rescission
of appellant’s claim for aggravation of cervical degenerative disease and the acceptance of her
claim for cervical strain. She also found that appellant had no residuals or disability due to her
accepted cervical strain after November 30, 2010.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on his or her own motion or on application.5 The
Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under
section 8128 of FECA and, where supported by the evidence, set aside or modify a prior decision
and issue a new decision.6 The Board has noted, however, that the power to annul an award is
not an arbitrary one and that an award for compensation can only be set aside in the manner
provided by the compensation statute.7
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provisions, where there is good cause for so doing, such as mistake or fraud.8 It is well
established that, once OWCP accepts a claim, it has the burden of justifying the termination or
modification of compensation benefits. This holds true where, as here, OWCP later decides that
it erroneously accepted a claim. In establishing that, its prior acceptance was erroneous, OWCP
is required to provide a clear explanation of the rationale for rescission.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to rescind its acceptance of
appellant’s claim for aggravation of cervical degenerative disc disease. OWCP detailed how the
reports of Drs. Curcin and Thompson showed that employment factors identified by appellant
would not have caused an aggravation of her underlying cervical degenerative disc condition, but
would only have caused a cervical strain.
In his April 1, 2011 report, Dr. Thompson diagnosed cervical disc herniation, significant
radiculopathy and axial neck pain. He opined that appellant sustained a cervical strain as a result
of her work injury and that the majority of her symptoms were due to her nonemploymentrelated cervical degenerative disc disease with C5-6 and C6-7 disc herniation. In support of this
conclusion that she only sustained a cervical strain as a result of her work injury, Dr. Thompson
referenced the objective evidence, the insidious onset of the condition and the fact that there was
no particular actual injury.
Dr. Curcin also concluded that appellant had only sustained cervical strain and that her
underlying cervical degenerative disc condition had not been aggravated by appellant’s computer
work. He indicated that he concurred with Dr. Thompson’s assessment of a cervical strain, but
that her underlying degenerative cervical condition had not been aggravated by the identified
5

5 U.S.C. § 8128.

6

D.G., 59 ECAB 74 (2008); L.C., 58 ECAB 493 (2007); John W. Graves, 52 ECAB 160 (2000).

7

20 C.F.R. § 10.610.

8

V.C., 59 ECAB 137 (2007).

9

S.R., Docket No. 09-2332 (issued August 16, 2010); H.G., 59 ECAB 552 (2008); John W. Graves, supra note 6.

4

work factor. Based on the evidence submitted by Drs. Curcin and Thompson, the Board finds
that OWCP met its burden of proof to rescind acceptance of aggravation of degeneration of
cervical intervertebral disc. The reports from Drs. Chang and Wong are insufficient to create a
conflict in the medical opinion evidence as they do not explain or discuss how appellant’s
cervical degenerative disease had been aggravated by her computer work.
OWCP received various reports from Dr. Hufman who diagnosed cervical degenerative
disc disease with right C7 radicular symptoms but found no causal relationship between
appellant’s years of working on a computer and her degenerative disc disease. This report
supports OWCP’s rescission of acceptance of aaggravation of her preexisting cervical
degenerative disc disease. Appellant has not submitted any probative medical evidence
establishing causal relationship between the aggravation of cervical degenerative disc disease
and her employment factors.
On appeal, appellant’s counsel contended that OWCP provided leading questions to
Dr. Curcin. Contrary to appellant’s contention, the questions posed to Dr. Curcin were
appropriate. He was asked to provide his opinion on which neck conditions were found on
examination, which diagnosed conditions as described in the statement of accepted facts were
due to computer work and whether there was a material or temporary aggravation to the
preexisting condition. Other than a general allegation, appellant has not identified how the
questions OWCP provided to Dr. Curcin were leading.
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.
LEGAL PRECEDENT -- ISSUE 2
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.10 After it has determined that an
employee has disability causally related to his or her federal employment, OWCP may not
terminate compensation without establishing that the disability has ceased or that it is no longer
related to the employment.11 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.12
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.13 To terminate authorization for medical treatment, OWCP must

10

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

11

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

12

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

13

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

5

establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits based on the opinion of Dr. Curcin who reviewed her employment injury
and medical history and concluded that her accepted cervical strain had resolved and there had
been no loss of work time. Dr. Curcin reported that her current condition was due to her
preexisting degenerative disc disease and that her computer work did not cause or aggravate this
condition. He opined that appellant no longer had any residuals or disability due to her cervical
strain as this type of condition resolves within 6 to 10 weeks. Dr. Curcin concluded that her
current condition was due to a preexisting cervical degenerative disc disease, which was
unrelated to the accepted condition. He also opined that appellant was capable of working full
duty.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.15 Dr. Curcin fully discussed the history of injury and explained
that there were no objective findings to establish that appellant had any employment-related
residuals or disability due to a cervical strain. The Board finds that his opinion is detailed, well
rationalized and based upon a complete and accurate history. Dr. Curcin’s opinion represents the
weight of the medical evidence. OWCP met its burden of proof to terminate medical and
compensation benefits.
As noted above, appellant submitted various reports from Dr. Hufman in which he
diagnosed cervical degenerative disc disease with right C7 radicular symptoms, but none of these
reports attributed her condition to her work on the computer. Rather, Dr. Hufman specifically
opined that her computer work did not aggravate or cause her cervical degenerative disc disease
with right C7 radicular symptoms.
On appeal, appellant’s counsel contends that Dr. Curcin’s opinion is insufficient to
support termination as two attending physician’s cannot create a conflict and he did not provide a
set date as to when the strain resolved. Contrary to appellant’s contention, Dr. Curcin was not
selected as an impartial medical examiner, but was selected to provide a second opinion report.
He opined that she lost no time from work due to her cervical strain and explained that the
condition would have resolved within 6 to 10 weeks. Thus, OWCP properly determined that
appellant’s accepted cervical strain had resolved with no residuals or disability.

14

Kathryn E. Demarsh, id; James F. Weikel, 54 ECAB 660 (2003).

15

See K.W., 59 ECAB 271 (2007); Ann C. Leanza, 48 ECAB 115 (1996).

6

CONCLUSION
The Board finds that OWCP met its burden of proof to rescind acceptance of appellant’s
claim for aggravation of degeneration disc disease and to terminate her compensation benefits
effective November 30, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2012 is affirmed.
Issued: February 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 15-1702
Issued: November 2, 2015

Case Submitted on the Record

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

JURISDICTION
On August 10, 2015 appellant, through counsel, filed a timely appeal from the July 7,
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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his claimed
condition is causally related to a July 12, 2014 employment incident.
FACTUAL HISTORY
On July 14, 2014 appellant, then a 44-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging he sprained his left ankle in the performance of duty on July 12, 2014. At
approximately 11:00 a.m. on July 12, 2014, he reportedly began to feel discomfort in his left
ankle while delivering mail to a certain address, but did not know the cause of his discomfort.
1

5 U.S.C. § 8101 et seq.

On the Form CA-1, the employing establishment indicated that, based on appellant’s statement,
he was injured in the performance of duty. It further represented that the injury was not the
result of willful misconduct, intoxication, or appellant’s intent to injure himself or someone else.
The claim form also indicated that appellant first received medical attention on July 12, 2014,
and he stopped work on July 14, 2014.
Dr. J. Britten Shroyer, a Board-certified orthopedic surgeon, examined appellant on
July 22, 2014. Appellant’s chief complaint was left foot/ankle pain. Dr. Shroyer noted a history
of left forefoot pain delivering mail. He further noted that appellant walks his route. A left
foot/ankle x-ray was negative. Dr. Shroyer diagnosed ankle pain. He prescribed custom
orthotics and referred appellant for additional imaging studies of both feet.
On August 15, 2014 OWCP advised appellant to submit additional factual and medical
evidence in support of his claimed July 12, 2014 left ankle/foot injury. Appellant was afforded
30 days to submit the requested information.
OWCP subsequently received an August 14, 2014 left ankle magnetic resonance imaging
(MRI) scan, which revealed a stress fracture through the base of the second metatarsal.2
Additionally, it received an August 15, 2014 duty status report (Form CA-17) and an undated
attending physician’s report (Form CA-20) from Dr. Shroyer.3 Dr. Shroyer diagnosed stress
fracture through the base of the left second metatarsal. He identified July 12, 2014 as the date of
injury and noted that appellant’s condition was “caused by stress of walking.” Dr. Shroyer also
noted that appellant was on nonweight-bearing status until his next follow-up. He also provided
a September 3, 2014 duty status report which included a diagnosis of left foot fracture.
Appellant was disabled from all work until after his next follow-up appointment. On the
September 3, 2014 Form CA-17, Dr. Shroyer noted “healing [fracture] of left foot.”
In a September 10, 2014 statement, appellant related that he was delivering mail when he
began to feel pain in his left foot. He continued to deliver the mail while in pain. As the day
went on, the pain increased and appellant began shifting his weight to the left side of his foot.
He stated that he completed his July 12, 2014 assigned duties, and then reported the injury.
Appellant’s supervisor reportedly asked whether he had fallen, tripped, or stumbled. Appellant
stated that he explained that none of those things occurred. When he arrived home that evening
and removed his work shoe, he noted that his left foot had swollen. Appellant then went to the
emergency room (ER) and explained that his left foot hurt where it bends. He stated that he was
told he needed MRI scan testing, and the ER staff referred him to an orthopedic specialist.
Appellant further explained that the MRI scan revealed a stress fracture of the left second toe.
He claimed to have never had a stress fracture before.
In a September 18, 2014 decision, OWCP denied appellant’s traumatic injury claim
because he failed to establish that the July 12, 2014 incident occurred as alleged. It further found
that the evidence failed to establish that the diagnosed left second toe stress fracture was
employment related.

2

The film was interpreted by Dr. Christos Kosmas, a Board-certified diagnostic radiologist.

3

Although undated, the employing establishment received Dr. Shroyer’s Form CA-20 on August 15, 2014.

2

Appellant’s counsel timely requested a hearing before an OWCP hearing representative,
which was held on April 20, 2015.
In an October 7, 2014 follow-up report, Dr. Shroyer noted that appellant had a clinically
healed stress fracture which was directly related to his work as a postal employee. He further
noted that appellant was ready to return to work. Dr. Shroyer advised appellant to wear
supportive shoes. He also provided an October 8, 2014 duty status report (Form CA-17)
releasing appellant to perform his normal duties. The only caveat was that appellant limit
himself to an eight-hour workday.
At the April 20, 2014 hearing, appellant stated that he worked as a carrier for 17 years,
and that his route was primarily a walking route. He would drive to a certain location and then
deliver the mail on foot. Appellant stated that, when he first experienced the sharp pain in his
foot on July 12, 2014, he was walking across a grassy, uneven lawn on Colony Road. The
location was a residential neighborhood consisting of single-family homes, most of which had
grassy front lawns. Appellant indicated that he was wearing regulation postal shoes. He also
indicated that it was a hot day and an uneven walk, but otherwise there was nothing unusual
about his mail route.
By decision dated July 7, 2015, the OWCP hearing representative found that the July 12,
2014 incident occurred as alleged and that appellant was in the performance of duty at the time.
However, she continued to deny the claim on the basis that the medical evidence did not
adequately explain how the accepted employment exposure caused a stress fracture of
appellant’s left second toe.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a
personal injury.6 An employee may establish that an injury occurred in the performance of duty
4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.

3

as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.7
ANALYSIS
The hearing representative accepted that the July 12, 2014 employment incident occurred
as alleged. Additionally, the record includes a medical diagnosis of left foot stress fracture
through the base of the second metatarsal. Dr. Kosmas, a radiologist, found evidence of a stress
fracture on appellant’s August 14, 2014 left ankle MRI scan. Moreover, in an undated attending
physician’s report (Form CA-20), Dr. Shroyer similarly diagnosed stress fracture through the
base of the left second metatarsal.8 He identified July 12, 2014 as the date of injury and noted
that appellant’s condition was “caused by stress of walking.”
The issue currently before the Board is currently limited to whether the medical evidence
establishes a causal relationship between appellant’s stress fracture and his accepted July 12,
2014 occupational exposure. As noted, causal relationship is a medical question that generally
requires rationalized medical opinion evidence to resolve the issue.9 A physician’s opinion on
causal relationship must be based on a complete factual and medical background.10 The mere
fact that a condition manifests itself during a period of employment is not sufficient to establish
causal relationship.11 Temporal relationship alone will not suffice.12 Furthermore, appellant’s
personal belief that his employment activities either caused or contributed to his condition is
insufficient, by itself, to establish causal relationship.13
In his August 2014 attending physician’s report (Form CA-20), Dr. Shroyer identified
July 12, 2014 as the date of injury and noted that appellant’s condition was “caused by stress of
walking.” In an October 7, 2014 follow-up report, he opined that appellant’s healed stress
fracture was directly related to his work as a postal service employee. A physician’s opinion
must be expressed in terms of a reasonable degree of medical certainty, and must be supported
by medical rationale, explaining the nature of the relationship between the diagnosed condition
and appellant’s specific employment factor(s).14 In this instance, the above-referenced reports do
not adequately explain how appellant’s specific city carrier duties, including walking a mail
route, either caused or contributed to the development of a stress fracture of the left second
metatarsal.
7

Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

As previously noted, the employing establishment received Dr. Shroyer’s undated Form CA-20 on
August 15, 2014. See supra note 3.
9

Robert G. Morris, supra note 6.

10

Victor J. Woodhams, supra note 6.

11

20 C.F.R. § 10.115(e).

12

See D.I., 59 ECAB 158, 162 (2007).

13

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

14

Victor J. Woodhams, supra note 6.

4

The Board finds that the medical evidence of record fails to establish that appellant’s
claimed left foot stress fracture is causally related to his July 12, 2014 accepted employment
incident. Accordingly, appellant has failed 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(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
Appellant failed to establish that his claimed condition is causally related to a July 12,
2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 7, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 2, 2015
Washington, DC

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

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

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

5