United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
FEDERAL JUDICIARY, CHIEF PROBATION
OFFICE, Sacramento, CA, Employer
__________________________________________

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

Docket No. 10-494
Issued: September 22, 2010

Case Submitted on the Record

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

JURISDICTION
On December 16, 2009 appellant filed a timely appeal from the July 9, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant sustained any permanent impairment of her right arm.
FACTUAL HISTORY
In April 2000 the Office accepted that appellant, then a 41-year-old probation clerk,
sustained right carpal tunnel syndrome (CTS) due to her repetitive work duties. Appellant
received compensation for periods of disability.
In an August 11, 2006 report, Dr. Michael Piansky, an attending Board-certified internist,
determined that appellant had sustained a permanent impairment in both of her hands. He also

noted that her transverse myelitis was aggravating her underlying bilateral hand weakness and
numbness.
On January 26, 2007 appellant was referred for a second opinion evaluation with a
Board-certified neurologist to determine whether she had residuals of right CTS. On
February 28, 2007 Dr. Charles Nicol, a Board-certified neurologist, found that appellant’s
neurological examination was fairly normal and that she did not have right CTS.
On July 30, 2007 appellant was referred for a referee evaluation to resolve a conflict in
medical opinion between Dr. Nicol, the second opinion examiner, and the attending physician
Dr. Piansky. On August 23, 2007 the referee examiner, Dr. David Cohen, a Board-certified
neurologist, opined that the diagnostic testing was consistent with transverse myelitis, a
condition unrelated to CTS.
In a July 10, 2008 decision, an Office hearing representative determined that appellant
should be referred for another referee examination with a professorial level neurological
specialist to ascertain her current work-related diagnosis or diagnoses.
Appellant was referred to Dr. Joseph D. Weissman, a Board-certified professorial level
neurologist, for an impartial medical examination. In an August 7, 2008 report, Dr. Weissman
opined that appellant did not have right CTS and that her current condition was transverse
myelitis or multiple sclerosis. He stated:
“There have been no objective findings on examination to support a diagnosis of
significant CTS. Not discussed previously by the patient are the previously
documented decreased visual acuity in the left eye that persists and the
asymmetric pupillary responses. Various diagnoses have been proposed including
(1) [CTS], (2) thoracic outlet syndrome, (3) cervical radiculopathy and
(4) transverse myelitis/multiple sclerosis.
“I think her current diagnosis is transverse myelitis which may actually be
[multiple sclerosis] when viewed in the entirety of her clinical history and data. It
would explain all of her symptoms. I do not see evidence of a clinically
significant or disabling [CTS] at this time. In the past it does not look like there
was a[n] objectively diagnosed case of [CTS].”
In a November 19, 2008 decision, the Office denied appellant’s claim for a schedule
award for the right arm. It found that the weight of evidence regarding whether appellant
continued to have the accepted condition of right CTS rested with the well-rationalized opinion
of Dr. Weissman. The Office noted that Dr. Weissman found no such condition and there was
no basis to grant her a schedule award.
Appellant requested reconsideration of her claim contending that the Office did not
provide adequate due process with regard to submitting evidence and did not give adequate
credence to the opinions of her attending physicians. She submitted several medical reports that
relate to medical conditions not relevant to the present claim, including treatment of a
subsequently acquired ganglion cyst.

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In a July 9, 2009 decision, the Office affirmed its November 9, 2009 decision finding that
the additional evidence submitted by appellant did not establish that she had right CTS.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim, including that she sustained an
injury in the performance of duty as alleged and that an employment injury contributed to the
permanent impairment for which schedule award compensation is alleged.2
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”4 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of
such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.5
ANALYSIS
The Office properly determined that there was a conflict in the medical opinion between
Dr. Piansky, an attending Board-certified internist, and Dr. Nicol, a Board-certified neurologist
acting as an Office referral physician, on the issue of whether appellant had residuals of the
accepted right CTS such that she would have permanent impairment. In order to resolve the
conflict, the Office properly referred appellant, pursuant to section 8123(a) of the Act, to
Dr. Weissman, a Board-certified neurologist of professorial rank, for an impartial medical
examination and an opinion on the matter.
1

5 U.S.C. §§ 8101-8193.

2

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant did not establish that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
3

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

4

5 U.S.C. § 8123(a).

5

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

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The Board finds that the weight of the medical evidence is represented by the thorough,
well-rationalized opinion of Dr. Weissman, the impartial medical specialist selected to resolve
the conflict in the medical opinion. The report of Dr. Weissman establishes that appellant did
not have right CTS and therefore could not have an employment-related permanent impairment
of the right arm.
In an August 7, 2008 report, Dr. Weissman indicated that there had been no objective
findings on examination to support a diagnosis of significant CTS. Various diagnoses were
proposed including: (1) CTS; (2) thoracic outlet syndrome; (3) cervical radiculopathy; and
(4) transverse myelitis/multiple sclerosis. Dr. Weissman stated that appellant’s current diagnosis
was transverse myelitis which might actually be multiple sclerosis when viewed in the entirety of
her clinical history and data. He did not see evidence of a clinically significant or disabling CTS
at this time.
The Board has carefully reviewed the opinion of Dr. Weissman and notes that it has
reliability, probative value and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Weissman provided a thorough factual and medical
history and accurately summarized the relevant medical evidence.6 He provided medical
rationale for his opinion by explaining that appellant’s continuing problems were caused by a
nonwork-related condition. Dr. Weissman’s report establishes that there is no basis to grant
appellant a schedule award for her right arm.
On appeal appellant argued that Dr. Weissman did not perform a comprehensive
evaluation of her condition. The Board notes that Dr. Weissman carried out an extensive review
of the relevant medical evidence and performed a thorough examination of appellant’s right arm.
Appellant argued that the reports of attending physicians established her right to schedule award
compensation, but she did not adequately explain how these reports showed permanent
impairment of her right arm. She claimed that the Office violated her due process rights with
respect to submitting evidence challenging the termination of her compensation. However, the
matter of the termination of appellant’s compensation is not currently before the Board.
CONCLUSION
The Board finds that appellant did not establish that she sustained any permanent
impairment of her right arm.

6

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 9, 2009 is affirmed.
Issued: September 22, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Dix, NJ, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-480
Issued: May 13, 2013

Case Submitted on the Record

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

JURISDICTION
On December 26, 2012 appellant, through counsel, filed a timely appeal from a July 5,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying a traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a traumatic injury in the
performance of duty as alleged.
On appeal, counsel asserts that OWCP predicated its July 5, 2012 decision on “flawed
findings of fact and conclusions of law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 16, 2007 appellant, then a 55-year-old human resources technician, filed a
traumatic injury claim (Form CA-1) claiming that on February 15, 2007 she sustained a “bruised
left hip and back” when she slipped and fell in an icy parking lot at a training center.
In an October 15, 2010 telephone memorandum, the employing establishment noted that
appellant had been on medical leave from six to nine months due to chronic fatigue syndrome
and back pain. Appellant completed the Form CA-1 on February 16, 2007 and notified her
supervisor on the date of the claimed injury, but the employing establishment did not submit the
claim at that time as she did not lose time for work. When she mentioned the 2007 injury
pursuant to her 2010 absence, the employing establishment submitted the claim.
In an October 15, 2010 letter, OWCP advised appellant of the evidence needed to
establish her claim, including factual evidence supporting timely filing and performance of duty,
and medical evidence explaining how and why the February 16, 2007 slip and fall would cause
the claimed injury. Appellant was afforded 30 days to submit such evidence.
A March 6, 2008 lumbar magnetic resonance imaging (MRI) scan showed mild broadbased disc bulges at L3-4 and L4-5, mild left-sided neural foraminal narrowing at L3-4 and L4-5
secondary to disc bulges, epidural lipomatosis of questionable clinical significance and no
interval changes when compared to a June 21, 2001 scan. A June 13, 2008 lumbar MRI scan
showed a small annular tear at L4-5, with no interval changes from the March 6, 2008 scan.
In a September 29, 2010 Form CA-20 report, Dr. Horatio G. Daub, an attending
physician Board-certified in geriatric medicine, noted the February 16, 2007 slip and fall and a
June 9, 2009 workplace incident when appellant reinjured her back when lifting a box. He
diagnosed low back pain secondary to a lumbosacral strain. Dr. Daub found appellant totally
disabled for work beginning on November 16, 2009. He checked a box “yes” indicating his
support for causal relationship, explaining that appellant had “[n]o significant back pain or
problems until the initial injury [o]n February 16, 2007.”
The employing establishment provided an October 15, 2010 letter controverting
appellant’s claim, contending that Dr. Daub’s finding of disability was improper. It asserted that
appellant was trying to obtain FECA benefits as she had been absent from work from
November 16, 2009 onward due to chronic fatigue syndrome.
By decision dated November 19, 2010, OWCP denied appellant’s claim on the grounds
that causal relationship was not established. It found that she filed a timely claim; the
February 15, 2007 incident occurred at the time, place and in the manner alleged, and that she
was in the performance of duty when she slipped and fell. However, appellant did not submit
sufficient medical evidence to establish that the February 15, 2007 incident caused or aggravated
a back or hip condition. OWCP further found that she submitted no evidence or explanation
concerning the June 9, 2009 occupational lifting incident mentioned by Dr. Daub.
On August 24, 2011 appellant requested reconsideration. She submitted an August 23,
2011 report from Dr. Scott J. Jarmain, an attending physician Board-certified in physiatry and

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pain medicine, who noted that he had treated appellant “for the last few years.” Dr. Jarmain
opined that appellant’s chronic mild lumbar pain in the years before the February 15, 2007
incident “was probably related to some intermittent strain of the lumbar paraspinal muscles and
degenerative facet joint arthropathy, directly related to repeated bending, lifting and carrying at
work.” He related that the February 15, 2007 slip and fall resulted in new left hip pain and
worsening of her lower back pain. Dr. Jarmain referred to office notes and physical therapy
forms that are not of record. He noted that appellant experienced increased lumbar pain after
lifting a heavy box at work on June 9, 2009. Based on appellant’s history, Dr. Jarmain opined
that appellant’s “condition [was] causally related to the job duties at work” and the February 15,
2007 slip and fall, because appellant’s chronic lumbar pain increased after that incident. He
posited that the slip and fall caused L3-4 and L4-5 disc herniations visible on the March 6, 2008
MRI scan, worsened by the June 9, 2009 lifting incident.
By decision dated July 5, 2012, OWCP denied modification on the grounds that
Dr. Jarmain’s opinion was insufficient to establish causal relationship. It found that Dr. Jarmain
did not provide a consistent explanation of how the February 15, 2007 incident caused or
aggravated a lumbar disc herniation or annular tear.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether 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. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.4
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

2

Joe D. Cameron, 41 ECAB 153 (1989).

3

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

4

Gary J. Watling, 52 ECAB 278 (2001).

5

Deborah L. Beatty, 54 ECAB 340 (2003).

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
Appellant claimed that she sustained a left hip and low back injury when she fell in an icy
parking lot on February 15, 2007. OWCP accepted that the slip and fall occurred as alleged and
was in the performance of duty. It denied the claim, however, due to factual inconsistencies in
the medical evidence regarding the mechanism of injury and a lack of medical reasoning
supporting a causal connection between the accepted slip and fall and the claimed injuries. In its
November 19, 2010 and July 5, 2012 decisions, OWCP found that appellant’s physicians
attributed appellant’s condition not only to the February 15, 2007 incident, but to a history of
preexisting lumbar complaints and a June 9, 2009 workplace lifting incident.
In support of her claim, appellant submitted March 6 and June 13, 2008 lumbar MRI
scans showing disc bulges at L3-4 and L4-5 and a small annular tear at L4-5. Both reports
mention a 2001 lumbar MRI scan. However, she did not submit this prior study, or
contemporaneous medical reports indicating why it was performed. An additional difficulty is
the lack of corroboration of a June 9, 2009 occupational lifting incident. Dr. Daub, an attending
Board-certified gerontologist, and Dr. Jarmain, an attending Board-certified physiatrist, both
opined that the June 9, 2009 incident worsened preexisting lumbar conditions. Appellant did not
allege a June 9, 2009 lifting injury on her claim form. Moreover, she did not submit any
contemporaneous medical evidence regarding its assessment or treatment. It is significant that
Dr. Daub did not examine appellant until August 23, 2010, more than three years after the
February 15, 2007 incident and more than a year after June 9, 2009. On August 23, 2011
Dr. Jarmain noted that he had treated appellant “for the last few years” but did not specify that he
treated appellant for either the February 15, 2007 or June 9, 2009 incidents. The conflicting
histories of injury cast significant doubt on appellant’s version of events.7
Regarding a causal relationship between the accepted February 15, 2007 slip and fall and
a lumbar condition, Dr. Daub checked a box “yes” indicating his support for causal relationship,
noting that appellant had no significant history of back problems before the incident. However,
the Board has held that merely checking a box “yes” on a form report is not sufficient to
establish causal relationship.8 Also, Dr. Daub did not explain why appellant underwent a lumbar
MRI scan in 2001 if she had no history of lumbar complaints. Dr. Jarmain indicated that she
began experiencing mild intermittent back pain not specifically related to any injury outside of
work or at work. Instead, he opined that it was low grade intermittent back pain probably related
to a strain from repeated bending and lifting. Dr. Jarmain further opined that the February 15,
2007 incident increased preexisting lumbar pain, indicating that the slip and fall caused L3-4 and
L4-5 disc herniations. However, he did not explain the pathophysiologic role of the June 9, 2009
lifting incident, or explain how he was able to distinguish the objective effects of the
6

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

7

A.D., Docket No. 09-1185 (issued January 27, 2010). See also Caroline Thomas, 51 ECAB 451 (2000).

8

Donald W. Long, 41 ECAB 142 (1989).

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February 15, 2007 incident from appellant’s preexisting lumbar symptoms or the subsequent
injury. This lack of medical rationale significantly diminishes the probative value of
Dr. Jarmain’s opinion.9
The Board notes that OWCP advised appellant by October 15, 2010 letter of the need to
submit her physician’s opinion explaining how and why the February 15, 2007 slip and fall
incident would cause the claimed injury. However, appellant did not submit such evidence.
Therefore, she failed to meet her burden of proof in establishing causal relationship.
On appeal, counsel asserts that OWCP predicated its July 5, 2012 decision on flawed
findings of fact and conclusions of law. As noted, the Board finds that appellant did not submit
sufficient medical evidence to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained a traumatic injury in
the performance of duty as alleged.

9

Deborah L. Beatty, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 5, 2012 is affirmed.
Issued: May 13, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
U.S. COAST GUARD, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-0975
Issued: March 10, 2022

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 June 11, 2021 appellant filed a timely appeal from a June 4, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish stress-related
conditions in the performance of duty, as alleged.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 11, 2019 appellant, then a 50-year-old paralegal specialist, filed an occupational
disease claim (Form CA-2) alleging that she sustained a series o f conditions due to workrelated stress, including bipolar disorder, hypertension, incontinence/flatulence, elevated
cholesterol, and diabetes. She indicated that she started working as a paralegal specialist for
the employing establishment on October 20, 2014. Appellant maintained that her supervisor,
L.M., created a stressful and hostile work environment over time, and indicated that there were
“Equal Employment Opportunity Commission (EEOC) issues.” She asserted that L.M. did not
like the way she communicated and asked her if she would quit her job. Appellant noted that
she first became aware of her claimed conditions on October 20, 2014 and first realized their
relation to her federal employment on July 31, 2018. She stopped work on July 17, 2017.
In a June 10, 2019 statement, appellant further discussed her claimed employment-related
conditions and again claimed that her work environment aggravated her health. She maintained
that L.M. intentionally exposed her to a hostile work environment and asked if she was going to
quit “due to circumstances surrounding my employment.”
Appellant submitted medical evidence in support of her claim, including reports of
Dr. Huong T. Dang, a Board-certified psychiatrist, and Dr. Oladapo Olarinde, a Board-certified
family practitioner. She also submitted time and attendance summary reports from July and
September 2018.
In a June 25, 2019 development letter, OWCP notified appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed and provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit the necessary
evidence. In response, appellant asserted that L.M. treated her differently on purpose due to her
race and that the harassment was continuous. She claimed that L.M. retaliated against her for
filing an EEOC complaint in 2016.
Appellant submitted documents relating to the EEOC complaint she filed in 2016. In
the complaint, she claimed that in October 2015 she was improperly instructed not to take sick
leave for the rest of the year and that in December 2015 she was denied compensatory time.
Appellant also alleged that on December 24, 2015 L.M. accused her of “gaming the system” when
she tried to change her schedule and that on February 15, 2016 she wrongly did not receive holiday
pay. She further claimed that on March 1, 2016 she was approved for reasonable
accommodation that did not address her needs and that on March 30, 2016 L.M. called her
“stupid.” Appellant alleged that on September 8, 2016 she was given an improper verbal
reprimand when L.M. asked her if she was going to quit her job and that on an unspecified date
her work duties were wrongly reduced and her work was delegated to another employee.
2

Docket No. 20-1271 (issued March 9, 2021).

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Appellant submitted an April 16, 2019 final EEOC decision, which addressed her appeal
of a September 28, 2017 final decision denying her claims of discrimination. In this decision,
an EEOC official addressed each of her above-noted claims and found that it had been properly
determined in the prior decision dated September 28, 2017 that the employing establishment
did not subject her to discrimination or other wrongdoing. The official found that the employing
establishment provided reasonable accommodation to appellant for her bipolar disorder by
allowing her to change her schedule and that it appropriately handled matters relating to sick leave,
holiday pay, and compensatory time. The official indicated that the evidence revealed that L.M.
denied that she called appellant stupid on March 30, 2016 after appellant improperly sent out a
draft in portable document format (PDF), but that she indicated she might have commented that
it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was “gaming the system” on December 24, 2015, when appellant attempted
to change her schedule in the middle of a pay period to get more holiday time. She noted it was
established that on September 8, 2016 L.M, told appellant that she should be careful about what
she said to people. In addition, it was established that L.M. asked appellant whether she intended
to quit and that, when appellant stated that she did not, L.M. responded by saying, “Good.” The
official concluded that, when considering L.M.’s comments and actions in context, it had not been
shown that L.M. subjected appellant to discrimination or created a retaliatory or hostile work
environment. 3
By decision July 31, 2019, OWCP denied appellant’s claim for an employment-related
emotional condition. It determined that she had not established a compensable employment factor.
On August 5, 2019 appellant requested a hearing before a representative of OWCP’s
Branch of Hearings and Review. During the hearing held on January 16, 2020, she testified that
L.M. threw a stapler at her on October 20, 2014. Appellant indicated that L.M. asked her whether
she was going to quit and asserted that her working conditions caused or worsened her medical
conditions.
After the hearing, additional documents were added to the case record, including the
employing establishment’s January 24, 2020 proposed removal due to appellant’s excessive
absences, a February 14, 2018 notice of response deadline, August 4, 2016 and January 9, 2017
affidavits that L.M. produced in conjunction with appellant’s EEOC complaints, and August 10,
2016 and January 13, 2017 statements appellant produced in response to L.M.’s EEOC affidavits.
In her August 4, 2016 affidavit, L.M. indicated that she provided reasonable accommodation to
appellant by approving appellant’s request regarding telework days. She noted that the human
resources office advised her that she could not approve appellant’s request to change appellant’s
schedule on short notice in order to receive pay for federal holidays. L.M. indicated that in
December 2015 appellant sent out a draft document as a PDF document despite the fact that such
documents are normally sent out in Microsoft Word format. She noted that she had a conversation
with appellant, who indicated that she had intentionally sent the document as a PDF document
because she thought it was a good idea. L.M. reported that she did not call appellant stupid
but might have stated that it would be stupid to send the draft in the wrong format. With regard to
appellant’s allegation that she was accused of “gaming the system” with respect to her request to
3

Appellant also submitted additional medical evidence in support of her claim.

3

change her work schedule, L.M. explained that she told appellant that it would be improper and
gaming the system, to change her schedule in the middle of a pay period in order to receive pay
for a holiday. She claimed that she treated appellant fairly with respect to leave matters.
In an August 10, 2016 affidavit produced in response to L.M.’s August 4, 2016 affidavit,
appellant contested L.M.’s assertions with respect to schedule changes. She claimed that L.M.
did, in fact, call her stupid with respect to the matter involving the PDF document, and expressed
her belief that L.M. was accusing her of theft when she stated that she was gaming the system.
Appellant also generally contested L.M.’s assertions that she had properly handled matters relating
to leave usage and work assignments.
In her January 9, 2017 affidavit, L.M. indicated that she recalled meetings with appellant
on September 8 and 15, 2016 and denied that she acted improperly. She noted that during the
September 15, 2016 meeting she advised appellant that she needed to be careful about what she
stated to people and consider their points of view. L.M. indicated that this comment was made
in the context of the other paralegal having felt that appellant made various accusations against her.
She also noted that, during this meeting, she asked appellant if she was considering quitting
because of the communication issues and overlapping schedule problems among the clerks.
When appellant indicated that she was not quitting, L.M. noted that she replied, “Good.” She
noted that she later apologized to appellant and told appellant that she was trying to speak
openly and plainly. L.M. indicated that she did not recall telling appellant that a certain work
assignment was none of her business.
In a January 13, 2017 statement, appellant asserted that L.M. did, in fact, tell appellant that
a work assignment involving redaction of information was none of her business. She restated her
belief that L.M. unfairly reprimanded her during the September 15, 2016 meeting and that she
made improper comments about her communication skills.
The case record was also supplemented to include the original September 28, 2017 final
EEOC decision on appellant’s complaint. In this decision, an EEOC official determined that the
full evidentiary record did not establish that L.M. subjected appellant to discrimination or created
a retaliatory or hostile work environment. She found that the employing establishment provided
reasonable accommodation to appellant for appellant’s bipolar disorder and appropriately handled
matters relating to sick leave, holiday pay, and compensatory time. The official noted that L.M.
explained that she reassigned some of appellant’s tasks to another employee because the work
schedule of that employee made it more suitable for her to perform those tasks. She indicated that
the evidence revealed that L.M. denied that she called appellant stupid on March 30, 2016 after
appellant improperly sent out a draft in PDF, but that L.M. had indicated that she might have stated
that it would be stupid to put a draft into PDF. The official noted that it was confirmed that L.M.
told appellant that she was gaming the system, and that she should be careful about what she stated
to people. In addition, the EEOC decision established that L.M. asked appellant whether she
intended to quit and that, when appellant stated that she did not, L.M. responded by saying,
“Good.” The official concluded that, when considering L.M.’s comments and actions in context,
no improper actions were committed.

4

By decision dated April 1, 2020, OWCP’s hearing representative affirmed the July 31,
2019 decision. Appellant appealed to the Board and, by decision dated March 9, 2021,4 the Board
affirmed the April 1, 2020 decision.
On March 9, 2021 appellant requested reconsideration of the denial of her emotional
condition claim. In support of her reconsideration request, she submitted two e-mails from the
Office of Personnel Management (OPM), a February 16, 2021 e-mail advising her that a disability
earnings survey had opened and a February 28, 2021 e-mail informing her that it had received her
response to an OPM disability eligibility survey. Appellant also submitted a March 11, 2020
notification of personnel action (Standard Form (SF) 50) memorializing her retirement from the
employing establishment on disability retirement. In an accompanying statement, she argued that
the fact that she retired on disability proved that managers committed wrongdoing and that she
was subjected to a hostile work environment.
By decision dated June 4, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 7
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 8
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
4

Supra note 2.

5

Supra note 1.

6

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

7

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
8

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

5

reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 9 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 10
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors. 11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 12
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered. 13 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence. 14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
The Board preliminarily notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 1, 2020 decision, which was considered by the
Board in its March 9, 2021 decision. Findings made in prior Board decisions are res judicata
absent further merit review by OWCP under section 8128 of FECA. 15
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
9

Lillian Cutler, 28 ECAB 125 (1976).

10

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

11

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

13

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

C.M., Docket No. 19-1211 (issued August 5, 2020); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

incidents and conditions are covered employment factors under the terms of FECA. The Board
notes that appellant’s claim does not directly relate to her regular or specially assigned duties
under Lillian Cutler.16 Rather, appellant claimed that her supervisor, L.M., committed error and
abuse with respect to various administrative/personnel matters. She also claimed that L.M.
subjected her to harassment and discrimination.
With respect to administrative or personnel matters, appellant claimed that L.M.
mishandled matters related to sick leave, holiday pay, compensatory pay, reasonable
accommodation requests, and the assignment of work tasks. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially assigned work
duties of the employee and are not covered under FECA.17 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.18 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably. 19
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted two e-mails from
OPM, a February 16, 2021 e-mail advising her that a disability earnings survey had opened, and a
February 28, 2021 e-mail informing her that it had received her response to an OPM disability
eligibility survey. She also submitted a March 11, 2020 SF 50 memorializing her disability
retirement from the employing establishment on disability retirement. Appellant argued that the
fact that she retired on disability retirement proved that managers committed wrongdoing.
However, this evidence would not in any way show that management committed error or abuse
with respect to administrative or personnel matters. Appellant has not otherwise presented
evidence, such as a final decision of an administrative body, to show that L.M. or other managers
committed error or abuse with respect to administrative or personnel matters.20 In addition, the
mere fact that appellant retired on disability retirement would not support her claims regarding
administrative/personnel matters. Although appellant expressed dissatisfaction with the actions of
L.M., the Board has held that mere dislike or disagreement with certain supervisory actions will
not be compensable absent error or abuse on the part of the supervisor. 21 Therefore, she has not
established a compensable employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by L.M. and claimed that she created
a stressful hostile work environment. She asserted that L.M. treated her differently on purpose
16

See supra note 9.

17

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
18

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

19

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

20

See generally M.R., Docket No. 18-0304 (issued November 13, 2018).

21

T.C., Docket No. 16-0755 (issued December 13, 2016).

7

due to her race and retaliated against her for filing an EEOC complaint in 2016. Appellant also
claimed that L.M. made comments and engaged in actions that rose to the level of harassment and
discrimination. To the extent that disputes and incidents alleged as constituting harassment are
established as occurring and arising from an employee’s performance of his or her regular duties,
these could constitute employment factors. 22 The Board has held that unfounded perceptions of
harassment do not constitute an employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the
incidents constituting the claimed harassment actually occurred.24
As noted above, appellant submitted February 16 and 28, 2021 e-mails from OPM and
a March 11, 2020 SF 50. She argued that the fact that she retired on disability retirement proved
that she was subjected to a hostile work environment. However, these docum ents do not
support appellant’s claims of harassment and discrimination and the mere f act that she
retired on disability retirement also would not support her claims of harassment/
discrimination . Appellant has not submitted sufficient documentary evidence to show that
L.M. subjected her to harassment or discrimination. 25 Therefore, she has not established a
compensable employment factor with respect to the claimed harassment and discrimination. As
the Board finds that appellant has not established a compensable employment factor, it is not
necessary to consider the medical evidence of record. 26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.

22

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

See id.

25

See B.S., Docket No. 19-0378 (issued July 10, 2018).

26

See B.O., Docket No. 17-1986 (issued January 18, 2019) (finding that it is not necessary to consider the medical
evidence of record if a claimant has not established any compensable employment factors). See also Margaret S.
Krzycki, 43 ECAB 496, 502-03 (1992).

8

ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 10, 2022
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.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WARNER ROBINS AIR FORCE BASE, GA,
Employer
__________________________________________

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

Docket No. 09-1080
Issued: December 7, 2009

Case Submitted on the Record

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

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a March 2, 2009 merit decision
of the Office of Workers’ Compensation Programs denying his hearing loss claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained noise-induced hearing loss
causally related to factors of his federal employment.
On appeal, appellant contends that the Department of Veterans Affairs accepted his
hearing loss as related to his military service and was worsened by his civil service work
environment.
FACTUAL HISTORY
This case has previously been before the Board. On August 31, 2007 appellant, then a
62-year-old inventory management specialist, filed an occupational disease claim (Form CA-2)

for hearing loss. The Office denied his claim on the grounds that the weight of the medical
evidence rested with Dr. Kenneth Walker, a Board-certified otolaryngologist, who determined
that, although appellant’s workplace noise exposure was sufficient to have caused hearing loss, it
was due to presbycusis rather than his employment. By decision dated November 10, 2008, the
Board remanded the case for further development. The Board found that Dr. Walker’s report did
not provide sufficient medical rationale to support his opinion that appellant’s hearing loss was
not related to his employment. The Board directed the Office to obtain a supplemental report
from Dr. Walker clarifying his opinion.1
On remand, the Office requested that Dr. Walker clarify his opinion as to whether
appellant’s hearing loss was related to his employment. The record reveals that Dr. Walker
declined to provide a supplementary report and the Office referred appellant, along with his
record and a statement of accepted facts, for a second opinion evaluation with Dr. Kevin A.
O’Connell, a Board-certified otolaryngologist.
In an undated medical report, Dr. O’Connell stated that appellant experienced mild
hearing loss in 1988.2 He indicated that appellant did not show a sensorineural loss in excess of
what would normally be predicated on the basis of presbycusis. Dr. O’Connell stated that,
although the frequency and duration of appellant’s workplace exposure possibly could have
caused hearing loss, he was not provided information as to the intensity or decibel level of
exposure.
He diagnosed presbycusis and bilateral high frequency sensorineural loss.
Dr. O’Connell opined that the loss was not due to appellant’s federal employment and that the
current audiometric findings were not consistent with a noise exposure configuration. An
accompanying February 25, 2009 audiogram revealed hearing levels of 25, 25, 35 and 45
decibels in the right ear and 20, 25, 40 and 45 decibels in the left ear at 500, 1,000, 2,000 and
3,000 hertz, respectively. Appellant had a speech reception threshold at 25 decibels in the right
ear and 20 decibels in the left ear. His auditory discrimination scores were 90 percent in both
ears.
By decision dated March 2, 2009, the Office denied appellant’s claim for hearing loss
based on Dr. O’Connell’s opinion that the loss was caused by presbycusis and not employmentrelated noise exposure. It found that he did not establish that his hearing loss was due to his
employment.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,4 including that he is an “employee” within the meaning of
1

Docket No. 08-1458 (issued November 10, 2008).

2

An April 1988 audiogram showed hearing levels of 20, 20, 25 and 35 decibels in the right ear and levels of 15,
20, 25 and 25 in the left ear at 500, 1,000, 2,000 and 3,000 hertz, respectively.
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).

2

the Act5 and that he filed his claim within the applicable time limitation.6 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.8
ANALYSIS
The issue is whether appellant established that he sustained hearing loss due to his federal
employment duties. Dr. Walker, the Office’s second opinion physician, opined that appellant’s
hearing loss was due to presbycusis rather than work-related noise exposure even though
appellant’s work exposure was sufficient to cause hearing loss. The Board found that his opinion
was of diminished probative value, as it lacked rationale and remanded the case for further
development. On remand, the Office properly referred appellant for another second opinion
evaluation with Dr. O’Connell, a Board-certified otolaryngologist as Dr. Walker declined to
provide a supplemental opinion.9 The Board finds Dr. O’Connell’s report is also of diminished
probative value.
In an undated report, Dr. O’Connell stated that appellant did not show sensorineural loss
in excess of what would normally be predicated on presbycusis. However, he diagnosed
presbycusis and bilateral high frequency sensorineural hearing loss. Further, Dr. O’Connell
stated that the frequency and duration of appellant’s workplace noise exposure could possibly
cause hearing loss but that he was not provided with the decibel level of exposure. He also
opined that appellant’s hearing loss was not related to his employment because his current
audiometric findings were not consistent with a noise exposure configuration.
The Board finds that Dr. O’Connell’s report is not sufficient on the issue of causal
relations. Although he stated that appellant did not demonstrate sensorineural loss in excess of
5

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
9

When a medical evaluation is made at the request of the Office, it has the responsibility of having a proper
evaluation made. Leonard Gray, 25 ECAB 147, 151 (1974).

3

what would normally be predicated on presbycusis, he diagnosed both bilateral high frequency
sensorineural hearing loss and presbycusis. Dr. O’Connell’s report lacks adequate medical
rationale to support his conclusion that appellant’s hearing loss was not related to his
employment. The only explanation he provided is that appellant’s current audiometric findings
were not consistent with a noise exposure configuration. However, Dr. O’Connell did not
provide a full explanation of how appellant’s loss was inconsistent with such a configuration.
Moreover, he opined that appellant’s employment exposure could be a possible cause of hearing
loss but that he was not provided with information on specific decibel levels of exposure. The
Board notes that, although the statement of accepted facts listed appellant’s jobs and sources of
noise, specific noise levels were not provided by the employer.10 Therefore, Dr. O’Connell was
not provided with information relevant to the claim and his medical report is of diminished
probative value.11
It is well established that proceedings under the Act are not adversarial in nature and
while the claimant has the burden to establish entitlement to compensation, the Office shares the
responsibility in the development of the evidence.12 When the Office selects a physician for an
opinion on causal relationship, it has an obligation to secure, if necessary, clarification of the
physician’s report and to have a proper evaluation made.13 Because it referred appellant to a
second opinion physician, it has the responsibility to obtain a report that will resolve the issue of
whether his hearing loss was caused by his federal employment.14 As Dr. O’Connell’s report is
deficient, this case will be remanded to the Office for further development of the evidence. As
the Office has not requested the employing establishment to submit detailed information about
appellant’s noise level exposure, including copies of noise level surveys and specific decibel
levels for each work location.15 On remand, it should request that the employing establishment
provide such information.16
10

To be probative, a physician’s report must be based on a complete factual and medical background. See A.D.,
58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).
11

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009); Robert C. Pearson, 32 ECAB
403 (1980).
12

P.K., 60 ECAB ___ (Docket No. 08-2551, issued June 2, 2009).

13

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

14

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

15

It is generally accepted that hearing loss may result from prolonged exposure to noise levels above 85 decibels.
However, acoustic trauma may also result from decibel levels below 85 decibels if exposure is specifically
prolonged. Consequently, regardless of appellant’s specific decibel level of exposure, the referral physician must
also consider whether the employment-related noise exposure was specifically prolonged to result in acoustic
trauma. Such a question is medical in nature and should be resolved by a Board-certified otolaryngologist. See
R.B., 60 ECAB ___ (Docket No. 08-1662).
16

The Office shares responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment or other government source. See R.E., 59 ECAB ___
(Docket No. 07-1604, issued January 17, 2008). See also id. (Where the Board remanded the case due to the
Office’s failure to obtain evidence regarding the level and duration of appellant’s noise exposure from the
employing establishment).

4

CONCLUSION
The Board finds this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this opinion.
Issued: December 7, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 13-577
Issued: June 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 9, 2013 appellant filed a timely appeal of an August 1, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 1, 2012.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 1, 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).

FACTUAL HISTORY
On May 29, 2012 appellant, then a 44-year-old architect/project manager, filed a
traumatic injury claim alleging that on May 1, 2012 she sustained injuries to her right ankle and
knee, left knee, left shoulder, neck and large bruise on her chest as the result of a vehicular
accident. The accident occurred when a vehicle ran a red light and hit her vehicle as she was
leaving a contractor’s office.
In support of her claim, appellant submitted an appointment reminder for her physical
therapy appointments in May and June 15, 2012 and a copy of the police report for the accident.
OWCP informed appellant in a June 11, 2012 letter that additional evidence was needed
to establish her claim. It gave her 30 days to furnish medical reports from a physician explaining
how the May 1, 2012 accident contributed to a diagnosed condition.3 OWCP did not receive a
response.
By decision dated August 1, 2012, OWCP denied appellant’s claim. It found the factual
evidence sufficient to establish that the May 1, 2012 incident occurred at the time, place and in
the manner alleged, but found that appellant failed to submit any medical evidence establishing
an injury causally related to the accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.8 Second, the

3

In a separate June 11, 2012 letter, OWCP advised appellant that the circumstances of her case indicated that her
injury may have been caused by a responsible third party and that she may be subject to FECA’s subrogation
provisions. See 5 U.S.C. §§ 8131-8192; 20 C.F.R. §§ 10.705-10.719.
4

5 U.S.C. § 8101 et seq.

5

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

6

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

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

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

2

employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
ANALYSIS
The evidence of record supports that appellant’s motor vehicle was struck by another
vehicle which had run a red light on May 1, 2012 while she was in the performance of duty.
However, appellant failed to provide any medical reports establishing that she sustained an
employment injury. OWCP advised her in a June 11, 2012 letter to furnish these reports within
30 days. As no medical evidence was offered to show that the accepted May 1, 2012
employment incident caused or contributed to a diagnosed right ankle and knee, left knee, left
shoulder, neck and large chest bruise, the Board finds that appellant has failed to establish her
prima facie claim for compensation.
Appellant contends on appeal that she supplied medical reports to OWCP. As noted, the
evidence of record at the time of the August 1, 2012 decision does not contain any such
documentation.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on May 1, 2012.

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 1, 2012 is affirmed.
Issued: June 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, CAMP BIG HORN, Plains, MT,
Employer
__________________________________________

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

Docket No. 11-845
Issued: November 8, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 15, 2011 appellant filed a timely appeal from a January 19, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective August 1, 2010 on the grounds that her work-related conditions
had ceased without disabling residuals.
On appeal, counsel asserts that OWCP’s January 19, 2011 decision was “contrary to fact
and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on April 1, 2009 appellant, then a 35-year-old part-time social
services assistant, sustained tears of the anterior cruciate and medial collateral ligaments of the
right knee and a right medial meniscus tear when she struck her knee on a metal bracket during a
rescue challenge course. She stopped work on April 12, 2009. Appellant received continuation
of pay from April 12 to May 15, 2009. Her temporary appointment expired on May 31, 2009.
From May 15 to July 15, 2009 and from July 19 to September 26, 2009, appellant received
wage-loss compensation on the supplemental rolls. OWCP placed her case on the periodic rolls
effective September 27, 2009 and paid wage-loss compensation through October 24, 2009.
The employing establishment submitted a position description for appellant’s date-ofinjury job. Appellant assisted in supervising dormitory and group living activities, primarily in
an office setting. She also supervised off site field trips.
Dr. Gregory M. Behm, an attending orthopedic surgeon, treated appellant beginning on
April 14, 2009. He diagnosed anterior cruciate and medial collateral ligament tears of the right
knee with a right medial meniscus tear.2 On May 22, 2009 Dr. Behm performed right knee
arthroscopy with reconstruction of the anterior cruciate ligament. On July 28, 2009 he
performed manipulation of the right knee under anesthesia to address significant postoperative
stiffness. As appellant continued to have significant stiffness, Dr. Behm performed arthroscopic
debridement of the right knee on September 22, 2009. He released appellant to limited sedentary
duty as of October 16, 2009.
In a December 17, 2009 letter, appellant noted that the employing establishment had
rehired her effective November 24, 2009 and that she had worked a few intermittent shifts. She
noted that she sustained a previous right knee injury while in the military.
In an April 1, 2010 report, Dr. Behm found that appellant had reached maximum medical
improvement.3 He released her to full duty with no restrictions, noting that she could resume
teaching rescue training.
By notice dated June 25, 2010, OWCP proposed to terminate appellant’s wage-loss
compensation benefits on the grounds that the accepted right knee injuries had resolved without
disabling residuals. Appellant did not submit additional evidence or argument prior to
July 27, 2010.
By decision dated July 27, 2010, OWCP terminated appellant’s wage-loss compensation
benefits effective August 1, 2010. It stated that she remained entitled to medical benefits for
treatment of the accepted injuries.

2

An April 28, 2009 magnetic resonance imaging (MRI) scan of the right knee showed possible patellar
tendinosis.
3

On May 1, 2010 appellant claimed a schedule award. As there is no final decision of record regarding this
claim, the schedule award issue is not before the Board on the present appeal.

2

In an August 3, 2010 letter, counsel requested a telephonic hearing, held
November 3, 2010. At the hearing, appellant stated that she was physically able to perform her
supervision duties but no longer wished to work as it interfered with her college studies. She
acknowledged that her job did not require rescue training. Appellant submitted reports from
Dr. Mike Righetti, an attending Board-certified orthopedic surgeon.
In October 20 and December 22, 2010 reports, Dr. Righetti found slight laxity of the right
knee with vastus medialis atrophy. He opined that appellant could not perform rescue work due
to the anterior cruciate ligament reconstruction. Dr. Righetti obtained a December 16, 2010 MRI
scan of the right knee showing mild cartilage degenerative changes.
In a November 24, 2010 letter, the employing establishment stated that the rescue
training during which appellant injured her knee was not a requirement of the social services
assistant position. Appellant had volunteered to participate.
By decision dated and finalized January 19, 2011, an OWCP hearing representative
affirmed the July 27, 2010 termination decision, finding that Dr. Behm’s April 1, 2010 opinion
continued to represent the weight of the medical evidence. The hearing representative found that
Dr. Righetti did not find appellant disabled from her assigned duties.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
OWCP’s burden includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.6
ANALYSIS
OWCP accepted that appellant sustained tears of the right medial meniscus, anterior
cruciate ligament and medial collateral ligament on April 1, 2009 when she struck her right knee
during rescue training. Appellant’s date-of-injury position was described as supervising
dormitory residents in an office setting, with occasional supervision of field trips.
Dr. Behm, an attending Board-certified orthopedic surgeon, performed an arthroscopic
reconstruction of the right anterior cruciate ligament on May 22, 2009, closed manipulation of
the right knee on July 28, 2009 and arthroscopic debridement of the right knee on
September 22, 2009. Appellant returned to limited-duty work in late November 2009. On
4

Bernadine P. Taylor, 54 ECAB 342 (2003).

5

Id.

6

Raymond W. Behrens, 50 ECAB 221 (1999).

3

April 1, 2010 Dr. Behm found that she had reached maximum medical improvement and
released her to full duty, including teaching rescue skills. OWCP issued a June 25, 2010 notice
proposing to terminate appellant’s wage-loss compensation, to which she did not respond. Based
on Dr. Behm’s opinion, it issued a July 27, 2010 decision terminating her wage-loss
compensation benefits effective August 1, 2010.
At a November 3, 2010 telephonic hearing, appellant stated that she could physically
perform her required duties since returning to work in November 2009 but preferred not to work
as it interfered with her schooling. Also, she acknowledged that her job did not require rescue
training. The employing establishment confirmed that the rescue training was not a job
requirement.
Appellant submitted an October 20, 2010 report from Dr. Righetti, an attending Boardcertified orthopedic surgeon, who opined that she could not perform rescue training due to her
postsurgical status. However, the employing establishment and she both confirmed that the
social services assistant position did not require rescue training. Dr. Righetti did not indicate that
the observed vastus medialis atrophy would disable appellant from her required duties. Also, he
did not explain whether the vastus medialis atrophy, a condition not accepted by OWCP, was
causally related to the accepted injuries. Thus, Dr. Righetti’s opinion is of limited probative
value with regard to whether the accepted injuries disabled appellant for work on and after
August 1, 2010.
The Board finds that Dr. Behm’s opinion is sufficient to represent the weight of the
medical evidence. It is detailed, well rationalized and based on a complete factual and medical
history.7 Also, there was no reasoned medical evidence submitted indicating that appellant could
not perform the date-of-injury position as of August 1, 2010. Therefore, OWCP’s July 27, 2010
decision was proper under the law and facts of this case.
On appeal, counsel contends that OWCP’s January 19, 2011 decision is “contrary to fact
and law.” As stated, OWCP met its burden of proof in terminating appellant’s wage-loss
compensation benefits. There is no probative medical evidence demonstrating that she was
disabled for work as of August 1, 2010 due to residuals of the accepted injuries.
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 OWCP met its burden of proof in terminating appellant’s wage-loss
compensation benefits effective August 1, 2010.

7

James R. Taylor, 56 ECAB 537 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 19, 2011 is affirmed.
Issued: November 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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

Docket No. 11-1788
Issued: June 15, 2012

Case Submitted on the Record

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

JURISDICTION
On July 26, 2011 appellant filed a timely appeal from a February 16, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As the last merit decision was issued February 26, 2010, more than 180 days
before the filing of the appeal, the Board lacks jurisdiction to review the merits of this case
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his case for
further review of the merits pursuant to 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2003 appellant, then a 51-year-old modified letter carrier, filed a
traumatic injury claim alleging that he sustained pain in his arms, elbows, neck and lower back
after casing mail. He began working in a limited-duty position on February 28, 2003. The
employing establishment indicated that appellant was a rehabilitation employee with multiple
claims. OWCP accepted the claim for neck strain, bilateral contusions of the shoulders, elbows
and upper arms, lumbar sprain and thoracic or lumbosacral neuritis or radiculitis.
By decision dated July 19, 2004, OWCP reduced appellant’s compensation based on its
finding that his actual earnings as a modified carrier technician effective November 5, 2003
fairly and reasonably represented his wage-earning capacity.2
Appellant stopped work on January 19, 2008 and received compensation for total
disability. By decision dated February 26, 2010, OWCP terminated his compensation effective
March 13, 2010 on the grounds that he had no further employment-related disability. A conflict
arose between appellant’s attending physician, Dr. Ronald D. Shade, a Board-certified
orthopedic surgeon, and Dr. Robert Holladay, a Board-certified orthopedic surgeon, who
provided a second opinion examination, regarding whether appellant had any further disability.
OWCP determined that the December 1, 2009 opinion of Dr. Bernie McCaskill, a Boardcertified orthopedic surgeon, who performed an impartial medical examination, represented the
weight of the evidence and established that appellant had no disability due to his February 27,
2003 work injury.3
In a report dated February 10, 2010, received by OWCP on March 2, 2010, Dr. Shade
diagnosed cervical spinal stenosis and myelopathy, lumbar radiculopathy, bilateral impingement
syndrome and myofascitis, bilateral osteoarthritis of the knees, right carpal tunnel syndrome,
coronary artery disease, hypertension, congestive heart failure and a myocardial infarction. He
related that he had reviewed Dr. McCaskill’s report and stated:
“It is apparent that Dr. McCaskill was basing his evaluation on Dr. Holladay’s
report, which was likewise an unreasonable assessment on [appellant].
[Appellant] has several diagnoses with objective testing to confirm his present
medical status. It is my strong opinion that [appellant’s] condition is not static,
that it is progressive. [Appellant] will also require bilateral total knee
replacements in the future if his health allows. It is also my strong opinion that
[appellant] is totally disabled and is incapacitated and unable to work.”

2

In a decision dated September 13, 2004, OWCP granted appellant a schedule award for a 12 percent impairment
of the bilateral upper extremities and an 11 percent impairment of the left lower extremity. By decision dated
December 15, 2008, it found that he received an overpayment of $3,880.60 for the period September 13 through
October 22, 2008 because he received both compensation from OWCP and leave from the employing establishment.
3

In a report dated December 1, 2009, Dr. McCaskill discussed appellant’s current complaints and noted that he
had a prior work injury in 1998. He listed findings on examination and diagnosed chronic multifocal complaints of
uncertain etiology and multiple nonphysiologic findings. Dr. McCaskill found no objective evidence of disability
and attributed his lack of recovery to motivational issues.

2

In progress reports dated February 3, March 15, April 12 and May 26, 2010, Dr. Shade
discussed appellant’s symptoms and provided pain management.
On October 18, 2010 appellant requested reconsideration. He asserted that his
February 27, 2003 employment injury aggravated a prior accepted July 26, 1988 work injury in
file number xxxxxx197. Appellant contended that Dr. Holladay did not review x-rays, spent
only 10 minutes with him during the examination and knew he was in pain during the
examination. He argues that Dr. Holladay based his conclusions on the fact that he “looked
healthy.” Appellant also argued that Dr. McCaskill “stated he had had talked to Dr. Holladay
and he said the same thing that I looked healthy and the 10 minutes I was in his office he had
already decided with Dr. Holladay.” He questioned how Dr. McCaskill found that he was not
disabled given that he “almost got killed at work from injury that was reaggravated on
February 27, 2003.”
Dr. Shade submitted a report received October 25, 2010 identical to his February 10,
2010 report.4 In a progress report dated October 20, 2010, he noted that appellant’s
compensation was terminated “based on the two unreasonable nonmedical evidence based
reports by Dr. Holladay and Dr. McCaskill.” Dr. Shade indicated that the Social Security
Administration (SSA) found that appellant was totally disabled. He found tenderness on
palpation of the cervical and lumbar spine and diagnosed a neck sprain, shoulder, elbow and arm
contusion, lumbar sprain, lumbosacral neuritis and cervical stenosis.
By decision dated February 16, 2011, OWCP denied appellant’s request for
reconsideration after finding that the evidence submitted and arguments raised were insufficient
to warrant reopening his case for further merit review.
On appeal appellant argued that Dr. Holladay and Dr. McCaskill did not review his
x-rays. He further maintained that Dr. McCaskill relied upon an inaccurate history of injury as
he did not find that he had a prior work-related injury. Appellant asserted that his 1988 work
injury was aggravated by the injury in 2003. He further questioned his attending physician’s
decision that he was unable to undergo a fusion due to his coronary artery disease.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5 its
regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.6 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
4

The report is dated July 11, 2008. It is apparent, however, that this is a typographical error as Dr. Shade
discussed Dr. McCaskill’s December 1, 2009 report.
5

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on her own motion or on application.”
6

20 C.F.R. § 10.606(b)(2).

3

of the date of that decision.7 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.8
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.9 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.10
ANALYSIS
By decision dated February 26, 2010, OWCP terminated appellant’s compensation
effective March 13, 2010 after finding that the weight of the evidence, as represented by the
opinion of Dr. McCaskill, the impartial medical examiner, established that he had no further
disability due to his February 27, 2003 work injury. On October 10, 2010 appellant requested
reconsideration of the February 26, 2010 decision.
As noted, the Board does not have jurisdiction over the February 26, 2010 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his October 10, 2010 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument not previously considered. He contended that Dr. Holladay, an OWCP
referral physician, did not review x-rays, performed a cursory examination and was aware that he
was in pain during the examination. Appellant maintained that Dr. Holladay based his
conclusion on his appearance. He also asserted that Dr. McCaskill related that he had spoken
with Dr. Holladay prior to the examination and agreed with his conclusions. Appellant did not,
however, submit any evidence supporting his allegations that the physicians were biased against
him or failed to adequately perform a medical examination.
Appellant contended that his February 27, 2003 employment injury aggravated a July 26,
1988 work injury. The underlying issue in the case, however, is whether he had further disability
due to his February 27, 2003 injury. Appellant’s lay opinion is not relevant to the medical issue
in this case, which can only be resolved through the submission of probative medical evidence
from a physician.11

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

10

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
11

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

4

A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not submit any pertinent new and relevant medical evidence in this
case. In support of his request for reconsideration, he submitted a February 10, 2010 report from
Dr. Shade, who asserted that Dr. McCaskill’s opinion was “unreasonable.”12 Dr. Shade
diagnosed cervical spinal stenosis and myelopathy, lumbar radiculopathy, bilateral impingement
syndrome and myofascitis, bilateral osteoarthritis of the knees, right carpal tunnel syndrome,
coronary artery disease, hypertension, congestive heart failure and a myocardial infarction. He
maintained that appellant would require bilateral knee replacements at a future date and asserted
that he was totally disabled from employment. The issue, however, is whether appellant has any
further disability due to his February 27, 2003 injury, accepted by OWCP for neck strain,
bilateral contusions of the shoulders, elbows and upper arms, lumbar sprain and thoracic or
lumbosacral neuritis or radiculitis. Dr. Shade did not address whether appellant remained
disabled due to the February 27, 2003 and thus his opinion is not relevant to the underlying issue
in the case. Evidence that does not address the particular issue involved does not warrant
reopening a case for merit review.13
In a progress report dated October 20, 2010, Dr. Shade asserted that the opinions of
Dr. Holladay and Dr. McCaskill were not reasonable. He provided examination findings and
diagnosed a neck sprain, contusions of the shoulder, elbow and arm, lumbar sprain, cervical
stenosis and lumbosacral neuritis. Dr. Shade indicated that SSA determined that appellant was
totally disabled; however, the pertinent issue is whether the disability was due to the
February 27, 2003 work injury. Further, he did not explain why he believed the opinion of
Dr. Holladay and Dr. McCaskill were unreasonable. Consequently, Dr. Shade’s opinion is
irrelevant and insufficient to warrant reopening the case for further review of the merits under
section 8128.14
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). He did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP, or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal appellant argued that Dr. Holladay and Dr. McCaskill did not review his
x-rays. He further maintained that Dr. McCaskill relied upon an inaccurate history of injury as
he denied that he had a prior work-related injury. Both physicians, however, provided a detailed
review of the evidence of record. Appellant asserted that a prior work injury was aggravated by
the injury in 2003. He also disagreed with Dr. Shade’s finding that his heart condition prevented
him from undergoing a surgical fusion. As discussed, however, appellant’s lay opinion is not
relevant to the underlying medical issue.15
12

The record also contains an identical report from Dr. Shade dated July 11, 2008 and received October 20, 2010.
As previously noted, the date of July 11, 2008 is a typographical error.
13

J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

14

Id.

15

See Gloria J. McPherson, supra note 11.

5

CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2012
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

6


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

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

Docket No. 10-1475
Issued: February 8, 2011

Case Submitted on the Record

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

JURISDICTION
On May 4, 2010 appellant filed a timely appeal from a November 6, 2009 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established an injury causally related to factors of his
federal employment.
FACTUAL HISTORY
On July 12, 2007 appellant filed a recurrence of disability claim (Form CA-2a) listing a
date of injury of January 30, 2002.1 On the claim form he stated that his supervisor changed his
route from a driving route to a walking route that required him to walk up steep hills with heavy
loads. Appellant reported that the date of the recurrence of disability was April 2005.
1

The record indicates that appellant has a claim for a low back injury on January 30, 2002 under Office File No.
xxxxxx669. Appellant also has an occupational claim, Office File No. xxxxxx805, accepted for cervical and
thoracic strains.

In a July 9, 2007 statement, a supervisor advised that it was safer for appellant to “deliver
the route park and loop,” rather than driving, because driving required him to get in and out of
the vehicle for every delivery. By letter dated November 14, 2007, the Office advised appellant
that it was developing his claim as a new occupational claim, since he had identified new work
factors. It requested that he submit additional factual and medical evidence.
With respect to medical evidence, appellant submitted reports from Dr. James Reynolds,
an orthopedic surgeon. On May 18, 2006 Dr. Reynolds listed a history of a 2002 motor vehicle
accident and provided results on examination. He stated that appellant had either a herniated
disc or central stenosis. In a report dated June 29, 2006, Dr. Reynolds stated that appellant’s first
injury occurred in a motor vehicle accident in 2001, and he “reinjured himself with increased
workload in 2004. Appellant, again, has aggravated his condition and reinjured himself because
of increased workload.” By report dated July 14, 2006, Dr. Reynolds diagnosed lumbar facet
syndrome. He stated that the motor vehicle accident occurred in either January 2001 or
January 2002. In a report dated January 16, 2007, Dr. Reynolds stated that appellant continued
to have cervical, thoracic, and lumbar problems that progressed since the date of injury in 2001,
and progressively increased symptoms in these areas because of his workload. According to
him, appellant had been off work for one month recently due to his back condition.
Dr. Reynolds diagnosed herniated discs at C5-6 and L2-3.
By decision dated January 3, 2008, the Office denied the claim for compensation. It
found the factual and medical evidence was insufficient to establish the claim.
Appellant requested a hearing before an Office hearing representative, which was held on
May 27, 2008. At the hearing, he noted that he had to start walking his route in 2004. Appellant
stated that walking up hills aggravated his condition and he was hoping to get “reinstated to keep
seeing the doctor.…”
In a decision dated August 18, 2008, the hearing representative affirmed the January 3,
2008 Office decision. The hearing representative found that appellant did not establish a new
injury in April 2005 or a recurrence of his prior injuries.
On August 10, 2009 appellant requested reconsideration of his claim. He submitted an
April 29, 2005 form report from a physician whose signature is illegible. The report listed
chronic low back pain since a 2002 accident and that appellant should be off work April 29
and 30, 2005.2
By decision dated November 6, 2009, the Office denied modification of the August 18,
2008 decision.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
2

There is also an April 18, 2005 form report, but it is unclear whether this report was prepared or reviewed by a
physician.
3

5 U.S.C. §§ 8101-8193.

2

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 establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.5
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.6 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.7
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.8
ANALYSIS
Appellant filed a Form CA-2a, notice of recurrence of disability, on July 12, 2007 and
identified a prior January 30, 2002 injury, which apparently concerned a motor vehicle accident
claim. The Office noted that in 2005 appellant had filed a CA-2a, apparently under a prior
occupational claim. As appellant alleged new work exposures on the July 12, 2007 claim form,
the Office adjudicated the claim as a new injury claim. The issue is whether appellant
established a new occupational injury.9
The Board notes that appellant did not submit a detailed factual statement regarding the
work factors alleged to have caused an injury. Appellant referred to having to walk up hills,
without clearly explaining the implicated job duties, when these activities occurred or how much
hill climbing was involved on his route. He referred briefly to 2004, but is unclear when in 2004
his route changed or how long it lasted.

4

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

See Robert G. Morris, 48 ECAB 238 (1996).

7

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

8

Id.

9

The Office decisions dated August 18, 2008 and November 6, 2009 also refer to a recurrence of disability. To
the extent it was attempting to adjudicate a recurrence of disability claim, it would not be appropriate under this
claim. As noted, it is not clear what appellant was claiming, but any claim for a recurrence of disability should be
adjudicated pursuant to the underlying accepted injury claim.

3

As noted, to meet his burden of proof appellant must also submit rationalized medical
evidence. In this case, Dr. Reynolds noted briefly an “increased workload” without further
explanation. A rationalized opinion is an opinion based on an accurate factual and medical
background and supported by rationale explaining causal relationship between a diagnosed
condition and the identified employment factors. The reports of the physician failed to provide
any factual or medical review of appellant’s cervical or lumbar conditions or explain how the
herniated discs at C5-6 or L2-3 were caused or contributed to by appellant’s dates on his postal
route. The Board finds appellant did not submit sufficient factual or medical evidence to meet
his burden of proof.10
CONCLUSION
The Board finds appellant did not establish an injury causally related to factors of his
federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 6, 2009 is affirmed.
Issued: February 8, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10

The Board’s jurisdiction is limited to evidence that was before the Office at the time of its final decision.
20 C.F.R. § 501.2(c).

4