United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
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Bloomfield Hills, MI, Employer
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___________________________________________ )
M.G., Appellant

Appearances:
Paul H. Kullen, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0110
Issued: April 4, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 26, 2015 appellant, through counsel, filed a timely appeal from an August 24,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an occupational
disease in the performance of duty.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a May 19, 2009 decision,
the Board affirmed April 1 and September 3, 2008 OWCP decisions, which found that the
medical evidence was not sufficient to establish that appellant’s medical condition was causally
1

5 U.S.C. § 8101 et seq.

related to her employment duties.2 In an April 17, 2012 decision, the Board affirmed an
April 26, 2011 OWCP decision, which denied modification of its prior decisions, finding that
appellant had not met her burden of proof to establish an injury in the performance of duty.3 In
an April 17, 2014 decision, the Board found that OWCP improperly refused to reopen
appellant’s case for further review of the merits of her claim under 5 U.S.C. § 8128(a). The
Board found that the June 25, 2010 report from Dr. Robert A. Krasnick, a Board-certified
physiatrist, constituted relevant and pertinent new evidence, not previously considered by
OWCP. The Board remanded the case for OWCP to conduct a merit review and after such
further development as deemed necessary, and advised that OWCP should issue an appropriate
merit decision.4 The facts and history contained in the prior appeals are incorporated herein by
reference.
The relevant facts include that on November 25, 2006 appellant, then a 31-year-old
distribution clerk, filed an occupational disease claim (Form CA-2) alleging that she sustained
grade 1 anterolisthesis of L5-S1 due to lifting magazines at work. She first became aware that
her condition was employment related in November 1998.5 On February 5, 2002 a nonwork
accident occurred when a car hood fell onto appellant’s neck causing headaches and severe neck
and low back pain. Appellant continued to work with restricted duties due to her low back. The
employing establishment controverted appellant’s claim and noted that she was last exposed to
the work conditions alleged to have caused her condition on November 30, 2006 and that she had
been placed on light-duty work. On September 11, 2008 appellant stopped work.
On remand from the appeal in Docket No. 14-0106, OWCP conducted a merit review. In
a May 19, 2014 decision, it denied modification of its prior decision.
On May 19, 2015 appellant’s counsel requested reconsideration. He submitted new
medical evidence to support that the nonwork injury to her neck did not impact the development
of her work-related lumbar spondylolisthesis, from which she was disabled from her
employment.
In a May 18, 2015 report, Dr. Krasnick noted that he had treated appellant’s lower back
pain since March 8, 2010. He advised that he previously noted appellant’s history which
included that she had worked at the employing establishment as a distribution clerk since 1996.
Dr. Krasnick advised that in 1998 appellant had a work injury when she developed lower back
pain. He explained that on November 4, 1998 she was putting flats of mail into cases, when she
developed lower back pain and was diagnosed with back strain. Dr. Krasnick related that
appellant had chronic worsening back and leg pain which he described in his June 25, 2010
2

Docket No. 08-2474 (issued May 19, 2009).

3

Docket No. 11-1886 (issued April 17, 2012).

4

Docket No. 14-0106 (issued April 17, 2014).

5

The record reflects that in November 1998, appellant experienced low back pain after putting up routed flats.
The claim was allowed for limited medical treatment under separate case number xxxxxx543. Appellant worked as
a sale and service associate from approximately 2002 through approximately 2005, at which time, she returned to
her job as a distribution clerk.

2

report. He addressed the relevance of appellant’s 2002 nonwork injury, which occurred when
the hood of a car fell on her neck. Dr. Krasnick explained that the medical evidence revealed
that appellant sustained some trauma to the head without loss of consciousness. He related that
she had x-rays of the cervical spine due to neck pain; however, the x-rays were unremarkable.
Dr. Krasnick noted that appellant was taken off work for a short period of time due to the
headaches or neck pain. He related that “co-existent” with the head and neck injury, she still had
ongoing back pain and spondylolisthesis. Dr. Krasnick opined that her injuries to the head and
neck had resolved, had no direct effect on her lower back, and were “unrelated injuries.” He
opined that starting with the low back strain of 1998, she had gradually progressive symptoms
related to her back and leg symptoms, including pain, numbness, tingling and increasing
disability in regards to her abilities at work. Dr. Krasnick advised that it was not until 2002, and
despite a concurrent injury to the head and neck, “clearly without any causal relationship to the
head and neck, that further imaging was done of her lower back and diagnosis of
spondylolisthesis was made.”
By decision dated August 24, 2015, OWCP denied modification of its prior decision.
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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are 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 upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the

6

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

7

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

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relationship between the diagnosed condition and the specific employment factors identified by the
claimant.8
ANALYSIS
OWCP denied appellant’s reconsideration request because the evidence of record failed
to establish the relationship between any diagnosed condition and established work-related
events, such as lifting magazines at work occurred.
The Board finds that appellant submitted insufficient medical evidence to establish that
her conditions of back pain and spondylolisthesis were caused or aggravated by the established
work activities or any other specific factors of her federal employment.
Dr. Krasnick, in his June 25, 2010 report, explained that appellant did not have back pain
until 1998 when she was working at the employing establishment. He asserted that in 1998, after
heavy lifting and repetitive bending, she developed progressive back pain also affecting both
legs. Dr. Krasnick advised that diagnostic testing since 2002 showed a progression of
spondylolisthesis at the L5-Sl level as well as increased facet joint arthritic changes and
foraminal narrowing. He opined that “within reasonable medical certainty, bending, lifting and
twisting during the course of work caused injury to the L5-S1 disc, causing pain and further
instability in 1998” and continued to progress thereafter. Dr. Krasnick advised that “because of
the injury to the disc and the underlying nature of [appellant’s] problem, it is more likely than not
that the L5-S1 level was permanently and irreversibly damaged.” He opined that “a workplace
injury would not only have caused precipitation of symptoms, but acceleration of her underlying
disease. This is consistent with [appellant’s] history of having no back or leg pain prior to 1998
and progressive symptomatology since that time.” This report is of limited probative value as
Dr. Krasnick did not address the impact of the 2002 incident in which a car hood fell on
appellant’s neck. This is particularly important since 2002 is the year that appellant’s condition
began to progress.9
Appellant also provided a May 18, 2015 report from Dr. Krasnick who noted appellant’s
history and addressed the relevance of 2002 nonwork injury when a car hood fell on her neck.
Dr. Krasnick noted that the medical evidence revealed some trauma to the head without loss of
consciousness and that cervical spine x-rays were unremarkable. He also noted that appellant
was taken off work for a short period of time due to the headaches or neck pain and that
“coexistent” with the head and neck injury, she still had ongoing back pain and
spondylolisthesis. Dr. Krasnick asserted that appellant’s head and neck injuries resolved and had
no direct effect on her lower back and they were “unrelated injuries.” He reported that starting
with the low back strain of 1998, she had gradually progressive symptoms related to her back
and leg symptoms, including pain, numbness, tingling, and increasing disability in regards to her
abilities at work. Dr. Krasnick explained that it was not until 2002, and despite a concurrent
injury to the head and neck, “clearly without any causal relationship to the head and neck, that
further imaging was done of [appellant’s] lower back and diagnosis of spondylolisthesis was
8

Id.

9

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).

4

made.” The Board finds that this report does not sufficiently explain why he discounted the
2002 incident as the cause of her condition as Dr. Krasnick clearly notes that this was the year
the spondylolisthesis diagnosis was made. He did not sufficiently explain how particular work
duties would cause or contribute to a diagnosed medical condition. The need for detailed
rationale is particularly important as Dr. Krasnick did not begin treating appellant until 2010,
nearly 12 years after the onset of back pain in 1998, and about eight years after the car hood fell
on her neck.10
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.11
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit. The Board finds that these
reports are insufficiently rationalized and of limited probative value with regard to causal
relationship.
On appeal, appellant’s counsel argues that the medical evidence supported the approval
of appellant’s claim. However, as explained, the medical evidence is insufficient to establish the
claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an
occupational disease in the performance of duty.

10

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).
11

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

12

Id.

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ORDER
IT IS HEREBY ORDERED THAT the August 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 4, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.E., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Victorville, CA, Employer
__________________________________________

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Appearances:
Lonnie Boylan, for the appellant
Office of Solicitor, for the Director

Docket No. 14-868
Issued: September 24, 2014

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 March 7, 2014 appellant, through her representative, filed a timely appeal from the
January 27, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied expansion of the accepted medical conditions. 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 the conditions for which appellant seeks compensation are causally
related to the September 1, 2011 work injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 1, 2011 appellant, a 50-year-old psychologist, sustained a traumatic injury
in the performance of duty when she bent over from her chair to check a telephone wire
connection under her desk, lost her balance and fell.
Dr. Rami T. Pathi, a Board-certified orthopedic surgeon, examined appellant on
September 15, 2011. He noted appellant’s complaints, listed the history of injury, and described
his findings on examination. Dr. Pathi diagnosed a meniscus tear of the right knee and lumbar
and cervical sprain. Based on appellant’s statements and his clinical examination, Dr. Pathi
found that appellant’s current injury to the right knee was the direct result of the work incident
that occurred on September 1, 2011.2
On December 7, 2011 OWCP accepted appellant’s claim for right knee sprain and strain
with a lumbar sprain and strain.
A magnetic resonance imaging (MRI) scan of the cervical spine obtained on January 4,
2012 showed numerous findings from C3-7, including bilateral uncovertebral hypertrophy,
disc/osteophyte complexes, facet arthropathy, neural foraminal narrowing, and a left paracentral
disc herniation at C4-5 with mild spinal canal stenosis on the left. The study found no stress
injury or compression deformity.
On April 4, 2012 Dr. Pathi updated his diagnosis to include cervical herniations with
radiculopathy. He also updated his statement of causation or work relatedness. Based on the
description given by appellant and the physical examination, Dr. Pathi determined that
appellant’s injury to the neck was the direct result of the work incident that occurred on
September 1, 2011. On June 18, 2012 he updated his diagnosis to include depression secondary
to pain. On April 3, 2013 Dr. Pathi updated his diagnosis to include lumbago and cervicalgia.
X-rays of the cervical spine, obtained on August 24, 2012, showed marked spondylosis
involving C5-6 and C6-7 with marked narrowing of C5-6 and C6-7 right-sided neural foramina.
The severity of this neural foraminal narrowing was noted to have mildly worsened since
September 2, 2004. The study also showed prominent facet joint degenerative arthritis involving
the left C3-4 facet. There was no acute cervical spine injury. There was upper thoracic scoliosis
and lower cervical kyphosis.
An MRI scan of the right knee was obtained on September 27, 2012. It showed a
probable small free edge tear of the junction of the posterior horn and body of the medial
meniscus; a ganglion cyst measuring 2.8 centimeters posterior to the superior aspect of the
interosseous membrane; small joint effusion; and medial greater than lateral patellofemoral
degenerative changes represented by chondral loss and marginal osteophyte formation.
On November 20, 2012 Dr. Ross N. Brudenell, a Board-certified orthopedic surgeon,
noted that appellant was injured at work as a prison guard in September 2011. He described his
2

Dr. Pathi inadvertently noted February 2, 2011 as the date of injury as he had earlier included in his report that
his examination followed the occurrence of the September 1, 2011 employment injury.

2

findings on examination and reviewed MRI scan studies of appellant’s cervical spine.
Dr. Brudenell diagnosed cervical radiculopathy, slowly resolving, and cervical spondylosis, “the
latter of which certainly predates her injury but certainly her cervical radiculopathy seems to be
directly related to her injury.”
An MRI scan of the lumbar spine, obtained on April 26, 2013, showed multilevel
degenerative changes, most prominent at the L5-S1 level.
On April 11, 2013 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Douglas Bald, a Board-certified orthopedic surgeon, for a second
opinion on the extent of her September 1, 2011 employment injury. In a May 15, 2013 report,
Dr. Bald related appellant’s history of injury. He noted that she was aware of the acute onset of
pain primarily in the right side of her neck and upper back.3 Dr. Bald reviewed appellant’s
medical record, including the results of diagnostic studies. He described her complaints and
symptoms, as well as his findings on physical examination and offered his diagnoses.
It was Dr. Bald’s opinion that the injuries appellant incurred on September 1, 2011 were
consistent with the accepted conditions of right knee sprain, lumbar sprain and neck sprain.4 It
was his opinion that the lumbar sprain and right knee sprain had resolved completely without
residuals and were not contributing to any persistent symptomatology or physical limitation.
Dr. Bald observed that appellant’s current major subjective complaints were felt to be directly
related to her cervical spine condition. In his opinion, the evidence supported that the neck
sprain associated with the September 1, 2011 work injury, combined with her preexisting severe
multilevel degenerative disc disease, and at least historically and objectively was aggravated by
the work incident and was unlikely to resolve with any medical treatment. Dr. Bald added that
the result of the September 1, 2011 work injury was a persistent chronic pain syndrome and
persistent right upper extremity radiculopathy/radiculitis.
Appellant’s representative asked OWCP to expand its acceptance to include several
medical conditions.5 In turn, OWCP asked Dr. Bald for a supplemental report addressing
whether any of these conditions were related to the September 1, 2011 work injury, and if so,

3

The earliest medical evidence shows that appellant reported immediate pain in the right side of her mid-back
and in her right knee. The T10-12 area was painful to palpation and had palpable spasm. Though appellant reported
that she began to feel stiffness in her upper back and neck by the evening, there were no clinical findings and no
diagnosis with respect to either. Clinical studies were promptly obtained for her thoracic spine and right knee. The
first clinical study of the cervical spine was an MRI scan obtained on January 4, 2012. It was not until April 4, 2012
that Dr. Pathi first reported a connection between appellant’s neck condition and the September 1, 2011 work injury.
4

Notwithstanding the April 8, 2013 statement of accepted facts, OWCP did not formally accept appellant’s claim
for neck sprain.
5

Aggravation of the preexisting cervical degenerative disc disease at multiple levels; cervical spondylosis at C5-6
and C6-7; cervical stenosis and narrowing of the right-sided neural foramina at C5-6 and C6-7; cervical
radiculopathy; cervical disc herniation; facet joint degeneration arthritis involving the left C3-4 facet; lumbar disc
disorder, cervicalgia; lumbago; posterior horn and body tears of the medial meniscus; degenerative changes to the
right knee represented by chondral loss and marginal osteophyte formation along the lateral patellofemoral joint;
acute scapular thoracic strain; and right C5-6 paresthesias.

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how. It also asked Dr. Bald to provide a rationalized opinion that differentiated appellant’s
preexisting cervical degenerative disease from the effects of the accepted work injury.
In a June 21, 2013 addendum, Dr. Bald advised that there was a large list of preexisting
medical conditions, many of which were unrelated to the September 1, 2011 work injury. It was
reasonable, he found, to expand the conditions associated with the injury claim to include a
permanent aggravation of appellant’s preexisting cervical spondylosis with right C5-6
paresthesias. The other conditions claimed, were not related in any way to the September 1,
2011 work injury. These conditions included cervical stenosis at C5-6 and C6-7, cervical
radiculopathy, cervical disc herniation, facet joint degenerative arthritis involving the left C3-4
facet, lumbar disc disorder, posterior horn and body of the meniscus tears, degenerative changes
of the right knee represented by chondral loss and marginal osteophyte formation along the
lateral patellofemoral joint and acute scapulothoracic strain. None were caused or affected by
the incident in question.
As for differentiating the preexisting cervical degenerative disc disease from the effects
of the September 1, 2011 work injury, Dr. Bald noted that appellant was functioning reasonably
well leading up to the incident. Since then appellant had experienced increasing subjective
symptomatology and recurrent evidence of radiculitis, at least in the right upper extremity, that
was persistent since the work injury.
On April 3, 2013 Dr. Pathi noted that, although appellant had a preexisting condition of
the cervical and lumbar spine, she was asymptomatic prior to the September 1, 2011 work injury.
She had no prior injury to her right knee. After describing appellant’s current complaints,
Dr. Pathi listed the following medical conditions as causally related to the September 1, 2011
work injury: aggravation of the preexisting cervical degenerative disc disease at multiple levels;
cervical radiculopathy; cervical disc herniation; lumbar disc disorder; posterior horn and body
tears of the medial meniscus; acute scapular thoracic strain; right C5-6 paresthesias.
Dr. Pathi stated that appellant had prior cervical disc herniations that were exacerbated or
worsened by the September 1, 2011 work injury. Given her prior condition and the nature of her
fall and twist injury, it was reasonable to conclude that the incident caused a permanent
aggravation of appellant’s cervical and lumbar spine. Objective findings included rigidity,
spasm, tenderness and limited motions of the spine throughout. Appellant had a positive straight
leg raising test bilaterally and a positive pump handle test. She had no prior injury to her right
knee and was asymptomatic prior to the work injury. Appellant fell on her right knee and was
symptomatic ever since. She had preexisting degenerative changes to her right knee, and the
tears to the medial meniscus, revealed by MRI scan, were causally related to the fall. Objective
findings included tenderness, mild swelling, weakness and limited motion. McMurray’s and
Apley’s tests were positive.
On August 21, 2013 OWCP accepted appellant’s claim to include a torn right medial
meniscus.
On June 6, 2013 Dr. Sarah Buenviaje-Smith, a consulting Board-certified pain specialist,
advised that, although she did not have copies of any previous MRI scans of the lumbar spine to

4

determine if there was any progression of the pathology, she believed that the mechanism of the
fall injury may have aggravated appellant’s preexisting condition.
On November 26, 2013 Dr. Pathi reviewed Dr. Bald’s report and disagreed with his
opinion that the September 1, 2011 work injury did not aggravate appellant’s preexisting
diseases. He described the work injury and found that the twisting of her spine and neck,
combined with the sustained high-impact traumatic fall, exacerbated appellant’s cervical and
lumbar disc disorders. To provide the rationale for this aggravation, Dr. Pathi noted that the
discs act as load-bearing cushions and help to distribute compressive forces to the spine. Any
traumatic fall, such as appellant’s fall on September 1, 2011, can cause further injury to or
exacerbate or aggravate already injured spinal discs. “These injuries also contribute to
degenerative changes along the bony aspects of the spine.”
Dr. Pathi noted that appellant’s cervical spine was more directly impacted when she fell,
which led to muscle imbalances and stress surrounding her spine and shoulders. As a direct
result of the fall, when appellant now looks up or down, twists at the trunk, attempts to lift heavy
objects overhead and in front of her body, the extension of looking upwards with the cervical
spine closed the bony opening for the nerves to exit the spine, causing and exacerbating her
symptoms of the cervical disorder radiating upper extremity pain, numbness and weakness.
Appellant’s lumbar spine was also affected by the fall. Dr. Pathi noted that the April 26,
2013 MRI scan revealed multiple disc bulges at all levels with moderate bulges from L3-5 and
moderate-to-severe loss of disc height with diffuse disc bulge at L5-S1. Appellant’s symptoms
only increased after her fall on September 1, 2011, and as a direct result, she now has difficulty
with prolonged sitting or walking, radiating pain and numbness to both lower extremities down
to her feet, as well as pain with any bending or lifting. The constant numbness to both feet made
it difficult to feel the ground beneath her, which increased the difficulty of ambulation. Dr. Pathi
continued:
“The physiological mechanism of [appellant’s] falling on September 1, 2011,
while in the performance of her duties as a [c]linical [p]sychologist with the
Federal Bureau of Prisons, accelerated or speeded the expected progression of her
preexisting conditions of cervical stenosis and narrowing of the right-sided neural
foramina at C5-C6 and C6-C7, cervical radiculopathy, cervical disc herniation,
facet joint degeneration arthritis involving the left C3-C4 facet, lumbar disc
disorder, degenerative changes of the right knee represented by chondral loss and
marginal osteophyte formation along the lateral patellofemoral joints, and acute
scapulothoracic strain. [These conditions] are progressive in nature [and] in her
present debilitating condition would not have manifested itself but for her
employment. Based on my 39 years of experience as a Board[-]Certified
Orthopedic Surgeon, my long-term medical treatment and first-hand observation,
my review of the relevant medical records and my interpretations of the relevant
diagnostic testing, it is my opinion that there is no other reasonable medical
explanation in regards to her present debilitating condition but that [appellant’s]
permanent aggravation to the aforementioned preexisting conditions were
unequivocally precipitated, accelerated and proximately caused by the
September 1, 2011 work injury.”

5

In a decision dated January 27, 2014, an OWCP hearing representative affirmed the
August 21, 2013 decision as modified to accept appellant’s claim for permanent aggravation of
cervical spondylosis and right C5-6 paresthesias as found by Dr. Bald. The hearing
representative found that the medical evidence did not establish the element of causal relation for
the other claimed conditions and that OWCP gave appropriate weight to Dr. Bald’s opinion. The
hearing representative explained that the opinions of other physicians were not well rationalized.
In particular, Dr. Pathi’s opinion that the fall could have aggravated a preexisting spinal disc
condition was speculative. He did not address the history of appellant’s cervical spine condition
from 2004 or her 2009 nonoccupational injury. Further, Dr. Pathi did not make a clear
distinction between preexisting cervical and lumbar condition and her condition following the
September 1, 2011 work injury.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.6 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of her claim, including that she
sustained an injury in the performance of duty and that any specific condition or disability for work
for which she claims compensation is causally related to that employment injury.7
Causal relationship is a medical issue,8 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,9 must be
one of reasonable medical certainty,10 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.11
ANALYSIS
On December 7, 2011 OWCP accepted appellant’s claim for right knee sprain and strain
and lumbar sprain and strain. The first mention of an accepted neck sprain appears in the
April 8, 2013 statement of accepted facts provided to Dr. Bald, the second opinion orthopedic
surgeon. Following his reports, and the August 19, 2013 report of Dr. Pathi, the attending
orthopedic surgeon, OWCP accepted a tear of the right medial meniscus and a neck sprain.
Thereafter, the hearing representative accepted a permanent aggravation of preexisting cervical
spondylosis with right C5-6 paresthesias, as Dr. Bald had recommended.
6

5 U.S.C. § 8102(a).

7

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

8

Mary J. Briggs, 37 ECAB 578 (1986).

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

See Morris Scanlon, 11 ECAB 384, 385 (1960).

11

See William E. Enright, 31 ECAB 426, 430 (1980).

6

OWCP denied any further expansion of appellant’s claim on the grounds that the medical
opinion evidence is not well rationalized. On September 15, 2011 Dr. Pathi stated that, based on
appellant’s statements, his clinical examination, and his experience as a Board-certified
orthopedic surgeon, appellant’s current injury to the right knee was the direct result of the work
injury. It was a conclusion he would repeat, without elaboration, in follow-up reports. On
April 4, 2012 Dr. Pathi stated that, based on the description given by appellant, the physical
examination, and his training and experience as a Board-certified orthopedic surgeon, appellant’s
injury to the neck, otherwise unspecified, was the direct result of the work injury that occurred
on September 1, 2011. Again, he did not adequately explain what it was about appellant’s
description or his findings and experience that brought him to that conclusion.
Dr. Brudenell, another orthopedic surgeon, diagnosed cervical radiculopathy, slowly
resolving, and cervical spondylosis, the latter of which, he commented, predated appellant’s
injury but “certainly her cervical radiculopathy seems to be directly related to her injury.” Like
Dr. Pathi, he did not explain the reason this seemed to be the case. The Board has held that
medical conclusions unsupported by rationale are of diminished probative value.12
Dr. Buenviaje-Smith, a consulting pain specialist, advised that she did not have copies of
any previous MRI scans of the lumbar spine to determine if there was any progression of the
pathology. Nonetheless, she stated that the mechanism of the fall injury may have aggravated
appellant’s preexisting condition. That is possible, of course, but conjecture is not sufficient to
discharge appellant’s burden to establish the element of causal relationship. Although the
medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute medical certainty, neither can such opinion be
speculative or equivocal.13
Dr. Pathi noted on April 3, 2013 that appellant had preexisting cervical and lumbar spine
conditions and preexisting degenerative changes to her right knee, but she was asymptomatic
prior to the September 1, 2011 work injury. The Board has held, however, that when a physician
concludes that a condition is causally related to employment because the employee was
asymptomatic before the employment injury, the opinion is insufficient, without supporting
medical rationale, to establish causal relationship.14 The mere fact that a condition manifests itself
or worsens during a period of federal employment raises no inference of causal relationship
between the two.15 Dr. Pathi did not explain how appellant’s fall and twist injury had permanently
aggravated any preexisting medical condition.
On November 26, 2013 Dr. Pathi provided some medical rationale to support his opinion.
He explained that vertebral discs act as load-bearing cushions to help distribute compressive forces
12

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

13

Philip J. Deroo, 39 ECAB 1294 (1988); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Board-certified
internist that the employee’s complaints “could have been” related to her work injury was speculative and of limited
probative value).
14

Thomas D. Petrylak, 39 ECAB 276 (1987).

15

Steven R. Piper, 39 ECAB 312 (1987).

7

to the spine, and any traumatic fall, such as appellant’s high-impact fall, can further injure already
injured discs. He added that such injuries contribute to degenerative changes along the bony
aspects of the spine, and in appellant’s case had contributed to muscle imbalances and stress
surrounding her spine and shoulders and an increase in lumbar symptomatology after the
September 1, 2011 work injury.
Dr. Pathi’s opinion that the work incident accelerated or speeded the expected progression
of appellant’s preexisting conditions appears to lack any objective basis in the medical record. He
did not adequately explain how any preexisting condition had progressed beyond what might be
expected from the natural progression of that condition. Dr. Buenviaje-Smith advised that she did
not have copies of any previous MRI scans of the lumbar spine to determine if there was any
progression of the pathology. The Board notes that x-rays of the cervical spine, obtained on
August 24, 2012, showed marked spondylosis involving C5-6 and C6-7 with marked narrowing
of C5-6 and C6-7 right-sided neural foramina. The study indicated, however, that the severity of
this narrowing had only mildly worsened since September 2, 2004. If there was anything in this
study that supported Dr. Pathi’s opinion that the September 1, 2011 work injury was likely
responsible for the mild worsening, as opposed to the natural progression of the preexisting
condition over an eight-year period, he did not explain.
OWCP asked Dr. Bald to provide a rationalized opinion that differentiated appellant’s
preexisting condition from the effects of the work injury. Dr. Pathi failed to explain how the
incident could have accelerated or speeded the expected progression of appellant’s preexisting
conditions. Without such evidence, Dr. Pathi’s description of the physiological mechanism of
the fall and its effect on appellant’s spine remains speculative.
Accordingly, the Board finds that Dr. Pathi’s opinion on causal relationship is of
diminished probative value and is insufficient to establish the element of causal relationship.
Dr. Pathi has offered a physiological explanation of how a traumatic fall can further injure
intervertebral discs that are already injured, but he has not shown how the medical record
supports his hypothesis that the September 1, 2011 work injury accelerated or speeded the
expected progression of any preexisting condition. Because his opinion is of diminished probative
value, the Board also finds no conflict warranting referral to an impartial medical specialist under
5 U.S.C. § 8123(a). The Board will therefore affirm OWCP’s January 27, 2014 decision.
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 to establish that the conditions for
which appellant seeks compensation are causally related to the September 1, 2011 work injury.

8

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2014
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, TRENTON
PROCESSING & DISTRIBUTION CENTER,
Trenton, NJ, Employer
__________________________________________

)
)
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)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-923
Issued: September 22, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 7, 2013 appellant, through her attorney, filed a timely appeal from the
December 18, 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.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition while in the
performance of duty; and (2) whether she sustained a head injury on May 11, 2011 while in the
performance of duty.
On appeal, counsel contends that the evidence establishes that appellant sustained an
emotional condition causally related to a compensable factor of her employment, as she was
asked to work beyond her physical restrictions.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 16, 2011 appellant, then a 42-year-old manual clerk, filed a traumatic injury
claim alleging that on May 11, 2011 she had both an emotional condition (stress reaction) and a
traumatic injury (head injury) as a result of circumstances at work. She stopped work on
May 12, 2011.2
In medical reports dated May 13 and 18, 2011, Dr. Gribbin obtained a history that
appellant recently had a syncopal episode at work. She related that she had been asked by her
supervisor to perform a certain job. Appellant’s request for permission to leave work was
denied, and she became upset, lost consciousness and fell to the floor hitting her head against the
concrete ground. She was transported to an emergency room by ambulance, but was not
hospitalized. Dr. Gribbin noted appellant’s complaints of exacerbated neck pain, headaches,
pain in her bilateral upper extremities, feet and lower back. She had a history of cervical and
lumbar conditions. Dr. Gribbin listed findings on physical and neurological examination, and
recommended an electromyogram and nerve conduction velocity (EMG/NCV) study to rule out
cervical radiculopathy and a cervical and brain magnetic resonance imaging (MRI) scan to rule
out exacerbation of cervical spine and central nervous system pathology in view of her fall and
head trauma. She also recommended psychological counseling for depression. In a May 27,
2011 report, Dr. Gribbin advised that the EMG/NCV study demonstrated right mild carpal tunnel
syndrome and right C7 radiculopathy.
By letter dated May 31, 2011, OWCP requested that appellant submit factual and medical
evidence.
Appellant related, in a May 16, 2011 narrative statement, that at approximately 3:00 a.m.
on May 12, 2011 she was working in the manual section pitching letters when Dawn J. Jacox, an
acting supervisor, directed her to move her ergonomic chair to the other side of the manual
section to pitch 160 manual letters. Due to a prior work-related back and neck injury, she was
unable to move the heavy chair. Appellant asked Ms. Jacox to move the chair. Ms. Jacox asked
who had originally moved it and appellant responded that a coworker had. She then instructed
appellant to ask that same coworker to move the chair again. Appellant stated that it was not her
coworkers’ responsibility to move her chair. Ms. Jacox initially turned away without a response.
She then again demanded that appellant move the chair and refused to listen to appellant’s
reasons for why she was afraid to do so. Ms. Jacox denied appellant’s request for union
representation and declined to further discuss the situation. Appellant became extremely upset
and felt dizzy. Ms. Jacox then denied appellant’s request to go home and see a doctor. She
directed appellant to instead sit down and pitch mail. Appellant next remembered waking up on
the floor and experiencing head, neck and back pain. She believes she had passed out and fallen
from her chair. Appellant was taken to a hospital emergency room for treatment. She contended
that she had been previously harassed by Ms. Jacox on a daily basis.
2

In a May 31, 2011 continuation of pay (COP) report, a nurse indicated that appellant’s COP case was closed as
she had not returned to work. The nurse indicated that she stopped work on May 12, 2011 due to pain in her neck,
low back and head, and depression and stress. Appellant was receiving physical therapy as ordered by
Dr. Dorota M. Gribbin, an attending Board-certified physiatrist. The nurse stated that if her claim was accepted,
then she should be referred to a field nurse to follow-up on her treatment plan and progress.

2

In a May 12, 2011 narrative statement, Coworkers Robin Kokowski, Greogrit K.
Ghuman, Mike Yanick, Bob Seitz and Helen Qual related that appellant and Ms. Jacox were
arguing at 3:00 a.m. on May 12, 2011. They stated that Ms. Jacox declined appellant’s request to
move her chair to another work area, but earlier Ms. Jacox had moved a chair for another
employee. Appellant told Ms. Jacox that she was not feeling well. Ms. Jacox denied appellant’s
request for union representation and her request to go home. She and appellant continued to
argue. At 3:10 a.m. appellant sat down and at 3:20 a.m. she passed out and fell out of the chair
onto the floor. Yvette Jackson, a distribution operations manager, instructed Ms. Jacox to call
911. Appellant opened her eyes, but did not know who or where she was at that time. Rich
Hogan, a supervisor of distribution operations, picked her up and put her in a wheelchair to wait
for an ambulance. Ms. Jacox instructed the employees to sweep mail and step over appellant.
Janice Spencer-Champion, an employee, related in a May 12, 2011 letter, that at
approximately 3:00 a.m. she observed Ms. Jacox calmly discuss moving a chair with appellant
while appellant talked excitedly during this discussion. Ms. Spencer-Champion stated that
Ms. Jacox wanted appellant to move the chair to prevent a safety hazard for employees who were
sweeping mail. Appellant sat down and Ms. Jacox calmly asked her to move. She started to rant
and argue in a loud voice. Ms. Jacox asked for her card. Appellant appeared to be unconcious as
she slumped back into her chair.
Ms. Jacox related in a May 12, 2011 narrative statement that, at approximately 3:10 a.m.,
appellant allegedly passed out while sitting in a chair in the manual letter operation. She slowly
slid from her chair onto the floor. There was no impact when appellant fell onto the floor.
Ms. Jackson and Richard Hogan, a supervisor, awakened her. Appellant was transported in a
wheelchair out of the area and later transported by emergency personnel to a hospital at 3:20 a.m.
Ms. Jackson stated in an e-mail dated May 12, 2011, that at 3:10 a.m. appellant fainted
while working in manual letters. She had no visible injury and was transported to a hospital for
treatment. Appellant was released on the same date.
In a June 16, 2011 letter, Ms. Jackson described appellant’s manual clerk work duties,
and that she had been accommodated for a prior injury requiring her to have a chair with a back
on it.3 Appellant had an argument with an acting supervisor who asked her to move the chair or
have an employee move it. She was granted permission to see a union representative. Appellant
continued to be loud and argumentative. The acting supervisor granted her request to go home
and asked for her badge. Although appellant stated that she did not feel well, she never went
home. She continued to rant and rave loudly and the supervisor calmly responded to her. While
sitting in her chair, appellant turned her head and suddenly began to slide from her seat onto the
floor. She did not strike the floor. Ms. Jackson contended that appellant’s anxiety and stress
were not work related, but rather self-inflicted.
Anne Mazzara, a supervisor, stated in a May 17, 2011 e-mail that on May 12, 2011 she
advised appellant to calm down. Appellant informed Ms. Mazzara about Ms. Jacox’s refusal to
3

A January 20, 2010 Equal Employment Opportunity (EEO) mediation agreement regarding appellant’s prior
employment-related injury stated that the employing establishment would provide her with an ergonomic chair on a
daily basis upon arrival for her begin tour of duty.

3

move her chair and ordered her to ask another employee to move it. She remembered waking up
on the floor. Appellant was stressed but Ms. Mazzara denied her request for COP as an
occupational disease claim was not eligible for COP. Ms. Mazzara instructed her to provide
documentation. On May 16, 2011 Mr. Kokowski gave Ms. Mazzara a copy of a note from
appellant’s physcian which stated that appellant had a headache and stress.
Dr. Gribbin, in referral slips dated May 6 and 13, 2011, advised that appellant had posttraumatic stress disorder and suicidal ideation. In a June 13, 2011 attending physician’s report,
she diagnosed traumatic brain injury and indicated with an affirmative mark that it was caused or
aggravated by the May 11, 2011 incident. Dr. Gribbin found appellant totally disabled from
May 18 through July 27, 2011.
In a May 12, 2011 report, Dr. William J. McGroarty, a Board-certified radiologist,
advised that a computerized tomography (CT) scan of appellant’s brain was normal. There was
no evidence of intracranial trauma.
Reports dated May 13 and 16 and June 2, 2011 contained illegible signatures and stated
that appellant had anxiety and another illegible diagnosis. She was off work as of June 2, 2011.
Dr. Harry H. Lin, a Board-certified internist, advised in a May 13, 2011 prescrption note
that appellant was suffering from a severe headache and anxiety due to work-related stress and
required one week off work.
In a May 31, 2011 report, appellant’s physical therapist addressed the treatment of
appellant’s lumbar and cervical conditions.
By decision dated July 7, 2011, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish that she sustained an emotional condition causally related
to a compensable employment factor. It accepted that the incidents occurred on May 11, 2011 as
alleged, but found that they did not occur in the performance of duty.
By letter dated July 29, 2011, William D. Coleman, appellant’s union representative,
requested reconsideration on appellant’s behalf. In a June 30, 2011 letter, he contended that
appellant had sustained a work-related head injury when she fell from her chair as confirmed by
hospital discharge instructions. He alleged that appellant had a fainting spell or an episodic
syncope and had hit her head on the floor, as supported by numerous witness statements. She
also had an acute stress anxiety reaction, as supported by witness statements from her coworkers,
who related that she was verbally assaulted by her immediate supervisor.
In an July 14, 2011 report, Dr. Hailing Zhang, a Board-certified pyschiatrist, advised that
appellant had adjustment disorder with anxiety and depression. He ruled out major depression.
In an August 8, 2011 nonmerit decision, OWCP denied appellant’s request for
reconsideration, finding that the evidence submitted was either duplicative or irrelevant and,
thus, insufficient to warrant reopening her case for further review of the merits.
In an August 25, 2011 report, Dr. Zhang released appellant to return to work on
September 1, 2011.
4

By letter dated October 28, 2011, appellant’s attorney requested reconsideration on her
behalf. In support of the request for reconsideration, appellant’s attorney submitted a copy of a
EEO settlement agreement which resolved an EEO claim filed against the employing
establishment on May 23, 2011. That EEO claim alleged that the employing establishment
discriminated against appellant based on her sex, race, age and physical disability when it
disregarded a January 20, 2010 EEO settlement requiring that it provide appellant an ergonomic
chair and retaliated against her for her prior EEO activity. Appellant contended that she
experienced daily harassment by Ms. Jacox since May 11, 2011, noting the incident when she
passed out and fell to the ground. A June 28, 2011 EEO settlement agreement resolving
appellant’s claim provided:
“In the event that [appellant] is instructed by [S]upervisor Anne Mazzara or acting
[S]upervisor Dawn Jacox, to move from one operation to another operation in the
Trenton Processing & Distribution Center (‘P&DC’), it will be the responsibility
of [S]upervisor Mazzara or acting [S]upervisor Jacox to either move [appellant’s]
ergonomic chair, provide [appellant] with an ergonomic chair at the new
operation, or have the ergonomic chair moved to the new operation by an
employee other than the [appellant]. Neither [S]supervisor Mazzara nor acting
[S]upervisor Jacox will instruct [appellant] to find an employee to move her chair.
In the event that [S]upervisor Mazzara or [A]cting [S]upervisor Jacox instructs
[appellant] to find an employee to move her ergonomic chair or move the chair
herself, [appellant] agrees to remind them of this Agreement. It will only be
considered a breach of this paragraph if, after [appellant] reminds [S]upervisor
Mazzara or [A]cting [S]upervisor Jacox of this Agreement and, after reviewing
the Agreement, they refuse to comply with it.”
By decision dated February 1, 2012, OWCP denied modification of the July 7, 2011
merit decision, finding that appellant had not established an emotional condition or a head injury
causally related to a compensable factor of employment. The evidence failed to establish either a
physical injury or that she was harassed by her supervisor.
On April 12, 2012 appellant’s attorney again requested reconsideration submitted a
May 23, 2011 statement from Union Representative Tracey Dougherty prepared on behalf
concerned employees.4 The letter contended that Tour 3 employees were treated differently than
Tour 1 employees. Although the two tours had the same job description, the duties of Tour 1 had
been minimized and given to Tour 3. Tour 3 employees had to sweep the heaviest mail while
Tour 1 employees were at lunch. Tour 1 employees were told not to sweep if they returned from
lunch before Tour 3 employees finished the sweep. Tour 3 employees were held to a 10-minute
break while Tour 1 employees were allowed a 20-minute break. The use of cellphones by
casuals in Tour 1 was ignored. After the supervisor of Tour 3 left, Ms. Jacox constantly watched
the Tour 3 employees. On April 18, 2011 a Tour 3 manager of distribution operations refused to
hear the Tour 3 employees’ complaints of misuse of authority and display of unfair tactics and
suggested that they contact the EEO office. During a May 18, 2011 meeting, approximately one
4

In addition to Tracey Dougherty, the May 23, 2011 statement was also signed by appellant, and three other
employees whose signatures are illegible.

5

week after the events of appellant’s collapse, Ms. Mazzara, Roger Danbury, a Tour 3 manager of
distribution operations, Ms. Jackson and Ms. Jacox held a meeting with the Tour 1 and Tour 3
employees, allowing the Tour 3 employees to voice their complaints. However, the managers
and supervisors allegedly ignored the complaints of Tour 3 employees as trivial as Ms. Jacox
excused her actions. On May 19, 2011, following the meeting, Ms. Jacox sought to intimidate
Tour 3 employees by watching them work until they left the floor.
By decision dated December 18, 2012, OWCP denied modification of the February 1,
2012 decision. It found that the evidence failed to establish that appellant sustained an emotional
conditon or head injury due to a compensable employment factor.
LEGAL PRECEDENT -- ISSUE 1
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or
adversely affected by factors of her federal employment.5 To establish that she sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her
condition; (2) medical evidence establishing that she has an emotional or psychiatric disorder;
and (3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to her emotional condition.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but, nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.7 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.8
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 FECA9 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.10
5

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

6

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

7

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

8

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

9

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
10

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

6

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.11
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.12 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, OWCP must base its decision on an analysis of
the medical evidence.13
ANALYSIS -- ISSUE 1
The Board finds that appellant has failed to establish a compensable factor of her
employment. Appellant alleged that on May 11, 2011 Ms. Jacox, an acting supervisor, instructed
her to work in a different work area and work outside of her physical restrictions by requiring her
to move her ergonomic chair to that other area. She further alleged that Ms. Jacox declined her
request to move the chair to the new work area, and rudely and sarcastically suggested that she
ask an employee who had originally moved her chair to move it again. Appellant stated that
Ms. Jacox also directed her to sit down and pitch mail. She tried to explain to Ms. Jacox that she
could not move the chair due to fear of aggravating her prior work-related back injury.
Mr. Kokowski, Mr. Ghuman, Mr. Yanick, Mr. Seitz, Ms. Qual, Ms. Spencer-Champion and
Ms. Jackson related that Ms. Jacox declined appellant’s request to move her chair from one work
area to another. Ms. Jackson stated that Ms. Jacox instructed appellant to ask another employee
to move her chair. Ms. Mazzara related that she was informed by appellant about Ms. Jacox’s
refusal to move her chair and directive to ask an employee to move it.
On May 23, 2011 appellant filed an EEO claim for discrimination and retaliation, which
alleged daily harassment by Ms. Jacox and disregard for a prior EEO settlement that required an
ergonomic chair as a reasonable accommodation for a prior on-the-job injury. The June 28, 2011
EEO settlement agreement acknowledged appellant’s work restrictions and need for an
ergonomic chair. The agreement stated that, if Ms. Mazzara or Ms. Jacox asked appellant to
move from one operation to another, it was their responsibility to move her chair, provide a
similar chair in the new work area or instruct another employee to move her chair to the new
operation. The agreement would be breached if either Ms. Mazzara or Ms. Jacox failed to
comply with this agreement after being reminded of it by appellant.

11

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

12

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

13

Id.

7

The Board has held that being required to work beyond one’s physical restrictions may
constitute a compensable employment factor if substantiated.14 However, the Board finds that
the evidence in this case is insufficient to establish that appellant was asked to work outside of
her physical restrictions. The January 20, 2010 EEO mediation agreement regarding appellant’s
prior employment-related injury required the employing establishment to provide her with an
ergonomic chair/stool on a daily basis upon arrival for her tour of duty as a reasonable
accommodation for her prior employment-related injury. Appellant was provided an ergonomic
chair in accordance with that mediation agreement. There is no evidence of record,
contemporaneous to the May 11, 2011 incident, showing that appellant was restricted from
moving the chair from one operation to another. The employing establishment and appellant did
not reach agreement on whether or how the chair was to be moved until the June 28, 2011 EEO
settlement was reached. This was subsequent to the May 11, 2011 incident that gave rise to
appellant’s traumatic injury claim. Appellant has, therefore, failed to establish that Ms. Jacox’s
request that she move her chair, was requiring her to work outside of her physical restrictions.
Appellant has not established a compensable employment factor under Cutler.
Appellant also alleged that on May 11, 2011 Ms. Jacox denied her requests for union
representation, COP and permission to go home and seek medical evaluation by a physician.
Regarding her allegation of harassment by Ms. Jacox, she contended that she and other
employees in Tour 3 were treated differently by Ms. Jacox than the employees under her
supervision in Tour 1. Appellant asserted that Tour 3 employees were required to sweep the
heaviest mail, closely watched and allowed a 10-minute break while Tour 1 employees did not
have to sweep if they returned early from lunch, and were allowed a 20-minute break and use of
their cellphones. She further asserted that during meetings held on April 18 and May 18, 2011,
complaints of misuse of authority and display of unfair tactics by management from Tour 3
employees were disregarded as trivial by Ms. Mazzaro, Mr. Danbury, Ms. Jackson and
Ms. Jacox. Appellant stated that Ms. Jacox provided excuses and stretched the truth regarding
her actions. She contended that on May 19, 2011 Ms. Jacox intimidated Tour 3 employees by
watching them work until they left the floor.
Appellant’s allegations relate primarily to administrative and personnel actions taken by
management. In McEuen,15 the Board held that an employee’s emotional reaction to
administrative actions or personnel matters taken by the employer is not covered under FECA
unless there is evidence of administrative error or abuse. Generally, such actions pertain to
procedures and requirements of the employer and do not bear a direct relation to the work
required of the employee. Absent evidence of error or abuse, the emotional condition is not
employment generated. To determine whether error or abuse has occurred, the Board must
examine whether the employer acted reasonably.16

14

S.H., Docket No. 10-1086 (issued January 24, 2011).

15

See supra note 9.

16

See Richard J. Dube, 42 ECAB 916, 920 (1991).

8

Appellant’s contentions regarding the denial of her requests for union representation,17
handling of attendance matters and pay issues,18 and assignment and monitoring of work19 are
administrative functions that do not fall under the coverage of FECA absent a showing of error
or abuse. Although appellant has alleged error or abuse by Ms. Jacox, she did not submit any
probative evidence establishing error or abuse regarding the above-noted administrative matters.
Ms. Jackson stated that Ms. Jacox granted appellant’s requests for union representation and
permission to go home, but appellant decided not to go home. Ms. Mazzara stated that
Ms. Jacox denied appellant’s request for COP because there was insufficient documentation.
The Board finds that appellant has failed to establish a compensable employment factor with
regard to the above-noted administrative and personnel matters.
To the extent that incidents alleged as constituting harassment and verbal abuse by a
supervisor are established as occurring and arising from appellant’s performance of her regular
duties, these could constitute employment factors. However, for harassment to give rise to a
compensable disability under FECA, there must be evidence that harassment or discrimination
did, in fact, occur. Mere perceptions or feelings of harassment do not constitute a compensable
factor of employment.20 An employee’s charges that he or she was harassed or discriminated
against, is not determinative of whether or not harassment or discrimination occurred.21 To
establish entitlement to benefits, a claimant must establish a factual basis for the claim by
supporting his or her allegations with probative and reliable evidence.22 The Board notes that
appellant’s allegations of harassment and verbal abuse by the employing establishment primarily
involve the above-noted administrative matters. Appellant contended that she was harassed by
Ms. Jacox who treated her differently than the employees under her supervision in Tour 1 with
regard to the assignment and monitoring of her work and break requirement. As stated, the
assignment and monitoring of work23 and handling of attendance matters24 relate to
administrative matters and appellant has not demonstrated error or abuse in these instances.
Regarding appellant’s allegation of verbal abuse by Ms. Jacox, Mr. Kokowski, Mr. Ghuman,
Mr. Yanick, G. Ghuman, Mr. Seitz and Ms. Qual stated that appellant and Ms. Jacox argued
about the transfer of her chair. However, Ms. Spencer-Champion stated that she observed
Ms. Jacox calmly ask appellant to move her chair to avoid a safety hazard for employees who
were sweeping mail. She and Ms. Jackson stated that appellant ranted and raved loudly during
this discussion. Ms. Jackson also stated that Ms. Jacox granted appellant’s request for union
representation and permission to go home even though appellant did not go home. In light of the

17

Wanda G. Bailey, 45 ECAB 835 (1994).

18

See Judy Kahn, 53 ECAB 321 (2002); Dinna M. Ramirez, 48 ECAB 308, 313 (1997).

19

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

20

Lorraine E. Schroeder, 44 ECAB 323 (1992).

21

See William P. George, 43 ECAB 1159 (1992).

22

See Frank A. McDowell, 44 ECAB 522 (1993); Ruthie M. Evans, 41 ECAB 416 (1990).

23

Donney T. Drennon-Gala, supra note 20.

24

See cases cited, supra note 19.

9

foregoing, the Board finds that the factual evidence fails to support appellant’s claim for
harassment and verbal abuse.25
On appeal, appellant’s attorney contended that the evidence established an emotional
condition causally related to a compensable factor of her employment as she was asked to work
beyond her physical restriction. As explained above, appellant failed to establish a compensable
employment factor.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA26 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence27 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.28
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.29
There are two components involved in establishing the fact of injury. 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.30 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.31
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence providing a diagnosis or opinion as to
causal relationship.32 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.33 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the

25

Where appellant has not established a compensable employment factor, it is not necessary to consider the
medical evidence.
26

5 U.S.C. §§ 8101-8193.

27

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

28

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

29

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

30

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

31

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

32

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

33

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

10

care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.34
ANALYSIS -- ISSUE 2
The Board finds that the medical evidence of record is insufficient to establish that her
physical condition was caused or aggravated by the established work factor.
There is no evidence in the record which indicates that appellant’s head hit the floor, nor
is there evidence that she struck an object as she fell to the floor. Where a personal
nonoccupational pathology causes an employee to collapse and to suffer injury upon striking the
immediate supporting surface and there is no intervention or contribution by any hazard or
special condition of the employment, the injury is not a personal injury while in the performance
of duty within the contemplation of FECA as it does not arise out of a risk connected with the
employment.35
The Board finds that the newly submitted evidence again fails to establish that a medical
condition arose during the course of appellant’s federal employment and within the scope of
compensable work factors. Appellant did not 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 failed to establish that she sustained an emotional
condition or physical injury while in the performance of duty and within the scope of
compensable work factors.

34

James Mack, 43 ECAB 321 (1991).

35

Robert J. Choate, 39 ECAB 103 (1988)

11

ORDER
IT IS HEREBY ORDERED THAT the December 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.36
Issued: September 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

36

Richard J. Daschbach, Chief Judge, who participated in the preparation of the decision, was no longer a
member of the Board after May16, 2014.

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Newark, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Barbara J. Brown, pro se
Office of Solicitor, for the Director

Docket No. 07-1410
Issued: April 25, 2008

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 April 25, 2007 appellant filed a timely appeal from the July 7, 2006 and February 15,
2007 decisions of the Office of Workers’ Compensation Programs finding that she had not
established a recurrence of disability. 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 a recurrence of disability on or about May 14,
1999 causally related to her September 30, 1987 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. Appellant, a modified-duty distribution
clerk, sustained injury on September 30, 1987, accepted by the Office for cervical, thoracic and
lumbar myositis with left arm and leg radiculopathy. She stopped working on May 14, 1999 and
submitted a claim for a recurrence of disability. By decision dated May 16, 2002, the Board
found that appellant did not establish that her disability commencing May 14, 1999 was causally

related to her accepted injury.1 The Board also determined that the Office properly denied her
request to authorize surgery on her left knee, as the medical evidence did not establish that this
condition was related to the September 30, 1987 injury. The facts and circumstances of the case,
as set forth in the Board’s prior decision, are hereby incorporated by reference.
Appellant sought reconsideration of her claim before the Office. In a December 18, 2000
report, Dr. Calvin C. Matthews, a Board-certified physiatrist, diagnosed cervical radiculopathy,
carpal tunnel syndrome of the left hand; cervical and lumbar sprains with radiculopathy into the
left lower extremity. On examination, he noted tenderness along the left knee with a positive
McMurray sign, suggestive of internal derangement. Dr. Matthews noted that appellant was not
presently working and found that she was unable to work. Appellant had no immediate prior
history of any injury to her back and legs; therefore, her symptoms were causally related to the
September 1987 employment injury and rendered her totally disabled. On June 12, 2002
Dr. Matthews noted little improvement in her symptoms over the prior several months.
By decision dated August 1, 2002, the Office denied modification of its
February 15, 2000 decision denying the recurrence of disability claim.
On October 18, 2002 appellant requested reconsideration. She again contended that the
requirements of her modified-duty position exceeded her physical limitations. Appellant also
noted that her supervisor did not train her and that a coworker showed her the duties to perform.
When the coworker was placed on a detail, appellant stated that she became the only person to
perform work which required bending, reaching and lifting and other duties not listed in her job
requirements. On July 29 and September 11, 2002 Dr. Matthews noted treatment of appellant for
pain to her left knee and left shoulder. On January 6, 2003 he noted discomfort in the cervical
spine, left shoulder, left elbow and left knee.
By decision dated February 3, 2003, the Office denied modification of the August 1,
2002 decision.
On June 12, 2003 appellant requested reconsideration. In a March 3, 2003 report,
Dr. Matthews reviewed her medical history beginning with the work injury of
September 30, 1987. He stated:
“In review of [appellant’s] history, it is obvious that [she] has had an initial injury
in 1987, which has progressed over time with recurrence of the symptomatology
as she has described to me and has been confirmed by the treating physicians over
the course of time. These findings strongly impress me as being initially related
to the injury the patient sustained in 1987, which has progressed over time to the
state in which she is today. It is my firm conviction that [appellant] needs to
repeat studies of the above-stated areas, that she needs physical therapy, that she

1

Docket No. 00-2584 (issued May 16, 2002). On May 29, 1999 appellant stated that an elevator at the employing
establishment did not work which required additional walking, resulting in swelling of her left knee and ankle.
Moving log books caused occasional back spasms, with pain to her left shoulder and fingers. She contended that
constant movement in her modified-duty assignment exacerbated her injury.

2

in all probability will need surgical intervention, as treatment for the neck, the
back and left knee symptomatology and including the left hand symptomatology.
“[Appellant] has been totally disabled secondary to the last exam[ination] of
May 1999 when she discontinued work and has not to date been allowed to have
additional studies or work-up to attempt a possible treatment of ongoing pain
despite the findings of prior studies which have clearly defined the symptoms
related to the neck, back and left knee. [She] needs treatment of these specific
areas of injury and has been long awaiting the decision by the workers’
compensation program to have fair and compensable treatment of these injuries.”
Dr. Matthews stated that a restructure in appellant’s department at work required significant
changes which she was required to perform. He advised that she could not perform fine motor
tasks, such as removing staples or stapling, which resulted in headaches, numbness and tingling
sensations throughout her neck, left arm and fingers. Subsequent reports of Dr. Matthews
reiterated his opinion on total disability.
By decision dated September 15, 2003, the Office found that appellant did not establish
that her modified duties had changed. It denied modification of the February 3, 2002 decision.
On November 12, 2003 appellant requested reconsideration, contending that her work
assignments did not conform to her physical limitations. In an October 20, 2003 note,
Dr. Matthews indicated that appellant stated that her recurrence began on May 11, 1999.
Appellant also submitted job descriptions dated April 6, 1992 and January 14, 1998.
On December 19, 2003 the Office denied reconsideration, finding that the evidence was
immaterial or duplicative of that previously received. The Office noted that her contention that
she did not receive the job offer on January 27, 1998 was contradicted by the evidence of record
as she signed a statement stating that she was aware of the job description and the job duties and
physical requirements of her modified assignment.
On February 27, 2004 appellant again requested reconsideration. She reiterated that she
was not given any assistance with any of the time unit duties. This increased symptoms of pain
and numbness in her back and left-sided extremities. Appellant needed to perform additional
walking, standing, bending, reaching, stooping and lifting when her coworker stopped working
in her department. She submitted a note from the coworker, who stated that she worked an
eight-hour, bided assignment in the time unit when appellant started working four hours of
modified duty in January 1998. They worked together for 11 months until the coworker was
given a detail, which compelled appellant to do all the essential work alone. In a January 14,
2004 note, Dr. Matthews addressed appellant’s continuing treatment. This report noted a new
diagnosis of cubital tunnel syndrome.
By decision dated July 29, 2004, the Office denied modification of the December 19,
2003 decision.

3

Appellant requested reconsideration on September 27, 2004 and submitted a description
of her work duties. She submitted the August 30, 2004 statement by another coworker, who
noted that on occasion appellant walked to the copier to make copies, a distance of some 50 to 60
feet. On August 11, 2004 Dr. Matthews listed appellant’s complaints of persistent pain. He
opined that she remained disabled secondary to an exacerbation of pain when she attempted the
duties of her employment. Dr. Matthews completed a disability certificate indicating that
appellant was examined on November 24, 2004 for chronic neck pain, left shoulder pain and
sciatica. In subsequent medical reports, he reiterated that appellant was totally disabled.
By decision dated January 25, 2005, the Office denied appellant’s request for
reconsideration as the evidence was cumulative or immaterial to warrant further review.
On May 19, 2005 appellant requested reconsideration. She repeated arguments
pertaining to her supervisor’s work and referred to the statements of her two coworkers.
Appellant argued that additional walking caused her left leg to swell and become painful. She
also had to reach, kneel and bend more than before after the detail assignment of her coworker.
In a September 19, 2005 report, Dr. Matthews noted that appellant’s chief complaint was a
persistent discomfort in the neck, left shoulder, left hand and leg.
On January 23, 2006 the Office approved appellant’s request for a change of physicians.
It subsequently received the March 29, 2006 report of Dr. Berton Taffet, a Board-certified
orthopedic surgeon. He repeated appellant’s history of injury on September 30, 1987 while
lifting a very heavy sack of mail. Dr. Taffet noted his impressions as neck symptoms secondary
to chronic cervical strain and cervical radiculopathy. He provided a prescription.
In a June 17, 2004 decision, the Office denied further merit review on the basis that
appellant’s request was untimely filed and failed to establish clear evidence of error. Appellant
subsequently filed an appeal with the Board. By decision dated April 18, 2006, the Board found
that appellant’s request for reconsideration was timely filed. The case was returned to the Office
for consideration of appellant’s request under the proper legal standard.2
On remand, appellant submitted a May 10, 2006 report from Dr. George S. Naseef, III, an
orthopedic surgeon, who evaluated appellant for pain to her neck, left arm and lower left back.
Dr. Naseef listed his impressions as Grade 3 spondylolisthesis resulting in caludication
symptoms, radiculopathy and left knee osteoarthritis with symptoms in her right
acromioclavicular (AC) joint. He recommended a magnetic resonance imaging scan of
appellant’s cervical and lumbar spine. On June 28, 2006 Dr. Naseef stated that appellant had
cervical stenosis with left-sided C6 radiculopathy and L4-5 Grade 2 spondylolisthesis resulting
in claudication and radiculopathy. He recommended a left L4-5 epidural steroid injection.
In a decision dated July 7, 2006, the Office denied modification of its prior decisions. It
found that the evidence was insufficient to establish that her job duties changed following the
detail assignment of her coworker. Further, the medical evidence was found to be of diminished
probative value on causal relationship.

2

Docket No. 05-1281 (issued April 18, 2006).

4

On September 11, 2006 appellant requested reconsideration, reiterating that there had
been a change in the nature and extent of her light-duty requirements. In a September 1, 2006
note, Dr. Matthew I. Lipp, a surgeon, stated that appellant had back and left lower extremity
radiculopathy secondary to degenerative disc disease. He reviewed the work history of injuring
herself on September 30, 1987 while lifting a heavy object at the employing establishment. On
September 27, 2006 Dr. Naseef indicated that appellant had left sided C6 radiculopathy and an
L4-5 Grade 2 spondylolisthesis resulting in claudication and left-sided L5 radiculopathy. In a
December 27, 2006 report, he noted that appellant continued to have Grade 2 degenerative L4-5
spondylolisthesis with left-sided radiculopathy. Dr. Naseef prescribed physical therapy.
In a decision dated February 15, 2007, the Office denied modification of the July 7, 2006
decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that she cannot perform such light duty. As part of the burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.3 This includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.4 An award of compensation may
not be made on the basis of surmise, conjecture, speculation or on appellant’s unsupported belief
of causal relation.5
A recurrence of disability, as defined by the implementing federal regulations, means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness.6
ANALYSIS
The Board finds that appellant has not established a recurrence of disability commencing
May 14, 1999 causally related to her September, 30, 1987 injury. The record reflects that her
claim was accepted by the Office for cervical, thoracic and lumbar myositis with left arm and leg
radiculopathy. On January 14, 1998 appellant returned to work in a modified-duty position that
involved no lifting over 10 pounds. She was limited to sitting, walking and standing for two
3

Richard A. Neidert, 57 ECAB ___ Docket No. 05-1330 (issued March 10, 2006); Terry R. Hedman, 38 ECAB
222 (1986).
4

Ronald A. Eldridge, 53 ECAB 159 (2001); see Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

Patricia J. Glenn, 53 ECAB 159 (2001); Ausberto Guzman, 25 ECAB 362 (1974).

6

20 C.F.R. § 10.5(x).

5

hours each a day and her workday was limited to four hours. Appellant was prohibited from
bending, squatting, climbing or kneeling.
Appellant alleged a recurrence of disability due to a change in the nature and extent of the
light-duty job requirements. She contended that a coemployee, J.T., assisted her with her duties
and when he left for another job assignment; her duties changed as she became the only person
in her unit and had to exceed her physical limitations in order to perform her job. The Board
finds, however, that the evidence submitted does not support her contentions. Appellant noted
that she had to leave her chair to perform various duties at times during her shift and had to lift
log books. The evidence of record does not substantiate that after her coworker left on detail,
that she was required to exceed her physical requirements to accomplish her modified-duty job
assignments. Appellant was allowed to walk for one to two hours a day and there is no evidence
that she was required to exceed this restriction. Similarly, she was allowed to lift up to
10 pounds. The evidence indicates that the heaviest items appellant was required to lift were log
books weighing from one to four pounds. She contended that a supervisor could not state what
her duties were when she first reported to work and, due to differences in their schedules, her
supervisor observed her only during calmer times. However, there is no evidence, other than
appellant’s allegation, to establish that she was required to go beyond her restrictions or that her
job requirements changed. The statements submitted from the coworkers are not sufficient to
establish a change in her job requirements. J.T. noted that when he left the unit, appellant had to
work essentially alone. However, after leaving the unit, he was not present to observe appellant
in the performance of her job duties. His statement appears based substantially on appellant’s
allegations. The other coworker, L.H., noted that after J.T. left the unit, appellant had to walk to
the photocopier and make copies. However, this statement provided description of appellant’s
modified work activities establishing that she was working outside of her physical limitations.
Based on this evidence, the record is not sufficient to establish a change in the nature and extent
of appellant’s modified-duty assignments prior to her May 14, 1999 recurrence claim.
Moreover, appellant has not established a change in her injury-related condition such that
she was unable to perform her modified-duty job.
Dr. Matthews opined that appellant was totally disabled since his initial evaluation on
December 1, 2000. As appellant listed no prior injury to her back or legs, he attributed her
symptoms to her 1987 injury. Dr. Matthews advised that her condition had progressed over time
to the state that she is in today. The Board notes, however, that he did not provide adequate
medical rationale in support of his stated conclusion on causal relationship. Appellant alleged
pain in her back and left arm after the 1987 employment injury. While the Office accepted left
leg radiculopathy associated with lumbar myositis, Dr. Matthews did not explain how this injury
would give rise to left knee tenderness and possible internal derangement some 13 years later.
He stated that her conditions had progressed over time, citing generally that her attending
physicians had treated the same symptomatology. Dr. Matthews did not address how the
accepted injury would progress to cause disability on and after May 1999. He did not address
the prior diagnostic studies obtained of appellant’s back which did not reveal any evidence of a
herniated disc. As noted, appellant has not substantiated that there was a change in the modified
duties she was required to perform, a history that was accepted by the physician in his medical
reports. As his opinion is not based on a full and accurate factual and medical background, the
Board finds that his opinion is of reduced probative value.

6

The report of Dr. Taffet addressed appellant’s treatment for cervical symptoms associated
with a chronic strain and radiculopathy. The Board notes, however, that while noting a history
of the 1987 employment injury, the physician did not provide a medical opinion relating
appellant’s diagnosed conditions to the accepted injury. Dr. Naseef listed his impressions of a
lumbar spondylolisthesis, cervical stenosis and osteoarthritis of the left knee and AC joint. He
did not clearly explain how these conditions were attributable to the employment injury in 1987.
Dr. Naseef did not address how appellant’s conditions would be caused or contributed to by her
injury such as to cause total disability commencing in May 1999. Dr. Lipp, noted appellant’s
symptoms of lumbar radiculopathy which he stated was secondary to degenerative disease of the
spine. He did not provide an opinion explaining how appellant’s injury caused or contributed to
her degenerative disease or address her disability for work. For these reasons, the reports of the
examining physicians are of diminished probative value. The Board will affirm the decision of
the Office denying appellant’s recurrence of disability claim.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability on or about May 14, 1999 causally related to her accepted September 30, 1987 injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 15, 2007 and July 7, 2006 be affirmed.
Issued: April 25, 2008
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

7